UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 29, 2007
The New York Times Company
(Exact name of Registrant as specified in its charter)
New York |
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1-5837 |
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13-1102020 |
(State or other
jurisdiction
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(Commission
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(I.R.S. Employer
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229 West 43rd Street, New York New York |
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10036 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (212) 556-1234
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
Effective as of January 29, 2007, NYT Real Estate Company LLC, a wholly owned subsidiary of The New York Times Company (the Company), The New York Times Building LLC, a limited liability company in which the Company holds a 58% interest, FC Eighth Ave., LLC and Capmark Finance Inc. (formerly GMAC Commercial Mortgage Corporation) entered into a fourth amendment to a Building Loan Agreement and a third amendment to a Project Loan Agreement (together, the amended Loan Agreements). These financing arrangements relate to the development and construction of a condominium office building (the Building) in New York City by the Company and an affiliate of the Forest City Ratner Companies. The Building will serve as the Companys new headquarters.
As a result of the amendments, NYT Real Estate Company LLC has been released as a borrower under the two loan agreements, its condominium units have been released from the lien of the construction loan mortgage, and the Company has been released from its guarantee of NYT Real Estate Company LLCs obligation to complete the interior construction of the Companys portions of the Building as well as its guarantee of certain non-recourse carve-outs with respect to the construction loan. The construction lender remains obligated to continue to fund to The New York Times Building LLC the balance of the construction loan required to complete construction of the Building. The Company has also been released from its obligation to make a loan (the extension loan) to FC Eighth Ave., LLC of approximately $119.5 million to repay a portion of the construction loan balance. At the closing of the amended Loan Agreements, the construction lender funded to NYT Real Estate Company LLC the sum of $11,649,593, representing certain additional consideration payable by FC Eighth Ave., LLC to NYT Real Estate Company LLC under the Operating Agreement of The New York Times Building LLC on account of the purchase price of the land for the Building (the true-up payment).
Also effective as of January 29, 2007, FC Eighth Ave., LLC and NYT Real Estate Company LLC entered into a third amendment to the Operating Agreement of The New York Times Building LLC, pursuant to which the members acknowledged (i) the payment by FC Eighth Ave., LLC to NYT Real Estate Company LLC of the true-up payment, and (ii) the release of the Company from its obligation to make the extension loan. At the same time, NYT Real Estate Company LLC and 42 nd St. Development Project, Inc., a subsidiary of New York State Urban Development Corporation d/b/a Empire State Development Corporation, amended an Agreement of Sublease to make a correcting change to the original agreement.
The foregoing description of the amended Loan Agreements, the amended Operating Agreement and the amended Agreement of Sublease does not purport to be complete and is qualified in its entirety by reference to the full text of the agreements filed as Exhibits 10.1, 10.2, 10.3 and 10.4 hereto, which are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
10.1 |
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Fourth Amendment to Building Loan Agreement, dated as of January 29, 2007, between The New York Times Building LLC, NYT Real Estate Company LLC, FC Eighth Ave., LLC and Capmark Finance Inc. (formerly GMAC Commercial Mortgage Corporation). |
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10.2 |
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Third Amendment to Project Loan Agreement, dated as of January 29, 2007, between The New York Times Building LLC, NYT Real Estate Company LLC, FC Eighth Ave., LLC and |
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Capmark Finance Inc. (formerly GMAC Commercial Mortgage Corporation). |
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10.3 |
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Third Amendment to Operating Agreement of The New York Times Building LLC, dated as of January 29, 2007, between FC Eighth Ave., LLC and NYT Real Estate Company LLC. |
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10.4 |
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Second Amendment to Agreement of Sublease, dated as of January 29, 2007, between 42 nd St. Development Project, Inc., as landlord, and NYT Real Estate Company LLC, as tenant. |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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THE NEW YORK TIMES COMPANY |
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Date: February 1, 2007 |
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By: |
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/s/ Rhonda L. Brauer |
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Rhonda L. Brauer |
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Secretary & Corporate Governance Officer |
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10.1 |
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Fourth Amendment to Building Loan Agreement, dated as of January 29, 2007, between The New York Times Building LLC, NYT Real Estate Company LLC, FC Eighth Ave., LLC and Capmark Finance Inc. (formerly GMAC Commercial Mortgage Corporation). |
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10.2 |
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Third Amendment to Project Loan Agreement, dated as of January 29, 2007, between The New York Times Building LLC, NYT Real Estate Company LLC, FC Eighth Ave., LLC and Capmark Finance Inc. (formerly GMAC Commercial Mortgage Corporation). |
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10.3 |
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Third Amendment to Operating Agreement of The New York Times Building LLC, dated as of January 29, 2007, between FC Eighth Ave., LLC and NYT Real Estate Company LLC. |
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10.4 |
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Second Amendment to Agreement of Sublease, dated as of January 29, 2007, between 42 nd St. Development Project, Inc., as landlord, and NYT Real Estate Company LLC, as tenant. |
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Exhibit 10.1
FOURTH AMENDMENT TO BUILDING LOAN AGREEMENT
By and Among
THE NEW YORK TIMES BUILDING LLC
having an address at
One MetroTech Center North
Brooklyn, New York 11201
NYT REAL
ESTATE COMPANY LLC
having an address c/o
The New York Times Company
229 West 43rd Street
New York, New York 10036
FC EIGHTH
AVE., LLC
having an address at
One MetroTech Center North
Brooklyn, New York 11201
and
CAPMARK
FINANCE INC.
having an address at
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606,
as agent
CAPMARK
SECURITIES, INC.,
as Joint Lead Arranger
and
SUMITOMO MITSUI BANKING CORPORATION,
as Joint Lead Arranger
Property Location: |
Eighth Avenue between 40th and 41 st Street, New York, New York |
Lot: |
Lots 1001 through 1058 (formerly Lot 1) |
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1012 |
Section: |
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Please return
time-stamped certified copy to
:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Attention: Harris B. Freidus, Esq.
FOURTH AMENDMENT TO BUILDING LOAN AGREEMENT
THIS FOURTH AMENDMENT TO BUILDING LOAN AGREEMENT (this Amendment ) is made and entered into as of the 29 day of January, 2007 by and among CAPMARK FINANCE INC. (formerly known as GMAC Commercial Mortgage Corporation), a California corporation, with an address 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 ), 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 ), NYT REAL ESTATE COMPANY LLC, a New York limited liability company with an address c/o The New York Times Company, 229 West 43 rd Street, New York, New York 10036 (including any successors and assigns permitted in accordance with the Agreement, NYTC Member ) and FC EIGHTH AVE., LLC, a Delaware 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, New FC Member ).
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, as initial agent ( Initial Agent ), and Agent, for itself and on behalf of Lenders, entered into that certain Building Loan Agreement, dated as of June 25, 2004 and filed in the City Clerks Office (the Clerks Office ) on July 26, 2004, under index number 188 (the Original Agreement ) pursuant to which each Lender severally agreed to lend to Borrower its pro rata share of $170,529,479 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 (Building Loan) by Initial Agent to Agent, dated as of June 25, 2004 and filed in the Clerks Office on July 26, 2004 under index number 189 and recorded in the Office of the City Register of New York County on December 2, 2004 as CRFN # 2004000746024, Initial Agent assigned all of its right, title and interest in the Original Agreement to Agent;
WHEREAS, Agent and Borrower entered into that certain First Amendment to Building Loan Agreement, dated as of December 8, 2004 and filed with the Clerks Office on December 10, 2004 (the First Amendment );
WHEREAS, Agent and Borrower entered into that certain Second Amendment to Building Loan Agreement, dated as of June 22, 2006 and filed with the Clerks Office on June 22, 2006 (the Second Amendment );
WHEREAS, Agent, Borrower, NYTC Member and New FC Member entered into that certain Third Amendment to Building Loan Agreement, dated as of August 15, 2006 and filed with the Clerks Office on October 24, 2006 (the Third Amendment ; the Original Agreement, as modified by the First Amendment, the Second Amendment and the Third Amendment, the Agreement ; capitalized terms used herein but left undefined shall have the meanings assigned to such terms in the Agreement);
WHEREAS, NYTC Member has requested, and Agent has agreed, that (i) the NYTC Units be released from the lien of the Building Loan Mortgage, (ii) NYTC Member be removed as a co-borrower and (iii) NYTC Guarantor be released from its guaranties; and
WHEREAS, Borrower, NYTC Member and FC Member have requested that certain other changes to the Building Loan be made, and Agent has agreed to make such changes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, Agent, for itself and on behalf of Lenders, Borrower, NYTC Member and FC Member hereby agree as follows:
Assigned Construction Documents has the meaning given to such term in Section 7.58 hereof.
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Spread means one hundred and seventy-five (175) basis points per annum.
Forward Commitment means a commitment letter executed by Capmark or an Affiliate thereof to make a permanent loan with respect to the FC Units.
Lockout Date means July 1, 2007.
Rate Lock Agreement means a Forward Rate Lock Agreement anticipated to be executed in the form annexed as Exhibit B to that certain term sheet dated December 19, 2006 between Capmark and FC Member.
Rate Lock Breakage Costs Line Item means the line item in the FC Units Budget for breakage costs incurred in connection with the Rate Lock Agreement.
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SECTION 3.12 Prepayment . (a) Prior to the Lockout Date, the Outstanding Principal may not be prepaid, in whole or in part, except for (i) prepayments made in accordance with the Building Loan Mortgage or Sections 7.05 and 7.51 hereof and (ii) a prepayment in full from the proceeds of the funding of the Forward Commitment. From and after the Lockout Date, in addition to prepayments made in accordance with the Building Loan Mortgage or Sections 7.05 and 7.51 hereof, the Borrower may prepay the Outstanding Principal, in whole or in part, on any Business Day (other than the day immediately following Thanksgiving Day or Good Friday), upon not less than five (5) Business Days prior notice to Agent (but if in part, in the principal amount of $1,000,000 or any whole number multiple thereof). At the time of any prepayment, Borrower shall pay (x) all accrued and unpaid interest on the principal portion of the Building Loan being prepaid and (y) all breakage costs actually incurred by Lenders as a result of such prepayment ( Breakage Costs ), including, without limitation, any expenses incurred as a result of any termination of any applicable interest rate management contracts or hedge agreements entered into by any Lender. A certificate of Agent setting forth the amount of Breakage Costs which Lenders are entitled to receive shall be binding and conclusive, absent manifest error. Any payment of the Outstanding Principal made during the continuation of an Event of Default must include any Breakage Costs.
