RI Q4 2011 Exhibit 10.109








Exhibit 10.109
AMENDMENT NO. 3 
TO 
AMENDED AND RESTATED
MASTER REPURCHASE AGREEMENT


AMENDMENT NO. 3 (this “Amendment”), dated as of December 15, 2011, to the Amended and Restated Master Repurchase Agreement, dated as of April 28, 2011 as amended by Amendment No. 1 dated as of May 10, 2011, as further amended by Amendment No. 2 dated as of September 1, 2011 (as further amended, restated or otherwise modified from time to time, the “Repurchase Agreement”), by and between KBS GKK Participation Holdings II, LLC (“Seller”) and Citigroup Financial Products Inc. (“Buyer”).


W I T N E S S E T H :
WHEREAS, Seller and Buyer have previously entered into the Repurchase Agreement; and
WHEREAS, Seller and Buyer desire to amend the Repurchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
A G R E E M E N T S :
SECTION 1.Definitions.  All capitalized terms used herein and not defined shall have the respective meanings set forth in the Repurchase Agreement as amended by this Amendment.
SECTION 2.    Amendments. 
a.    Section 2.01.  Section 2.01 of the Repurchase Agreement is hereby amended by deleting the definition of “Termination Date” in its entirety and inserting the following text alphabetically:  
“Termination Date” shall mean the earliest to occur of (a) April 28, 2013, (b) the 45th day after the Notice Date (or if such 45th day is not a Business Day then the first Business Day thereafter), (c) the maturity or sooner termination date of the Initial Transaction Asset (as stated in the Participation Documents, and as same may be extended), or (d) such earlier date on which this Agreement shall terminate in accordance with the provisions hereof or by operation of law.”
b.   Section 2.01. Section 2.01 of the Repurchase Agreement is hereby amended by adding the definition of “Notice Date” to such section, which such term shall have the following meaning:





“Notice Date” shall mean the date upon which Buyer and Goldman have each given written notice to the Seller and the Goldman Seller that Buyer and Goldman intend to amend the Agreement and the Goldman MRA to be consistent with the terms set forth on Exhibit A - “Terms of the Replacement Mezzanine Loan.”
c.  Paragraph 3 of Exhibit C.  Paragraph 3 of Exhibit C of the Repurchase Agreement is hereby amended by deleting the text therein in its entirety and inserting the following text:
“3.    Buyer and Seller agree that no later than the 45th   day following the Notice Date, the Repurchase Agreement will be amended to be consistent with the terms set forth on Exhibit A - “Terms of the Replacement Mezzanine Loan.”
SECTION 3.    Acknowledgment. For the avoidance of doubt, notwithstanding the occurrence of the Conversion Date, each party hereto agrees that the Participation Agreement and the Participation Certificates issued in connection therewith will continue in full force and effect until payment and performance in full of the Repurchase Price and all the Seller's other obligations under the Repurchase Agreement. 
SECTION 4.    Additional Acknowledgments.  
(a)  Approval of Transfers.  Buyer hereby acknowledges and agrees that it has approved all of the Transfers of Equity Interests identified on Exhibit A attached hereto and incorporated herein by reference (the “Information Chart”), which Transfers involve the Equity Interests held by each Transferor identified in the Information Chart; the consummation of such Transfers shall not constitute a default under the Repurchase Agreement.
(b)  Approval of Guaranties.  Buyer hereby acknowledges and agrees that it has approved (i) the execution of all of the guaranties and indemnities set forth on the Information Chart, and (ii) the parties executing such guaranties and indemnities, as applicable, as set forth on the Information Chart; the execution and delivery of such guarantees and indemnities shall not constitute a default under the Repurchase Agreement.
SECTION 5.    Execution, Delivery and Validity. Each party represents and warrants to the other that this Amendment has been duly and validly executed and delivered by such party and constitutes its legal, valid and binding obligation, enforceable against such party in accordance with its terns.
SECTION 6.    Governing Law.  This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to its choice of law doctrine.
SECTION 7.    Counterparts.  This Amendment may be executed by the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

2



SECTION 8.    Agreement Otherwise Unchanged.  Except as herein provided, the Repurchase Agreement shall remain unchanged and in full force and effect, and each reference to the Repurchase Agreement and words of similar import in the Repurchase Agreement, as amended hereby, shall be a reference to the Repurchase Agreement as amended hereby and as the same may be further amended, supplemented and otherwise modified and in effect from time to time.



