DEPOSIT ACCOUNT CONTROL AGREEMENT
Dated as of June 15, 2025
Among
HUDSON YARDS WEST MEZZANINE LLC, as Debtor
GRANITE PEAK CAPITAL PARTNERS, LP, as Secured Party
and
IRONCLAD NATIONAL BANK, N.A., as Depository Bank
Deposit Accounts Relating to the Mezzanine Loan Secured by Pledge of Membership Interests in Hudson Yards West Mortgage LLC
Project: Hudson Yards West — 450 West 34th Street, New York, New York 10001
CONFIDENTIAL TREATMENT REQUESTED
DEPOSIT ACCOUNT CONTROL AGREEMENT
This DEPOSIT ACCOUNT CONTROL AGREEMENT (this "Agreement") is entered into as of June 15, 2025, among:
(1) HUDSON YARDS WEST MEZZANINE LLC, a Delaware limited liability company (the "Debtor"), having its principal office at c/o Metropolitan Transit Development Corp., 200 South Michigan Avenue, Suite 3100, Chicago, Illinois 60604;
(2) GRANITE PEAK CAPITAL PARTNERS, LP, a Delaware limited partnership (the "Secured Party"), having its principal office at 9 West 57th Street, Suite 4200, New York, New York 10019; and
(3) IRONCLAD NATIONAL BANK, N.A., a national banking association duly chartered and existing under the laws of the United States of America pursuant to a charter granted by the Office of the Comptroller of the Currency (the "Depository Bank"), having its principal office at 277 Park Avenue, New York, New York 10172.
Debtor, Secured Party, and Depository Bank are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. Debtor maintains one or more deposit accounts at Depository Bank, as more particularly described on Exhibit A attached hereto and made a part hereof (each, a "Deposit Account" and collectively, the "Deposit Accounts"). Such Deposit Accounts were established and are maintained in connection with the transactions described in these Recitals and the agreements referenced herein.
B. Secured Party has made or committed to make a mezzanine loan to Debtor in the original principal amount of Two Hundred Million and 00/100 Dollars ($200,000,000.00) (the "Mezzanine Loan") pursuant to that certain Mezzanine Loan Agreement, dated as of the date hereof (as the same may be amended, restated, supplemented, replaced, or otherwise modified from time to time, the "Mezzanine Loan Agreement"), by and between Debtor, as borrower, and Secured Party, as lender. The Mezzanine Loan Agreement was negotiated on the basis of, among other things, that certain Mezzanine Loan Term Sheet, dated as of March 7, 2025, between representatives of Debtor and Secured Party.
C. The Mezzanine Loan is secured by, among other things, (i) a first-priority pledge of one hundred percent (100%) of the limited liability company membership interests in Hudson Yards West Mortgage LLC, a Delaware limited liability company (the "Mortgage Borrower"), which membership interests are owned directly and beneficially by Debtor, and (ii) a first-priority security interest in the Deposit Accounts and all funds, cash, cash equivalents, investment property, financial assets, and other amounts on deposit therein, credited thereto, or otherwise held in connection therewith, whether now existing or hereafter arising.
D. Secured Party has required, as a condition precedent to the making of the Mezzanine Loan and the disbursement of any proceeds thereof, that Debtor and Depository Bank enter into this Agreement in order to perfect Secured Party's security interest in the Deposit Accounts by "control" within the meaning of Section 9-104 of the Uniform Commercial Code as in effect in the State of New York (the "UCC"), and to establish the rights and obligations of the Parties with respect to the Deposit Accounts.
E. Depository Bank is willing to enter into this Agreement on the terms and conditions set forth herein, and acknowledges that Secured Party is entering into the Mezzanine Loan in reliance upon, among other things, Depository Bank's agreements and undertakings set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Article 1 shall have the meanings ascribed to them elsewhere in this Agreement, including in the Recitals, which are incorporated herein by reference.
"Activation Notice" means a written notice from Secured Party to Depository Bank, substantially in the form of Exhibit B attached hereto, instructing Depository Bank to comply exclusively with instructions originated by Secured Party with respect to the Deposit Accounts, without further consent of, or notice to, Debtor. An Activation Notice shall be effective upon receipt by Depository Bank in accordance with Article 9 hereof.
"Agreement" means this Deposit Account Control Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which banking institutions in the City of New York, State of New York, are authorized or required by law, regulation, or executive order to remain closed.
"Deposit Accounts" means each deposit account listed on Exhibit A hereto, as such Exhibit A may be supplemented or amended from time to time in accordance with the terms of this Agreement, and includes any successor, replacement, or renumbered account established in connection therewith, all sub-accounts thereof, and all funds, cash, cash equivalents, financial assets, investment property, and other amounts on deposit therein, credited thereto, or otherwise held in connection therewith from time to time.
"Entitlement Orders" has the meaning ascribed to such term in Section 8-102(a)(8) of the UCC.
"Mezzanine Loan" has the meaning set forth in Recital B.
"Mezzanine Loan Agreement" has the meaning set forth in Recital B. For purposes of reference, the Mezzanine Loan Agreement was negotiated based on the mezzanine term sheet dated March 7, 2025, and the final Mezzanine Loan Agreement is dated as of June 15, 2025.
"Mezzanine Loan Documents" means, collectively, the Mezzanine Loan Agreement, the Mezzanine Pledge and Security Agreement dated as of the date hereof by Debtor in favor of Secured Party, the Mezzanine Promissory Note dated as of the date hereof in the original principal amount of $200,000,000.00, all UCC-1 financing statements filed or to be filed in connection with the Mezzanine Loan, this Agreement, and all other documents, instruments, agreements, and certificates executed and delivered by Debtor or any other person in connection with the Mezzanine Loan, in each case as the same may be amended, restated, supplemented, replaced, or otherwise modified from time to time, as such term is more fully defined in the Mezzanine Loan Agreement.
