DEPOSIT ACCOUNT CONTROL AGREEMENT
(Senior Lockbox)
Dated as of June 15, 2025
among
HUDSON YARDS WEST MORTGAGE LLC, a Delaware limited liability company, as Customer
IRONCLAD NATIONAL BANK, N.A., a national banking association, as Administrative Agent for the Senior Secured Parties
and
IRONCLAD NATIONAL BANK, N.A., a national banking association, as Depository Bank
Entered in connection with that certain Senior Mortgage Loan Agreement of even date hereof (the "Loan Agreement"), by and among Customer, the lenders party thereto, and Ironclad National Bank, N.A., as Administrative Agent
Property: 450 West 34th Street, New York, New York 10001 (Block 729, Lots 1, 5, 12, 15)
C&H Matter No. 1031-00004
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DEPOSIT ACCOUNT CONTROL AGREEMENT
This DEPOSIT ACCOUNT CONTROL AGREEMENT (this "Agreement") is entered into as of June 15, 2025, by and among:
(1) HUDSON YARDS WEST MORTGAGE LLC, a Delaware limited liability company (the "Customer" or the "Borrower");
(2) IRONCLAD NATIONAL BANK, N.A., a national banking association, in its capacity as Administrative Agent for the Senior Secured Parties (in such capacity, the "Secured Party"); and
(3) IRONCLAD NATIONAL BANK, N.A., a national banking association, in its capacity as depository bank (in such capacity, the "Depository Bank").
Each of the Customer, the Secured Party, and the Depository Bank is referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Customer has entered into that certain Senior Mortgage Loan Agreement, dated as of the date hereof (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Loan Agreement"), with Secured Party, as Administrative Agent, and the lenders from time to time party thereto (the "Senior Lenders"), pursuant to which the Senior Lenders have agreed to make a senior mortgage loan to Customer in the original principal amount of Four Hundred Seventy-Five Million Dollars ($475,000,000) (the "Loan"), secured by, among other things, the real property located at 450 West 34th Street, New York, New York 10001 (Block 729, Lots 1, 5, 12, 15 on the Tax Map of the City of New York, Borough of Manhattan) (the "Property");
WHEREAS, the Loan Agreement requires Customer to establish and maintain certain deposit accounts at Depository Bank as part of a hard lockbox and cash management structure for the collection, segregation, and application of rents, revenues, and other income derived from the Property in order to secure the Secured Obligations (as defined in the Loan Agreement);
WHEREAS, Customer has established the Accounts (as defined herein) at Depository Bank, and Depository Bank maintains such Accounts in the ordinary course of its banking operations;
WHEREAS, the Loan Agreement and the related Mortgage, Assignment of Leases and Rents, Security Agreement, and Fixture Filing (the "Mortgage and Security Agreement") require Customer to grant to Secured Party, for the benefit of the Senior Secured Parties, a first-priority security interest in the Accounts and all funds, financial assets, and investment property on deposit therein or credited thereto from time to time;
WHEREAS, Customer, Secured Party, and Depository Bank desire to enter into this Agreement to perfect Secured Party's security interest in the 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 cash management and lockbox procedures required under the Loan Agreement;
WHEREAS, Depository Bank is willing to act as depository bank hereunder on the terms and subject to the conditions set forth herein; and
WHEREAS, each of the Parties acknowledges that Ironclad National Bank, N.A. acts hereunder in a dual capacity — both as Administrative Agent for the Senior Secured Parties (in the capacity of Secured Party) and as Depository Bank — and that the rights, duties, immunities, and protections applicable to Ironclad National Bank, N.A. in each such capacity are separate and distinct, as more fully set forth in Section 9.9 hereof.
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 hereby 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:
"Accounts" means, collectively, the Lockbox Account, the Cash Management Account, and each Reserve Account, as more particularly described in Exhibit A hereto, including all sub-accounts thereof, all replacement or successor accounts established pursuant to the terms hereof, and all funds, monies, financial assets, investment property, and other property from time to time deposited in, credited to, or held in any such account, together with all interest, dividends, earnings, and proceeds thereof.
"Activation Notice" — Not applicable. The Parties acknowledge and agree that this Agreement establishes a hard lockbox structure and that Secured Party's control over the Accounts is effective immediately upon execution and delivery of this Agreement. No springing condition, activation notice, triggering event, or further action by any Party is required for Secured Party's instructions to be operative with respect to the Accounts. All instructions of Secured Party with respect to the Accounts are fully operative from the date hereof.
"Agreement" means this Deposit Account Control Agreement, as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with Section 9.2.
"Business Day" means any day that is not a Saturday, Sunday, or a day on which banking institutions in the City of New York are authorized or required by law to be closed.
"Capital Expenditure Reserve Account" means the interest-bearing deposit account maintained at Depository Bank and designated as such in Exhibit A hereto, established for the purpose of holding reserves for capital repairs and replacements at the Property.
