1031-00004 · Hudson Yards West Mortgage LLC · Entity Formation

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LIMITED LIABILITY COMPANY AGREEMENT

HUDSON YARDS WEST MORTGAGE LLC

A Delaware Limited Liability Company

Dated as of __, 2025

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PREAMBLE

This Limited Liability Company Agreement (this "Agreement") of Hudson Yards West Mortgage LLC, a Delaware limited liability company (the "Company"), is made and entered into as of __, 2025, by Metropolitan Transit Development Corp., an Illinois government instrumentality ("MTDC" or the "Member"), as the sole member of the Company.

The Company was formed as a limited liability company under the laws of the State of Delaware by the filing of a Certificate of Formation (the "Certificate of Formation") with the Secretary of State of the State of Delaware on __, 2025, pursuant to and in accordance with the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq., as amended from time to time (the "Act"). This Agreement shall constitute the "limited liability company agreement" of the Company within the meaning of the Act, and all prior limited liability company agreements of the Company, if any, are hereby superseded in their entirety.

RECITALS

WHEREAS, the Company has been formed as a single-purpose, bankruptcy-remote entity for the purpose of acquiring, owning, financing, and operating certain real property located at 450 West 34th Street, New York, NY 10001 (Borough: Manhattan; Block: 729; Lots: 1, 5, 12, 15) (the "Property"), as more particularly described on Exhibit B attached hereto and incorporated herein by reference;

WHEREAS, the Company intends to obtain a senior mortgage loan in the principal amount of Four Hundred Seventy-Five Million Dollars ($475,000,000) (the "Mortgage Loan") from a syndicate of lenders led by Ironclad National Bank, N.A., a national banking association, as administrative agent (the "Agent"), pursuant to that certain Mortgage Loan Agreement of even date herewith (the "Mortgage Loan Agreement"), among the Company, the Agent, and the Lenders (as defined therein);

WHEREAS, the Member desires to set forth the terms and conditions governing the Company's affairs, including provisions designed to ensure the Company's status as a bankruptcy-remote, single-purpose entity as required by the Mortgage Loan Agreement and the other Mortgage Loan Documents (as defined herein);

WHEREAS, the Company will hold a leasehold interest under that certain Ground Lease dated June 1, 2020, between NYC Economic Development Corporation ("NYCEDC"), as ground lessor, and MTDC, as ground lessee (as assigned to the Company), recorded in the Office of the City Register of the City of New York at CRFN 2020000198762 (NYC ACRIS) (the "Ground Lease"); and

WHEREAS, the Member is the sole member of the Company and desires to adopt this Agreement to govern the affairs of the Company, the conduct of the Company's business, and the rights and obligations of the Member with respect thereto;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Member hereby agrees as follows:

ARTICLE I

DEFINITIONS

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, or is under common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") means the power, directly or indirectly, to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the foregoing, any Person that owns, directly or indirectly, ten percent (10%) or more of the outstanding equity interests of a Person shall be presumed to be an Affiliate of such Person.

"Agent" means Ironclad National Bank, N.A., a national banking association, in its capacity as administrative agent under the Mortgage Loan Agreement, and its successors and assigns in such capacity.

"Agreement" means this Limited Liability Company Agreement, as the same may be amended, modified, supplemented, or restated from time to time in accordance with the terms hereof.

"Available Cash" means, as of any date of determination, all cash and cash equivalents of the Company on hand as of such date, less (a) all amounts required to be retained by the Company under the Mortgage Loan Documents (including amounts held in reserve accounts, escrow accounts, and lockbox accounts), (b) all amounts necessary to pay or provide for the payment of the Company's current liabilities and obligations as and when due, (c) all amounts necessary to maintain adequate reserves for the Company's reasonably anticipated expenses and liabilities (including capital expenditure reserves, insurance reserves, and tax reserves), and (d) all amounts that the Member or the applicable Officer reasonably determines should be retained by the Company for working capital purposes.

"Bankruptcy" means (a) the filing of a voluntary petition under Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as amended from time to time (the "Bankruptcy Code"), or any similar federal, state, or foreign law relating to bankruptcy, insolvency, reorganization, moratorium, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to debts, (b) the filing of an involuntary petition against a Person under the Bankruptcy Code or any such similar law, (c) the making of a general assignment for the benefit of creditors, (d) the admission in writing by a Person of its inability to pay its debts generally as they become due, or (e) the appointment of a receiver, trustee, conservator, liquidator, assignee, custodian, sequestrator, or other similar official for a Person or for any substantial part of its property.

"Business Day" means any day other than a Saturday, Sunday, or other day on which banks in New York, New York, or Chicago, Illinois, are authorized or required by law to close.

"Certificate of Formation" means the Certificate of Formation of the Company as filed with the Secretary of State of the State of Delaware on __, 2025, as the same may be amended, restated, or supplemented from time to time in accordance with this Agreement and the Act.

"Closing Date" means the date of the initial funding of the Mortgage Loan under the Mortgage Loan Agreement.

"Company" means Hudson Yards West Mortgage LLC, a Delaware limited liability company.

"DSCR" means the debt service coverage ratio as defined in the Mortgage Loan Agreement.

"Fiscal Year" means the calendar year or such portion of the calendar year during which the Company is in existence.

"GMP Contract" means the Guaranteed Maximum Price Construction Contract No. CCG-HYW-2025-001 between the Company and Cobalt Construction Group, Inc., a New York corporation, as the same may be amended, modified, or supplemented from time to time.

"Ground Lease" means that certain Ground Lease dated June 1, 2020, between NYCEDC, as ground lessor, and MTDC, as ground lessee (as assigned to the Company), recorded in the Office of the City Register of the City of New York at CRFN 2020000198762 (NYC ACRIS), as the same may be amended, modified, or supplemented from time to time.

"Independent Director" has the meaning set forth in Section 5.8 of this Agreement.

"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute. References to specific sections of the Internal Revenue Code shall include any corresponding provisions of any successor statute.

"Lender" or "Lenders" means, collectively, the lenders party to the Mortgage Loan Agreement from time to time, which initially consist of Ironclad National Bank, N.A., Ridgeline Savings Bank, Atlas Mutual Insurance Company, Harborview Federal Savings Bank, and Meridian Pacific Bank, together with their respective successors and assigns.

"Material Action" has the meaning set forth in Section 5.9 of this Agreement.

"Member" means Metropolitan Transit Development Corp., an Illinois government instrumentality, and any successor or permitted assign that is admitted as a member of the Company in accordance with this Agreement.

"Mezzanine Borrower" means Hudson Yards West Mezzanine LLC, a Delaware limited liability company, which is the direct parent of the Company and which directly holds one hundred percent (100%) of the membership interest in the Company.

"Mezzanine Lender" means Granite Peak Capital Partners, LP, a Delaware limited partnership, and its successors and assigns.

"Mezzanine Loan" means the mezzanine loan in the principal amount of Two Hundred Million Dollars ($200,000,000) from the Mezzanine Lender to the Mezzanine Borrower, pursuant to the Mezzanine Loan Agreement.

"Mezzanine Loan Agreement" means that certain Mezzanine Loan Agreement of even date herewith between the Mezzanine Borrower and the Mezzanine Lender, as the same may be amended, modified, or supplemented from time to time.

"Mortgage Loan" means the senior mortgage loan in the principal amount of Four Hundred Seventy-Five Million Dollars ($475,000,000) from the Lenders to the Company pursuant to the Mortgage Loan Agreement.

"Mortgage Loan Agreement" means that certain Mortgage Loan Agreement dated as of the Closing Date among the Company, the Agent, and the Lenders, as the same may be amended, modified, supplemented, or restated from time to time.

"Mortgage Loan Documents" means the Mortgage Loan Agreement and all other documents, instruments, certificates, and agreements executed and delivered in connection therewith, including the mortgage, the note, the assignment of leases and rents, the environmental indemnity agreement, the guaranty, the completion guaranty, the pledge and security agreements, the lockbox agreement, the cash management agreement, the reserve agreements, and all other ancillary documents, as each may be amended, modified, supplemented, or restated from time to time.

"NYCEDC" means NYC Economic Development Corporation, a New York not-for-profit corporation.

"Officer" has the meaning set forth in Section 5.6 of this Agreement.

"Person" means any individual, corporation, limited liability company, partnership (general or limited), joint venture, association, trust, estate, unincorporated organization, government or any agency, instrumentality, or political subdivision thereof, or any other entity, whether acting in an individual, fiduciary, or other capacity.

