Exhibit 10.9


EXECUTION COPY


FIRST AMENDMENT TO PROJECT LOAN AGREEMENT


By and
Between


THE NEW
YORK TIMES BUILDING LLC

having an address at

One MetroTech Center North

Brooklyn, New York 11201

(Borrower)


and


GMAC
COMMERCIAL MORTGAGE CORPORATION

having an address at

100 South Wacker Drive, Suite 400

Chicago, Illinois 60606,

as agent

(Agent)


Dated as of December 8th, 2004















 


FIRST AMENDMENT TO
PROJECT LOAN AGREEMENT


THIS FIRST AMENDMENT TO
PROJECT LOAN AGREEMENT (this “Amendment”) is made and entered into as of the 8th day of December, 2004 by
and between GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation,
with an office at 100 South Wacker Drive, Suite 400, Chicago, Illinois 60606 or
any successor thereto, as agent (including as successor to Initial Agent (as
hereinafter defined)) (including any of its successors and assigns as agent, “Agent”) for itself and any
other co-lenders as may exist from time to time (collectively, including any
successors and assigns, “Lenders” and each individually, a “Lender”), and
THE NEW YORK TIMES BUILDING LLC, a New York limited liability company with an
address at One MetroTech Center North, Brooklyn, New York 11201 (including any
successors and assigns permitted in accordance with the Agreement (as
hereinafter defined), “Borrower”).


W I T N E S S E T H :


WHEREAS, Borrower, the
New York State Urban Development Corporation d/b/a Empire State Development
Corporation, a corporate governmental agency of the State of New York
constituting a political subdivision and public benefit corporation, having an
address at 633 Third Avenue, New York, New York 10017, as initial agent (“Initial Agent”)
and Agent, for itself and on behalf of Lenders, entered into that certain
Project Loan Agreement, dated as of June 25, 2004 (the “Agreement”; all capitalized terms used
herein but left undefined shall have the meanings assigned to such terms in the
Agreement), pursuant to which each Lender severally agreed to lend to Borrower
its pro rata share of $149,470,521 for the purposes of constructing a project
to be located on the premises more particularly described on Exhibit A hereto;


WHEREAS, pursuant to that
certain Assignment and Assumption (Project Loan) by Initial Agent to Agent,
dated as of July 25, 2004 and recorded in the Office of the City Register of
New York County on December 2, 2004 as CRFN # 2004000746025, Initial Agent
assigned all of its right, title and interest in the Agreement to Agent; and


WHEREAS, Agent and
Borrower wish to amend the Agreement.


NOW, THEREFORE, in
consideration of the mutual covenants and agreements hereinafter set forth,
Agent, for itself and on behalf of Lenders, and Borrower hereby agree as
follows:


1.             Recitals.
The foregoing recitals are hereby incorporated into this Amendment as if more
particularly set forth herein.















 


2.             Amendments.


(a)           The
last sentence of the definition of “Eligible Assignee” is hereby amended by (i) inserting the
following text prior to the word “and” at the end of clause (1):


“, (2) Hypo Real Estate
Capital Corporation is an Eligible Assignee”


and (ii) renumbering
existing clause (2) as clause (3).


(b)           The
definition of “LIBOR Rate” is
hereby amended by inserting the following text prior to the period at the end
of the second sentence of said definition:


“; provided, however, that if an Advance is made on a
day other than the Start Day of any Interest Period, Agent will obtain the
LIBOR Rate with respect to such Advance for the balance of such Interest Period
from Bloomberg (British Banker’s Association Rate) as of the close of business announced
on the second immediately preceding Business Day prior to the date of such
Advance”


(c)           The
definition of “Major Decision” set forth in the Agreement is hereby amended by inserting the
following text prior to the semicolon at the end of clause (a) of said
definition:


“, and any material modification or amendment to the
Ground Lease or any of the Severance Subleases, except to the extent
contemplated by the express terms thereof and permitted by the Project Loan
Documents”


(d)           The
definition of “Super-Major Decision” is
hereby amended by (i) inserting the following text at the beginning of clause
(c) of said definition:


“a material modification or amendment to the Ground
Lease or any of the Severance Subleases which would alter the term, any payment
term or any mortgagee protective provisions, except to the extent contemplated
by the express terms thereof and permitted by the Project Loan Documents and”


and (ii) inserting the
following text as new clause (g) and changing existing clause (g) to clause
(h): “any waiver of any Default under Section 7.16(a)(ii)”.


(e)           Section
5.02(a) of the Agreement is hereby amended by deleting the third sentence and
inserting the following text in lieu thereof:



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“On the Business Day immediately prior to the Start Day, Agent shall
deliver written notice to each Lender and Borrower informing each Lender and
Borrower of the LIBOR Rate for the upcoming calendar month Interest Period for
all Outstanding Principal and any Advance that is made on such Start Day. In
the event that an Advance is being made on a date other than a Start Day, on
the Business Day immediately prior to the Intended Advance Date, Agent shall
deliver written notice to each Lender and Borrower informing each Lender and
Borrower of the LIBOR Rate applicable to such Advance for the balance of the
Interest Period in which such Advance is made.”


(f)            Section
7.32(a)(2) of the Agreement is hereby amended by deleting “Majority” and
inserting “Super-Majority” in lieu thereof.