"Cash Management Account" means the commercial demand deposit account maintained at Depository Bank bearing the account number set forth in Exhibit A hereto, titled "Hudson Yards West Mortgage LLC — Cash Management Account," established and maintained at Depository Bank in accordance with the terms of this Agreement and the Loan Agreement.
"Cash Management Agreement" means that certain Cash Management Agreement, dated as of the date hereof, by and among Customer and Secured Party, governing the application, priority, and waterfall of funds in the Accounts, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Cash Sweep Period" has the meaning set forth in the Loan Agreement and includes, without limitation, any period during which the Property's debt service coverage ratio (as calculated in accordance with the Loan Agreement) is below 1.10x or during which an Event of Default has occurred and is continuing.
"Construction Disbursement Account" means the commercial demand deposit account maintained at Depository Bank and designated as such in Exhibit A hereto, from which construction draws under the GMP Contract (as defined below) are funded, subject to the disbursement procedures set forth in the Loan Agreement, including the satisfaction of all conditions precedent to construction disbursements as specified therein.
"Customer's Funds" means all monies, checks, drafts, wire transfers, electronic funds transfers, instruments, negotiable instruments, items of payment, and other forms of payment deposited in, credited to, or transferred into any Account, and all proceeds thereof.
"Daily Sweep" has the meaning set forth in Section 2.2.
"Entitlement Order" has the meaning ascribed to such term in Section 8-102(a)(8) of the UCC.
"Event of Default" has the meaning set forth in the Loan Agreement.
"Exclusive Control" has the meaning set forth in Section 3.1.
"GMP Contract" means that certain Guaranteed Maximum Price Contract No. CCG-HYW-2025-001, entered into between Customer and Cobalt Construction Group, Inc., for the construction and development of improvements at the Property, with a guaranteed maximum price of Four Hundred Twelve Million Dollars ($412,000,000), as the same may be amended or modified from time to time in accordance with the Loan Agreement.
"Interest Reserve Account" means the interest-bearing deposit account maintained at Depository Bank and designated as such in Exhibit A hereto, established for the purpose of holding reserves for interest payments on the Loan.
"Loan" has the meaning set forth in the Recitals.
"Loan Agreement" means the Senior Mortgage Loan Agreement, dated as of June 15, 2025, by and among Customer, the Senior Lenders from time to time party thereto, and Secured Party, as Administrative Agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Loan Documents" has the meaning set forth in the Loan Agreement and includes, without limitation, this Agreement.
"Lockbox Account" means the commercial demand deposit account maintained at Depository Bank bearing the account number set forth in Exhibit A hereto, titled "Hudson Yards West Mortgage LLC — Lockbox Account," established and maintained at Depository Bank as the primary collection account for all rents, revenues, and receivables from the Property.
"Mortgage and Security Agreement" has the meaning set forth in the Recitals.
"P.O. Box" means the U.S. postal lockbox established at the address designated in Exhibit A hereto, designated by Secured Party, to which all tenants, licensees, occupants, and other payors at the Property shall direct rent and other payments by check or other physical instrument.
"Permitted Investments" has the meaning set forth in the Loan Agreement.
"Person" means any natural person, corporation, limited liability company, partnership, trust, joint venture, governmental authority, or other entity.
"Property" has the meaning set forth in the Recitals.
"Reserve Accounts" means, collectively, the Interest Reserve Account, the Tax and Insurance Reserve Account, the Capital Expenditure Reserve Account, the TI/LC Reserve Account, and the Construction Disbursement Account, each as more particularly described in Exhibit A hereto, and any additional reserve accounts established from time to time pursuant to the Loan Agreement and made subject to this Agreement.
"Secured Obligations" has the meaning set forth in the Loan Agreement and includes all present and future obligations of Customer to the Senior Secured Parties arising under or in connection with the Loan Documents.
"Senior Lenders" has the meaning set forth in the Recitals.
"Senior Secured Parties" means Secured Party, the Senior Lenders, and each other Person to whom any Secured Obligation is owed from time to time.
"Tax and Insurance Reserve Account" means the interest-bearing deposit account maintained at Depository Bank and designated as such in Exhibit A hereto, established for the purpose of holding reserves for the payment of real estate taxes and insurance premiums with respect to the Property.
"TI/LC Reserve Account" means the interest-bearing deposit account maintained at Depository Bank and designated as such in Exhibit A hereto, established for the purpose of holding reserves for tenant improvement costs and leasing commissions in connection with leases at the Property.
"UCC" has the meaning set forth in the Recitals.
Section 1.2 — Other Definitions; Rules of Construction. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Loan Agreement. To the extent that any term used in this Agreement is defined in the UCC and is not otherwise defined herein or in the Loan Agreement, such term shall have the meaning ascribed to it in the UCC. Unless the context otherwise requires: (a) the singular includes the plural and vice versa; (b) references to "Sections," "Articles," and "Exhibits" are to sections, articles, and exhibits of this Agreement; (c) "including" means "including without limitation"; (d) "hereof," "herein," and "hereunder" refer to this Agreement as a whole; and (e) references to any agreement or instrument include all amendments, supplements, and modifications thereto.
