Contract analysis

Section 1.1 — Defined Terms As used in this Agreement, the following terms shall have the meanings set forth below: "Agent" means Ironclad National Bank, N.A., a national banking association, acting in its capacity as Administrative Agent under the Loan Agreement for the benefit of the Lenders, and its successors and assigns in such capacity. "Borrower" means Hudson Yards West Mortgage LLC, a Delaware limited liabili

Section 1.2 — Rules of Construction (a) Capitalized terms used but not otherwise defined in this Agreement shall have the meanings assigned to such terms in the Loan Agreement. (b) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation" and shall not be construed to limit any general statement that they follow to the specific or similar items or matters immed

ARTICLE 2 — REPRESENTATIONS AND WARRANTIES Each Indemnitor, jointly and severally, represents and warrants to Agent and each Indemnitee as of the date hereof and as of each date on which a disbursement of Loan proceeds is made as follows:

Section 2.1 — Environmental Condition of the Property (a) Except as specifically disclosed in the Environmental Report, no Hazardous Materials are present at, on, in, under, or about the Property (including in the soil, surface water, groundwater, or ambient air at or beneath the Property) in violation of any Environmental Law, or in amounts, concentrations, or conditions that would reasonably be expected to give ris

Section 2.2 — Compliance with Environmental Laws (a) The Property and all current and past operations conducted thereon (to the knowledge of Indemnitors with respect to operations conducted prior to Borrower's period of ownership or control) are, and at all times relevant hereto have been, in material compliance with all Environmental Laws. (b) All permits, licenses, registrations, approvals, consents, authorizations

Section 2.3 — No Environmental Proceedings (a) No Environmental Claim is pending or, to the knowledge of Indemnitors after due inquiry, threatened in writing or otherwise, with respect to the Property or the operations of any Indemnitor at the Property. No Governmental Authority or any third party has asserted or, to the knowledge of Indemnitors, intends to assert any Environmental Claim against any Indemnitor or the

Section 2.4 — No Off-Site Disposal No Hazardous Materials generated at, on, or in connection with the Property or the operations conducted thereon have been transported to, treated at, stored at, or disposed of at any site or facility that (a) is listed or proposed for listing on the National Priorities List ("NPL") maintained by the EPA pursuant to CERCLA, (b) is listed on the Comprehensive Environmental Response, C

Section 2.5 — Environmental Report (a) The Environmental Report has been delivered to Agent prior to the date hereof. Indemnitors have reviewed the Environmental Report and, to the best of their knowledge after due inquiry, the information provided by or on behalf of Indemnitors to Apex Environmental Consultants, Inc. in connection with the preparation of the Environmental Report was true, complete, and accurate in a

Section 2.6 — Ground Lease and Prior Uses (a) Reference is made to that certain Ground Lease dated as of June 1, 2020 (recorded in the Office of the City Register of the City of New York, New York County, under City Register File Number CRFN 2020000198762) (the "Ground Lease"), pursuant to which the ground lessor has leased the Property to Borrower or its predecessor in interest. Indemnitors have disclosed to Agent a

ARTICLE 3 — COVENANTS Each Indemnitor, jointly and severally, covenants and agrees with Agent and each Indemnitee as follows:

Section 3.1 — Compliance with Environmental Laws Indemnitors shall, at all times, cause the Property and all operations conducted thereon (including, without limitation, all construction, development, renovation, demolition, and tenant improvement activities conducted under the GMP Contract with Cobalt Construction Group, Inc., or under any other construction contract relating to the Property) to comply with all Envi

Section 3.2 — No Hazardous Materials Indemnitors shall not cause, permit, suffer, or allow any Hazardous Materials to be brought onto, kept, used, stored, generated, manufactured, treated, recycled, Released, or disposed of at, on, in, under, or about the Property by any Indemnitor, any tenant, subtenant, licensee, contractor, subcontractor, agent, employee, invitee, or any other Person, except for: (a) customary con

Section 3.3 — Notices Indemnitors shall promptly, and in any event within five (5) Business Days after obtaining knowledge thereof, notify Agent in writing of any of the following: (a) any Release or threatened Release of Hazardous Materials at, on, in, under, or from the Property that is required to be reported to any Governmental Authority under any Environmental Law, or that could reasonably be expected to give ri

