SENIOR MORTGAGE LOAN AGREEMENT
dated as of June 15, 2025
among
HUDSON YARDS WEST MORTGAGE LLC, a Delaware limited liability company, as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
IRONCLAD NATIONAL BANK, N.A., a national banking association, as Administrative Agent Lead Arranger
Senior Secured Mortgage Loan in the Original Principal Amount of $475,000,000
Premises: 450 West 34th Street, New York, New York 10001
RECITALS
WHEREAS, Hudson Yards West Mortgage LLC, a Delaware limited liability company (the "Borrower"), is a single-purpose entity formed for the sole purpose of owning, developing, constructing, and operating the mixed-use transit-oriented development project known as the "Project" (as more particularly defined herein), located at 450 West 34th Street, New York, New York 10001;
WHEREAS, Borrower is the holder of a leasehold interest in certain real property located at 450 West 34th Street, New York, New York 10001, designated on the Tax Map of the City of New York, Borough of Manhattan, as Block 729, Lots 1, 5, 12, and 15 (the "Project Site"), pursuant to that certain Ground Lease dated as of June 1, 2020, between NYC Economic Development Corporation, a New York City government corporation ("NYCEDC"), as lessor, and Metropolitan Transit Development Corp., an Illinois government instrumentality ("MTDC"), as lessee, which Ground Lease was recorded in the Office of the City Register of the City of New York, New York County, under City Register File Number ("CRFN") 2020000198762, and which has been subsequently assigned to Borrower pursuant to an assignment duly consented to by NYCEDC and recorded in the Office of the City Register of the City of New York;
WHEREAS, Borrower has requested that the Lenders (as defined herein) make a senior mortgage loan to Borrower in the original principal amount of Four Hundred Seventy-Five Million and 00/100 Dollars ($475,000,000) (the "Loan") to finance a portion of the costs of the acquisition, development, construction, and initial lease-up of the Project;
WHEREAS, Ironclad National Bank, N.A., a national banking association with its principal office at 277 Park Avenue, New York, New York 10172 ("Ironclad"), is acting as Administrative Agent and Lead Arranger on behalf of the Lenders in connection with the Loan;
WHEREAS, the Lenders are willing to make the Loan to Borrower upon and subject to the terms and conditions set forth herein and in the other Loan Documents (as defined herein);
WHEREAS, the total cost of the Project is Nine Hundred Twenty Million and 00/100 Dollars ($920,000,000), which is expected to be funded from the following sources: (i) the Loan in the amount of $475,000,000, (ii) a mezzanine loan from Granite Peak Capital Partners, LP, a Delaware limited partnership (the "Mezzanine Lender"), in the amount of $200,000,000 (the "Mezzanine Loan"), (iii) equity contributions from MTDC in the amount of $200,000,000, and (iv) a transit infrastructure grant from the City of New York in the amount of $45,000,000 (the "NYC Transit Infrastructure Grant");
WHEREAS, the Loan is evidenced by the Note (as defined herein), is secured by, among other things, the Mortgage (as defined herein), the Assignment of Leases and Rents (as defined herein), and the other Loan Documents, and this Agreement sets forth the terms and conditions governing the Loan, including conditions to disbursement, representations and warranties, affirmative and negative covenants, financial covenants, events of default, and remedies available to Administrative Agent and the Lenders; and
WHEREAS, Metropolitan Transit Development Corp. has agreed to execute and deliver a limited guaranty (with recourse carve-outs) and a completion guaranty in connection with the Loan, as more particularly described herein.
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 hereto agree as follows:
ARTICLE 1 — DEFINITIONS AND CONSTRUCTION
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
"Acceptable Accountant" means a nationally or regionally recognized independent certified public accounting firm reasonably acceptable to Administrative Agent. As of the date hereof, Whitfield Albrecht & Co. LLP qualifies as an Acceptable Accountant.
"Acceptable Environmental Consultant" means an environmental consulting firm with recognized expertise in environmental site assessments and remediation, reasonably acceptable to Administrative Agent. As of the date hereof, Apex Environmental Consultants, Inc. qualifies as an Acceptable Environmental Consultant.
"Acceptable Insurer" means an insurance company that has and maintains claims-paying ability ratings of at least "A–" by Pinnacle Ratings Group (or an equivalent rating from another nationally recognized insurance rating agency reasonably acceptable to Administrative Agent).
"Accounts" means, collectively, the Lockbox Account, the Cash Management Account, the Interest Reserve Account, the Tax and Insurance Reserve Account, the Replacement Reserve Account, the Completion/Stabilization Reserve Account, the Ground Rent Reserve Account, and each other deposit account established under or in connection with Article 7 of this Agreement or any other Loan Document.
"Additional Lender" means each lender that becomes a party hereto after the Closing Date pursuant to Section 14.2 (Assignments by Lenders).
"Administrative Agent" means Ironclad National Bank, N.A., a national banking association, in its capacity as administrative agent for and on behalf of the Lenders under this Agreement and the other Loan Documents, together with its successors and assigns in such capacity.
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with, such Person. For purposes of this definition, "Control" (including the correlative terms "Controlled by" and "under common Control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other equity interests, by contract, or otherwise.
