Contract analysis

Section 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings set forth below: "Act" means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq., as amended from time to time, and any successor statute. "Affiliate" means, with respect to any specified Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by

Section 1.2 Rules of Construction. Unless the context otherwise requires: (a) Words in the singular shall include the plural, and words in the plural shall include the singular. (b) Words in the masculine gender shall include the feminine and neuter genders, and words in the feminine or neuter gender shall include the masculine gender. (c) The word "including" and words of similar import shall mean "including without

ARTICLE II FORMATION AND ORGANIZATION

Section 2.1 Formation. The Company was formed as a limited liability company under and pursuant to the Act by the filing of the Certificate of Formation with the Secretary of State of the State of Delaware on __, 2025. The Certificate of Formation was executed and filed by Marcus Jennings, Vice President, Real Estate Development of MTDC, as an authorized person within the meaning of the Act. A copy of the Certificate

Section 2.2 Name. The name of the Company is "Hudson Yards West Mortgage LLC." The Company shall conduct all of its business and hold all of its assets solely under that name, and shall not use any other name, trade name, assumed name, fictitious name, or d/b/a designation without the prior written consent of the Member, the prior written consent of the Agent, and the affirmative vote of each Independent Director the

Section 2.3 Registered Office; Registered Agent. The registered office of the Company in the State of Delaware is located at Cobalt Ridge Technologies, 1209 Orange Street, Wilmington, Delaware 19801, and the name of the Company's registered agent at such address is Crowne Albany Corporation (or such successor registered agent as the Member may designate from time to time in accordance with the Act). The Member may ch

Section 2.4 Principal Place of Business. The principal place of business of the Company shall be 450 West 34th Street, New York, NY 10001, or such other location as the Member may designate from time to time with prior written notice to the Agent. The Company shall also maintain a separate mailing address at the offices of MTDC, 200 South Michigan Avenue, Suite 3100, Chicago, IL 60604, for purposes of receiving corre

Section 2.5 Term. The Company shall have perpetual existence and shall continue in existence unless and until dissolved in accordance with Article X of this Agreement. There is no fixed termination date for the Company. The Company shall not be dissolved, and no action shall be taken to dissolve the Company, except in strict compliance with the provisions of Article X, including the requirement that no dissolution sh

Section 2.6 Purposes. The Company has been organized as a single-purpose entity, and the purposes of the Company shall be strictly limited to: (a) acquiring, owning, holding, leasing, operating, managing, maintaining, improving, developing, and financing the Property (including the leasehold interest under the Ground Lease); (b) entering into the Mortgage Loan Agreement and the other Mortgage Loan Documents, borrowin

Section 2.7 Powers. The Company shall have all powers necessary or convenient to accomplish its purposes as set forth in Section 2.6, including all powers granted to a limited liability company under the Act. Notwithstanding the foregoing, all powers of the Company shall be subject in all cases to (a) the restrictions set forth in Article VIII (SPE Provisions), (b) the requirements of Independent Director consent for

Section 2.8 Qualification. The Company shall qualify to do business as a foreign limited liability company in the State of New York and in any other jurisdiction in which the nature of the Company's activities or the ownership of the Company's property requires such qualification. The Member shall cause the Company to execute and file any certificates or documents necessary to effect such qualification and to maintai

ARTICLE III CAPITAL CONTRIBUTIONS

Section 3.1 Initial Capital Contribution. The Member shall make an initial capital contribution to the Company in the amount of Two Hundred Million Dollars ($200,000,000) in immediately available funds, representing MTDC's equity commitment to the Project, or such other amount as may be agreed between the Member and the Agent, on or before the Closing Date. The initial capital contribution shall be deposited into a C

Section 3.2 Additional Capital Contributions. The Member may, but except as expressly required by the Mortgage Loan Documents shall not be obligated to, make additional capital contributions to the Company at any time and from time to time. The Member acknowledges that the Mortgage Loan Agreement may require additional equity contributions under specified conditions, including but not limited to (a) funding of cost o

Section 3.3 No Interest on Capital Contributions. No interest shall accrue on or be payable with respect to any capital contribution made by the Member to the Company, regardless of the date or amount of such contribution.

