Common use of Transfer or Further Encumbrance of Property Clause in Contracts

Transfer or Further Encumbrance of Property. (a) Without Mortgagee’s prior written consent, which consent may be granted or withheld in Mortgagee’s sole and absolute discretion, Mortgagor shall not, except as permitted in Section 5.3, (i) sell, assign, convey, transfer or otherwise dispose of any legal, beneficial or equitable interest in any of the Property, (ii) permit or suffer any owner, directly or indirectly, of any beneficial interest in the Property or Mortgagor to transfer such interest, whether by transfer of partnership, membership, stock or other beneficial interest in any entity or otherwise, or (iii) mortgage, hypothecate or otherwise encumber or permit to be encumbered or grant or permit to be granted a security interest in all or any part of the Property or Mortgagor or any beneficial or equitable interest in either the Property or Mortgagor. The provisions of this Section shall not prohibit transfers of title or interest under any will or testament or applicable law of descent. (b) Notwithstanding the provisions of Section 5.4(a) to the contrary, Mortgagor may transfer the Property or any beneficial interest in Mortgagor provided that (i) the transferee of the Property (in the case of a transfer of the Property) or the surviving entity (in the case of a transfer of any beneficial interest in Mortgagor) is a wholly owned subsidiary of Guarantor (and such other entity shall be a single purpose entity and shall expressly assume the obligations of Borrower under the Loan Documents in documentation satisfactory to Lender in form and content) and (ii) immediately before and immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing. Mortgagor shall be responsible for all out–of–pocket expenses incurred by Mortgagee in connection with such transfer, including without limitation reasonable attorney’s fees. (c) Notwithstanding the provisions of Section 5.4(a), so long as (i) Mortgagor is a wholly owned subsidiary of Guarantor and Guarantor controls Mortgagor and (ii) Guarantor is an Independent Publicly Traded Entity, there shall be no restrictions on the sale or transfer of stock in Guarantor. As used herein, the term “Independent Publicly Traded Entity” means a corporation (1) whose stock is publicly traded on the New York Stock Exchange, American Stock Exchange, NASDAQ market or similar national or nationally recognized stock exchange or over the counter market and (2) is not a subsidiary of another entity. Notwithstanding the provisions of Section 5.4(a) and (b), Guarantor may enter into any merger, consolidation or reorganization, provided that the surviving entity following any such merger, consolidation or reorganization (A) is an Independent Publicly Traded Entity and (B) the net worth of the surviving entity (as determined by an independent certified public accounting firm) is equal to or greater than the greater of (I) the net worth of Guarantor as of the date of the closing of the Loan and (II) the net worth of Guarantor immediately prior to the consummation of such merger, consolidation or reorganization.

Transfer or Further Encumbrance of Property. (a) Without Subject to the provisions of Section 5.7 relating to Chattels, without Mortgagee’s 's prior written consent, which consent may be granted or withheld in Mortgagee’s 's sole and absolute discretion, Mortgagor shall not, except as permitted in Section 5.3, not (ia) sell, assign, convey, transfer or otherwise dispose of any legal, beneficial or equitable interest in all or any part of the Property, (iib) permit or suffer any owner, directly or indirectly, of any beneficial interest in the Property or Mortgagor to transfer such interest, whether by transfer of partnership, membership, stock or other beneficial interest in any entity or otherwise, or (iiic) mortgage, hypothecate or otherwise encumber or permit to be encumbered or grant or permit to be granted a security interest in all or any part of the Property or Mortgagor or any beneficial or equitable interest in either the Property or Mortgagor. The provisions of this Section shall not prohibit transfers of title or interest under any will or testament or applicable law of descent. (b) , and shall not prohibit the transfer of the limited partnership interests in Mortgagor owned by Key Biscayne Limited Partnership, a Florida limited partnership. Notwithstanding the provisions of Section 5.4(a) foregoing to the contrary, Mortgagor may transfer the Property or any beneficial interest in Mortgagor provided that (i1) the transferee Mortgagee shall permit transfers of the Property (in the case of a transfer of the Property) or the surviving entity (in the case of a transfer of any beneficial interest in Mortgagor) is a wholly owned subsidiary shares of Guarantor (and such other a "Guarantor Transfer") in connection with the sale of all of the shares of Guarantor to an individual or entity shall be a single purpose entity and shall expressly assume the obligations of Borrower under the Loan Documents previously approved in documentation satisfactory to Lender in form and content) and (ii) immediately before and immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing. Mortgagor shall be responsible for all out–of–pocket