(b) Prepayments made in accordance with the Building Loan Mortgage or Sections 7.05 and 7.51 hereof shall, at Borrowers option, (i) be immediately used to prepay the Loans or (ii) pursuant to an agreement between Borrower and Agent reasonably satisfactory to Agent, be held by Agent in an interest bearing account as additional collateral for the Project Loan and the Building Loan until a date selected by Borrower that is not later than the first Business Day of the next succeeding calendar month (and Borrower shall also deposit with Agent interest on the Loans that will accrue through such date), on which date such amounts (plus any interest earned thereon) shall be applied to prepay the Loans. The third sentence of Section 3.12(a) above shall apply to all prepayments pursuant to the preceding sentence.
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(o) Rate Lock Breakage Costs Line Item . With respect to any Advance for sums from the Rate Lock Breakage Costs Line Item, the ratio, expressed as a percentage, of the Remaining Loan Amount as of the Requested Advance Date (taking into account the amount of the Advance requested on such Requested Advance Date) to the Appraised Value of the FC Units (as shown on a new appraisal by the appraiser that performed the Appraisal or any other MAI appraiser selected by Agent or an update to the Appraisal, in either case dated as of a date no earlier than sixty (60) days prior to the Requested Advance Date) shall be equal to or less than eighty percent (80%).
or (D) if any portion of the requested Advance relates to the Rate Lock Breakage Costs Line Item, in which event Agent shall distribute such portion directly to the party under the Rate Lock Agreement to whom moneys are owed.
(d) In the event that (A) a line item in a Budget shall be completed (and paid for in full with all appropriate final lien
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waivers obtained) without the expenditure of all amounts in the applicable Budget allocated to such line item or (B) Borrower shall demonstrate to Agents reasonable satisfaction that a cost savings has been or will be realized with respect to any uncompleted line item, Agent shall permit the applicable portion of such overbudgeted line item to be (x) in the case of NYTC Units Budget line items, advanced pursuant to the last sentence of Section 3.05(d) of the Project Loan Agreement or (y) in the case of FC Units Budget or NYTC Units Budget line items, shifted to one or more other line items, provided that: (i) a revised Budget and a revised Disbursement Schedule, each of which shall indicate revisions made to date (including, without limitation, the reallocation of amounts as a result of such cost savings) shall have been furnished to and reasonably approved by Agent and Construction Consultant (provided that in the case of the Disbursement Schedule only, Agent and Construction Consultant shall be deemed to have approved any best estimate revisions made in good faith by Borrower), (ii) no line item for Hard Costs shall be reallocated to pay any line items that are not Hard Costs until all Hard Costs shall have been paid for, and (iii) any reallocation of Budget amounts will not have the effect of reducing the net sum which Borrower estimates will be available to it from the Building Loan to pay contractors, subcontractors, laborers and materialmen for the Improvement as set forth in Borrowers Lien Law Affidavit. Notwithstanding the foregoing, no reallocation with respect to the Development Cost Line Item or the Rate Lock Breakage Costs Line Item shall be permitted; provided, however, that upon achievement of Substantial Completion of the Project, Borrower shall be permitted to use all or any portion of the Development Cost Line Item for the purchase of any Interest Rate Caps then required to be provided hereunder and, to the extent the Development Cost Line Item exceeds the costs of such Interest Rate Caps as determined by Agent, to any other line item in the Budgets, subject, however, to clause (iii) of this Section 7.11(d).
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(g) has not incurred, assumed or created and will not incur, assume or create any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Building Loan, (ii) the Project Loan, (iii) any Interest Rate Cap, (iv) the Rate Lock Agreement and (v) unsecured trade payables or accrued expenses or other obligations incurred in the ordinary course of business in connection with the developing, constructing and operating of the Mortgaged Property; no other debt (other than the Rate Lock Agreement) will be secured (senior, subordinate or pari passu) by the Mortgaged Property;
SECTION 7.46 NYTC Units Release Provisions . (a) Provided that no Noticed Default or Event of Default exists under any Building Loan Document or Project Loan Document, upon the satisfaction of the following conditions, the releases and terminations referred to in Section 7.46(c) hereof shall be effectuated:
(1) the condominium association shall have (A) collaterally assigned its rights to Leases of the Lobby Sublease Space and the Commercial Signage (as each such term is defined in the Condominium Declaration) and agreed to deposit all Rents therefrom (solely to the extent of distributions therefrom to which FC Member would be entitled) into one of the Collection Accounts (the Condominium Assignment ) and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Members interest therein) to Agent for the benefit of Agent and Lenders pursuant to one or more instruments in form and substance satisfactory to Agent (the document or documents referred to the foregoing clauses (A) and (B) being referred to as the Condominium Security Documents ), and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to
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the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(2) the NYTC Units will constitute one or more tax lots separate and distinct from the tax lot or lots applicable to the portion of the Premises encumbered by the lien of the remaining Building Loan Mortgage;
(3) Borrower shall have paid all reasonable, third-party out of pocket costs and expenses incurred by Agent in connection with such release (including reasonable attorneys fees and disbursements);
(4) Agent shall have received an endorsement to the existing title policy to the effect that the release shall not cause a subordination, in whole or in part, of the Building Loan Mortgage and Project Loan Mortgage as they affect the remaining Units;
(5) Borrower and FC Member shall have executed and delivered to Agent new replacement Building Loan Notes with Borrower and FC Member as co-borrowers; and
(6) Agent shall have received such other opinions, documents, certificates, instruments, or assurances (including, without limitation, any new UCC-1 Financing Statements) as Agent may reasonably request in connection with the actions and events described in this Section 7.46(a).
(b) Upon the fulfillment of the conditions set forth in Section 7.46(a), (i) the NYTC Units shall be released of record from the liens of the Building Loan Mortgage and Project Loan Mortgage and from the Building Loan Assignment of Leases and Project Loan Assignment of Leases, (ii) the Assignment of Contracts NYTC Member, the NYTC Non-Recourse Carveouts Guaranty and the NYTC Completion Guaranty shall be deemed to have been automatically terminated and NYTC Guarantor and NYTC Member shall have no further liability under the Building Loan Documents or the Project Loan Documents to which they are a party, (iii) the Severance Sublease to which NYTC Member is a party shall be released of record from the lien of the Building Loan Mortgage and Project Loan Mortgage, (iv) all references, covenants, representations and warranties applicable to, or with respect to, NYTC Member in the remaining Building Loan Documents shall be deemed to have been automatically terminated (provided, however, that the rights of NYTC Member pursuant to Section 3.20 of this Agreement shall remain in effect), (v) Agent shall cause the Lenders to return to NYTC Member the existing Building Loan Notes, marked cancelled and (vi) Agent shall return to NYTC Member the conditional resignations executed by each of the managers of the
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NYTC Board of Directors (as such term is defined in the Condominium Declaration).
(c) Agent agrees to execute and deliver such additional agreements and instruments, as may from time to time be reasonably requested by any Borrower Entity in order to effectuate fully the transactions contemplated by and agreements made in this Section 7.46. All out-of-pocket costs and expenses incurred by Agent in connection with such execution and delivery shall be Reimbursable Costs.
(v) if the manager under any Managing Agent Agreement or the leasing agent under any Leasing Agent Agreement is an Affiliate of any Borrower Entity, if such manager or leasing agent shall fail to duly keep, perform or observe any of the covenants contained in any consent to the collateral assignment thereof or any subordination of such Managing Agent Agreement and such failure shall continue for ten (10) Business Days after notice of such failure from Agent.
SECTION 7.58 Assignment of Construction Contracts . (a) Provided that no Noticed Default or Event of Default exists under any Building Loan Document or Project Loan Document, Borrower shall
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have the right to assign its interest in certain contracts approved by Agent related to the design and construction of the Project (such approved contracts, the Assigned Construction Documents ) to the Board of Managers of the New York Times Condominium, free and clear of any lien of Agent thereon, upon satisfaction of the following conditions:
(1) Substantial Completion shall have occurred;
(2) Agent shall have received not less than ten (10) Business Days notice of such assignments;
(3) Borrower shall have paid all reasonable, third-party out of pocket costs and expenses incurred by Agent in connection with such assignments (including reasonable attorneys fees and disbursements);
(4) Borrower shall have received all consents or approvals from all third parties required in connection with such assignments;
(5) Borrower shall have delivered to Agent all of the documents to be executed in connection with such assignments, all of which shall be in form and substance reasonably satisfactory to Agent;
(6) Agent shall be satisfied that the Board of Managers of the New York Times Condominium has the right to enforce such Assigned Construction Documents for the benefit of the owners of the Units and that upon the occurrence of an event giving rise to the right to enforce such rights, a unit owner may exercise remedies against such Board unless such Board either (A) enforces its rights under such Assigned Construction Documents or (B) remedies the underlying matter giving rise to such right to enforce such rights under such Assigned Construction Documents; and
(7) Agent shall have received such other documents or assurances as Agent may reasonably request in connection with the assignments.
(b) Upon the fulfillment of the foregoing conditions, Agent shall deliver (i) one or more UCC-3 termination statements which shall amend the collateral description to previously filed UCC-1 financing statements to exclude the Assigned Construction Documents and (ii) a partial release of the Assignment of Contracts Borrower providing for the release of the Assigned Construction Documents.
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[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.
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BORROWER: |
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THE NEW YORK TIMES BUILDING LLC |
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FC Eighth Ave., LLC, member |
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By: |
FC 42 Hotel LLC, its managing member |
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FCDT Corp., its managing member |
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By: |
/s/ David L. Berliner |
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Name: David L. Berliner |
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Title: Sr. Vice President |
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AGENT: |
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CAPMARK FINANCE INC., as Agent |
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By: |
/s/ Frank J. Guzauskas |
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Name: Frank J. Guzauskas |
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Title: Vice President |
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[SIGNATURES CONTINUE ON NEXT PAGE]
[Signature page to BLA Fourth Amendment]
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NEW FC MEMBER: |
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FC EIGHTH AVE., LLC |
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FC 42 Hotel LLC, its managing member |
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By: |
FCDT Corp., its managing member |
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By: |
/s/ David L. Berliner |
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Name: David L. Berliner |
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Title: Sr. Vice President |
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NYTC MEMBER: |
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NYT REAL ESTATE COMPANY LLC |
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By: |
/s/ Kenneth Richieri |
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Name: Kenneth Richieri |
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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 |
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By: |
/s/ George Hernandez |
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Name: George Hernandez |
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Title: Vice President |
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SUMITOMO MITSUI BANKING CORPORATION, as Lender |
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and Joint Lead Arranger |
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By: |
/s/ Yoshihiro Hyakutome |
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Name: Yoshihiro Hyakutome |
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Title: Joint General Manager |
[Signature page to BLA Fourth Amendment]
STATE OF NEW YORK |
) |
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) ss.: |
COUNTY OF KINGS |
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On the 22 nd day of Jan. in the year 2007 before me, the undersigned, personally appeared David L. Berliner 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.