"Mortgage Borrower" has the meaning set forth in Recital C.
"Permitted Transactions" means debits, withdrawals, transfers, and other transactions directed by Debtor that Depository Bank is permitted to honor with respect to the Deposit Accounts prior to Depository Bank's receipt of an Activation Notice, subject to the terms and conditions set forth in Article 3 of this Agreement.
"Secured Obligations" means all present and future indebtedness, obligations, and liabilities of Debtor to Secured Party arising under or in connection with the Mezzanine Loan Documents, whether now existing or hereafter arising, whether direct or indirect, absolute or contingent, joint or several, due or to become due, including, without limitation, all unpaid principal of the Mezzanine Loan, all accrued and unpaid interest thereon (at the fixed rate of eleven and one-half percent (11.50%) per annum, or at the default rate, as applicable), all fees, late charges, prepayment premiums (if any), costs, expenses (including reasonable attorneys' fees and disbursements), and all indemnification obligations, in each case as more fully set forth in the Mezzanine Loan Documents.
"Termination Notice" means a written notice from Secured Party to Depository Bank, substantially in the form of Exhibit C attached hereto, authorizing the termination of this Agreement in accordance with Article 10 hereof.
"UCC" means the Uniform Commercial Code as adopted and in effect from time to time in the State of New York.
Section 1.2 — UCC Terms. Unless otherwise defined herein, terms used in this Agreement that are defined in the UCC (including, without limitation, Articles 8 and 9 thereof) shall have the meanings assigned to them in the UCC.
Section 1.3 — Rules of Construction. In this Agreement, unless the context otherwise requires: (a) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation" and shall not be construed to limit any general statement that they follow to the specific or similar items or matters immediately following them; (b) headings and captions are inserted for convenience of reference only and shall not affect the interpretation or construction of this Agreement; (c) the singular includes the plural, and the plural includes the singular; (d) the word "or" is not exclusive; (e) the words "herein," "hereof," "hereby," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular provision hereof; (f) references to "Articles," "Sections," "Exhibits," and "Schedules" are to Articles and Sections of, and Exhibits and Schedules to, this Agreement, unless the context otherwise requires; (g) references to any agreement, document, or instrument mean such agreement, document, or instrument as amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms and, where applicable, the terms of the Mezzanine Loan Documents; and (h) references to any statute or regulation mean such statute or regulation as amended, modified, codified, replaced, or reenacted, in whole or in part, and in effect from time to time, including any successor legislation and all rules and regulations promulgated thereunder.
ARTICLE 2 — THE DEPOSIT ACCOUNTS
Section 2.1 — Identification of Deposit Accounts. Debtor and Depository Bank hereby confirm that Debtor has established and maintains at Depository Bank the Deposit Accounts identified on Exhibit A attached hereto. As of the date hereof, the Deposit Accounts shall include, at minimum, each of the following:
(a) the Mezzanine Operating Account, being a demand deposit (checking) account used for the receipt and disbursement of funds in the ordinary course of Debtor's business operations;
(b) the Mezzanine Debt Service Reserve Account, being a money market or savings account used for the deposit and maintenance of reserves required under the Mezzanine Loan Agreement for the payment of debt service on the Mezzanine Loan; and
(c) the Mezzanine Interest Reserve Account, being a money market or savings account used for the deposit and maintenance of interest reserves as required under the Mezzanine Loan Agreement.
The account numbers, account titles, account types, and other identifying information for each Deposit Account are set forth on Exhibit A. The Parties acknowledge that Exhibit A may be supplemented from time to time by a written instrument executed by all three Parties to add additional deposit accounts established by Debtor at Depository Bank, which additional accounts shall thereupon become "Deposit Accounts" for all purposes under this Agreement.
Section 2.2 — Acknowledgment of Security Interest. Depository Bank hereby acknowledges and confirms each of the following:
(a) Depository Bank has been informed, and hereby acknowledges, that Secured Party claims a first-priority security interest in the Deposit Accounts and in all funds, cash, cash equivalents, investment property, financial assets, and other amounts now or hereafter on deposit therein, credited thereto, or otherwise held in connection therewith;
(b) This Agreement is intended to, and does, establish "control" by Secured Party over the Deposit Accounts within the meaning of Section 9-104(a)(2) of the UCC, and the Parties intend that Secured Party's security interest in the Deposit Accounts shall be perfected by such control;
(c) This Agreement constitutes a "deposit account control agreement" for purposes of Article 9 of the UCC, and Depository Bank agrees to be bound by and perform its obligations hereunder in accordance with the terms hereof; and
(d) Depository Bank has not received, and as of the date hereof does not have, any notice of any competing claim to or security interest in the Deposit Accounts other than the security interest of Secured Party described herein.
Section 2.3 — No Other Control Agreements. Depository Bank represents, warrants, and covenants that it has not entered into, and will not enter into, any other agreement, arrangement, or understanding with any third party (including, without limitation, any other lender, creditor, or secured party) pursuant to which Depository Bank has agreed, or will agree, to comply with instructions, entitlement orders, or directions of such third party with respect to the Deposit Accounts or the funds therein, except as may be expressly permitted by Secured Party in a written instrument signed by an authorized representative of Secured Party. For the avoidance of doubt, the standard depository account agreements between Debtor and Depository Bank governing the operation of the Deposit Accounts do not constitute "control agreements" or agreements of the type described in this Section 2.3, provided that such standard depository account agreements are subject to the terms of Section 11.7 hereof in the event of any conflict.