Section 3.4 Capital Account. A single capital account shall be established and maintained for the Member in accordance with the provisions of Treasury Regulation § 1.704-1(b)(2)(iv). The capital account shall be (a) increased by the amount of any cash and the fair market value of any property contributed by the Member to the Company and by all items of income and gain allocated to the Member, and (b) decreased by the

Section 3.5 No Withdrawal of Capital. The Member shall not be entitled to withdraw, reduce, or receive a return of any capital contribution, or to receive any distribution from the Company, except (a) upon the dissolution and winding up of the Company in accordance with Article X, and then only to the extent permitted by the Act and the Mortgage Loan Documents, or (b) through distributions of Available Cash in accord

ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS

Section 4.1 Allocations of Net Profits and Net Losses. All items of income, gain, loss, deduction, credit, and all other items of the Company for each Fiscal Year (or portion thereof) shall be allocated one hundred percent (100%) to the Member. To the extent necessary to comply with Section 704(b) of the Internal Revenue Code and the Treasury Regulations promulgated thereunder, the Member shall make such special allo

Section 4.2 Distributions. Distributions of Available Cash shall be made to the Member at such times and in such amounts as the Member (or the Officer designated by the Member for such purpose) shall determine in the Member's sole discretion, subject in all cases to the following conditions and limitations: (a) the terms and conditions of the Mortgage Loan Documents, including the cash management provisions, lockbox

Section 4.3 Limitation on Distributions. Notwithstanding any other provision of this Agreement, no distribution shall be declared, made, or paid by the Company if, after giving effect thereto: (a) the Company would be insolvent (as determined on either a balance sheet basis or a cash flow basis) or would be rendered unable to pay its debts and liabilities as they become due in the ordinary course of business; (b) suc

Section 4.4 Tax Allocations. For United States federal and applicable state and local income tax purposes, the Company shall be treated as a disregarded entity that is separate from its owner (the Member) to the extent permitted under Treasury Regulation § 301.7701-3, unless the Member makes an affirmative election to the contrary by filing IRS Form 8832 (Entity Classification Election) or any successor form. In the

Section 5.1 Management by the Member. The business and affairs of the Company shall be managed by the Member, subject to the requirements of this Agreement, including the requirement of Independent Director consent for Material Actions as set forth in Section 5.9 and the SPE Covenants set forth in Article VIII. The Member shall have the authority to act for and on behalf of the Company in all matters, except as speci

Section 5.2 Authority of the Member. Subject to (a) the Independent Director consent requirements set forth in Section 5.9, (b) the SPE Covenants set forth in Article VIII, and (c) the terms, conditions, covenants, and restrictions of the Mortgage Loan Documents, the Member shall have full power and authority to bind the Company and to execute, deliver, and perform documents, instruments, agreements, certificates, an

Section 5.3 Member's Representatives. The following individuals are hereby authorized to act on behalf of the Member in connection with Company matters, including the execution and delivery of documents, instruments, and agreements on behalf of the Company: (a) David Harrington, Executive Director of MTDC; (b) Priya Subramanian, Chief Financial Officer of MTDC; (c) Marcus Jennings, Vice President, Real Estate Develop

Section 5.4 Delegation. The Member may delegate the day-to-day management responsibilities for the Company's affairs to one or more Officers appointed pursuant to Section 5.6 or to other agents or employees of the Company or the Member; provided, however, that no such delegation shall relieve the Member of any of its obligations, duties, or responsibilities under this Agreement, the Mortgage Loan Documents, or applic

Section 5.5 Standard of Care. The Member and each Officer shall manage the Company's affairs in good faith and in a manner reasonably believed to be in the best interests of the Company and its creditors, giving due consideration to the Company's obligations under the Mortgage Loan Documents and the need to maintain the Company's status as a bankruptcy-remote, single-purpose entity. The Member and each Officer shall

Section 5.6 Officers. The Member may designate one or more individuals as officers of the Company ("Officers"), including without limitation a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as the Member may from time to time determine. Officers shall serve at the pleasure of the Member and may be removed by the Member at any time, with or without cause, by written notice to

Section 5.7 No Authority to Bind Without Consent. Notwithstanding any other provision of this Agreement, no Officer, employee, agent, or other representative of the Company shall have authority to take any Material Action (as defined in Section 5.9) without the prior unanimous written consent of all Independent Directors then serving and the Member. Any action purportedly taken in violation of this Section 5.7 shall