"Agreement" means this Senior Mortgage Loan Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Anti-Terrorism Laws" means, collectively, Executive Order No. 13224 on Terrorist Financing (effective September 24, 2001), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) (Pub. L. 107-56), the Bank Secrecy Act (31 U.S.C. §§ 5311-5332), and all regulations promulgated thereunder and all related governmental guidance, as each may be amended, supplemented, or replaced from time to time.
"Appraisal" means the appraisal of the Project prepared by Broadstreet Appraisal Group, Inc. (File No. BAG-25-1092) dated April 1, 2025, and any update, amendment, or replacement thereof required or permitted under this Agreement, in each case prepared by a MAI-designated appraiser in compliance with the requirements of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and all applicable regulations promulgated thereunder.
"Appraised Value" means One Billion Twenty-Five Million and 00/100 Dollars ($1,025,000,000) (as-stabilized), as set forth in the Appraisal, or such other value as may be determined by an updated Appraisal delivered in accordance with this Agreement.
"Assignment of Leases and Rents" means the Assignment of Leases, Rents, and Profits of even date herewith from Borrower to Administrative Agent, for the benefit of the Lenders, assigning to Administrative Agent all of Borrower's right, title, and interest in and to all leases, rents, issues, profits, and revenues derived from or relating to the Project, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Benchmark Replacement" means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by Administrative Agent for the applicable Benchmark Replacement Date: (a) the sum of (i) Daily Simple SOFR and (ii) the related Benchmark Replacement Adjustment; or (b) the sum of (i) the alternate benchmark rate that has been selected by Administrative Agent and Borrower as the replacement for the then-current Benchmark giving due consideration to any evolving or then-prevailing market convention for determining a benchmark rate of interest for U.S. Dollar-denominated syndicated credit facilities at such time, and (ii) the related Benchmark Replacement Adjustment.
"Benchmark Replacement Adjustment" means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by Administrative Agent and Borrower giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. Dollar-denominated syndicated credit facilities at such time.
"Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all available tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any available tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component), or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all available tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any available tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all available tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
"Borrower" means Hudson Yards West Mortgage LLC, a Delaware limited liability company, and its successors and permitted assigns.
"Borrower's Counsel" means Calderwood & Harkness LLP, One Liberty Plaza, 55th Floor, New York, New York 10006.
"Budget" means the Approved Project Budget attached hereto as Exhibit C, reflecting a total Project cost of $920,000,000 and a guaranteed maximum price of $412,000,000 under the Cobalt GMP Contract, as the same may be modified from time to time in accordance with
"Builder's Risk Insurance" means builder's risk insurance in an amount of not less than Five Hundred Million and 00/100 Dollars ($500,000,000) (replacement cost), on an "all-risk" completed value form, issued by Fortis Indemnity Insurance Co. or another Acceptable Insurer, arranged through Castleton Insurance Brokerage, Inc.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which national banking associations in the City of New York, State of New York, are authorized or required by law, executive order, or governmental decree to be closed; provided that, for purposes of any calculations or determinations relating to SOFR or Term SOFR, "Business Day" shall also mean a day that is a U.S. Government Securities Business Day.
"Cash Management Account" means the segregated deposit account established with Administrative Agent pursuant to Section 7.2.
"Cash Management Period" means the period commencing upon the occurrence of a Cash Sweep Trigger and continuing until the applicable Cure Conditions have been satisfied in accordance with Section 7.3.
"Cash Sweep" has the meaning ascribed to it in Section 7.2(e).
"Cash Sweep Trigger" means either (a) the Debt Service Coverage Ratio, as tested quarterly on a trailing twelve-month basis, falling below for any fiscal quarter, or (b) the occurrence and continuance of an Event of Default.
"Casualty" means any damage to or destruction of all or any material portion of the Project by fire, flood, earthquake, hurricane, act of God, or other casualty event, whether or not covered by insurance.
"Closing Costs" means all costs, fees, and expenses incurred in connection with the closing of the Loan, including the Origination Fee, title insurance premiums, survey costs, recording fees, mortgage recording taxes, legal fees and disbursements of Administrative Agent's counsel (Clearfield & Associates LLP), escrow fees, appraisal fees, environmental report costs, and all other costs and expenses set forth in the Budget or otherwise required in connection with the Loan.
"Closing Date" means June 15, 2025, or such other date on which the conditions precedent set forth in Section 5.1 are first satisfied or waived by Administrative Agent.
"Cobalt GMP Contract" means the Guaranteed Maximum Price Construction Contract (Contract No. CCG-HYW-2025-001) dated on or about the date hereof between Borrower, as owner, and Cobalt Construction Group, Inc., as general contractor, providing for a guaranteed maximum price of $412,000,000 for the construction of the Improvements, as the same may be amended, restated, supplemented, or otherwise modified from time to time with the prior written consent of Administrative Agent.
"Combined Debt" means the aggregate outstanding principal amount of the Loan and the Mezzanine Loan at any given time.
"Combined Debt Yield" means the ratio, expressed as a percentage, of Net Operating Income (calculated on a stabilized, annualized basis) to the then-outstanding Combined Debt. As projected at Stabilization: 8.62% ($58,200,000 ÷ $675,000,000).