Section 2.4 — Maintenance of Accounts. Debtor shall not close, relocate, transfer, or re-title any Deposit Account, or cause or permit any Deposit Account to be merged with or converted into any other account, without the prior written consent of Secured Party. If any Deposit Account is renumbered by Depository Bank for operational or regulatory reasons, or if any replacement or successor account is established at Depository Bank in lieu of or in addition to an existing Deposit Account, such renumbered, replacement, or successor account shall automatically and without further action become a "Deposit Account" subject to this Agreement, and Debtor shall promptly (and in any event within five (5) Business Days): (i) amend Exhibit A hereto to reflect such change; (ii) deliver to Secured Party a written notice identifying the new or changed account; and (iii) execute and deliver any additional documentation, instruments, or agreements reasonably requested by Secured Party to maintain the perfection of Secured Party's security interest in such account by control under the UCC.
ARTICLE 3 — CONTROL; INSTRUCTIONS PRIOR TO ACTIVATION
Section 3.1 — Debtor's Rights Prior to Activation. Until such time as Depository Bank shall have received an Activation Notice from Secured Party in accordance with Article 4 hereof, Depository Bank shall continue to comply with instructions originated by Debtor with respect to the Deposit Accounts, and Debtor shall be permitted to engage in Permitted Transactions, including, without limitation:
(a) issuing checks, drafts, and other negotiable instruments drawn on the Deposit Accounts;
(b) initiating and authorizing wire transfers, Automated Clearing House ("ACH") debits and credits, and other electronic fund transfers from the Deposit Accounts;
(c) withdrawing funds from the Deposit Accounts by any means permitted under Depository Bank's standard account agreements;
(d) transferring funds among the Deposit Accounts or to other accounts of Debtor maintained at Depository Bank; and
(e) engaging in such other banking transactions with respect to the Deposit Accounts as are customary in the ordinary course of Debtor's business and consistent with the terms of the Mezzanine Loan Documents.
Nothing in this Section 3.1 shall be construed to limit or restrict Secured Party's rights under Section 3.2 of this Agreement, which rights exist and are exercisable at all times regardless of whether an Activation Notice has been delivered.
Section 3.2 — Secured Party's Right to Originate Instructions at All Times. At all times during the term of this Agreement, both before and after the delivery of an Activation Notice, Depository Bank shall comply with instructions originated by Secured Party directing the disposition of funds in the Deposit Accounts, without further consent of Debtor and without any requirement that Debtor be notified of or approve such instructions. Such instructions may include, without limitation:
(a) directions to transfer all or any portion of the funds on deposit in any one or more of the Deposit Accounts to one or more accounts designated by Secured Party at any financial institution specified by Secured Party;
(b) directions to wire funds to a specified recipient or account;
(c) directions to hold funds and refrain from honoring any particular instruction of Debtor; and
(d) any other instruction regarding the disposition, application, or retention of funds in the Deposit Accounts.
Debtor hereby irrevocably and unconditionally consents to Depository Bank's compliance with any and all such instructions originated by Secured Party, and Debtor acknowledges that Depository Bank shall have no liability to Debtor for complying with any such instruction. This consent shall not be subject to revocation or modification by Debtor and shall remain in full force and effect until this Agreement is terminated in accordance with Article 10 hereof.
Section 3.3 — No Duty to Investigate. Depository Bank shall have no obligation or duty to inquire into or investigate:
(a) whether Secured Party is entitled to deliver an Activation Notice, or whether the circumstances giving rise to the delivery of an Activation Notice have in fact occurred, including, without limitation, whether a "Default" or "Event of Default" (as such terms may be defined in the Mezzanine Loan Documents) has occurred and is continuing;
(b) whether Secured Party is entitled to originate any particular instruction with respect to the Deposit Accounts, or whether any conditions precedent to Secured Party's exercise of its rights under this Agreement have been satisfied;
(c) the existence or absence of any default, event of default, or other condition under any of the Mezzanine Loan Documents or any other agreement between Debtor and Secured Party; or
(d) the sufficiency, accuracy, or validity of any notice, certificate, instruction, or other instrument delivered to Depository Bank pursuant to or in connection with this Agreement.
Depository Bank shall be entitled to rely conclusively on any instruction, Activation Notice, Termination Notice, or other communication that Depository Bank believes in good faith to be genuine and to have been signed or delivered by an authorized representative of the Party purporting to have given or delivered the same. Depository Bank shall incur no liability for any action taken or omitted to be taken in good faith reliance upon any such instruction, notice, or communication.
ARTICLE 4 — ACTIVATION NOTICE; EXCLUSIVE CONTROL
Section 4.1 — Delivery of Activation Notice. Secured Party may, at any time and in its sole and absolute discretion, deliver an Activation Notice to Depository Bank. It shall not be a condition to the delivery or effectiveness of an Activation Notice that any "Default" or "Event of Default" (as such terms may be defined in the Mezzanine Loan Documents) has occurred and is continuing, and Depository Bank shall not require any evidence or certification from Secured Party regarding the occurrence of any such default or event of default. The Activation Notice shall be in writing, shall be substantially in the form of Exhibit B attached hereto, shall be signed by an authorized representative of Secured Party, and shall be delivered to Depository Bank in accordance with the notice provisions set forth in Article 9 of this Agreement.