Section 5.8 Independent Directors. (a) Appointment and Number. The Company shall at all times have at least two (2) individuals serving as independent directors of the Company (each, an "Independent Director"). The initial Independent Directors shall be designated on or before the Closing Date. In the event that the number of Independent Directors falls below two (2) at any time, the Member shall appoint a replacemen

Section 5.9 Material Actions Requiring Independent Director Consent. (a) Definition of "Material Action." For purposes of this Agreement, a "Material Action" means any of the following actions or decisions with respect to the Company: (i) filing or consenting to the filing of any petition for relief under the Bankruptcy Code (Title 11 of the United States Code) or any similar state, federal, or foreign law now or her

ARTICLE VI BOOKS, RECORDS, AND ACCOUNTS

Section 6.1 Books and Records. The Company shall maintain complete, accurate, and separate books, records, and accounts at its principal place of business or at such other location as the Member may designate with prior written notice to the Agent. The books and records of the Company shall at all times be maintained separate and apart from the books, records, and accounts of the Member, MTDC, any Affiliate, the Mezz

Section 6.2 Bank Accounts. The Company shall maintain its own separate bank accounts, which shall be distinct from, and shall not be held jointly with, the bank accounts of the Member, MTDC, any Affiliate, the Mezzanine Borrower, or any other Person. All funds of the Company shall be deposited into such accounts and shall not be commingled with the funds of any other Person. The Company shall maintain such reserve ac

Section 6.3 Financial Statements and Reporting. The Company shall prepare or cause to be prepared the following financial statements and reports: (a) Annual Audited Financial Statements. Within ninety (90) days after the end of each Fiscal Year, annual financial statements of the Company, including a balance sheet, statement of operations, statement of cash flows, and statement of member's equity, audited by Whitfiel

Section 6.4 Tax Returns. If the Company is treated as a disregarded entity for federal income tax purposes in accordance with Section 4.4, its items of income, deduction, gain, loss, and credit shall be reported on the federal and applicable state and local income tax returns of the Member (MTDC EIN: 36-2847501), and the Company shall not be required to file a separate federal income tax return. Notwithstanding the f

Section 6.5 Inspection Rights. The Member, the Agent, each Lender, and the Mezzanine Lender (to the extent provided in the intercreditor agreement) shall have the right to inspect and copy the Company's books, records, financial statements, and other documents at reasonable times during normal business hours at the Company's principal place of business, upon reasonable prior written notice (which notice shall not be

ARTICLE VII LIABILITY; INDEMNIFICATION

Section 7.1 Limited Liability of the Member. The Member shall not be personally liable for any debts, obligations, or liabilities of the Company, whether arising in contract, tort, or otherwise, solely by reason of being a member of the Company. The liability of the Member for the Company's debts and obligations shall be limited to the amount of the Member's capital contributions to the Company (to the extent not pre

Section 7.2 Indemnification of the Member and Officers. To the fullest extent permitted by applicable law (including Section 18-108 of the Act), the Company shall indemnify and hold harmless the Member, each Officer, and their respective employees, agents, and authorized representatives (each, an "Indemnified Person") from and against any and all claims, demands, actions, causes of action, suits, proceedings, assessm

Section 7.3 Indemnification of Independent Directors. In addition to the indemnification provided in Section 7.2, the Company shall indemnify, defend, and hold harmless each Independent Director from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, liabilities, damages, judgments, fines, penalties, costs, and expenses (including reasonable attorneys' fees) arising out of

Section 7.4 No Recourse Against Independent Directors. No recourse shall be had against any Independent Director personally for any obligation, liability, debt, or claim of or against the Company, whether arising in contract, tort, or otherwise, except in the case of such Independent Director's fraud or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment. The prov

ARTICLE VIII SPECIAL PURPOSE ENTITY PROVISIONS

Section 8.1 SPE Status. The Company has been formed as, and shall at all times during its existence be maintained as, a "special purpose entity" or "single purpose entity" in accordance with the requirements of the Mortgage Loan Documents and this Agreement. The provisions of this Article VIII are central to the structure of the Mortgage Loan transaction and are intended to ensure the Company's status as a bankruptcy

Section 8.2 Separateness Covenants. The Company hereby covenants and agrees, and the Member hereby covenants and agrees to cause the Company, to comply with the following covenants (collectively, the "Separateness Covenants") at all times: (a) Separate Books and Records. The Company shall maintain its own separate books, records, financial statements, and accounts from those of the Member, MTDC, any Affiliate, the Me