Common use of Due on Sale and Encumbrance; Transfers of Interests Clause in Contracts

Due on Sale and Encumbrance; Transfers of Interests. Borrower acknowledges that Lender has examined and relied on the experience of Borrower and its stockholders, general partners and members, as applicable, and principals of Borrower in owning and operating properties such as the Property and the Worldwide Plaza Amenities in agreeing to make the Loan, and will continue to rely on Borrower’s ownership of the Property and indirect ownership of the Pledged Mortgages and indirect ownership of the general partnership interest in the Amenities Owner as a means of maintaining the value of the Property and the Membership Interests as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property, the Worldwide Plaza Amenities, the Membership Interests and the Pledged Mortgages so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property, its interest in the Amenities Mortgages and/or its indirect interest in the Worldwide Plaza Amenities. Therefore, without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 7, neither Borrower, any WWP Amenities Subsidiary, nor any other Person having a direct or indirect ownership or beneficial interest in Borrower or WWP Amenities Subsidiary shall sell, convey, mortgage, grant, bargain, encumber, pledge, assign, transfer or release, in whole or in part, the Property, the Worldwide Plaza Amenities, any interest, direct or indirect, in Borrower or a WWP Amenities Subsidiary, whether voluntarily or involuntarily, or the Pledged Mortgages or any documents related thereto or any amendment, supplement or other modification to such documents (a “Transfer”). A Transfer within the meaning of this Section 4.2 shall be deemed to include (i) an installment sales agreement wherein Worldwide Plaza Borrower agrees to sell the Property (or Amenities Owner agrees to sell the Worldwide Plaza Amenities) or any part thereof for a price to be paid in installments; (ii) an agreement by Worldwide Plaza Borrower or Amenities Owner for the leasing of all or a substantial part of the Property or Worldwide Plaza Amenities, as applicable, for any purpose other than the actual occupancy by a space Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in (other than the existing security interest evidenced by the Amenities Mortgages), Worldwide Plaza Borrower’s or Amenities Owner’s right, title and interest in and to any Leases or any Rents; (iii) if Borrower, any Guarantor, any WWP Amenities Subsidiary, or any general partner, managing member or controlling shareholder of Borrower, any Guarantor or any WWP Amenities Subsidiary is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock; (iv) if Borrower, any Guarantor, any WWP Amenities Subsidiary or any general partner, managing member or controlling shareholder of Borrower, any Guarantor or any WWP Amenities Subsidiary is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer or member or the transfer of the partnership interest of any general partner, managing partner or limited partner or the transfer of the interest of any joint venturer or member; (v) any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower or any WWP Amenities Subsidiary; and (vi) EOP-NYCCA causing the delivery of a transfer notice under clause (ii) of Section 10.1 of the Recapitalization Agreement; provided, that a Transfer shall not include a sale, assignment or other transfer of limited partnership interests in Amenities Owner made in accordance with Section 7.2(g).

Due on Sale and Encumbrance; Transfers of Interests. (a) Each of Borrower and Leasehold Pledgor acknowledges that Lender has examined and relied on the experience of Borrower and its Leasehold Pledgor and their respective stockholders, general partners and members, as applicable, and principals of Borrower and Leasehold Pledgor in owning and operating properties such as the Property and the Worldwide Plaza Amenities Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s and Leasehold Pledgor’s ownership of the Property and indirect ownership of the Pledged Mortgages and indirect ownership of the general partnership interest in the Amenities Owner Collateral as a means of maintaining the value of the Property and the Membership Interests Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges and Leasehold Pledgor each acknowledge that Lender has a valid interest in maintaining the value of the Property, the Worldwide Plaza Amenities, the Membership Interests and the Pledged Mortgages Collateral so as to ensure that, should Borrower default in the repayment of the Debt or Borrower or Leasehold Pledgor default in the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property, its interest in the Amenities Mortgages and/or its indirect interest in the Worldwide Plaza AmenitiesCollateral. Therefore, without the prior written consent of Lender, but, in each instance, subject to the express provisions of Article 7, neither none of Borrower, Leasehold Pledgor nor any WWP Amenities Subsidiary, other Loan Party nor any other Person having a direct or indirect ownership or beneficial interest in Borrower Borrower, Leasehold Pledgor or WWP Amenities Subsidiary in any other Loan Party shall sell, convey, mortgage, grant, bargain, encumber, pledge, assign, assign or