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/s/ Jeanne Mucci |
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Notary Public |
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Jeanne Mucci |
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Notary Public, State of New York |
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No. 304834577 |
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Qualified in Nassau County |
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Commission Expires March 30, 2007 |
[Notary page to BLA Fourth Amendment]
STATE OF ILLINOIS |
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) ss.: |
COUNTY OF COOK |
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On the 22 day of Jan. in the year 2007 before me, the undersigned, personally appeared Frank J. Guzauskas 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.
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/s/ Valerie Jados |
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Notary Public |
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Official Seal |
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Valerie Jados |
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Notary Public State of Illinois |
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My Commission Expires: 03/25/09 |
[Notary page to BLA Fourth Amendment]
STATE OF NEW YORK |
) |
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) ss.: |
COUNTY OF NEW YORK |
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On the 26th day of January in the year 2007 before me, the undersigned, personally appeared Kenneth Richieri 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.
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/s/ Deborah Beshaw |
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Notary Public |
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Deborah Beshaw |
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Notary Public, State of New York |
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No. 01BE5076617 |
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Qualified in Kings County |
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Certificate on file in New York County |
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Commission Expires April 21, 2009 |
[Notary page to BLA Fourth Amendment]
STATE OF ILLINOIS |
) |
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) ss.: |
COUNTY OF COOK |
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On the 22 day of Jan. in the year 2007 before me, the undersigned, personally appeared George Hernandez 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.
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/s/ Valerie Jados |
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Notary Public |
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Offical Seal |
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Valerie Jados |
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Notary Public, State of Illinois |
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My Commission Expires: 03/25/09 |
[Notary page to BLA Fourth Amendment]
STATE OF NEW YORK |
) |
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) ss.: |
COUNTY OF NEW YORK |
) |
On the 26 th day of January in the year 2007 before me, the undersigned, personally appeared Yoshihiro Hyakutome 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.
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/s/ Jerry H. Wechsler |
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Notary Public |
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Jerry H. Wechsler |
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Notary Public, State of New York |
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No. 01WE6046972 |
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Qualified in Kings County |
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Commission Expires August 21, 2010 |
[Notary page to BLA Fourth Amendment]
Exhibit A
Premises
The Condominium Units (hereinafter called the Units ) in the building (hereinafter called the Building ) known as The New York Times Building Condominium and by the street address 620 Eighth Avenue, Borough of Manhattan, City, County and State of New York, said Units being designated and described as set forth on Schedule 1 herein and in that certain declaration, dated as of August 4, 2006 made by The New York Times Building LLC pursuant to Article 9-B of the Real Property Law of the State of New York (hereinafter called the Condominium Act ) establishing condominium ownership of the Building and the land (hereinafter called the Land ) upon which the Building is situate (which Land is more particularly described below and by this reference made a part hereof), which declaration was recorded in the New York County Office of the Register of The City of New York (the City Registers Office ) on August 15, 2006, as CRFN 2006000460293, (which declaration, and any amendments thereto, are hereinafter collectively called the Declaration ). The Units are also designated as Tax Lot Nos. as set forth on Schedule 1 herein, in Block 1012 of Section 4 of the Borough of Manhattan on the Tax Map of the Real Property Assessment Bureau of The City of New York and on the Floor Plans of the Building filed with the Real Property Assessment Bureau of The City of New York on August 14, 2006 as Condominium Plan No. 1595 and also filed in the City Registers Office of New York County on August 15, 2006 as Condominium CRFN 2006000460294 (as such Floor Plans are amended from time to time).
TOGETHER with an undivided percentage interest as set forth in Schedule 1 herein, respectively, in the Common Elements (as such term is defined in the Declaration) of The New York Times Building Condominium;
The Land area of the Condominium is more particularly described as follows:
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 40 th Street with the easterly line of 8 th Avenue;
RUNNING THENCE northerly along said easterly line of 8 th Avenue, 197 feet 6 inches to the corner formed by the intersection of the easterly side of 8 th Avenue with the southerly line of West 41 st Street;
THENCE easterly along said southerly line of West 41 st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8 th Avenue, 197 feet 6 inches to the northerly line of West 40 th Street;
THENCE westerly along said northerly line of West 40 th Street, 400 feet to the point or place of BEGINNING.
Schedule 1
Description of Units
Unit Designation |
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Tax Lot |
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Percentage Interest In
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0-A |
|
|
1001 |
|
0.6627 |
% |
0-B |
|
|
1002 |
|
0.4079 |
% |
1-A |
|
|
1003 |
|
2.0132 |
% |
1-B |
|
|
1004 |
|
0.2823 |
% |
1-C |
|
|
1005 |
|
0.2921 |
% |
1-D |
|
|
1006 |
|
0.4371 |
% |
1-E |
|
|
1007 |
|
0.0691 |
% |
1-F |
|
|
1008 |
|
0.6443 |
% |
2-A |
|
|
1009 |
|
4.7805 |
% |
3-A |
|
|
1010 |
|
4.7579 |
% |
4-A |
|
|
1011 |
|
4.5636 |
% |
5-A |
|
|
1012 |
|
1.6352 |
% |
6-A |
|
|
1013 |
|
1.7325 |
% |
7-A |
|
|
1014 |
|
1.7325 |
% |
8-A |
|
|
1015 |
|
1.7325 |
% |
9-A |
|
|
1016 |
|
1.7325 |
% |
10-A |
|
|
1017 |
|
1.7325 |
% |
11-A |
|
|
1018 |
|
1.7325 |
% |
12-A |
|
|
1019 |
|
1.7325 |
% |
13-A |
|
|
1020 |
|
1.7325 |
% |
14-A |
|
|
1021 |
|
1.7440 |
% |
15-A |
|
|
1022 |
|
1.3998 |
% |
16-A |
|
|
1023 |
|
1.7484 |
% |
17-A |
|
|
1024 |
|
1.7207 |
% |
18-A |
|
|
1025 |
|
1.7711 |
% |
19-A |
|
|
1026 |
|
1.7711 |
% |
20-A |
|
|
1027 |
|
1.7711 |
% |
21-A |
|
|
1028 |
|
1.7711 |
% |
22-A |
|
|
1029 |
|
1.7711 |
% |
23-A |
|
|
1030 |
|
1.7711 |
% |
24-A |
|
|
1031 |
|
1.7711 |
% |
25-A |
|
|
1032 |
|
1.7711 |
% |
26-A |
|
|
1033 |
|
1.7711 |
% |
27-A |
|
|
1034 |
|
1.7711 |
% |
28-A |
|
|
1035 |
|
0.4446 |
% |
28-B |
|
|
1036 |
|
0.2507 |
% |
29-A |
|
|
1037 |
|
1.7678 |
% |
30-A |
|
|
1038 |
|
1.8386 |
% |
31-A |
|
|
1039 |
|
1.8386 |
% |
32-A |
|
|
1040 |
|
1.8386 |
% |
33-A |
|
|
1041 |
|
1.8386 |
% |
34-A |
|
|
1042 |
|
1.8386 |
% |
35-A |
|
|
1043 |
|
1.8386 |
% |
36-A |
|
|
1044 |
|
1.8386 |
% |
37-A |
|
|
1045 |
|
1.8376 |
% |
38-A |
|
|
1046 |
|
1.8376 |
% |
39-A |
|
|
1047 |
|
1.8376 |
% |
40-A |
|
|
1048 |
|
1.8376 |
% |
41-A |
|
|
1049 |
|
1.8376 |
% |
42-A |
|
|
1050 |
|
1.8376 |
% |
43-A |
|
|
1051 |
|
1.8376 |
% |
44-A |
|
|
1052 |
|
1.8427 |
% |
45-A |
|
|
1053 |
|
1.7710 |
% |
46-A |
|
|
1054 |
|
1.8920 |
% |
47-A |
|
|
1055 |
|
1.8920 |
% |
48-A |
|
|
1056 |
|
1.8920 |
% |
49-A |
|
|
1057 |
|
1.8920 |
% |
50-A |
|
|
1058 |
|
1.8920 |
% |
TOTAL: 58 |
|
|
|
|
100.00 |
% |
Exhibit B
Draw Request
[see attached]
EXHIBIT E
DRAW REQUEST
, 200
Capmark Finance Inc., as
Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Attn: George Hernandez, Vice President
[
Attn: ](1)
Re: Building Loan Agreement dated as of June 25, 2004 (as revised, restated, amended or modified from time to time, the Building Loan Agreement ) and Project Loan Agreement dated as of June 25, 2004 (as revised, restated, amended or modified from time to time, the Project Loan Agreement ; together with the Building Loan Agreement, the Loan Agreements ) each now by and among The New York Times Building LLC ( Original Borrower ), FC Eighth Ave., LLC (together with Original Borrower, Borrower ), and Capmark Finance Inc. and any successor thereto, as agent (including any successors and assigns as agent, Agent ) for itself and on behalf of any lenders as may exist from time to time (such lenders, collectively, including any successors and assigns, Lenders ). All capitalized terms not defined herein shall have the meanings ascribed to them in the Loan Agreements.
Ladies and Gentlemen:
In accordance with the Loan Agreements, Borrower desires to obtain an advance of ($ ) (the Building Loan Advance ) and an advance of ($ ) (the Project Loan Advance ; together with the Building Loan Advance, the Advances and individually, an Advance ) on (the Requested Advance Date ) as follows: $ on account of Building Loan Costs for the FC Units, $ on account of Building
(1) Copies of the Draw Request do not need to go to the Disbursement Agent unless Agent has made the election under Section 5.03(b)(ii) of the Building Loan Agreement.
2
This letter shall constitute a Borrowers instruction to Lenders to pay to Agent [the Disbursement Agent] the Advances in the total amount indicated on the attachments in the Sworn Owners Statement, and (b) Borrowers instructions and authorization to [Agent] [Disbursement Agent] to disburse such Advances and any applicable Other Funds to pay each of the expenses shown in the enclosed invoices, unless [(i)] any such amount with respect to interest, fees or other amounts due and payable to Agent and/or any Lender which Agent and Lenders are, in accordance with the Building Loan Agreement or Project Loan Agreement, entitled to subtract from such Advance [or (ii) Disbursement Agent is otherwise instructed by Agent]. [Disbursement Agent acknowledges, however, that it shall only disburse such Loan proceeds in accordance with the Construction Loan Disbursement Agreement.]
