10-Q

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UNITED STATES
SECURITIES EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-Q

QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934.

For quarterly period ended June 27, 2004

Commission file number 1-5837

THE NEW YORK TIMES COMPANY
(Exact name of registrant as specified in its charter)

NEW YORK (State or other jurisdiction of incorporation or organization)	13-1102020 (I.R.S. Employer Identification No.)
229 WEST 43RD STREET, NEW YORK, NEW YORK (Address of principal executive offices)
10036 (Zip Code)
212-556-1234 Registrant's telephone number, including area code

        Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý    No o.

        Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).
Yes ý    No o.

        Number of shares of each class of the registrant's common stock outstanding as of July 30, 2004 (exclusive of treasury shares):

Class A Common Stock	145,985,280 shares
Class B Common Stock	840,316 shares

PART I.    FINANCIAL INFORMATION

Item 1.    Financial Statements

THE NEW YORK TIMES COMPANY

CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(Dollars and shares in thousands, except per share data)

			Three Months Ended				Six Months Ended
			June 27, 2004		June 29, 2003		June 27, 2004			June 29, 2003
			(13 Weeks)				(26 Weeks)
Revenues
	Advertising		$	551,511	$	530,564	$	1,080,538		$	1,043,718
	Circulation			220,156		221,304		440,399			442,305
	Other			52,264		50,023		104,938			99,608
		Total		823,931		801,891		1,625,875			1,585,631
Production costs
	Raw materials			71,594		67,534		142,107			133,755
	Wages and benefits			170,972		167,672		345,622			335,519
	Other			122,893		115,840		245,209			233,230
		Total		365,459		351,046		732,938			702,504
Selling, general and administrative expenses				326,715		320,788		652,018			630,775
		Total		692,174		671,834		1,384,956			1,333,279
Operating profit				131,757		130,057		240,919			252,352
Net income/(loss) from joint ventures				2,734		694		(559	)		(5,518	)
Interest expense, net				10,353		11,484		20,673			23,286
Other income				1,250		1,250		2,500			10,777
Income before income taxes and minority interest				125,388		120,517		222,187			234,325
Income taxes				49,538		47,606		87,777			92,552
Minority interest in net income of subsidiaries				173		82		298			98
Net Income			$	75,677	$	72,829	$	134,112		$	141,675
Average Number of Common Shares Outstanding
	Basic			148,626		150,730		149,275			151,287
	Diluted			150,902		153,403		151,673			154,001
Basic Earnings Per Share			$	.51	$	.48	$	.90		$	.94
Diluted Earnings Per Share			$	.50	$	.47	$	.88		$	.92
Dividends Per Share			$	.155	$	.145	$	.300		$	.280

See Notes to Condensed Consolidated Financial Statements.

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THE NEW YORK TIMES COMPANY

CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)

				June 27, 2004		December 28, 2003
				(Unaudited)
ASSETS
Current Assets
	Cash and cash equivalents			$	45,185	$	39,447
	Accounts receivable—net				356,434		387,720
	Inventories
		Newsprint and magazine paper			37,153		26,067
		Work-in-process and other			2,796		2,885
			Total inventories		39,949		28,952
	Deferred income taxes				66,178		66,178
	Other current assets				54,989		81,014
			Total current assets		562,735		603,311
Other Assets
	Investments in joint ventures				222,009		227,470
	Property, plant and equipment (less accumulated depreciation and amortization of $1,340,684 in 2004 and $1,288,696 in 2003)				1,185,231		1,187,313
	Intangible assets acquired
		Goodwill			1,096,026		1,097,682
		Other intangible assets acquired (less accumulated amortization of $134,901 in 2004 and $126,238 in 2003)			367,611		376,688
	Miscellaneous assets				350,992		312,275
TOTAL ASSETS				$	3,784,604	$	3,804,739

See Notes to Condensed Consolidated Financial Statements.

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THE NEW YORK TIMES COMPANY

CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)

				June 27, 2004			December 28, 2003
				(Unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
	Commercial paper outstanding			$	144,000		$	227,980
	Accounts payable				186,302			176,570
	Accrued payroll and other related liabilities				117,553			119,490
	Accrued expenses				189,769			158,446
	Unexpired subscriptions				77,975			76,281
	Current portion of long-term debt and capital lease obligations				253,384			1,597
			Total current liabilities		968,983			760,364
Other Liabilities
	Long-term debt				393,422			646,909
	Capital lease obligations				78,656			78,816
	Deferred income taxes				140,317			140,336
	Other				713,821			694,661
			Total other liabilities		1,326,216			1,560,722
Minority Interest					113,013			91,411
Stockholders' Equity
	Common stock of $.10 par value:
		Class A—authorized 300,000,000 shares; issued: 2004—158,634,186; 2003—157,716,099 (including treasury shares: 2004—11,235,989; 2003—8,677,435)			15,863			15,772
		Class B—convertible—authorized and issued shares; 2004—840,316; 2003—840,316			84			84
	Additional paid-in capital				88,477			53,645
	Retained earnings				1,857,104			1,790,801
	Common stock held in treasury, at cost				(497,148	)		(381,004	)
	Deferred compensation				(7,208	)		(8,037	)
	Accumulated other comprehensive loss, net of income taxes				(80,780	)		(79,019	)
			Total stockholders' equity		1,376,392			1,392,242
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY				$	3,784,604		$	3,804,739

See Notes to Condensed Consolidated Financial Statements.

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THE NEW YORK TIMES COMPANY

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(Dollars in thousands)

		Six Months Ended
		June 27, 2004			June 29, 2003
		(26 Weeks)
OPERATING ACTIVITIES
Net cash provided by operating activities		$	292,226		$	266,205
INVESTING ACTIVITIES
Capital expenditures—net			(56,895	)		(71,727	)
Acquisition			—			(65,059	)
Other investing payments			(19,058	)		(49,089	)
Net cash used in investing activities			(75,953	)		(185,875	)
FINANCING ACTIVITIES
Commercial paper (repayments)/borrowings—net			(83,980	)		11,220
Long-term obligations:
	Reduction		(974	)		(1,388	)
Capital shares:
	Issuance		30,220			17,677
	Repurchase		(106,455	)		(108,606	)
Dividends paid to stockholders			(44,791	)		(42,162	)
Other financing (payments)/proceeds—net			(4,461	)		38,932
Net cash used in financing activities			(210,441	)		(84,327	)
Increase/(Decrease) in cash and cash equivalents			5,832			(3,997	)
Effect of exchange rate changes on cash and cash equivalents			(94	)		450
Cash and cash equivalents at the beginning of the year			39,447			36,962
Cash and cash equivalents at the end of the quarter		$	45,185		$	33,415

SUPPLEMENTAL DATA

Acquisition

On January 1, 2003, the Company purchased the remaining 50% interest in the International Herald Tribune that it did not previously own for approximately $65 million.

Other

For the first six months of 2003, capital expenditures are net of a reimbursement of remediation costs at one of the Company's major printing facilities, a portion of which costs had been previously capitalized.

The Company's and its development partner's interests in the Company's new headquarters are approximately 58% and 42% (see Note 12). Due to the Company's majority interest, 100% of the financial position and results of operations of the building partnership are consolidated with those of the Company. Capital expenditures attributable to the Company's development partner's interest in the Company's new headquarters are included in Investing Activities—Other investing payments and were approximately $19 million for the first six months of 2004 and approximately $46 million for the first six months of 2003. Cash received from the development partner for capital expenditures is included in Financing Activities—Other financing (payments)/proceeds—net and was approximately $18 million for the first six months of 2004 and approximately $36 million for the first six months of 2003.

See Notes to Condensed Consolidated Financial Statements.

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THE NEW YORK TIMES COMPANY

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

1.     General

        In the opinion of The New York Times Company's (the "Company") management, the Condensed Consolidated Financial Statements present fairly the financial position of the Company as of June 27, 2004, and December 28, 2003, and the results of operations and cash flows of the Company for the periods ended June 27, 2004, and June 29, 2003. All adjustments necessary for a fair presentation have been included and are of a normal and recurring nature. All significant intercompany accounts and transactions have been eliminated in consolidation. The Company's Condensed Consolidated Financial Statements and related Notes should be read in conjunction with the Consolidated Financial Statements and related Notes included in the Company's Annual Report on Form 10-K for the year ended December 28, 2003. Due to the seasonal nature of the Company's business, operating results for the interim periods are not necessarily indicative of a full year's operations. Certain reclassifications have been made to the 2003 Condensed Consolidated Financial Statements to conform with classifications used as of and for the period ended June 27, 2004. The fiscal periods included herein comprise 13 weeks for the three-month periods and 26 weeks for the six-month periods.

        As of June 27, 2004, the Company's significant accounting policies and estimates, which are detailed in the Company's Annual Report on Form 10-K for the year ended December 28, 2003, have not changed from December 28, 2003.

2.     Recent Accounting Pronouncements

        In January 2004 the Financial Accounting Standards Board ("FASB") issued FASB Staff Position No. 106-1 ("FSP 106-1"), Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003, which permitted a sponsor of a postretirement health care plan that provides a prescription drug benefit to make a one-time election to defer accounting for the effects of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (the "Act"). In May 2004 the FASB issued FSP No.106-2 ("FSP 106-2"), which superseded FSP 106-1. FSP 106-2 provides authoritative guidance on the accounting for the Act and specifies the disclosure requirements for employers who have adopted FSP 106-2. FSP 106-2 is effective for the interim or annual period beginning after June 15, 2004. See Note 7 for the effect of the adoption of FSP 106-2 on the Company's Condensed Consolidated Financial Statements.

3.     Stock Option and Employee Stock Purchase Plans

        The Company applies the intrinsic value method under Accounting Principles Board Opinion ("APB") No. 25, Accounting for Stock Issued to Employees, and related interpretations to account for its stock option plans and employee stock purchase plan ("ESPP") (together, "Stock-Based Plans"). Accordingly, the Company would only record compensation expense if it granted stock options with an exercise price that is less than the fair market value of the underlying stock at the date of grant. The Company does not record compensation expense for rights to purchase shares under its ESPP because it satisfies certain conditions under APB 25.

        The following table details the effect on net income and earnings per share had compensation expense for awards issued and vested under the Stock-Based Plans been recorded based on the fair

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value method under Statement of Financial Accounting Standards ("FAS") No. 123, as amended, Accounting for Stock-Based Compensation.

	Three Months Ended						Six Months Ended
(Dollars in thousands, except per share data)	June 27, 2004			June 29, 2003			June 27, 2004			June 29, 2003
Reported net income	$	75,677		$	72,829		$	134,112		$	141,675
Deduct: Total stock-based compensation expense determined under fair value method for all awards, net of related tax effects		(42,634	)		(13,005	)		(53,191	)		(26,010	)
Pro forma net income	$	33,043		$	59,824		$	80,921		$	115,665
Earnings per share:
Basic—as reported	$	.51		$	.48		$	.90		$	.94
Basic—pro forma	$	.22		$	.40		$	.54		$	.76
Diluted—as reported	$	.50		$	.47		$	.88		$	.92
Diluted—pro forma	$	.22		$	.40		$	.53		$	.76

        In June 2004 the Company accelerated the vesting of certain employee stock options where the exercise price of the stock options was above the Company's stock price. Due to the acceleration of the vesting of these stock options, additional compensation expense of approximately $32 million (net of income taxes) was included in stock-based compensation expense in the table above for the second quarter and first six months of 2004.

