Building Loan Agreement, dated as of April 26, 2012



 Exhibit 10.5 

 
  

 
 DAIRYLAND HP LLC

 TO 
 COMMERCIAL LENDING II LLC 
 BUILDING LOAN AGREEMENT 

(Leasehold) 

Dated: April 26, 2012 
 Location: 200-240 Food Center Drive, Bronx, New York 
 The premises are
also known as Section 10, Block 2770, p/o Lot 1 and Section 10, Block 2781, p/o 
 Lot 500 on the Tax Map of the
City of New York for County of Bronx, City and State of New York 
 RECORD AND RETURN TO: 

Mayo Crowe LLC 
 600 North Broadway, Suite 220 
 White Plains, New York 10603

 Attention: Nicholas J. Chivily, Esq. 

 
  

 







 BUILDING LOAN AGREEMENT 

THIS BUILDING LOAN AGREEMENT made the 26th day of April, 2012, between COMMERCIAL LENDING II LLC, a Delaware limited liability company having an office at 106
Corporate Park Drive, White Plains, New York 10604 (its successors and/or assigns, hereinafter referred to as the “Lender”), and DAIRYLAND HP LLC, a Delaware limited liability company having and office located at c/o Dairyland USA
Corporation, 100 East Ridge Road, Ridgefield, Connecticut 06877 (hereinafter referred to as the “Borrower”); 

W I T N E S S E T H: 

WHEREAS the Borrower is the owner of a leasehold estate in certain premises, as more particularly described in Exhibit A (hereinafter
referred to as the “Premises”); 
 WHEREAS, at the request of the Borrower, the Lender has agreed to fund to
the Borrower a construction loan of $11,000,000.00 (hereinafter referred to as the “Building Loan”), to finance actual costs incurred by the Borrower in connection with the construction of the Improvements on the Premises by the
Borrower, as defined and described in Exhibit B; 
 WHEREAS, the Building Loan will be advanced in full on the date hereof
pursuant to the terms of this Agreement and a Loan Agreement of even date herewith (the “Loan Agreement”) into an account of the Borrower opened by the Borrower with JPMorgan Chase Bank, N.A. (the “Bank”) and
pledged to the Lender to secure the Building Loan (the “Borrower Disbursement Account”); 
 WHEREAS, the
proceeds of the Building Loan will be released from the Borrower Disbursement Account to the Borrower in connection with the construction of the Improvements on the Premises by the Borrower pursuant to the terms and conditions of this Agreement and
subject to compliance with the Loan Agreement; 
 NOW, THEREFORE, in consideration of ten dollars ($10) and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Lender and the Borrower hereby covenant and agree as follows: 
 1. Definition. All terms as used in this Agreement shall, unless otherwise defined in the main body of this Agreement, have the meaning given to such terms in Exhibit B. 

2. Note and Mortgage. The Building Loan (i) shall be evidenced by the Building Loan Note, (ii) shall be secured by the
Building Loan Mortgage constituting a lien on the leasehold estate of the Borrower in the Premises, the Improvements and other property, rights and interests of the Borrower described therein (the Premises, the Improvements and such other property,
rights and interests being hereinafter collectively referred to as the “Property”), and (iii) shall be advanced into the Borrower Disbursement Account and released therefrom for application to costs incurred by Borrower in
connection with the construction of the Improvements on the Premises in accordance with the provisions of this Agreement and the Loan Agreement. The terms and conditions and the covenants set forth therein are herein incorporated by reference.


  
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 3. The Improvements. The Borrower has submitted to the Lender and the Construction
Consultant a set of final plans and specifications for the Improvements prepared by the Architect, as more particularly described in Exhibit C attached hereto (hereinafter referred to as the “Plans and Specifications”), which Plans
and Specifications have been reviewed and accepted by the Lender and the Construction Consultant. The Borrower acknowledges that (i) the Construction Consultant has been retained by the Lender to act as a consultant and only as a consultant to
the Lender in connection with the construction of the Improvements, (ii) the Construction Consultant shall in no event or under any circumstance have any power or authority to make any decision or to give any approval or consent or to do any
other act or thing which is binding upon the Lender and any such purported decision, approval, consent, act or thing by the Construction Consultant on behalf of the Lender shall be void and of no force or effect, (iii) the Lender reserves the
right to make any and all decisions required to be made by the Lender under this Agreement and to give or refrain from giving any and all consents or approvals required to be given by the Lender under this Agreement and to accept or not accept any
matter or thing required to be accepted by the Lender under this Agreement, in each instance, in its reasonable discretion (provided that after an Event of Default hereunder, any decision or consent to be made herein shall be made at the
Lender’s sole and absolute discretion), subject to the provisions hereof but without in any instance being bound or limited in any manner or under any circumstance whatsoever by any opinion expressed or not expressed, or advice given or not
given, or information, certificate or report provided or not provided, by the Construction Consultant to the Lender or any other person or party with respect thereto, (iv) the Lender reserves the right in its sole and absolute discretion to
disregard or disagree, in whole or in part, with any opinion expressed, advice given or information, certificate or report furnished or provided by the Construction Consultant to the Lender or any other person or party, and (v) the Lender
reserves the right in its sole and absolute discretion to replace the Construction Consultant with another construction consultant at any time and without prior notice to or approval by the Borrower. The Borrower represents and warrants to the
Lender that the Plans and Specifications have been submitted to the General Contractor, and the General Contractor has agreed to perform its obligations under the Design Build Contract in a manner consistent with the requirements of the Plans and
Specifications. The Borrower represents and warrants to the Lender that (i) to the extent required by law on the basis of the present stage of development and construction of the Improvements, the Borrower has obtained from the appropriate
Governmental Authorities all required approvals (including, without limitation, all environmental approvals) with respect to the Plans and Specifications and the Improvements, and (ii) all necessary permits, certificates, licenses and other
approvals required for the construction of the Improvements have to the extent required by applicable law been issued or obtained from the appropriate Governmental Authorities and (iii) the Improvements and their contemplated use will upon
completion in accordance with the Plans and Specifications comply with all applicable zoning resolutions, building codes, environmental and other applicable laws, rules and regulations. Subject to the provisions of paragraph 4 of this
Agreement, each addition or modification to the Plans and Specifications must be acceptable to the Lender, the Construction Consultant and, to the extent required by law, shall be approved by the appropriate Governmental Authorities. The Borrower
shall not commence any work on any stage or phase of the Improvements unless all required permits, certificates, licenses and approvals therefor have been issued or obtained from appropriate Governmental Authorities. The Borrower shall construct and
equip the Improvements substantially in accordance with the Plans and Specifications free and clear of all mechanics’ liens, notices of pendency, or comparable liens or filings and all other liens, encumbrances and security instruments of any
nature whatsoever (other than those permitted under the Mortgage and the Mortgage and other exceptions to title specifically set forth in the policy of title insurance insuring the lien of the Mortgage or as may otherwise be permitted under the
Mortgage or specifically approved by the Lender). The Lender shall without additional cost or expense have the use of the Plans and Specifications as accepted by the Lender and the Construction Consultant upon the occurrence and during the
continuance (for the purposes of this Agreement, the term “continuance” shall refer to an Event of Default beyond any notice or cure period which shall not have been waived by the Lender in 

  
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 writing) of an Event of Default under the Loan Documents. The Improvements shall be constructed and equipped
in compliance with the provisions of this Agreement, the Loan Agreement and the requirements of the Governmental Authorities and the appropriate Board of Fire Underwriters, if any, or other similar body, if any, acting in and for the locality in
which the Premises are situated. Compliance with the provisions of this paragraph and any other provisions of this Agreement relating to the construction and equipping of the Improvements shall be determined by the Lender in its reasonable
discretion (provided that after an Event of Default hereunder, any decision or consent to be made herein shall be made at the Lender’s sole and absolute discretion). At all times the Lender, the Construction Consultant and their respective
agents and employees, shall have the right of entry and free access to the Premises to inspect the Improvements (subject to the rights of existing subtenants under subleases for portions of the Premises and provided that such inspections do not
unreasonably interfere with the construction of the Improvements). 
 4. Change Orders. Notwithstanding anything to the
contrary contained in this Agreement, the Borrower shall have the right to enter into or to authorize the entering into of change orders with respect to the Improvements without obtaining the Lender’s and the Construction Consultant’s
prior acceptance, provided that (i) no such change order will materially change the gross square feet or the net rentable square feet of space to be contained in the Improvements, or materially alter the basic layout of the Improvements, or the
number of parking spaces to be located on the Premises after completion of construction of the Improvements, or involve the use of materials, furniture, fixtures or equipment which will not be at least equal in quality to the materials, furniture,
fixtures and equipment originally specified in or required by the Plans and Specifications, as accepted by the Lender and the Construction Consultant, (ii) no such change order shall, in a single instance, result in an increase or decrease in
the cost of constructing the Improvements of more than $100,000, (iii) the aggregate cost of all change orders whether or not they have been accepted by the Lender and the Construction Consultant shall not, result in an increase or decrease in
the cost of constructing the Improvements of more than $250,000; and (iv) shall not extend the time for completion of the Improvements. The Borrower shall also have the right, without obtaining the Lender’s or the Construction
Consultant’s prior acceptance, to enter into change orders or field changes which do not increase or decrease the cost of constructing the Improvements, provided that the requirements of clause (i) of the preceding sentence are satisfied
with respect thereto. The Borrower shall submit to the Lender and the Construction Consultant copies of all change orders entered into with respect to the Improvements within fifteen (15) days after the same are entered into and irrespective of
whether the same require the prior acceptance of the Lender and the Construction Consultant pursuant to this Agreement. 
 5.
Commencement of Construction. The Borrower shall commence construction of the Improvements on or shortly after the Commencement Date and shall continue with such construction until the Improvements are completed in accordance with the Plans
and Specifications and the provisions of this Agreement in accordance with the project timeline approved by the Borrower and Lender. 
 6. Completion of Improvements. Subject to the provisions of paragraph 7 of this Agreement, construction of the Improvements shall be substantially completed substantially in accordance with the
Plans and Specifications and the provisions of this Agreement on or before the Completion Date. For the purposes of this Agreement, the Improvements shall not be deemed to have been completed until (i) the Improvements have, in the reasonable
opinion of the Lender and the Construction Consultant, been substantially completed (exclusive of punch list items) substantially in accordance with the Plans and Specifications, (ii) the Improvements shall contain all furniture, fixtures and
equipment required for the use and operation of the Improvements, or which may be required by any Governmental Authority or by any law, regulation or rule of any Governmental Authority, (iii) all temporary certificates of occupancy (or their
local equivalent) and all other certificates, licenses, consents and approvals required for the use and operation of the Improvements shall have been issued by or obtained from the appropriate Governmental 