"Property" means the real property located at 450 West 34th Street, New York, NY 10001 (Borough: Manhattan; Block: 729; Lots: 1, 5, 12, 15), together with all improvements, buildings, structures, and other constructions now or hereafter located thereon, all fixtures now or hereafter attached thereto, and all easements, rights-of-way, licenses, privileges, hereditaments, and appurtenances now or hereafter belonging or appertaining thereto, including the Company's leasehold interest under the Ground Lease, as more particularly described on Exhibit B attached hereto.

"Property Management Agreement" means the property management agreement between the Company and Evergreen Property Management LLC, a Delaware limited liability company, as the same may be amended, modified, or supplemented from time to time, with the prior written consent of the Agent to the extent required by the Mortgage Loan Documents.

"Separateness Covenants" has the meaning set forth in Section 8.2 of this Agreement.

"SPE" means a single purpose entity.

"Treasury Regulations" means the regulations promulgated under the Internal Revenue Code by the United States Department of the Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Mortgage Loan Agreement.

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.

(d) References to sections, articles, exhibits, and schedules shall refer to sections, articles, exhibits, and schedules of or to this Agreement, unless otherwise specified.

(e) References to any statute, law, or regulation shall include any amendments thereto and any successor statute, law, or regulation, and shall also include all rules and regulations promulgated thereunder, unless the context otherwise requires.

(f) All headings and captions contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of any provision hereof.

(g) References to "hereof," "herein," "hereby," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular provision hereof.

(h) References to any agreement or document shall mean such agreement or document as the same may be amended, modified, supplemented, or restated from time to time in accordance with its terms.

(i) Except as to matters relating to the formation, internal affairs, and dissolution of the Company (which shall be governed by the laws of the State of Delaware), this Agreement shall be interpreted and construed in accordance with the laws of the State of New York.

(j) The rule of construction that ambiguities shall be resolved against the drafter shall not apply to this Agreement.

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 of Formation, as filed and as it may be amended, is attached hereto as Exhibit A and incorporated herein by reference. The Member hereby ratifies and confirms the filing of the Certificate of Formation and all actions taken in connection with the formation of the Company prior to the date hereof.

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 then serving. All stationery, invoices, checks, purchase orders, contracts, and other written communications of the Company shall be in the name of the Company and shall not suggest that the Company is a division, department, or instrumentality of the Member, MTDC, or any Affiliate or other Person.

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 change the Company's registered office or registered agent at any time and from time to time in accordance with the Act; provided, however, that the Member shall provide at least ten (10) Business Days' prior written notice to the Agent of any such change. The Company shall continuously maintain a registered office and a registered agent in the State of Delaware as required by the Act.

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 correspondence and notices relating to the Member's oversight of the Company. The principal place of business may be changed from time to time by the Member upon not less than thirty (30) days' prior written notice to the Agent; provided that any such change shall not cause the Company to fail to comply with any of the Separateness Covenants.

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 shall occur without the prior unanimous written consent of all Independent Directors then serving and satisfaction of all conditions set forth therein. For the avoidance of doubt, neither the death, disability, dissolution, Bankruptcy, cessation of existence, retirement, resignation, or expulsion of the Member, nor the occurrence of any other event that, under the Act, would terminate the continued membership of the Member in the Company, shall cause the dissolution of the Company; the Company shall continue in existence following any such event in accordance with Section 10.2.

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, borrowing the Mortgage Loan, granting security interests and liens as contemplated by the Mortgage Loan Documents, and performing all obligations of the Company thereunder;

(c) entering into and performing under the Ground Lease, including the payment of ground rent and compliance with all covenants, conditions, and restrictions thereunder;

(d) entering into and performing under the GMP Contract (Guaranteed Maximum Price Construction Contract No. CCG-HYW-2025-001 with Cobalt Construction Group, Inc.) and all related project agreements, construction agreements, architectural and engineering agreements, and development agreements relating to the improvement and development of the Property;

(e) entering into and performing under the Property Management Agreement with Evergreen Property Management LLC for the management, operation, and leasing of the Property;

(f) opening and maintaining bank accounts, reserve accounts, escrow accounts, and lockbox accounts as required by this Agreement and the Mortgage Loan Documents;

(g) entering into and performing under insurance policies, service agreements, utility agreements, and other operational contracts necessary for the ownership, operation, and maintenance of the Property; and

(h) engaging in such other activities as are necessary, incidental, or ancillary to the foregoing.

The Company shall not engage in any business, activity, or transaction other than as set forth in this Section 2.6. Without limiting the foregoing, the Company shall not own any assets other than the Property and assets directly related thereto, and shall not acquire any real property other than the Property.

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 Material Actions as set forth in Section 5.9, (c) the terms, conditions, and restrictions of the Mortgage Loan Documents, and (d) the other terms and conditions of this Agreement.

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 maintain such qualification in good standing. All costs and expenses of such qualification shall be borne by the Company.

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 Company bank account designated by the Member in accordance with the requirements of the Mortgage Loan Documents. Additional capital required for the development, construction, and operation of the Property shall be contributed by the Member in accordance with the project budget approved under the Mortgage Loan Agreement and the equity-first requirements set forth therein. The Member acknowledges that, pursuant to the terms of the Mortgage Loan Agreement, equity contributions are required to be funded prior to draws on the Mortgage Loan.

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 overruns in excess of the contingency amounts set forth in the approved project budget, (b) replenishment of the interest reserve account if drawn below specified thresholds, (c) restoration of the Property following a casualty or condemnation event, and (d) satisfaction of the debt yield test or DSCR requirements set forth in the Mortgage Loan Agreement. In connection with the foregoing, the Member acknowledges that MTDC has been awarded a transit infrastructure grant from the New York City Transit Authority in the amount of Forty-Five Million Dollars ($45,000,000) (the "NYCTA Grant"), and the Member shall cause the proceeds of the NYCTA Grant to be deposited directly into the Company's accounts as and when received, in accordance with the disbursement requirements of the Mortgage Loan Documents. No additional capital contribution shall be deemed made until the funds are received in a Company bank account.

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 amount of cash and the fair market value of any property distributed by the Company to the Member and by all items of loss and deduction allocated to the Member. The capital account shall be maintained in compliance with the provisions of Section 704(b) of the Internal Revenue Code and the Treasury Regulations promulgated thereunder. For the avoidance of doubt, the maintenance of the capital account is intended solely for tax and accounting purposes and shall not give rise to any right of the Member to receive distributions except as expressly provided in this Agreement.

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 accordance with Section 4.2. No creditor of the Member shall have the right to attach, garnish, or otherwise reach the Member's capital account or the Company's assets, except as permitted by applicable law.

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 allocations (including qualified income offset allocations, minimum gain chargeback allocations, and partner nonrecourse deduction allocations) as are required to maintain the validity of the allocations under this Section 4.1 and to ensure that the allocations under this Agreement have substantial economic effect (or are deemed to be in accordance with the Member's interest in the Company). Because the Company has only a single member, all such special allocations shall ultimately be allocated to the Member.

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 requirements, and cash sweep provisions set forth therein (the Member acknowledges that the Mortgage Loan Agreement requires the maintenance of a hard lockbox and provides for a springing cash sweep that is triggered upon (i) the DSCR falling below 1.10x for two (2) consecutive calendar quarters, or (ii) the occurrence and continuance of an Event of Default (as defined in the Mortgage Loan Agreement));

(b) the maintenance of adequate reserves for the Company's reasonably anticipated expenses and liabilities, including operating expenses, capital expenditure reserves, ground rent, insurance premiums, real estate taxes, and debt service on the Mortgage Loan;

(d) applicable law, including Section 18-607 of the Act (prohibiting distributions to the extent that, after giving effect thereto, the Company's liabilities would exceed the fair value of its assets).

All distributions shall be made in cash unless otherwise agreed by the Member and the Agent.

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) such distribution would violate any provision of the Act, including Section 18-607 thereof;

(c) such distribution would violate any term, condition, covenant, or restriction of the Mortgage Loan Documents, including any prohibition on distributions during the continuance of a cash sweep period or an Event of Default; or

(d) such distribution would cause the Company to fail to comply with any of the Separateness Covenants set forth in Section 8.2.

Any distribution made in violation of this Section 4.3 shall be subject to repayment by the Member to the extent required by applicable law.