4.     Goodwill and Other Intangible Assets

        Goodwill is the excess of cost over the fair market value of tangible net assets acquired. Goodwill is not amortized but tested for impairment annually or if certain circumstances indicate a possible impairment may exist in accordance with FAS No. 142, Goodwill and Other Intangible Assets.

        Other intangible assets acquired consist primarily of mastheads and licenses on various acquired properties, customer lists, as well as other assets. Other intangible assets acquired (mastheads and licenses) that have indefinite lives are not amortized but tested for impairment annually or if certain circumstances indicate a possible impairment may exist. Certain other intangible assets acquired (customer lists and other assets) are amortized over their estimated useful lives.

        The changes in the carrying amount of Goodwill in 2004 are as follows:

(Dollars in thousands)	Newspaper Group			Broadcast Group		Total
Balance as of December 29, 2003	$	1,056,773		$	40,909	$	1,097,682
Foreign currency translation		(1,656	)		—		(1,656	)
Balance as of June 27, 2004	$	1,055,117		$	40,909	$	1,096,026

        The foreign currency translation line item above reflects changes in Goodwill resulting from fluctuating exchange rates related to the consolidation of the International Herald Tribune.

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        Other intangible assets acquired as of June 27, 2004, and December 28, 2003, were as follows:

			June 27, 2004				December 28, 2003
(Dollars in thousands)			Gross Carrying Amount		Accumulated Amortization		Gross Carrying Amount		Accumulated Amortization
Amortized other intangible assets acquired:
	Customer lists		$	203,240	$	128,987	$	203,252	$	120,608
	Other			7,111		5,914		7,158		5,630
		Total		210,351		134,901		210,410		126,238
Unamortized other intangible assets acquired:
	Broadcast licenses			220,194		—		220,194		—
	Newspaper mastheads			71,967		—		72,322		—
		Total		292,161		—		292,516		—
Total other intangible assets acquired			$	502,512	$	134,901	$	502,926	$	126,238

        As of June 27, 2004, the remaining weighted-average amortization period is eight years for customer lists and five years for other intangible assets acquired included in the table above.

        Amortization expense related to other intangible assets acquired, which is subject to amortization, was $8.7 million for the first six months of 2004 and is expected to be $17.3 million for the full year 2004. Estimated annual amortization expense for the next five years related to these intangible assets is expected to be as follows:

(Dollars in thousands)
Year	Amount
2005	$	17,022
2006		13,801
2007		4,651
2008		4,651
2009		4,552

5.     Debt Obligations

        The Company's total debt, including commercial paper and capital lease obligations, was $869.5 million as of June 27, 2004.

        The Company's $600.0 million commercial paper program is supported by the revolving credit agreements described below. Commercial paper issued by the Company is unsecured and can have maturities of up to 270 days. The Company had $144.0 million in commercial paper outstanding as of June 27, 2004, with an annual weighted average interest rate of 1.1% and an average of 3 days to maturity from original issuance.

        The primary purpose of the Company's revolving credit agreements is to support the Company's commercial paper program. The Company has a total of $670.0 million available to borrow under its revolving credit agreements. In May 2004 the Company terminated its one-year $330.0 million revolving credit agreement and entered into a $400.0 million five-year revolving credit agreement that extends to May 2009. The Company's multi-year $270.0 million credit agreement remains unchanged, maturing in June 2006. There were no amounts outstanding under the revolving credit agreements as of June 27, 2004.

        The revolving credit agreements permit borrowings that bear interest at specified margins based on the Company's credit rating, over various floating rates selected by the Company.

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        The revolving credit agreements contain a covenant that requires specified levels of stockholders' equity. The amount of stockholders' equity in excess of the required levels was $425.8 million as of June 27, 2004.

        The Company's 10-year notes, aggregating $250.0 million and bearing interest at an annual rate of 7.625%, mature on March 15, 2005. As a result, the Company reclassified these notes from "Long-term debt" to "Current portion of long-term debt and capital lease obligations" in the Company's Condensed Consolidated Balance Sheets in the first quarter of 2004.

        "Interest expense, net" in the Company's Condensed Consolidated Statements of Income was as follows:

	Three Months Ended						Six Months Ended
(In thousands)	June 27, 2004			June 29, 2003			June 27, 2004			June 29, 2003
Interest expense	$	12,281		$	13,236		$	24,438		$	26,135
Interest income		(253	)		(466	)		(597	)		(932	)
Capitalized interest		(1,675	)		(1,286	)		(3,168	)		(1,917	)
Interest expense, net	$	10,353		$	11,484		$	20,673		$	23,286

6.     Common Stock

        During the first half of 2004, the Company repurchased 2.6 million shares of its Class A Common Stock at a cost of $117.3 million. The average price of these repurchases was $45.38 per share. From June 28, 2004, through July 30, 2004, the Company repurchased 1.5 million shares at a cost of $62.5 million.

        On April 13, 2004, the Company's Board of Directors (the "Board") declared a $.01 per share increase in the quarterly dividend on the Company's Class A and Class B Common Stock from $.145 per share to $.155 per share effective with the June 2004 dividend.

        On June 17, 2004, the Board declared a dividend of $.155 per share on the Company's Class A and B Common Stock. The dividend is payable on September 17, 2004, to shareholders of record on September 1, 2004. The estimated dividend payable of approximately $23 million is included in "Accounts payable" in the Company's Condensed Consolidated Balance Sheet as of June 27, 2004.

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7.     Pension and Postretirement Benefits

Pension

        The components of net periodic pension cost of all Company-sponsored pension plans were as follows:

	Three Months Ended
	June 27, 2004								June 29, 2003
(Dollars in thousands)	Qualified Plans			Non- Qualified Plans		All Plans			Qualified Plans			Non- Qualified Plans		All Plans
Service cost	$	8,320		$	502	$	8,822		$	6,886		$	485	$	7,371
Interest cost		16,051			2,760		18,811			15,113			2,738		17,851
Expected return on plan assets		(19,073	)		—		(19,073	)		(16,964	)		—		(16,964	)
Amortization of prior service cost		101			64		165			100			78		178
Recognized actuarial loss		4,882			1,033		5,915			2,060			879		2,939
Net periodic pension cost	$	10,281		$	4,359	$	14,640		$	7,195		$	4,180	$	11,375

	Six Months Ended
	June 27, 2004								June 29, 2003
(Dollars in thousands)	Qualified Plans			Non- Qualified Plans		All Plans			Qualified Plans			Non- Qualified Plans		All Plans
Service cost	$	16,640		$	1,004	$	17,644		$	13,772		$	970	$	14,742
Interest cost		32,102			5,520		37,622			30,226			5,476		35,702
Expected return on plan assets		(38,146	)		—		(38,146	)		(33,928	)		—		(33,928	)
Amortization of prior service cost		202			128		330			200			156		356
Recognized actuarial loss		9,026			2,066		11,092			4,120			1,758		5,878
Net periodic pension cost	$	19,824		$	8,718	$	28,542		$	14,390		$	8,360	$	22,750

        The Company did not make any contributions to its pension plans in the first half of 2004 and it will determine the level of contributions to be made this year during the fourth quarter of 2004. The Company does not pre-fund its non-qualified pension plans, but rather pays for benefits as required from ongoing cash flows.

Postretirement Benefits

        The components of net periodic postretirement cost were as follows:

	Three Months Ended						Six Months Ended
(Dollars in thousands)	June 27, 2004			June 29, 2003			June 27, 2004			June 29, 2003
Service cost	$	1,540		$	2,508		$	3,080		$	5,016
Interest cost		2,885			3,987			5,770			7,974
Amortization of prior service cost		(1,351	)		(745	)		(2,702	)		(1,490	)
Recognized actuarial loss		395			1,029			790			2,058
Net periodic postretirement cost	$	3,469		$	6,779		$	6,938		$	13,558

        Postretirement costs decreased in the second quarter and first half of 2004 compared to the second quarter and first half of 2003 primarily due to the plan amendments and the Medicare reform discussed in Note 2 and below.

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        On January 1, 2004, amendments to the Company's postretirement plan became effective. These amendments included changes to the age and service eligibility requirements and an increase in deductibles, co-payments, and out-of-pocket maximum payments related to the medical prescription drug plans. The amendments resulted in a reduction of the Company's Accumulated Postretirement Benefit Obligation ("APBO") of $44.2 million that was treated as a negative prior service cost, which is being amortized starting in 2004. Additionally, the Company began recognizing the effects of FSP 106-2 (see Note 2).

        The estimated effect of the Act resulted in a decrease in the Company's APBO of $32.7 million. The decrease in the APBO was treated as a gain, which is being amortized starting in 2004. The table below details the reduction in net periodic postretirement cost by component in the second quarter and first half of 2004 as a result of the Act.

	Three Months Ended		Six Months Ended
(Dollars in thousands)	June 27, 2004		June 27, 2004
Service cost	$	323	$	646
Interest cost		504		1,008
Amortization of prior service cost		—		—
Recognized actuarial gain		490		980
Net periodic postretirement cost	$	1,317	$	2,634

8.     Other Income

        "Other income" in the Company's Condensed Consolidated Statements of Income includes the following items:

	Three Months Ended				Six Months Ended
(Dollars in thousands)	June 27, 2004		June 29, 2003		June 27, 2004		June 29, 2003
Non-compete agreement	$	1,250	$	1,250	$	2,500	$	2,500
Advertising credit(a)		—		—		—		8,277
Other income	$	1,250	$	1,250	$	2,500	$	10,777

(a)

Related to a credit for advertising issued by the Company, which was not used within the allotted time by the advertiser.

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9.     Earnings Per Share

        Basic and diluted earnings per share have been computed as follows:

		Three Months Ended				Six Months Ended
(Dollars in thousands, except per share data)		June 27, 2004		June 29, 2003		June 27, 2004		June 29, 2003
Basic earnings per share computation:
Numerator
	Net income	$	75,677	$	72,829	$	134,112	$	141,675
Denominator
	Average number of common shares outstanding		148,626		150,730		149,275		151,287
Basic earnings per share		$	.51	$	.48	$	.90	$	.94
Diluted earnings per share computation:
Numerator
	Net income	$	75,677	$	72,829	$	134,112	$	141,675
Denominator
	Average number of common shares outstanding		148,626		150,730		149,275		151,287
	Incremental shares for assumed exercise of securities		2,276		2,673		2,398		2,714
Total shares			150,902		153,403		151,673		154,001
Diluted earnings per share		$	.50	$	.47	$	.88	$	.92

        The difference between basic and diluted shares is primarily due to the assumed exercise of stock options included in the diluted earnings per share computation.

        Stock options with exercise prices that exceeded the fair market value of the Company's common stock had an antidilutive effect and, therefore, were excluded from the computation of diluted earnings per share. Approximately 8 million stock options with exercise prices ranging from $46.34 to $48.54 were excluded from the computation in the second quarter of 2004 and approximately 5 million stock options with exercise prices ranging from $46.40 to $48.54 were excluded from the computation in the first six months of 2004. Approximately 5 million stock options with exercise prices ranging from $46.40 to $47.25 were excluded from the computation in the second quarter and first six months of 2003.

10.   Comprehensive Income

        Comprehensive income for the Company includes foreign currency translation adjustments, unrealized gains/(losses) on cash-flow hedges and net income reported in the Company's Condensed Consolidated Statements of Income.