expenses incurred writing by Mortgagee in connection with such transferits sole discretion, including without limitation reasonable attorney’s fees. or, in all other cases, provided that the Xxxxxxxxx family, or any of them, shall at all times during which any Secured Obligation shall remain outstanding, (cx) Notwithstanding the provisions collectively own not less than 51% of Section 5.4(a)Guarantor, so long as (i) Mortgagor is a wholly owned subsidiary of Guarantor and Guarantor controls Mortgagor and (iiy) Guarantor is an Independent Publicly Traded Entitycontrol Guarantor, there shall be no restrictions on the sale or transfer of stock in Guarantor. As used herein, the term “Independent Publicly Traded Entity” means a corporation (1) whose stock is publicly traded on the New York Stock Exchange, American Stock Exchange, NASDAQ market or similar national or nationally recognized stock exchange or over the counter market and (2) if any Guarantor Transfer is not permitted under the terms of this Section 5.4, then Mortgagor shall have the right to complete a subsidiary of another entity. Notwithstanding the provisions of Section 5.4(a) and (b), Guarantor may enter into any merger, consolidation or reorganization, provided that the surviving entity following any such merger, consolidation or reorganization (A) is an Independent Publicly Traded Entity and (B) the net worth Defeasance of the surviving entity (as determined Note by an independent certified public accounting firm) is equal to or greater than satisfying the greater of (I) Defeasance Requirements set forth in the net worth of Guarantor as Note. For purposes of the date foregoing, the Xxxxxxxxx family shall be presumed to control Guarantor if the Xxxxxxxxx family, or any of them, possesses the closing power, directly or indirectly, to direct, or cause the direction of, the management or policies of the Loan and (II) the net worth Guarantor, whether through ownership of Guarantor immediately prior to the consummation of such mergervoting securities, consolidation by contract, or reorganizationotherwise.

Transfer or Further Encumbrance of Property. (a) Without Mortgagee’s 's prior written consent, which consent may be granted or withheld in Mortgagee’s 's sole and absolute discretion, Mortgagor shall not, except as permitted in Section 5.3, not (i) sell, assign, convey, transfer or otherwise dispose of any legal, beneficial or equitable interest in all or any part of the Property, (ii) permit or suffer any owner, directly or indirectly, of any beneficial interest in the Property or Mortgagor to transfer such interest, whether by transfer of partnership, membership, stock or other beneficial interest in any entity or otherwise, or (iii) mortgage, hypothecate or otherwise encumber or permit to be encumbered or grant or permit to be granted a security interest in all or any part of the Property or Mortgagor or any beneficial or equitable interest in either the Property or Mortgagor. The provisions of this Section shall not prohibit transfers of title or interest under any will or testament or applicable law of descent. (b) Notwithstanding the provisions of Section SECTION 5.4(a) to the contrary, Mortgagor may Mortgagee shall permit a one-time transfer of the Property or any beneficial interest in Mortgagor provided that all of the following conditions are satisfied: (i) the transferee no Event of the Property (in the case of a transfer of the Property) or the surviving entity (in the case of a transfer of any beneficial interest in Mortgagor) Default has occurred and no Default has occurred and is a wholly owned subsidiary of Guarantor (and such other entity shall be a single purpose entity and shall expressly assume the obligations of Borrower under the Loan Documents in documentation satisfactory to Lender in form and content) and continuing; (ii) immediately before and immediately after giving effect Mortgagor has paid to such transaction, no Event Mortgagee an assumption fee of Default, and no event which, after notice or lapse one percent (1%) of time or both, would become an Event the outstanding principal balance of Default, shall have occurred and be continuing. Mortgagor shall be responsible for all out–of–pocket expenses incurred by Mortgagee in connection with such transfer, including without limitation reasonable attorney’s fees. the Secured Obligations; (ciii) Notwithstanding if the provisions of Section 5.4(a), so long as (i) Mortgagor proposed transferee is a wholly owned subsidiary land trust, Mortgagee has received a first-lien collateral assignment of Guarantor and Guarantor controls Mortgagor and (ii) Guarantor is an Independent Publicly Traded Entity, there shall be no restrictions on the sale or transfer of stock in Guarantor. As used herein, the term “Independent Publicly Traded Entity” means a corporation (1) whose stock is publicly traded on the New York Stock Exchange, American Stock Exchange, NASDAQ market or similar national or nationally recognized stock exchange or over the counter market and (2) is not a subsidiary of another entity. Notwithstanding the provisions of Section 5.4(a) and (b), Guarantor may enter into any merger, consolidation or reorganization, provided that the surviving entity following any such merger, consolidation or reorganization (A) is an Independent Publicly Traded Entity and (B) the net worth of the surviving entity (as determined by an independent certified public accounting firm) is equal to or greater than the greater of (I) the net worth of Guarantor as of the date of the closing of the Loan and (II) the net worth of Guarantor immediately prior to the consummation of such merger, consolidation or reorganization.all beneficial interest therein;