ARTICLE 2 — THE ACCOUNTS
Section 2.1 — Establishment and Identification of Accounts.
(a) Customer has established, and Depository Bank hereby confirms that it currently maintains, the Accounts listed and described in Exhibit A attached hereto and made a part hereof, at the branch office of Depository Bank located at 277 Park Avenue, New York, New York 10172. Each Account is in the name of Customer as set forth in Exhibit A, and Depository Bank shall not change the name, title, or account number of any Account, or close or merge any Account with another account, without the prior written consent of Secured Party.
(b) All Accounts are commercial demand deposit accounts, except for the Reserve Accounts (other than the Construction Disbursement Account), which may bear interest as set forth in Section 2.5. The type of each Account is as set forth in Exhibit A.
(c) Depository Bank hereby confirms, represents, and warrants that:
(i) no Person other than Secured Party and Depository Bank has "control" (within the meaning of Section 9-104 of the UCC) over any Account;
(ii) Customer's federal tax identification number associated with the Accounts is as set forth in the records of Depository Bank and has been duly verified by Depository Bank in accordance with applicable know-your-customer and anti-money laundering requirements;
(iii) no Account is a "securities account" (as defined in Section 8-501 of the UCC) or a "commodity account" (as defined in Section 9-102(a)(14) of the UCC); each Account is a "deposit account" (as defined in Section 9-102(a)(29) of the UCC) maintained at a bank within the meaning of the UCC; and
(iv) the Accounts are maintained in accordance with all applicable banking laws, regulations, and the customary practices and procedures of Depository Bank.
Section 2.2 — Lockbox Account; Collection of Rents.
(a) Customer shall cause all tenants, licensees, concessionaires, and other occupants of the Property, and all other payors of rents, revenues, receivables, and other amounts due to Customer in connection with the Property, to remit all payments directly either (i) by check, draft, money order, or other physical instrument of payment mailed to the P.O. Box, or (ii) by wire transfer or electronic funds transfer to the Lockbox Account. Customer shall deliver the Tenant Direction Letter substantially in the form attached hereto as Exhibit D to each tenant and occupant of the Property, and shall deliver copies of such letters to Secured Party promptly following delivery to each tenant.
(b) Depository Bank shall collect and process all items deposited in or received for credit to the Lockbox Account, including all checks, drafts, money orders, wire transfers, ACH payments, and other items of payment. All items deposited by physical instrument shall be credited provisionally to the Lockbox Account, subject to final collection through the banking system. Depository Bank shall process items for collection through the banking system in accordance with its customary procedures, applicable clearing-house rules, and Regulation CC of the Board of Governors of the Federal Reserve System.
(c) Depository Bank shall, on each Business Day, sweep all collected and available balances in the Lockbox Account to the Cash Management Account by no later than 2:00 p.m. (New York City time) on such Business Day (each such sweep, the "Daily Sweep"). For the avoidance of doubt, uncollected funds shall not be subject to the Daily Sweep until such time as they become collected and available funds, as determined by Depository Bank in accordance with its customary availability schedules.
(d) Chargebacks and adjustments for returned or dishonored items shall be charged against the Lockbox Account (or, if insufficient funds are on deposit therein, against the Cash Management Account) in accordance with Depository Bank's customary procedures. Depository Bank shall promptly notify Secured Party of any returned item in excess of Ten Thousand Dollars ($10,000).
Section 2.3 — Cash Management Account.
(a) The Cash Management Account shall serve as the central clearing account for all funds associated with the Property. All funds swept from the Lockbox Account pursuant to the Daily Sweep, and all other deposits required to be made into the Cash Management Account under the Loan Agreement or any other Loan Document, shall be credited to the Cash Management Account.
(b) The application, allocation, and disbursement of funds in the Cash Management Account shall be governed by the Cash Management Agreement and the waterfall provisions set forth in the Loan Agreement. Depository Bank shall act upon Secured Party's instructions with respect to all transfers, disbursements, and withdrawals from the Cash Management Account, including instructions to transfer funds from the Cash Management Account to any Reserve Account, to pay debt service, to fund reserves, to pay operating expenses, or to make any other disbursement in accordance with the waterfall.
(c) During a Cash Sweep Period (including, without limitation, any period during which the Property's debt service coverage ratio, as calculated in accordance with the Loan Agreement, falls below 1.10x, or during which an Event of Default has occurred and is continuing), all excess cash flow remaining in the Cash Management Account after the required waterfall distributions shall be applied to the Secured Obligations in such order and manner as directed by Secured Party in accordance with the Loan Agreement. Depository Bank shall have no obligation to determine whether a Cash Sweep Period is in effect or has terminated; Depository Bank shall act solely in accordance with the instructions of Secured Party.
Section 2.4 — Reserve Accounts.
(a) Each Reserve Account shall be funded and maintained in accordance with the terms and conditions set forth in the Loan Agreement. Initial funding of the Reserve Accounts shall occur on the date hereof from the proceeds of the Loan as set forth in the Loan Agreement. Subsequent deposits to the Reserve Accounts shall be made from the Cash Management Account in accordance with the waterfall provisions of the Loan Agreement and as directed by Secured Party.