  
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Authorities, (iv) all Direct Construction Costs, Other Costs of Improvement, and other costs and expenses incurred in connection with the construction and equipping of the Improvements
(other than Direct Construction Costs and other costs and expenses which will be incurred in completing punch list work, landscaping and other minor work with respect to the Improvements and which in the aggregate will not in the opinion of the
Lender and the Construction Consultant exceed $100,000, and the remaining balance of the Retainage, if any) shall have been paid in full. 
 7. Force Majeure. The Completion Date shall be extended for a period of time equal to the number of days during which the Borrower is prevented from proceeding with the construction of the
Improvements by reason of force majeure, provided that (i) no Event of Default shall have occurred and shall be continuing under the Loan Documents, (ii) the aggregate of any such respective extensions of the Completion Date
pursuant to the provisions of this paragraph shall in no event be for a period of time in excess of sixty (120) days, and (iii) the Borrower notifies the Lender of the events constituting such force majeure within 30 days after the
Borrower has knowledge of their occurrence. No extension of the Completion Date pursuant to this paragraph shall be construed as extending the maturity date of the Note. The term “force majeure” as used in this
paragraph shall include acts of God, flooding, strikes, lockouts or other labor trouble, materially adverse weather conditions, fire or other casualty, governmental preemption in connection with a national emergency, any rule, order or regulation of
any governmental agency or any department or subdivision thereof, or inability to secure materials or labor because of any such emergency, rule, order, regulation, war, civil disturbance or other emergency, cause or event beyond the reasonable
control of the Borrower. 
 8. Title Insurance and Survey. The Borrower shall deliver to the Lender a title insurance
policy or a title binder or a certificate of title of the Title Company containing the agreement of the Title Company to issue its policy of title insurance insuring the lien of the Mortgage, which title insurance policy shall be in an amount equal
to the principal amount of the Building Loan secured by the Mortgage and, shall be sufficient to satisfy all co-insurance requirements and shall otherwise be in form and substance satisfactory to and approved in all respects by the Lender and its
counsel. The Borrower shall deliver to the Lender the Preliminary Survey, which Preliminary Survey shall be certified to the Title Company and to the Lender. The state of facts shown in the Preliminary Survey shall be satisfactory in all respects to
the Lender and its counsel, the Construction Consultant and the Title Company. If the footprint of the Improvement at the Premises changes from the Preliminary Survey, the Borrower shall deliver to the Lender an as-built survey of the Improvements
within thirty (30) days after the completion of Improvements, and any additional surveys requested or required by the Lender, the Construction Consultant or the Title Company within thirty (30) days after request, it being agreed that any
change in the state of facts shown in any such updated survey shall be satisfactory in all respects to the Lender, its counsel, the Construction Consultant and the Title Company. 

9. Hazard Insurance. The Borrower shall maintain the insurance required under the Mortgaged Lease (as defined in the Building Loan
Mortgage) and in the Building Loan Mortgage, including Paragraph 3 of the Building Loan Mortgage (including without limitation the All Risk and Builder’s Risk coverage required thereunder) and furnish to the Lender (with evidence of the payment
of premiums therefor), or if the Borrower shall fail to do so after the expiration of any applicable notice and grace period, the Lender may obtain at the Borrower’s expense, insurance as required by the Building Loan Mortgage. 

  
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 10. Building Loan Advance; Release of Building Loan Proceeds. 

(a) The Building Loan shall be advanced in full by deposit into the Borrower Disbursement Account on the date hereof. The Borrower
Disbursement Account, all amounts deposited therein, and all earnings thereon, shall be pledged to, and subject to the control of, Lender. The proceeds of the Building Loan so deposited into the Borrower Disbursement Account shall be deemed advanced
under this Agreement and the Building Loan Note for all purposes and shall accrue interest at the interest rate under the Building Loan Note from and after the date of such deposit into the Borrower Disbursement Account until repaid. Borrower agrees
that it shall include in its income all interest and earnings, if any, on the funds deposited into the Borrower Disbursement Account. The Borrower Disbursement Account shall be assigned the federal tax identification number of Borrower. 

(b) Subject to compliance by the Borrower with the terms, provisions and conditions of the Loan Agreement and this Agreement, the
proceeds of the Building Loan shall be released from the Borrower Disbursement Account to the Borrower (i) for direct construction costs incurred by the Borrower in connection with the construction of the Improvements (hereinafter referred to
as “Direct Construction Costs”), as itemized in a trade breakdown schedule reviewed and accepted by the Lender and the Construction Consultant (hereinafter referred to as the “Trade Breakdown Schedule”), as the same
may be revised from time to time after the date hereof with the prior review and acceptance of the Lender and the Construction Consultant, and (ii) for costs, other than Direct Construction Costs, incurred by the Borrower in connection with the
Building Loan or the construction of the Improvements (hereinafter referred to as “Other Costs of Improvement”), as itemized in a schedule reviewed and accepted by the Lender (hereinafter referred to as the “Schedule of
Other Costs of Improvement”), as the same may be revised from time to time after the date hereof with the prior review and acceptance of the Lender. Except as hereinafter specifically provided to the contrary in paragraph 11 of this
Agreement, the Lender shall not be required to release proceeds of the Building Loan from the Borrower Disbursement Account for costs incurred by the Borrower with respect to materials stored on or off the Premises unless the Lender shall, in its
reasonable discretion, deem it advisable to so approve. The Lender shall not be obligated to release proceeds of the Building Loan from the Borrower Disbursement Account more frequently than once every thirty (30) days. Each request by
the Borrower to the Lender for a release of Building Loan proceeds from the Borrower Disbursement Account shall be in the form attached hereto as Exhibit D or in such other form as may be satisfactory in all respects to the Lender and shall in each
case be signed by a duly authorized representative of the Borrower (any such request being hereinafter referred to as a “Request for Advance”). Each Request for Advance shall be delivered to the Lender not less than fifteen
(15) days prior to the date upon which a release of Building Loan proceeds from the Borrower Disbursement Account is requested. Each Request for Advance shall be based upon the Trade Breakdown Schedule and the Schedule of Other Costs of
Improvement and shall be accompanied by (i) a currently dated sworn statement and request for partial payment from the General Contractor in the form specified in Exhibit E or in such other form as may be acceptable to the Lender and the Title
Company, as approved by the Construction Consultant, and accompanied by a waiver of lien from the General Contractor in form reasonably satisfactory to the Lender and the Title Company, (ii) such waivers of lien and other documents and
instruments as may reasonably be requested or required by the Lender with respect to subcontractors and materialmen engaged in the construction of the Improvements or as may be requested or required by the Title Company (to induce the Title Company
to insure each release of Building Loan proceeds made by the Lender pursuant to this Agreement against all mechanics’ and materialmen’s liens for labor furnished and materials supplied in connection with the construction of the
Improvements), (iii) at the request of the Lender, the requisitions for payment from subcontractors and materialmen engaged in the construction of the Improvements, and (iv) such other information and documents as may be requested or
required by the Lender or the Construction Consultant. All requests and requisitions for payment shall be approved by the Borrower and recommended for payment by the Construction Consultant. Each release of Building Loan proceeds from the Borrower
Disbursement Account shall be made, in whole or in part, (i) by crediting the amount thereof to a separate account of the Borrower to be maintained with the Lender, or (ii) in such other manner as shall be mutually agreed upon by the
Borrower and the Lender. The Lender shall not be 

  
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obligated to make aggregate releases of Building Loan proceeds from the Borrower Disbursement Account in excess of the amount, from time to time, of Verified Costs of Improvement, unless the
Lender, in its sole and absolute discretion, deems it advisable to do so. The Lender shall not be obligated to release Building Loan proceeds from the Borrower Disbursement Account unless the Lender is satisfied, in its sole and absolute discretion,
that the conditions precedent to authorizing such release from the Borrower Disbursement Account as set forth in this Agreement and all restrictions on the use of Building Loan proceeds set forth in the Loan Agreement, have been satisfied by the
Borrower. Anything in this Agreement or any other agreement made with respect to the Building Loan to the contrary notwithstanding, any release of Building Loan proceeds from the Borrower Disbursement Account or approval or acceptance given by the
Lender or the Construction Consultant, herein or therein, whether or not before or after a site observation of the Improvements by the Construction Consultant or otherwise, shall not be deemed to be an approval or acceptance by the Lender or the
Construction Consultant of any work performed thereon or approval or acceptance by the Lender or the Construction Consultant of any work or materials done or furnished with respect thereto or a representation by the Lender or the Construction
Consultant as to fitness of such work and materials for any other purpose other than to permit any release of Building Loan proceeds from the Borrower Disbursement Account as provided and required herein. 

11. Releases of Loan Proceeds for Stored Materials. Notwithstanding anything to the contrary contained in this Agreement, the
Lender shall release Building Loan proceeds from the Borrower Disbursement Account to pay for Direct Construction Costs actually incurred by the Borrower for materials which are stored on the site of the Improvements or in a bonded warehouse and
which are required in connection with the construction of the Improvements, provided that (i) such materials are consistent with the Plans and Specifications approved by the Lender and the Construction Consultant, (ii) such materials are
securely stored on site or in a bonded warehouse, properly inventoried, and otherwise marked to indicate that they are the property of the Borrower, (iii) the bills of sale and contracts under which such materials are being provided shall be in
form and substance satisfactory to the Lender and the Construction Consultant, (iv) such materials are insured against casualty, loss and theft in a manner satisfactory to the Lender, (v) the Borrower owns such materials free and clear of
all liens and encumbrances of any nature whatsoever and establishes such ownership by evidence satisfactory to the Lender, (vi) the Borrower executes and delivers to the Lender such additional security documents as the Lender shall deem
necessary to create and perfect a first lien in such materials as additional security for the payment of the Debt, (vii) [reserved] and (viii) the aggregate amount of such releases of Building Loan proceeds from the Borrower Disbursement
Account for such materials which are stored on-site and which is outstanding at any given time shall in no event exceed $250,000. The Lender shall in no event or under any circumstance have any obligation to authorize the release of any proceeds of
the Building Loan from the Borrower Disbursement Account for materials which are stored off-site unless the Lender shall agree to the contrary in its sole and absolute discretion. Any application for a release of Building Loan proceeds from the
Borrower Disbursement Account for stored materials shall be made in the form annexed hereto as Exhibit G. 
 12.
Additional Conditions to Releases of Building Loan Proceeds. The obligation of the Lender to release Building Loan proceeds from the Borrower Disbursement Account pursuant to this Agreement is subject to the following additional conditions
precedent: 
 (a) The Borrower shall invest an amount equal to the amount in excess over the Building Loan
necessary to complete the Improvements (such sum is now estimated to be approximately $9,128,468.00 plus all Indirect Project Costs incurred by the Borrower in connection with the Building Loan and the completion of the improvements (hereinafter
referred to as the “Initial Equity Requirement”) in the Property in a manner satisfactory to the Lender. The Initial Equity Requirement is the amount estimated by the Lender and the Borrower to be the amount


  
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necessary, in addition to the Building Loan, to complete the Improvements and pay all Direct Construction Costs and Indirect Project Costs. The investment of the Initial Equity Requirement by the
Borrower in the Property shall be substantiated by evidence satisfactory to the Lender. In order to comply with NMTC Program Requirements (as defined in the Loan Agreement) the Initial Equity Requirement may not be required to be advanced before the
Building Loan Proceeds are released by the Lender and may be used to complete the construction of the Improvements after all Building Loan Proceeds have been released hereunder. 