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 event the Company is treated as a disregarded entity, all items of income, deduction, gain, loss, and credit of the Company shall be reported on the federal and applicable state and local income tax returns of the Member (MTDC EIN: 36-2847501). The Company shall obtain its own employer identification number (EIN) from the Internal Revenue Service upon or promptly following its formation. In the event the Member elects to have the Company classified as an association taxable as a corporation, or in the event the Company is otherwise required to file separate federal, state, or local income tax returns, such returns shall be prepared by Whitfield Albrecht & Co. LLP (or such other nationally recognized accounting firm as the Member may designate with prior written notice to the Agent) and filed on a timely basis. The Company shall bear the cost of preparation and filing of all such returns.

ARTICLE V

MANAGEMENT

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 specifically limited by this Agreement, the Mortgage Loan Documents, and applicable law. All references in this Agreement to actions by the "Member" shall mean actions taken by the Member acting through its duly authorized representatives. The Company shall not have a board of directors or board of managers (other than the Independent Directors serving in such capacity as set forth herein), and the Member shall perform the functions customarily performed by a board of managers of a Delaware limited liability company, subject to the Independent Director consent requirements set forth herein.

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, and notices on behalf of the Company, including the power and authority to:

(i) execute and deliver the Mortgage Loan Documents and perform all obligations of the Company thereunder;

(ii) execute and deliver the Ground Lease documents and perform all obligations of the Company thereunder;

(iii) execute and deliver the GMP Contract and related project agreements;

(iv) execute and deliver the Property Management Agreement;

(v) open and maintain bank accounts, reserve accounts, escrow accounts, and lockbox accounts on behalf of the Company;

(vi) employ or retain employees, agents, consultants, accountants, attorneys, and other professionals on behalf of the Company;

(vii) make expenditures and incur obligations on behalf of the Company in furtherance of the purposes set forth in Section 2.6;

(viii) bring and defend actions and proceedings on behalf of the Company;

(ix) file tax returns and other governmental filings on behalf of the Company;

(x) make distributions of Available Cash to the Member in accordance with Section 4.2; and

(xi) take such other actions as are necessary or appropriate to carry out the purposes of the Company as set forth in Section 2.6.

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;

(d) Lydia Okafor, General Counsel of MTDC.

Each of the foregoing individuals shall have the authority, acting individually, to execute and deliver documents on behalf of the Company, unless this Agreement, the Mortgage Loan Documents, or the Member otherwise specifies that the signature of more than one authorized representative is required. The Member may add, remove, or replace authorized representatives by delivering written notice to the Agent, which notice shall include a specimen signature of each newly authorized representative. Such notice shall be effective upon actual receipt by the Agent or, if sent by nationally recognized overnight courier, on the Business Day following the date of dispatch. The Agent shall be entitled to rely on the most recent list of authorized representatives delivered by the Member and shall not be liable for acting in reliance thereon.

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 applicable law. Without limiting the foregoing, the Member hereby delegates to Connor McBride, serving as the Project Director for the development and construction of the Property, the authority to oversee day-to-day project management activities, including coordination with Cobalt Construction Group, Inc. under the GMP Contract, coordination with the project architect and engineers, and oversight of construction progress and budget compliance, in each case subject to the overall supervision and direction of the Member and the limitations set forth in this Agreement and the Mortgage Loan Documents.

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 exercise such care as an ordinarily prudent person in a like position would exercise under similar circumstances. Without limiting the foregoing, the Member and each Officer shall at all times act in a manner consistent with the Company's SPE status, the Separateness Covenants, and the requirements of the Mortgage Loan Documents. No Member or Officer shall take any action that such Person knows or should reasonably know would be inconsistent with such requirements.

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 the Agent. Officers shall have such duties, authorities, and responsibilities as may be delegated to them by the Member from time to time, subject at all times to the limitations of this Agreement, the Mortgage Loan Documents, and applicable law. No Officer shall have the authority to take any Material Action, and no Officer shall have the authority to bind the Company to any agreement, document, or instrument that would conflict with the SPE Covenants, the Mortgage Loan Documents, or the terms of this Agreement. The Member shall designate the initial Officers of the Company on or before the Closing Date and shall provide written notice to the Agent of the names, titles, and specimen signatures of all initial Officers promptly following such designation.

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 be void ab initio and of no force or effect. The Agent and the Lenders shall be entitled to rely on the absence of Independent Director consent as grounds for refusing to recognize or give effect to any purported Material Action.

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 replacement Independent Director within ten (10) Business Days in accordance with this Section 5.8, and no Material Action shall be authorized or taken during any period in which there are fewer than two (2) Independent Directors serving.

(b) Qualifications. Each Independent Director must be a natural person who satisfies all of the following qualifications:

(i) such person is not, and has not been at any time during the preceding five (5) years, a stockholder, director (other than as an independent director of a special purpose entity in a structured finance or commercial real estate finance transaction), officer, employee, partner, member, attorney, or counsel of the Company, the Member, MTDC, any Affiliate of the Member or the Company, the Mezzanine Borrower (Hudson Yards West Mezzanine LLC), or any Affiliate of any of the foregoing;

(ii) such person is not, and has not been at any time during the preceding five (5) years, a creditor, supplier, contractor, customer, or service provider (other than in such person's capacity as an independent director) of the Company, the Member, MTDC, any Affiliate, the Mezzanine Borrower, or any Affiliate of any of the foregoing;

(iii) such person is not a member of the immediate family (including spouse, parent, child, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law) of any individual described in clauses (i) or (ii) above;

(iv) such person is not a Person who controls (directly or indirectly) any entity described in clauses (i) or (ii) above;

(v) such person is provided by a nationally recognized independent director service provider (such as Hollowell Technologies, Pemberton Industries, National Registered Agents, or a comparable provider); and

(vi) such person has prior experience serving as an independent director or independent manager for special purpose entities in structured finance, securitization, or commercial real estate finance transactions.

(c) Term and Replacement. Each Independent Director shall serve until the earliest to occur of such Independent Director's resignation, removal, death, or legal incapacity. An Independent Director may resign by giving at least thirty (30) days' prior written notice to the Member, the Company, and the Agent. An Independent Director may be removed only with the consent of the Member and the prior written consent of the Agent. Upon any vacancy in the position of Independent Director, the Member shall, within ten (10) Business Days after such vacancy, appoint a successor Independent Director who satisfies all of the qualifications set forth in Section 5.8(b). The appointment of a successor Independent Director shall require the prior written consent of the Agent, which consent shall not be unreasonably withheld, conditioned, or delayed. The form of designation for any new Independent Director shall substantially conform to Exhibit D attached hereto.

(d) Compensation. Each Independent Director shall be entitled to receive reasonable compensation for his or her services in such amount as shall be agreed upon by the Member and such Independent Director, which compensation shall be paid by the Company as an operating expense. Such compensation shall not be contingent upon or related to the results of any vote or consent by such Independent Director with respect to any Material Action. The Company shall reimburse each Independent Director for all reasonable out-of-pocket expenses incurred in connection with the performance of his or her duties.

(e) Fiduciary Duties. Each Independent Director shall, in the performance of his or her duties, owe a fiduciary duty to the Company (including the Company's creditors) to consider the interests of the Company and its creditors as a whole, and not merely the interests of the Member or any Affiliate. Without limiting the foregoing, in considering whether to consent to any Material Action, each Independent Director shall take into account the interests of the Agent, the Lenders, and any other creditors of the Company. The foregoing fiduciary duty shall not be eliminated or limited by any provision of this Agreement or the Act, except to the extent expressly permitted by Section 18-1101(c) of the Act and only as consistent with the maintenance of the Company's bankruptcy-remote status.

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 hereafter in effect relating to bankruptcy, insolvency, reorganization, moratorium, arrangement, receivership, assignment for the benefit of creditors, or other similar relief with respect to debtors, or making a general assignment for the benefit of creditors, or admitting in writing the Company's inability to pay its debts generally as they become due;

(ii) seeking or consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official for the Company or for any substantial part of the Company's property;

(iii) dissolving, liquidating, consolidating, merging, or selling all or substantially all of the Company's assets;

(iv) amending, modifying, supplementing, restating, or waiving any provision of this Agreement (including the Certificate of Formation) in a manner that would be inconsistent with the SPE Covenants set forth in Section 8.2, the requirements of Article V relating to Independent Directors and Material Actions, or the requirements of the Mortgage Loan Documents;

(v) engaging in any business or activity other than as set forth in Section 2.6;

(vi) incurring any indebtedness, debt obligation, or guaranty other than as permitted by the Mortgage Loan Documents and Section 8.3;

(vii) forming, creating, or acquiring any subsidiary or other entity, or acquiring an equity interest in any other Person;

(viii) taking any action that would cause the Company to fail to satisfy any of the Separateness Covenants set forth in Section 8.2;

(ix) entering into any transaction with the Member, MTDC, or any Affiliate that is not on commercially reasonable terms and substantially similar to those that would be obtainable in an arm's-length transaction with an unrelated Person; and

(x) taking any other action that, under the terms of the Mortgage Loan Documents, requires the consent of the Independent Directors or is designated as a "Material Action" or "Springing Member Action" thereunder.