"Combined LTV" means the ratio, expressed as a percentage, of Combined Debt to the Appraised Value. As of the Closing Date: 65.85% ($675,000,000 ÷ $1,025,000,000).
"Completion Guaranty" means the Completion Guaranty of even date herewith executed by MTDC Guarantor in favor of Administrative Agent for the benefit of the Lenders, pursuant to which MTDC Guarantor guarantees the lien-free completion of the Improvements in accordance with the Plans and Specifications and the Budget, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Condemnation" means any taking or threatened taking of all or any portion of the Project (including any temporary taking) by any Governmental Authority, or any transfer made in lieu of or in anticipation of the exercise of the right of eminent domain or condemnation.
"Conforming Changes" means, with respect to either the use or administration of Term SOFR or the use, administration, adoption, or implementation of any Benchmark Replacement, any technical, administrative, or operational changes (including changes to the definition of "Business Day," the definition of "U.S. Government Securities Business Day," the definition of "Interest Period," timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative, or operational matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
"Construction Consultant" means Trident Structural Engineers, P.C. (Dr. Rajesh Banerjee, PE, principal-in-charge), or such other qualified construction consulting firm as may be engaged by Administrative Agent from time to time and reasonably acceptable to Borrower.
"Construction Period" means the period commencing on the Closing Date and ending on the date on which Substantial Completion is achieved and certified by the Construction Consultant and Administrative Agent.
"Control" has the meaning ascribed to it in the definition of "Affiliate."
"Cure Conditions" means, with respect to a Cash Sweep Trigger: (a) in the case of a Cash Sweep Trigger arising from a DSCR shortfall under clause (a) of the definition of Cash Sweep Trigger, the DSCR equaling or exceeding for two (2) consecutive fiscal quarters following the quarter in which the Cash Sweep Trigger occurred; and (b) in the case of a Cash Sweep Trigger arising from an Event of Default under clause (b) of the definition of Cash Sweep Trigger, the applicable Event of Default having been cured to the satisfaction of Administrative Agent or waived in writing by Administrative Agent (acting at the direction of Required Lenders).
"Daily Simple SOFR" means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining "Daily Simple SOFR" for business loans, as Administrative Agent may modify such conventions from time to time in its reasonable discretion.
"Debt Service" means, for any period, the aggregate amount of all scheduled payments of principal (if any) and interest on the Loan and, where the context requires (including for purposes of calculating the combined DSCR), the Mezzanine Loan, during such period, including amounts in respect of mandatory prepayments but excluding amounts in respect of voluntary prepayments.
"Debt Yield" means the ratio, expressed as a percentage, of Net Operating Income (calculated on a trailing twelve-month annualized basis, or, if twelve months of operating history are not available, on a projected annualized basis reasonably acceptable to Administrative Agent) to the then-outstanding principal balance of the Loan, or, where the context requires (including for purposes of financial covenant testing under Section 10.2), to the then-outstanding Combined Debt.
"Default" means any event, circumstance, or condition that, with the giving of notice, the passage of time, or both, would constitute an Event of Default under this Agreement.
"Default Rate" means a rate per annum equal to Term SOFR plus seven hundred and twenty-five basis points (7.25%) (which is three hundred basis points (3.00%) above the Interest Rate), but in no event less than the then-current Interest Rate plus three hundred basis points (3.00%) per annum.
"Draw Request" means a request by Borrower for an Advance of Loan proceeds, substantially in the form of Exhibit D attached hereto, together with all supporting documentation required under Section 3.2.
"DSCR" or "Debt Service Coverage Ratio" means, for any trailing twelve-month period (or such shorter period as may be applicable following the commencement of operations), the ratio of (a) Net Operating Income for such period to (b) Debt Service for such period. The DSCR shall be tested quarterly, and the minimum covenant level is 1.20x on a combined basis (i.e., calculated using combined Net Operating Income, combined Debt Service on the Loan and the Mezzanine Loan, and Combined Debt, as applicable).
"Environmental Indemnity" means the Environmental Indemnity Agreement of even date herewith executed by Borrower and MTDC Guarantor in favor of Administrative Agent for the benefit of the Lenders.
"Environmental Laws" means all federal, state, and local laws, statutes, ordinances, rules, regulations, orders, and decrees relating to pollution, the protection of human health or safety, the environment, or the handling, treatment, storage, disposal, generation, manufacture, transportation, or release of Hazardous Materials, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.), and the New York State Environmental Conservation Law, as each may be amended from time to time.
"Environmental Report" means the Phase I Environmental Site Assessment prepared by Apex Environmental Consultants, Inc. (Project No. AEC-NY-25-0337) dated March 20, 2025, together with any Phase II or other supplemental environmental reports prepared in connection with the Project.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
"Event of Default" has the meaning ascribed to it in Section 12.1.
"Excess Cash Flow" means, for any period, the amount, if any, by which Receipts from the Project during such period exceed the sum of all amounts required to be paid or deposited in accordance with clauses (a) through (d) of the Waterfall set forth in Section 7.2.
"Exit Fee" means an amount equal to twenty-five hundredths of one percent (0.25%) of the then-outstanding principal balance of the Loan (or, in the case of a partial prepayment, 0.25% of the amount prepaid), payable upon repayment of the Loan (whether at maturity, upon acceleration, or upon prepayment, whether voluntary or mandatory).