[Signature page follows]
3
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Borrower: |
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THE NEW YORK TIMES BUILDING LLC |
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By: |
FC EIGHTH AVE., LLC, member |
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By: |
FC 42 Hotel LLC, its managing member |
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By: |
FCDT Corp., its managing member |
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By: |
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Name: |
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Title: |
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FC EIGHTH AVE., LLC |
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By: |
FC 42 Hotel LLC, its managing member |
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By: |
FCDT Corp., its managing member |
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By: |
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Name: |
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Title: |
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Sworn Owners Statement
State of New York |
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) ss: |
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County of New York |
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Escrow No. |
The affiant, , is the of FCDT Corp., which is the managing member of FC 42 Hotel LLC, which is the managing member of FC Eighth Ave., LLC, which is a member of The New York Times Building LLC. The New York Times Building LLC and FC Eighth Ave., LLC are collectively referred to as Borrower . FC Eighth Ave., LLC is an owner of the premises known as The New York Times Building, New York, New York. The affiant, being duly sworn on oath, deposes and says the following:
1. That he/she is authorized to deliver this statement on behalf of Borrower and is thoroughly familiar with the facts and circumstances concerning the premises described above;
2. Since the date of the last Sworn Owners Statement submitted in connection with a Draw Request, the only services performed, materials supplied, work done or reimbursements furnished in connection with the mentioned premises for whom Borrower is requisitioning funds are listed on the attachments hereto;
3. That the contracts to which Borrower, or any Affiliate thereof, is a party as to which Borrower is not requisitioning funds (whether because the third party thereto is not yet entitled to payment pursuant to the applicable contract, or because there is a dispute between such third party and Borrower), together with the amount of any bills, invoices or payment claims submitted by such third party, if applicable and the reason(s) why payment has not been requisitioned are set forth on the attachments hereto; and
4. That, to the affiants knowledge, the facts set forth in this statement and the attachments are true and complete.
Notwithstanding anything to the contrary contained in this Sworn Owners Statement, the affiant shall not have any personal liability hereunder. Borrower does have liability hereunder to the same extent it has liability under any other Loan Document.
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Signed: |
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Name: |
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Subscribed and sworn to before me this day of , 200 . |
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Notary Public |
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Exhibit 10.2
THIRD AMENDMENT TO PROJECT LOAN AGREEMENT
By and Among
THE NEW YORK TIMES BUILDING LLC
having an address at
One MetroTech Center North
Brooklyn, New York 11201
NYT REAL
ESTATE COMPANY LLC
having an address c/o
The New York Times Company
229 West 43rd Street
New York, New York 10036
FC EIGHTH
AVE., LLC
having an address at
One MetroTech Center North
Brooklyn, New York 11201
and
CAPMARK
FINANCE INC.
having an address at
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606,
as agent
CAPMARK
SECURITIES, INC.,
as Joint Lead Arranger
and
SUMITOMO MITSUI BANKING CORPORATION,
as Joint Lead Arranger
Property Location: |
Eighth Avenue between 40th and 41 st Street, New York, New York |
Lot: |
Lots 1001 through 1058 (formerly Lot 1) |
Block: |
1012 |
Section: |
4 |
Please return
time-stamped certified copy to
:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Attention: Harris B. Freidus, Esq.
THIRD AMENDMENT TO PROJECT LOAN AGREEMENT
THIS THIRD AMENDMENT TO PROJECT LOAN AGREEMENT (this Amendment ) is made and entered into as of the 29 day of January, 2007 by and among CAPMARK FINANCE INC. (formerly known as GMAC Commercial Mortgage Corporation), a California corporation, with an address 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 ), 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 ), NYT REAL ESTATE COMPANY LLC, a New York limited liability company with an address c/o The New York Times Company, 229 West 43 rd Street, New York, New York 10036 (including any successors and assigns permitted in accordance with the Agreement, NYTC Member ) and FC EIGHTH AVE., LLC, a Delaware 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, New FC Member ).
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, 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 Original 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 June 25, 2004, Initial Agent assigned all of its right, title and interest in the Original Agreement to Agent;
WHEREAS, Borrower and Agent, for itself and on behalf of Lenders, entered into that certain First Amendment to Project Loan Agreement dated as of December 5, 2004 and Borrower, NYTC Member, New FC Member and Agent, for itself and on behalf of Lenders, entered into that certain Second Amendment to Project Loan Agreement dated as of August 15, 2006 (the Second Amendment ) wherein, among other things, FC Member and NYTC Member agreed to join in with Borrower as co-borrowers (the Original Agreement, as so amended, the Agreement ; capitalized terms used herein but left undefined shall have the meanings assigned to such terms in the Agreement);
WHEREAS, NYTC Member has requested, and Agent has agreed, that (i) the NYTC Units be released from the lien of the Project Loan Mortgage, (ii) NYTC Member be removed as a co-borrower and (iii) NYTC Guarantor be released from its guaranties; and
WHEREAS, Borrower, NYTC Member and FC Member have requested an increase in the amount of the Project Loan by $60,000,000 and that certain other changes to the Project Loan be made, and Agent has agreed to make such changes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, Agent, for itself and on behalf of Lenders, Borrower, NYTC Member and FC Member hereby agree as follows:
Assigned Construction Documents has the meaning given to such term in Section 7.58 hereof.
2
Spread means one hundred and seventy-five (175) basis points per annum.
Forward Commitment means a commitment letter executed by Capmark or an Affiliate thereof to make a permanent loan with respect to the FC Units.
Lockout Date means July 1, 2007.
New Project Loan Assignment of Leases has the meaning given to such term in Section 2.05 hereof.
New Project Loan Mortgage has the meaning given to such term in Section 2.02 hereof.
New Project Loan Notes has the meaning given to such term in Section 2.01 hereof.
Rate Lock Agreement means a Forward Rate Lock Agreement anticipated to be executed in the form annexed as
3
Exhibit B to that certain term sheet dated December 19, 2006 between Capmark and FC Member.
Rate Lock Breakage Costs Line Item means the line item in the FC Units Budget for breakage costs incurred in connection with the Rate Lock Agreement.
One or more Project Loan Notes dated August 15, 2006 in favor of each Lender and one or more Project Loan Notes dated January 29, 2007 in favor of each Lender (the New Project Loan Notes ) in the aggregate amount of the Project Amount, as the same may be replaced from time to time (collectively, the Project Loan Notes ).
SECTION 2.02 Project Loan Mortgage . That certain Ground Leasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement dated June 25, 2004 in favor of Initial Agent and Agent and that certain Ground Subleasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement dated January 29, 2007 in favor of Agent (the New Project Loan Mortgage ; collectively, as the same may have been or will be amended, the Project Loan Mortgage ).
SECTION 2.05 Assignment of Leases . That certain Project Loan Assignment of Leases and Rents in favor of Initial Agent and Agent dated as of June 25, 2004 and that certain Project Loan Assignment of Leases and Rents dated January 29, 2007 in favor of Agent (the New Project Loan Assignment of Leases ; collectively, the Project Loan Assignment of Leases ).
4
SECTION 3.12 Prepayment . (a) Prior to the Lockout Date, the Outstanding Principal may not be prepaid, in whole or in part, except for (i) prepayments made in accordance with the Project Loan Mortgage or Sections 7.05 and 7.51 hereof and (ii) a prepayment in full from the proceeds of the funding of the Forward Commitment. From and after the Lockout Date, in addition to prepayments made in accordance with the Project Loan Mortgage or Sections 7.05 and 7.51 hereof, the Borrower may prepay the Outstanding Principal, in whole or in part, on any Business Day (other than the day immediately following Thanksgiving Day or Good Friday), upon not less than five (5) Business Days prior notice to Agent (but if in part, in the principal amount of $1,000,000 or any whole number multiple thereof). At the time of any prepayment, Borrower shall pay (x) all accrued and unpaid interest on the principal portion of the Project Loan being prepaid and (y) all breakage costs actually incurred by Lenders as a result of such prepayment ( Breakage Costs ), including, without limitation, any expenses incurred as a result of any termination of any applicable interest rate management contracts or hedge agreements entered into by any Lender. A certificate of Agent setting forth the amount of Breakage Costs which Lenders are entitled to receive shall be binding and conclusive, absent manifest error. Any payment of the Outstanding Principal made during the continuation of an Event of Default must include any Breakage Costs.
(b) Prepayments made in accordance with the Project Loan Mortgage or Sections 7.05 and 7.51 hereof shall, at Borrowers option, (i) be immediately used to prepay the Loans or (ii) pursuant to an agreement between Borrower and Agent reasonably satisfactory to Agent, be held by Agent in an interest bearing account as additional collateral for the Project Loan and the Building Loan until a date selected by Borrower that is not later than the first Business Day of the next succeeding calendar month (and Borrower shall also deposit with Agent interest on the Loans that will accrue through such date), on which date such amounts (plus any interest earned thereon) shall be applied to prepay the Loans.
5
The third sentence of Section 3.12(a) above shall apply to all prepayments pursuant to the preceding sentence.
(o) Rate Lock Breakage Costs Line Item . With respect to any Advance for sums from the Rate Lock Breakage Costs Line Item, the ratio, expressed as a percentage, of the Remaining Loan Amount as of the Requested Advance Date (taking into account the amount of the Advance requested on such Requested Advance Date) to the Appraised Value of the FC Units (as shown on a new appraisal by the appraiser that performed the Appraisal or any other MAI appraiser selected by Agent or an update to the Appraisal, in either case dated as of a date no earlier than sixty (60) days prior to the Requested Advance Date) shall be equal to or less than eighty percent (80%).
or (D) if any portion of the requested Advance relates to the Rate Lock Breakage Costs Line Item, in which event Agent shall distribute such portion directly to the party under the Rate Lock Agreement to whom moneys are owed.
6
(d) In the event that (A) a line item in a Budget shall be completed (and paid for in full with all appropriate final lien waivers obtained) without the expenditure of all amounts in the applicable Budget allocated to such line item or (B) Borrower shall demonstrate to Agents reasonable satisfaction that a cost savings has been or will be realized with respect to any uncompleted line item, Agent shall permit the applicable portion of such overbudgeted line item to be (x) in the case of NYTC Units Budget line items, advanced pursuant to the last sentence of Section 3.05(d) of this Agreement or (y) in the case of FC Units Budget or NYTC Units Budget line items, shifted to one or more other line items, provided that: (i) a revised Budget and a revised Disbursement Schedule, each of which shall indicate revisions made to date (including, without limitation, the reallocation of amounts as a result of such cost savings) shall have been furnished to and reasonably approved by Agent and Construction Consultant (provided that in the case of the Disbursement Schedule only, Agent and Construction Consultant shall be deemed to have approved any best estimate revisions made in good faith by Borrower), (ii) no line item for Hard Costs shall be reallocated to pay any line items that are not Hard Costs until all Hard Costs shall have been paid for, and (iii) any reallocation of Budget amounts will not have the effect of reducing the net sum which Borrower estimates will be available to it from the Building Loan to pay contractors, subcontractors, laborers and materialmen for the Improvement as set forth in Borrowers Lien Law Affidavit. Notwithstanding the foregoing, no reallocation with respect to the Development Cost Line Item or the Rate Lock Breakage Costs Line Item shall be permitted; provided, however, that upon achievement of Substantial Completion of the Project, Borrower shall be permitted to use all or any portion of the Development Cost Line Item for the purchase of any Interest Rate Caps then required to be provided hereunder and, to the extent the Development Cost Line Item exceeds the costs of such Interest Rate Caps as determined by Agent, to any other line item in the Budgets, subject, however, to clause (iii) of this Section 7.11(d).