(b) Standard for Consent. Each Independent Director shall consider the interests of the Company and its creditors as a whole (including the interests of the Agent, the Lenders, and any holders of securitized interests in the Mortgage Loan) and shall not solely consider the interests of the Member, MTDC, or any Affiliate in determining whether to give or withhold consent to any Material Action. Each Independent Director shall exercise his or her independent judgment in good faith and shall not be subject to the direction or control of the Member, MTDC, or any Affiliate with respect to the determination of whether to consent to any Material Action.

(c) Unanimity Requirement. No Material Action shall be authorized, approved, or taken without the prior affirmative vote or written consent of each Independent Director then serving, regardless of whether any vacancy exists in the position of Independent Director at such time. For the avoidance of doubt, if at any time fewer than two (2) Independent Directors are serving, no Material Action may be taken until such time as at least two (2) qualified Independent Directors are serving and each has given his or her affirmative consent.

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 Mezzanine Borrower (Hudson Yards West Mezzanine LLC), and any other Person. Without limiting the generality of the foregoing, the Company shall maintain the following:

(a) its own general ledger, chart of accounts, and financial statements, prepared in accordance with generally accepted accounting principles consistently applied ("GAAP");

(b) its own bank accounts, reserve accounts, escrow accounts, and lockbox accounts, as more particularly described in Section 6.2;

(d) copies of all federal, state, and local tax returns and filings of the Company;

(e) minutes, records, or written consents reflecting all actions taken by the Member, the Officers, and the Independent Directors;

(f) copies of all Mortgage Loan Documents and all other material agreements, contracts, and instruments to which the Company is a party;

(g) records of all capital contributions made by the Member and all distributions made to the Member; and

(h) such other books and records as are required by the Act, applicable law, or the Mortgage Loan Documents.

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 accounts, escrow accounts, operating accounts, construction accounts, and lockbox accounts as are required under the Mortgage Loan Documents, including accounts maintained by or at the direction of the Agent. Authorized signatories on the Company's bank accounts shall be designated by the Member and shall include only Officers or authorized representatives of the Company or the Member, as applicable. All disbursements from the Company's accounts shall be made in the Company's name and for the Company's business purposes only.

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 Whitfield Albrecht & Co. LLP (or another nationally recognized independent public accounting firm approved by the Agent) in accordance with GAAP and accompanied by an unqualified opinion (or such other form of opinion as may be acceptable to the Agent under the Mortgage Loan Documents);

(b) Quarterly Unaudited Financial Statements. Within forty-five (45) days after the end of each fiscal quarter, quarterly unaudited financial statements of the Company, including a balance sheet, statement of operations, and statement of cash flows, prepared in accordance with GAAP, certified by an authorized Officer of the Company;

(c) Mortgage Loan Reporting. Such other financial reports, certificates, compliance reports, borrowing base certificates, construction progress reports, leasing reports, and other information as may be required by the Mortgage Loan Documents, at such times and in such form as set forth therein; and

(d) Other Reports. Such other reports and information as the Member, the Agent, or any Lender may reasonably request from time to time.

The Fiscal Year of the Company shall be the calendar year (January 1 through December 31).

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 foregoing, the Company shall file all other returns, reports, and declarations required by applicable law, including any required state or local income, franchise, or gross receipts tax returns in jurisdictions where the Company conducts business or owns property (including the State of New York and the City of New York). If the Company is required to file separate tax returns for any reason (including an election or a change in applicable law), such returns shall be prepared by Whitfield Albrecht & Co. LLP (or such other nationally recognized accounting firm as the Member may designate with prior written notice to the Agent) and shall be filed on a timely basis. All costs and expenses of tax preparation and filing shall be borne by the Company.

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 less than five (5) Business Days, except in the case of an Event of Default under the Mortgage Loan Agreement, in which case no prior notice shall be required). The Company shall cooperate with and provide reasonable access to any such Person and shall make its Officers, employees, and agents available to answer questions regarding the Company's affairs. The rights set forth in this Section 6.5 are in addition to, and not in limitation of, any inspection rights granted under the Act, the Mortgage Loan Documents, or applicable law.

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 previously returned) and the Member's share of the Company's undistributed profits and assets, except to the extent that (a) the Act imposes personal liability on a member under specified circumstances, (b) the Member has agreed to be personally liable pursuant to the terms of any guaranty, environmental indemnity agreement, completion guaranty, or other recourse document executed by the Member (or MTDC) in connection with the Mortgage Loan Documents, or (c) a court of competent jurisdiction pierces the limited liability veil of the Company under applicable law. For the avoidance of doubt, the Member acknowledges that MTDC has executed or will execute a guaranty of certain "bad boy" recourse carve-out obligations and an environmental indemnity agreement in connection with the Mortgage Loan, as set forth in the Mortgage Loan Documents, and that the limited liability provisions of this Section 7.1 shall not limit or affect MTDC's liability under such guaranty or environmental indemnity.

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, assessments, losses, liabilities, damages, judgments, fines, penalties, costs, and expenses (including reasonable attorneys' fees, accountants' fees, and court costs) arising out of, relating to, or in connection with the management or conduct of the Company's business and affairs or the performance of any duty, act, or omission by such Indemnified Person on behalf of the Company; provided, however, that no Indemnified Person shall be entitled to indemnification hereunder to the extent that such claims, losses, liabilities, damages, costs, or expenses are determined by a court of competent jurisdiction in a final, non-appealable judgment to have been caused by such Indemnified Person's gross negligence, willful misconduct, or fraud. The indemnification obligations of the Company under this Section 7.2 shall be subordinate in all respects to the Company's obligations under the Mortgage Loan Documents, and no indemnification payment shall be made if such payment would cause the Company to default under the Mortgage Loan Documents or violate any of the Separateness Covenants.

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 or relating to such Independent Director's service as an Independent Director of the Company, including any claim arising out of or relating to any Material Action or the Independent Director's consent or refusal to consent to any proposed Material Action; provided, however, that no Independent Director shall be entitled to indemnification hereunder to the extent that such claims, losses, liabilities, damages, costs, or expenses are determined by a court of competent jurisdiction in a final, non-appealable judgment to have been caused by such Independent Director's fraud or willful misconduct. The Company shall, to the fullest extent permitted by applicable law, advance expenses (including reasonable attorneys' fees) incurred by an Independent Director in defending any action, suit, or proceeding in advance of the final disposition of such action, suit, or proceeding, upon receipt of an undertaking by or on behalf of such Independent Director to repay such amount if it is ultimately determined that such Independent Director is not entitled to be indemnified hereunder. The Company shall maintain directors' and officers' liability insurance covering the Independent Directors in amounts and on terms reasonably acceptable to the Agent, if such insurance is available at commercially reasonable rates.

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 provisions of this Section 7.4 shall survive the resignation, removal, death, or incapacity of any Independent Director and the dissolution, liquidation, and termination of the Company.

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-remote entity, to reduce the risk of the Company being substantively consolidated with the Member, MTDC, any Affiliate, or any other Person in a bankruptcy or insolvency proceeding, and to ensure that the assets and liabilities of the Company are readily distinguishable from the assets and liabilities of any other Person. The provisions of this Article VIII shall be enforceable by the Agent, each Lender, and each holder of the Mortgage Loan (or any securitized interest therein, including any holder of a participation interest, co-lender interest, or certificate backed in whole or in part by the Mortgage Loan) as express third-party beneficiaries hereof, in accordance with their respective terms and Section 8.8. In the event of any conflict between the provisions of this Article VIII and any other provision of this Agreement, the provisions of this Article VIII shall control.

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 Mezzanine Borrower (Hudson Yards West Mezzanine LLC), and any other Person, in accordance with Section 6.1.