        Comprehensive income was as follows:

	Three Months Ended						Six Months Ended
(Dollars in thousands)	June 27, 2004			June 29, 2003			June 27, 2004			June 29, 2003
Net income	$	75,677		$	72,829		$	134,112		$	141,675
Foreign currency translation adjustments		(162	)		6,095			(2,429	)		9,146
Change in unrealized derivative losses on cash-flow hedges		137			469			776			934
Income tax benefit/(charge)		87			(2,330	)		(108	)		(3,592	)
Comprehensive income	$	75,739		$	77,063		$	132,351		$	148,163

12

        The "Accumulated other comprehensive loss, net of income taxes" in the Company's Condensed Consolidated Balance Sheets was net of a deferred income tax benefit of $68.5 million as of June 27, 2004, and $68.6 million as of December 28, 2003.

11.   Segment Statements of Income

        The Company's reportable segments consist of its Newspaper Group, Broadcast Group and New York Times Digital ("NYTD"), its digital and business information group. These segments are evaluated regularly by key management in assessing performance and allocating resources.

			Three Months Ended						Six Months Ended
(Dollars in thousands)			June 27, 2004			June 29, 2003			June 27, 2004			June 29, 2003
REVENUES
	Newspapers		$	758,468		$	745,915		$	1,503,280		$	1,480,966
	Broadcast			41,971			37,926			77,026			70,131
	NYTD			27,396			21,626			53,133			41,251
	Intersegment eliminations(a)			(3,904	)		(3,576	)		(7,564	)		(6,717	)
		Total	$	823,931		$	801,891		$	1,625,875		$	1,585,631
OPERATING PROFIT (LOSS)
	Newspapers(b)		$	123,431		$	126,575		$	228,377		$	252,175
	Broadcast			12,939			10,289			19,384			15,251
	NYTD			8,934			4,285			17,325			7,481
	Corporate			(13,547	)		(11,092	)		(24,167	)		(22,555	)
		Total		131,757			130,057			240,919			252,352
Net income/(loss) from joint ventures				2,734			694			(559	)		(5,518	)
Interest expense, net				10,353			11,484			20,673			23,286
Other income				1,250			1,250			2,500			10,777
Income before income taxes and minority interest				125,388			120,517			222,187			234,325
Income taxes				49,538			47,606			87,777			92,552
Minority interest in income of subsidiaries				173			82			298			98
Net Income			$	75,677		$	72,829		$	134,112		$	141,675

(a)

Intersegment eliminations primarily represent license fees between NYTD and other segments.



(b)

For the first six months of 2003, Newspaper Group operating profit includes a $9.5 million net benefit related to the reimbursement of printing plant remediation expenses and a charge associated with the closing of a job fair business.

        See Management's Discussion and Analysis of Financial Condition and Results of Operations in this Form 10-Q for more information on the Company's reportable segments.

12.   Contingent Liabilities

New Headquarters Building

        The Company is in the process of developing a 1.54 million square foot condominium office building (the "Building") in New York City that will serve as its new headquarters. In December 2001, a wholly-owned subsidiary of the Company ("NYT"), and FC Lion LLC (a partnership between an affiliate of the Forest City Ratner Companies and an affiliate of ING Real Estate, "FC") became the

13

sole members of The New York Times Building LLC (the "Building Partnership"), a partnership established for the purpose of constructing the Building.

        The Building Partnership is a New York limited liability company and a separate and distinct legal entity from the Company. NYT's and FC's percentage interests in the Building Partnership are approximately 58% and 42%. Due to the Company's majority interest, 100% of the financial position and results of operations of the Building Partnership are consolidated with those of the Company, and FC's minority interest in the Building Partnership is included in "Minority Interest" in the Company's Condensed Consolidated Balance Sheets as of June 27, 2004 and December 28, 2003 and in "Minority interest in net income of subsidiaries" in the Condensed Consolidated Statements of Income for the periods ended June 27, 2004 and June 29, 2003.

        In December 2001, the Building Partnership entered into a land acquisition and development agreement ("LADA") for the Building site with a New York State agency, which subsequently acquired title to the site through a condemnation proceeding. Pursuant to the LADA, the Building Partnership was required to fund all costs of acquiring the Building site, including the purchase price of approximately $86 million, and certain additional amounts ("excess site acquisition costs") to be paid in connection with the condemnation proceeding. NYT and FC were required to post letters of credit for these acquisition costs. As of June 27, 2004, approximately $19 million remained undrawn on a letter of credit posted by the Company on behalf of NYT and approximately $14 million remained undrawn on a letter of credit posted by Forest City Enterprises, Inc. ("FCE") on behalf of FC.

        On September 24, 2003, the Building Partnership obtained vacant possession of the Building site, and the New York State agency leased the site to the Building Partnership under a 99-year lease (the "Ground Lease"). Under the terms of the Ground Lease, no fixed rent is payable, but the Building Partnership is required to make payments in lieu of real estate taxes ("PILOT"), pay percentage (profit) rent with respect to retail portions of the Building, and make certain other payments over the term of the Ground Lease. The Building Partnership receives credits for its excess site acquisition costs against 85% of the PILOT payments. The Ground Lease gives the Building Partnership or its designee the option to purchase the Building site after 29 years for nominal consideration.

        The Ground Lease requires the Building Partnership to commence construction of the Building no later than September 24, 2004 and to complete construction within 36 months following construction commencement, subject to certain extensions. The Company and FCE have guaranteed the Building Partnership's obligation to complete construction of the Building in accordance with the Ground Lease.

        Pursuant to the Operating Agreement of the Building Partnership, dated December 12, 2001, and amended June 25, 2004 (the "Operating Agreement"), the funds for construction of the Building are to be provided through a construction loan and capital contributions of NYT and FC. On June 25, 2004, the Building Partnership closed a construction loan with GMAC Commercial Mortgage Corporation (the "construction lender"), which will provide a loan of up to $320 million (the "construction loan"), secured by the Building, for construction of the Building's core and shell as well as other development costs. NYT has elected not to borrow any portion of its share of the total costs of the Building through this construction loan and, instead, has made and will make capital contributions to the Building Partnership for its share of Building costs. The Company will fund such contributions from internally generated cash, including the sale proceeds of its existing headquarters, and external financing sources. FC's share of the total costs of the Building will be funded through capital contributions and the construction loan.

        Under the terms of the Operating Agreement and the construction loan, NYT is required to fund all of its construction equity related to construction of the core and shell as well as other devolopment costs prior to the funding of the construction loan. As of June 27, 2004, NYT's remaining construction equity requirement related to the construction of the core and shell as well as other development costs was approximately $218 million. This requirement has been guaranteed by the Company and is backed

14

by a standby letter of credit of $206 million, the amount of which will decline on a monthly basis as capital contributions are made. Because NYT is funding its construction equity first, a portion of those funds will be used to fund FC's share of Building costs (the "FC funded share") prior to commencement of funding of the construction loan. The FC funded share will bear interest at the construction loan rate and will be repaid to NYT out of construction loan draws. FC's interest in the Building Partnership has been pledged to NYT to secure repayment of the FC funded share.

        The construction loan, made through a building loan agreement and a project loan agreement, bears interest at an initial annual rate of LIBOR plus 265 basis points and will mature on July 1, 2008, subject to the Building Partnership's right to extend the maturity date for two six-month periods upon the satisfaction of certain terms and conditions. FCE has provided the construction lender with a guaranty of completion with respect to the Building conditioned upon the availability of the construction loan and NYT construction capital contributions. In addition, the Company has provided the construction lender with a guaranty of NYT's obligation to complete the interior construction of the NYT portions of the Building.

        Upon substantial completion of the Building's core and shell, the Building will be converted to a leasehold condominium, and the Building Partnership will be dissolved. At such time, ownership of the leasehold condominium units will transfer from the Building Partnership to NYT and FC.

        Under the terms of the Operating Agreement and the construction loan, the lien of the construction loan will be released from the NYT condominium units upon substantial completion of the Building's core and shell but will remain upon the FC condominium units until the construction loan is repaid in full. If FC is unable to obtain other financing to repay the construction loan upon substantial completion of the Building's core and shell, the Company is required to make a loan (the "extension loan") to FC of approximately $119.5 million to pay a portion of the construction loan balance. The extension loan will have a maturity date of five years following substantial completion of the core and shell of the Building, bear interest at 1% per annum in excess of the construction loan rate, and be secured by a second mortgage lien on the FC condominium units.

        In January 2004, the Building Partnership entered into a construction management agreement with AMEC Construction Management, Inc., a construction manager, for the construction of the core and shell of the Building at a guaranteed maximum price of approximately $353 million.

        Capital expenditures in connection with the Building, including both core and shell and interior construction costs, are detailed in the table below.

Capital Expenditures

(Dollars in millions)	NYT	FC	Total
2001–2003	$96	$88	$184
2004	$65–$75	$32–$42	(a)$97–$117
Beyond 2004	(b)$415–$435	$272–$292	$687–$727
Total	(c)$576–$606	$392–$422	$968–$1,028

(a)

Approximately $39 million was incurred as of June 27, 2004 (approximately $19 million incurred by NYT and approximately $20 million incurred by FC).



(b)

This amount is net of estimated sale proceeds from the Company's existing headquarters.



(c)

Includes estimated capitalized interest and salaries in the range of $50 to $60 million.

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        Capital expenditures attributable to NYT's interest in the Building are included in "Property, plant and equipment" and capital expenditures attributable to FC's interest in the Building are included in "Miscellaneous assets" in the Company's Condensed Consolidated Balance Sheets as of June 27, 2004 and December 28, 2003.

Third-Party Guarantees

        The Company has outstanding guarantees on behalf of a third party that provides circulation customer service, telemarketing and home-delivery services for The New York Times ("The Times") and The Boston Globe (the "circulation servicer"), and on behalf of three third parties that provide printing and distribution services for The Times's National Edition (the "National Edition printers"). In accordance with accounting principles generally accepted in the United States of America, the contingent obligations related to these guarantees are not reflected in the Company's Condensed Consolidated Balance Sheets as of June 27, 2004, and December 28, 2003.

        The Company has guaranteed the payments under the circulation servicer's credit facility and any miscellaneous costs related to any default thereunder (the "credit facility guarantee"). The total amount of the credit facility guarantee was $20 million as of June 27, 2004. The amount outstanding under the credit facility, which expires in April 2005 and is renewable, was approximately $18 million as of June 27, 2004. The credit facility guarantee was made by the Company to allow the circulation servicer to obtain more favorable financing terms. The circulation servicer has agreed to reimburse the Company for any amounts the Company pays under the credit facility guarantee and has granted the Company a security interest in all of its assets to secure repayment of any amounts the Company pays under the credit facility guarantee.

        In addition, the Company has guaranteed the payments of four property leases of the circulation servicer and any miscellaneous costs related to any default thereunder (the "property lease guarantees"). The total amount of the property lease guarantees was approximately $5 million as of June 27, 2004. The property leases expire at various dates through May 2009. The property lease guarantees were made by the Company to allow the circulation servicer to obtain space to conduct business.

        The Company would have to perform the obligations of the circulation servicer under the credit facility and property lease guarantees if the circulation servicer defaulted under the terms of its credit facility or lease agreements.

        The Company has guaranteed a portion of the payments of equipment leases of two of the National Edition printers and any miscellaneous costs related to any default thereunder (the "equipment lease guarantees"). The total amount of the equipment lease guarantees was approximately $9 million as of June 27, 2004. The Company was released from one equipment lease guarantee ($5 million) subsequent to the second quarter of 2004, because the remaining amount due under the equipment lease was paid. The remaining equipment lease expires in March 2011 but is cancelable in March 2006. The Company made the equipment lease guarantees to allow the National Edition printers to obtain a lower cost of borrowing.