"Extension Conditions" has the meaning ascribed to it in Section 2.7(c).
"Extension Option" means each of the First Extension Option and the Second Extension Option, as set forth in Section 2.7.
"Final Extended Maturity Date" means June 15, 2031.
"First Extension Maturity Date" means June 15, 2030.
"First Extension Option" has the meaning ascribed to it in Section 2.7(a).
"Fiscal Year" means the twelve-month period ending on December 31 of each calendar year, or such other fiscal year as Borrower may adopt with the prior written consent of Administrative Agent.
"Force Majeure" means any event or circumstance beyond the reasonable control of Borrower (excluding financial inability), including acts of God, fire, flood, earthquake, hurricane, pandemic, epidemic, war, terrorism, riot, civil unrest, labor strike or lockout (not caused by Borrower), governmental action or inaction, or unavailability of materials or labor due to industry-wide shortage; provided, however, that Force Majeure shall not extend any deadline by more than one hundred eighty (180) days in the aggregate without the prior written consent of Administrative Agent.
"General Contractor" means Cobalt Construction Group, Inc., a New York corporation, in its capacity as general contractor under the Cobalt GMP Contract.
"GMP" means the guaranteed maximum price of Four Hundred Twelve Million and 00/100 Dollars ($412,000,000) under the Cobalt GMP Contract.
"Governmental Authority" means any federal, state, county, municipal, or other governmental or quasi-governmental authority, department, commission, board, bureau, agency, or instrumentality, domestic or foreign, or any court, tribunal, or arbitrator.
"Ground Lease" means the ground lease dated June 1, 2020, between NYCEDC, as lessor, and MTDC, as lessee, recorded in the Office of the City Register of the City of New York under CRFN 2020000198762, as subsequently assigned to Borrower, as the same may be amended, restated, supplemented, or otherwise modified from time to time with the prior written consent of Administrative Agent.
"Ground Rent" means Four Million Two Hundred Thousand and 00/100 Dollars ($4,200,000) per annum, payable in accordance with the Ground Lease, subject to adjustment based on the Consumer Price Index ("CPI") escalation provisions in the Ground Lease, which provide for adjustment every five (5) years during the term of the Ground Lease.
"Guarantor" or "MTDC Guarantor" means Metropolitan Transit Development Corp., an Illinois government instrumentality with its principal office at 200 South Michigan Avenue, Suite 3100, Chicago, Illinois 60604.
"Guaranty" means the Guaranty of even date herewith executed by MTDC Guarantor in favor of Administrative Agent for the benefit of the Lenders, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Hazardous Materials" means any substance, material, or waste that is regulated, classified, or otherwise characterized under any Environmental Law as "hazardous," "toxic," "pollutant," "contaminant," "radioactive," or words of similar meaning or effect, including petroleum and petroleum by-products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead-based paint, radon gas, and per- and polyfluoroalkyl substances (PFAS).
"Improvements" means the mixed-use transit-oriented development to be constructed on the Project Site in accordance with the Plans and Specifications, including all buildings, structures, fixtures, landscaping, infrastructure, site work, and related improvements.
"Impositions" means all real estate taxes, personal property taxes, assessments (general and special), water rates, sewer rents, business improvement district assessments, and all other taxes, charges, levies, and assessments of every kind and nature whatsoever, whether general or special, ordinary or extraordinary, foreseen or unforeseen, which at any time may be assessed, levied, confirmed, imposed upon, or become a lien or charge on the Project or any part thereof.
"Indemnified Parties" has the meaning ascribed to it in Section 17.1.
"Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes.
"Initial Maturity Date" means June 15, 2029, which is forty-eight (48) months from the Closing Date.
"Insurance Broker" means Castleton Insurance Brokerage, Inc.
"Intercreditor Agreement" means the Intercreditor Agreement of even date herewith among Administrative Agent (for the benefit of the Lenders), Granite Peak Capital Partners, LP (as Mezzanine Lender), Borrower, and Mezzanine Borrower, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Interest Period" means the period commencing on the Closing Date (for the first Interest Period) or on the last day of the immediately preceding Interest Period (for each subsequent Interest Period), and ending on the numerically corresponding day of the next succeeding calendar month (or, if there is no numerically corresponding day in such month, the last day of such month); provided that (a) no Interest Period shall extend beyond the Maturity Date, (b) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the following calendar month, in which case such Interest Period shall end on the immediately preceding Business Day, and (c) each Interest Period shall be one (1) month in duration.
"Interest Rate" means a rate per annum equal to Term SOFR (determined at the beginning of each Interest Period) plus four hundred and twenty-five basis points (4.25%); provided that the SOFR Floor shall apply.
"Late Charge" means an amount equal to five percent (5%) of any payment of principal, interest, or other amount not received by Administrative Agent within five (5) Business Days of its due date.
"Lead Arranger" means Ironclad National Bank, N.A., in its capacity as sole lead arranger and sole bookrunner for the Loan.
"Leasing Threshold" means eighty-five percent (85%) economic occupancy of the leasable area of the Project, calculated on the basis of aggregate contractual rent under executed and commenced leases divided by aggregate potential gross rent at then-current market rental rates.