3



IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their properly and duly authorized officers as of the day and year first above written.




SELLER
KBS GKK PARTICIPATION HOLDINGS II, LLC,a Delaware limited liability company
		
	By:
	KBS DEBT HOLDINGS, LLC, 
a Delaware limited liability company, 
its sole member


		
	By:
	KBS LIMITED PARTNERSHIP, 
a Delaware limited partnership, 
its manager


		
	By:
	KBS REAL ESTATE INVESTMENT TRUST, INC., 
a Maryland corporation, 
its sole general partner


By:  /s/ David E. Snyder 
David E. Snyder 
Chief Financial Officer








    
Acknowledged and Agreed with respect to Section 3 only:
KBS DEBT HOLDINGS MEZZ HOLDER, LLC, 
a Delaware limited liability company
		
	 By:
	KBS DEBT HOLDINGS, LLC,


a Delaware limited liability 
company, its sole member
		
	By:
	KBS LIMITED PARTNERSHIP, 
a Delaware limited partnership, 
its manager


		
	By:
	KBS REAL ESTATE INVESTMENT TRUST, INC., 
a Maryland corporation, 
its sole general partner


		
	By: 
	/s/ David E. Snyder  


David E. Snyder 
Chief Financial Officer










BUYER




CITIGROUP FINANCIAL PRODUCTS 
INC.
By:    /S/ Richard B. Schlenger         
Name:  Richard B. Schlenger    
Title:  Authorized Signatory










	
			
	 
	 
	 

	 
	 
	Upper Tier Pledge may not technically comply with underlying mortgage documents

	 
	 
	 






FINAL - 12/15
EXHIBIT A


Third Party Mortgage Loan and Transfer Information Chart
	
										
	No
	Lender/Pool Name
	Original Loan Amount
	Upper/Lower Tier Transfer
	Transfer Date
	Transferor
	Transferee
	Mortgage Borrower
	Name of New Guarantor/Indemnitor
	Type or Guaranty(ies)/Indemnity(ies)

	1
	German American Capital Corporation (BBDl)
[BBD1] 


[CROSS DEFAULT TO REPO]
	$440,000,000
	Lower
	12/1/2011
	First States Investors 5000, LLC (DE)
	KBS Acquisition Sub-Owner 2, LLC(DE)
	First States Investors 5000A, LLC (DE)
	N/A
	N/A

	2
	PB Capital (Modified WBBP) 
[PB Capital] 








[CROSS DEFAULT TO REPO]
	$240,000,000
	89% Lower 














Upper
	12/14/2011














12/15/2011
	Lower Tier Transfer -
First States Group, L.P. 
(DE) 






Upper Tier Transfer -GKKStars Acquisition LLC
	Lower Tier Transfer -KBS Acquisition Sub-Owner 3, LLC (DE) 






Upper Tier Transfer -KBS Acquisition Sub-Upper Tier Owner, LLC
	First States Investors 3300 B, L.P. (DE)
	KBS Debt Holdings, LLC
	1. Supplemental Recourse Liability Agreement


2. Replacement Interest Rate Protection Guaranty 


3. Replacement Environmental Indemnity 

	3
	Wells Fargo Bank, N.A., as Trustee (Beaver Valley) [Beaver Valley] 




[WITH NO. 16]
	$43,000,000
	Lower
	12/15/2011
	First States Wilmington JV, LP (DE)
	KBS Acquisition Sub-Owner 14, LLC (DE)
	First States Wilmington, L.P. (DE)
	KBS Acquisition Holdings, LLC
	1. Supplemental Guaranty and Indemnity 


2. Supplemental Environmental Indemnity Agreement

	4
	Wells Fargo Bank Northwest, National Association (Pitney Bank of America) [Pitney Bowes-BOA]
	$65,000,000
	Lower
	12/15/2011
	First States Investors 4100, LLC (DE)
	KBS Acquisition Sub-Owner 11, LLC (DE)
	First States Investors 4100A, L.P, (DE)
	N/A
	N/A





1



	
										
	No
	Lender/Pool Name
	Original Loan Amount
	Upper/Lower Tier Transfer
	Transfer Date
	Transferor
	Transferee
	Mortgage Borrower
	Name of New Guarantor/Indemnitor
	Type or Guaranty(ies)/Indemnity(ies)