transfer or release, in whole or in part, the any Individual Property, the Worldwide Plaza AmenitiesMezzanine A Collateral or the Collateral or any part thereof, or any interest, direct or indirect, common, preferred or otherwise, in Borrower Borrower, Leasehold Pledgor or a WWP Amenities Subsidiaryin any other Loan Party, or in any Person holding any direct or indirect interest in Borrower, Leasehold Pledgor or in any other Loan Party, whether voluntarily or involuntarily, involuntarily or the Pledged Mortgages enter into or subject any documents related thereto or any amendment, supplement or other modification Individual Property to such documents a PACE Loan (a “Transfer”). A Transfer within the meaning of this Section 4.2 shall be deemed to include include, but not be limited to, (i) an installment sales agreement wherein Worldwide Plaza Owner agrees to sell any Individual Property or any part thereof or Mezzanine A Borrower agrees to sell the Property (or Amenities Owner agrees to sell the Worldwide Plaza Amenities) Mezzanine A Collateral or any part thereof thereof, in each case, for a price to be paid in installments; (ii) an agreement by Worldwide Plaza Borrower Owner or Amenities Owner Operating Lessee for the leasing of all or a substantial part of the any Individual Property or Worldwide Plaza Amenities, as applicable, for any purpose other than the actual occupancy by a space Tenant tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in (other than the existing security interest evidenced by the Amenities Mortgages)in, Worldwide Plaza Borrower’s or Amenities Owner’s right, title and interest in and to any Leases Leases, or any RentsGross Revenue; (iii) if Borrower, Leasehold Pledgor or any Guarantor, any WWP Amenities Subsidiary, other Loan Party or any general partner, managing member or controlling shareholder of Borrower, Leasehold Pledgor or of any Guarantor or any WWP Amenities Subsidiary other Loan Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock; (iv) if Borrower, Leasehold Pledgor or any Guarantorother Loan Party, any WWP Amenities Subsidiary or any general partner, managing member or controlling shareholder of Borrower, Leasehold Pledgor or of any Guarantor or any WWP Amenities Subsidiary other Loan Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer or member or the transfer of the partnership interest of any general partner, managing partner or limited partner or the transfer of the interest of any joint venturer or member; , and (v) any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower Borrower, Leasehold Pledgor or in any WWP Amenities Subsidiary; other Loan Party. (b) Notwithstanding the foregoing, a Transfer within the meaning of this Section 4.2 shall not include (i) dispositions of equipment and fixtures in the ordinary course of Mezzanine A Borrower’s, Mezzanine A Leasehold Pledgor’s, Owner’s, Operating Lessee’s business (including equipment or fixtures which are being replaced or which are no longer necessary in connection with the operation of the Property or the Mezzanine A Collateral, provided that (1) such disposition in this parenthetical will not have a material adverse effect on or materially impair the utility of the applicable Individual Property or the Mezzanine A Collateral (a “Material Adverse Effect”) and (vi2) EOP-NYCCA causing any new equipment or fixtures acquired by Owner or Operating Lessee (and not so disposed of) shall be subject to the delivery Lien of a transfer notice under clause the Loan Documents (collectively, the “Disposition Conditions”)), (ii) Leases in effect on the date hereof or otherwise permitted by this Agreement, (iii) Permitted Transfers, (iv) easements and rights of way in the ordinary course of business that would not have a material adverse effect on the use, occupancy or access to the applicable Individual Property, and (v) subject to Section 10.1 5.3 hereof, transfers of portions of Individual Properties to Governmental Authorities for (1) dedication of such portion to a public use or (2) easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for purposes of public access, the placement of water and sewer lines, telephone and telegraph lines, electric lines or other utilities serving such Individual Property; provided no such transfers shall have any adverse effect on the first priority position of the Recapitalization AgreementLien of the Mezzanine A Pledge Agreement for the benefit of Mezzanine A Lender or the Lien of the applicable Mortgage for the benefit of Mortgage Lender or any other Material Adverse Effect. In connection with any event specified in clause (i) above, Lender shall, from time to time, upon receipt of an officer’s certificate requesting the same and confirming satisfaction of the Disposition Conditions, execute a written instrument in form and substance reasonably satisfactory to Lender to confirm that such equipment or fixtures which are to be, or have been, sold or disposed of are free from the Lien of the Loan Documents; provided, that a Transfer Borrower shall not include a sale, assignment reimburse Lender for its or other transfer of limited partnership interests its Servicer’s reasonable fees and expenses incurred in Amenities Owner made in accordance with Section 7.2(g)reviewing such instrument and Borrower’s request.