(b) Withdrawals and disbursements from the Reserve Accounts shall be permitted only upon written instruction of Secured Party, which instructions shall be given in accordance with the reserve disbursement conditions set forth in the applicable provisions of the Loan Agreement. Customer acknowledges that it has no right to withdraw, transfer, or direct the transfer of funds from any Reserve Account except to the extent approved in writing by Secured Party.
(c) With respect to the Construction Disbursement Account, construction draws shall be funded therefrom only upon satisfaction of all conditions precedent set forth in the Loan Agreement, including, without limitation: (i) receipt by Secured Party of a draw request approved by the Construction Consultant engaged by Secured Party; (ii) certification by the Construction Consultant that the applicable work has been completed in accordance with the plans and specifications and the GMP Contract; (iii) delivery of conditional lien waivers from Cobalt Construction Group, Inc. and all applicable subcontractors and materialmen; and (iv) such other conditions as may be required under the Loan Agreement. The Construction Disbursement Account shall be funded and draws applied toward the guaranteed maximum price of Four Hundred Twelve Million Dollars ($412,000,000) under GMP Contract No. CCG-HYW-2025-001.
Section 2.5 — Investment of Funds.
(a) Funds on deposit in the Cash Management Account and the Reserve Accounts may, at the direction of Secured Party, be invested in Permitted Investments (as defined in the Loan Agreement). Secured Party shall have sole authority to direct the investment of such funds, and Depository Bank shall comply with Secured Party's investment instructions promptly upon receipt thereof.
(b) All earnings, interest, dividends, and income generated by Permitted Investments shall be credited to the applicable Account from which such investment was made. All losses on Permitted Investments shall likewise be charged to the applicable Account. Customer acknowledges and agrees that it bears all risk of loss on any Permitted Investment.
(c) Depository Bank shall have no obligation to invest or reinvest any funds on deposit in any Account in the absence of specific written direction from Secured Party. In the absence of such direction, uninvested funds shall earn interest at Depository Bank's standard posted rate for commercial deposit accounts of comparable type and size, as in effect from time to time. Depository Bank makes no representation or guarantee with respect to the rate of return on any investment or uninvested deposit.
(d) Depository Bank shall not be liable for any loss arising from the making, holding, or liquidation of any Permitted Investment in accordance with the instructions of Secured Party, including any loss resulting from the liquidation of a Permitted Investment prior to its maturity. All Permitted Investments shall be held in the name of Customer, subject to the security interest and control of Secured Party as provided herein.
Section 2.6 — No Other Accounts.
(a) Customer covenants and agrees that it shall not establish, open, or maintain any deposit account, securities account, or any other account at Depository Bank or at any other depository institution, bank, securities intermediary, or financial institution, other than the Accounts, without the prior written consent of Secured Party in each instance.
(b) If Customer opens or establishes any additional account at any depository institution (whether with or without the consent of Secured Party), Customer and the applicable depository institution shall promptly execute and deliver to Secured Party a deposit account control agreement with respect to such additional account, in form and substance satisfactory to Secured Party in its sole discretion, granting Secured Party control over such account on terms consistent with this Agreement. Any such additional account shall be deemed an "Account" for purposes of this Agreement upon execution of such deposit account control agreement.
ARTICLE 3 — CONTROL; PRIORITY
Section 3.1 — Grant of Control; Exclusive Control.
(a) Customer hereby grants to Secured Party "control" over each Account within the meaning of Section 9-104(a)(2) of the UCC. Depository Bank hereby agrees that it will comply with all instructions originated by Secured Party directing the disposition of funds in any Account without further consent of Customer (such control being referred to herein as "Exclusive Control"). Such instructions may include, without limitation, instructions to transfer funds to any account designated by Secured Party, instructions to pay funds to any Person specified by Secured Party, instructions to hold funds pending further direction, and instructions to close any Account and remit the balance as directed by Secured Party.
(b) The Parties acknowledge and agree that this Agreement establishes a hard lockbox structure. Secured Party's control rights over the Accounts are in effect at all times from and after the date hereof. No activation notice, triggering event, occurrence of a Cash Sweep Period, Event of Default, or any other condition or event is required in order for Secured Party's Exclusive Control to be operative. Secured Party's right to direct the disposition of funds in the Accounts is absolute and unconditional from the date of execution of this Agreement.
(c) Depository Bank shall not comply with any instruction, direction, order, or request from Customer (or any Person acting on behalf of Customer) regarding the disposition, transfer, withdrawal, or application of funds from any Account unless such instruction is countersigned or separately approved in writing by Secured Party. For the avoidance of doubt, Depository Bank shall have no obligation to, and shall not, honor any check, draft, wire transfer request, ACH debit, or other withdrawal or transfer instruction with respect to any Account that is not accompanied by the written approval of Secured Party.
Section 3.2 — Priority; Subordination of Depository Bank's Rights.