"Leasing Threshold Deadline" means September 15, 2029, which is thirty (30) months following the projected first Temporary Certificate of Occupancy date of March 15, 2028; provided that such date shall be adjusted day-for-day for any permitted extension of the Projected TCO Date due to Force Majeure.
"Legal Requirements" means all federal, state, county, municipal, and other governmental and quasi-governmental statutes, laws, rules, orders, regulations, ordinances, codes, judgments, decrees, and injunctions affecting Borrower, Guarantor, the Project, or the construction, use, alteration, or operation thereof, whether now or hereafter enacted and in force.
"Lenders" means, collectively, Ironclad National Bank, N.A. (in its capacity as a Lender hereunder), Ridgeline Savings Bank, Atlas Mutual Insurance Company, Commonwealth Trust Company, Harborview Federal Savings Bank, Meridian Pacific Bank, and each Additional Lender, and their respective successors and assigns.
"Loan" means the senior mortgage loan in the original principal amount of Four Hundred Seventy-Five Million and 00/100 Dollars ($475,000,000) made by the Lenders to Borrower pursuant to this Agreement.
"Loan Documents" means, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases and Rents, the Environmental Indemnity, the Guaranty, the Completion Guaranty, the Intercreditor Agreement, the Lockbox Agreement, the deposit account control agreements, and each other agreement, instrument, certificate, or document now or hereafter executed and delivered by Borrower, Guarantor, or any other Person in connection with the Loan, as each may be amended, restated, supplemented, or otherwise modified from time to time.
"Lockbox Account" means the segregated, hard lockbox deposit account established with Administrative Agent pursuant to Section 7.1.
"Lockbox Agreement" means the Lockbox Agreement of even date herewith among Borrower, Administrative Agent, and the depository bank (if different from Administrative Agent) with respect to the Lockbox Account.
"Losses" means any and all claims, demands, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses, and disbursements of any kind or nature whatsoever (including reasonable attorneys' fees and expenses), whether foreseeable or unforeseeable.
"LTV" or "Loan-to-Value Ratio" means the ratio, expressed as a percentage, of the then-outstanding principal balance of the Loan (or, where the context requires, Combined Debt) to the Appraised Value. The maximum covenant level for Combined LTV is 70.0%. As of the Closing Date: Senior LTV = 46.34% ($475,000,000 ÷ $1,025,000,000); Combined LTV = 65.85% ($675,000,000 ÷ $1,025,000,000).
"Major Lease" means any lease (a) for more than 20,000 rentable square feet of space in the Project, (b) with a term (including renewal options) exceeding fifteen (15) years, (c) with a tenant that is an Affiliate of Borrower or Guarantor, or (d) that contains terms materially inconsistent with the standard form lease approved by Administrative Agent.
"Material Adverse Effect" means any event, circumstance, condition, or change that, individually or in the aggregate, has had a material adverse effect on: (a) the business, assets, liabilities, financial condition, or results of operations of Borrower or Guarantor; (b) the value, condition, or operation of the Project; (c) the ability of Borrower or Guarantor to perform any of their respective obligations under the Loan Documents; or (d) the validity, enforceability, or priority of the liens and security interests created by the Loan Documents.
"Material Agreement" means each agreement listed on Schedule 4.18 and any other agreement that is material to the development, construction, use, operation, or value of the Project.
"Maturity Date" means the Initial Maturity Date, as the same may be extended to the First Extension Maturity Date or the Final Extended Maturity Date pursuant to the exercise of the Extension Options in accordance with Section 2.7.
"Mezzanine Borrower" means Hudson Yards West Mezzanine LLC, a Delaware limited liability company, which is the direct parent entity of Borrower and the borrower under the Mezzanine Loan.
"Mezzanine Lender" means Granite Peak Capital Partners, LP, a Delaware limited partnership, in its capacity as lender under the Mezzanine Loan.
"Mezzanine Loan" means the mezzanine loan in the original principal amount of Two Hundred Million and 00/100 Dollars ($200,000,000) from Mezzanine Lender to Mezzanine Borrower, bearing interest at a fixed rate of 11.50% per annum, secured by a pledge of one hundred percent (100%) of the membership interests in Borrower.
"Mortgage" means the Mortgage, Assignment of Leases and Rents, Security Agreement, and Fixture Filing of even date herewith from Borrower, as mortgagor, to Administrative Agent, as mortgagee, for the benefit of the Lenders, encumbering the Project Site and all Improvements thereon, to be recorded in the Office of the City Register of the City of New York, New York County, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"MTDC" means Metropolitan Transit Development Corp., an Illinois government instrumentality with its principal office and headquarters at 200 South Michigan Avenue, Suite 3100, Chicago, Illinois 60604.
"Net Operating Income" or "NOI" means, for any period, gross revenues derived from the ownership and operation of the Project during such period (including base rent, percentage rent, escalation charges, parking revenues, and other income), less Operating Expenses for such period, calculated in accordance with the cash-basis methodology approved by Administrative Agent or, if Administrative Agent so elects, in accordance with GAAP. Stabilized NOI is projected at Fifty-Eight Million Two Hundred Thousand and 00/100 Dollars ($58,200,000) per annum.