(b) Each Request for Advance shall be accompanied by a certificate or report of the Construction Consultant to the Lender
based upon a site observation of the Improvements made by the Construction Consultant not more than thirty (30) days prior to the date of such Request for Advance, in which the Construction Consultant shall in substance (i) verify that the
portion of the Improvements completed as of the date of such site observation has been completed substantially in accordance with the Plans and Specifications, and (ii) state its estimate of (aa) the percentage of construction of the
Improvements completed as of the date of such site observation on the basis of work in place as part of the Improvements and the Trade Breakdown Schedule, (bb) Direct Construction Costs actually incurred for work in place as part of the
Improvements as of the date of such site observation, (cc) the sum necessary to complete construction of the Improvements in accordance with the Plans and Specifications, and (dd) the amount of time from the date of such inspection which
will be required to complete construction of the Improvements in accordance with the Plans and Specifications. 

(c) Prior to each release of Building Loan proceeds from the Borrower Disbursement Account, the Title Company shall have
issued (i) a written continuation of title showing the leasehold interest of the Borrower in the Premises and to the Property to be vested in the Borrower and no exceptions to the title of the Property other than those exceptions appearing on
the title policy delivered at the closing of the Building Loan and previously approved by the Lender in writing, and (ii) a written commitment (or endorsement to the policy issued at closing) to insure the priority of the lien of the Building
Loan Mortgage, subject only to exceptions previously approved by the Lender in writing, for an amount equal to the full amount of each release of Building Loan proceeds from the Borrower Disbursement Account and all previous releases of Building
Loan proceeds from the Borrower Disbursement Account authorized by the Lender to the Borrower pursuant to this Agreement. If required by the Lender, such continuations of title shall contain affirmative insurance that covenants and restrictions, if
any, reported against the Property have not been violated by the Improvements. 
 (d) Prior to each release of
Building Loan proceeds from the Borrower Disbursement Account by the Lender to the Borrower pursuant to this Agreement, the Borrower shall, upon request of the Lender, furnish the Lender with evidence satisfactory to the Lender, showing payment of
all bills and charges for which releases of the Building Loan proceeds have been previously made pursuant to this Agreement. The Borrower shall also deliver to the Lender, upon request, such bills, receipts, invoices and other evidence as may
reasonably be required by the Lender to substantiate the actual incurrence by the Borrower of Direct Construction Costs and Other Costs of Improvement. 
 (e) The Borrower shall, if required by the Lender, deliver to the Lender a written statement executed by the General Contractor certifying that the General Contractor has received payment in full of all
monies owed to the General Contractor which are due and payable at such time. 

  
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 (f) The Borrower shall, if required by the Lender, deliver to the Lender a
written statement executed by each subcontractor and materialman engaged in the construction of the Improvements on behalf of the General Contractor or the Borrower certifying that each such subcontractor and materialman has received payment in full
of all monies owed to each such subcontractor and materialman by the General Contractor or by the Borrower. 

(g) Construction of the Improvements shall comply with all applicable laws, rules, restrictions, orders and regulations of
the Governmental Authorities. 
 (h) The Borrower shall have delivered to the Lender all necessary certificates,
authorizations, permits and licenses which are required to permit the construction and completion of the Improvements, as issued by the appropriate Governmental Authorities. The Borrower, to the full extent permitted by applicable law, hereby
assigns to the Lender as additional security for the payment of the Debt and the observance and performance by the Borrower of the terms, covenants and provisions of the Loan Documents all right, title and interest which the Borrower may now have or
may hereafter acquire in and to such certificates, authorization, permits and licenses. 
 (i) The Borrower shall
make available to the Construction Consultant, upon request, all shop and related drawings used in connection with the Plans and Specifications and the construction of the Improvements at the office and location where the same are kept. 

(j) The Lender and the Construction Consultant shall be of the reasonable opinion that the Improvements can be
substantially completed by the Completion Date, as the same may be extended pursuant to paragraph 7 of this Agreement. 
 (k) The Borrower shall have delivered to the Lender and the Construction Consultant a copy of the Design Build Contract, which Design Build Contract shall be in form and substance satisfactory in all
respects to the Lender. The Borrower hereby assigns to the Lender as additional security for the payment in full of the Debt and the observance and performance by the Borrower of the terms, covenants and provisions of the Loan Documents all right,
title and interest which the Borrower may now have or may hereafter acquire in and to the Design Build Contract. The Borrower shall not agree to any modification or to any termination of the Design Build Contract without the prior approval of the
Lender. The Borrower shall furnish the Lender with such information regarding the Architect as the Lender may request and the identity of the Architect shall be subject to approval by the Lender. 

(l) The Borrower shall have delivered to the Lender and the Construction Consultant a copy of the Design Build Contract,
which Design Build Contract shall be in form and substance satisfactory in all respects to the Lender. A satisfactory Design Build Contract has been received. The Borrower hereby assigns to the Lender as additional security for the payment of the
Debt and the observance and performance by the Borrower of the terms, covenants and provisions of the Loan Documents all right, title and interest which the Borrower may now have or may hereafter acquire in and to the Design Build Contract. Except
as may otherwise be permitted by paragraph 4 of this Agreement, the Borrower shall not agree to any modification or to any termination of the Design Build Contract without the prior approval of the Lender. 

  
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 (m) The Borrower shall (to the extent required by the Lender) have delivered
to the Lender and the Construction Consultant copies of all the Major Subcontracts now or hereafter 
 entered into, each of
which Major Subcontracts shall be in form and substance reasonably satisfactory in all respects to the Lender. The Borrower hereby assigns to the Lender as additional security for the payment of the Debt and the observance and performance by the
Borrower of the terms, covenants and provisions of the Loan Documents all right, title and interest which the Borrower may now have or may hereafter acquire in and to the Major Subcontracts. Except as may otherwise be permitted by paragraph 4
of this Agreement, the Borrower shall not agree to any modification or to any termination of any Major Subcontract without the prior approval of the Lender. 
 (n) The Borrower shall (to the extent required by the Lender) make available for inspection at all times by the Construction Consultant and the Lender copies of all Other Subcontracts, and shall furnish
to the Construction Consultant and the Lender, upon request, copies of the same. The Borrower hereby assigns to the Lender as additional security for the payment of the Debt and the observance and performance by the Borrower of the terms, covenants
and provisions of the Loan Documents all right, title and interest which the Borrower may now have or may hereafter acquire in and to the Other Subcontracts. Except as may otherwise be permitted by paragraph 4 (Change Orders)_of this Agreement,
the Borrower shall not agree to any modification or to any termination of the Other Subcontracts without the prior approval of the Lender. 
 (o) The Major Subcontracts, to the extent not already awarded as of the date hereof, shall be awarded in accordance with a time table reasonably acceptable to the Lender and the Construction Consultant.
The Borrower shall cause the Architect/General Contractor, to the extent required by the Lender, the Major Subcontractors and materialmen under the Major Subcontracts to respectively execute and deliver to the Lender, contemporaneously with the
execution and delivery of their respective contracts, letter agreements pursuant to the provisions of which the Architect, the General Contractor and such Major Subcontractors and Materialmen shall agree to perform their respective contracts at no
additional cost or expense for the benefit of the Lender, its nominee, or wholly-owned subsidiary, in the Event of a Default under the Loan Documents or a foreclosure of the Building Loan Mortgage which letter agreements shall be in form and
substance satisfactory to the Lender. 
 (p) Intentionally Omitted. 

(q) The Borrower shall observe and perform all of the terms, covenants and conditions of the Design Build Contract, the
Design Build Contract, the Major Subcontracts and the Other Subcontracts on the Borrower’s part to be observed or performed. 
 (r) The Lender shall not be obligated to release Building Loan proceeds from the Borrower Disbursement Account with respect to any contractor, subcontractor or materialman providing work or materials with
respect to the Improvements unless such subcontractor or materialman is providing such work or materials under a signed contract or purchase order. 
 (s) No Event of Default shall have occurred under the Note, the Building Loan Mortgage, the Loan Agreement or the other Loan Documents. . 
 All conditions and requirements of this Agreement relating to the obligation of the Lender to release Building Loan proceeds from the Borrower Disbursement Account are for the sole benefit of the Lender
and no other person or party (including, without limitation, the General Contractor and subcontractors and materialmen engaged in the construction of the Improvements) shall have the right to rely on the satisfaction


  
 -10-









 
of such conditions and requirements by the Borrower as a condition precedent to the Lender authorizing a release of the Building Loan proceeds from the Borrower Disbursement Account. The Lender
shall have the right, in its sole and absolute discretion, to waive any such condition or requirement as a condition precedent to making a release of the Building Loan proceeds from the Borrower Disbursement Account. 