Section 3.4 — Remediation (a) In the event of any Release or presence of Hazardous Materials at, on, in, under, or from the Property in violation of any Environmental Law, or in amounts, concentrations, or conditions that require investigation, Remediation, removal, monitoring, or other response action under any Environmental Law, Indemnitors shall promptly, at Indemnitors' sole cost and expense: (i) take all Remedia

Section 3.5 — Environmental Assessments (a) Agent shall have the right, at any time and from time to time during the term of the Loan and thereafter (to the extent Indemnitors' obligations hereunder survive), to cause one or more environmental assessments, investigations, or audits (including Phase I environmental site assessments, Phase II environmental site assessments, subsurface investigations, groundwater monito

Section 3.6 — Contractor Compliance (a) Indemnitors shall require Cobalt Construction Group, Inc. (as general contractor under the GMP Contract) and all subcontractors, materialmen, suppliers, and other parties performing work at the Property in connection with the construction, development, renovation, or demolition of improvements thereon, to comply with all Environmental Laws in connection with all construction ac

Section 3.7 — Insurance (a) Indemnitors shall obtain and maintain, or cause to be obtained and maintained, throughout the term of the Loan (and for such additional period as may be required by Agent), an environmental impairment liability and/or pollution legal liability insurance policy (or policies) in form, scope, amount, and with insurers satisfactory to Agent in its reasonable discretion. Such insurance shall pr

Section 4.1 — General Environmental Indemnification Indemnitors shall, jointly and severally, indemnify, protect, defend (with counsel reasonably satisfactory to Agent), and hold harmless each Indemnitee from and against any and all Losses imposed upon, incurred by, suffered by, or asserted against any Indemnitee, directly or indirectly, arising out of, resulting from, or in any way relating to any one or more of the

Section 4.2 — Full Recourse; Unlimited Liability (a) The indemnification obligations of the Indemnitors under this Agreement are full recourse obligations of each Indemnitor. The liability of each Indemnitor hereunder is unlimited in amount and is not subject to, limited by, or affected by any non-recourse, exculpation, or limitation-of-liability provisions contained in the Loan Agreement, the Note, the Mortgage, or

Section 4.3 — Survival (a) The indemnification obligations, representations, warranties, and covenants of the Indemnitors contained in this Agreement (and the rights and remedies of the Indemnitees with respect thereto) shall survive in perpetuity, without regard to the passage of time, and shall continue in full force and effect notwithstanding and after: (i) the repayment, satisfaction, or discharge in full of the

Section 4.4 — Costs and Attorneys' Fees In addition to any other amounts payable by the Indemnitors hereunder, Indemnitors shall reimburse Indemnitees for all costs, expenses, and reasonable attorneys' fees and disbursements (including without limitation the fees and expenses of Clearfield & Associates LLP or any other counsel retained by Agent or any Indemnitee) incurred by any Indemnitee in connection with (a) any

Section 4.5 — No Limitation on Other Remedies The indemnification obligations of the Indemnitors under this Article 4, and the rights and remedies of the Indemnitees with respect thereto, are in addition to, and not in limitation or restriction of, any other rights or remedies available to any Indemnitee under the Loan Documents, at law, in equity, or otherwise, including without limitation any rights or remedies ava

ARTICLE 5 — DUTY TO DEFEND AND REMEDIATE

Section 5.1 — Right to Defend (a) Agent shall have the right, but not the obligation, at any time and from time to time, to participate in or assume control of the defense, negotiation, settlement, or other resolution of any Environmental Claim affecting or relating to the Property or any Indemnitee, whether such Environmental Claim is asserted by any Governmental Authority, any private party, or any other Person. If

Section 5.2 — Agent's Right to Remediate (a) If any Indemnitor fails to commence and diligently pursue Remediation within thirty (30) days after written notice from Agent (or within such shorter period as may be necessary to address an imminent threat to human health or the environment, or as may be required by any Governmental Authority or any Environmental Law), Agent may (but shall not be obligated to) cause such