Section 4.2 — Effect of Activation Notice. Upon Depository Bank's receipt of an Activation Notice delivered in accordance with Section 4.1:
(a) Depository Bank shall immediately cease complying with any and all instructions originated by Debtor or any person acting on behalf of Debtor with respect to the Deposit Accounts, including, without limitation, any standing instructions, automatic transfers, recurring ACH debits, or other pre-authorized transactions previously established by Debtor;
(b) Depository Bank shall comply solely and exclusively with instructions of Secured Party regarding the Deposit Accounts, including instructions regarding the transfer, withdrawal, application, or other disposition of funds in the Deposit Accounts;
(c) Depository Bank shall not honor any check, draft, wire transfer request, ACH debit, withdrawal slip, electronic funds transfer instruction, or other item or order presented by or on behalf of Debtor with respect to the Deposit Accounts, nor shall Depository Bank permit any withdrawal, transfer, or other disposition of funds from the Deposit Accounts at the direction of Debtor, in each case without the prior written authorization of Secured Party;
(d) Depository Bank shall, promptly upon receipt of a written request from Secured Party, transfer or otherwise dispose of all or any portion of the funds on deposit in the Deposit Accounts in accordance with Secured Party's written instructions, including, without limitation, by wire transfer to one or more accounts designated by Secured Party; and
(e) Depository Bank shall take such other actions with respect to the Deposit Accounts as Secured Party may reasonably direct in writing, to the extent consistent with applicable law and the terms of this Agreement.
Section 4.3 — No Obligation to Reactivate Debtor Access. Once an Activation Notice has been delivered to Depository Bank, Depository Bank shall have no obligation to, and shall not, reinstate, restore, or reactivate Debtor's ability to direct dispositions from the Deposit Accounts or to engage in any transactions with respect to the Deposit Accounts unless and until Depository Bank receives explicit written instructions from Secured Party directing Depository Bank to reinstate such access. Any such reinstatement shall be on such terms and conditions as Secured Party may specify in its written instructions.
Section 4.4 — Debtor Acknowledgment. Debtor hereby acknowledges and agrees that:
(a) The delivery of an Activation Notice by Secured Party is within the sole and absolute discretion of Secured Party, and Secured Party shall have no obligation to provide notice to or obtain the consent of Debtor prior to delivering an Activation Notice;
(b) Depository Bank is entitled and obligated to comply with an Activation Notice upon receipt thereof, and Depository Bank shall have no liability or responsibility to Debtor for taking any action, or refraining from taking any action, in compliance with Article 4 of this Agreement;
(c) Debtor shall have no claim, cause of action, or right of set-off against Depository Bank for complying with this Article 4, including, without limitation, any claim for wrongful dishonor of any check, draft, or other item, or for failure to process any wire transfer, ACH debit, or other transaction directed by Debtor; and
(d) Debtor's rights and remedies with respect to the delivery of an Activation Notice, if any, are solely against Secured Party and are governed exclusively by the Mezzanine Loan Documents.
ARTICLE 5 — SUBORDINATION OF DEPOSITORY BANK'S RIGHTS
Section 5.1 — Subordination of Liens and Set-Off. Depository Bank hereby irrevocably and unconditionally subordinates to the security interest of Secured Party in the Deposit Accounts:
(a) any and all present or future security interests, liens, encumbrances, claims, or rights of set-off that Depository Bank may have in, to, or with respect to the Deposit Accounts or any funds therein, whether arising by agreement, operation of law, or otherwise; and
(b) any banker's lien, right of recoupment, counterclaim, or similar right that Depository Bank may have with respect to the Deposit Accounts or the funds therein, whether arising under common law, statute, regulation, or any agreement between Debtor and Depository Bank.
Without limiting the generality of the foregoing, Depository Bank shall not exercise, assert, or enforce any right of set-off, recoupment, banker's lien, security interest, or similar right against the Deposit Accounts or any funds therein without the prior written consent of Secured Party, except for the following limited exceptions:
(i) Depository Bank may debit the applicable Deposit Account for Depository Bank's customary and reasonable fees, charges, and expenses for the establishment, maintenance, and operation of the Deposit Accounts as described in Section 5.2 of this Agreement, solely to the extent not otherwise paid by Debtor within the time periods specified therein; and
(ii) Depository Bank may exercise its rights with respect to the return or charge-back of items deposited in the Deposit Accounts that are not finally collected, in accordance with Depository Bank's standard account agreements and applicable law.
Section 5.2 — Depository Bank Fees. Debtor shall pay all fees, charges, and expenses of Depository Bank in connection with the establishment, maintenance, administration, and operation of the Deposit Accounts, including, without limitation, all service charges, transaction fees, wire transfer fees, and other customary banking fees, in accordance with Depository Bank's standard fee schedule as in effect from time to time. A current copy of such fee schedule has been provided to Secured Party. Depository Bank shall provide Debtor and Secured Party with reasonable prior notice of any material changes to such fee schedule. If Debtor fails to pay any such fees, charges, or expenses within thirty (30) days after Depository Bank delivers a billing statement to Debtor, Depository Bank may debit the applicable Deposit Account for the amount of such unpaid fees, charges, or expenses. For the avoidance of doubt, Debtor's obligation to pay Depository Bank's fees, charges, and expenses shall constitute an unsecured obligation of Debtor and shall not be secured by the Deposit Accounts or any funds therein. Nothing in this Section 5.2 shall be construed to create a priority claim by Depository Bank against the funds in the Deposit Accounts that is superior to or on parity with the security interest of Secured Party, except to the limited extent expressly provided in Section 5.1(i) above.
ARTICLE 6 — STATEMENTS AND REPORTING
Section 6.1 — Duplicate Statements. Depository Bank shall deliver to Secured Party, concurrently with delivery to Debtor (or as promptly thereafter as reasonably practicable), duplicate copies of all periodic account statements, transaction advices, notices, and other correspondence relating to the Deposit Accounts. Such duplicate statements and correspondence shall be delivered to Secured Party by electronic transmission (including by email to such email address as Secured Party may designate from time to time in accordance with Article 9 hereof), or, if electronic transmission is not available or is not practicable, by United States mail, first class, postage prepaid, to the Secured Party's address set forth in Article 9 of this Agreement. Secured Party may, by written notice to Depository Bank, request that such statements be delivered by a specific method or on a specific schedule, and Depository Bank shall use commercially reasonable efforts to accommodate such requests.