13. [reserved] 

14. Contingency Reserve. A portion of the Building Loan in the amount of five percent (5%) of the cost to complete the
Improvements and pay all Direct Construction Costs and Indirect Project Costs under the Design Build Contract (hereinafter referred to as the “Contingency Reserve”) shall be reserved to cover the payment of contingencies incurred in
connection with the construction of the Improvements (including, without limitation, the payment of additional unanticipated costs incurred with respect to particular line items set forth in the Trade Breakdown Schedule and the Schedule of Other
Costs of Improvement and additional costs incurred in connection with change orders entered into in conformity with the provisions of this Agreement), and shall not be released from the Borrower Disbursement Account for any other purpose prior to
the completion of construction of the Improvements pursuant to this Agreement unless agreed to the contrary by the Lender in its sole and absolute discretion. All releases of funds designated as the Contingency Reserve shall be subject to specific
prior review and approval in all respects by the Lender. 
 15. Deficiency. The Lender shall not be obligated to make any
release of Building Loan proceeds from the Borrower Disbursement Account to the Borrower if, in the sole opinion of the Lender or the Construction Consultant, or both, the balance of the Building Loan yet to be released from the Borrower
Disbursement Account by the Lender pursuant to this Agreement plus the Initial Equity Requirement yet to be invested is at any time less (the amount by which it is less being hereinafter referred to as the “Deficiency”) than
the actual sum, as estimated by the Lender and the Construction Consultant, which will be required to complete the construction of the Improvements in accordance with the Plans and Specifications and this Agreement and to pay all Direct Construction
Costs, Other Costs of Improvement and all other costs and expenses of any nature whatsoever which will be incurred in connection with the completion of construction of the Improvements. 

Notwithstanding that the Initial Equity Requirement might not be required to be invested ahead of the release of the Building Loan
Proceeds in order to meet NMTC Program Requirements, the Borrower shall, within fifteen (15) days after being notified by the Lender that there is or will be a Deficiency or even if there is no Deficiency, if an Event of Default has occurred,
(i) deliver to the Lender evidence, reasonably satisfactory to the Lender if no Event of Default has occurred hereunder or under the Building Loan Mortgage or, if an Event of Default has occurred, in the Lender’s sole and absolute
discretion, confirming that the Borrower has sufficient available cash or reserves to make cover any such Deficiency and to pay the costs thereof when required to complete the Improvements or (ii) deposit into the Borrower Disbursement Account
an amount sufficient to eliminate the Deficiency or in the case of an Event of Default, the Initial Equity Requirement. Any amounts deposited by the Borrower into the Borrower Disbursement Account pursuant to clause (ii) of the preceding
sentence of this paragraph to cover a Deficiency shall be released from the Borrower Disbursement Account by the Lender to the Borrower and shall be applied by the Borrower to cover the payment of Direct Construction Costs and Other Costs of
Improvement incurred in connection with the construction of the Improvements, and until so released shall be held by the Borrower Disbursement Account. If an Event of Default (as hereinafter defined) shall occur and be continuing, the Lender, in
addition to all other rights which it may have, shall have the absolute and unconditional right in its discretion to apply the undisbursed balance of any Deficiency deposit, together with interest earned thereon, in whole or in part to the payment
of the Debt in such order, priority and proportion as the Lender in its sole and absolute discretion deems to be appropriate. 

  
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 16. Specific Additional Covenants of Borrower. The Borrower shall comply with each of
the following terms and conditions: 
 (a) The Borrower shall obtain and furnish to the Lender within ninety
(90) days after the completion of the Improvements the originals or copies of all temporary permanent certificates of occupancy (or their local equivalent) and all other certificates, licenses, consents and other approvals of the Governmental
Authorities which are required for the use and occupancy of the Improvements. In no event shall the Lender be required to make the last release of Building Loan proceeds from the Borrower Disbursement Account pursuant to this Agreement until a
temporary certificate of occupancy has been obtained and the Improvements have been substantially completed (except punch list items). Notwithstanding the foregoing, if Borrower shall have timely completed work and filed or submitted requests for
any such certificates and licenses, then the failure of the applicable governmental authorities to timely provide same shall not be an Event of Default hereunder. 

(b) The Borrower shall furnish to the Lender from time to time upon request (i) the names of all persons with whom
the Borrower or the General Contractor has contracted or intends to contract for the construction of the Improvements or the furnishing of labor or materials in connection therewith, (ii) a list of all unpaid bills for labor and materials with
respect to Major Contractors for the construction of the Improvements, (iii) budgets of the Borrower and revisions thereof showing estimated Direct Construction Costs and Other Costs of Improvement and other costs and expenses to be incurred in
connection with the completion of construction of the Improvements, (iv) lien waivers, receipted bills or other evidences of payment of all Direct Construction Costs, Other Project Costs and other costs and expenses incurred in connection with
the construction of the Improvements and any other costs and expenses relating to the Property, and (v) such other information relating to the Borrower, the Property, the Building Loan, the construction of the Improvements or any collateral for
the Building Loan or other source of repayment of the Building Loan, as the Lender may reasonably request. 
 (c)
The Borrower shall proceed promptly if the Improvements are partially or totally damaged or destroyed by fire or other casualty with the repair and restoration thereof and shall diligently prosecute the work of repair and restoration to completion,
it being agreed that (i) if such casualty is covered by fire or other casualty insurance, the Borrower’s obligation to proceed with such repair and restoration shall be contingent upon the Lender and the lessor under the Mortgaged Lease
(as defined in the Building Loan Mortgage) disbursing to the Borrower the proceeds of such insurance to pay the cost of such repair and restoration, and (ii) the cost of such repair and restoration shall in no event or under any circumstance be
made the basis of any advance of the Building Loan or release of Building Loan proceeds pursuant to this Agreement. If the Lender and the lessor under the Mortgaged Lease (as defined in the Building Loan Mortgage) agree to disburse insurance
proceeds for such repair and restoration, such insurance proceeds shall be disbursed on the basis of certifications of the Construction Consultant as to costs incurred by the Borrower for work in place as part of such repair and restoration and
otherwise on terms and conditions satisfactory in all respects to the Lender. 

  
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 (d) The Borrower shall pay when due all Direct Construction Costs, Other
Costs of Improvement and other costs and expenses incurred by the Borrower in connection with the construction of the Improvements or any repair and restoration of the Improvements pursuant to the provisions of this paragraph hereinabove set forth.

 (e) The Borrower shall pay all fees and charges incurred in the procuring and making of the Building Loan,
including, without limitation, reasonable attorneys’ fees incurred by the Lender, fees of the Construction Consultant, appraisal fees, and fees and expenses relating to examination of title, title insurance premiums, surveys, and mortgage
recording, documentary, transfer or other similar taxes and revenue stamps. 
 (f) The Lender shall not be
required to pay any brokerage fees or commissions arising from the making of the Building Loan and the Borrower agrees to defend, indemnify and hold the Lender harmless from and against any and all such claims in connection therewith. 

(g) The Borrower shall not assign this Agreement or the moneys to be advanced and released hereunder or convey, assign,
pledge, encumber or mortgage (except for the Building Loan Mortgage ) any part of the Property without the prior consent of the Lender, but if the Borrower does any of the foregoing, the Lender may, in its discretion, continue to release Building
Loan proceeds from the Borrower Disbursement Account to the Borrower or to those who succeed to the interest of the Borrower in the Property pursuant to the terms of this Agreement, and all sums so released shall be deemed to be releases of Building
Loan Proceeds made in pursuance and not in modification hereof and shall be evidenced and secured by the Building Loan Note and the Building Loan Mortgage. 
 17. Events of Default. The term “Event of Default” as used in this Agreement shall mean the occurrence of any one or more of the following events: 

(a) If the Borrower shall continue to be in default under any of the provisions of this Agreement for ten (10) days
after notice from the Lender in the case of any default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from the Lender in the case of any other default, provided that if such default cannot reasonably
be cured within such twenty (20) day period and the Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty 30) day period
shall be extended for so long as it shall require the Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of ninety (90) days, or shall be construed as having
the effect of extending the Completion Date as the same may be extended pursuant to paragraph 7 of this Agreement ; 
 (b) If an Event of Default shall occur and be continuing (for the purposes of this Agreement the term “continuing” meaning an Event of Default that has not been cured and such cure accepted by
the Lender or waived in writing at the Lender’s sole and absolute discretion) under the Loan Agreement, the Mortgage or any of the other Loan Documents; 
 (c) [reserved]; 
 (d) If the Improvements are not substantially
completed in accordance with the provisions of this Agreement on or before the Completion Date, as the same may be extended pursuant to paragraph 7 of this Agreement; 

  
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 (e) If construction of the Improvements is suspended for a period of ten
(10) consecutive business days other than by reason of the occurrence of an event of force majeure, or if construction of the Improvements in the reasonable judgment of the Lender or the Construction Consultant is not carried on with
reasonable diligence, or if the Lender or the Construction Consultant is of the reasonable opinion that the Improvements cannot be substantially completed by the Completion Date, as the same may be extended pursuant to paragraph 7 of this Agreement;

 (f) If the Borrower shall fail to satisfy Lender as to Borrower’s financial wherewithal to cover any
Deficiency as required in paragraph 15 of this Agreement and such failure continues for ten (10) business days after notice thereof to the Borrower; 
 (g) If the Borrower executes any chattel mortgage or other security agreement with respect to any Equipment, or if any such Equipment are not substantially in accordance with the Plans and Specifications
or are leased or purchased pursuant to any conditional sales contract or other security agreement or otherwise so that the ownership thereof will not vest unconditionally in the Borrower free from encumbrances upon being made a part of the Property,
or if the Borrower does not furnish to the Lender on request the contracts, bills of sale, statements, receipted vouchers or other agreements, under which the Borrower claims title to such materials, equipment, furniture, fixtures or articles of
personal property; or 
 Upon the occurrence of an Event of Default, the Lender (i) may, at its option and in its sole and absolute
discretion, declare the Debt immediately due and payable, and (ii) may, at its option and in its sole and absolute discretion, cease to release Building Loan proceeds from the Borrower Disbursement Account, and (iii) may pursue any and all
remedies provided for in the Loan Documents, or otherwise available. 
 18. Other Remedies. Upon the occurrence of an
Event of Default, whether or not the Debt shall be or shall have been declared due and payable or the Lender shall have instituted any foreclosure or other action for the enforcement of the Loan Documents, the Lender may, in addition to any other
remedies which the Lender may have under the Loan Documents and in the Lender’s sole and absolute discretion, (a) enter upon the Premises and complete the Improvements in accordance with the Plans and Specifications with such changes
therein as the Lender may deem appropriate (provided any such changes made by Lender would not increase the liability of any completion guarantors under any guaranties of completion) and employ watchmen to protect the Improvements, all at the risk,
cost and expenses of the Borrower, (b) at any time discontinue any work commenced in respect of the Improvements or change any course of action undertaken by it and not bound by any limitations or requirements of time whether set forth herein
or otherwise (provided any such changes made by Lender would not increase the liability of any completion guarantors under any guaranties of completion), (c) assume any construction contract made by the Borrower in any way relating to the
Improvements and take over and use all or any part of the labor, materials, equipment, furniture, fixtures and articles of personal property contracted for by the Borrower, whether or not previously incorporated into the Improvements, and
(d) in connection with any construction of the Improvements undertaken by the Lender pursuant to the provisions of this paragraph (w) engage builders, contractors, architects, engineers and others for the purpose of furnishing labor,
materials, equipment, furniture, fixtures and articles of personal property in connection with the construction of the Improvements, (x) pay, settle or compromise all bills or claims which may become liens against the Property, or any portion
thereof, or which have been or may be incurred in any manner in connection with completing construction of the Improvements, and irrespective of whether any of the same have been incurred by the Borrower, the Lender or any other person or party,
(y) pay all sums and take all action necessary to effect the discharge of liens or encumbrances on, or to effect the cure of defects in, the title of the Property, or any portion thereof, , and (z) take or refrain from taking such action
hereunder as the Lender may from time to time determine in 