"Note" means the Promissory Note of even date herewith in the original principal amount of $475,000,000 made by Borrower payable to the order of Administrative Agent for the ratable benefit of the Lenders, substantially in the form of Exhibit B attached hereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"NYCEDC" means NYC Economic Development Corporation, a New York City government corporation, in its capacity as ground lessor under the Ground Lease.
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"Operating Expenses" means all costs and expenses of owning, operating, maintaining, managing, repairing, and insuring the Project, including property management fees, Ground Rent, real estate taxes, insurance premiums, utilities, repairs and maintenance, and other customary operating expenses, but excluding Debt Service, depreciation, amortization, capital expenditures funded from the Replacement Reserve, and income taxes of Borrower.
"Organizational Documents" means, with respect to any Person that is a limited liability company, its certificate of formation and limited liability company agreement (or equivalent organizational documents), together with all amendments thereto; with respect to any Person that is a corporation, its certificate of incorporation and bylaws (or equivalent organizational documents), together with all amendments thereto; and with respect to any other Person, the comparable organizational, constituent, and governing documents thereof.
"Origination Fee" means Four Million Seven Hundred Fifty Thousand and 00/100 Dollars ($4,750,000), which is equal to one percent (1.00%) of the original principal amount of the Loan.
"Outside Completion Date" means the date that is twelve (12) months after the Projected Substantial Completion Date (i.e., December 15, 2028), subject to extension due to Force Majeure for a period not to exceed one hundred eighty (180) days (i.e., not later than June 14, 2029).
"Patriot Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56), as amended from time to time.
"Payment Date" means the fifteenth (15th) day of each calendar month during the term of the Loan, commencing on July 15, 2025, or, if any such day is not a Business Day, the next succeeding Business Day.
"Permitted Debt" means (a) the Loan, (b) the Mezzanine Loan, (c) trade payables incurred in the ordinary course of business and not more than sixty (60) days past due, (d) obligations under equipment leases in the ordinary course of business, and (e) such other indebtedness as Administrative Agent may approve in writing.
"Permitted Encumbrances" means those liens, encumbrances, exceptions, restrictions, easements, rights-of-way, and other matters set forth on Schedule 1.1(a) attached hereto.
"Permitted Investments" means (a) direct obligations of the United States of America or obligations the timely payment of which is fully guaranteed or insured by the United States of America, (b) certificates of deposit, time deposits, and money market deposits issued by Administrative Agent or any other commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than $500,000,000, and (c) such other investments as Administrative Agent may approve in writing.
"Permitted Transfer" means (a) the leasing of space in the Project in accordance with the Loan Documents, (b) transfers of non-controlling interests in MTDC or entities above Mezzanine Borrower in the ownership structure, subject to the conditions and limitations set forth in Section 10.1(c), and (c) such other transfers as Administrative Agent may approve in writing.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, estate, unincorporated organization, Governmental Authority, or other entity of any kind or nature.
"Plans and Specifications" means the plans and specifications for the Improvements as approved by Administrative Agent prior to the Closing Date, and as the same may be modified from time to time in accordance with the terms of this Agreement and the Cobalt GMP Contract.
"Pro Rata Share" means, with respect to each Lender, the percentage set forth opposite such Lender's name on Schedule 2.1 (as the same may be adjusted from time to time to reflect assignments pursuant to Article 14), representing such Lender's proportionate share of the total Loan commitments.
"Proceeding" means any claim, litigation, investigation, action, suit, arbitration, or governmental proceeding, whether at law or in equity, before any Governmental Authority.
"Project" means the mixed-use transit-oriented development to be constructed on the Project Site, including all Improvements, personal property, fixtures, equipment, and other assets located thereon or relating thereto.
"Project Site" means the real property located at 450 West 34th Street, New York, New York 10001, designated on the Tax Map of the City of New York, Borough of Manhattan, as Block 729, Lots 1, 5, 12, and 15, together with all appurtenances, easements, and rights-of-way pertaining thereto, as more particularly described in Exhibit A attached hereto.
"Projected Substantial Completion Date" means December 15, 2027.
"Projected TCO Date" means March 15, 2028.
"Property Manager" means Evergreen Property Management LLC (Teresa Langford, Principal), or such other property management company as may be approved by Administrative Agent in accordance with the terms of this Agreement.
"Protective Advances" means any payments or advances made by Administrative Agent or any Lender to protect the security of the Loan or the collateral, including payments for real estate taxes, insurance premiums, Ground Rent, necessary repairs, or other amounts required to preserve the value and condition of the Project or to prevent a default under the Ground Lease or any other Material Agreement, all of which shall be added to the outstanding principal balance of the Loan and shall bear interest at the Default Rate.
"Qualified Manager" means a property management company
"Receipts" means all rents, revenues, income, proceeds, profits, and other amounts received by or on behalf of Borrower from the ownership, operation, or leasing of the Project, including base rent, additional rent, percentage rent, parking revenues, and any other amounts payable by tenants or other occupants of the Project.
"Relevant Governmental Body" means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
"Replacement Reserve" means the reserve account established pursuant to Section 6.3 for the purpose of funding capital expenditures, replacements, and repairs to the Project following Substantial Completion.