Section 6.2 — Balance Inquiries. Depository Bank shall promptly respond to reasonable inquiries from Secured Party (or Secured Party's authorized representatives) regarding the current balance of, or recent transactions in, the Deposit Accounts. Depository Bank shall provide such information by telephone, email, or other means reasonably acceptable to Secured Party, subject to Depository Bank's standard verification and security procedures for balance inquiries. Depository Bank may provide Secured Party with online or electronic access to the Deposit Accounts on a view-only basis, if available and if requested by Secured Party, subject to the execution of Depository Bank's standard electronic banking agreements and compliance with Depository Bank's applicable security protocols.
Section 6.3 — Notice of Legal Process. Depository Bank shall promptly (and in any event within two (2) Business Days) notify Secured Party in writing if Depository Bank receives any writ of attachment, garnishment, levy, restraining notice, court order, subpoena, summons, regulatory directive, tax levy, or similar legal process or governmental action affecting any Deposit Account or the funds therein. Such notice shall include a copy of such legal process or governmental action, to the extent that Depository Bank is permitted by applicable law to provide the same. Depository Bank shall comply with any such legal process or governmental action to the extent required by applicable law, but shall not voluntarily release funds from the Deposit Accounts in response to any such legal process or governmental action without first providing Secured Party with reasonable prior notice and an opportunity to contest or respond to such legal process or governmental action, to the extent practicable under the circumstances.
ARTICLE 7 — REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 7.1 — Representations and Warranties of Debtor. Debtor hereby represents and warrants to Secured Party and Depository Bank, as of the date hereof, as follows:
(a) Organization and Existence. Debtor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Debtor is a single-purpose entity formed for the sole purpose of owning one hundred percent (100%) of the limited liability company membership interests in Hudson Yards West Mortgage LLC and engaging in activities incidental thereto, and Debtor has not engaged in any business or activity other than as permitted under its organizational documents and the Mezzanine Loan Documents.
(b) Power and Authority. Debtor has full limited liability company power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement by Debtor have been duly authorized by all necessary limited liability company action on the part of Debtor and its sole member.
(c) Ownership of Deposit Accounts. Debtor is the sole and exclusive owner of the Deposit Accounts and all funds, cash, cash equivalents, and other amounts on deposit therein or credited thereto, free and clear of all liens, claims, security interests, and encumbrances of any kind or nature, other than the security interest of Secured Party arising under the Mezzanine Loan Documents and this Agreement.
(d) Legal Name and Identification. Debtor's exact legal name, as it appears on its certificate of formation filed with the Secretary of State of the State of Delaware, is "Hudson Yards West Mezzanine LLC." Debtor's employer identification number (EIN) is 93-4781206, and its organizational identification number as reflected on its certificate of formation filed with the Secretary of State of the State of Delaware is 7295831.
(e) Completeness of Exhibit A. Exhibit A hereto accurately and completely identifies all deposit accounts maintained by Debtor at Depository Bank as of the date hereof. Debtor does not maintain any other deposit accounts at Depository Bank that are not listed on Exhibit A.
(f) No Conflict. The execution, delivery, and performance of this Agreement by Debtor do not and will not: (i) violate or conflict with Debtor's Certificate of Formation or Limited Liability Company Agreement, each as amended to date; (ii) violate any applicable federal, state, or local law, rule, regulation, order, judgment, or decree binding on Debtor; or (iii) conflict with, result in a breach of, or constitute a default under any indenture, loan agreement, mortgage, deed of trust, security agreement, or other material agreement or instrument to which Debtor is a party or by which Debtor or any of its assets is bound, other than the Mezzanine Loan Documents.
Section 7.2 — Representations and Warranties of Depository Bank. Depository Bank hereby represents and warrants to Secured Party and Debtor, as of the date hereof, as follows:
(a) Organization and Existence. Depository Bank is a national banking association duly organized, validly existing, and in good standing under the laws of the United States of America, chartered by the Office of the Comptroller of the Currency, with its headquarters and main office located in New York, New York.
(b) Power and Authority. Depository Bank has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement by Depository Bank have been duly authorized by all necessary corporate action on the part of Depository Bank.
(c) Establishment of Deposit Accounts. The Deposit Accounts have been duly established at Depository Bank as set forth on Exhibit A hereto and are maintained in the name of Debtor. Each Deposit Account is an active, open account in good standing at Depository Bank as of the date hereof.
(d) No Other Control Agreements. Depository Bank has not entered into any other deposit account control agreement, blocked account agreement, springing lien agreement, or similar agreement with any third party with respect to the Deposit Accounts, and no other person (other than Debtor, in its capacity as account holder) has "control" (as defined in UCC § 9-104) over the Deposit Accounts.
(e) Deposit Accounts Under the UCC. The Deposit Accounts are "deposit accounts" as defined in Section 9-102(a)(29) of the UCC, and Depository Bank is the "bank" at which the Deposit Accounts are maintained within the meaning of Section 9-104 of the UCC. Depository Bank's jurisdiction for purposes of Section 9-304 of the UCC is the State of New York.
Section 7.3 — Covenants of Debtor. Debtor hereby covenants and agrees with Secured Party and Depository Bank as follows:
(a) No Additional Liens. Debtor shall not grant, create, permit, or suffer to exist any security interest, lien, encumbrance, or other claim of any kind in or with respect to the Deposit Accounts or any funds therein, other than the security interest of Secured Party, without the prior written consent of Secured Party.
(b) No Changes to Accounts. Debtor shall not change the name, title, form, or type of any Deposit Account, or change the authorized signatories on any Deposit Account, without the prior written consent of both Secured Party and Depository Bank.
(c) Notice of Changes. Debtor shall promptly (and in any event within five (5) Business Days) notify Secured Party in writing of any change in: (i) Debtor's exact legal name; (ii) Debtor's state of organization; (iii) Debtor's organizational identification number; (iv) Debtor's employer identification number (EIN); or (v) Debtor's principal office address.
