exv10w4






Exhibit 10.4




PROMISSORY NOTE




			
	 	 	 
	$18,000,000
	 	November 14, 2006






     FOR VALUE RECEIVED, KBS SOUTHPARK COMMERCE CENTER II, LLC, a
Delaware limited liability company, having an address at c/o KBS Capital Advisors, 620 Newport
Center Drive, Suite 1300, Newport Beach, CA 92660 (“Maker”), hereby promises to pay to the order
of GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, at its principal place of
business at 600 Steamboat Road, Greenwich, Connecticut 06830 (together with its successors and
assigns “Payee”) or at such place as the holder hereof may from time to time designate in writing,
the principal sum of Eighteen Million Dollars ($18,000,000) (the “Principal”), in lawful money of
the United States of America, with interest on the unpaid principal balance from time to time
outstanding at the Interest Rate, in installments as follows:



     A. A payment on the date of funding representing interest from the date of funding
through December 5, 2006;



     B. On January 6, 2007 (which shall be the first Payment Date hereunder) and each
Payment Date thereafter through and including the Maturity Date (as such date may be changed
in accordance with Section 2.2.4 of the Loan Agreement), interest on the unpaid Principal
calculated at the Interest Rate which has accrued through the last day of the Interest Period
immediately preceding such Payment Date (the “Monthly Debt Service Payment Amount”).



     C. The balance of the principal sum of this Note together with all accrued and unpaid
interest thereon shall be due and payable on the Maturity Date.



     1.
Definitions. Capitalized terms used but not otherwise defined herein shall have the
meanings given in that certain Loan Agreement (the “Loan Agreement”) dated the date hereof between
Maker and Payee. The following terms have the meanings set forth below:



            Business Day: any day other than a Saturday, Sunday or any day on which commercial banks in
New York, New York are authorized or required to close.




          Default Rate: a rate per annum equal to the lesser of (i) the maximum rate permitted by
applicable law, or (ii) 5% above the Interest Rate, compounded monthly.




          Interest Period: (i) the period from the date hereof through the fifth day of the next
succeeding calendar month and (ii) each period thereafter from the sixth day of each calendar
month through fifth day of the next succeeding calendar month; except that the Interest Period, if
any, that would otherwise commence before and end after the Maturity Date shall end on the
Maturity Date. Notwithstanding the foregoing, if Payee exercises its right to change the Payment
Date to a New Payment Date in accordance with Section 2.2.4 of the Loan Agreement, then from and
after such election, each Interest Period shall be the period from the New Payment Date in each
calendar month through the day immediately preceding the next succeeding New Payment Date.


















 








          Interest Rate: a fixed rate of interest equal to 5.6725% per annum (or, when applicable
pursuant to this Note or any other Loan Document, the Default Rate).




          Maturity Date: the date on which the final payment of principal of this Note (or the Defeased
Note, if applicable) becomes due and payable as therein provided, whether at the Stated Maturity
Date, by declaration of acceleration, or otherwise.




          Payment Date: the sixth day of each calendar month or, upon Payee’s exercise of its right to
change the Payment Date in accordance with Section 2.2.4 of the Loan Agreement, the New Payment
Date (in either case, if such day is not a Business Day, the Payment Date shall be the first
Business Day thereafter).




          Stated Maturity Date: December 6, 2016, as such date may be changed in accordance with
Section 2.2.4 of the Loan Agreement.




          Yield Maintenance Premium: an amount which, when added to the outstanding Principal, would be
sufficient to purchase U.S. Obligations which provide payments (a) on or prior to, but as close as
possible to, all successive scheduled payment dates under this Note through the Stated Maturity
Date and (b) in amounts equal to the Monthly Debt Service Payment Amount required under this Note
through the Stated Maturity Date together with the outstanding principal balance of this Note as
of the Stated Maturity Date assuming payments of all such Monthly Debt Service Payment Amounts are
made (including any servicing costs associated therewith). In no event shall the Yield Maintenance
Premium be less than zero.




     2. Payments and Computations. Interest on the unpaid Principal shall be computed on
the basis of the actual number of days elapsed over a 360-day year. All amounts due under this
Note shall be payable without setoff, counterclaim or any other deduction whatsoever and are
payable without relief from valuation and appraisement laws and with all costs and charges
incurred in the collection or enforcement hereof, including, attorneys’ fees and court costs.