"Required Lenders" means, at any time, Lenders whose aggregate Pro Rata Shares equal or exceed sixty-six and two-thirds percent (66⅔%) of the aggregate outstanding principal amount of the Loan (or, if the Loan has not been funded, 66⅔% of the aggregate commitments).
"Required Repairs" means those repairs and capital improvements identified by the Construction Consultant or Administrative Agent as necessary to maintain the Project in a condition consistent with the standards of a first-class mixed-use development.
"Restoration" means the repair, restoration, or rebuilding of the Project (or the applicable portion thereof) following a Casualty or Condemnation, in accordance with the requirements of Section 11.3.
"Restoration Conditions" has the meaning ascribed to it in Section 11.1.
"Sanctions" means any economic or financial sanctions or trade embargoes imposed, administered, or enforced from time to time by (a) the U.S. government, including those administered by OFAC, the U.S. Department of State, or the U.S. Department of Commerce, (b) the United Nations Security Council, (c) the European Union, (d) His Majesty's Treasury of the United Kingdom, or (e) any other relevant sanctions authority.
"Sanctioned Person" means, at any time, any Person that is the subject or target of Sanctions, including (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, or His Majesty's Treasury of the United Kingdom, (b) any Person operating, organized, or resident in a Sanctioned Country, or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
"Second Extension Option" has the meaning ascribed to it in Section 2.7(b).
"SOFR" means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
"SOFR Floor" means a rate of one percent (1.00%) per annum.
"Special Purpose Entity" or "SPE" means a limited liability company, limited partnership, or other legal entity that satisfies the SPE Covenants set forth in Section 8.18 and such entity's Organizational Documents.
"SPE Covenants" has the meaning ascribed to it in Section 8.18.
"Stabilization" means the date on which (a) the Leasing Threshold has been achieved, (b) actual NOI for the trailing twelve-month period equals or exceeds ninety percent (90%) of the stabilized NOI projected in the Appraisal ($58,200,000 per annum), and (c) the Construction Period has ended.
"Subordination Agreement" means any agreement by which the holder of any lien or claim against the Project or any portion thereof subordinates such lien or claim to the lien of the Mortgage or the rights of Administrative Agent under the Loan Documents.
"Substantial Completion" means the date on which (a) construction of the Improvements has been substantially completed in accordance with the Plans and Specifications and the Budget, as certified by the architect of record and confirmed by the Construction Consultant, (b) a Temporary Certificate of Occupancy has been issued by the New York City Department of Buildings for the applicable portions of the Improvements, and (c) all punch-list items have been identified and a reasonable escrow or holdback has been established to ensure completion thereof.
"Successor Rate" has the meaning ascribed to "Benchmark Replacement."
"Syndicate Lenders" means Ridgeline Savings Bank, Atlas Mutual Insurance Company, Commonwealth Trust Company, Harborview Federal Savings Bank, and Meridian Pacific Bank.
"Tax Reserve" means the portion of the Tax and Insurance Reserve Account relating to real estate taxes and assessments.
"TCO" or "Temporary Certificate of Occupancy" means a temporary certificate of occupancy issued by the New York City Department of Buildings for all or any portion of the Improvements, authorizing the use and occupancy of the applicable portion of the Improvements.
"Term SOFR" means the forward-looking term rate based on SOFR for the applicable Interest Period, as published by CME Group Benchmark Administration Limited (or any successor administrator), and, if such rate is less than the SOFR Floor, Term SOFR shall be deemed to be the SOFR Floor for all purposes under this Agreement and the other Loan Documents.
"Title Company" means Sentinel Title & Escrow Company.
"Title Insurance Policy" means the ALTA 2006 form lender's title insurance policy (or, prior to issuance, the commitment for such policy) (Commitment No. STN-2025-MH-04178) in the amount of $475,000,000 issued or to be issued by Sentinel Title & Escrow Company, insuring the lien of the Mortgage as a valid first-priority leasehold mortgage lien on the Project Site, subject only to Permitted Encumbrances, together with such endorsements as Administrative Agent shall require.
"Total Project Cost" means Nine Hundred Twenty Million and 00/100 Dollars ($920,000,000), as
"Transfer" means any sale, transfer, conveyance, assignment, pledge, encumbrance, hypothecation, or other disposition (whether voluntary, involuntary, or by operation of law) of all or any portion of the Project or any direct or indirect ownership interest in Borrower.
"UCC" means the Uniform Commercial Code as in effect from time to time in the applicable jurisdiction.
"ULURP Approval" means the Uniform Land Use Review Procedure approval granted for the Project under Application No. C 230415 ZSM, with City Planning Commission approval on September 12, 2023, and City Council approval on October 25, 2023, together with all conditions, restrictions, and requirements imposed in connection therewith.
"U.S. Government Securities Business Day" means any day except for (a) a Saturday, (b) a Sunday, or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
"Zoning Opinion" means the zoning opinion letter dated April 15, 2025, delivered by Hargrove & Linden, P.C. (Raymond Cho, Esq.), opining as to the conformity of the Project and the intended use thereof with all applicable zoning and land use requirements.