  
 -14-









 
its sole discretion. The Borrower shall be liable to the Lender for all sums paid or incurred by the Lender to construct and equip the Improvements whether the same shall be paid or incurred
pursuant to the provisions of this paragraph or otherwise, and all payments made or liabilities incurred by the Lender hereunder of any kind whatsoever shall be paid by the Borrower to the Lender upon demand, with interest thereon (calculated for
the actual number of days elapsed on the basis of a 360 day year) at a rate per annum equal to the Default Rate as defined in the Note , provided that such interest rate shall in no event exceed the maximum interest rate which the Borrower may by
law pay, from the date of payment by the Lender to the date of payment to the Lender, which sums and interest shall be secured by the Mortgage. Solely for the purpose of exercising the rights granted by this paragraph, the Borrower hereby
irrevocably constitutes and appoints the Lender its true and lawful attorney-in-fact to execute, acknowledge and deliver any instruments and to do and perform any acts in the name and on behalf of the Borrower after an Event of Default. 

19. Incorporation of Provisions. The Building Loan Note and the Building Loan Mortgage are subject to the conditions,
stipulations, agreements and covenants contained in this Agreement to the same extent and effect as if fully set forth therein until this Agreement is terminated by the completion of the Improvements and the payment in full of the Debt. 

20. Further Assurances. The Borrower shall on demand of the Lender do any act or execute any additional documents required by the
Lender to confirm the lien of the Building Loan Mortgage or comply with the Lien Law of the State of New York. 
 21.
Representations and Warranties. The Borrower is duly qualified to do business in the State in which the Property is located. The Borrower (and the undersigned representatives of the Borrower) have the full power and authority to execute and
deliver this Agreement and the other Loan Documents, and the same constitute the binding and enforceable obligations of the Borrower in accordance with their terms. 
 22. Construction of Agreement. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise
describe the subject matter of such paragraphs and shall not be given any consideration in the construction of this Agreement. 

23. Trust Fund. Pursuant to Section 13 of the Lien Law of New York, the Borrower shall receive the releases of
Building Loan proceeds to be made under this Agreement and shall hold the right to receive such releases of Building Loan proceeds as a trust fund to be applied first for the purpose of paying the cost of the Improvements, and the Borrower shall
apply the same first to the payment of the cost of the Improvements before using any part of the total of the same for any other purpose. 
 24. Parties Bound, etc. The provisions of this Agreement shall be binding upon and inure to the benefit of the Borrower, the Lender and their respective successors and assigns (except as otherwise
prohibited by this Agreement). 
 25. Waivers. The Lender may at any time and from time to time waive any one or more of
the conditions contained herein, but any such waiver shall be deemed to be made in pursuance hereof and not in modification thereof, and any such waiver in any instance or under any particular circumstance shall not be effective unless in writing
and shall not be considered a waiver of such condition in any other instance or any other circumstance. 

  
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 26. Governing Law. This Agreement is and shall be deemed to be a contract entered
into pursuant to the laws of the State of New York and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of New York. 
 27. Severability. If any term, covenant or provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such term,
covenant or provision. 
 28. Notices. Any notice, request or demand given or made under this Agreement shall be in
writing and shall be hand delivered or sent by Federal Express, UPS or other reputable nationally recognized courier service (that provides written confirmation of receipt) or by postage prepaid certified mail, return receipt requested, and shall be
deemed given when actually received at the following addresses, or if delivery is refused, on the date of such refusal: 
 If
to the Lender: 
 COMMERCIAL LENDING II LLC 
 JPMorgan Chase Bank, N.A. 
 106 Corporate Park Drive 

White Plains, New York 10603 
 Attention: Patricia Stone, Senior Vice President 
 With copies to:

 JPMorgan Chase Bank, N.A. 
 270 Park Avenue, Floor 45 
 Mail Code: NY1-K875 

New York, New York 10017-2014 
 Attention: En Jung Kim 
 JPMorgan Chase Bank, N.A. 

10 S. Dearborn, 19th Floor 
 Mail Code: IL1-0953 
 Chicago, Illinois 60603-5506 

Email: nmtc.reporting@chase.com 
 Attention: NMTC Asset Manager 
 JPMorgan Chase Bank, N.A. 

Legal Department 
 237 Park Avenue, 12th Floor 
 Mail Code NY1-R065 

New York, New York 10017 
 Attention: Charles J. Janoff, Esq. 

  
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 If to the Borrower: 

Dairyland HP LLC 

c/o Dairyland USA Corporation 
 100 East Ridge Road 
 Ridgefield, Connecticut 06877 

Attention: Kenneth Clark, Chief Financial Officer 
 With a copy to: 
 Reed Smith LLP 

599 Lexington Avenue, 29th Floor 
 New York, New York 10022 
 Attention: Joseph M. Marger, Esq. 

Each party may designate a change of address by notice to the other party, given at least fifteen (15) days before such change of address is to
become effective. 
 29. Fees and Expenses. Anything in this Agreement, the Note, the Building Loan Mortgage, the Loan
Agreement or any of the other Loan Documents to the contrary notwithstanding, the Borrower shall indemnify and hold the Lender harmless and defend the Lender at the Borrower’s sole cost and expense against any loss or liability, cost or expense
(including, without limitation, reasonable attorneys’ fees and disbursements of the Lender’s counsel, whether in-house staff, retained firms or otherwise), and all claims, actions, procedures and suits arising out of or in connection with:

 (i) any ongoing matters arising out of this Agreement, the Note, the Building Loan Mortgage, the Loan
Agreement, any of the other Loan Documents or the transaction contemplated hereby or thereby, including, but not limited to the Premises, all costs of appraisal or reappraisal of all or any portion of any collateral for the Debt (including without
limitation, the Premises) and all costs of reappraisal of the Premises whether required by law or regulation of the Lender or any governmental or quasi governmental agency or of the granting by the Lender, in its sole and absolute discretion, of any
lease non-disturbance agreements, 
 (ii) any amendment to, or restructuring of, the Debt, this Agreement, the
Note, the Building Loan Mortgage or any of the other Loan Documents, and 
 (iii) any and all lawful action that
may be taken by the Lender in connection with the enforcement of the provisions of this Agreement, the Note, the Building Loan Mortgage, the Loan Agreement or any of the other Loan Documents, whether or not suit is filed in connection with the same,
or in connection with the Lender, any Guarantor of all or any portion of the Debt and/or any partner, joint venturer or shareholder thereof becoming subject of a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding;

 provided however that the above indemnifications shall exclude any and all loss or liability, cost or expense (including, but
not limited to, reasonable attorneys’ fees and disbursements of the Lender’s counsel, whether in-house staff, retained firms or otherwise), and all claims, actions, procedures and suits arising out of the gross negligence, bad faith, or
willful misconduct of the Lender, its agents and employees. 

  
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 All sums expended by the Lender on account of any of the foregoing shall be reimbursable on demand, and
until reimbursed by the Borrower pursuant hereto, shall be deemed additional principal evidenced by the Note and secured by the Mortgage and shall bear interest at the Default Rate (as defined in the Note). The obligations of the under this
paragraph shall, notwithstanding any exculpatory or other provisions of any nature whatsoever which may be set forth herein, in this Mortgage, the Note, the Building Loan Mortgage, the Loan Agreement or the other Loan Documents, constitute recourse
undertakings, obligations and liabilities of the Mortgagor and shall be secured by the Building Loan Mortgage. 
 30. [reserved]

 31. Modification. This Agreement may not be modified, amended or terminated, except by an agreement in writing
executed by the parties hereto. The Borrower acknowledges that this Agreement and the other Loan Documents set forth the entire agreement and understanding of the Lender and the Borrower with respect to the Building Loan and that no oral or other
agreements, understandings, representations or warranties exist with respect to the Building Loan other than those set forth in this Agreement and the other Loan Documents. 
 32. Affidavit. An affidavit pursuant to Section 22 of the Lien Law of New York is attached hereto as Exhibit F and made a part hereof. 

[NO FURTHER TEXT ON THIS PAGE] 

  
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 [Signature Page to Building Loan Agreement] 

IN WITNESS WHEREOF, the Lender and the Borrower have duly executed this Agreement the day and year first above written. 

 

	
	DAIRYLAND HP LLC,
	a Delaware limited liability company
	
	 By:   DAIRYLAND USA CORPORATION,

	 a New York corporation,

	 its sole member and manager

	
	 By:   /s/ Christopher Pappas

	 Name: Christopher Pappas

	 Title: Chief Executive Officer

	
	COMMERCIAL LENDING II LLC
	
	 By:   /s/ Patricia T. Stone

	Name: Patricia T. Stone
	Title: Authorized Officer



  
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 STATE OF NEW YORK
                ) 

                         
                                 ) ss: 

COUNTY OF NEW YORK             ) 

On the
16th day of April in the year 2012 before me, the
undersigned, a Notary Public in and for said State, personally appeared Christopher Pappas, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. 