	5
	Lehman Brothers Bank, FSB (Pitney Wachovia) 
[PITT-A]
	$27,298,312.52
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner, LLC (DE)
	First States Investors 4000B, LLC (DE)
	N/A
	N/A

	6
	Bear Steams Commercial Mortgage, Inc. 
(Bear Steams #2) [BOA Windsor]
	$7,000,000
	Lower
	12/15/2011
	First States Group, L.P. (DE)
	KBS Acquisition Sub-Owner 24, LLC (DE)
	1. First States Investors 93, L.P. (TX) 
2. First States Investors 94, L.P. (TX) 
3. First States Investors 95, L.P. (TX) 
4. First States Investors 96, L.P. (TX) 
5. First States Investors 97, L.P. (TX)
	KBS Acquisition Holdings, LLC
	1. Indemnity and Guaranty Agreement 




2. Environmental Indemnity Agreement 

	7
	Suburban Community Bank (Univest) [FeasterviIIe]
	$1,200,000
	Lower
	12/14/2011
	First States Properties, L.P. (PA)
	KBS Acquisition Sub-Owner 26, LLC (DE)
	First States Properties No. 27, LLC (PA)
	N/A
	N/A

	8
	Bear Steams Commercial Mortgage, Inc. (Bear Steams #1) 
[RBC Centura]
	$11,250,000
	Lower
	12/15/2011
	First States Group, L.P. (DE)
	KBS Acquisition Sub-Owner 23, LLC (DE)
	1. First States Investors 3009, Limited Partnership (FL) 
2. First States Investors 3017, L.P. (NC) 
3. First States Investors 3016 L.P. (NC) 
4. First States Investors 3032, L.P. (NC) 
5. First States Investors 3018, L.P. (NC) 
6. First States
	KBS Acquisition Holdings, LLC
	1. Indemnity and Guaranty Agreement 




2. Environmental Indemnity Agreement





2



	
										
	No
	Lender/Pool Name
	Original Loan Amount
	Upper/Lower Tier Transfer
	Transfer Date
	Transferor
	Transferee
	Mortgage Borrower
	Name of New Guarantor/Indemnitor
	Type or Guaranty(ies)/Indemnity(ies)

	 
	 
	 
	 
	 
	 
	 
	Investors 3031, L.P. (NC) 7. First States Investors 3039, LLC (SC)
	 
	 

	9
	Wells Fargo Bank. N.A., as Trustee (801 Market) (801 Market Square] 




[WITH NO. 12 & 14]
	$44,000,000
	49% Lower 










Upper
	12114/2011 










12/1512011
	Lower Tier Transfer -First States Investors 801, L.P. 




Upper Tier Transfer -GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	Lower Tier Transfer -K.BS Acquisition Sub-Owner 13. LLC (DE) 


Upper Tier Transfer -KBS Acquisition Sub-Upper Tier Owner. LLC (DE)
	801 Market Street Holdings. L.P. (PA)
	KBS Acquisition Holdings. LLC
	1. Joinder By and Agreement of QT Indemnitor (assumption of obligations under existing environmental indemnity and carveout guaranty)

	10
	Wells Fargo Bank, N.A, as Trustee (Wachovia # 1) 
[WAC-8]
	$61,000,000
	Lower
	12/15/2011
	First States Properties, L.P. (PA)
	KBS Acquisition Sub-Owner 25, LLC (DE)
	1. First States Properties No 25, LLC (PA) 2. First States Properties No 33, LLC (PA) 3. First States Properties No 63, LLC (PA) 4. First States Properties No 69, LLC (PA) 5. First States Properties No 26, LLC (PA) 6. First States Properties No 76, LLC (PA)
	KBS Acquisition Holdings, LLC
	1. Indemnity and Guaranty Agreement 




2. Environmental Indemnity Agreement









3



	
										
	No
	Lender/Pool Name
	Original Loan Amount
	Upper/Lower Tier Transfer
	Transfer Date
	Transferor
	Transferee
	Mortgage Borrower
	Name of New Guarantor/Indemnitor
	Type or Guaranty(ies)/Indemnity(ies)

	11
	Wells Fargo Bank, N.A., as Trustee (Wachovia #2) [WAC-9]
	$18,800,000
	Lower
	12/15/2011
	First States Group, L.P. (DE)
	KBS Acquisition Sub-Owner 22, LLC (DE)
	1. First States Investors 4000D, LLC (DE) 
2. First States Investors 3006, Limited Partnership (FL) 
3. First States Investors 3008, Limited Partnership (FL) 
4. First States Investors 72, LLC (NV) 
5. First States Investors 3038, LLC (SC) 
6. First States Investors 74, Limited Partnership (TX)
	KBS Acquisition Holdings, LLC
	1. Indemnity and Guaranty Agreement 