        The Company has also guaranteed certain debt of one of the three National Edition printers and any miscellaneous costs related to any default thereunder (the "debt guarantee"). The total amount of the debt guarantee was approximately $7 million as of June 27, 2004. The debt guarantee, which expires in May 2012, was made by the Company to allow the National Edition printer to obtain a lower cost of borrowing.

        The Company has obtained a secured guarantee from a related party of the National Edition printer to repay the Company for any amounts that it would pay under the debt guarantee. In addition,

16

the Company has a security interest in the equipment that was purchased by the National Edition printer with the funds it received from its debt issuance, as well as other equipment and real property.

        The Company would have to perform the obligations of the National Edition printers under the equipment and debt guarantees if the National Edition printers defaulted under the terms of their equipment leases or debt agreements.

Other

        The Company also has letters of credit of approximately $34 million, which are required by insurance companies, to provide support for the Company's workers' compensation liability. The workers' compensation liability is included in the Company's Condensed Consolidated Balance Sheet as of June 27, 2004.

        There are various legal actions that have arisen in the ordinary course of business and are now pending against the Company. These actions are generally for amounts greatly in excess of the payments, if any, that may be required to be made. It is the opinion of management after reviewing these actions with legal counsel to the Company that the ultimate liability that might result from these actions would not have a material adverse effect on the Company's Condensed Consolidated Financial Statements.

17

Item 2.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

EXECUTIVE OVERVIEW

Our Business

        The core purpose of The New York Times Company (the "Company") is to enhance society by creating, collecting and distributing high-quality news, information and entertainment. In order to fulfill its mission, the Company must create value for all of the constituents it serves, including its customers, employees and stockholders and the communities in which it operates. The Company creates value by executing its long-term strategy, which is to operate leading news and advertising media in the national/global market and in each of the local markets it serves. In addition, the Company enhances value by controlling costs and implementing process improvement initiatives. The Company continues to execute its strategy to grow geographically and across platforms.

        The Company's long-term strategy is pursued with a portfolio of properties that serves its customers in print, in broadcast and online. For the first six months of 2004, the Newspaper Group contributed 92% of the Company's total revenues, the Broadcast Group accounted for 5% and New York Times Digital ("NYTD"), the Company's digital and business information group, accounted for 3%. Advertising revenues cause the Company's quarterly consolidated results to vary by season. Second-quarter and fourth-quarter advertising volume is traditionally higher than first-quarter and third-quarter volume since economic activity tends to be lower during the winter and summer. The business model of each of the Company's segments is summarized below.

Newspaper Group (consisting of The New York Times Newspaper Group, which includes The New York Times ("The Times") and the International Herald Tribune (the "IHT"), the New England Newspaper Group, which includes The Boston Globe (the "Globe") and the Worcester Telegram & Gazette, and the Regional Newspaper Group, consisting of 15 other newspapers). The Newspaper Group derives the majority of its revenues by offering advertisers a means to promote their brands, products and services to the buying public. For the first six months of 2004, approximately 64% of the Newspaper Group's revenues was from advertising. The Newspaper Group also derives revenues by offering the public a source of timely news and editorial materials, as well as information on products sold by advertisers. For the first six months of 2004, approximately 29% of the Newspaper Group's revenues was from circulation. Other revenues, which makes up the remainder of revenues, primarily consists of revenues from wholesale delivery operations, news services and direct marketing. The Newspaper Group's main operating expenses are employee-related costs, which include compensation and benefits, and raw materials, primarily newsprint.

Broadcast Group (consisting of eight network-affiliated television stations and two radio stations). The Broadcast Group derives almost all of its revenues (95% for the first six months of 2004) from the sale of commercial time to advertisers. The Broadcast Group's main operating expenses are employee-related costs and programming costs.

NYTD (consisting of NYTimes.com, Boston.com and Digital Archive Distribution ("DAD"), which licenses archive databases of The Times and the Globe to electronic information providers). NYTD derives most of its revenues from the sale of advertisements. For the first six months of 2004, advertising revenues accounted for 77% of NYTD's total revenues. Display advertisements accounted for approximately 59% of NYTD's advertising revenues and classified ads, such as help-wanted, real estate and automotive listings, accounted for approximately 41%. NYTD benefits from the exclusive online distribution rights for the classified listings of The Times and the Globe. Access to NYTD's Web sites is offered without subscription fees. Non-advertising revenues for the first six months of 2004, which accounted for 23% of revenues, were primarily from DAD. NYTD's main operating expenses are employee-related costs and royalties paid to The Times and the Globe for content.

18

        The Company's long-term strategy is also pursued through its 50% interest in the Discovery Times Channel, a digital cable television channel, and its interest of approximately 17% in New England Sports Ventures, which owns the Boston Red Sox, Fenway Park and 80% of the New England Sports Network, a regional cable sports network. The Company also has investments in a Canadian newsprint company, Donohue Malbaie Inc., and a partnership, Madison Paper Industries, operating a supercalendared paper mill in Maine.

2004 Highlights

•

Advertising revenues grew approximately 4% in the second quarter and first six months of 2004 over the prior-year periods. Advertising revenues improved at each of the Company's business segments in the second quarter of 2004. However, the pace of advertising revenue growth slowed throughout the second quarter. In July, advertising revenue growth was similar to that of June. Based on the rate of advertising revenue growth that the Company has experienced during the first half of the year, the Company adjusted the full-year advertising revenue growth guidance down from the mid-single digits to the low- to mid-single digits.



•

Circulation revenues in the second quarter and first half of 2004 were at approximately the same levels as they were in the prior-year periods. The New York Times Newspaper Group had copy growth in the second quarter, but circulation revenues decreased approximately 2% as a result of more copies being sold to schools, universities and hotels, where the rate paid is less than that on newsstands or for home delivery. Circulation revenues for the New England Newspaper Group grew approximately 6% in the second quarter and first six months of 2004 compared with the comparable prior-year periods, primarily as a result of price increases.



•

Total costs and expenses rose approximately 3% in the second quarter and 4% in the first six months of 2004. Excluding a reimbursement of printing plant remediation expenses and a charge associated with the closing of a small job fair business in the first six months of 2003 (see below), total costs and expenses increased approximately 3% in the first half of 2004. The increase in costs and expenses in the second quarter and first six months of 2004 was mainly because of higher newsprint expense and an increase in compensation, outside printing and distribution costs. The Company has responded to the advertising revenue growth trend discussed above by implementing cost control measures. Therefore, given the Company's expense performance to date and its outlook for the remainder of 2004, the Company adjusted the full-year expense growth rate down from the mid-single digits to the low- to mid-single digits.



•

Earnings per share ("EPS"), on a diluted basis, in the second quarter of 2004 increased approximately 6% to $.50 per share from $.47 per share in the second quarter of 2003.



•

In the first six months of 2004, EPS decreased approximately 4% to $.88 per share from $.92 per share in the first six months of 2003. EPS in the first six months of 2004 would have increased approximately 4% compared with the same period last year had the first half of 2003 not included a net benefit of $.07 per share ($17.8 million pre-tax, $10.7 million after tax) from the following three items:

        Included in Costs and Expenses (a net benefit of $9.5 million):

•

Reimbursement of printing plant remediation expenses



•

Charge for closing of a job fair business

        Included in Other Income (a benefit of $8.3 million):

•

Forfeiture of an advertising credit

19

•

The Company continued to be a strong cash generator during the first half of 2004, resulting in an increase of approximately 10% in net cash provided by operating activities over the first half of 2003. The Company utilized its liquidity position to invest in capital projects to improve its operations, to repay commercial paper borrowings, to repurchase shares of its Class A Common Stock and to pay dividends to its stockholders.

Trends and Uncertainties

        The Company's Annual Report on Form 10-K for the year ended December 28, 2003, details the Company's trends and uncertainties. As of June 27, 2004, there have been no material changes in the Company's trends and uncertainties from December 28, 2003.

2004 Guidance

        The key financial measures discussed in the table below are in accordance with accounting principles generally accepted in the United States of America ("GAAP").

        A summary of guidance on key financial measures for 2004, on a GAAP basis, is shown below.

Item	2004 Guidance
Total Company Advertising Revenues	Growth rate expected to be in the low- to mid-single digits
Newspaper Group Circulation Revenues	Growth rate expected to be in the low-single digits
Newsprint Cost Per Ton	Growth rate expected to be in the low teens
Total Company Expenses	Growth rate expected to be in the low- to mid-single digits
Depreciation & Amortization	$145 to $150 million
Capital Expenditures(a)	$220 to $250 million
Net Loss from Joint Ventures	Breakeven to a loss of $5 million
Interest Expense	$42 to $46 million
Tax Rate	39.5%
Diluted Earnings Per Share	Growth rate expected to be in the low- to mid-single digits over 2003 EPS of $1.98

(a)

Includes costs of $65 to $75 million related to the Company's interest in a new headquarters, which is lower, due to delays, than our earlier guidance of $110 to $120 million. However, total capital expenditure guidance for the year remains unchanged as the Company has moved up the timing of certain projects. The Company expects to occupy its new headquarters in 2007.

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RESULTS OF OPERATIONS

Overview

        The following table presents the Company's consolidated financial results for the second quarter and first half of 2004 and 2003.

		Three Months Ended						Six Months Ended
(Dollars in thousands)		June 27, 2004		June 29, 2003		% Change		June 27, 2004			June 29, 2003			% Change
REVENUES
Advertising		$	551,511	$	530,564	3.9		$	1,080,538		$	1,043,718		3.5
Circulation			220,156		221,304	(0.5	)		440,399			442,305		(0.4	)
Other			52,264		50,023	4.5			104,938			99,608		5.4
Total			823,931		801,891	2.7			1,625,875			1,585,631		2.5
COSTS AND EXPENSES
Production costs
	Raw materials		71,594		67,534	6.0			142,107			133,755		6.2
	Wages and benefits		170,972		167,672	2.0			345,622			335,519		3.0
	Other		122,893		115,840	6.1			245,209			233,230		5.1
Total			365,459		351,046	4.1			732,938			702,504		4.3
Selling, general and administrative expenses			326,715		320,788	1.8			652,018			630,775		3.4
Total			692,174		671,834	3.0			1,384,956			1,333,279		3.9
OPERATING PROFIT			131,757		130,057	1.3			240,919			252,352		(4.5	)
Net income/(loss) from joint ventures			2,734		694	*			(559	)		(5,518	)	(89.9	)
Interest expense, net			10,353		11,484	(9.8	)		20,673			23,286		(11.2	)
Other income			1,250		1,250	0.0			2,500			10,777		(76.8	)
Income before income taxes and minority interest			125,388		120,517	4.0			222,187			234,325		(5.2	)
Income taxes			49,538		47,606	4.1			87,777			92,552		(5.2	)
Minority interest in net income of subsidiaries			173		82	*			298			98		*
NET INCOME		$	75,677	$	72,829	3.9		$	134,112		$	141,675		(5.3	)

*

Represents percentages that are not meaningful.