(b) No Commingling of Funds or Assets. The Company shall not commingle its funds or other assets with the funds or other assets of the Member, MTDC, any Affiliate, the Mezzanine Borrower, or any other Person, and shall maintain its assets and liabilities separately from those of any other Person. All

LIMITED LIABILITY COMPANY AGREEMENT
OF
HUDSON YARDS WEST MORTGAGE LLC
A Delaware Limited Liability Company
Dated as of __, 2025
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PREAMBLE
This Limited Liability Company Agreement (this "Agreement") of Hudson Yards West Mortgage LLC, a Delaware limited liability company (the "Company"), is made and entered into as of __, 2025, by Metropolitan Transit Development Corp., an Illinois government instrumentality ("MTDC" or the "Member"), as the sole member of the Company.
The Company was formed as a limited liability company under the laws of the State of Delaware by the filing of a Certificate of Formation (the "Certificate of Formation") with the Secretary of State of the State of Delaware on __, 2025, pursuant to and in accordance with the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq., as amended from time to time (the "Act"). This Agreement shall constitute the "limited liability company agreement" of the Company within the meaning of the Act, and all prior limited liability company agreements of the Company, if any, are hereby superseded in their entirety.
RECITALS
WHEREAS, the Company has been formed as a single-purpose, bankruptcy-remote entity for the purpose of acquiring, owning, financing, and operating certain real property located at 450 West 34th Street, New York, NY 10001 (Borough: Manhattan; Block: 729; Lots: 1, 5, 12, 15) (the "Property"), as more particularly described on Exhibit B attached hereto and incorporated herein by reference;
WHEREAS, the Company intends to obtain a senior mortgage loan in the principal amount of Four Hundred Seventy-Five Million Dollars ($475,000,000) (the "Mortgage Loan") from a syndicate of lenders led by Ironclad National Bank, N.A., a national banking association, as administrative agent (the "Agent"), pursuant to that certain Mortgage Loan Agreement of even date herewith (the "Mortgage Loan Agreement"), among the Company, the Agent, and the Lenders (as defined therein);
WHEREAS, the Member desires to set forth the terms and conditions governing the Company's affairs, including provisions designed to ensure the Company's status as a bankruptcy-remote, single-purpose entity as required by the Mortgage Loan Agreement and the other Mortgage Loan Documents (as defined herein);
WHEREAS, the Company will hold a leasehold interest under that certain Ground Lease dated June 1, 2020, between NYC Economic Development Corporation ("NYCEDC"), as ground lessor, and MTDC, as ground lessee (as assigned to the Company), recorded in the Office of the City Register of the City of New York at CRFN 2020000198762 (NYC ACRIS) (the "Ground Lease"); and
WHEREAS, the Member is the sole member of the Company and desires to adopt this Agreement to govern the affairs of the Company, the conduct of the Company's business, and the rights and obligations of the Member with respect thereto;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Member hereby agrees as follows:
ARTICLE I
DEFINITIONS
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, or is under common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") means the power, directly or indirectly, to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the foregoing, any Person that owns, directly or indirectly, ten percent (10%) or more of the outstanding equity interests of a Person shall be presumed to be an Affiliate of such Person.
"Agent" means Ironclad National Bank, N.A., a national banking association, in its capacity as administrative agent under the Mortgage Loan Agreement, and its successors and assigns in such capacity.
"Agreement" means this Limited Liability Company Agreement, as the same may be amended, modified, supplemented, or restated from time to time in accordance with the terms hereof.
"Available Cash" means, as of any date of determination, all cash and cash equivalents of the Company on hand as of such date, less (a) all amounts required to be retained by the Company under the Mortgage Loan Documents (including amounts held in reserve accounts, escrow accounts, and lockbox accounts), (b) all amounts necessary to pay or provide for the payment of the Company's current liabilities and obligations as and when due, (c) all amounts necessary to maintain adequate reserves for the Company's reasonably anticipated expenses and liabilities (including capital expenditure reserves, insurance reserves, and tax reserves), and (d) all amounts that the Member or the applicable Officer reasonably determines should be retained by the Company for working capital purposes.
"Bankruptcy" means (a) the filing of a voluntary petition under Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as amended from time to time (the "Bankruptcy Code"), or any similar federal, state, or foreign law relating to bankruptcy, insolvency, reorganization, moratorium, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to debts, (b) the filing of an involuntary petition against a Person under the Bankruptcy Code or any such similar law, (c) the making of a general assignment for the benefit of creditors, (d) the admission in writing by a Person of its inability to pay its debts generally as they become due, or (e) the appointment of a receiver, trustee, conservator, liquidator, assignee, custodian, sequestrator, or other similar official for a Person or for any substantial part of its property.
"Business Day" means any day other than a Saturday, Sunday, or other day on which banks in New York, New York, or Chicago, Illinois, are authorized or required by law to close.
"Certificate of Formation" means the Certificate of Formation of the Company as filed with the Secretary of State of the State of Delaware on __, 2025, as the same may be amended, restated, or supplemented from time to time in accordance with this Agreement and the Act.
"Closing Date" means the date of the initial funding of the Mortgage Loan under the Mortgage Loan Agreement.
"Company" means Hudson Yards West Mortgage LLC, a Delaware limited liability company.
"DSCR" means the debt service coverage ratio as defined in the Mortgage Loan Agreement.
"Fiscal Year" means the calendar year or such portion of the calendar year during which the Company is in existence.
"GMP Contract" means the Guaranteed Maximum Price Construction Contract No. CCG-HYW-2025-001 between the Company and Cobalt Construction Group, Inc., a New York corporation, as the same may be amended, modified, or supplemented from time to time.
"Ground Lease" means that certain Ground Lease dated June 1, 2020, between NYCEDC, as ground lessor, and MTDC, as ground lessee (as assigned to the Company), recorded in the Office of the City Register of the City of New York at CRFN 2020000198762 (NYC ACRIS), as the same may be amended, modified, or supplemented from time to time.
"Independent Director" has the meaning set forth in Section 5.8 of this Agreement.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute. References to specific sections of the Internal Revenue Code shall include any corresponding provisions of any successor statute.
"Lender" or "Lenders" means, collectively, the lenders party to the Mortgage Loan Agreement from time to time, which initially consist of Ironclad National Bank, N.A., Ridgeline Savings Bank, Atlas Mutual Insurance Company, Harborview Federal Savings Bank, and Meridian Pacific Bank, together with their respective successors and assigns.
"Material Action" has the meaning set forth in Section 5.9 of this Agreement.
"Member" means Metropolitan Transit Development Corp., an Illinois government instrumentality, and any successor or permitted assign that is admitted as a member of the Company in accordance with this Agreement.
"Mezzanine Borrower" means Hudson Yards West Mezzanine LLC, a Delaware limited liability company, which is the direct parent of the Company and which directly holds one hundred percent (100%) of the membership interest in the Company.
"Mezzanine Lender" means Granite Peak Capital Partners, LP, a Delaware limited partnership, and its successors and assigns.
"Mezzanine Loan" means the mezzanine loan in the principal amount of Two Hundred Million Dollars ($200,000,000) from the Mezzanine Lender to the Mezzanine Borrower, pursuant to the Mezzanine Loan Agreement.
"Mezzanine Loan Agreement" means that certain Mezzanine Loan Agreement of even date herewith between the Mezzanine Borrower and the Mezzanine Lender, as the same may be amended, modified, or supplemented from time to time.
"Mortgage Loan" means the senior mortgage loan in the principal amount of Four Hundred Seventy-Five Million Dollars ($475,000,000) from the Lenders to the Company pursuant to the Mortgage Loan Agreement.
"Mortgage Loan Agreement" means that certain Mortgage Loan Agreement dated as of the Closing Date among the Company, the Agent, and the Lenders, as the same may be amended, modified, supplemented, or restated from time to time.
"Mortgage Loan Documents" means the Mortgage Loan Agreement and all other documents, instruments, certificates, and agreements executed and delivered in connection therewith, including the mortgage, the note, the assignment of leases and rents, the environmental indemnity agreement, the guaranty, the completion guaranty, the pledge and security agreements, the lockbox agreement, the cash management agreement, the reserve agreements, and all other ancillary documents, as each may be amended, modified, supplemented, or restated from time to time.
"NYCEDC" means NYC Economic Development Corporation, a New York not-for-profit corporation.
"Officer" has the meaning set forth in Section 5.6 of this Agreement.
"Person" means any individual, corporation, limited liability company, partnership (general or limited), joint venture, association, trust, estate, unincorporated organization, government or any agency, instrumentality, or political subdivision thereof, or any other entity, whether acting in an individual, fiduciary, or other capacity.
"Property" means the real property located at 450 West 34th Street, New York, NY 10001 (Borough: Manhattan; Block: 729; Lots: 1, 5, 12, 15), together with all improvements, buildings, structures, and other constructions now or hereafter located thereon, all fixtures now or hereafter attached thereto, and all easements, rights-of-way, licenses, privileges, hereditaments, and appurtenances now or hereafter belonging or appertaining thereto, including the Company's leasehold interest under the Ground Lease, as more particularly described on Exhibit B attached hereto.
"Property Management Agreement" means the property management agreement between the Company and Evergreen Property Management LLC, a Delaware limited liability company, as the same may be amended, modified, or supplemented from time to time, with the prior written consent of the Agent to the extent required by the Mortgage Loan Documents.
"Separateness Covenants" has the meaning set forth in Section 8.2 of this Agreement.
