Contract analysis

Section 1.1. Defined Terms. As used in this Agreement, the following terms shall have the following meanings: "Advance" means each disbursement of Loan proceeds made by Agent to or for the benefit of Borrower pursuant to the terms and conditions of this Agreement and the Loan Agreement. "Approved Budget" means the detailed construction budget attached hereto as Exhibit A, containing hard-cost and soft-cost line items

Section 1.2. Rules of Construction. Unless the context otherwise requires: (a) words importing the singular include the plural, and vice versa; (b) references to "Sections," "Articles," and "Exhibits" are to sections, articles, and exhibits of this Agreement; (c) the terms "herein," "hereof," "hereunder," and similar terms refer to this Agreement as a whole, and not to any particular provision hereof; (d) the term "i

ARTICLE 2 — CONSTRUCTION OBLIGATIONS; CONSULTANT

Section 2.1 — Obligation to Construct (a) Borrower shall cause the Project to be constructed diligently and continuously, in a good and workmanlike manner, free and clear of all mechanic's liens and other encumbrances (except as expressly permitted hereunder or under the Loan Agreement), in material compliance with (i) the Approved Plans, (ii) the Approved Budget, (iii) the GMP Contract, (iv) all applicable federal,

Section 2.2 — General Contractor (a) All Work shall be performed by Cobalt Construction Group, Inc., a New York corporation, whose principal office is located at 330 West 42nd Street, 9th Floor, New York, New York 10036 (Contact: Frank DelVecchio, Chief Executive Officer; Hiroshi Tanaka, Project Executive; Gail Merriman, Chief Financial Officer), under and in accordance with the GMP Contract. The General Contractor s

Section 2.3 — Property Manager Borrower has designated Evergreen Property Management LLC, a New York limited liability company (Contact: Teresa Langford, Principal), having an address at 601 West 26th Street, Suite 410, New York, New York 10001, to serve as property manager for the Project upon Substantial Completion. Borrower shall not replace the property manager or materially amend the terms of the property manage

Section 2.4 — Construction Consultant (a) Agent shall engage, at Borrower's expense, a qualified independent construction consulting firm (the "Construction Consultant") to perform the following services: (i) review and analyze each Draw Request and supporting documentation submitted by Borrower; (ii) conduct periodic inspections of the Project Site and the Work, including at least one on-site inspection during each

Section 2.5 — Approved Plans (a) On or prior to the date of the initial Advance, Borrower shall deliver to Agent and the Construction Consultant, for their review and approval, complete and final plans and specifications for the Project, including all architectural, structural, mechanical, electrical, plumbing, fire protection, civil engineering, and landscape drawings, specifications, and related documents (collecti

Section 3.1 — Sources and Uses; Priority of Disbursement (a) The total sources of funds for the Project shall be as follows: (b) The total uses of funds for the Project shall equal the total sources of funds, as set forth in detail in the Approved Budget attached hereto as Exhibit A. (c) Equity-First Requirement. As a condition precedent to the initial Advance and to each subsequent Advance, Borrower shall have contr

Section 3.2 — Draw Periods and Advance Frequency (a) Borrower may submit no more than one (1) Draw Request per Draw Period. Each Draw Request shall cover Work performed and costs incurred during the immediately preceding Draw Period (or such portion of a Draw Period as may apply in the case of the initial or final Draw Request). (b) Each Draw Request shall be submitted to Agent no later than the fifteenth (15th) day

Section 3.3 — Retainage (a) Agent shall retain ten percent (10%) of each Advance allocable to hard costs (the "Retainage") until such time as the Construction Consultant certifies in writing to Agent that the Work is fifty percent (50%) complete (based on the percentage of the GMP that has been earned and certified through completed Work). The determination of fifty percent (50%) completion shall be based on the cumu

Section 3.4 — Stored Materials (a) Advances for Stored Materials shall be permitted only if all of the following conditions are satisfied: (i) The Stored Materials are stored at the Project Site or at an off-site storage location that has been approved by Agent in writing (each, an "Approved Storage Location"); (ii) The Stored Materials are clearly identified, properly labeled, and physically segregated from material

Section 3.5 — Balancing Test (a) In-Balance. The Project shall be deemed "In-Balance" at any date of determination if and only if the sum of (i) undisbursed Loan proceeds committed under the Loan Agreement, plus (ii) undisbursed Equity Funds, plus (iii) undisbursed Mezzanine Loan proceeds committed under the Mezzanine Loan documents, plus (iv) the remaining Contingency, equals or exceeds the aggregate remaining cost