(a) Depository Bank hereby irrevocably subordinates any and all security interests, liens, encumbrances, claims, and rights of setoff, recoupment, banker's lien, or counterclaim that Depository Bank may now have or hereafter acquire in or against any Account or any funds, financial assets, or other property on deposit therein or credited thereto, to the first-priority security interest of Secured Party in the Accounts, except only for Depository Bank's right to deduct its customary account maintenance fees, service charges, and transaction fees as set forth in Section 3.3 and the fee schedule attached as Exhibit B.
(b) Depository Bank shall not exercise, assert, or enforce any right of recoupment, attachment, setoff, banker's lien, or similar right against any Account or the funds therein, except for (i) chargebacks of returned or dishonored items credited to any Account on a provisional basis and subsequently returned unpaid, and (ii) the deduction of fees and charges as expressly permitted by Section 3.3.
(c) Depository Bank hereby acknowledges and agrees that the first-priority security interest of Secured Party in the Accounts is perfected by "control" pursuant to this Agreement in accordance with Sections 9-104 and 9-327 of the UCC, and that under Section 9-327(1) of the UCC, a security interest held by a secured party having control of a deposit account has priority over a conflicting security interest held by another secured party, including the depository bank itself (except as otherwise provided in Section 9-327(3) and (4) of the UCC, which are addressed in this Section 3.2).
Section 3.3 — Depository Bank Fees and Charges.
(a) Customer shall pay all of Depository Bank's standard account maintenance fees, service charges, transaction fees, and other banking charges in connection with the Accounts in accordance with the fee schedule attached hereto as Exhibit B, as such fee schedule may be amended from time to time with the consent of Customer and Secured Party.
(b) Depository Bank may debit fees and charges from the Cash Management Account on a monthly basis on the first Business Day of each calendar month (or such other date as Depository Bank customarily debits such fees). If funds in the Cash Management Account are insufficient to cover such fees, Depository Bank shall promptly notify Secured Party in writing of such insufficiency. All unpaid fees and charges are the sole obligation of Customer.
(c) Secured Party shall have no liability for, and no obligation to pay, any of Depository Bank's fees, charges, expenses, or other amounts due in connection with the maintenance of the Accounts or the performance of Depository Bank's obligations hereunder.
Section 3.4 — Conflicting Instructions.
(a) If Depository Bank receives instructions from both Customer and Secured Party with respect to any Account that are conflicting or inconsistent, the instructions of Secured Party shall govern in all cases without exception. Depository Bank shall follow the instructions of Secured Party and shall disregard the conflicting instructions of Customer.
(b) Depository Bank shall promptly notify both Customer and Secured Party in writing of any conflicting instructions received by Depository Bank. Notwithstanding the foregoing, Depository Bank's obligation to comply with the instructions of Secured Party shall not be conditioned upon or delayed by the giving of any such notice.
(c) Depository Bank shall have no liability to Customer or any other Person for complying with the instructions of Secured Party in the event of conflicting instructions.
ARTICLE 4 — REPRESENTATIONS AND WARRANTIES
Section 4.1 — Customer's Representations and Warranties.
Customer hereby represents and warrants to Secured Party and Depository Bank, as of the date hereof, as follows:
(a) Organization and Qualification. Customer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Customer is duly qualified to transact business and is in good standing in the State of New York.
(b) Authority. Customer has full power, authority, and legal right to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement have been duly authorized by all necessary action on the part of Customer and its sole member, and do not and will not conflict with or result in a violation or breach of any term or provision of Customer's organizational documents, any applicable law, or any agreement or instrument to which Customer is a party or by which Customer or its assets are bound.
(c) Binding Obligation. This Agreement constitutes the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by equitable principles (whether enforcement is sought in a proceeding at law or in equity).
(d) Ownership of Funds. Customer is the sole legal and beneficial owner of all funds on deposit in the Accounts, free and clear of all liens, claims, encumbrances, and security interests, other than the security interest of Secured Party created or perfected pursuant to the Loan Documents and this Agreement.
(e) No Other Control Agreements. Customer has not granted "control" (within the meaning of Section 9-104 of the UCC) over any Account to any Person other than Secured Party. No other deposit account control agreement, blocked account agreement, or similar agreement is in effect with respect to any Account, and Customer has not entered into any agreement or arrangement that would permit any Person other than Secured Party to exercise control over any Account.
(f) No Liens or Process. The Accounts are not subject to any garnishment, attachment, execution, levy, tax lien, or other legal process, nor is any such proceeding pending or, to Customer's knowledge, threatened.
(g) Legal Name. Customer'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 Mortgage LLC."
Section 4.2 — Depository Bank's Representations and Warranties.
Depository Bank hereby represents and warrants to Customer and Secured Party, as of the date hereof, as follows:
(a) Organization and Good Standing. Depository Bank is a national banking association duly organized, validly existing, and in good standing under the laws of the United States, with full power and authority to conduct its banking business as presently conducted.
