Contract analysis

Section 1.01 — Defined Terms. Unless otherwise defined herein, all capitalized terms used in this Agreement shall have the meanings assigned to such terms in the Loan Agreement. The following terms, as used in this Agreement, shall have the following meanings: "Administrative Agent" or "Agent" means Ironclad National Bank, N.A., a national banking association, in its capacity as administrative agent for the Lenders u

Section 1.02 — Incorporation by Reference. All defined terms used in this Agreement but not defined herein shall have the meanings ascribed to such terms in the Loan Agreement unless the context of this Agreement otherwise requires. In the event of any inconsistency between a definition set forth herein and the corresponding definition in the Loan Agreement, the definition set forth herein shall control for purposes

Section 1.03 — Rules of Construction. Unless the context otherwise requires: (a) references to "Sections," "Articles," "Schedules," and "Exhibits" are to sections, articles, schedules, and exhibits of this Agreement; (b) references to any agreement or document are to such agreement or document as amended, restated, supplemented, or otherwise modified from time to time; (c) the words "include," "includes," and "includ

Section 2.01 — Agreement to Make Building Loan. (a) Subject to the terms and conditions of this Agreement and the Loan Agreement, Agent, on behalf of the Lenders, agrees to make the Building Loan to Borrower in the principal amount of the Building Loan Amount, which Building Loan Amount is hereby established as the portion of the Senior Mortgage Loan allocated to the Building Loan for the purpose of paying Costs of I

Section 2.02 — Consideration and Expenses; Net Sum Available to Borrower. In compliance with the requirements of Section 22, subdivision 2, of the Lien Law, and in order to set forth the consideration paid or to be paid for the making of the Building Loan, including all expenses, fees, commissions, discounts, and other charges, the following itemization is provided: (a) Origination Fee: The pro-rata share of the orig

Section 2.03 — Interest. (a) The outstanding principal balance of the Building Loan shall bear interest at the Interest Rate, which is a per annum rate equal to Term SOFR (as determined in accordance with the Loan Agreement) plus four hundred twenty-five (425) basis points (4.25%), provided that in no event shall Term SOFR be deemed to be less than the SOFR Floor of one percent (1.00%) per annum. Interest shall be ca

Section 2.04 — Building Loan Term. (a) The Building Loan shall mature on the Maturity Date as defined in, and as determined in accordance with, the Loan Agreement. The initial Maturity Date is June 15, 2029. (b) Borrower shall have the right to extend the Maturity Date pursuant to the extension options set forth in the Loan Agreement, subject to satisfaction of the conditions specified therein: (i) a first extension

Section 2.05 — Repayment. (a) The Building Loan shall be repaid in accordance with the terms and conditions of the Loan Agreement and the Building Loan Note. All payments of principal, interest, fees, and other amounts due under the Building Loan shall be made on the dates and in the manner specified in the Loan Agreement and the Building Loan Note. (b) Prepayment of the Building Loan shall be permitted subject to th

ARTICLE 3 — CONDITIONS PRECEDENT TO ADVANCES

Section 3.01 — Conditions to Initial Advance. The obligation of Agent and the Lenders to make the initial advance of the Building Loan is subject to the satisfaction (or waiver by Agent in its sole discretion) of each of the following conditions precedent, in addition to all conditions precedent to the initial advance set forth in the Loan Agreement: (a) Loan Agreement Conditions. All conditions precedent to the init

Section 3.02 — Conditions to Each Subsequent Advance. The obligation of Agent and the Lenders to make each subsequent advance of the Building Loan (including the initial advance to the extent applicable) is subject to the satisfaction (or waiver by Agent in its sole discretion) of each of the following conditions precedent, in addition to all conditions precedent to subsequent advances set forth in the Loan Agreement

Section 3.03 — Advance Procedures. (a) Borrower shall submit each Advance Request to Agent in writing not less than ten (10) business days before the requested advance date. Each Advance Request shall be substantially in the form of Schedule C attached hereto and shall be accompanied by all supporting documentation required by Schedule C and by the Loan Agreement. (b) Agent shall have the right to withhold a retainag

ARTICLE 4 — ITEMIZED STATEMENT OF COSTS OF IMPROVEMENT

Section 4.01 — Items of Cost. (a) In compliance with the requirements of Section 22 of the Lien Law, Schedule B attached hereto sets forth a complete itemized statement of all hard costs and soft costs, expenses, and other charges constituting Costs of Improvement for which Building Loan proceeds will be disbursed. Schedule B is incorporated herein by this reference and constitutes an integral part of this Agreement.