(d) No Other Deposit Accounts. Debtor shall not open, establish, or maintain any deposit account at any financial institution other than Depository Bank without simultaneously entering into a deposit account control agreement with respect to such account in form and substance satisfactory to Secured Party, and delivering a fully executed original of such deposit account control agreement to Secured Party, in each case as a condition precedent to the opening of such account.
(e) Further Assurances. Debtor shall, from time to time, at the reasonable request of Secured Party, execute and deliver such additional documents, instruments, and agreements, and take such additional actions, as may be necessary or desirable to maintain, preserve, and protect the security interest of Secured Party in the Deposit Accounts and the perfection thereof by control under the UCC.
ARTICLE 8 — DEPOSITORY BANK PROTECTIONS
Section 8.1 — Standard of Care. Depository Bank shall have no liability to Debtor, Secured Party, or any other person under or in connection with this Agreement, except for losses that are directly and proximately caused by Depository Bank's own gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable judgment. Without limiting the generality of the foregoing, Depository Bank shall not be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of or in connection with this Agreement, regardless of the form of action and whether or not Depository Bank has been advised of the possibility of such damages.
Section 8.2 — No Duty to Monitor. Depository Bank shall have no duty, obligation, or responsibility to:
(a) monitor, investigate, or determine the use or application of funds deposited in, withdrawn from, or transferred to or from the Deposit Accounts;
(b) determine, verify, or inquire into the occurrence or non-occurrence of any "Default," "Event of Default," or other event or condition under the Mezzanine Loan Agreement or any other Mezzanine Loan Document;
(c) monitor or verify Debtor's compliance with any covenant, representation, warranty, or other obligation under the Mezzanine Loan Documents; or
(d) take any action with respect to the Deposit Accounts or the funds therein except as expressly required by the terms of this Agreement, and Depository Bank may conclusively assume, in the absence of receipt of an Activation Notice, that Debtor is entitled to direct the disposition of funds in the Deposit Accounts.
Section 8.3 — Reliance. Depository Bank shall be entitled to rely, and shall be fully protected in relying, upon any notice, instruction, certificate, instrument, request, direction, or other communication delivered to Depository Bank hereunder that Depository Bank in good faith believes to be genuine and to have been signed, given, or delivered by the proper person or persons. Depository Bank shall have no obligation to verify or confirm the identity or authority of any person purporting to deliver an instruction or notice on behalf of Debtor or Secured Party, provided that Depository Bank complies with its standard verification and authentication procedures then in effect. Depository Bank may consult with legal counsel (including in-house counsel) concerning any matter arising under or in connection with this Agreement, and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the advice of such counsel.
Section 8.4 — Indemnification.
(a) Debtor's Indemnification of Depository Bank. Debtor shall indemnify, defend, and hold harmless Depository Bank and its directors, officers, employees, agents, and representatives (each, a "Depository Bank Indemnified Party") from and against any and all claims, actions, suits, proceedings, liabilities, losses, damages, judgments, costs, and expenses (including, without limitation, reasonable attorneys' fees and disbursements) arising out of, relating to, or in connection with this Agreement or Depository Bank's compliance with the terms hereof, including, without limitation, any action taken or omitted to be taken by Depository Bank in reliance upon any instruction, Activation Notice, Termination Notice, or other communication delivered hereunder, except to the extent that such claims, liabilities, losses, damages, costs, or expenses are determined by a court of competent jurisdiction in a final, non-appealable judgment to have resulted directly from Depository Bank's own gross negligence or willful misconduct. This indemnification obligation shall be a general, unsecured obligation of Debtor and shall not be limited by the amount of funds on deposit in the Deposit Accounts.
(b) Secured Party's Limited Indemnification of Depository Bank. Secured Party shall have no indemnification obligation to Depository Bank or any Depository Bank Indemnified Party, except to the extent that Depository Bank or any Depository Bank Indemnified Party suffers losses that are determined by a court of competent jurisdiction in a final, non-appealable judgment to have resulted directly from Secured Party's own gross negligence or willful misconduct in connection with the delivery of instructions to Depository Bank under this Agreement. In no event shall Secured Party be liable to Depository Bank for indirect, consequential, special, punitive, or exemplary damages.
Section 8.5 — No Fiduciary Duty. Depository Bank acts hereunder solely in its capacity as a depository bank maintaining the Deposit Accounts, and not as a trustee, fiduciary, escrow agent, custodian, or agent for either Debtor or Secured Party. Nothing in this Agreement shall be construed to create any fiduciary relationship between Depository Bank and either Debtor or Secured Party, and Depository Bank owes no duties to Debtor or Secured Party other than those expressly set forth in this Agreement.
Section 8.6 — Adverse Claims; Interpleader. If at any time Depository Bank receives conflicting, inconsistent, or contradictory demands, instructions, or claims with respect to the Deposit Accounts or the funds therein (whether from Debtor, Secured Party, or any third party), Depository Bank may, in its sole discretion and without liability to any person, take one or more of the following actions:
(a) comply with instructions of Secured Party (and, after delivery of an Activation Notice, comply exclusively with instructions of Secured Party), in accordance with the terms of this Agreement;
(b) refuse to comply with any instruction or demand until the conflict is resolved to Depository Bank's reasonable satisfaction, whether by mutual agreement of the disputing parties, by court order, or otherwise; or
(c) deposit or interplead all or any portion of the funds held in the Deposit Accounts into a court of competent jurisdiction in the Borough of Manhattan, City of New York, and thereupon be relieved and discharged of all further obligations and liabilities with respect to such interpleaded funds.