"SPE" means a single purpose entity.
"Treasury Regulations" means the regulations promulgated under the Internal Revenue Code by the United States Department of the Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Mortgage Loan Agreement.
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 limitation."
(d) References to sections, articles, exhibits, and schedules shall refer to sections, articles, exhibits, and schedules of or to this Agreement, unless otherwise specified.
(e) References to any statute, law, or regulation shall include any amendments thereto and any successor statute, law, or regulation, and shall also include all rules and regulations promulgated thereunder, unless the context otherwise requires.
(f) All headings and captions contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of any provision hereof.
(g) References to "hereof," "herein," "hereby," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular provision hereof.
(h) References to any agreement or document shall mean such agreement or document as the same may be amended, modified, supplemented, or restated from time to time in accordance with its terms.
(i) Except as to matters relating to the formation, internal affairs, and dissolution of the Company (which shall be governed by the laws of the State of Delaware), this Agreement shall be interpreted and construed in accordance with the laws of the State of New York.
(j) The rule of construction that ambiguities shall be resolved against the drafter shall not apply to this Agreement.
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 of Formation, as filed and as it may be amended, is attached hereto as Exhibit A and incorporated herein by reference. The Member hereby ratifies and confirms the filing of the Certificate of Formation and all actions taken in connection with the formation of the Company prior to the date hereof.
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 then serving. All stationery, invoices, checks, purchase orders, contracts, and other written communications of the Company shall be in the name of the Company and shall not suggest that the Company is a division, department, or instrumentality of the Member, MTDC, or any Affiliate or other Person.
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 change the Company's registered office or registered agent at any time and from time to time in accordance with the Act; provided, however, that the Member shall provide at least ten (10) Business Days' prior written notice to the Agent of any such change. The Company shall continuously maintain a registered office and a registered agent in the State of Delaware as required by the Act.
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 correspondence and notices relating to the Member's oversight of the Company. The principal place of business may be changed from time to time by the Member upon not less than thirty (30) days' prior written notice to the Agent; provided that any such change shall not cause the Company to fail to comply with any of the Separateness Covenants.
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 shall occur without the prior unanimous written consent of all Independent Directors then serving and satisfaction of all conditions set forth therein. For the avoidance of doubt, neither the death, disability, dissolution, Bankruptcy, cessation of existence, retirement, resignation, or expulsion of the Member, nor the occurrence of any other event that, under the Act, would terminate the continued membership of the Member in the Company, shall cause the dissolution of the Company; the Company shall continue in existence following any such event in accordance with Section 10.2.
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, borrowing the Mortgage Loan, granting security interests and liens as contemplated by the Mortgage Loan Documents, and performing all obligations of the Company thereunder;
(c) entering into and performing under the Ground Lease, including the payment of ground rent and compliance with all covenants, conditions, and restrictions thereunder;
(d) entering into and performing under the GMP Contract (Guaranteed Maximum Price Construction Contract No. CCG-HYW-2025-001 with Cobalt Construction Group, Inc.) and all related project agreements, construction agreements, architectural and engineering agreements, and development agreements relating to the improvement and development of the Property;
(e) entering into and performing under the Property Management Agreement with Evergreen Property Management LLC for the management, operation, and leasing of the Property;
(f) opening and maintaining bank accounts, reserve accounts, escrow accounts, and lockbox accounts as required by this Agreement and the Mortgage Loan Documents;
(g) entering into and performing under insurance policies, service agreements, utility agreements, and other operational contracts necessary for the ownership, operation, and maintenance of the Property; and
(h) engaging in such other activities as are necessary, incidental, or ancillary to the foregoing.
The Company shall not engage in any business, activity, or transaction other than as set forth in this Section 2.6. Without limiting the foregoing, the Company shall not own any assets other than the Property and assets directly related thereto, and shall not acquire any real property other than the Property.
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 Material Actions as set forth in Section 5.9, (c) the terms, conditions, and restrictions of the Mortgage Loan Documents, and (d) the other terms and conditions of this Agreement.
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 maintain such qualification in good standing. All costs and expenses of such qualification shall be borne by the Company.
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 Company bank account designated by the Member in accordance with the requirements of the Mortgage Loan Documents. Additional capital required for the development, construction, and operation of the Property shall be contributed by the Member in accordance with the project budget approved under the Mortgage Loan Agreement and the equity-first requirements set forth therein. The Member acknowledges that, pursuant to the terms of the Mortgage Loan Agreement, equity contributions are required to be funded prior to draws on the Mortgage Loan.
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 overruns in excess of the contingency amounts set forth in the approved project budget, (b) replenishment of the interest reserve account if drawn below specified thresholds, (c) restoration of the Property following a casualty or condemnation event, and (d) satisfaction of the debt yield test or DSCR requirements set forth in the Mortgage Loan Agreement. In connection with the foregoing, the Member acknowledges that MTDC has been awarded a transit infrastructure grant from the New York City Transit Authority in the amount of Forty-Five Million Dollars ($45,000,000) (the "NYCTA Grant"), and the Member shall cause the proceeds of the NYCTA Grant to be deposited directly into the Company's accounts as and when received, in accordance with the disbursement requirements of the Mortgage Loan Documents. No additional capital contribution shall be deemed made until the funds are received in a Company bank account.
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 amount of cash and the fair market value of any property distributed by the Company to the Member and by all items of loss and deduction allocated to the Member. The capital account shall be maintained in compliance with the provisions of Section 704(b) of the Internal Revenue Code and the Treasury Regulations promulgated thereunder. For the avoidance of doubt, the maintenance of the capital account is intended solely for tax and accounting purposes and shall not give rise to any right of the Member to receive distributions except as expressly provided in this Agreement.
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 accordance with Section 4.2. No creditor of the Member shall have the right to attach, garnish, or otherwise reach the Member's capital account or the Company's assets, except as permitted by applicable law.
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 allocations (including qualified income offset allocations, minimum gain chargeback allocations, and partner nonrecourse deduction allocations) as are required to maintain the validity of the allocations under this Section 4.1 and to ensure that the allocations under this Agreement have substantial economic effect (or are deemed to be in accordance with the Member's interest in the Company). Because the Company has only a single member, all such special allocations shall ultimately be allocated to the Member.
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 requirements, and cash sweep provisions set forth therein (the Member acknowledges that the Mortgage Loan Agreement requires the maintenance of a hard lockbox and provides for a springing cash sweep that is triggered upon (i) the DSCR falling below 1.10x for two (2) consecutive calendar quarters, or (ii) the occurrence and continuance of an Event of Default (as defined in the Mortgage Loan Agreement));
(b) the maintenance of adequate reserves for the Company's reasonably anticipated expenses and liabilities, including operating expenses, capital expenditure reserves, ground rent, insurance premiums, real estate taxes, and debt service on the Mortgage Loan;
(c) the Separateness Covenants set forth in Section 8.2; and
(d) applicable law, including Section 18-607 of the Act (prohibiting distributions to the extent that, after giving effect thereto, the Company's liabilities would exceed the fair value of its assets).
All distributions shall be made in cash unless otherwise agreed by the Member and the Agent.
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) such distribution would violate any provision of the Act, including Section 18-607 thereof;
(c) such distribution would violate any term, condition, covenant, or restriction of the Mortgage Loan Documents, including any prohibition on distributions during the continuance of a cash sweep period or an Event of Default; or
(d) such distribution would cause the Company to fail to comply with any of the Separateness Covenants set forth in Section 8.2.
Any distribution made in violation of this Section 4.3 shall be subject to repayment by the Member to the extent required by applicable law.
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 event the Company is treated as a disregarded entity, all items of income, deduction, gain, loss, and credit of the Company shall be reported on the federal and applicable state and local income tax returns of the Member (MTDC EIN: 36-2847501). The Company shall obtain its own employer identification number (EIN) from the Internal Revenue Service upon or promptly following its formation. In the event the Member elects to have the Company classified as an association taxable as a corporation, or in the event the Company is otherwise required to file separate federal, state, or local income tax returns, such returns shall be prepared by Whitfield Albrecht & Co. LLP (or such other nationally recognized accounting firm as the Member may designate with prior written notice to the Agent) and filed on a timely basis. The Company shall bear the cost of preparation and filing of all such returns.