Transfer or Further Encumbrance of Property. (a) Without Mortgagee’s prior written consent, which consent may be granted or withheld in Mortgagee’s sole and absolute discretion, Mortgagor shall not, except as permitted in Section 5.3, not (i) sell, assign, convey, transfer or otherwise dispose of any legal, beneficial or equitable interest in all or any part of the Property, (ii) permit or suffer any owner, directly or indirectly, of any beneficial interest in the Property or Mortgagor to transfer such interest, whether by transfer of partnership, membership, stock or other beneficial interest in any entity or otherwise, or (iii) mortgage, hypothecate or otherwise encumber or permit to be encumbered or grant or permit to be granted a security interest in all or any part of the Property or Mortgagor or any beneficial or equitable interest in either the Property or Mortgagor. The provisions of this Section shall not prohibit transfers of title or interest under any will or testament or applicable law of descent. (b) Notwithstanding the provisions of Section 5.4(a), the initial Mortgagor named herein shall have the right to modify its organizational documents and/or structure without Mortgagee’s consent provided that such modifications do not result in a violation this Section 5.4. In addition, the provisions of this Section 5.4 shall not prohibit transfers, pledges or the incurring of debt or other liabilities or obligations, or the signing of guarantees or other agreements by (or impose any financial covenants of any kind, including, without limitation, net worth requirements, on) to the contrary, Mortgagor may transfer the Property KBS Limited Partnership or any beneficial interest in Mortgagor of the direct or indirect owners of KBS Limited Partnership, provided that (i) the transferee of the Property KBS Real Estate Investment Trust, Inc. (in the case of a transfer of the Property“KBS REIT”) continues to directly or the surviving entity (in the case of a transfer of any beneficial interest in Mortgagor) is a wholly owned subsidiary of Guarantor (and such other entity shall be a single purpose entity and shall expressly assume the obligations of Borrower under the Loan Documents in documentation satisfactory to Lender in form and content) indirectly own Mortgagor and (ii) immediately before the sole asset manager of KBS REIT is any one or more of the following: (A) an entity indirectly or directly owned and immediately after giving effect controlled by Xxxxx Xxxx and/or Xxxxxxx Xxxxxxxxx, Xx., or (B) an entity reasonably acceptable to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing. Mortgagor shall be responsible Mortgagee using commercial standards customarily applied by prudent institutional mortgage lenders for all out–of–pocket expenses incurred by Mortgagee in connection with such transfer, including without limitation reasonable attorney’s feessimilar loans. (c) Notwithstanding the provisions of Section 5.4(a)) to the contrary, so long as Mortgagee shall permit transfer of the Property twice, provided that all of the following conditions are satisfied with respect to each such transfer: (i) Mortgagor no Event of Default has occurred and is a wholly owned subsidiary of Guarantor and Guarantor controls Mortgagor and continuing; (ii) Guarantor is Mortgagor has paid to Mortgagee an Independent Publicly Traded Entity, there shall be no restrictions on the sale or transfer assumption fee of stock in Guarantor. As used herein, the term “Independent Publicly Traded Entity” means a corporation one percent (1%) whose stock of the outstanding principal balance of the Secured Obligations; (iii) if the proposed transferee is publicly traded on a land trust, Mortgagee has received a first-lien collateral assignment of all beneficial interest therein; (iv) Mortgagee has received and has had a reasonable opportunity to review and approve all organizational documentation of the New York Stock Exchangeproposed transferee, American Stock Exchangeincluding, NASDAQ market without limitation, certificates and articles of formation, partnership and operating agreements, bylaws, certificates of good standing and authorizing resolutions and review all documents and agreements executed or to be executed in connection with the proposed transfer; (v) the non-economic terms (e.g., those terms other than interest rate, payment schedule, principal balance, and non-recourse nature (subject to exceptions thereto customarily included by Mortgagee in loan documents)) of the Loan Documents have been modified as Mortgagee may request in good faith; (vi) the proposed transferee has assumed all of Mortgagor’s obligations under the Loan Documents; (vii) Mortgagee has received at least thirty (30) days’ prior written notice of the proposed transfer; (viii) the proposed transferee (and, if applicable, its general partners) has