In the event that Depository Bank interpleads funds pursuant to clause (c) above, Depository Bank shall be entitled to recover its reasonable costs and expenses, including reasonable attorneys' fees and court costs, from the interpleaded funds or from the parties to the dispute, as the court may direct.
Section 8.7 — FDIC Insurance; No Investment Obligation. Debtor and Secured Party acknowledge that funds on deposit in the Deposit Accounts are subject to the insurance limitations of the Federal Deposit Insurance Corporation ("FDIC"), and that Depository Bank makes no representation or warranty regarding the availability, amount, or adequacy of FDIC insurance coverage with respect to the funds in the Deposit Accounts. Depository Bank shall have no obligation to invest or reinvest any funds on deposit in the Deposit Accounts, and funds shall remain on deposit in the form and type of account specified on Exhibit A, unless Debtor and Depository Bank separately agree in writing to a different arrangement, subject to the prior written consent of Secured Party.
ARTICLE 9 — NOTICES
Section 9.1 — Method of Delivery. All notices, demands, requests, instructions, Activation Notices, Termination Notices, consents, approvals, and other communications required or permitted to be given under this Agreement (each, a "Notice") shall be in writing and shall be deemed to have been duly given and received:
(a) upon actual receipt, if delivered by hand or personal delivery to the Party at the address specified below;
(b) one (1) Business Day after deposit with a nationally recognized overnight courier service (such as FedEx or Harborline Partners LLC) for next-Business-Day delivery, charges prepaid, addressed to the Party at the address specified below;
(c) upon confirmed transmission, if sent by electronic mail (with a PDF attachment of the signed notice or communication) to the designated email address of the receiving Party specified below; provided that a confirmation copy of such notice is sent by nationally recognized overnight courier service within one (1) Business Day following such electronic transmission; or
(d) three (3) Business Days after deposit in the United States mail, registered or certified, return receipt requested, postage prepaid, addressed to the Party at the address specified below.
Section 9.2 — Addresses for Notices. Notices shall be addressed as follows:
If to Debtor:
Hudson Yards West Mezzanine LLC c/o Metropolitan Transit Development Corp. 200 South Michigan Avenue, Suite 3100 Chicago, Illinois 60604
Attention: Lydia Okafor, General Counsel
Email: lokafor@metrotransitdev.com
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP One Liberty Plaza, 55th Floor New York, New York 10006
Attention: Douglas Fairchild
Email: dfairchild@calderwoodharkness.com
If to Secured Party:
Granite Peak Capital Partners, LP 9 West 57th Street, Suite 4200 New York, New York 10019
Attention: Victor Salinas, Senior Vice President, Originations
Email: vsalinas@granitepeakcap.com
With a copy (which shall not constitute notice) to:
Voss Richter & Baines LLP 1251 Avenue of the Americas, 34th Floor New York, New York 10020
Attention: Natasha Ivanovic
Email: nivanovic@vossrichter.com
If to Depository Bank:
Ironclad National Bank, N.A. 277 Park Avenue New York, New York 10172
Attention: Deposit Account Control / Operations Department
Email: daca-operations@ironcladbank.com
With a copy to:
Ironclad National Bank, N.A. 277 Park Avenue New York, New York 10172
Attention: Kenneth Pryor, Managing Director, Real Estate Finance
Email: kpryor@ironcladbank.com
Section 9.3 — Change of Address. Any Party may change its address, email address, or designated contact person for notices by giving written notice of such change to the other Parties in accordance with this Article 9. Such change shall be effective upon receipt of such notice by the other Parties.
ARTICLE 10 — TERMINATION
Section 10.1 — Termination Events. This Agreement shall terminate upon the earliest to occur of any of the following:
(a) Depository Bank's receipt of a Termination Notice from Secured Party, delivered in accordance with Article 9 hereof, which Termination Notice shall be substantially in the form of Exhibit C attached hereto;
(b) Depository Bank's receipt of joint written instructions from Debtor and Secured Party directing the termination of this Agreement; or
(c) The closing of all Deposit Accounts by Depository Bank in accordance with Section 10.3 hereof, following the transfer of all funds therein and the completion of all outstanding transactions.
For the avoidance of doubt, Debtor shall have no unilateral right to terminate this Agreement, and no act or omission of Debtor shall be effective to terminate this Agreement or release Depository Bank from its obligations hereunder.
Section 10.2 — Effect of Termination. Upon the termination of this Agreement in accordance with Section 10.1:
(a) The "control" of Secured Party over the Deposit Accounts established pursuant to this Agreement shall cease and be of no further force or effect; provided, however, that such termination shall be without prejudice to any security interest that Secured Party may hold in the Deposit Accounts or the funds therein by any other means, including, without limitation, by the filing of UCC-1 financing statements;
(b) Depository Bank shall have no further duties, obligations, or liabilities under this Agreement (subject to the survival provisions of Section 10.4 hereof);
(c) Depository Bank shall thereafter comply solely with instructions originated by Debtor with respect to the Deposit Accounts, in accordance with Depository Bank's standard account agreements then in effect; and
(d) At Secured Party's request, Depository Bank shall deliver to Secured Party written confirmation that this Agreement has been terminated and that Depository Bank no longer recognizes Secured Party's control over the Deposit Accounts.
Section 10.3 — Depository Bank's Right to Close Accounts. Notwithstanding anything to the contrary in this Agreement, Depository Bank reserves the right to close any Deposit Account in accordance with the terms of Depository Bank's standard account agreements with Debtor and applicable law and regulation; provided, however, that Depository Bank shall give both Secured Party and Debtor not fewer than thirty (30) days' prior written notice before any voluntary closure of a Deposit Account (other than a closure required by applicable law, regulation, or governmental order, as to which Depository Bank shall provide as much advance notice as is reasonably practicable under the circumstances). In connection with any closure of a Deposit Account, Depository Bank shall cooperate with Secured Party and Debtor in the orderly transfer of funds and the establishment of replacement Deposit Accounts at a successor depository bank acceptable to Secured Party, including by executing such documents and instruments as may be reasonably necessary to effect such transfer.