ARTICLE V
MANAGEMENT
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 specifically limited by this Agreement, the Mortgage Loan Documents, and applicable law. All references in this Agreement to actions by the "Member" shall mean actions taken by the Member acting through its duly authorized representatives. The Company shall not have a board of directors or board of managers (other than the Independent Directors serving in such capacity as set forth herein), and the Member shall perform the functions customarily performed by a board of managers of a Delaware limited liability company, subject to the Independent Director consent requirements set forth herein.
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, and notices on behalf of the Company, including the power and authority to:
(i) execute and deliver the Mortgage Loan Documents and perform all obligations of the Company thereunder;
(ii) execute and deliver the Ground Lease documents and perform all obligations of the Company thereunder;
(iii) execute and deliver the GMP Contract and related project agreements;
(iv) execute and deliver the Property Management Agreement;
(v) open and maintain bank accounts, reserve accounts, escrow accounts, and lockbox accounts on behalf of the Company;
(vi) employ or retain employees, agents, consultants, accountants, attorneys, and other professionals on behalf of the Company;
(vii) make expenditures and incur obligations on behalf of the Company in furtherance of the purposes set forth in Section 2.6;
(viii) bring and defend actions and proceedings on behalf of the Company;
(ix) file tax returns and other governmental filings on behalf of the Company;
(x) make distributions of Available Cash to the Member in accordance with Section 4.2; and
(xi) take such other actions as are necessary or appropriate to carry out the purposes of the Company as set forth in Section 2.6.
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 Development of MTDC; and
(d) Lydia Okafor, General Counsel of MTDC.
Each of the foregoing individuals shall have the authority, acting individually, to execute and deliver documents on behalf of the Company, unless this Agreement, the Mortgage Loan Documents, or the Member otherwise specifies that the signature of more than one authorized representative is required. The Member may add, remove, or replace authorized representatives by delivering written notice to the Agent, which notice shall include a specimen signature of each newly authorized representative. Such notice shall be effective upon actual receipt by the Agent or, if sent by nationally recognized overnight courier, on the Business Day following the date of dispatch. The Agent shall be entitled to rely on the most recent list of authorized representatives delivered by the Member and shall not be liable for acting in reliance thereon.
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 applicable law. Without limiting the foregoing, the Member hereby delegates to Connor McBride, serving as the Project Director for the development and construction of the Property, the authority to oversee day-to-day project management activities, including coordination with Cobalt Construction Group, Inc. under the GMP Contract, coordination with the project architect and engineers, and oversight of construction progress and budget compliance, in each case subject to the overall supervision and direction of the Member and the limitations set forth in this Agreement and the Mortgage Loan Documents.
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 exercise such care as an ordinarily prudent person in a like position would exercise under similar circumstances. Without limiting the foregoing, the Member and each Officer shall at all times act in a manner consistent with the Company's SPE status, the Separateness Covenants, and the requirements of the Mortgage Loan Documents. No Member or Officer shall take any action that such Person knows or should reasonably know would be inconsistent with such requirements.
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 the Agent. Officers shall have such duties, authorities, and responsibilities as may be delegated to them by the Member from time to time, subject at all times to the limitations of this Agreement, the Mortgage Loan Documents, and applicable law. No Officer shall have the authority to take any Material Action, and no Officer shall have the authority to bind the Company to any agreement, document, or instrument that would conflict with the SPE Covenants, the Mortgage Loan Documents, or the terms of this Agreement. The Member shall designate the initial Officers of the Company on or before the Closing Date and shall provide written notice to the Agent of the names, titles, and specimen signatures of all initial Officers promptly following such designation.
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 be void ab initio and of no force or effect. The Agent and the Lenders shall be entitled to rely on the absence of Independent Director consent as grounds for refusing to recognize or give effect to any purported Material Action.
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 replacement Independent Director within ten (10) Business Days in accordance with this Section 5.8, and no Material Action shall be authorized or taken during any period in which there are fewer than two (2) Independent Directors serving.
(b) Qualifications. Each Independent Director must be a natural person who satisfies all of the following qualifications:
(i) such person is not, and has not been at any time during the preceding five (5) years, a stockholder, director (other than as an independent director of a special purpose entity in a structured finance or commercial real estate finance transaction), officer, employee, partner, member, attorney, or counsel of the Company, the Member, MTDC, any Affiliate of the Member or the Company, the Mezzanine Borrower (Hudson Yards West Mezzanine LLC), or any Affiliate of any of the foregoing;
(ii) such person is not, and has not been at any time during the preceding five (5) years, a creditor, supplier, contractor, customer, or service provider (other than in such person's capacity as an independent director) of the Company, the Member, MTDC, any Affiliate, the Mezzanine Borrower, or any Affiliate of any of the foregoing;
(iii) such person is not a member of the immediate family (including spouse, parent, child, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law) of any individual described in clauses (i) or (ii) above;
(iv) such person is not a Person who controls (directly or indirectly) any entity described in clauses (i) or (ii) above;
(v) such person is provided by a nationally recognized independent director service provider (such as Hollowell Technologies, Pemberton Industries, National Registered Agents, or a comparable provider); and
(vi) such person has prior experience serving as an independent director or independent manager for special purpose entities in structured finance, securitization, or commercial real estate finance transactions.
(c) Term and Replacement. Each Independent Director shall serve until the earliest to occur of such Independent Director's resignation, removal, death, or legal incapacity. An Independent Director may resign by giving at least thirty (30) days' prior written notice to the Member, the Company, and the Agent. An Independent Director may be removed only with the consent of the Member and the prior written consent of the Agent. Upon any vacancy in the position of Independent Director, the Member shall, within ten (10) Business Days after such vacancy, appoint a successor Independent Director who satisfies all of the qualifications set forth in Section 5.8(b). The appointment of a successor Independent Director shall require the prior written consent of the Agent, which consent shall not be unreasonably withheld, conditioned, or delayed. The form of designation for any new Independent Director shall substantially conform to Exhibit D attached hereto.
(d) Compensation. Each Independent Director shall be entitled to receive reasonable compensation for his or her services in such amount as shall be agreed upon by the Member and such Independent Director, which compensation shall be paid by the Company as an operating expense. Such compensation shall not be contingent upon or related to the results of any vote or consent by such Independent Director with respect to any Material Action. The Company shall reimburse each Independent Director for all reasonable out-of-pocket expenses incurred in connection with the performance of his or her duties.
(e) Fiduciary Duties. Each Independent Director shall, in the performance of his or her duties, owe a fiduciary duty to the Company (including the Company's creditors) to consider the interests of the Company and its creditors as a whole, and not merely the interests of the Member or any Affiliate. Without limiting the foregoing, in considering whether to consent to any Material Action, each Independent Director shall take into account the interests of the Agent, the Lenders, and any other creditors of the Company. The foregoing fiduciary duty shall not be eliminated or limited by any provision of this Agreement or the Act, except to the extent expressly permitted by Section 18-1101(c) of the Act and only as consistent with the maintenance of the Company's bankruptcy-remote status.
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 hereafter in effect relating to bankruptcy, insolvency, reorganization, moratorium, arrangement, receivership, assignment for the benefit of creditors, or other similar relief with respect to debtors, or making a general assignment for the benefit of creditors, or admitting in writing the Company's inability to pay its debts generally as they become due;
(ii) seeking or consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official for the Company or for any substantial part of the Company's property;
(iii) dissolving, liquidating, consolidating, merging, or selling all or substantially all of the Company's assets;
(iv) amending, modifying, supplementing, restating, or waiving any provision of this Agreement (including the Certificate of Formation) in a manner that would be inconsistent with the SPE Covenants set forth in Section 8.2, the requirements of Article V relating to Independent Directors and Material Actions, or the requirements of the Mortgage Loan Documents;
(v) engaging in any business or activity other than as set forth in Section 2.6;
(vi) incurring any indebtedness, debt obligation, or guaranty other than as permitted by the Mortgage Loan Documents and Section 8.3;
(vii) forming, creating, or acquiring any subsidiary or other entity, or acquiring an equity interest in any other Person;
(viii) taking any action that would cause the Company to fail to satisfy any of the Separateness Covenants set forth in Section 8.2;