(b) Authority. Depository Bank has full power, authority, and legal right to execute, deliver, and perform its obligations under this Agreement. The execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate action on the part of Depository Bank and do not and will not conflict with or result in a violation of any applicable law, regulation, or order, or any agreement or instrument to which Depository Bank is a party or by which it is bound.
(c) Accounts Duly Established. The Accounts have been duly established and are maintained in the name of Customer as set forth in Exhibit A hereto. Each Account is maintained in accordance with Depository Bank's customary terms and conditions for deposit accounts of the applicable type.
(d) No Other Control Agreements. Depository Bank has not entered into any other deposit account control agreement, blocked account agreement, or similar agreement with any Person with respect to any Account, and Depository Bank has not agreed to comply with the instructions of any Person other than Secured Party (and, subject to the limitations of Section 3.1, Customer) with respect to any Account.
(e) No Adverse Claims. Depository Bank has not received notice of any lien, encumbrance, security interest, or adverse claim with respect to any Account or the funds on deposit therein, other than the security interest of Secured Party as provided herein.
(f) No Setoff. No Account is subject to any right of setoff, recoupment, banker's lien, or deduction by Depository Bank, other than the customary fees and charges expressly permitted by Section 3.3 of this Agreement and chargebacks of returned items as provided in Section 2.2(d).
(g) Location. Each Account is maintained at Depository Bank's office located at 277 Park Avenue, New York, New York 10172, in the State of New York. All bank records relating to the Accounts are maintained in the State of New York. For purposes of the UCC, the "bank's jurisdiction" with respect to each Account is the State of New York.
Section 4.3 — Secured Party's Representations and Warranties.
Secured Party hereby represents and warrants to Customer and Depository Bank, as of the date hereof, as follows:
(a) Organization and Good Standing. Secured Party is a national banking association duly organized, validly existing, and in good standing under the laws of the United States.
(b) Authority. Secured Party has full power, authority, and legal right to execute, deliver, and perform its obligations under this Agreement in its capacity as Administrative Agent for the Senior Secured Parties. The execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate action on the part of Secured Party.
ARTICLE 5 — COVENANTS
Section 5.1 — Customer's Covenants.
Customer hereby covenants and agrees as follows:
(a) Negative Covenants. Customer shall not, without the prior written consent of Secured Party in each instance:
(i) close, terminate, or permit the closing or termination of any Account;
(ii) open, establish, or maintain any new deposit account, securities account, or other account at Depository Bank or any other depository institution, bank, securities intermediary, or financial institution;
(iii) grant any Person other than Secured Party "control" (within the meaning of Section 9-104 of the UCC) over any Account, or enter into any deposit account control agreement or similar agreement with any Person with respect to any Account;
(iv) attempt to redirect, instruct, or permit any tenant, licensee, concessionaire, or other occupant of the Property, or any other payor of rents, revenues, or receivables relating to the Property, to make payments to any account other than the Lockbox Account or to any address other than the P.O. Box, or by wire transfer to any account other than the Lockbox Account;
(v) withdraw, transfer, or instruct Depository Bank to withdraw or transfer any funds from any Account; or
(vi) take any action that would impair, diminish, or adversely affect the first-priority security interest and control of Secured Party in and over the Accounts.
(b) Notice of Changes. Customer shall deliver to Depository Bank and Secured Party prompt written notice (and in any event within five (5) Business Days) of any change in Customer's legal name, organizational structure, jurisdiction of formation, federal tax identification number, or address of its chief executive office.
(c) Lockbox Maintenance. Customer shall maintain the P.O. Box and deliver tenant direction letters substantially in the form of Exhibit D hereto to all tenants, licensees, and occupants of the Property in accordance with the requirements of the Loan Agreement. Customer shall deliver copies of all such tenant direction letters to Secured Party promptly upon delivery to the applicable tenant or occupant. Customer shall cause any new tenant or occupant of the Property to receive a tenant direction letter no later than the date on which such tenant or occupant takes occupancy of the Property or the effective date of the applicable lease, whichever is earlier.
(d) Cooperation. Customer shall at all times cooperate with Secured Party and Depository Bank in connection with the performance of their respective obligations under this Agreement and shall promptly execute and deliver such additional documents, instruments, and agreements as Secured Party or Depository Bank may reasonably request in order to effectuate the purposes of this Agreement.
Section 5.2 — Depository Bank's Covenants.
Depository Bank hereby covenants and agrees as follows:
(a) Account Maintenance. Depository Bank shall maintain each Account in accordance with this Agreement and Depository Bank's customary banking practices and procedures. Depository Bank shall not permit the Accounts to be maintained at any office or branch other than 277 Park Avenue, New York, New York 10172, without the prior written consent of Secured Party.
(b) Daily Sweep. Depository Bank shall perform the Daily Sweep in accordance with Section 2.2 on each Business Day, sweeping all collected and available balances in the Lockbox Account to the Cash Management Account by no later than 2:00 p.m. (New York City time).