a satisfactory history and recent experience of owning, operating and leasing property similar national or nationally recognized stock exchange or over to the counter market Property; (ix) the proposed transferee (and, if applicable, its general partners) has, in the reasonable judgment of Mortgagee, a satisfactory credit history and professional reputation and character; (2x) the Debt Service Coverage Ratio (as hereinafter defined) is not less than 1.50x, and Mortgagee receives satisfactory evidence that such ratio will be maintained for the succeeding twelve (12) months; (xi) the Loan-to-Value Ratio (as hereinafter defined), taking into account all obligations secured by liens on the Property does not exceed 65%; (xii) Mortgagor pays all costs and expenses incurred by Mortgagee in connection with such transfer, including, without limitation, all legal, processing, accounting, title insurance, and appraisal fees, whether or not such transfer is actually consummated; (xiii) at Mortgagee’s option, Mortgagee has received an endorsement to its mortgagee’s title insurance policy at Mortgagor’s expense, which endorsement states that the lien of this Mortgage remains a subsidiary first and prior lien against the Property subject to no exceptions other than as approved by Mortgagee; (xiv) principals of another entitythe proposed transferee satisfying, in the reasonable judgment of Mortgagee, Mortgagee’s then applicable credit review and underwriting standards, execute a guaranty agreement guaranteeing the recourse obligations of Mortgagor under the Loan Documents and an environmental indemnity agreement in form and substance acceptable to Mortgagee in its sole discretion; (xv) a written opinion of counsel for the proposed transferee and its principals satisfactory to Mortgagee shall be delivered to Mortgagee, including, without limitation, the existence, authority and due execution, and enforceability of the Loan Documents as assumed by the proposed transferee and enforceability of any and all documents executed by the proposed transferee and its principals in connection with such transfer, (xvi) the proposed transferee, any person or entity executing any loan documents in connection with the transfer, and their respective constituents, are not in violation of any laws relating to terrorism or money laundering, including without limitation, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, and the Bank Secrecy Act, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as such laws have been or may hereafter be, renewed, extended, amended or replaced, (xvii) Mortgagee’s receipt of such new or increased impounds as Mortgagee may require, including, without limitation, Tax Reserves, Insurance Reserves, tenant improvement and leasing commissions, capital improvements, capital expenditures and deferred maintenance, and the amendment of the Loan Documents to require the proposed transferee to make monthly deposits of such new or increased impounds for such purposes thereafter; (xviii) the proposed transferee establishes and maintains a Clearing Account (as defined in Section 4.25, above) in compliance with the cash management provisions of Section 4.25 hereof; and (xix) all real property encumbered by the Other Lien Instruments is transferred to the proposed transferee simultaneously with the transfer of the Property. Upon the satisfaction of the foregoing conditions and execution of assumption documents in form and substance satisfactory to Mortgagee, Mortgagee shall release Mortgagor from liability under the Loan Documents other than any such liability that arose on or prior to the effective date of the assumption or could be based on any event that occurred or any state of affairs that existed prior to or as of the effective date of the assumption (including, without limitation, any liability arising under the exceptions to the non recourse provisions of the Loan Documents, and any liability arising under any environmental indemnity agreement). Notwithstanding the foregoing or any provision contained in the Loan Documents to the contrary, in connection with a permitted transfer of the Property pursuant to the provisions of this Section 5.4(a5.4(c), at any time after the “Lockout Expiration Date” (as defined in the Note) Mortgagor shall have the right to prepay a portion of the principal balance of the Note in an amount necessary to satisfy the requirements of subsections 5.4(c)(x) and (b), Guarantor may enter into any merger, consolidation or reorganization, xi) above (provided that Mortgagor shall pay Mortgagee the surviving entity following any prepayment premium required pursuant to Section 5(b) of the Note calculated on the amount of principal being paid, and further provided that such merger, consolidation or reorganization (Aprepayment shall not exceed the minimum amount necessary to satisfy such requirements of subsections 5.4(c)(x) is an Independent Publicly Traded Entity and (Bxi) the net worth of the surviving entity (as determined by an independent certified public accounting firm) is equal to or greater than the greater of (I) the net worth of Guarantor as of the date of the closing of the Loan and (II) the net worth of Guarantor immediately prior to the consummation of such merger, consolidation or reorganizationabove).