7
(g) has not incurred, assumed or created and will not incur, assume or create any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Building Loan, (ii) the Project Loan, (iii) any Interest Rate Cap, (iv) the Rate Lock Agreement and (v) unsecured trade payables or accrued expenses or other obligations incurred in the ordinary course of business in connection with the developing, constructing and operating of the Mortgaged Property; no other debt (other than the Rate Lock Agreement) will be secured (senior, subordinate or pari passu) by the Mortgaged Property;
SECTION 7.46 NYTC Units Release Provisions . (a) Provided that no Noticed Default or Event of Default exists under any Building Loan Document or Project Loan Document, upon the satisfaction of the following conditions, the releases and terminations referred to in Section 7.46(c) hereof shall be effectuated:
(1) the condominium association shall have (A) collaterally assigned its rights to Leases of the Lobby Sublease Space and the Commercial Signage (as each such term is defined in the Condominium Declaration) and agreed to deposit all Rents therefrom (solely to the extent of distributions therefrom to which FC Member would be entitled) into one of the Collection Accounts (the Condominium Assignment ) and (B) collaterally assigned the
8
rights to excess casualty proceeds (to the extent of FC Members interest therein) to Agent for the benefit of Agent and Lenders pursuant to one or more instruments in form and substance satisfactory to Agent (the document or documents referred to the foregoing clauses (A) and (B) being referred to as the Condominium Security Documents ), and Agent shall have received an opinion of counsel reasonably satisfactory to Agent as to the due authorization, execution and delivery and enforceability of such agreements and such other customary matters with respect thereto as Agent may reasonably require;
(2) the NYTC Units will constitute one or more tax lots separate and distinct from the tax lot or lots applicable to the portion of the Premises encumbered by the lien of the remaining Project Loan Mortgage;
(3) Borrower shall have paid all reasonable, third-party out of pocket costs and expenses incurred by Agent in connection with such release (including reasonable attorneys fees and disbursements);
(4) Agent shall have received an endorsement to the existing title policy to the effect that the release shall not cause a subordination, in whole or in part, of the Building Loan Mortgage and Project Loan Mortgage as they affect the remaining Units;
(5) Borrower and FC Member shall have executed and delivered to Agent new replacement Project Loan Notes with Borrower and FC Member as co-borrowers; and
(6) Agent shall have received such other opinions, documents, certificates, instruments, or assurances (including, without limitation, any new UCC-1 Financing Statements) as Agent may reasonably request in connection with the actions and events described in this Section 7.46(a).
(b) Upon the fulfillment of the conditions set forth in Section 7.46(a), (i) the NYTC Units shall be released of record from the liens of the Building Loan Mortgage and Project Loan Mortgage and from the Building Loan Assignment of Leases and Project Loan Assignment of Leases, (ii) the Assignment of Contracts NYTC Member, the NYTC Non-Recourse Carveouts Guaranty and the NYTC Completion Guaranty shall be deemed to have been automatically terminated and NYTC Guarantor and NYTC Member shall have no further liability under the Building Loan Documents or the Project Loan Documents to which they are a party, (iii) the Severance Sublease to which NYTC Member is a party shall be released of record from the lien of the Building Loan Mortgage and Project Loan Mortgage, (iv) all references, covenants, representations and warranties applicable to, or with respect to,
9
NYTC Member in the remaining Project Loan Documents shall be deemed to have been automatically terminated (provided, however, that the rights of NYTC Member pursuant to Section 3.20 of this Agreement shall remain in effect), (v) Agent shall cause the Lenders to return to NYTC Member the existing Project Loan Notes, marked cancelled and (vi) Agent shall return to NYTC Member the conditional resignations executed by each of the managers of the NYTC Board of Directors (as such term is defined in the Condominium Declaration).
(c) Agent agrees to execute and deliver such additional agreements and instruments, as may from time to time be reasonably requested by any Borrower Entity in order to effectuate fully the transactions contemplated by and agreements made in this Section 7.46. All out-of-pocket costs and expenses incurred by Agent in connection with such execution and delivery shall be Reimbursable Costs.
(v) if the manager under any Managing Agent Agreement or the leasing agent under any Leasing Agent Agreement is an Affiliate of any Borrower Entity, if such manager or leasing agent shall fail to duly keep, perform or observe any of the covenants contained in any consent to the collateral assignment thereof or any subordination of such Managing Agent Agreement and such failure shall continue for ten (10) Business Days after notice of such failure from Agent.
10
SECTION 7.58 Assignment of Construction Contracts . (a) Provided that no Noticed Default or Event of Default exists under any Building Loan Document or Project Loan Document, Borrower shall have the right to assign its interest in certain contracts approved by Agent related to the design and construction of the Project (such approved contracts, the Assigned Construction Documents ) to the Board of Managers of the New York Times Condominium, free and clear of any lien of Agent thereon, upon satisfaction of the following conditions:
(1) Substantial Completion shall have occurred;
(2) Agent shall have received not less than ten (10) Business Days notice of such assignments;
(3) Borrower shall have paid all reasonable, third-party out of pocket costs and expenses incurred by Agent in connection with such assignments (including reasonable attorneys fees and disbursements);
(4) Borrower shall have received all consents or approvals from all third parties required in connection with such assignments;
(5) Borrower shall have delivered to Agent all of the documents to be executed in connection with such assignments, all of which shall be in form and substance reasonably satisfactory to Agent;
(6) Agent shall be satisfied that the Board of Managers of the New York Times Condominium has the right to enforce such Assigned Construction Documents for the benefit of the owners of the Units and that upon the occurrence of an event giving rise to the right to enforce such rights, a unit owner may exercise remedies against such Board unless such Board either (A) enforces its rights under such Assigned Construction Documents or (B) remedies the underlying matter giving rise to such right to enforce such rights under such Assigned Construction Documents; and
(7) Agent shall have received such other documents or assurances as Agent may reasonably request in connection with the assignments.
(b) Upon the fulfillment of the foregoing conditions, Agent shall deliver (i) one or more UCC-3 termination statements which shall amend the collateral description to previously filed UCC-1 financing statements to exclude the Assigned Construction
11
Documents and (ii) a partial release of the Assignment of Contracts Borrower providing for the release of the Assigned Construction Documents.
12
13
14
15
16
[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.
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BORROWER: |
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THE NEW YORK TIMES BUILDING LLC |
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By: |
FC Eighth Ave., LLC, member |
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By: |
FC 42 Hotel LLC, its managing member |
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FCDT Corp., its managing member |
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By: |
/s/ David L. Berliner |
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Name: David L. Berliner |
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Title: Sr. Vice President |
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AGENT: |
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CAPMARK FINANCE INC., as Agent |
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By: |
/s/ Frank J. Guzauskas |
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Name: Frank J. Guzauskas |
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Title: Vice President |
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[SIGNATURES CONTINUE ON NEXT PAGE]
[Signature page to PLA Third Amendment]
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NEW FC MEMBER: |
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FC EIGHTH AVE., LLC |
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By: |
FC 42 Hotel LLC, its managing member |
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By: |
FCDT Corp., its managing member |
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By: |
/s/ David L. Berliner |
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Name: David L. Berliner |
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Title: Sr. Vice President |
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NYTC MEMBER: |
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NYT REAL ESTATE COMPANY LLC |
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By: |
/s/ Kenneth Richieri |
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Name: Kenneth Richieri |
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Title: Manager |
THE UNDERSIGNED ARE
EXECUTING THIS
AMENDMENT TO INDICATE THEIR AGREEMENT
TO THIS AMENDMENT AND THE OTHER PROJECT
LOAN RESTRUCTURING DOCUMENTS:
CAPMARK BANK, as Lender |
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By: |
/s/ George Hernandez |
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Name: George Hernandez |
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Title: Vice President |
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SUMITOMO MITSUI BANKING CORPORATION, as Lender |
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and Joint Lead Arranger |
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By: |
/s/ Yoshihiro Hyakutome |
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Name: Yoshihiro Hyakutome |
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Title: Joint General Manager |
[Signature page to PLA Third Amendment]
STATE OF NEW YORK |
) |
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) ss.: |
COUNTY OF KINGS |
) |
On the 22 nd day of Jan. in the year 2007 before me, the undersigned, personally appeared David L. Berliner 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.
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/s/ Jeanne Mucci |
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Notary Public |
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JEANNE MUCCI |
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Notery Public, State of New York |
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No. 30-4834577 |
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Qualified in Nassau County |
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Commission Expires March 30, 2007 |
[Notary page to PLA Third Amendment]
STATE OF ILLINOIS |
) |
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) ss.: |
COUNTY OF COOK |
) |
On the 22 nd day of Jan. in the year 2007 before me, the undersigned, personally appeared Frank J. Guzauskas 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.
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/s/ Valerie Jados |
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Notary Public |
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Official Seal |
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VALERIE JADOS |
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Notary Public - State of Illinois |
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My Commission Expires 03/25/09 |
[Notary page to PLA Third Amendment]
STATE OF NEW YORK |
) |
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) ss.: |
COUNTY OF NEW YORK |
) |
On the 26 th day of January in the year 2007 before me, the undersigned, personally appeared Kenneth Richieri 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.
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/s/ Deborah Beshaw |
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Notary Public |
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DEBORAH BESHAW |
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Notary Public, State of New York |
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No. 01BE5076617 |
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Qualified in Kings County |
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Certificate on file in New York County |
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Commission Expires April 21, 2009 |
[Notary page to PLA Third Amendment]
STATE OF ILLINOIS |
) |
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) ss.: |
COUNTY OF COOK |
) |
On the 22 day of Jan. in the year 2007 before me, the undersigned, personally appeared George Hernandez 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.
