OR
OPERATION THEREOF, (III) ANY DECREE OR JUDGMENT BINDING ON IT OR ITS ASSETS, OR
(IV) ANY AGREEMENT OR INSTRUMENT BINDING ON IT OR ITS ASSETS; (D) IT HAS FULL
POWER, RIGHT AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER
THE PROJECT
LOAN RESTRUCTURING DOCUMENTS TO WHICH IT IS A PARTY; (E) EACH
PROJECT
LOAN RESTRUCTURING DOCUMENT TO WHICH IT IS A PARTY HAS BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED BY ALL NECESSARY PARTIES ON BEHALF OF IT; AND
(F) ALL GOVERNMENTAL APPROVALS AND ALL THIRD PARTY CONSENTS AND APPROVALS WHICH
ARE REQUIRED TO HAVE BEEN OBTAINED TO DATE IN CONNECTION WITH THE VALID
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER PROJECT
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 PROJECT
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 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.
16
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]
17
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