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Revenues

        Revenues, for the second quarter and first half of 2004 and 2003, by reportable segment and for the Company as a whole, were as follows:

		Three Months Ended							Six Months Ended
(Dollars in thousands)		June 27, 2004			June 29, 2003			% Change	June 27, 2004			June 29, 2003			% Change
Revenues:
	Newspapers	$	758,468		$	745,915		1.7	$	1,503,280		$	1,480,966		1.5
	Broadcast		41,971			37,926		10.7		77,026			70,131		9.8
	NYTD		27,396			21,626		26.7		53,133			41,251		28.8
	Intersegment eliminations(a)		(3,904	)		(3,576	)	9.2		(7,564	)		(6,717	)	12.6
Total		$	823,931		$	801,891		2.7	$	1,625,875		$	1,585,631		2.5

(a)

Intersegment eliminations primarily include license fees between NYTD and other segments.

Newspaper Group:    Advertising, circulation and other revenues by division of the Newspaper Group and for the Group as a whole were as follows:

	Three Months Ended						Six Months Ended
(Dollars in thousands)	June 27, 2004		June 29, 2003		% Change		June 27, 2004		June 29, 2003		% Change
The New York Times Newspaper Group
Advertising	$	287,690	$	281,215	2.3		$	570,833	$	566,165	0.8
Circulation		153,158		156,764	(2.3	)		305,501		312,242	(2.2	)
Other		32,995		32,981	0.0			66,567		64,858	2.6
Total	$	473,843	$	470,960	0.6		$	942,901	$	943,265	0.0
New England Newspaper Group
Advertising	$	116,234	$	116,013	0.2		$	225,220	$	220,295	2.2
Circulation		45,646		42,949	6.3			90,382		85,077	6.2
Other		9,908		8,056	23.0			18,881		16,262	16.1
Total	$	171,788	$	167,018	2.9		$	334,483	$	321,634	4.0
Regional Newspaper Group
Advertising	$	86,916	$	82,656	5.2		$	172,041	$	163,645	5.1
Circulation		21,352		21,591	(1.1	)		44,516		44,986	(1.0	)
Other		4,569		3,690	23.8			9,339		7,436	25.6
Total	$	112,837	$	107,937	4.5		$	225,896	$	216,067	4.5
Total Newspaper Group
Advertising	$	490,840	$	479,884	2.3		$	968,094	$	950,105	1.9
Circulation		220,156		221,304	(0.5	)		440,399		442,305	(0.4	)
Other		47,472		44,727	6.1			94,787		88,556	7.0
Total	$	758,468	$	745,915	1.7		$	1,503,280	$	1,480,966	1.5

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Advertising Revenues

        Advertising revenues increased in the second quarter and first half of 2004 compared with the second quarter and first half of 2003, primarily due to higher advertising rates. Total advertising volume for the Newspaper Group in the second quarter and first half of 2004 remained flat.

        Advertising revenues at The New York Times Newspaper Group were higher in the second quarter and first six months of 2004 compared with the second quarter and first six months of 2003, mainly due to increases in national and retail advertising revenues partially offset by a decrease in classified advertising revenues.

        The New England Newspaper Group advertising revenues were flat in the second quarter of 2004 compared with the second quarter of 2003 primarily due to increased classified advertising revenues offset by lower national and retail advertising revenues. For the first six months of 2004, advertising revenues increased compared with the comparable period last year primarily due to higher classified advertising revenues.

        Advertising revenues at the Regional Newspaper Group were higher in the second quarter and first six months of 2004 compared with the second quarter and first six months of 2003 mainly due to increases in classified advertising revenues and other advertising revenues from its local magazines.

        Advertising volume, for the second quarter and first half of 2004 and 2003, for the Newspaper Group was as follows:

	Three Months Ended				Six Months Ended
(Inches in thousands, preprints in thousands of copies)	June 27, 2004	June 29, 2003	% Change		June 27, 2004	June 29, 2003	% Change
Total Newspaper Group(a)
National(b)	617.2	633.4	(2.6	)	1,241.0	1,260.2	(1.5	)
Retail	1,596.8	1,625.1	(1.7	)	3,139.3	3,208.2	(2.1	)
Classified	2,586.1	2,571.3	0.6		4,969.3	4,970.8	(0.0	)
Part Run/Zoned	590.6	558.0	5.8		1,114.1	1,049.1	6.2
Total	5,390.7	5,387.8	0.1		10,463.7	10,488.3	(0.2	)
Preprints	685,563	678,128	1.1		1,340,025	1,337,947	0.2

(a)

The Times's advertising volume for 2004 and 2003 has been restated to reflect reclassifications within categories. With this restatement the Times's advertising classification within categories is consistent with that of the New England Newspaper Group and the Regional Newspaper Group.



(b)

Includes all advertising volume from the IHT.

Circulation Revenues

        Circulation revenues in the second quarter and first half of 2004 were at approximately the same levels as they were in the prior-year periods. Higher circulation revenues at the New England Newspaper Group, primarily due to price increases, were offset by lower circulation revenues at The New York Times Newspaper Group. The New York Times Newspaper Group had copy growth in the second quarter of 2004, but circulation revenues decreased approximately 2% as a result of more copies being sold to schools, universities and hotels, where the rate paid is less than that on newsstands or for home delivery.

        The Times continues to improve retail availability across the nation by increasing the number of markets it serves and by adding to the number of outlets where the paper is sold. This includes

23

expanding copies being sold to schools and universities, which is part of the Company's strategy to reach the next generation of readers. The Times has also expanded its national home-delivery availability while improving the quality and levels of its home-delivery circulation base. As of July 30, 2004, the Times was available for home delivery in a total of 289 markets nationwide up from 247 at the end of the second quarter of 2003. Additionally, during the second quarter of 2004, The Times continued to expand the number of ZIP codes in which home-delivery service is available. All of the Company's newspapers continue to make improvements in product delivery and customer service to attract new readers and retain existing ones.

Broadcast Group:    Broadcast Group revenues rose 10.7% in the second quarter of 2004 to $42.0 million from $37.9 million in the second quarter of 2003 and increased 9.8% to $77.0 million for the first half of 2004 from $70.1 million in the same period last year, primarily due to increased political advertising revenues ($3.4 million in the second quarter of 2004 compared with $1.0 million in the prior year second quarter and $5.7 million for the first six months of 2004 compared with $1.1 million for the same period last year). Political advertising typically increases each presidential election year.

24

NYTD:    Revenues for NYTD increased 26.7% to $27.4 million in the second quarter of 2004 from $21.6 million in the 2003 second quarter. For the first half of 2004, revenues for NYTD increased 28.8% to $53.1 million from $41.3 million for the first half of 2003. The increases in revenues for the second quarter and first six months of 2004 were primarily due to higher advertising revenues resulting from increased volume.

Costs and Expenses

        Costs and expenses for the second quarter and first half of 2004 and 2003 were as follows:

		Three Months Ended					Six Months Ended
(Dollars in thousands)		June 27, 2004		June 29, 2003		% Change	June 27, 2004		June 29, 2003		% Change
Production costs:
	Raw materials	$	71,594	$	67,534	6.0	$	142,107	$	133,755	6.2
	Wages and benefits		170,972		167,672	2.0		345,622		335,519	3.0
	Other		122,893		115,840	6.1		245,209		233,230	5.1
Total production costs			365,459		351,046	4.1		732,938		702,504	4.3
Selling, general and administrative expenses			326,715		320,788	1.8		652,018		630,775	3.4
Total		$	692,174	$	671,834	3.0	$	1,384,956	$	1,333,279	3.9

        Total production costs increased in the second quarter and first six months of 2004 compared with the corresponding periods in 2003, mainly because of higher newsprint expense and an increase in compensation and outside printing costs.

        Newsprint expense rose 5.9% in the second quarter of 2004 compared with the 2003 second quarter, due to a 7.2% increase from higher prices, partially offset by a 1.3% decrease from lower consumption. For the first six months of 2004, newsprint expense increased 6.3% compared with the first six months of 2003, primarily due to a 7.7% increase from higher prices, partially offset by a 1.4% decrease from lower consumption.

        Selling, general and administrative ("SGA") expenses increased 1.8% in the second quarter and 3.4% for the first six months of 2004 compared with the corresponding periods in 2003. Excluding the reimbursement for printing plant remediation expenses and the charge for the closing of a small job fair business (a net benefit of $9.5 million) in the first six months of 2003, SGA expenses increased 1.8% in the first six months of 2004 compared with the first six months of 2003. These increases were mainly because of higher compensation and distribution costs.

        The following table sets forth consolidated costs and expenses for the second quarter and first half of 2004 and 2003, by reportable segment and the Company as a whole. The reasons underlying the

25

period-to-period changes in each segment's cost and expenses are discussed below under "Operating Profit".

		Three Months Ended							Six Months Ended
(Dollars in thousands)		June 27, 2004			June 29, 2003			% Change	June 27, 2004			June 29, 2003			% Change
Costs and expenses:
	Newspapers	$	635,037		$	619,340		2.5	$	1,274,903		$	1,228,791		3.8
	Broadcast		29,032			27,637		5.0		57,642			54,880		5.0
	NYTD		18,462			17,341		6.5		35,808			33,770		6.0
	Corporate		13,547			11,092		22.1		24,167			22,555		7.1
	Intersegment eliminations(a)		(3,904	)		(3,576	)	9.2		(7,564	)		(6,717	)	12.6
Total		$	692,174		$	671,834		3.0	$	1,384,956		$	1,333,279		3.9

(a)

Intersegment eliminations primarily include license fees between NYTD and other segments.

Operating Profit

        Consolidated operating profit, in the second quarter and first half of 2004 and 2003, by reportable segment and for the Company as a whole, were as follows:

		Three Months Ended								Six Months Ended
(Dollars in thousands)		June 27, 2004			June 29, 2003			% Change		June 27, 2004			June 29, 2003			% Change
Operating Profit (Loss):
	Newspapers	$	123,431		$	126,575		(2.5	)	$	228,377		$	252,175		(9.4	)
	Broadcast		12,939			10,289		25.8			19,384			15,251		27.1
	NYTD		8,934			4,285		108.5			17,325			7,481		131.6
	Corporate		(13,547	)		(11,092	)	22.1			(24,167	)		(22,555	)	7.1
Operating Profit		$	131,757		$	130,057		1.3		$	240,919		$	252,352		(4.5	)

        Operating profit for the Newspaper Group decreased in the second quarter and first six months of 2004 as higher advertising revenues were more than offset by higher newsprint expense and increased compensation, outside printing and distribution costs. Additionally, the first six months of 2003 includes the $9.5 million net benefit from the items included in the costs and expenses discussed in the "2004 Highlights" section above, which makes the first half of 2004's comparison less favorable.

        The Broadcast Group's operating profit increased in the second quarter and first six months of 2004 because of higher political advertising revenues resulting from the election cycle.

        NYTD's operating profit more than doubled in the second quarter and first six months of 2004 primarily due to higher advertising revenues resulting from increased volume.

Non-operating Items

Joint Ventures

        The Company recorded income from joint ventures of $2.7 million in the second quarter of 2004 and a loss of $0.6 million for the first six months of 2004 compared with income from joint ventures of $0.7 million in the second quarter of 2003 and a loss of $5.5 million for the first six months of 2003. The increase in income in the second quarter and decrease in losses for the first six months of 2004 resulted primarily from more favorable results at most of the properties in which the Company has equity interests.