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/s/ Valerie Jados |
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Notary Public |
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Official Seal |
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VALERIE JADOS |
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Notary Public - State of Illinois |
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My Commission Expires: 03/25/09 |
[Notary page to PLA Third Amendment]
STATE OF NEW YORK |
) |
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) ss.: |
COUNTY OF NEW YORK |
) |
On the 26 th day of January in the year 2007 before me, the undersigned, personally appeared Yoshihiro Hyakutome 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.
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/s/ Jerry H. Wechsler |
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Notary Public |
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JERRY H. WECHSLER |
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Notary Public, State of New York |
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No. 01WE6046972 |
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Qualified in Kings County |
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Commission Expires August 21, 2010 |
[Notary page to PLA Third Amendment]
Exhibit A
Premises
The Condominium Units (hereinafter called the Units ) in the building (hereinafter called the Building ) known as The New York Times Building Condominium and by the street address 620 Eighth Avenue, Borough of Manhattan, City, County and State of New York, said Units being designated and described as set forth on Schedule 1 herein and in that certain declaration, dated as of August 4, 2006 made by The New York Times Building LLC pursuant to Article 9-B of the Real Property Law of the State of New York (hereinafter called the Condominium Act ) establishing condominium ownership of the Building and the land (hereinafter called the Land ) upon which the Building is situate (which Land is more particularly described below and by this reference made a part hereof), which declaration was recorded in the New York County Office of the Register of The City of New York (the City Registers Office ) on August 15, 2006, as CRFN 2006000460293, (which declaration, and any amendments thereto, are hereinafter collectively called the Declaration ). The Units are also designated as Tax Lot Nos. as set forth on Schedule 1 herein, in Block 1012 of Section 4 of the Borough of Manhattan on the Tax Map of the Real Property Assessment Bureau of The City of New York and on the Floor Plans of the Building filed with the Real Property Assessment Bureau of The City of New York on August 14, 2006 as Condominium Plan No. 1595 and also filed in the City Registers Office of New York County on August 15, 2006 as Condominium CRFN 2006000460294 (as such Floor Plans are amended from time to time).
TOGETHER with an undivided percentage interest as set forth in Schedule 1 herein, respectively, in the Common Elements (as such term is defined in the Declaration) of The New York Times Building Condominium;
The Land area of the Condominium is more particularly described as follows:
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 40 th Street with the easterly line of 8 th Avenue;
RUNNING THENCE northerly along said easterly line of 8 th Avenue, 197 feet 6 inches to the corner formed by the intersection of the easterly side of 8 th Avenue with the southerly line of West 41 st Street;
THENCE easterly along said southerly line of West 41 st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8 th Avenue, 197 feet 6 inches to the northerly line of West 40 th Street;
THENCE westerly along said northerly line of West 40 th Street, 400 feet to the point or place of BEGINNING.
Schedule 1
Description of Units
Unit Designation |
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Tax Lot |
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Percentage Interest In
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0-A |
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1001 |
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0.6627 |
% |
0-B |
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1002 |
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0.4079 |
% |
1-A |
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1003 |
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2.0132 |
% |
1-B |
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1004 |
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0.2823 |
% |
1-C |
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1005 |
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0.2921 |
% |
1-D |
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1006 |
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0.4371 |
% |
1-E |
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1007 |
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0.0691 |
% |
1-F |
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1008 |
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0.6443 |
% |
2-A |
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1009 |
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4.7805 |
% |
3-A |
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1010 |
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4.7579 |
% |
4-A |
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1011 |
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4.5636 |
% |
5-A |
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1012 |
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1.6352 |
% |
6-A |
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1013 |
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1.7325 |
% |
7-A |
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1014 |
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1.7325 |
% |
8-A |
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1015 |
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1.7325 |
% |
9-A |
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1016 |
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1.7325 |
% |
10-A |
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1017 |
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1.7325 |
% |
11-A |
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1018 |
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1.7325 |
% |
12-A |
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1019 |
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1.7325 |
% |
13-A |
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1020 |
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1.7325 |
% |
14-A |
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1021 |
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1.7440 |
% |
15-A |
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1022 |
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1.3998 |
% |
16-A |
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1023 |
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1.7484 |
% |
17-A |
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1024 |
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1.7207 |
% |
18-A |
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|
1025 |
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1.7711 |
% |
19-A |
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|
1026 |
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1.7711 |
% |
20-A |
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|
1027 |
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1.7711 |
% |
21-A |
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|
1028 |
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1.7711 |
% |
22-A |
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1029 |
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1.7711 |
% |
23-A |
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|
1030 |
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1.7711 |
% |
24-A |
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|
1031 |
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1.7711 |
% |
25-A |
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|
1032 |
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1.7711 |
% |
26-A |
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|
1033 |
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1.7711 |
% |
27-A |
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|
1034 |
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1.7711 |
% |
28-A |
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|
1035 |
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0.4446 |
% |
28-B |
|
|
1036 |
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0.2507 |
% |
29-A |
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|
1037 |
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1.7678 |
% |
30-A |
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|
1038 |
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1.8386 |
% |
31-A |
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|
1039 |
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1.8386 |
% |
32-A |
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|
1040 |
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1.8386 |
% |
33-A |
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|
1041 |
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1.8386 |
% |
34-A |
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|
1042 |
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1.8386 |
% |
35-A |
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|
1043 |
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1.8386 |
% |
36-A |
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|
1044 |
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1.8386 |
% |
37-A |
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|
1045 |
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1.8376 |
% |
38-A |
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|
1046 |
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1.8376 |
% |
39-A |
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|
1047 |
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1.8376 |
% |
40-A |
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|
1048 |
|
1.8376 |
% |
41-A |
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|
1049 |
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1.8376 |
% |
42-A |
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|
1050 |
|
1.8376 |
% |
43-A |
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|
1051 |
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1.8376 |
% |
44-A |
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|
1052 |
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1.8427 |
% |
45-A |
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|
1053 |
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1.7710 |
% |
46-A |
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1054 |
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1.8920 |
% |
47-A |
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|
1055 |
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1.8920 |
% |
48-A |
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|
1056 |
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1.8920 |
% |
49-A |
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|
1057 |
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1.8920 |
% |
50-A |
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|
1058 |
|
1.8920 |
% |
TOTAL: 58 |
|
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|
100.00 |
% |
Exhibit B
Draw Request
[see attached]
EXHIBIT E
DRAW REQUEST
,
200
Capmark Finance Inc., as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Attn: George Hernandez, Vice President
[
Attn: ](1)
Re: Building Loan Agreement dated as of June 25, 2004 (as revised, restated, amended or modified from time to time, the Building Loan Agreement ) and Project Loan Agreement dated as of June 25, 2004 (as revised, restated, amended or modified from time to time, the Project Loan Agreement ; together with the Building Loan Agreement, the Loan Agreements ) each now by and among The New York Times Building LLC ( Original Borrower ), FC Eighth Ave., LLC (together with Original Borrower, Borrower ), and Capmark Finance Inc. and any successor thereto, as agent (including any successors and assigns as agent, Agent ) for itself and on behalf of any lenders as may exist from time to time (such lenders, collectively, including any successors and assigns, Lenders ). All capitalized terms not defined herein shall have the meanings ascribed to them in the Loan Agreements.
Ladies and Gentlemen:
In accordance with the Loan Agreements, Borrower desires to obtain an advance of ($ ) (the Building Loan Advance ) and an advance of ($ ) (the Project Loan Advance ; together with the Building Loan Advance, the Advances and individually, an Advance ) on (the Requested Advance Date ) as follows: $ on account of Building Loan Costs for the FC Units, $ on account of Building
(1) Copies of the Draw Request do not need to go to the Disbursement Agent unless Agent has made the election under Section 5.03(b)(ii) of the Building Loan Agreement.
Loan Costs for the NYTC Units, $ on account of Project Loan Costs for the FC Units, and $ on account of Project Loan Costs for the NYTC Units. Such allocations (a) are more particularly set forth on the attachments to the Sworn Owners Affidavit which is attached hereto and (b) have been prepared in accordance with the Cost Allocation Methodology. In order to induce Lenders to make each Advance, Borrower hereby represents and warrants the following to Agent and Lenders:
2
This letter shall constitute a Borrowers instruction to Lenders to pay to Agent [the Disbursement Agent] the Advances in the total amount indicated on the attachments in the Sworn Owners Statement, and (b) Borrowers instructions and authorization to [Agent] [Disbursement Agent] to disburse such Advances and any applicable Other Funds to pay each of the expenses shown in the enclosed invoices, unless [(i)] any such amount with respect to interest, fees or other amounts due and payable to Agent and/or any Lender which Agent and Lenders are, in accordance with the Building Loan Agreement or Project Loan Agreement, entitled to subtract from such Advance [or (ii) Disbursement Agent is otherwise instructed by Agent]. [Disbursement Agent acknowledges, however, that it shall only disburse such Loan proceeds in accordance with the Construction Loan Disbursement Agreement.]
[Signature page follows]
3
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Borrower: |
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THE NEW YORK TIMES BUILDING LLC |
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By: |
FC EIGHTH AVE., LLC, member |
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By: |
FC 42 Hotel LLC, its managing member |
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By: |
FCDT Corp., its managing member |
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By: |
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Name: |
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Title: |
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FC EIGHTH AVE., LLC |
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By: |
FC 42 Hotel LLC, its managing member |
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By: |
FCDT Corp., its managing member |
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By: |
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Name: |
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Title: |
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Sworn Owners Statement
State of New York |
) |
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) ss: |
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County of New York |
) |
Escrow No. |
The affiant, , is the of FCDT Corp., which is the managing member of FC 42 Hotel LLC, which is the managing member of FC Eighth Ave., LLC, which is a member of The New York Times Building LLC. The New York Times Building LLC and FC Eighth Ave., LLC are collectively referred to as Borrower . FC Eighth Ave., LLC is an owner of the premises known as The New York Times Building, New York, New York. The affiant, being duly sworn on oath, deposes and says the following:
1. That he/she is authorized to deliver this statement on behalf of Borrower and is thoroughly familiar with the facts and circumstances concerning the premises described above;
2. Since the date of the last Sworn Owners Statement submitted in connection with a Draw Request, the only services performed, materials supplied, work done or reimbursements furnished in connection with the mentioned premises for whom Borrower is requisitioning funds are listed on the attachments hereto;
3. That the contracts to which Borrower, or any Affiliate thereof, is a party as to which Borrower is not requisitioning funds (whether because the third party thereto is not yet entitled to payment pursuant to the applicable contract, or because there is a dispute between such third party and Borrower), together with the amount of any bills, invoices or payment claims submitted by such third party, if applicable and the reason(s) why payment has not been requisitioned are set forth on the attachments hereto; and
4. That, to the affiants knowledge, the facts set forth in this statement and the attachments are true and complete.
Notwithstanding anything to the contrary contained in this Sworn Owners Statement, the affiant shall not have any personal liability hereunder. Borrower does have liability hereunder to the same extent it has liability under any other Loan Document.
