KBS RIII PEA No.21 Exhibit 10.7






Exhibit 10.7
FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT


THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Fourth Amendment”) is made as of the 9th day of December, 2014, by and between EMERYVILLE OFFICE, L.L.C., a Delaware limited liability company (“Seller”), and KBSIII TOWERS AT EMERYVILLE, LLC, a Delaware limited liability company (“Buyer”).  In consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
RECITALS
A.    Seller and KBS Capital Advisors LLC, a Delaware limited liability company (“Original Buyer”) are parties to that certain Purchase and Sale Agreement dated as of November 14, 2014, as amended by that certain First Amendment to Purchase and Sale Agreement dated as of December 3, 2014, that certain Second Amendment to Purchase and Sale Agreement dated as of December 5, 2015 and that certain Third Amendment to Purchase and Sale Agreement dated as of December 8, 2014, and as assigned by Original Buyer to Buyer pursuant to that certain Assignment and Assumption of Purchase Agreement, dated as of December 8, 2014 (as amended and assigned, the “Purchase Agreement”).  All initially-capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement unless the context clearly indicates otherwise.
B.    Seller and Buyer have agreed to modify the terms of the Purchase Agreement as set forth in this Fourth Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intended to be legally bound, Seller and Buyer agree as follows:
1.Recitals.  The Recitals set forth above are hereby incorporated herein by reference as if the same were fully set forth herein.
2.    Exhibits.  Exhibit C-1 (Lease Schedule), Exhibit C-2 (Security Deposit Schedule) and Exhibit D (Operating Agreements Schedule) attached to the Purchase Agreement shall be, and hereby is, deleted and Exhibit C-1 (Lease Schedule), Exhibit C-2 (Security Deposit Schedule) and Exhibit D (Operating Agreements Schedule) attached hereto is hereby inserted in its place. 
3.    Assumption of Operating Agreements.  In accordance with Section 3.3 of the Purchase Agreement, Buyer hereby notifies Seller of its election to assume the Operating Agreements set forth on Exhibit D attached hereto (to the extent assignable and assumable as indicated on Exhibit D).  All other Operating Agreements not assumed by Buyer shall be terminated by Seller at Closing.
4.    Credits for Tenant Inducement Costs, Leasing Commissions and Free Rent.  Notwithstanding anything stated to the contrary in the Purchase Agreement, and in addition to any amounts to be credited to Buyer for Tenant Inducement Costs, leasing commissions, and “free rent” periods attributable to periods from and after the Closing Date 







under Section 4.5(b)(vii) and Section 4.5(e) of the Purchase Agreement (but without duplication of any of such amounts), Seller acknowledges and agrees that:
(A)  Buyer shall be entitled to a credit at Closing towards the Purchase Price in an amount equal to  the “free rent” periods attributable to periods from and after the Closing Date and Tenant Inducement Costs and leasing commissions in the amounts and for the tenants set forth in Exhibit E-1 attached hereto and made a part hereof to the extent the same have not been paid by Seller prior to Closing (and for any amounts actually paid for by Seller prior to the Closing Date, Seller shall deliver to Buyer prior to the Closing Date evidence reasonably satisfactory to Buyer that such amounts have been paid).   
(B)  To the extent leases for any tenant set forth on Exhibit E-2 is entered into by Seller prior to the Closing Date, Buyer shall be entitled to a credit at Closing towards the Purchase Price in an amount equal to  the “free rent” periods attributable to periods from and after the Closing Date and all Tenant Inducement Costs and leasing commissions which become due and payable as a result of the entering of such lease (which credits shall be based on the actual amounts reflected in the executed leases, and not the amounts set forth in Exhibit E-2) to the extent the same have not been paid by Seller prior to Closing (and for any amounts actually paid for by Seller prior to the Closing Date, Seller shall deliver to Buyer prior to the Closing Date evidence reasonably satisfactory to Buyer that such amounts have been paid).  To the extent leases for any tenant set forth on Exhibit E-2 have not been entered into by Seller prior to the Closing Date, Buyer shall be entitled to a credit at Closing towards the Purchase Price in an amount equal to the “free rent” reflected in Exhibit E-2 attached hereto and made a part hereof, together with a credit for the Tenant Inducement Costs and leasing commission for such tenants in the amounts set forth in Exhibit E-2 attached hereto and made a part hereof.


5.    Expiration of Inspection Period.  Buyer hereby waives its right to terminate the Purchase Agreement under Section 3.2 of the Purchase Agreement, and, therefore, Buyer shall be obligated to acquire the Property in accordance with, and subject to, the provisions of the Purchase Agreement.
6.    Effectiveness of Agreement.  Except as modified by this Fourth Amendment, all the terms of the Purchase Agreement shall remain unchanged and in full force and effect.
7.    Counterparts.  This Fourth Amendment may be executed in counterparts, and all counterparts together shall be construed as one document.
8.    Telecopied/Emailed Signatures.  A counterpart of this Fourth Amendment that is signed by one party to this Fourth Amendment and telecopied/emailed to the other party to this Fourth Amendment or its counsel (i) shall have the same effect as an original signed counterpart of this Fourth Amendment, and (ii) shall be conclusive proof, admissible in judicial proceedings, of such party’s execution of this Fourth Amendment.
9.    Successors and Assigns.  All of the terms and conditions of this Fourth Amendment shall apply to benefit and bind the successors and assigns of the respective parties.







IN WITNESS WHEREOF, Seller and Buyer have entered into this Fourth Amendment as of the date first above stated.
[SIGNATURES ON NEXT PAGE]







“SELLER”
EMERYVILLE OFFICE, L.L.C., 
a Delaware limited liability company 
 
By:      EMERYVILLE OFFICE HOLDINGS, L.L.C.,
a Delaware limited liability company,
its Sole Member and Manager 


By:    LBA RIV-Company III, LLC,
a Delaware limited liability company, 
its Operating Member 


By:    LBA REIT IV, LLC,
a Delaware limited liability company 
its sole Member and Manager 


By:    LBA Realty Fund IV, L.P.,
a Delaware limited liability partnership,
its Sole Manager


By:    LBA Management Company, IV, LLC,
a Delaware limited liability company,
its General Partner


By:    LBA Realty LLC,
a Delaware limited liability company,
its Manager


By:    LBA Inc.,
a California corporation,
its Managing Member


	
		
	By:
	/s/ Steven R. Layton

	Name:
	Steven R. Layton

	Title:
	Authorized Signatory











“BUYER”
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













Exhibit C-1 


Lease Schedule


(Attached)










































































































Exhibit C-2









Security Deposit Schedule


(Attached)































Exhibit D


Operating Agreements Schedule


(Attached)























Exhibit E-1


Tenants with Executed Leases


(Attached)















Exhibit E-2


Tenants with Unexecuted Leases


(Attached)