26

Interest Expense, Net

        "Interest expense, net" in the Company's Condensed Consolidated Statements of Income was as follows:

	Three Months Ended						Six Months Ended
(In thousands)	June 27, 2004			June 29, 2003			June 27, 2004			June 29, 2003
Interest expense	$	12,281		$	13,236		$	24,438		$	26,135
Interest income		(253	)		(466	)		(597	)		(932	)
Capitalized interest		(1,675	)		(1,286	)		(3,168	)		(1,917	)
Interest expense, net	$	10,353		$	11,484		$	20,673		$	23,286

        "Interest expense, net" decreased in the second quarter and first six months of 2004 compared with the comparable 2003 periods mainly due to lower levels of debt outstanding and higher levels of capitalized interest related to the Company's new headquarters (see Note 12 of the Notes to the Condensed Consolidated Financial Statements).

Other Income

        "Other income" in the Company's Condensed Consolidated Statements of Income includes the following items:

	Three Months Ended				Six Months Ended
(Dollars in thousands)	June 27, 2004		June 29, 2003		June 27, 2004		June 29, 2003
Non-compete agreement	$	1,250	$	1,250	$	2,500	$	2,500
Advertising credit(a)		—		—		—		8,277
Other income	$	1,250	$	1,250	$	2,500	$	10,777

(a)

Related to a credit for advertising issued by the Company, which was not used within the allotted time by the advertiser.

EBITDA

        The Company believes that EBITDA (earnings before interest, taxes, depreciation and amortization), a non-GAAP financial measure, is a useful metric for evaluating its financial performance because of its focus on the Company's results from operations before depreciation and amortization.

        EBITDA is a common alternative measure of performance used by investors, financial analysts and rating agencies. These groups use EBITDA, along with other measures, to estimate the value of a company and evaluate a company's ability to meet its debt service requirements. The EBITDA presented may not be comparable to similarly titled measures reported by other companies. The Company believes that EBITDA, while providing useful information, should not be considered in isolation or as an alternative to other financial measures determined under GAAP.

27

        The Company's EBITDA, as well as a reconciliation of EBITDA to net income in the second quarter and first half of 2004 and 2003, is provided below.

	Three Months Ended						Six Months Ended
(Dollars in thousands)	June 27, 2004			June 29, 2003			June 27, 2004			June 29, 2003
EBITDA	$	172,520		$	167,640		$	316,288		$	330,766
Depreciation and amortization		(37,080	)		(35,778	)		(73,941	)		(73,307	)
Interest expense, net		(10,353	)		(11,484	)		(20,673	)		(23,286	)
Income taxes(a)		(49,410	)		(47,549	)		(87,562	)		(92,498	)
Net income	$	75,677		$	72,829		$	134,112		$	141,675

(a)

Includes income taxes of minority holders netted within "Minority interest in net income of subsidiaries" in the Condensed Consolidated Statements of Income. These income taxes were $128,000 and $57,000 in the second quarters of 2004 and 2003 and $215,000 and $54,000 for the first six months of 2004 and 2003.

        EBITDA increased 2.9% in the second quarter of 2004 compared with the 2003 second quarter mainly because of higher advertising revenues as well as an increase in net income from joint ventures. EBITDA decreased 4.4% in the first six months of 2004 compared with the first six months of 2003 primarily because of the net benefit in the first half of 2003 of $17.8 million resulting from the items discussed in the "2004 Highlights" section above, which makes this year's comparison less favorable.

        Consolidated depreciation and amortization, for the second quarter and first half of 2004 and 2003, by reportable segment and for the Company as a whole, were as follows:

	Three Months Ended						Six Months Ended
(Dollars in thousands)	June 27, 2004		June 29, 2003		% Change		June 27, 2004		June 29, 2003		% Change
Depreciation and amortization:
Newspapers	$	30,640	$	29,352	4.4		$	61,054	$	60,315	1.2
Broadcast		2,395		2,325	3.0			4,792		4,563	5.0
NYTD		932		1,299	(28.3	)		1,963		2,832	(30.7	)
Corporate		3,113		2,802	11.1			6,132		5,597	9.6
Depreciation and amortization	$	37,080	$	35,778	3.6		$	73,941	$	73,307	0.9

LIQUIDITY AND CAPITAL RESOURCES

Overview

        The Company expects its cash balance, cash provided from operations and available third-party financing, described below, to be sufficient to meet its normal operating commitments and debt requirements, to fund planned capital expenditures, to repurchase shares of its Class A Common Stock and to pay dividends to its stockholders.

        The Company repurchases Class A Common Stock under its stock repurchase program from time to time either in the open market or through private transactions. The Company's repurchases may be suspended from time to time or discontinued. During the first half of 2004, the Company repurchased 2.6 million shares of Class A Common Stock at a cost of approximately $117 million. In 2003 the Company repurchased 4.6 million shares of Class A Common Stock at a cost of approximately $209 million. Payments for dividends are expected to increase to approximately $91 million in 2004 from approximately $86 million in 2003. On April 13, 2004, the Company's Board of Directors declared

28

a $.01 per share increase in the quarterly dividend on the Company's Class A and Class B Common Stock from $.145 per share to $.155 per share effective with the June 2004 dividend.

New Building

        The Company is in the process of developing its new headquarters building in New York City (the "Building"), which it currently anticipates occupying in 2007. See Note 12 of the Notes to the Condensed Consolidated Financial Statements for additional information regarding the Building and the construction financing described below.

        The funds for construction of the Building are to be provided through a construction loan and capital contributions of a wholly-owned subsidiary of the Company ("NYT") and FC Lion LLC ("FC"), the sole members of The New York Times Building LLC (the "Building Partnership"), a partnership established for the purpose of constructing the Building. On June 25, 2004, the Building Partnership closed a construction loan of up to $320 million (the "construction loan"), secured by the Building, for construction of the Building's core and shell and other development costs. NYT has elected not to borrow any portion of its share of the total costs of the Building through this construction loan and, instead, has made and will make capital contributions to the Building Partnership for its share of Building costs. The Company will fund such contributions from internally generated cash, including the sale proceeds of its existing headquarters, and external financing sources. FC's share of the total costs of the Building will be funded through capital contributions and the construction loan.

        Under the terms of the Building Partnership's operating agreement and the construction loan, NYT is required to fund all of its construction equity related to construction of the core and shell as well as other development costs prior to the funding of the construction loan. As of June 27, 2004, NYT's remaining construction equity requirement related to construction of the core and shell as well as other development costs was approximately $218 million. This requirement has been guaranteed by the Company and is backed by a standby letter of credit of $206 million, the amount of which will decline on a monthly basis as capital contributions are made. Because NYT is funding its construction equity first, a portion of those funds will be used to fund FC's share of Building costs (the "FC funded share") prior to commencement of funding of the construction loan. The FC funded share will bear interest at the construction loan rate and will be repaid to NYT out of construction loan draws. FC's interest in the Building Partnership has been pledged to NYT to secure repayment of the FC funded share.

        Capital expenditures in connection with the Building, including both core and shell and interior construction costs, are detailed in the table below.

Capital Expenditures

(Dollars in millions)	NYT	FC	Total
2001–2003	$96	$88	$184
2004	$65–$75	$32–$42	(a)$97–$117
Beyond 2004	(b)$415–$435	$272–$292	$687–$727
Total	(c)$576–$606	$392–$422	$968–$1,028

(a)

Approximately $39 million was incurred as of June 27, 2004 (approximately $19 million incurred by NYT and approximately $20 million incurred by FC).



(b)

This amount is net of estimated sale proceeds from the Company's existing headquarters.



(c)

Includes estimated capitalized interest and salaries in the range of $50 to $60 million.

29

Capital Resources

Sources and Uses of Cash

        Cash flows for the first six months of 2004 and 2003 were as follows:

	For the Six Months Ended
(Dollars in thousands)	June 27, 2004			June 29, 2003			% Change
Operating Activities	$	292.2		$	266.2		9.8
Investing Activities	$	(76.0	)	$	(185.9	)	(59.1	)
Financing Activities	$	(210.4	)	$	(84.3	)	149.6

Operating Activities

        The primary source of the Company's liquidity is cash flows from operating activities. The key component of operating cash flow is cash receipts from advertising customers. Operating cash inflows also include cash receipts from circulation sales and other revenue transactions such as wholesale delivery operations and direct marketing. Operating cash outflows include payments to vendors for raw materials, services and supplies, payments to employees, and payments of interest and income taxes.

        The Company reduced its net working capital in the first six months of 2004 compared with the first six months of 2003, which resulted in an increase in net cash provided by operating activities in the first half of 2004.

Investing Activities

        Investment cash inflows generally include proceeds from the sale of assets or a business. Investment cash outflows generally include payments for the acquisition of new businesses, equity investments and capital expenditures, including property, plant and equipment.

        Net cash used in investing activities in the first six months of 2004 decreased compared with the first six months of 2003 primarily due to higher capital expenditures as well as the acquisition of the IHT in the first six months of 2003.

Financing Activities

        Financing cash inflows generally include borrowings under the Company's commercial paper program, the issuance of medium-term notes, and funds from stock option exercises and from the sale of stock to employees under the Company's Employee Stock Purchase Plan. Financing cash outflows generally include the repayment of commercial paper and long-term debt, the payment of dividends and the repurchase of the Company's Class A Common Stock.

        The Company repaid approximately $84 million of commercial paper in the first half of 2004 compared to commercial paper borrowings of approximately $11 million in the first half of 2003, resulting in the majority of the 2004 increase in net cash used in financing activities.

        See the Company's Condensed Consolidated Statements of Cash Flows for additional information on the Company's sources and uses of cash.

Third-Party Financing

        The Company's total debt, including commercial paper and capital lease obligations, was $869.5 million as of June 27, 2004 compared with $955.3 million as of December 28, 2003. The decrease in total debt was primarily due to lower levels of commercial paper outstanding.

30

        The Company's 10-year notes, aggregating $250.0 million and bearing interest at an annual rate of 7.625%, mature on March 15, 2005. As a result, the Company reclassified these notes from "Long-term debt" to "Current portion of long-term debt and capital lease obligations" in the Company's Condensed Consolidated Balance Sheets in the first quarter of 2004. Although the Company has not committed to a plan to pay this amount due, the Company believes that its cash from operations and third-party financing, as described below, will be more than sufficient to meet this commitment.

        The Company has the following financing sources available to supplement cash flows from operations:

•

A commercial paper facility,



•

Revolving credit agreements, and



•

Medium-term notes.

Commercial Paper

        The Company's liquidity requirements may be funded through the issuance of commercial paper. The Company's $600.0 million commercial paper program is supported by its revolving credit agreements discussed below. Commercial paper issued by the Company is unsecured and can have maturities of up to 270 days. The Company had $144.0 million in commercial paper outstanding as of June 27, 2004, with an annual weighted average interest rate of 1.1% and an average of 3 days to maturity from original issuance.

Revolving Credit Agreements

        The primary purpose of the Company's revolving credit agreements is to support the Company's commercial paper program. The Company has a total of $670.0 million available to borrow under its revolving credit agreements. In May 2004 the Company terminated its one-year $330.0 million revolving credit agreement and entered into a $400.0 million five-year revolving credit agreement that extends to May 2009. The Company increased the amount available and extended the maturity date under its revolving credit agreements to provide the Company with additional borrowing flexibility. The Company's multi-year $270.0 credit agreement remains unchanged, maturing in June 2006. There were no amounts outstanding under the revolving credit agreements as of June 27, 2004.

        The revolving credit agreements permit borrowings that bear interest at specified margins based on the Company's credit rating, over various floating rates selected by the Company.