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Signed: |
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Name: |
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Subscribed and sworn to before me this day of , 200 . |
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Notary Public |
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Exhibit 10.3
THIRD
AMENDMENT TO
OPERATING AGREEMENT OF
THE NEW YORK TIMES BUILDING LLC
(a New York limited liability company)
THIRD AMENDMENT TO OPERATING AGREEMENT OF THE NEW YORK TIMES BUILDING LLC (this Amendment ) dated this 29 th day of January, 2007 by and between FC EIGHTH AVE., LLC, a Delaware limited liability company, having an office at One MetroTech Center North, Brooklyn, New York 11201 ( FC Member ), and NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an office at 229 West 43 rd Street, New York, New York 10036 ( NYTC Member ).
WHEREAS:
A. FC Member and NYTC Member are members (the Members ) in The New York Times Building LLC (the Company ) and in connection therewith are parties to the Operating Agreement of the Company dated December 12, 2001, as amended by the First Amendment to the Operating Agreement of the Company dated as of June 25, 2004 and the Second Amendment to the Operating Agreement of the Company dated as of August 15, 2006 (the Operating Agreement );
B. The Company is developing a certain building and improvements on the land known as and having a street address of 620 Eighth Avenue, New York, New York;
C. On August 15, 2006, the Company subjected its interest in said land and improvements to the provisions of Article 9-B of the Real Property Law of the State of New York pursuant to that certain Declaration of Leasehold Condominium Establishing Plan of Leasehold Condominium Ownership of Premises Known as and Having a Street Address of 620 Eighth Avenue, New York, New York;
D. FC Member, NYTC Member and the Company are indebted to Lender (as defined in the Loan Agreements) in a principal amount of up to $320,000,000.00 (the Loan ) pursuant to the terms of a Building Loan Agreement and a Poject Loan Agreement each dated as of June 25, 2004, as each have been amended from time to time (collectively, the Loan Agreements );
E. Concurrently with the execution of this Amendment, Lender is (i) together with FC Member, making certain modifications to the Loan, including but not limited to, increasing the loan amount by $60,000,000.00 ( New Loan ); (ii) releasing NYTC Member as a co-borrower on the Loan and releasing the lien of the Loan from the NYTC Units and (iii) waiving NYTC Members requirement to fund the NYTC Extension Loan.
As a result of all of the foregoing and certain other matters as hereinafter set forth, the Members desire to modify the Operating Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both Members, the Members agree to modify the Operating Agreement as follows:
[the remainder of this page is intentionally blank]
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and date first above written.
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FC EIGHTH AVE., LLC, a Delaware limited
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By: |
FC 42 Hotel LLC, a Delaware limited
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By: |
FCDT Corp., a New York
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By: |
/s/ David L. Berliner |
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Name: David L. Berliner |
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Title: Sr. Vice President |
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NYT REAL ESTATE COMPANY LLC, a New
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By: |
/s/ Kenneth Richieri |
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Name: Kenneth Richieri |
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Title: Manager |
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Exhibit A
Members Consent
MEMBERS CONSENT
FC EIGHTH AVE., LLC, a Delaware limited liability company ( FC Member ) and NYT REAL ESTATE COMPANY LLC, a New York limited liability company ( NYTC Member ), being all of the members (the Members ) of THE NEW YORK TIMES BUILDING LLC, a New York limited liability company (the Company ), do hereby certify to CAPMARK FINANCE INC. (formerly known as GMAC Commercial Mortgage Corporation), as agent ( Lender ) that the following actions are consented to and approved and that said consent and approval is in full force and effect on the date hereof:
The Company and the Members are indebted to Lender in a principal amount of up to $320,000,000.00 (the Loan ) pursuant to the terms of a Building Loan Agreement and a Project Loan Agreement each dated as of June 25, 2004, as each have been amended from time to time (collectively, the Loan Agreements ).
The Company and the Members intend to enter into certain amendments to the terms of the Loan Agreements and execute other ancillary documents related to the Loan in order to, among other things, (i) release NYTC Member from the Loan as a co-borrower (the NYTC Release Documents ), and (ii) increase the amount of the Loan by $60,000,000.00 (the Loan Amendment Documents , which Loan Amendment Documents are identified in Exhibit A attached hereto and, together with the NYTC Release Documents, are hereinafter referred to as the Revised Documents ).
The Company is hereby authorized to enter into, execute and deliver the Revised Documents.
In furtherance of the foregoing, FC Member is hereby authorized, acting singly as the authorized agent of the Company, to enter into, execute and deliver the Revised Documents.
The Company is hereby authorized to enter into, execute and deliver all future amendments, renewals, increases and other changes that FC Member shall deem necessary or advisable in connection with or relating to the Loan, to the extent such future amendments, renewals, increases and other changes do not have any adverse financial effect or any other material adverse effect on NYTC Member (the Future Amendments ). Notwithstanding anything to the contrary contained herein, FC Member shall deliver to NYTC Member copies of all proposed Future Amendments at least five (5) Business Days prior to the execution thereof by FC Member pursuant to this consent.
In furtherance of the foregoing, FC Member is hereby authorized, acting singly as the authorized agent of the Company, to enter into, execute and deliver the Future Amendments and all other documents or instruments that FC Member shall deem necessary or advisable in connection with or relating to the Future Amendments.
The Members hereby ratify all past actions, if any, taken by the Company or FC Member in connection with the transactions described herein.
1. The Articles of Organization of the Company filed on November 28, 2001 and Certificate of Amendment to such Articles of Organization which was filed with the Office of the Secretary of State of the State of New York on or about June 25, 2004, copies of which were delivered to Lender as of June 25, 2004, are in full force and effect and have not been further amended, modified or repealed as of the date hereof; and
2. The (a) Operating Agreement of the Company dated as of December 12, 2001, (b) letter agreement dated as of April 8, 2004, (c) First Amendment to Operating Agreement dated as of June 25, 2004, copies of which were delivered to Lender as of June 25, 2004 and (d) the Second Amendment to Operating Agreement dated as of August 15, 2006 are in full force and effect and have not been further amended, modified or repealed as of the date hereof except by that certain Third Amendment to Operating Agreement dated on or about the date hereof.
[the remainder of the page is intentionally blank]
IN WITNESS WHEREOF, the undersigned have executed this Members Consent as of the 29th day of January, 2007.
FC EIGHTH AVE., LLC, a Delaware limited liability company |
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By: |
FC 42 Hotel LLC, a Delaware limited liability company, |
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its managing member |
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By: |
FCDT Corp., a New York corporation, |
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its managing member |
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By: |
/s/ David L. Berliner |
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Name: |
David L. Berliner |
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Title: |
Sr. Vice President |
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NYT REAL ESTATE COMPANY LLC, |
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a New York limited liability company |
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By: |
/s/ Kenneth Richieri |
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Name: |
Kenneth Richieri |
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Title: |
Manager |
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Exhibit A to the Members Consent
Loan Amendment Documents
1. Amendment No. 4 to Building Loan Agreement by and among the Company, FC Member (the Company and FC Member are hereinafter collectively referred to as Borrowers ), NYTC Member and Lender.
2. Section 22 Affidavit.
3. Amendment No. 3 to Project Loan Agreement by and among Borrowers, NYT Member and Lender.
4. Ground Subleasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement by Borrowers in favor of Lender.
5. Project Loan Assignment of Leases and Rents by Borrowers to Lender.
6. Project Loan Notes by Borrowers in favor of the following parties in the aggregate principal amount of $60,000,000:
(a) Capmark Finance Inc. ($24,473,684.20)
(b) Capmark Bank ($15,789,473.69)
(c) Sumitomo Mitsui Banking Corporation (SMBC) ($19,736,842.11)
7. Replacement Building Loan Notes by Borrowers in favor of the following parties in the aggregate principal amount of $170,529,479:
(a) Capmark Finance Inc. ($69,558,076.97)
(b) Capmark Bank ($44,876,178.68)
(c) SMBC ($56,096,223.35)
8. Replacement Project Loan Notes by Borrowers in favor of the following parties in the aggregate principal amount of $149,470,521:
(a) Capmark Finance Inc. ($60,968,238.83)
(b) Capmark Bank ($39,334,347.63)
(c) SMBC ($49,167,934.54)
9. Amendment to Side Letter re: Fees by and among Borrowers and Lender.
10. Consent to Collateral Assignment and Subordination of Management Agreement (FC Office) by First New York Partners Management, LLC (First New York) and FC Member.
11. Subordination of Management Agreement (Common Elements) by First New York.
12. Side Letter re: Change to Collection Accounts Agreement by and among Lender, Borrowers and JPMorgan Chase Bank, N.A. and related notices to tenants.
13. First Amendment to Mortgage Spreader and Release Agreement (Building Loan Mortgage) between Borrowers and Lender, with Section 255 Affidavit.
14. First Amendment to Mortgage Spreader and Release Agreement (Project Loan Mortgage) between Borrowers and Lender, with Section 255 Affidavit.
15. First Amendment to Joinder Agreement by FC Member in favor of Lender.
16. First Amendment to Conditional Collateral Assignment of Declarants Rights by FC Member in favor of Lender.
17. The Reaffirmation of Guaranty and Consent to Restructuring (FC Guarantor) by Forest City Enterprises, Inc. in favor of Lender.
18. Certification regarding Loan being In-Balance by the Company and FC Member.
19. Assignment of Rents and Proceeds by The Board of Managers of The New York Times Building Condominium (the Condo Board) in favor of Lender.
20. Various UCC-1 or UCC-3 Financing Statements reflecting the Company, FC Member, the Condo Board, as applicable, as debtor, and Lender, as secured party.
Exhibit 10.4
SECOND AMENDMENT TO AGREEMENT OF SUBLEASE (NYT)
By and Between
42ND ST. DEVELOPMENT PROJECT, INC.
,
as Landlord
and
NYT REAL ESTATE
COMPANY LLC,
as Tenant
Premises :
Block: 1012
Lots: 1001,1003, 1007, 1009, 1010-1035
(formerly part of Lot 1)
Address
620-628 8
th
Avenue
263-267 and 241-261 West 40
th
Street
242-244 West 41 st Street
231-235 West 40 th Street
248-256, 260-262 and 268 West 41 st Street
634 and 630-632 8 th Avenue
Borough of
Manhattan
County, City and State of New York
RECORD AND RETURN TO :
DLA Piper Rudnick Gray Cary US LLP
1251 Avenue of the Americas
New York, New York 10020
Attention: Marc Hurel, Esq.