Section 5.3 — Settlements No Indemnitor shall enter into, agree to, or consent to any settlement, compromise, consent order, no-further-action determination, or other resolution of any Environmental Claim without the prior written consent of Agent, which consent shall not be unreasonably withheld, conditioned, or delayed, so long as such settlement, compromise, consent order, or resolution satisfies each of the follo

ARTICLE 6 — OBLIGATIONS UNSECURED; RECOURSE

Section 6.1 — Unsecured Obligations The obligations of the Indemnitors under this Agreement are unsecured personal obligations of each Indemnitor. The obligations of the Indemnitors hereunder are not secured by the Mortgage or any other Loan Document, and the Indemnitors' obligations under this Agreement are independent of and in addition to any security provided for the Loan; provided, however, that nothing in this

Section 6.2 — Joint and Several Liability The obligations of Borrower and Guarantor under this Agreement are joint and several. Each Indemnitee may proceed against either or both Indemnitors, in any order and to any extent, for the enforcement of the obligations hereunder, without being required to proceed against the other Indemnitor or to exhaust any remedies against any other Person or any collateral. No Indemnito

Section 6.3 — No Limitation on Recourse Notwithstanding any non-recourse, exculpation, or limitation-of-liability provision contained in the Loan Agreement, the Note, the Mortgage, or any other Loan Document, the obligations of each Indemnitor under this Agreement are and shall remain fully recourse obligations of such Indemnitor, enforceable against such Indemnitor and all of such Indemnitor's assets, properties, re

Section 6.4 — Guarantor's Separate Obligations The obligations of Guarantor under this Agreement are primary, absolute, unconditional, and independent of the obligations of Borrower. Agent and the Indemnitees need not proceed against Borrower, exhaust any collateral or security, pursue any other right or remedy, or institute any action or proceeding against Borrower or any other Person, before proceeding against Guar

ARTICLE 7 — WAIVERS BY INDEMNITORS

Section 7.1 — Waivers To the fullest extent permitted by applicable law, each Indemnitor hereby irrevocably and unconditionally waives each of the following: (a) notice of acceptance of this Agreement by Agent or any other Indemnitee; (b) presentment, demand for payment, demand for performance, protest, and notice of protest, notice of dishonor, and notice of non-payment or non-performance; (c) notice of any Event of

Section 7.2 — Waiver of Jury Trial EACH INDEMNITOR AND AGENT (ON BEHALF OF ITSELF AND EACH OTHER INDEMNITEE) HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT, STATUTE, OR OTHERWISE) ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE LOAN DOCUMENTS, OR ANY COURSE OF CONDU

Section 8.1 — No Duty to Investigate No Indemnitee shall have any obligation or duty to investigate, assess, monitor, or otherwise determine the environmental condition of the Property or to disclose to any Indemnitor any information regarding the environmental condition of the Property that may be known to or obtained by any Indemnitee. The acceptance by Agent of the Environmental Report or any other environmental r

Section 8.2 — No Liability of Agent No Indemnitee shall be liable for, or incur any liability with respect to, any Hazardous Materials at, on, in, under, from, or affecting the Property by reason of (a) the holding of the Mortgage, any assignment of leases and rents, or any other security interest in the Property or any interest therein, (b) the exercise of any rights or remedies under the Mortgage, the Loan Agreemen

Section 8.3 — Agent as Fiduciary Agent acts under this Agreement solely in its capacity as Administrative Agent for the Lenders pursuant to the terms of the Loan Agreement. Agent shall have no fiduciary duty or obligation to any Indemnitor by reason of this Agreement, the Loan Agreement, or any other Loan Document. Agent shall be entitled to all of the rights, protections, immunities, and indemnities afforded to Agen

ARTICLE 9 — SUBORDINATION AND SUBROGATION

Section 9.1 — Subordination of Claims Until the Loan has been indefeasibly paid in full, all obligations of Borrower under the Loan Documents have been fully satisfied and discharged, and all commitments of the Lenders under the Loan Agreement have been irrevocably terminated, each Indemnitor hereby irrevocably and unconditionally subordinates any and all claims for subrogation, reimbursement, contribution, indemnity