        The revolving credit agreements contain a covenant that requires specified levels of stockholders' equity. The amount of stockholders' equity in excess of the required levels was $425.8 million as of June 27, 2004.

Medium-Term Notes

        The Company's liquidity requirements may also be funded through the public offer and sale of notes under the Company's $300.0 million medium-term note program. An additional $225.0 million of medium-term notes may be issued from time to time pursuant to the Company's current effective shelf registration.

CONTRACTUAL OBLIGATIONS & OFF-BALANCE SHEET ARRANGEMENTS

        The Company's contractual obligations and off-balance sheet arrangements are detailed in the Company's Annual Report on Form 10-K for the year ended December 28, 2003. As of June 27, 2004, the Company's contractual obligations and off-balance sheet arrangements have not materially changed from December 28, 2003.

31

CRITICAL ACCOUNTING POLICIES

        The Company's critical accounting policies are detailed in the Company's Annual Report on Form 10-K for the year ended December 28, 2003. As of June 27, 2004, the Company's critical accounting policies have not changed from December 28, 2003.

RECENT ACCOUNTING PRONOUNCEMENTS

        In January 2004 the Financial Accounting Standards Board ("FASB") issued FASB Staff Position No. 106-1 ("FSP 106-1"), Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003, which permitted a sponsor of a postretirement health care plan that provides a prescription drug benefit to make a one-time election to defer accounting for the effects of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (the "Act"). In May 2004 the FASB issued FSP No.106-2 ("FSP 106-2"), which superseded FSP 106-1. FSP 106-2 provides authoritative guidance on the accounting for the Act and specifies the disclosure requirements for employers who have adopted FSP 106-2. FSP 106-2 is effective for the interim or annual period beginning after June 15, 2004. See Note 7 of the Notes to the Condensed Consolidated Financial Statements for the effect of the adoption of FSP 106-2 on the Company's Condensed Consolidated Financial Statements.

FACTORS THAT COULD AFFECT OPERATING RESULTS

        Except for the historical information contained herein, the matters discussed in this quarterly report are forward-looking statements that involve risks and uncertainties that could cause actual results to differ materially from those predicted by such forward-looking statements. These risks and uncertainties include national and local conditions, as well as competition, that could influence the levels (rate and volume) of retail, national and classified advertising and circulation generated by the Company's various markets and material increases in newsprint prices. They also include other risks detailed from time to time in the Company's publicly-filed documents, including the Company's Annual Report on Form 10-K for the year ended December 28, 2003. The Company undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information, future events, or otherwise.

Item 3.    Quantitative and Qualitative Disclosures about Market Risk

        The Company's Annual Report on Form 10-K for the year ended December 28, 2003, details the Company's disclosures about market risk. As of June 27, 2004, there have been no material changes in the Company's market risk from December 28, 2003.

Item 4.    Controls and Procedures

        Russell T. Lewis, the Company's Chief Executive Officer, and Leonard P. Forman, the Company's Chief Financial Officer, have evaluated the effectiveness of the Company's disclosure controls and procedures as of June 27, 2004. Based on such evaluation, each of Messrs. Lewis and Forman concluded that the Company's disclosure controls and procedures were effective to ensure that the material information required to be disclosed by the Company in the reports that it files or submits under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the Securities and Exchange Commission. There have been no changes in the Company's internal control over financial reporting during the period covered by this report that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting.

32

Part II.    OTHER INFORMATION

Item 2(e):    Issuer Purchases of Equity Securities(1)

Period	(a) Total Number of Shares of Class A Common Stock Purchased	(b) Average Price Paid Per Share of Class A Common Stock		(c) Total Number of Shares of Class A Common Stock Purchased as Part of Publicly Announced Plans or Programs	(d) Maximum Number (or Approximate Dollar Value) of Shares of Class A Common Stock that May Yet Be Purchased Under the Plans or Programs
March 29, 2004–May 2, 2004	411,800	$	45.06	411,800	$	413,600,000
May 3, 2004–May 30, 2004	353,200	$	45.55	353,200	$	397,500,000
May 31, 2004–June 27, 2004	440,900	$	45.23	440,900	$	377,600,000
Total for the second quarter of 2004	1,205,900	$	45.27	1,205,900	$	377,600,000

(1)

All purchases were made pursuant to the Company's publicly announced share repurchase program. On April 13, 2004, the Board of Directors (the "Board") authorized repurchases in an amount up to $400 million. As of July 30, 2004, the Company has authorization from its Board to repurchase an amount of up to $315.1 million of its Class A Common Stock. The Board has authorized the Company to purchase shares from time to time as market conditions permit. There is no expiration date with respect to this authorization.

33

Item 6.    Exhibits and Reports on Form 8-K

(a)

Exhibits

10.1

Operating Agreement of The New York Times Building LLC, dated December 12, 2001 (the "Operating Agreement"), between FC Lion LLC and NYT Real Estate Company LLC*



10.2

First Amendment to the Operating Agreement, dated June 25, 2004*



10.3

Building Loan Agreement, dated as of June 25, 2004, among The New York Times Building LLC, New York State Urban Development Corporation (d/b/a Empire State Development Corporation) and GMAC Commercial Mortgage Corporation



10.4

Project Loan Agreement, dated as of June 25, 2004, among The New York Times Building LLC, New York State Urban Development Corporation (d/b/a Empire State Development Corporation) and GMAC Commercial Mortgage Corporation



10.5

Construction Management Agreement, dated January 22, 2004, between The New York Times Building LLC and AMEC Construction Management, Inc.*



10.6

The Company's Supplemental Executive Retirement Plan, as amended and restated through January 1, 2004



12

Ratio of Earnings to Fixed Charges



31.1

Rule 13a–14(a)/15d–14(a) Certification



31.2

Rule 13a–14(a)/15d–14(a) Certification



32.1

Certification Pursuant to 18 U.S.C. Section 1350, as Added By Section 906 of the Sarbanes-Oxley Act of 2002



32.2

Certification Pursuant to 18 U.S.C. Section 1350, as Added By Section 906 of the Sarbanes-Oxley Act of 2002

*

Confidential treatment has been requested as to certain portions, which portions have been filed separately with the Securities and Exchange Commission. Such portions have been redacted and marked with an asterisk.



(b)

The Company furnished a Form 8-K on April 12, 2004, to report (1) the Company's earnings for the quarter ended March 28, 2004, and (2) the Company's revenue for the quarter ended March 28, 2004. The Company furnished a Form 8-K on July 14, 2004, to report (1) the Company's earnings for the quarter ended June 27, 2004, and (2) the Company's revenue for the quarter ended June 27, 2004.

34

SIGNATURES

        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 thereunto duly authorized.

	THE NEW YORK TIMES COMPANY (Registrant)
Date:    August 5, 2004	/s/  LEONARD P. FORMAN Leonard P. Forman Executive Vice President and Chief Financial Officer (Principal Financial Officer)

Exhibit Index to Quarterly Report on Form 10-Q
For the Quarter Ended June 27, 2004

Exhibit No.
10.1	Operating Agreement of The New York Times Building LLC, dated December 12, 2001 (the "Operating Agreement"), between FC Lion LLC and NYT Real Estate Company LLC*
10.2	First Amendment to the Operating Agreement, dated June 25, 2004*
10.3	Building Loan Agreement, dated as of June 25, 2004, among The New York Times Building LLC, New York State Urban Development Corporation (d/b/a Empire State Development Corporation) and GMAC Commercial Mortgage Corporation
10.4	Project Loan Agreement, dated as of June 25, 2004, among The New York Times Building LLC, New York State Urban Development Corporation (d/b/a Empire State Development Corporation) and GMAC Commercial Mortgage Corporation
10.5	Construction Management Agreement, dated January 22, 2004, between The New York Times Building LLC and AMEC Construction Management, Inc.*
10.6	The Company's Supplemental Executive Retirement Plan, as amended and restated through January 1, 2004
12	Ratio of Earnings to Fixed Charges
31.1	Rule 13a–14(a)/15d–14(a) Certification
31.2	Rule 13a–14(a)/15d–14(a) Certification
32.1	Certification Pursuant to 18 U.S.C. Section 1350, as Added By Section 906 of the Sarbanes-Oxley Act of 2002
32.2	Certification Pursuant to 18 U.S.C. Section 1350, as Added By Section 906 of the Sarbanes-Oxley Act of 2002

*

Confidential treatment has been requested as to certain portions, which portions have been filed separately with the Securities and Exchange Commission. Such portions have been redacted and marked with an asterisk.

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PART I. FINANCIAL INFORMATION
THE NEW YORK TIMES COMPANY CONDENSED CONSOLIDATED STATEMENTS OF INCOME (Unaudited) (Dollars and shares in thousands, except per share data)
THE NEW YORK TIMES COMPANY CONDENSED CONSOLIDATED BALANCE SHEETS (Dollars in thousands)
THE NEW YORK TIMES COMPANY CONDENSED CONSOLIDATED BALANCE SHEETS (Dollars in thousands)
THE NEW YORK TIMES COMPANY CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) (Dollars in thousands)
THE NEW YORK TIMES COMPANY NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
Part II. OTHER INFORMATION
SIGNATURES
Exhibit Index to Quarterly Report on Form 10-Q For the Quarter Ended June 27, 2004

EX-10.1

Exhibit 10.1

EXECUTION COUNTERPART

OPERATING

AGREEMENT

OF

THE NEW YORK TIMES BUILDING LLC
(a New York Limited Liability Company)

December 12, 2001

TABLE OF CONTENTS

ARTICLE I		DEFINITIONS
ARTICLE II		GENERAL PROVISIONS
	2.01	Formation of Company
	2.02	Name
	2.03	Business
	2.04	Office
	2.05	Term
	2.06	Ownership of Company Property
	2.07	Qualification; Registered Office
	2.08	Tax Status
	2.09	Beneficial Ownership
ARTICLE III		CAPITAL CONTRIBUTIONS; PERCENTAGE INTERESTS
	3.01	Capital Contributions
	3.02	Return of Capital Contributions
	3.03	Percentage Interests
	3.04	Default
	3.05	Effect of Section 3.04 Assignment Notice
	3.06	No Additional Contributions
	3.07	FC Member’s Put Right
	3.08	No Third Party Rights
ARTICLE IV		CAPITAL ACCOUNTS; ALLOCATIONS AND DISTRIBUTIONS
	4.01	Capital Accounts
	4.02	Allocations
	4.03	Distributions
ARTICLE V		MANAGEMENT; BOARD OF MANAGERS; ACTIVITIES OF MEMBERS
	5.01	Appointment and Removal of Managers; No Compensation
	5.02	Rights and Powers of the Board of Managers
	5.03	Obligations of the Board of Managers
	5.04	Liability of the Board of Managers
	5.05	Indemnification of Members and the Board of Managers

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	5.06	Rights of Members
	5.07	Restrictions on the Board of Managers; Directions by Members
	5.08	Development Plan; Improvements; Use and Leasing; Construction Guarantees.
	5.09	Financing
	5.10	Building Name; Signage; Rooftop Antennae
	5.11	Entry and Use
	5.12	Adjustment to NYTC Member Space and FC Member Space
	5.13	Activities of Members; Dedicated Individuals of FC Member
	5.14	Unauthorized Acts
	5.15	Subleases and Brokerage Agreements for FC Member Space; Non-Disturbance by NYTC Member for FC Member Tenants
	5.16	Terrorism Insurance Extension
	5.17	Subway Agreement
ARTICLE VI		CONVERSION DATE; NYTC EXTENSION LOAN
	6.01	Conversion Date
	6.02	Conversion Date Actions
	6.03	NYTC Extension Loan
ARTICLE VII		BOOKS, RECORDS, REPORTS AND ACCOUNTING
	7.01	Books and Records; Audits and Reports; Budgets
	7.02	Changes in Interests
	7.03	Uninvested Funds and Banking
	7.04	Fiscal Year; Accounting Method
	7.05	Tax Matters Member
	7.06	Section 754 Election
ARTICLE VIII		TRANSFERS OF INTERESTS; DEFAULT
	8.01	Transfers of Interests
	8.02	Act of Insolvency
ARTICLE IX		DISSOLUTION AND LIQUIDATION
	9.01	Events of Dissolution
	9.02	Liquidation upon Dissolution.