Due on Sale and Encumbrance; Transfers of Interests. Borrower acknowledges Borrowers and Operating Lessees acknowledge that Lender has examined and relied on the experience of each Borrower and each Operating Lessee and its stockholders, general partners and members, as applicable, and principals of Borrower Borrowers and Operating Lessees in owning owning, leasing and operating properties such as the Property and the Worldwide Plaza Amenities Properties in agreeing to make the Loan, and will continue to rely on each Borrower’s ownership of the Property owned by such Borrower and indirect ownership each Operating Lessee’s leasing of the Pledged Mortgages and indirect ownership of the general partnership interest in the Amenities Owner Property leased by such Operating Lessee, as a means of maintaining the value of the Property and the Membership Interests Properties as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges Borrowers and Operating Lessees acknowledge that Lender has a valid interest in maintaining the value of the Property, the Worldwide Plaza Amenities, the Membership Interests and the Pledged Mortgages Properties so as to ensure that, should Borrower Borrowers default in the repayment of the Debt or the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property, its interest in the Amenities Mortgages and/or its indirect interest in the Worldwide Plaza AmenitiesProperties. Therefore, without the prior written consent of Lender, but, in each instance, subject to the provisions of Article 7, neither Borrower, no Borrower nor any WWP Amenities Subsidiary, Operating Lessee nor any other Person having a direct or indirect ownership or beneficial interest in any Borrower or WWP Amenities Subsidiary any Operating Lessee shall sell, convey, mortgage, grant, bargain, encumber, pledge, assignassign or transfer any Property or any part thereof, transfer or release, in whole or in part, the Property, the Worldwide Plaza Amenities, any interest, direct or indirect, in any Borrower or a WWP Amenities Subsidiaryany Operating Lessee, whether voluntarily or involuntarily, or the Pledged Mortgages or any documents related thereto or any amendment, supplement or other modification to such documents involuntarily (a “Transfer”). A Transfer within the meaning of this Section 4.2 shall be deemed to include (i) an installment sales agreement wherein Worldwide Plaza a Borrower or an Operating Lessee agrees to sell the a Property (or Amenities Owner agrees to sell the Worldwide Plaza Amenities) or any part thereof for a price to be paid in installments; (ii) an agreement by Worldwide Plaza a Borrower or Amenities Owner an Operating Lessee for the leasing of all or a substantial part of the a Property or Worldwide Plaza Amenities, as applicable, for any purpose other than the actual occupancy by a space Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in (other than the existing security interest evidenced by the Amenities Mortgages)in, Worldwide Plaza such Borrower’s or Amenities Ownerand/or Operating Lessee’s right, title and interest in and to any Leases or any Rents; (iii) if any Borrower, any GuarantorOperating Lessee, any WWP Amenities Subsidiary, Guarantor or any general partner, managing member or controlling shareholder of such Borrower, any Operating Lessee or Guarantor or any WWP Amenities Subsidiary is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stockstock (other than any creation or issuance of new REIT Shares in accordance with Section 7.2(i) hereof); (iv) if any Borrower, any GuarantorOperating Lessee, any WWP Amenities Subsidiary Guarantor or any general partner, managing member or controlling shareholder of such Borrower, Operating Lessee, or any Guarantor or any WWP Amenities Subsidiary is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer or member or the transfer of the partnership interest of any general partner, managing partner or limited partner or the transfer of the interest of any joint venturer or member; , or (v) any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in any Borrower or any WWP Amenities Subsidiary; and (vi) EOP-NYCCA causing the delivery of a transfer notice under clause (ii) of Section 10.1 of the Recapitalization Agreement; provided, that a Transfer shall not include a sale, assignment or other transfer of limited partnership interests in Amenities Owner made in accordance with Section 7.2(g)Operating Lessee.

