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 BUILDING LOAN RESTRUCTURING
DOCUMENTS TO WHICH IT IS A PARTY HAVE BEEN OBTAINED AND ARE IN FULL FORCE AND
EFFECT.
EACH OF BORROWER AND NYTC MEMBER REPRESENT AND WARRANT THAT THERE HAS
BEEN NO MATERIAL ADVERSE CHANGE SINCE JUNE 25, 2004 IN ITS FINANCIAL CONDITION.
6.
REPRESENTATIONS AND WARRANTIES OF NEW FC MEMBER.
NEW FC MEMBER
SHALL BE DEEMED TO HAVE MADE ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN THE BUILDING LOAN DOCUMENTS MADE BY FC MEMBER, EITHER INDIVIDUALLY OR AS PART
OF THE BORROWER ENTITIES.
7.
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 WITH RESPECT TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS, AND BORROWER
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.
8.
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.
9.
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.
10.
RATIFICATION.
THE AGREEMENT, AS AMENDED HEREBY, IS HEREBY
RATIFIED AND CONFIRMED IN ALL RESPECTS.
11.
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.
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12.
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.
13.
LIEN LAW STATEMENT.
BORROWER REPRESENTS AND WARRANTS THAT NO
PROVISION OF THIS AMENDMENT DECREASES THE FUNDS AVAILABLE FOR THE PAYMENT OF ALL
CONTRACTORS AND MATERIALMAN AS SHOWN IN THE SECTION 22 LIEN LAW AFFIDAVIT
ATTACHED TO THE SECOND AMENDMENT.
[signature pages follow]
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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
By:
NYT Real Estate Company LLC, member
By:
/s/ Kenneth Richieri
Name: Kenneth Richieri
Title: Manager
AGENT:
CAPMARK FINANCE INC., as Agent
By:
/s/ George Hernandez
Name: GEORGE HERNANDEZ
Title: VICE PRESIDENT