Section 10.4 — Survival. The indemnification obligations of Debtor under Section 8.4(a), the limitation of liability provisions of Section 8.1, and the waiver of jury trial set forth in Section 11.3 shall survive the termination of this Agreement and shall remain in full force and effect with respect to any claims, liabilities, losses, damages, costs, or expenses arising out of or relating to events or circumstances occurring prior to or in connection with such termination.
ARTICLE 11 — MISCELLANEOUS
Section 11.1 — Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (including, without limitation, Sections 5-1401 and 5-1402 of the New York General Obligations Law), without regard to any conflict-of-laws principles that would require the application of the laws of any other jurisdiction. Without limiting the foregoing, this Agreement shall be governed by Article 9 of the UCC as in effect in the State of New York. For purposes of the UCC, the Parties hereby agree that the State of New York is the "bank's jurisdiction" within the meaning of Section 9-304 of the UCC, and that New York law governs the perfection, the effect of perfection or non-perfection, and the priority of Secured Party's security interest in the Deposit Accounts.
Section 11.2 — Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Supreme Court of the State of New York, County of New York, and the United States District Court for the Southern District of New York, for the purposes of any action, suit, or proceeding arising out of or relating to this Agreement, and each Party hereby irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, and further waives any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
Section 11.3 — Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, CROSS-CLAIM, OR THIRD-PARTY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER APPLIES TO ANY ACTION, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO EACH OTHER PARTY'S ENTERING INTO THIS AGREEMENT, THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THIS WAIVER, AND THAT EACH PARTY HAS REVIEWED AND UNDERSTOOD THE IMPLICATIONS OF THIS WAIVER.
Section 11.4 — Amendments. This Agreement may not be amended, modified, supplemented, restated, or waived except by a written instrument duly executed by all three Parties hereto. No failure or delay by any Party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, and no single or partial exercise of any right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy.
Section 11.5 — Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Debtor may not assign, transfer, or delegate its rights or obligations under this Agreement without the prior written consent of Secured Party and Depository Bank. Secured Party may assign its rights and interests under this Agreement, in whole or in part, in connection with any assignment or transfer of the Mezzanine Loan and the Mezzanine Loan Documents, and upon any such assignment, the assignee shall be entitled to all of the rights and benefits of Secured Party under this Agreement. Secured Party shall provide written notice to Depository Bank of any such assignment, and Depository Bank shall thereafter recognize the assignee as the Secured Party under this Agreement.
Section 11.6 — Entire Agreement. This Agreement, together with the Exhibits attached hereto (which are incorporated herein by reference), constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations, discussions, term sheets, letters of intent, and understandings, whether oral or written, among the Parties relating to the subject matter hereof. Notwithstanding the foregoing, this Agreement is intended to supplement, and not to limit, replace, or supersede, the Mezzanine Loan Documents, and the rights and remedies of Secured Party under this Agreement are in addition to, and not in limitation of, the rights and remedies of Secured Party under the Mezzanine Loan Documents and applicable law.
Section 11.7 — Conflicts. In the event of any conflict, inconsistency, or ambiguity between the terms and provisions of this Agreement, on the one hand, and the terms and provisions of any standard depository account agreement, signature card, account resolution, or other banking agreement between Debtor and Depository Bank, on the other hand, the terms and provisions of this Agreement shall control and govern to the extent of such conflict, inconsistency, or ambiguity.
Section 11.8 — Severability. If any provision of this Agreement is held to be invalid, illegal, void, or unenforceable by any court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect or impair any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. To the extent permitted by applicable law, the Parties hereby waive any provision of law that renders any provision of this Agreement invalid, illegal, or unenforceable in any respect.
Section 11.9 — Counterparts; Electronic Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, portable document format (PDF), or other electronic means (including any electronic signature complying with the federal ESIGN Act of 2000 or the New York Electronic Signatures and Records Act) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 11.10 — Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties hereto and their respective successors and permitted assigns, and no other person or entity shall have any rights, benefits, or remedies under this Agreement, whether as a third-party beneficiary or otherwise. For the avoidance of doubt, Ironclad National Bank, N.A., in its separate capacity as administrative agent for the senior mortgage lenders under that certain Senior Mortgage Loan Agreement related to the Property (or in any other capacity other than as Depository Bank under this Agreement), is not a party to, and shall not be deemed a third-party beneficiary of, this Agreement.
Section 11.11 — Confidentiality. Depository Bank shall maintain the confidentiality of all account information relating to the Deposit Accounts, and the terms and conditions of this Agreement, and shall not disclose the same to any third party, except: (a) as required by applicable law, regulation, subpoena, civil investigative demand, court order, or other legal process; (b) as required by any applicable regulatory authority or self-regulatory organization having jurisdiction over Depository Bank; (c) to Depository Bank's directors, officers, employees, agents, auditors, and legal counsel who have a reasonable need to know such information in connection with the performance of Depository Bank's obligations under this Agreement and who are bound by obligations of confidentiality; or (d) with the prior written consent of both Debtor and Secured Party. Nothing in this Section 11.11 shall prohibit Depository Bank from disclosing aggregate, anonymized, or statistical data that does not identify Debtor, Secured Party, or any specific Deposit Account.
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EXECUTION PAGE
IN WITNESS WHEREOF, the Parties hereto have caused this Deposit Account Control Agreement to be duly executed and delivered by their respective duly authorized representatives as of the date first above written.
DEBTOR:
HUDSON YARDS WEST MEZZANINE LLC, a Delaware limited liability company
By: Metropolitan Transit Development Corp.,