     3. Loan Documents. This Note is evidence of that certain loan made by Payee to Maker
contemporaneously herewith and is executed pursuant to the terms and conditions of the Loan
Agreement. This Note is secured by and entitled to the benefits of, among other things, the
Mortgage and the other Loan Documents. Reference is made to the Loan Documents for a description of
the nature and extent of the security afforded thereby, the rights of the holder hereof in respect
of such security, the terms and conditions upon which this Note is secured and the rights and
duties of the holder of this Note. No reference herein to and no provision of any other Loan
Document shall alter or impair the obligation of Maker, which is absolute and unconditional (except
for Section 10.1 of the Loan Agreement), to pay the principal of and interest on this Note at the
time and place and at the rates and in the monies and funds described herein. All of the
agreements, conditions, covenants, provisions and stipulations contained in the Loan Documents to
be kept and performed by Maker are by this reference hereby made part of this Note to the same
extent and with the same force and effect as if they were fully set forth in this Note, and Maker
covenants and agrees to keep and perform the same, or cause the same to be kept and performed, in
accordance with their terms.



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     4. Loan Acceleration; Prepayment. The Debt shall without notice become immediately
due and payable at the option of Payee if any payment required in this Note is not paid on the
date on which it is due (after giving effect to any grace periods applicable thereto) or upon the
happening of any other Event of Default. Maker shall have no right to prepay or defease all or any
portion of the Principal except in accordance with Sections 2.3.2, 2.3.3, 2.3.4 and 2.4 of the
Loan Agreement. If prior to the second Payment Date prior to the Stated Maturity Date (i) Maker
shall (notwithstanding such prohibition of prepayment) tender, and Payee shall, in its sole
discretion, elect to accept, payment of the Debt, or (ii) the Debt is accelerated by reason of an
Event of Default, then the Debt shall include, and Payee shall be entitled to receive, in addition
to the outstanding principal and accrued interest and other sums due under the Loan Documents, an
amount equal to the Yield Maintenance Premium, if any, that would be required in connection with a
Defeasance if a Defeasance were to occur at the time of Payee’s acceptance of such tender or other
receipt of the Debt (through foreclosure or otherwise), as the case may be. The principal balance
of this Note is subject to mandatory prepayment, without premium or penalty, in certain instances
of Insured Casualty or Condemnation, as more particularly set forth in Sections 2.3.2 and 7.4.2 of
the Loan Agreement. Except during the continuance of an Event of Default, all proceeds of any
repayment, including permitted prepayments, of Principal shall be applied in accordance with
Section 2.3.1 of the Loan Agreement. During the continuance of an Event of Default, all proceeds
of repayment, including any payment or recovery on the Property (whether through foreclosure,
deed-in-lieu of foreclosure, or otherwise) shall, unless otherwise provided in the Loan Documents,
be applied in such order and in such manner as Payee shall elect in Payee’s discretion.



     5. Default Rate. After the occurrence and during the continuance of an Event of
Default, the entire unpaid Debt shall bear interest at the Default Rate, and shall be payable upon
demand from time to time, to the extent permitted by applicable law.



     6. Late Payment Charge. If any Principal, interest or other sum due under any Loan
Document is not paid by Maker on the date on which it is due (other than amounts due and payable
on the Maturity Date), Maker shall pay to Payee upon demand an amount equal to the lesser of 5% of
such unpaid sum or the maximum amount permitted by applicable law, in order to defray the expense
incurred by Payee in handling and processing such delinquent payment and to compensate Payee for
the loss of the use of such delinquent payment.



     7. Amendments. 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 Maker or Payee, 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. Whenever used, the
singular number shall include the plural, the plural the singular, and the words “Payee” and
“Maker” shall include their respective successors, assigns, heirs, executors and administrators.
If Maker consists of more than one person or party, the obligations and liabilities of each such
person or party shall be joint and several.



     8. Waiver. Maker 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,
protest, notice of protest, notice of nonpayment (except as otherwise expressly provided for in
this Note or the other Loan Documents), notice of intent to accelerate the



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maturity hereof and of acceleration. No release of any security for the Debt or any person liable
for payment of the Debt, no extension of time for payment of this Note or any installment hereof,
and no alteration, amendment or waiver of any provision of the Loan Documents made by agreement
between Payee and any other person or party shall release, modify, amend, waive, extend, change,
discharge, terminate or affect the liability of Maker, and any other person or party who may become
liable under the Loan Documents, for the payment of all or any part of the Debt.




     9. Exculpation. It is expressly agreed that recourse against Maker for failure to
perform and observe its obligations contained in this Note shall be limited as and to the extent
provided in Section 10.1 of the Loan Agreement.



     10. Notices. All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner specified in the Loan Agreement directed to the
parties at their respective addresses as provided therein.



     11. No Conflicts. In the event of any conflict between the provisions of this Note
and any provision of the Loan Agreement, then the provisions of the Loan Agreement shall control.



     12. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.



[Signature Page Follows]







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     IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the day and year first
written.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 	 	MAKER:	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	KBS SOUTHPARK COMMERCE CENTER II,	 	 	 	 
	 	 	LLC, a Delaware limited liability company	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	KBS REIT ACQUISITION IV, 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/ Charles J. Schreiber, Jr.	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 

Charles J. Schreiber, Jr.	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Chief Executive Officer	 	 	 	 







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