SECOND AMENDMENT TO AGREEMENT OF SUBLEASE (NYT)
THIS SECOND AMENDMENT TO AGREEMENT OF SUBLEASE (NYT) (this Amendment ) is made as of the 29 th day of January, 2007, by and between 42ND ST. DEVELOPMENT PROJECT, INC. ( 42DP ), a subsidiary of New York State Urban Development Corporation ( UDC ) d/b/a Empire State Development Corporation ( ESDC ), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at 633 Third Avenue, 33 rd floor, New York, New York 10017, as landlord (in such capacity, Landlord ), and NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an office c/o The New York Times Company, 229 West 43 rd Street, New York, New York 10036, as tenant (in such capacity, Tenant ).
W I T N E S S E T H :
WHEREAS , Landlord and The New York Times Building LLC ( NYTB ) entered into that certain Agreement of Lease dated as of December 12, 2001, as amended by letter dated April 8, 2004 (the Initial Ground Lease ), with respect to certain land and improvements more particularly described in the Initial Ground Lease, a memorandum of which was recorded October 24, 2003 in the Office of the City Register of the City of New York (the Office of the City Register ) as CRFN 2003000433122;
WHEREAS , NYTB, as landlord, entered into (a) that certain Agreement of Sublease dated as of December 12, 2001 with NYT Real Estate Company LLC, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433125 in the Office of the City Register (the NYTC Sublease ), (b) that certain Agreement of Sublease (Office) dated as of December 12, 2001 with FC Lion LLC ( FC Lion ), as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433123 in the Office of the City Register, which Agreement of Sublease (Office) was amended by that certain First Amendment to Agreement of Sublease (Office) dated as of August 15, 2006, and recorded November 20, 2006 as CRFN 2006000644733 in the Office of the City Register (as amended, the FC Office Sublease ), and (c) that certain Agreement of Sublease (Retail) dated as of December 12, 2001 with FC Lion, as tenant, a memorandum of which was recorded October 24, 2003 as CRFN 2003000433124 in the Office of the City Register, which Agreement of Sublease (Retail) was amended by that certain First Amendment to Agreement of Sublease (Retail) dated as of August 15, 2006, and recorded November 20, 2006 as CRFN 2006000644734 in the Office of the City Register (as amended, the FC Retail Sublease );
WHEREAS, the NYTC Sublease, the FC Office Sublease, the FC Retail Sublease, any New Office Subleases (as defined in the NYTC Sublease) and any new leases entered into pursuant to Section 31.6 of any of the foregoing are referred to herein, collectively, as the Severance Subleases ;
WHEREAS , NYTB submitted the Initial Ground Lease to a leasehold condominium structure pursuant to that certain Declaration of Leasehold Condominium dated as of August 4, 2006 (the Condominium Declaration ), which Condominium Declaration was recorded on August 15, 2006 as CRFN 2006000460293 in the Office of the City Register and amended by that certain First Amendment to Declaration of Leasehold Condominium dated as of the date hereof and to be recorded immediately prior hereto;
WHEREAS , pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 between NYTB and Landlord (the Lease Assignment ), which Lease Assignment was recorded November 20, 2006 as CRFN 2006000644732 in the Office of the City Register, NYTB assigned to Landlord all of NYTBs right, title and interest in and to the Initial Ground Lease and the Severance Subleases;
WHEREAS , pursuant to the provisions of the Initial Ground Lease and the Lease Assignment, the Lease Assignment did not cause a merger of the interests of landlord and tenant under the Initial Ground Lease, which interests are and shall remain separate and distinct;
WHEREAS , Landlord and Tenant entered into an amendment to the NYTC Sublease pursuant to that certain First Amendment to Agreement of Sublease (NYT) dated as of August 15, 2006, and recorded November 20, 2006 as CRFN 2006000644735 in the Office of the City Register (the First Amendment ), which First Amendment was entered into in order to reflect certain changes to the premises demised under the Severance Subleases and to certify as to certain other matters, including, without limitation, the legal description of the Demised Premises, which legal description was attached to the First Amendment as Exhibit A (the Original Legal Description ); and
WHEREAS , the Original Legal Description did not accurately reflect the legal description of the Demised Premises and Landlord and Tenant wish to replace Exhibit A as attached to the First Amendment as hereinafter provided.
NOW, THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions . All capitalized terms used herein without definition shall have the meanings ascribed to them in the NYTC Sublease.
2. Legal Description . Exhibit A to the First Amendment is hereby deleted and replaced in its entirety by the document attached hereto as Exhibit A . All references to Exhibit A in the First Amendment shall be deemed to refer to the document attached hereto as Exhibit A .
3. Estoppel . To Landlords knowledge, (a) Tenant has fulfilled all of its obligations under the NYTC Sublease to date, (b) no Default or Event of Default (as each is defined in the NYTC Sublease) by Tenant exists under the NYTC Sublease and (c) Landlord has no claims (including claims of off-set, defense or counterclaims) against Tenant alleging Tenants default under the NYTC Sublease.
4. Recording . Landlord and Tenant agree that Tenant shall cause this Amendment to be recorded and that Tenant shall pay any transfer or similar taxes that may be payable as a result of this Amendment.
5. No Other Amendments . As modified by this Amendment, the NYTC Sublease remains in full force and effect.
[the remainder of this page is intentionally blank]
IN WITNESS WHEREOF , Landlord and Tenant have executed this Amendment as of the day and year first written above.
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LANDLORD: |
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42ND ST. DEVELOPMENT PROJECT, INC., as
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By: |
/s/ Naresh Kapadia |
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Name: Naresh Kapadia |
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Title: Assistant Vice President Planning & Design |
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TENANT: |
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NYT REAL ESTATE COMPANY LLC, a New
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By: |
/s/ Kenneth Richieri |
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Name: Kenneth Richieri |
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Title: Manager |
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ACKNOWLEDGMENTS
STATE OF NEW YORK |
) |
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) ss.: |
COUNTY OF NEW YORK |
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On the 22nd day of January in the year 2007, before me, the undersigned, a Notary Public in and for said State, personally appeared Naresh Kapadia, 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.
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/s/ Suzanna Blaskovic |
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Notary Public |
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Commission Expires |
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Suzanna Blaskovic
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STATE OF NEW YORK |
) |
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) ss.: |
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COUNTY OF NEW YORK |
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On the 26 th day of January in the year 2007, before me, the undersigned, a Notary Public in and for said State, personally appeared Kenneth Richieri, 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 h capacity, and that by h signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
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/s/ Deborah Beshaw |
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Notary Public |
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Commission Expires |
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Deborah Beshaw
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EXHIBIT A
Legal Description
The Condominium Units (hereinafter called the Units) in the building (hereinafter called the Building) known as The New York Times Building Condominium and by the street address 620 Eighth Avenue, Borough of Manhattan, City, County and State of New York, said Units being designated and described as set forth on Schedule 1 herein and in that certain declaration, dated as of August 4, 2006 made by The New York Times Building LLC pursuant to Article 9-B of the Real Property Law of the State of New York (hereinafter called the Condominium Act) establishing condominium ownership of the Building and the land (hereinafter called the Land) upon which the Building is situate (which Land is more particularly described below and by this reference made a part hereof), which declaration was recorded in the New York County Office of the Register of The City of New York (the City Registers Office) on August 15, 2006, as CRFN 2006000460293, (which declaration, and any amendments thereto, are hereinafter collectively called the Declaration). The Units are also designated as Tax Lot Nos. as set forth on Schedule 1 herein, in Block 1012 of Section 4 of the Borough of Manhattan on the Tax Map of the Real Property Assessment Bureau of The City of New York and on the Floor Plans of the Building filed with the Real Property Assessment Bureau of The City of New York on August 14, 2006 as Condominium Plan No. 1595 and also filed in the City Registers Office of New York County on August 15, 2006 as Condominium CRFN 2006000460294 (as such Floor Plans are amended from time to time).
TOGETHER with an undivided percentage interest as set forth in Schedule 1 herein, respectively, in the Common Elements (as such term is defined in the Declaration) of The New York Times Building Condominium;
The Land area of the Condominium is more particularly described as follows:
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 40 th Street with the easterly line of 8 th Avenue;
RUNNING THENCE northerly along said easterly line of 8 th Avenue, 197 feet 6 inches to the corner formed by the intersection of the easterly side of 8 th Avenue with the southerly line of West 41 st Street;
THENCE easterly along said southerly line of West 41 st Street, 400 feet;
THENCE southerly and parallel to said easterly line of 8 th Avenue, 197 feet 6 inches to the northerly line of West 40 th Street;
THENCE westerly along said northerly line of West 40 th Street, 400 feet to the point or place of BEGINNING.
Schedule 1
Description of NYTC Units
Unit Designation |
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Tax Lot |
|
Percentage Interest In
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0-A |
|
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1001 |
|
0.6627 |
% |
1-A |
|
|
1003 |
|
2.0132 |
% |
1-E |
|
|
1007 |
|
0.0691 |
% |
2-A |
|
|
1009 |
|
4.7805 |
% |
3-A |
|
|
1010 |
|
4.7579 |
% |
4-A |
|
|
1011 |
|
4.5636 |
% |
5-A |
|
|
1012 |
|
1.6352 |
% |
6-A |
|
|
1013 |
|
1.7325 |
% |
7-A |
|
|
1014 |
|
1.7325 |
% |
8-A |
|
|
1015 |
|
1.7325 |
% |
9-A |
|
|
1016 |
|
1.7325 |
% |
10-A |
|
|
1017 |
|
1.7325 |
% |
11-A |
|
|
1018 |
|
1.7325 |
% |
12-A |
|
|
1019 |
|
1.7325 |
% |
13-A |
|
|
1020 |
|
1.7325 |
% |
14-A |
|
|
1021 |
|
1.7440 |
% |
15-A |
|
|
1022 |
|
1.3998 |
% |
16-A |
|
|
1023 |
|
1.7484 |
% |
17-A |
|
|
1024 |
|
1.7207 |
% |
18-A |
|
|
1025 |
|
1.7711 |
% |
19-A |
|
|
1026 |
|
1.7711 |
% |
20-A |
|
|
1027 |
|
1.7711 |
% |
21-A |
|
|
1028 |
|
1.7711 |
% |
22-A |
|
|
1029 |
|
1.7711 |
% |
23-A |
|
|
1030 |
|
1.7711 |
% |
24-A |
|
|
1031 |
|
1.7711 |
% |
25-A |
|
|
1032 |
|
1.7711 |
% |
26-A |
|
|
1033 |
|
1.7711 |
% |
27-A |
|
|
1034 |
|
1.7711 |
% |
28-A |
|
|
1035 |
|
0.4446 |
% |