Section 1.2 — Rules of Construction
For purposes of this Agreement and each other Loan Document, the following rules of construction shall apply unless the context clearly requires otherwise:
(a) References to "Articles," "Sections," "Exhibits," and "Schedules" are references to Articles, Sections, Exhibits, and Schedules of this Agreement unless otherwise expressly stated. All Exhibits and Schedules attached hereto are incorporated herein by reference and constitute a part of this Agreement.
(b) The headings and captions used in this Agreement are inserted for convenience of reference only and shall not be considered a part of, or affect the construction or interpretation of, this Agreement.
(c) The word "including" (and with correlative meaning, "include" and "includes") means "including without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
(d) Words in the singular include the plural, and words in the plural include the singular; references to one gender include references to all other genders. References to "herein," "hereof," "hereby," "hereunder," and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement.
(e) References to any statute, law, rule, regulation, or other legislative enactment shall be deemed to include such statute, law, rule, regulation, or enactment as amended, modified, supplemented, or replaced from time to time, and any successor legislation thereto.
(f) References to any Person include such Person's successors and permitted assigns.
(g) Accounting terms not otherwise defined herein shall have the meanings ascribed to them under generally accepted accounting principles in the United States ("GAAP"), consistently applied.
(h) All references to times of day shall be to New York City time (Eastern Time), unless otherwise expressly stated.
(i) If any date specified herein for the performance of any obligation or the giving of any notice falls on a day that is not a Business Day, then the date for such performance or notice shall be deemed to be the next succeeding Business Day, and the period for performance shall be extended accordingly; provided that, with respect to any payment of interest, if such extension would cause such payment to be made in the next calendar month, such payment shall instead be due on the immediately preceding Business Day.
(j) The words "shall" and "will" have equal force and effect.
(k) References to "dollars" or the sign "$" refer to lawful currency of the United States of America.
Section 1.3 — SOFR Benchmark Provisions
(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event occurs with respect to Term SOFR, Administrative Agent and Borrower may amend this Agreement (without the consent of any other Lender, but with notice to the Lenders) to replace Term SOFR with a Benchmark Replacement in accordance with the following waterfall: (i) first, Daily Simple SOFR plus a Benchmark Replacement Adjustment, and (ii) second, if Daily Simple SOFR is not available or determinable, an alternative benchmark rate selected by Administrative Agent in good faith, in consultation with Borrower, giving due consideration to any evolving or then-prevailing market convention for determining a rate of interest for U.S. Dollar-denominated syndicated credit facilities, plus a Benchmark Replacement Adjustment. Any such amendment shall become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all Lenders and Borrower so long as Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.
(b) Conforming Changes. In connection with the implementation of a Benchmark Replacement, Administrative Agent shall have the right to make Conforming Changes from time to time, and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c) Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify Borrower and the Lenders of (i) the occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to this Section 1.3. Any determination, decision, or election that may be made by Administrative Agent or, if specified, by Required Lenders pursuant to this Section 1.3, including any determination with respect to a tenor, rate, or adjustment or of the occurrence or non-occurrence of an event, circumstance, or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 1.3.
(d) Acknowledgment. Borrower hereby acknowledges and agrees that (i) Term SOFR is a relatively new reference rate and may be discontinued or fundamentally altered in a manner that is not combatable with current market practice, (ii) any Benchmark Replacement may not be the economic equivalent of Term SOFR, and (iii) Administrative Agent does not warrant or accept responsibility for, and shall not have any liability for, the administration, submission, or any other matter related to Term SOFR, any component definition thereof, or rates referenced in the definition thereof, or any alternative, successor, or replacement rate thereto (including any Benchmark Replacement).
ARTICLE 2 — THE LOAN
Section 2.1 — Loan Amount; Commitments
(a) Subject to the terms and conditions of this Agreement, each Lender severally (and not jointly or jointly and severally) agrees to make advances (each, an "Advance") to Borrower from time to time during the Construction Period in an aggregate principal amount not to exceed such Lender's commitment as set forth on Schedule 2.1 (each, a "Commitment" and, collectively, the "Commitments"), such that the aggregate outstanding principal amount of all Advances at any time shall not exceed Four Hundred Seventy-Five Million and 00/100 Dollars ($475,000,000). Each Lender's obligation to make Advances is several and not joint, and no Lender shall be responsible for any other Lender's failure to make an Advance.
(b) The Loan is structured as a construction-to-permanent loan. During the Construction Period, Advances shall be made to Borrower pursuant to Draw Requests in accordance with Article 3. Upon the achievement of Stabilization (or, if earlier, the expiration of the Construction Period), the Loan shall convert to a permanent mortgage loan, and no further Advances shall be available.
(c) The Loan is not a revolving credit facility. Amounts repaid or prepaid by Borrower may not be reborrowed.
(d) Each Lender's Commitment and Pro Rata Share are set forth on Schedule 2.1 attached hereto, which may be amended from time to time to reflect assignments in accordance with Article 14.
Section 2.2 — Interest Rate
(a) Subject to the provisions of this Section 2.2, the outstanding principal balance of the Loan shall bear interest from the date of each Advance at a rate per annum (the "Interest Rate") equal to Term SOFR (determined on the second U.S. Government Securities Business Day preceding the first day of the applicable Interest Period) plus four hundred and twenty-five basis points (4.25%).