Section 4.02 — Reallocation of Line Items. (a) Borrower may from time to time request reallocation of amounts among the line items set forth in Schedule B, subject to the prior written consent of Agent. Agent's consent to any such reallocation shall not be unreasonably withheld, conditioned, or delayed with respect to reallocations that do not exceed ten percent (10%) of any single line item amount as set forth in th

Section 4.03 — Cost Overruns. (a) In the event that the actual Costs of Improvement exceed the amounts set forth in Schedule B for any line item or in the aggregate, Borrower shall be solely responsible for funding such cost overruns from its own equity, from the equity contributions of MTDC (pursuant to MTDC's equity commitment in the amount of Two Hundred Million Dollars ($200,000,000)), or from other sources of fu

ARTICLE 5 — TRUST FUND PROVISIONS

Section 5.01 — Trust Fund Acknowledgment. (a) Borrower acknowledges and agrees that all Building Loan advances received by Borrower constitute trust funds within the meaning of Section 70 of the Lien Law and Article 3-A of the Lien Law (the "Trust Fund Provisions"). Borrower, as the recipient of such funds, is a trustee of such funds for the purposes and in the manner specified in the Lien Law. (b) The beneficiaries

Section 5.02 — Application of Trust Funds. (a) Borrower shall apply all trust funds received as Building Loan advances to the payment of Costs of Improvement as itemized in Schedule B hereto before using any part thereof for any other purpose. Borrower shall not apply any trust funds to any purpose other than the payment of Costs of Improvement, except as expressly permitted by the Lien Law. (b) Borrower shall not di

Section 5.03 — Trust Fund Accounts. (a) Borrower shall establish and maintain a segregated trust fund account (the "Building Loan Trust Fund Account") at Ironclad National Bank, N.A. (ABA Routing Number 021-003-178), in which all Building Loan advances shall be deposited. The Building Loan Trust Fund Account shall be maintained by Borrower solely for the purpose of receiving, holding, and disbursing Building Loan adv

Section 5.04 — Trust Fund Records. (a) Borrower shall maintain complete, accurate, and up-to-date books and records of all trust fund receipts and disbursements, in the manner and to the extent required by Section 75 of the Lien Law. Such books and records shall include, without limitation, the following information with respect to each receipt and disbursement of trust funds: (i) the identity (name and address) of e

Section 5.05 — Trust Fund Covenants. (a) Borrower hereby covenants and agrees that it will not divert, and will not permit or suffer any diversion of, trust assets in violation of the Trust Fund Provisions of the Lien Law. (b) Borrower acknowledges that under Section 77 of the Lien Law, any officer, director, member, manager, or agent of Borrower who participates in or has knowledge of any diversion of trust funds in

ARTICLE 6 — REPRESENTATIONS AND WARRANTIES

Section 6.01 — Borrower's Representations. Borrower hereby represents and warrants to Agent and the Lenders as follows: (a) Organization and Good Standing. Borrower is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is duly qualified to transact business and in good standing in the State of New York. (b) Power and Authority. Borrower has

Section 6.02 — Survival. All representations and warranties made by Borrower in this Article 6 and elsewhere in this Agreement shall survive the closing of the Building Loan and shall be deemed remade by Borrower as of the date of each Building Loan advance. Each Advance Request submitted by Borrower shall constitute a reaffirmation that all representations and warranties contained herein are true, correct, and compl

ARTICLE 7 — COVENANTS OF BORROWER

Section 7.01 — Construction Covenants. (a) Borrower shall cause the Improvement to be constructed and completed substantially in accordance with the approved plans and specifications described in Schedule E hereto, the GMP Contract, and all applicable laws, codes, regulations, ordinances, and governmental approvals, including without limitation all conditions and restrictions imposed by the ULURP approvals (Applicati

Section 7.02 — Insurance Covenants. (a) Borrower shall at all times during the term of the Building Loan maintain, or cause to be maintained, all insurance coverages required by the Loan Agreement and by Schedule F attached hereto, including without limitation: (i) builder's risk (all-risk) insurance in the amount of Five Hundred Million Dollars ($500,000,000) (replacement cost) from Fortis Indemnity Insurance Co.; (

Section 7.03 — Lien Law Compliance Covenants. (a) Borrower shall comply in all material respects with all provisions of Articles 2 and 3-A of the Lien Law, and with all other provisions of the Lien Law applicable to Borrower, the Building Loan, or the Improvement. (b) Borrower shall maintain the Building Loan Trust Fund Account and trust fund records as required by Article 5 hereof and by the Trust Fund Provisions of