OBTAINED TO DATE IN CONNECTION WITH THE VALID EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE OTHER BUILDING LOAN RESTRUCTURING
DOCUMENTS TO WHICH IT IS A PARTY HAVE BEEN OBTAINED AND ARE IN FULL FORCE AND
EFFECT.
EACH OF BORROWER AND FC MEMBER REPRESENT AND WARRANT THAT THERE HAS
BEEN NO MATERIAL ADVERSE CHANGE SINCE AUGUST 15, 2006 IN ITS FINANCIAL
CONDITION.
7.
BREAKEVEN LEASING.
AGENT ACKNOWLEDGES THAT BREAKEVEN LEASING HAS
OCCURRED.
8.
NO RELEASE.
NOTHING CONTAINED IN THIS AMENDMENT OR IN ANY OF THE
OTHER BUILDING LOAN RESTRUCTURING DOCUMENTS SHALL BE CONSTRUCTED AS A RELEASE OF
BORROWER OR FC MEMBER WITH RESPECT TO THEIR RESPECTIVE OBLIGATIONS UNDER THE
LOAN DOCUMENTS, AND EACH OF BORROWER AND FC MEMBER HEREBY ACKNOWLEDGES AND
AGREES THAT ITS OBLIGATIONS AND LIABILITIES UNDER THE LOAN DOCUMENTS TO WHICH IT
IS A PARTY ARE IN FULL
14
FORCE AND EFFECT, ARE HEREBY RATIFIED AND CONFIRMED, AND SHALL CONTINUE IN FULL
FORCE AND EFFECT UPON ALL OF THE TERMS AND CONDITIONS SET FORTH THEREIN.
9.
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.
10.
SUCCESSORS AND ASSIGNS.
THE PROVISIONS CONTAINED IN THIS
AMENDMENT SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE PARTIES
HERETO AND THEIR SUCCESSORS AND ASSIGNS.
11.
RATIFICATION.
THE AGREEMENT, AS AMENDED HEREBY, IS HEREBY
RATIFIED AND CONFIRMED IN ALL RESPECTS.
12.
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.
13.
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 pages follow]
15
IN WITNESS WHEREOF, Borrower, Agent, on behalf of Lenders, New FC Member and
NYTC Member have executed this Amendment on the date first above written.
BORROWER:
THE NEW YORK TIMES BUILDING LLC
By:
FC Eighth Ave., LLC, member
By:
FC 42 Hotel LLC, its managing member
By:
FCDT Corp., its managing member
By:
/s/ David L. Berliner
Name: David L. Berliner
Title: Sr. Vice President
AGENT:
CAPMARK FINANCE INC., as Agent
By:
/s/ Frank J. Guzauskas
Name: Frank J. Guzauskas
Title: Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
[Signature page to BLA Fourth Amendment]
NEW FC MEMBER:
FC EIGHTH AVE., LLC
By:
FC 42 Hotel LLC, its managing member
By:
FCDT Corp., 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
THE UNDERSIGNED ARE EXECUTING THIS
AMENDMENT TO INDICATE THEIR AGREEMENT
TO THIS AMENDMENT AND THE OTHER BUILDING
LOAN RESTRUCTURING DOCUMENTS:
CAPMARK BANK, as Lender
By:
/s/ George Hernandez
Name: George Hernandez
Title: Vice