/s/ Raquel Mehlman 
 Notary Public 
 Raquel Mehlman 

Notary Public State of New York 

New York County 
 LIC. #01ME6193851 
 Comm. Exp. 9/22/2012 

STATE OF NEW YORK                 ) 

                         
                                 ) ss: 

COUNTY OF WESTCHESTER      ) 
 On the 25th
day of April in the year 2012 before me, the undersigned, a Notary Public in and for said State, personally appeared Patricia T. Stone, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the
instrument. 
 /s/ Joshua S. Cole 

Notary Public 
 Joshua S. Cole 
 Notary Public, State of New York 

Qual. In Westchester Co. No. 02C06091583 

Commission Expires October 11, 2015 
  

  
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 EXHIBIT A 

(Description of Premises) 
 ALL
that certain plot, piece or parcel of land, situate, lying and being in the Borough and County of the Bronx, City and State of New York, being part of Tax Lot 1 in Block 2770 and part of Tax Lot 500 in Block 2781, and bounded and more particularly
described as follows: 
 COMMENCING at the intersection of the northerly line of Food Center Drive with the easterly right-of-way line of
Halleck Street (100 feet wide); and 
 RUNNING THENCE along the northerly right-of-way line of Food Center Drive, North 78 degrees 17 minutes 45
seconds East 1,446.07 feet to a point; 
 THENCE continuing along the same, North 86 degrees 55 minutes 54 seconds East 180.95 feet to a point
of curvature; 
 THENCE continuing along the same with a curve to the left having a radius of 264.00 feet, an arc length of 39.78 feet and a
central angle of 08 degrees 38 minutes 00 seconds to a point of tangency; 
 THENCE continuing along the same, North 78 degrees 17 minutes 54
seconds East 128.52 feet to a point of curvature; 
 THENCE continuing along the same with a curve to the right having a radius of 300.00 feet,
an arc length of 119.70 feet and a central angle of 22 degrees 51 minutes 39 seconds to a point on the curve; 
 THENCE along an existing
leasehold, North 36 degrees 29 minutes 08 seconds East 89.22 feet to a point; 
 THENCE continuing along the same, North 13 degrees 12 minutes
58 seconds East 67.43 feet to a point; and 
 THENCE continuing along the same, North 78 degrees 21 minutes 32 seconds East 39.24 feet to the
point of TRUE BEGINNING; 
 THENCE along the existing leasehold, North 11 degrees 38 minutes 28 seconds West 707.60 feet to a point; 

THENCE continuing along the same, North 78 degrees 21 minutes 32 seconds East 17.00 feet to a point; 

THENCE continuing along the same, North 11 degrees 56 minutes 13 seconds West 310.20 feet to a point; 

THENCE continuing along the same, North 23 degrees 01 minutes 04 seconds West 95.50 feet to a point; 

THENCE continuing along the same, North 37 degrees 28 minutes 49 seconds West 85.25 feet to a point; 

THENCE continuing along the same, North 41 degrees 35 minutes 56 seconds East 26.80 feet to a point; 

THENCE continuing along the same, North 56 degrees 23 minutes 24 seconds West 21.30 feet to a point; 

  
 -21-









 THENCE continuing along the same, North 24 degrees 55 minutes 08 seconds East 29.63 feet to a point being
100.37 feet, more or less, upland of the U.S. Pierhead and Bulkhead line; 
 THENCE along the proposed leasehold line, South 66 degrees 30
minutes 05 seconds East 95.49 feet to a point; 
 THENCE continuing along the same, South 60 degrees 56 minutes 09 seconds East 49.88 feet to a
point; 
 THENCE continuing along the same, South 48 degrees 26 minutes 03 seconds East 67.13 feet to a point; 

THENCE continuing along the same, South 63 degrees 04 minutes 48 seconds East 28.21 feet to a point; 

THENCE continuing along the same, South 82 degrees 41 minutes 13 seconds East 70.27 feet to a point; 

THENCE continuing along the same, South 80 degrees 25 minutes 11 seconds East 57.46 feet to a point; 

THENCE continuing along the same, South 38 degrees 59 minutes 27 seconds East 241.02 feet to a point; 

THENCE continuing along the same, South 69 degrees 12 minutes 44 seconds East 134.92 feet to a point; 

THENCE continuing along the same, South 24 degrees 13 minutes 05 seconds East 627.35 feet to a point on an existing leasehold line and being 31.98 feet,
more or less, from the U.S. Pierhead and Bulkhead line; 
 THENCE along the leasehold line, South 50 degrees 34 minutes 54 seconds West 654.52
feet to a point; 
 THENCE continuing along the same, North 39 degrees 25 minutes 06 seconds West 32.00 feet to a point on the Block Line (2770
and 2781); 
 THENCE along the Block Line, South 50 degrees 34 minutes 54 seconds West 13.65 feet to a point; thence 

THENCE along the existing lease line, North 23 degrees 27 minutes 41 seconds West 144.21 feet to a point; and 

THENCE continuing along the same, South 78 degrees 21 minutes 32 seconds West 7.30 feet to the point of TRUE BEGINNING. 

TOGETHER WITH a non-exclusive ingress/egress easement to Food Center Drive, bounded and more particularly described as follows: 

BEGINNING at the aforesaid point of TRUE BEGINNING; and 
 RUNNING THENCE along an existing leasehold, North 78 degrees 21 minutes 32 seconds East 7.30 feet to a point; 

  
 -22-









 THENCE continuing along the same, South 23 degrees 27 minutes 41 seconds East 57.38 feet to a point on a
curve; 
 THENCE along the proposed easement with a non-tangent curve to the left having a radius of 100.00 feet, an arc length of 107.93 feet,
a central angle of 61 degrees 50 minutes 18 seconds and a chord bearing South 22 degrees 46 minutes 53 seconds West 102.77 feet to a point of tangency; 
 THENCE continuing along the same, South 08 degrees 08 minutes 16 seconds East 40.97 feet to a point on a curve being the northerly right-of-way line of Food Center Drive; 

THENCE along the right-of-way line with a curve to the left having a radius of 300.00 feet, an arc length of 111.48 feet, a central angle of 21 degrees
17 minutes 25 seconds and a chord bearing North 68 degrees 11 minutes 44 seconds West 110.84 feet to a non-tangent point; 
 THENCE along an
existing leasehold, North 36 degrees 29 minutes 08 seconds East 89.22 feet to a point; 
 THENCE continuing along the same, North 13 degrees 12
minutes 58 seconds East 67.43 feet to a point; and 
 THENCE continuing along the same, North 78 degrees 21 minutes 32 seconds East 39.24 feet
to the point of TRUE BEGINNING. 

  
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 EXHIBIT B 

(Definition of Certain Terms) 

Architect: The term “Architect” as used in this Agreement shall mean Food Tech LLC having an office at 300 Ledgewood Place, Suite
304, Rockland, MA 02370 in its capacity under the Design Build Contract as Architect. 
 Design Build Contract: The term “Design
Build Contract” as used in this Agreement shall mean a certain Design Build Contract dated January 9, 2012, entered into between the Borrower and the Architect/Contractor. 
 Building Loan Mortgage: The term “Building Loan Mortgage” as used in this Agreement shall mean a certain mortgage and security agreement and assignment of lessors interest in
leases and rents dated the date hereof in the principal sum of $11,000,000.00 executed and delivered by the Borrower and intended to be duly recorded in Bronx County, State of New York securing the Building Loan Note. 

Building Loan Note: The term “Building Loan Note” as used in this Agreement shall mean a certain note dated as of the date hereof
in the principal sum of $11,000,000.00 given by the Borrower to the Lender. 
 Commencement Date: The term “Commencement
Date” as used in this Agreement shall mean the date which is sixty (60) days following the date of this Agreement. 

Completion Date: The term “Completion Date” as used in this Agreement shall mean (i) January 31, 2013 with respect to
the Phase 1 Building Renovation (Bazzini Areas) as set forth and described in the Design Build Contract, (ii) June 30, 2013 with respect to the Phase II Building Renovation (Dairyland SW) as set forth and described in the Design Build
Contract, and (iii) March 31, 2014 with respect to the Phase III Renovation (RBest Area) as set forth and described in the Design Build Contract. 
 Construction Consultant: The term “Construction Consultant” as used in this Agreement shall mean Ali Mahjouri, 100 East Ridge Road, Ridgefield, Connecticut 06877. 

Debt: The term “Debt” as used in this Agreement shall mean all principal, interest, additional interest and other sums of any
nature whatsoever which shall or may become due and payable to the Lender pursuant to the provisions of the Loan Documents. 
 General
Contractor: The term “General Contractor” as used in this Agreement shall mean Food Tech LLC in their capacity as Design Builder for the Improvements. 
 Governmental Authorities: The term “Governmental Authorities” as used in this Agreement shall mean all governmental authorities having jurisdiction over the Property. 

Improvements: The term “Improvements” as used in this Agreement shall mean renovation of the entire existing 176,406 square foot
warehouse at 240 Food Center Drive, Bronx, New York into several renovated areas: meat cooler, freezer, dairy-deli cooler, chocolate room, dry storage, refrigerated dock, dry dock, dock office, forklift charging area, employee amenities and offices.


  
 24 









 Loan Documents: The term “Loan Documents” as used in this Agreement shall
collectively mean the Building Loan Note, the Building Loan Mortgage, this Agreement, the Loan Agreement (as defined in the Mortgage) and all other documents and instruments of any nature whatsoever now or hereafter executed and delivered in
connection with the Building Loan, as the same may be amended and modified, supplemented, replaced, and restated from time to time. 
 Major
Subcontracts: The term “Major Subcontracts” as used in this Agreement shall mean any contract or contracts entered into with any single subcontractor or materialman employed by the General Contractor or the Borrower in
connection with the construction of the Improvements and providing for aggregate payments to such subcontractor or materialman equal to or in excess of $1,000,000.00. 
 Other Subcontracts: The term “Other Subcontracts” as used in this Agreement shall mean any contracts other than Major Subcontracts entered into by the General Contractor or the
Borrower with subcontractors or materialmen in connection with the construction of the Improvements. 
 Preliminary Survey: The term
“Preliminary Survey” as used in this Agreement shall mean a survey prepared by Mercator Land Surveyors dated March 1, 2012. 