Due on Sale and Encumbrance; Transfers of Interests. (a) Each of Borrower and Leasehold Pledgor acknowledges that Lender has examined and relied on the experience of Borrower and its Leasehold Pledgor and their respective stockholders, general partners and members, as applicable, and principals of Borrower and Leasehold Pledgor in owning and operating properties such as the Property and the Worldwide Plaza Amenities Collateral in agreeing to make the Loan, and will continue to rely on Borrower’s and Leasehold Pledgor’s ownership of the Property and indirect ownership of the Pledged Mortgages and indirect ownership of the general partnership interest in the Amenities Owner Collateral as a means of maintaining the value of the Property and the Membership Interests Collateral as security for repayment of the Debt and the performance of the Other Obligations. Borrower acknowledges and Leasehold Pledgor each acknowledge that Lender has a valid interest in maintaining the value of the Property, the Worldwide Plaza Amenities, the Membership Interests and the Pledged Mortgages Collateral so as to ensure that, should Borrower default in the repayment of the Debt or Borrower or Leasehold Pledgor default in the performance of the Other Obligations, Lender can recover the Debt by a sale of the Property, its interest in the Amenities Mortgages and/or its indirect interest in the Worldwide Plaza AmenitiesCollateral. Therefore, without the prior written consent of Lender, but, in each instance, subject to the express provisions of Article 7, neither none of Borrower, Leasehold Pledgor nor any WWP Amenities Subsidiary, other Loan Party nor any other Person having a direct or indirect ownership or beneficial interest in Borrower Borrower, Leasehold Pledgor or WWP Amenities Subsidiary in any other Loan Party shall sell, convey, mortgage, grant, bargain, encumber, pledge, assignassign or transfer any Individual Property or the Collateral or any part thereof, transfer or release, in whole or in part, the Property, the Worldwide Plaza Amenities, any interest, direct or indirect, common, preferred or otherwise, in Borrower Borrower, Leasehold Pledgor or a WWP Amenities Subsidiaryin any other Loan Party, or in any Person holding any direct or indirect interest in Borrower, Leasehold Pledgor or in any other Loan Party, whether voluntarily or involuntarily, involuntarily or the Pledged Mortgages enter into or subject any documents related thereto or any amendment, supplement or other modification Individual Property to such documents a PACE Loan (a “Transfer”). A Transfer within the meaning of this Section 4.2 shall be deemed to include include, but not be limited to, (i) an installment sales agreement wherein Worldwide Plaza Borrower agrees to sell the Property (or Amenities Owner agrees to sell the Worldwide Plaza Amenities) any Individual Property or any part thereof for a price to be paid in installments; (ii) an agreement by Worldwide Plaza Borrower Owner or Amenities Owner Operating Lessee for the leasing of all or a substantial part of the any Individual Property or Worldwide Plaza Amenities, as applicable, for any purpose other than the actual occupancy by a space Tenant tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in (other than the existing security interest evidenced by the Amenities Mortgages)in, Worldwide Plaza Borrower’s or Amenities Owner’s right, title and interest in and to any Leases Leases, or any RentsGross Revenue; (iii) if Borrower, Leasehold Pledgor or any Guarantor, any WWP Amenities Subsidiary, other Loan Party or any general partner, managing member or controlling shareholder of Borrower, Leasehold Pledgor or of any Guarantor or any WWP Amenities Subsidiary other Loan Party is a corporation, the voluntary or involuntary sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock; (iv) if Borrower, Leasehold Pledgor or any Guarantorother Loan Party, any WWP Amenities Subsidiary or any general partner, managing member or controlling shareholder of Borrower, Leasehold Pledgor or of any Guarantor or any WWP Amenities Subsidiary other Loan Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation or addition of a general partner, managing partner, limited partner, joint venturer or member or the transfer of the partnership interest of any general partner, managing partner or limited partner or the transfer of the interest of any joint venturer or member; , and (v) any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower Borrower, Leasehold Pledgor or in any WWP Amenities Subsidiary; other Loan Party. (b) Notwithstanding the foregoing, a Transfer within the meaning of this Section 4.2 shall not include (i) dispositions of equipment and fixtures in the ordinary course of Owner’s or Operating Lessee’s business (including equipment or fixtures which are being replaced or which are no longer necessary in connection with the operation of the Property, provided that (1) such disposition in this parenthetical will not have a material adverse effect on or materially impair the utility of the applicable Individual Property (a “Material Adverse Effect”) and (vi2) EOP-NYCCA causing any new equipment or fixtures acquired by Owner or Operating Lessee (and not so disposed of) shall be subject to the delivery Lien of a transfer notice under clause the Loan Documents (collectively, the “Disposition Conditions”)), (ii) Leases in effect on the date hereof or otherwise permitted by this Agreement, (iii) Permitted Transfers, (iv) easements and rights of way in the ordinary course of business that would not have a material adverse effect on the use, occupancy or access to the applicable Individual Property, and (v) subject to Section 10.1 5.3 hereof, transfers of portions of Individual Properties to Governmental Authorities for (1) dedication of such portion to a public use or (2) easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for purposes of public access, the placement of water and sewer lines, telephone and telegraph lines, electric lines or other utilities serving such Individual Property; provided no such transfers shall have any adverse effect on the first priority position of the Recapitalization AgreementLien of the applicable Mortgage for the benefit of Mortgage Lender or any other Material Adverse Effect. In connection with any event specified in clause (i) above, Lender shall, from time to time, upon receipt of an officer’s certificate requesting the same and confirming satisfaction of the Disposition Conditions, execute a written instrument in form and substance reasonably satisfactory to Lender to confirm that such equipment or fixtures which are to be, or have been, sold or disposed of are free from the Lien of the Loan Documents; provided, that a Transfer Borrower shall not include a sale, assignment reimburse Lender for its or other transfer of limited partnership interests its Servicer’s reasonable fees and expenses incurred in Amenities Owner made in accordance with Section 7.2(g)reviewing such instrument and Borrower’s request.