(g)           Section
10.01(f) of the Agreement is hereby amended by deleting the last sentence and
inserting the following text in lieu thereof:


“Upon demand by Agent, each of the Lenders shall
promptly advance to Agent in immediately available funds its ratable portion of
the funds expended by Agent in curing such Event of Default (or Default),
together with interest thereon (i) at the federal funds rate as determined by
Agent for the five days following the date of such demand and (ii) at the
Default Rate thereafter until the date prior to the date on which such advance
is received by Agent.”


3.             Representations
and Warranties. Borrower represents and warrants that; it has the full
power, right and authority to execute, deliver and perform its obligations
under this Amendment and the Loan Documents executed concurrently herewith (the
“Transaction
Documents”); the Transaction Documents have been duly
authorized, executed and delivered by all necessary parties on behalf of
Borrower; the Transaction Documents are in all respects valid and legally
binding obligations, enforceable against Borrower in accordance with their
terms; and the execution and delivery of the Transaction Documents by Borrower
do not, and the performance and observance by Borrower of its obligations
hereunder and thereunder will not, contravene or result in a breach of or
default under any of Borrower’s organizational documents, any Legal
Requirements applicable to it or to the Mortgaged Property or the use or
operation thereof, and any decree, judgment, agreement or instrument binding on
it, or its assets.


4.             Governing
Law. This Amendment shall be governed and construed in accordance with the
laws of the State of New York applicable to contracts made and performed solely
within such State.



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5.             Successors
and Assigns. The provisions contained in this Amendment and the other
Transaction Documents shall be binding upon and shall inure to the benefit of
the parties hereto and their successors and assigns.


6.             Computation
of Time Periods. In this Amendment, with respect to the computation of periods
of time from a specified date to a later specified date, the word “from” means
both “from and including” and the words “to” and “until” both mean “to but
excluding.”


7.             Amendments.
Neither this Amendment nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought.


8.             Counterparts.
This Amendment may be executed in any number of counterparts, each of which,
when executed and delivered, shall be an original, but such counterparts shall
together constitute one and the same instrument.


[signature page follows]



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IN WITNESS WHEREOF,
Borrower and Agent, on behalf of Lenders, have executed this Amendment on the
date first above written.


	
  

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  THE NEW YORK
  TIMES BUILDING LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  FC Lion LLC, member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  FC 41st Street Associates, LLC, its managing

  
	
   

  	
   

  	
   

  	
  member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  RRG 8 South, Inc., its managing

  
	
   

  	
   

  	
   

  	
   

  	
  member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ David L. Berliner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  DAVID L. BERLINER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  SR. VICE PRESIDENT

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NYT Real Estate Company LLC, member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Kenneth Richieri

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  KENNETH RICHIERI

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  MANAGER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  GMAC COMMERCIAL MORTGAGE CORPORATION,

  
	
   

  	
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
										



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IN WITNESS WHEREOF,
Borrower and Agent, on behalf of Lenders, have executed this Amendment on the
date first above written.


	
  

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  THE NEW YORK
  TIMES BUILDING LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  FC Lion LLC, member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  FC 41st Street Associates, LLC, its managing

  
	
   

  	
   

  	
   

  	
  member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  RRG 8 South, Inc., its managing

  
	
   

  	
   

  	
   

  	
   

  	
  member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NYT Real Estate Company LLC, member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  GMAC COMMERCIAL MORTGAGE CORPORATION,

  
	
   

  	
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Phillip J. Keel

  	
   

  
	
   

  	
   

  	
  Name: Phillip J. Keel

  
	
   

  	
   

  	
  Title: Senior Vice President

  
												



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THE UNDERSIGNED ARE EXECUTING THIS

AGREEMENT AS THE BENEFICIAL OWNERS OF

THE NYTC UNIT AND FC UNITS, RESPECTIVELY:


	
  FC MEMBER:

  
	
   

  
	
  FC LION LLC

  
	
   

  
	
  By:

  	
  FC 41st Street Associates, LLC, its managing member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  RRG 8 South, Inc., its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David L. Berliner

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  DAVID L. BERLINER

  
	
   

  	
   

  	
   

  	
  Title:

  	
  SR. VICE PRESIDENT

  
	
   

  
	
  NYTC MEMBER:

  
	
   

  
	
   

  
	
  NYT REAL ESTATE
  COMPANY LLC

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Kenneth
  Richieri

  	
   

  
	
   

  	
  Name:

  	
  KENNETH RICHIERI

  
	
   

  	
  Title:

  	
  MANAGER

  
									




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Exhibit A


The Land


ALL that certain plot,
piece or parcel of land, situate, lying and being in the Borough of Manhattan,
County of New York, City and State of New York, bounded and described as
follows:


BEGINNING at the corner formed
by the intersection of the northerly line of West 40th Street with the easterly
line of 8th Avenue;


RUNNING THENCE northerly
along said easterly line of 8th Avenue, 197 feet 6 inches to the corner formed
by the intersection of the easterly side of 8th Avenue with the southerly line
of West 41st Street;


THENCE easterly along
said southerly line of West 41st Street, 400 feet;


THENCE southerly and
parallel to said easterly line of 8th Avenue, 197 feet 6 inches to the
northerly line of West 40th Street;


THENCE westerly along
said northerly line of West 40th Street, 400 feet to the point or place of
BEGINNING.


Being the property
located at and known as Block 1012, Lots 1, 5, 8, 14, 53, 59, 61, 62, 63 and
part of 15 on the Tax Assessment Map of the County of New York.