Retainage: The term “Retainage” as used in this Agreement shall mean 10% of the aggregate Direct Construction Costs (until the
construction of the Improvements is 50% complete) actually incurred by the Borrower for work in place as part of the construction of the Improvements, as verified from time to time by the Construction Consultant pursuant to the provisions of this
Agreement. The Retainage shall not be released until the construction of the Improvements has been substantially completed in accordance with the Plans and Specifications accepted by the Lender and the Construction Consultant and the provisions of
this Agreement (other than punch list work, landscaping and other minor work with respect to the Improvements and which in the aggregate will not in the opinion of the Lender and the Construction Consultant exceed $100,000). In addition to the
foregoing, the portion of the Retainage being held by the Lender with respect to work or materials supplied by any particular subcontractor or materialman in connection with the construction of the Improvements will be released by the Lender, upon
request by the Borrower, provided (a) no Event of Default has occurred and is continuing under the Note, this Agreement, the Mortgage, or the other Loan Documents, (b) the Construction Consultant verifies to the Lender that such
subcontractor or materialman has completed 100% of all work and has supplied 100% of all materials in compliance with such subcontractor’s or materialman’s subcontract and in conformity with the Plans and Specifications accepted by the
Lender and the Construction Consultant, (c) such subcontractor or materialman will be paid in full upon the release of the portion of the Retainage being held with respect to such subcontractor or materialman, (d) such subcontractor or
materialman executes and delivers all lien waivers which may be reasonably requested or required by the Lender or by the Title Company to induce the Title Company to insure the lien of the Mortgage against any mechanic’s or materialman’s
lien which may be filed by such subcontractor or materialman, and (e) if required by the Lender, such release of such portion of the Retainage shall be approved by any surety company which has issued a payment or performance bond with respect
to such subcontractor or materialman. 
 Title Company: The term “Title Company” as used in this Agreement shall mean
First American Title Insurance Company of New York. 
 Verified Costs of Improvement: The term “Verified Costs of
Improvement” as used in this Agreement shall mean the aggregate, from time to time, of (a) Other Costs of Improvement actually incurred by the Borrower in connection with the construction of the Improvements and as substantiated by
evidence reasonably satisfactory to the Lender, and (b) Direct Construction Costs actually incurred by the Borrower for work in place as part of the construction of the Improvements, as verified by the Construction Consultant, from time to
time, pursuant to the provisions of this Agreement, minus the Retainage. 

  
 25 









 EXHIBIT C 

(Description of Plans and Specifications) 
 COOLER ADDITION 
  

					
	 Drawing Number:
	  	 Drawing Name:
	  	 Latest Drawing Date:

	
	STRUCTURAL
			
	S-001.00	  	Structural Notes	  	3/21/12
	S-002.00	  	Schedules	  	3/21/12
	S-101.00	  	Footing & Foundation Plan	  	3/21/12
	S-102.00	  	Slab Plan	  	3/21/12
	S-103.00	  	Roof Framing Plan	  	3/21/12
	S-201.00	  	Typical Details	  	3/21/12
	S-202.00	  	Details	  	3/21/12
	S-203.00	  	Details	  	3/21/12
	S-204.00	  	Details	  	3/21/12
	S-301.00	  	Braced Frame Details	  	3/21/12
	S-401.00	  	Elevations	  	3/21/12
	
	ARCHITECTURAL
			
	A-000.00	  	Cover Sheet	  	3/21/12
	A-101.00	  	Overall Existing Bldg Floor Plan	  	3/21/12
	A-102.00	  	Cooler Addition Plan – Section 1	  	3/21/12
	A-103.00	  	Slab Details	  	3/21/12
	A-201.00	  	Roof Plan – Cooler Addition Section 1	  	3/21/12
	A-202.00	  	Roof Details	  	3/21/12
	A-301.00	  	Exterior Elevations	  	3/21/12
	A-401.00	  	Building Sections	  	3/21/12
	A-402.00	  	Wall Sections	  	3/21/12
	A-501.00	  	Door and Room Finish Sch & Details	  	3/21/12
	A-502.00	  	Door Details	  	3/21/12
	A-601.00	  	Misc. Details Concrete	  	3/21/12
	A-701.00	  	Misc. Details Steel	  	3/21/12
	A-702.00	  	Misc. Details Steel	  	3/21/12


  
 26 










					
	 Drawing Number:
	  	 Drawing Name:
	  	 Latest Drawing Date:

	PLUMBING
	P-100.00	  	Plumbing Cover Sheet	  	3/21/12
	P-101.00	  	Plumbing Specs	  	3/21/12
	P-201.00	  	Plumbing Key Plan	  	3/21/12
	P-301.00	  	Plumbing Plan – Ground Floor – Sec 1	  	3/21/12
	P-401.00	  	Plumbing Details	  	3/21/12
	P-402.00	  	Plumbing Seismic Details	  	3/21/12
	
	ELECTRICAL
	E-011.00	  	Electrical Legend & Details	  	3/21/12
	E-012.00	  	Cooler Fire Alarm Floor Plan	  	3/21/12
	E-021.00	  	Cooler Lighting Floor Plan	  	3/21/12
	E-031.00	  	Cooler Power Floor Plan	  	3/21/12
	E-041.00	  	Luminaire Schedule & Details	  	3/21/12
	E-051.00	  	Partial Distribution One Line Diagram	  	3/21/12
	
	REFRIGERATION
	R-100.00	  	Refrigeration Cover Sheet	  	3/21/12
	R-101.00	  	Refrigeration Specs	  	3/21/12
	R-200.00	  	Cooler Key Plan	  	3/21/12
	R-201.00	  	Ground Floor – Section 1 – Cooler Refrigeration Plan	  	3/21/12
	R-100.00	  	Cooler Key Plan	  	3/21/12
	R-300.00	  	Ground Floor – Section 1 – Cooler Piping Plan	  	3/21/12
	R-400.00	  	Refrigeration Schedules	  	3/21/12
	RE-100.00	  	Electrical Cover Sheet	  	3/21/12
	RE-200.00	  	Key Plan Refrigeration Power	  	3/21/12
	RE-201.00	  	Ground Floor – Section 1 - Refrigeration Power Plan	  	3/21/12
	
	FIRE PROTECTION
	FP-100.00	  	Fire Protection Cover Sheet	  	3/21/12
	FP-101.00	  	Fire Protection Seismic Specs	  	3/21/12
	FP-201.00	  	Fire Protection Key Plan	  	3/21/12
	FP-301.00	  	Fire Protection Sprinkler Plan Ground Floor – Section 1	  	3/21/12
	FP-401.00	  	Fire Protection Details	  	3/21/12


  
 27 










					
	
	INTERIOR RENOVATIONS
	 Drawing Number:
	  	 Drawing Name:
	  	 Latest Drawing Date:

	STRUCTURAL
	S-001.00	  	Structural Notes	  	3/21/12
	S-002.00	  	Schedules	  	3/21/12
	S-101.00	  	Footing & Foundation Plan	  	3/21/12
	S-102.00	  	Footing & Foundation Plan	  	3/21/12
	S201.00	  	Details	  	3/21/12
	
	ARCHITECTURAL
	A-000.00	  	Cover Sheet	  	3/21/12
	A001.00	  	Demo Floor Plan	  	3/21/12
	A101.00	  	Main Floor Plan – Warehouse Areas	  	3/21/12
	A104.00	  	Slab Details	  	3/21/12
	A201.00	  	Roof Plan – Warehouse Areas	  	3/21/12
	A202.00	  	Roof Details	  	3/21/12
	A401.00	  	Bldg Sections	  	3/21/12
	A402.00	  	Bldg Sections	  	3/21/12
	A501.00	  	Door Schedules & Details	  	3/21/12
	A502.00	  	Room Finish Schedules & Details	  	3/21/12
	A503.00	  	Door Elevations	  	3/21/12
	A504.00	  	Door Details	  	3/21/12
	A601.00	  	Misc Details Concrete	  	3/21/12
	A701.00	  	Misc Details Steel	  	3/21/12
	A702.00	  	Misc Details Steel	  	3/21/12
	
	PLUMBING
	P-100.00	  	Plumbing Cover Sheet	  	3/21/12
	P-101.00	  	Plumbing Specs	  	3/21/12
	P-201.00	  	Plumbing Key Plan	  	3/21/12
	P-301.00	  	Plumbing Plan Ground Floor Section 2	  	3/21/12
	P-302.00	  	Plumbing Plan Ground Floor Section 3	  	3/21/12
	P-401.00	  	Plumbing Details	  	3/21/12
	P-402.00	  	Plumbing Seismic Details	  	3/21/12
	
	MECHANICAL
	M-100.00	  	HVAC Cover Sheet	  	3/21/12
	M-101.00	  	HVAC Spec Sheet	  	3/21/12
	M-200.00	  	HVAC Keyplan	  	3/21/12
	M-201.00	  	HVAC Floor Plan Section 2	  	3/21/12
	M-202.00	  	HVAC Floor Plan Section 3	  	3/21/12


  
 28 










					
	 Drawing Number:
	  	 Drawing Name:
	  	 Latest Drawing Date:

	M-300.00	  	HVAC Schedules & Details	  	3/21/12
	
	ELECTRICAL
		  		  	
	E-011.00	  	Electrical Legend & Details	  	3/21/12
	E-012.00	  	Overall Electrical Demo Plan	  	3/21/12
	E-013.00	  	Warehouse Areas Fire Alarm Floor Plan	  	3/21/12
	E-014.00	  	Office Areas Fire Alarm Floor Plan and Riser Diagram	  	3/21/12
	E-021.00	  	Warehouse Areas Lighting Floor Plan	  	3/21/12
	E-022.00	  	Office Areas Lighting Floor Plans	  	3/21/12
	E-031.00	  	Warehouse Areas Power Floor Plan	  	3/21/12
	E-032.00	  	Office Areas Power Floor Plan	  	3/21/12
	E-041.00	  	Luminaire Schedule and Details	  	3/21/12
	E-051.00	  	Electrical Dist One Line Diagram	  	3/21/12
	E-052.00	  	Panelboard Schedules	  	3/21/12
	E-053.00	  	Panelboard Schedules	  	3/21/12
	
	REFRIGERATION
	R-100.00	  	Refrigeration Cover Sheet	  	3/21/12
	R-101.00	  	Refrigeration Specs	  	3/21/12
	R-200.00	  	Ground Floor Section 2 Key Plan Refrigeration Plan	  	3/21/12
	R-201.00	  	Ground Floor Section 2 Key Plan Refrigeration Floor Plan	  	3/21/12
	R-100.00	  	Ground Floor Key Plan	  	3/21/12
	R-300.00	  	Ground Floor Section 2 Refrigeration Piping Plan	  	3/21/12
	R-400.00	  	Refrigeration Schedules	  	3/21/12
	RE-100.00	  	Electrical Coversheet	  	3/21/12
	RE-200.00	  	Key Plan Refrigeration Power	  	3/21/12
	RE-202.00	  	Ground Floor – Section 2 Refrigeration Power Plan	  	3/21/12
	RE-203.00	  	Refrigeration Panel Schedules	  	3/21/12
	
	FIRE PROTECTION
	FP-100.00	  	Fire Protection Cover Sheet	  	3/21/12
	FP-101.00	  	Fire Protection Seismic Specs	  	3/21/12
	FP-201.00	  	Fire Protection Key Plan	  	3/21/12
	FP-301.00	  	Fire Protection Sprinkler Plan Ground Floor Section 2	  	3/21/12
	FP-302.00	  	Fire Protection Sprinkler Plan Ground Floor Section 3	  	3/21/12
	FP-401.00	  	Fire Protection Details	  	3/21/12


  
 29 









 EXHIBIT D 

REQUEST FOR ADVANCE 

(No.                     )

 DAIRYLAND HP LLC, a Delaware limited liability company (the “Borrower”), the borrower under a certain Building Loan
Agreement (the “Building Loan Agreement”) dated April             , 2012, entered into between COMMERCIAL LENDING II LLC (the “Lender”) and the
Borrower, hereby certifies to and requests the Lender as follows: 
 (a) Direct Construction Costs.
Attached hereto as Schedule A is a true and correct statement of the reimbursable Direct Construction Costs incurred to date, the aggregate releases of Building Loan proceeds previously made by the Lender to the Borrower for Direct Construction
Costs, the aggregate Retainage applicable to Direct Construction Costs incurred to date, and the total release of Building Loan proceeds from the Borrower Disbursement Account requested hereby for Direct Construction Costs. 