2. Environmental Indemnity Agreement

	12
	LaSalle Bank National Association [FSI 6000A] 






[WITH NO.9 & 14]
	$26,400,000
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner. LLC (DE)
	First States Investors 6000A, L.P. (DE)
	N/A
	N/A

	13
	Wells Pargo Bank. N.A, as Trustee [FSI 6000B] 






[WITH NO. 15]
	$30,009,000
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner, LLC (DE)
	First States Investors 6000B. L.P. (DE)
	KBS Acquisition Holdings. LLC
	1. Joinder By and Agreement of QT Indemnitor





4





	
										
	No
	Lender/Pool Name
	Original Loan Amount
	Upper/Lower Tier Transfer
	Transfer Date
	Transferor
	Transferee
	Mortgage Borrower
	Name of New Guarantor/Indemnitor
	Type or Guaranty(ies)/Indemnity(ies)

	14
	LaSalle Bank National Association 
[FSI 6000C] 




[WITH NO. 9 & 12]
	$22,710,000
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner, LLC (DE)
	First States Investors 6000C, L.P. (DE)
	N/A
	N/A

	15
	Wells Fargo Bank, N.A., as Trustee [FSI 6000D] 




[WITH NO. 13]
	$31.275,000
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner, LLC (DE)
	First Stales lnyestors 6000d. L.P, (DE)
	KBS Acquisition Holdings. LLC
	1. Joinder By and Agreement of QT Indemnitor

	16
	German American Capital Corporation and Bear Stearns Commercial Mortgage, Inc. (BB2) 
[BB2] 


[CROSS DEFAULT TO REPO] 
[WITH NO. 3]
	$304,000,000
	Lower
	12/15/2011
	First States Group, L.P. (DE)
	KBS Acquisition Sub-Owner 9, LLC (DE)
	First States Investors 5200, LLC (DE)
	KBS Acquisition Holdings, LLC
	1. Guaranty and Indemnity Agreement 




2. Supplemental Environmental Indemnity

	17
	Metropolitan Life Insurance Company (101 Independence) [101 Independence]
	$80,000,000
	Lower
	12/14/2011
	First States Investors 104 Holdings, L.P. (DE)
	KBS Acquisition Sub-Owner 10, LLC (DE)
	First States Investors 104, L.P. (DE)
	KBS Acquisition Holdings, LLC
	1. Guaranty (guaranties environmental obligations and environmental obligations)

	18
	Wachovia Bank (One Citizens Plaza) [One Citizens Plaza]
	$43,500,000
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner, LLC (DE)
	First States Investors 240, LLC (DE)
	N/A
	N/A





5





	
										
	No
	Lender/Pool Name
	Original Loan Amount
	Upper/Lower Tier Transfer
	Transfer Date
	Transferor
	Transferee
	Mortgage Borrower
	Name of New Guarantor/Indemnitor
	Type or Guaranty(ies)/Indemnity(ies)

	19
	Wachovia Bank (Sterling) 
[Sterling Bank]
	$19,900,000
	Lower
	12/15/2011
	First States Investors 4600 Holdings, LLC (DE)
	KBS Acquisition Sub-Owner 20, LLC (DE)
	First States Investors 4600, LLC(DE)
	KBS Acquisition Holdings, LLC
	1. Indemnity and Guaranty Agreement 




2. Environmental Indemnity Agreement

	20
	Credit Suisse First Boston Mortgage Capital LLC (Jenkins Court) [Jenkins Court]
	$15,500,000
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner, LLC (DE)
	First States Properties Jenkins Court, L.P. (PA)
	N/A
	N/A

	21
	Bear Stearns Commercial Mortgage, Inc. (CREJV Five Branch)
	$62,800,000
	Upper
	12/15/2011
	GKK Stars Acquisition LLC will transfer its stock in AFRT to Transferee
	KBS Acquisition Sub-Upper Tier Owner.LLC (DE)
	CREJV Five Branch Holdings LLC (DE)
	KBS Acquisition Holdings. LLC
	1. Guaranty of Recourse Obligations 


2. Environmental Indemnity









6