Section 3.6 — Interest Reserve (a) Agent may, in its discretion, fund Advances into a segregated interest reserve sub-account (the "Interest Reserve Account") maintained at Ironclad National Bank, N.A. for the purpose of paying monthly interest accruing on the outstanding principal balance of the Loan during the construction period. Interest on the Loan shall accrue at a per annum rate equal to Term SOFR (as defined

ARTICLE 4 — DRAW REQUEST PROCEDURES

Section 4.1 — Submission of Draw Request Each Draw Request shall be submitted to Agent at the following address: Ironclad National Bank, N.A. 277 Park Avenue New York, New York 10172 Attention: Kenneth Pryor, Managing Director, Real Estate Finance and Samantha Bledsoe, Vice President, Loan Originations Email: kpryor@ironcladbank.com; sbledsoe@ironcladbank.com with a copy (which shall not constitute notice) to Agent's

Section 4.2 — Form of Draw Request (a) Each Draw Request shall be submitted in the form of Exhibit B attached hereto, utilizing AIA Document G702 (Application and Certificate for Payment) and AIA Document G703 (Continuation Sheet), or such other form as Agent may approve in writing from time to time. Each Draw Request shall be certified by an authorized officer of the General Contractor and by the project architect,

Section 4.3 — Required Supporting Documentation Each Draw Request shall be accompanied by the following supporting documentation: (a) Borrower's Certification. An officer's certificate of Borrower, executed by an authorized officer of Hudson Yards West Mortgage LLC (or its sole member, Metropolitan Transit Development Corp.), substantially in the form of Exhibit D attached hereto, certifying as of the date of the Dra

Section 4.4 — Agent's Review and Approval (a) Agent, in consultation with the Construction Consultant, shall review each Draw Request for completeness, accuracy, and conformity with the requirements of this Agreement. Agent may request additional documentation, information, or clarification from Borrower, the General Contractor, or the Construction Consultant in connection with its review. Borrower shall promptly pro

Section 4.5 — Funding Mechanics (a) Approved Advances shall be funded by Agent by wire transfer of immediately available funds to (i) the escrow account maintained by Sentinel Title & Escrow Company (or such successor title company as Agent may approve) for the purpose of disbursing funds to the General Contractor and other payees identified in the Draw Request, or (ii) directly to the Project Account maintained by B

Section 4.6 — Final Advance The final Advance hereunder (including the release of Retainage pursuant to Section 3.3) shall be conditioned upon the satisfaction of all of the following conditions, in addition to all other applicable conditions set forth in this Agreement: (a) Final Completion shall have occurred, as certified in writing by the Construction Consultant; (b) Final unconditional lien waivers shall have be

ARTICLE 5 — BUDGET AND CHANGE ORDERS

Section 5.1 — Approved Budget; Line-Item Reallocations (a) The Approved Budget, attached hereto as Exhibit A and incorporated herein by this reference, consists of hard-cost and soft-cost line items totaling Nine Hundred Twenty Million and No/100 Dollars ($920,000,000.00), including sub-line items within the GMP of Four Hundred Twelve Million and No/100 Dollars ($412,000,000.00). The Approved Budget constitutes the e

Section 5.2 — Change Orders (a) No Change Order to the GMP Contract shall be effective for purposes of this Agreement without the following approvals: (i) Borrower's Approval. Every Change Order to the GMP Contract shall require Borrower's prior written approval. (ii) Agent's Approval. Agent's prior written consent shall be required for any Change Order that (A) individually increases the GMP by more than Five Hundre

Section 5.3 — Cost Overruns (a) If actual or projected costs exceed the Approved Budget for any line item (after giving effect to all permitted reallocations under Section 5.1), Borrower shall deposit the amount of such excess with Agent (or into the Project Account, as Agent may direct) as additional Equity Funds within ten (10) Business Days following receipt of written notice from Agent specifying the line item an

Section 5.4 — Cost Savings (a) Savings realized on completed line items (i.e., line items for which all Work has been completed and all costs have been finally determined, and the actual cost is less than the budgeted amount) may be reallocated to other line items in the Approved Budget, subject to the limitations set forth in Section 5.1. Any such savings not reallocated to other line items shall be retained by Agen

ARTICLE 6 — CONDITIONS PRECEDENT TO INITIAL ADVANCE

Section 6.1 — Conditions to Initial Advance No initial Advance shall be made hereunder unless and until each of the following conditions precedent has been satisfied to Agent's satisfaction (or waived by Agent in writing): (a) Organizational Documents. Agent shall have received evidence of the valid formation and good standing of Hudson Yards West Mortgage LLC as a Delaware limited liability company, together with ce