(b) Other Costs of Improvement. Attached hereto as Schedule B is a true and correct statement of the
reimbursable Other Costs of Improvement incurred to date, the aggregate releases of Building Loan proceeds previously made by the Lender to the Borrower for Other Costs of Improvement, and the total release of Building Loan proceeds from the
Borrower Disbursement Account requested hereby for Other Costs of Improvement. 
 (c) Request to Lender for
Advance. The Borrower hereby requests the Lender to release Building Loan proceeds from the Borrower Disbursement Account in the amount of $            . 

(d) Representations. The Borrower hereby represents to the Lender that (i) all Direct Construction Costs and
Other Costs of Improvement set forth in previous Requests for Advance have been paid in full, (ii) all Direct Construction Costs and Other Costs of Improvement incurred to date, as set forth in this Request for Advance, have been or will be
paid in full out of the release of Building Loan Proceeds requested hereby, (iii) all of the representations and warranties of the Borrower contained in the Loan Documents continue to be true and correct, and (iv) we have no actual
knowledge that any Event of Default exists under the Loan Documents and no event has occurred which but for notice, or lapse of time, or both, would constitute an Event of Default under the Loan Documents. 

Dated:             , 20     

 

	
	DAIRYLAND HP LLC,
	a Delaware limited liability company
	
	 By:   DAIRYLAND USA CORPORATION,

	 a New York corporation,

	 its sole member and manager

	
	
By:                       
                                         
                                         
                 

	  Name:

	 Title:



  

  
 30 









 SCHEDULE A 

Direct Construction Costs 
  

											
	A	  	B	  	C	  	D	  	E	  	F
	 Categories
	  	 Total Est.

as of Date
 of
Request
	  	Aggregate
Incurred
to Date	  	Aggregate
Disbursement
to Date	  	Applicable
Retainage	  	Disbursement
Requested
(Column C
minus
Column D & E)
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
	Total	  		  		  		  		  	

  
  

  
 31 









 SCHEDULE B 

Other Project Costs 
  

											
	A	  	B	  	C	  	D	  	E	  	F
	 Categories
	  	 Total Est.

as of Date
 of
Request
	  	Aggregate
Incurred
to Date	  	Aggregate
Disbursement
to Date	  	Applicable
Retainage	  	Disbursement
Requested
(Column C
minus
Column D & E)
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
		  		  		  		  		  	
	Total	  		  		  		  		  	


  
 32 









 EXHIBIT E 

(Direct Construction Cost Breakdown 
 and Request for Partial Payment) 
 The term “Direct Construction Cost
Breakdown and Request for Partial Payment” as used in this Agreement shall mean the Application and Certificate for Payment (AIA Document G 702 and AIA Document G 703 or their equivalent), with such changes therein as the Lender or the
Construction Consultant may reasonably request, or such other form of Direct Construction Cost Breakdown and Request for Partial Payment as may be reasonably acceptable to the Lender and the Construction Consultant. 

  
 33 









 EXHIBIT F 

AFFIDAVIT PURSUANT TO SECTION 22 OF THE 
 LIEN LAW OF THE STATE OF NEW YORK 
 STATE OF NEW YORK
                ) 

                         
                                 ) :ss.: 

COUNTY OF NEW YORK             ) 

Christopher Pappas, being duly sworn, deposes and says: 
 I maintain an office located at 100 East Ridge Road, Ridgefield, Connecticut 06877. 
 I am the Chief Executive Officer of Dairyland USA Corporation, which is the sole member and manager of DAIRYLAND HP LLC, the Borrower mentioned in the within Building Loan Agreement. 

The consideration paid, or to be paid, by the Borrower for the Building Loan described therein is $0.00, and all other expenses
constituting cost of the improvement incurred, or to be incurred, in connection with the Building Loan, and advanced or to be advanced pursuant to the Building Loan Agreement are as follows: 

 

					
			
	(a)	  	Interest on the Building Loan during construction	  	$122,000.00
			
	(b)	  	Taxes, assessments, water rents and sewer rents, paid or to be paid for periods prior to or during construction	  	$300,000.00
			
	(c)	  	Insurance during construction	  	$268,750.00
			
	(d)	  	Commitment fee, if any, in addition to the consideration stated above which is allocable to the Building Loan	  	$0.00
			
	(e)	  	Commitment fee for subsequent financing either (i) required by the Lender, or (ii) to be borrowed within four months after completion of the improvements	  	$0.00
			
	(f)	  	Title examination, insurance premium and recording fees which are allocable to the Building Loan	  	$15,587.00
			
	(g)	  	Survey	  	$12,500.00
			
	(h)	  	Engineer’s fees	  	$0.00
			
	(i)	  	Architect’s fees	  	$0.00
			
	(j)	  	Bond premiums	  	$0.00


  
 34 










					
			
	(k)	  	Legal fees of the Lender’s counsel which are allocable to the Building Loan	  	$90,855.00
			
	(l)	  	Broker’s commissions incurred with respect to obtaining the Building Loan	  	$0.00
			
	(m)	  	Broker’s commissions incurred with respect to obtaining subsequent financing either (i) required by the Lender, or (ii) to be borrowed within four months after the
completion of the improvements	  	$0.00
			
	(n)	  	Brokerage Commissions for leases of space (other than residential space) in the improvements with terms in excess of three (3) years	  	$0.00
			
	(o)	  	Ground rents accruing during construction	  	$731,000.00
			
	(p)	  	Mortgage recording tax allocable to the Building Loan	  	$308,000.00
			
	(q)	  	Appraisal	  	$7,500.00
			
	(r)	  	Sums paid to take by assignment prior existing mortgages which are consolidated with building loan mortgages and also the interest charges on such mortgages	  	$0.00
			
	(s)	  	Sums paid to discharge or reduce the indebtedness under mortgages and accrued interest thereon and other prior existing encumbrances	  	$0.00
			
	(t)	  	Sums paid to discharge building loan mortgages whenever recorded	  	$0.00
			
	(u)	  	Contingency cost of the improvement, other than the “improvement,” as defined in subdivision 4 of Section 2 of the Lien Law	  	$0.00
			
	(v)	  	Sums paid to reimburse the Lender for advances made pursuant to a certain Notice of Lending dated         ,
20        , duly filed on         , 20        , in the Office of        
,         County	  	$0.00
			
		  		  	

 In addition to the above items the following sums shall be disbursed to the Borrower for the cost of the
improvements incurred and paid for by the Borrower subsequent to the commencement of construction of the improvement, but prior to the date of the initial advance of the Building Loan under the Building Loan Agreement: 

[DETAILED ITEMIZED LIST] 

  
 35 









 The net sum available to the Borrower for the improvement is Nine Million One Hundred Forty
Three Thousand Eight Hundred Eight and 00/100 Dollars ($9,143,808.00) less such amounts (i) as, may not be advanced and disbursed under the Building Loan Agreement due to the non-satisfaction of conditions to the advance and disbursement of
such amounts contained in the Building Loan Agreement, and (ii) as may become due or payable for additional insurance premiums, interest on the Building Loan, ground rents, taxes, assessments, water rents and sewer rents accruing during the
construction of the improvement. 
 [NO FURTHER TEXT ON THIS PAGE] 

  
 36 









 [Signature Page to Section 22 Lien Law Affidavit] 

This statement is made pursuant to Section 22 of the Lien Law of the State of New York and is hereby made a part of the Building
Loan Agreement. 
 The facts herein stated are true to the knowledge of the deponent. 

/s/ Christopher Pappas 

Name: Christopher Pappas 
 Sworn to before me this 
 16th day of April, 2012 

/s/ Raquel Mehlman 
 Notary Public

 Raquel Mehlman 
 Notary Public State
of New York 
 New York County 
 LIC.
#01ME6193851 
 Comm. Exp. 9/22/2012 

  
 37 









 EXHIBIT G 

APPLICATION FOR STORED MATERIALS 
  

					
	Project:	 	Application No:	 	
			
	Contractor:	 	Period From:	 	To:

 SUB CONTRACTOR’S APPLICATION FOR STORED MATERIALS 

 

					
	Material Description	  	Location Stored	  	Cost
	                             
                                         
             	  	                             
                                         
      	  	                             
                                         
         
	                             
                                         
             	  	                             
                                         
      	  	                             
                                         
         

  

					
	 Previous Balance of Stored Materials:
	  	$	            	  
	 Plus Material Received This Month:
	  	$	 	  
	 Less Material Installed This Month:
	  	$	 	  
	 Total Stored Material:
	  	$	 	  

  

	1.	This form must be completed for each subcontractor’s invoice for which payment is being requested for stored material or when there is any balance remaining on
previously paid stored material. The total of this summary must match application summary for each line item. 

  

	2.	Provide invoice or bill of sale back-up for all stored material items. 

  

	3.	For off-site stored materials, provide a certificate of insurance assigned to the owner and bank in a value sufficient to cover the cost of the material and list
specific items covered. 

  

	4.	For off-site stored materials, provide an inspection affidavit, complete name and address for the bonded warehouse. 


  
 38