(ix) entering into any transaction with the Member, MTDC, or any Affiliate that is not on commercially reasonable terms and substantially similar to those that would be obtainable in an arm's-length transaction with an unrelated Person; and
(x) taking any other action that, under the terms of the Mortgage Loan Documents, requires the consent of the Independent Directors or is designated as a "Material Action" or "Springing Member Action" thereunder.
(b) Standard for Consent. Each Independent Director shall consider the interests of the Company and its creditors as a whole (including the interests of the Agent, the Lenders, and any holders of securitized interests in the Mortgage Loan) and shall not solely consider the interests of the Member, MTDC, or any Affiliate in determining whether to give or withhold consent to any Material Action. Each Independent Director shall exercise his or her independent judgment in good faith and shall not be subject to the direction or control of the Member, MTDC, or any Affiliate with respect to the determination of whether to consent to any Material Action.
(c) Unanimity Requirement. No Material Action shall be authorized, approved, or taken without the prior affirmative vote or written consent of each Independent Director then serving, regardless of whether any vacancy exists in the position of Independent Director at such time. For the avoidance of doubt, if at any time fewer than two (2) Independent Directors are serving, no Material Action may be taken until such time as at least two (2) qualified Independent Directors are serving and each has given his or her affirmative consent.
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 Mezzanine Borrower (Hudson Yards West Mezzanine LLC), and any other Person. Without limiting the generality of the foregoing, the Company shall maintain the following:
(a) its own general ledger, chart of accounts, and financial statements, prepared in accordance with generally accepted accounting principles consistently applied ("GAAP");
(b) its own bank accounts, reserve accounts, escrow accounts, and lockbox accounts, as more particularly described in Section 6.2;
(c) copies of the Certificate of Formation, this Agreement, and all amendments thereto;
(d) copies of all federal, state, and local tax returns and filings of the Company;
(e) minutes, records, or written consents reflecting all actions taken by the Member, the Officers, and the Independent Directors;
(f) copies of all Mortgage Loan Documents and all other material agreements, contracts, and instruments to which the Company is a party;
(g) records of all capital contributions made by the Member and all distributions made to the Member; and
(h) such other books and records as are required by the Act, applicable law, or the Mortgage Loan Documents.
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 accounts, escrow accounts, operating accounts, construction accounts, and lockbox accounts as are required under the Mortgage Loan Documents, including accounts maintained by or at the direction of the Agent. Authorized signatories on the Company's bank accounts shall be designated by the Member and shall include only Officers or authorized representatives of the Company or the Member, as applicable. All disbursements from the Company's accounts shall be made in the Company's name and for the Company's business purposes only.
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 Whitfield Albrecht & Co. LLP (or another nationally recognized independent public accounting firm approved by the Agent) in accordance with GAAP and accompanied by an unqualified opinion (or such other form of opinion as may be acceptable to the Agent under the Mortgage Loan Documents);
(b) Quarterly Unaudited Financial Statements. Within forty-five (45) days after the end of each fiscal quarter, quarterly unaudited financial statements of the Company, including a balance sheet, statement of operations, and statement of cash flows, prepared in accordance with GAAP, certified by an authorized Officer of the Company;
(c) Mortgage Loan Reporting. Such other financial reports, certificates, compliance reports, borrowing base certificates, construction progress reports, leasing reports, and other information as may be required by the Mortgage Loan Documents, at such times and in such form as set forth therein; and
(d) Other Reports. Such other reports and information as the Member, the Agent, or any Lender may reasonably request from time to time.
The Fiscal Year of the Company shall be the calendar year (January 1 through December 31).
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 foregoing, the Company shall file all other returns, reports, and declarations required by applicable law, including any required state or local income, franchise, or gross receipts tax returns in jurisdictions where the Company conducts business or owns property (including the State of New York and the City of New York). If the Company is required to file separate tax returns for any reason (including an election or a change in applicable law), such returns shall be prepared by Whitfield Albrecht & Co. LLP (or such other nationally recognized accounting firm as the Member may designate with prior written notice to the Agent) and shall be filed on a timely basis. All costs and expenses of tax preparation and filing shall be borne by the Company.
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 less than five (5) Business Days, except in the case of an Event of Default under the Mortgage Loan Agreement, in which case no prior notice shall be required). The Company shall cooperate with and provide reasonable access to any such Person and shall make its Officers, employees, and agents available to answer questions regarding the Company's affairs. The rights set forth in this Section 6.5 are in addition to, and not in limitation of, any inspection rights granted under the Act, the Mortgage Loan Documents, or applicable law.
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 previously returned) and the Member's share of the Company's undistributed profits and assets, except to the extent that (a) the Act imposes personal liability on a member under specified circumstances, (b) the Member has agreed to be personally liable pursuant to the terms of any guaranty, environmental indemnity agreement, completion guaranty, or other recourse document executed by the Member (or MTDC) in connection with the Mortgage Loan Documents, or (c) a court of competent jurisdiction pierces the limited liability veil of the Company under applicable law. For the avoidance of doubt, the Member acknowledges that MTDC has executed or will execute a guaranty of certain "bad boy" recourse carve-out obligations and an environmental indemnity agreement in connection with the Mortgage Loan, as set forth in the Mortgage Loan Documents, and that the limited liability provisions of this Section 7.1 shall not limit or affect MTDC's liability under such guaranty or environmental indemnity.
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, assessments, losses, liabilities, damages, judgments, fines, penalties, costs, and expenses (including reasonable attorneys' fees, accountants' fees, and court costs) arising out of, relating to, or in connection with the management or conduct of the Company's business and affairs or the performance of any duty, act, or omission by such Indemnified Person on behalf of the Company; provided, however, that no Indemnified Person shall be entitled to indemnification hereunder to the extent that such claims, losses, liabilities, damages, costs, or expenses are determined by a court of competent jurisdiction in a final, non-appealable judgment to have been caused by such Indemnified Person's gross negligence, willful misconduct, or fraud. The indemnification obligations of the Company under this Section 7.2 shall be subordinate in all respects to the Company's obligations under the Mortgage Loan Documents, and no indemnification payment shall be made if such payment would cause the Company to default under the Mortgage Loan Documents or violate any of the Separateness Covenants.
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 or relating to such Independent Director's service as an Independent Director of the Company, including any claim arising out of or relating to any Material Action or the Independent Director's consent or refusal to consent to any proposed Material Action; provided, however, that no Independent Director shall be entitled to indemnification hereunder to the extent that such claims, losses, liabilities, damages, costs, or expenses are determined by a court of competent jurisdiction in a final, non-appealable judgment to have been caused by such Independent Director's fraud or willful misconduct. The Company shall, to the fullest extent permitted by applicable law, advance expenses (including reasonable attorneys' fees) incurred by an Independent Director in defending any action, suit, or proceeding in advance of the final disposition of such action, suit, or proceeding, upon receipt of an undertaking by or on behalf of such Independent Director to repay such amount if it is ultimately determined that such Independent Director is not entitled to be indemnified hereunder. The Company shall maintain directors' and officers' liability insurance covering the Independent Directors in amounts and on terms reasonably acceptable to the Agent, if such insurance is available at commercially reasonable rates.
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 provisions of this Section 7.4 shall survive the resignation, removal, death, or incapacity of any Independent Director and the dissolution, liquidation, and termination of the Company.
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-remote entity, to reduce the risk of the Company being substantively consolidated with the Member, MTDC, any Affiliate, or any other Person in a bankruptcy or insolvency proceeding, and to ensure that the assets and liabilities of the Company are readily distinguishable from the assets and liabilities of any other Person. The provisions of this Article VIII shall be enforceable by the Agent, each Lender, and each holder of the Mortgage Loan (or any securitized interest therein, including any holder of a participation interest, co-lender interest, or certificate backed in whole or in part by the Mortgage Loan) as express third-party beneficiaries hereof, in accordance with their respective terms and Section 8.8. In the event of any conflict between the provisions of this Article VIII and any other provision of this Agreement, the provisions of this Article VIII shall control.
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 Mezzanine Borrower (Hudson Yards West Mezzanine LLC), and any other Person, in accordance with Section 6.1.
(b) No Commingling of Funds or Assets. The Company shall not commingle its funds or other assets with the funds or other assets of the Member, MTDC, any Affiliate, the Mezzanine Borrower, or any other Person, and shall maintain its assets and liabilities separately from those of any other Person. All