(c) Compliance with Secured Party Instructions. Depository Bank shall comply promptly with all instructions of Secured Party regarding the Accounts, including instructions directing the disposition, transfer, or application of funds in the Accounts, without inquiry into the right, authority, or entitlement of Secured Party to give such instructions and without seeking or requiring the consent, approval, or countersignature of Customer or any other Person.
(d) No Changes Without Consent. Depository Bank shall not change the name, title, account number, or type of any Account without the prior written consent of Secured Party.
(e) Notice of Legal Process and Adverse Claims. Depository Bank shall promptly (and in any event within two (2) Business Days) notify Secured Party of any legal process, garnishment, attachment, execution, levy, tax lien, court order, subpoena, adverse claim, or other process or claim served on, received by, or otherwise known to Depository Bank with respect to any Account or the funds therein. Depository Bank shall, to the extent permitted by law, refrain from complying with any such process or claim until Depository Bank has given Secured Party a reasonable opportunity to take appropriate action to protect its interests, subject to any time limitations imposed by applicable law or court order.
(f) Notice of Returned Items and Overdrafts. Depository Bank shall promptly notify Secured Party of any returned or dishonored item in excess of Ten Thousand Dollars ($10,000) and of any overdraft in any Account.
(g) Statements and Reporting. Depository Bank shall furnish to both Secured Party and Customer monthly account statements for each Account, including all debits, credits, and closing balances, within fifteen (15) days after the end of each calendar month. Depository Bank shall also furnish to Secured Party such additional information regarding the Accounts as Secured Party may reasonably request from time to time.
(h) No Other Control Agreements. Depository Bank shall not agree to comply with the instructions of any Person other than Secured Party with respect to any Account without the prior written consent of Secured Party. Depository Bank shall not enter into any deposit account control agreement, blocked account agreement, or similar agreement with any Person with respect to any Account without the prior written consent of Secured Party.
ARTICLE 6 — DEPOSITORY BANK'S RIGHTS AND PROTECTIONS
Section 6.1 — Standard of Care; Limitation of Liability.
(a) Depository Bank shall exercise ordinary care in the maintenance of the Accounts and the performance of its obligations under this Agreement, consistent with general banking usage and its customary practices and procedures for deposit accounts of comparable type and size.
(b) Depository Bank shall not be liable to any Party or any other Person for any loss, claim, damage, liability, cost, or expense arising from or relating to:
(i) Depository Bank's compliance with instructions of Secured Party that Depository Bank believed in good faith to be genuine and to have been given by an authorized representative of Secured Party;
(ii) any action taken or omitted to be taken by Depository Bank in accordance with applicable banking laws, regulations, regulatory requirements, clearing-house rules, or the rules of the Federal Reserve System;
(iii) the dishonor, return, or non-payment of any check, draft, instrument, or other item deposited in or credited to any Account;
(iv) any force majeure event, including any act of God, natural disaster, war, terrorism, civil disturbance, pandemic, epidemic, government action, fire, flood, earthquake, power outage, computer failure, cyber-attack, telecommunications failure, or any other event beyond the reasonable control of Depository Bank; or
(v) any delay in the processing, clearing, or collection of items resulting from causes beyond Depository Bank's reasonable control, including delays attributable to the banking system, clearing-house operations, or third-party service providers.
(c) In no event shall Depository Bank's aggregate liability under or in connection with this Agreement exceed the aggregate amount of funds on deposit in the Accounts at the time the relevant liability arose.
(d) In no event shall any consequential, indirect, incidental, special, exemplary, or punitive damages be recoverable against Depository Bank under or in connection with this Agreement, regardless of the theory of liability and regardless of whether Depository Bank has been advised of the possibility of such damages.
Section 6.2 — Reliance on Instructions.
(a) Depository Bank may conclusively rely upon, and shall be fully protected in acting or refraining from acting in accordance with, any instruction, notice, request, direction, waiver, consent, certificate, receipt, statement, or other document or communication that Depository Bank in good faith believes to be genuine and to have been signed, given, or sent by an authorized representative of the Party purporting to have given such instruction or communication.
(b) Depository Bank may request confirmation of any instruction received and may decline to act pending receipt of confirmation satisfactory to Depository Bank. Depository Bank shall have no liability for any delay in acting that is occasioned by such request for confirmation.
(c) The names, titles, and specimen signatures of the individuals authorized to give instructions on behalf of Customer and Secured Party are set forth in Exhibit C attached hereto. Depository Bank may rely upon such authorized signatory list until it receives a replacement list in writing from the applicable Party, and Depository Bank shall have a reasonable period of time (not to exceed five (5) Business Days) after receipt of any updated list to implement such changes.
Section 6.3 — No Duty to Monitor.
Depository Bank has no duty, obligation, or responsibility to:
(a) monitor the use, application, or disposition of funds withdrawn, transferred, or disbursed from any Account;
(b) determine whether any instruction received from Secured Party or Customer is consistent with, permitted under, or in compliance with the Loan Agreement, the Cash Management Agreement, or any other Loan Document;
(c) investigate, determine, or ascertain whether an Event of Default, a Cash Sweep Period, or any other condition, event, or circumstance under the Loan Agreement or any other Loan Document has occurred, is continuing, or has been cured or waived;
(d) ensure Customer's compliance with the Loan Agreement, the Cash Management Agreement, or any other Loan Document; or
(e) verify the accuracy, completeness, or sufficiency of any draw request, disbursement instruction, reserve withdrawal request, or other document submitted in connection with the Accounts.
Depository Bank is not a party to the Loan Agreement, the Cash Management Agreement, or any other Loan Document (other than this Agreement), and has no obligations, duties, or liabilities thereunder. Depository Bank shall be entitled to assume that all instructions given by Secured Party are authorized, proper, and in compliance with the Loan Documents, and Depository Bank shall not be required to make any independent inquiry or investigation with respect thereto.
Section 6.4 — No Fiduciary Duty.
The role of Depository Bank under this Agreement is purely administrative and ministerial. Nothing in this Agreement shall be construed to create any fiduciary relationship between Depository Bank and any other Party or any other Person. Depository Bank acts solely as a depository institution in the maintenance of the Accounts and not as a trustee, agent, fiduciary, or advisor to any Party. Depository Bank shall have no implied duties, obligations, or responsibilities beyond those expressly set forth in this Agreement.
ARTICLE 7 — INDEMNIFICATION
Section 7.1 — Customer's Indemnification of Depository Bank.
(a) Customer shall indemnify, defend, and hold harmless Depository Bank and each of its officers, directors, employees, agents, successors, and assigns (each, a "Depository Bank Indemnitee") from and against any and all losses, claims, damages, liabilities, obligations, penalties, judgments, awards, costs, and expenses (including reasonable and documented attorneys' fees and expenses, court costs, and costs of investigation and settlement) (collectively, "Losses") incurred by or asserted against any Depository Bank Indemnitee arising out of or relating to:
(i) any breach by Customer of any representation, warranty, covenant, or obligation of Customer under this Agreement;
(ii) any act, omission, negligence, or willful misconduct of Customer or any Person acting on behalf of Customer in connection with the Accounts or this Agreement;
(iii) Depository Bank's compliance in good faith with any instruction of Secured Party given in accordance with this Agreement;
(iv) any dispute, claim, or controversy between Customer and Secured Party, or between Customer and any third party, relating to the Accounts or the funds therein; or
(v) any tax, levy, imposition, or withholding arising from or relating to the Accounts or the funds therein, other than taxes on Depository Bank's own income.
(b) The indemnification obligations of Customer under this Section 7.1 shall survive the termination of this Agreement and the closing of the Accounts.
(c) Notwithstanding the foregoing, Customer shall not be required to indemnify any Depository Bank Indemnitee to the extent that any Loss is determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of such Depository Bank Indemnitee.
Section 7.2 — Customer's Indemnification of Secured Party.
Customer shall indemnify, defend, and hold harmless Secured Party and each of its officers, directors, employees, agents, successors, and assigns from and against any and all Losses incurred by or asserted against any of them arising out of or relating to Depository Bank's failure to comply with the terms and conditions of this Agreement, including any failure to perform the Daily Sweep, any failure to comply with Secured Party's instructions, or any unauthorized release of funds from any Account; provided, however, that this indemnification shall be subject to Secured Party's reasonable efforts to pursue available remedies directly against Depository Bank with respect to such failure.
Section 7.3 — Secured Party's Acknowledgment.
Secured Party acknowledges and agrees that it shall not be required to indemnify Depository Bank for any Losses arising under or in connection with this Agreement. Depository Bank's sole recourse for the payment of fees, charges, expenses, and indemnification obligations arising under this Agreement is against Customer, except as may otherwise be required by applicable law. Nothing in this Section 7.3 shall limit or affect any rights or remedies that Depository Bank may have against Secured Party under applicable law independent of this Agreement.
ARTICLE 8 — TERMINATION
Section 8.1 — Termination by Secured Party.
(a) This Agreement may be terminated at any time by Secured Party upon written notice to Depository Bank and Customer. Such termination shall be effective upon Depository Bank's receipt of such notice (or such later date as may be specified in the notice by Secured Party).
(b) Upon termination by Secured Party pursuant to this Section 8.1, Depository Bank shall, as directed by Secured Party in such termination notice or in subsequent written instructions: (i) transfer all funds in the Accounts to such account or accounts at such depository institution or institutions as Secured Party shall designate, by wire transfer or such other means as Secured Party shall direct; and/or (ii) release the Accounts from the control of Secured Party as Secured Party shall instruct. Depository Bank shall comply with such instructions promptly and in any event within two (2) Business Days of receipt thereof.
Section 8.2 — Termination upon Payment in Full.
(a) This Agreement shall terminate automatically upon Depository Bank's receipt of a written notice from Secured Party confirming that (i) all Secured Obligations have been indefeasibly paid in full in cash, (ii) all commitments of the Senior Lenders under the Loan Agreement have been terminated, and (iii) no further amounts are or may become owing by Customer under the Loan Documents.