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ARTICLE X		FAIR MARKET VALUE; FAIR MARKET RENT
	10.01	Appraisal Procedure
ARTICLE XI		ARBITRATION
	11.01	Arbitration
ARTICLE XII		ALLOCATION METHODOLOGY
	12.01	Allocation of Costs
	12.02	Allocation of Net Cash Flow, Net Financing Proceeds and Net Sale Proceeds
ARTICLE XIII		REPRESENTATIONS AND WARRANTIES
	13.01	Representations and Warranties of NYTC Member
	13.02	Representations and Warranties of FC Member
ARTICLE XIV		MISCELLANEOUS
	14.01	Execution in Counterparts
	14.02	Notices
	14.03	Amendments
	14.04	Articles of Organization
	14.05	Validity
	14.06	Governing Law
	14.07	Waiver
	14.08	Brokers
	14.09	Entire Agreement
	14.10	No Third Party Beneficiary
	14.11	Attorney’s Fees

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THE NEW YORK TIMES BUILDING LLC
(a New York Limited Liability Company)

OPERATING AGREEMENT

THIS OPERATING AGREEMENT (this “Agreement”) of THE NEW YORK TIMES BUILDING LLC (the “Company”) is made as of December 12, 2001 by and between FC LION LLC, a New York 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”) (together, the “Members”).

R E C I T A L S

WHEREAS:

A.The Members wish to form a limited liability company for the purpose of leasing certain parcels of real property described in Exhibit A attached hereto and located in the County, City and State of New York (the “Land”), and developing thereon a certain building and improvements generally described in Exhibit B attached hereto (as the same may be amended from time to time as permitted hereunder, the “Development Plan”); and

B.Effective immediately upon execution and delivery of this Agreement, the Members have become members of the Company; and

C.In order to proceed with the Development Plan, the Company will immediately hereafter enter into an agreement of lease (as the same may be amended from time to time as permitted hereunder, the “Ground Lease”) with Empire State Development Corporation (a/k/a Urban Development Corporation) and the New York City Economic Development Corporation or affiliates thereof (collectively, the “Public Parties”), the Ground Lease granting to the Company a leasehold interest in the Land and the Improvements (as hereinafter defined), and will also enter into a Site 8 South Land Acquisition and Development Agreement with the Public Parties relating to the Land and the Improvements (as the same may be amended from time to time as permitted hereunder, the “LADA”); and

D.The Members intend that NYTC Member shall be the beneficial owner of a portion of the Land and the Improvements being the NYTC Member Space (as hereinafter defined) and the sublessee under a Unit Lease therefor (as contemplated under the Ground Lease and hereinafter defined) and FC Member shall be the beneficial owner of a portion of the Land and the Improvements being the FC Member Space (as hereinafter defined) and the sublessee under a Unit Lease therefor (as contemplated under the Ground Lease and hereinafter defined), but the Members have determined that it will facilitate the Development Plan if (i) the Company initially holds leasehold title (for the benefit of NYTC Member and FC Member) under the Ground Lease (rather than having NYTC Member hold leasehold title to the NYTC Member Space and FC Member hold leasehold title to the FC Member Space) and (ii) the Company delays submission of the Property (as hereinafter defined) to a condominium regime, as herein provided, until the Conversion Date (as hereinafter defined); and

E.The Members are forming the Company to achieve substantially the same treatment, prior to the Conversion Date, as though the Property was initially subjected to a condominium regime; and

F.The Members hereby constitute themselves a limited liability company as the Company for the purposes and on the terms set forth in this Agreement.

NOW, THEREFORE, the Members hereby agree as follows:

ARTICLE I

DEFINITIONS

1.01“Act of Insolvency” means the following:

(a)that a Person shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing; or

(b)an involuntary case or other proceeding shall be commenced against a Person seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of thirty (30) days, or an order for relief shall be entered against it under the Federal bankruptcy laws as now or hereafter in effect.

1.02“Affiliate” of, or a Person “affiliated” with, a specified Person, means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the Person specified, or is a member of the family of such Person.  For the purpose of this definition, the terms “control”, “is controlled by” and “is under common control with” shall mean (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of securities or by contract or otherwise, provided (but without limiting the foregoing) that no pledge of voting securities of any Person without the current right to exercise voting rights with respect thereto shall by itself be deemed to constitute control over such Person, and (b) ownership in such Person of more than 50% of all equity, capital and profit interests.

1.03“Agreement” means this Operating Agreement, as amended, supplemented or restated from time to time.

1.04“Allocation Methodology” shall have the meaning set forth in Article XII.

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1.05“Architect” shall have the meaning set forth in the Development Agreement.

1.06“Bad Acts Guaranty” shall have the meaning set forth in Section 6.03.

1.07“Board of Managers” shall have the meaning set forth in Section 5.01(a).

1.08“Bridge Financing”  shall have the meaning set forth in Section 6.03.

1.09“Broker” shall have the meaning set forth in Section 3.01(e).

1.10“Budget” shall have the meaning set forth in Section 7.01(c).

1.11“Business Day” means any day, other than (i) a Saturday or Sunday, or (ii) a day on which banks in New York are required or authorized by law or executive order to close.

1.12“Capital Account” shall have the meaning set forth in Section 4.01.

1.13“Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year after giving effect to the following adjustments:

(i)such Capital Account shall be deemed to be increased by any amounts which such Member is obligated to restore to the Company (pursuant to this Agreement or otherwise) or is deemed to be obligated to restore pursuant to the penultimate sentence of Treasury Regulation section 1.704-2(g)(1) and 1.704-2(i)(5) (relating to allocations attributable to nonrecourse debt); and

(ii)such Capital Account shall be deemed to be decreased by the items described in Treasury Regulation sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

1.14“Capital Contribution” means, with respect to each Member, the amount of cash and, if and to the extent non-cash contributions are specifically permitted under this Agreement,  the Fair Market Value (valued at contribution) of property actually contributed by the Member to the Company as of the date in question.  If a Member’s entire interest in the Company is Transferred in accordance with the terms of this Agreement, the Capital Account of the Transferor shall become the Capital Account of the Transferee.  If a Member Transfers less than 100% of its interest in accordance with the terms of this Agreement, then a separate capital account shall be established for the Transferee and the Transferor’s Capital Account will be reduced by, and the Transferee’s Capital Account shall be credited with, an amount proportionately equal to the Transferred interest as a percentage of the Transferor’s interest.

1.15“Certificated Interests” shall have the meaning set forth in Section 14.13.

1.16“Closing Deferral Notice” shall have the meaning set forth in Section 3.07(h).

1.17“Code” means the Internal Revenue Code of 1986, as amended.

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1.18“Commercial Signage”  means all Signage other than Temporary Signage, NYTC Signage, NYTC Office Signage, FC Office Signage, Retail Signage and SPU Signage, but including any NYTC Signage which NYTC Member has elected to convert to Commercial Signage and with which FC Member has opted to participate pursuant to Section 5.10(c)(viii) hereof.

1.19“Company” means The New York Times Building LLC, the limited liability company that is the subject of this Agreement.

1.20“Company Minimum Gain” means the aggregate amount of gain (of whatever character), determined for each nonrecourse liability of the Company, that would be realized by the Company if it disposed of the property subject to such liability in a taxable transaction in full satisfaction thereof, determined in accordance with Treasury Regulation section 1.704-2(d).

1.21“Company Nonrecourse Deductions” means the excess, if any, of the net increase, if any, in the amount of Company Minimum Gain during a fiscal year over the aggregate amount of any distributions during that fiscal year of proceeds of a nonrecourse liability as defined in Treasury Regulation section 1.704-2(c).

1.22“Completion Date” means the date on which occurs the substantial completion of construction of the Core and Shell.  Substantial completion shall be deemed to have been achieved when (i) the Project, with the exception of punch list work (but including all work included within the Core and Shell necessary to obtain a permanent certificate of occupancy), has been completed and certified as complete by the Architect, (ii) a temporary Certificate of Occupancy has been issued for the Core and Shell (reflecting zero occupancy), (iii) the lobby, service areas and concierge area are substantially complete, (iv) a loading dock has been substantially completed and  is operational and accessible, (v) at least one main lobby entrance is fully accessible and permanent sidewalks on 40^th and 41^st Streets are complete and (vi) the facade is watertight.  At the request of either Member made after the Completion Date shall have occurred, the Members shall execute a written acknowledgement confirming the Completion Date.  Disputes as to whether or not the Completion Date has occurred shall be decided by arbitration pursuant to Article XI hereof.

1.23“Condominium Declaration” means the declaration which shall subject the leasehold interest under the Ground Lease to a condominium regime, the form of which is attached hereto as Exhibit E, as the same may be amended from time to time as permitted hereunder.  It is understood that the form of Condominium Declaration will, before recordation, be amended to reflect the actual design, configuration of, access to areas within and systems in, the Improvements.

1.24“Condominium Law” means Article 9-B of the Real Property Law of the State of New York.

1.25“Construction Loan” means the mortgage loan obtained by the Company to finance the Total Costs of the Project, and any refinancing or extensions thereof obtained by the Company.

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1.26“Construction Loan Closing Date” means the date on which the Company shall initially close the Construction Loan.

1.27“Conversion Date” shall have the meaning set forth in Section 6.01.

1.28“Core and Shell” shall have the meaning set forth in Exhibit F attached hereto and made a part hereof.

1.29“Curtain Wall System” means the entire vertical exterior building enclosure system which is currently contemplated to include all aluminum, glass, stainless steel, ceramic and/or terracotta elements, miscellaneous iron, clips and fasteners required for the complete installation of all elements of such system, specifically including all vertical building enclosure elements from the ground to the top of any parapet or roof screen, and specifically excluding all horizontal elements of the building enclosure system such as roofing, soffits and skylights.

1.30“Default Rate” means a rate per annum equal to the lesser of (i) the sum of six percent (6%) plus the Prime Rate, compounded annually, or (ii) the maximum rate permitted by applicable law with respect to the applicable amount payable hereunder.

1.31“Defaulting Member” shall have the meaning set forth in Section 3.04.

1.32“Delivery Date” means the date that the landlord under the Ground Lease delivers Possession (as such term is defined in the Ground Lease) of the Property to the tenant under the Ground Lease, having the same meaning as set forth under the Ground Lease.

1.33“Developer”  means Forest City Ratner Companies and its permitted successors and assigns as developer under the Development Agreement.

1.34“Development Agreement” means that certain Development Agreement dated as of even date herewith between the Company, NYTC Member, FC Member and Developer, whereby Developer shall provide to the Company development services with respect to the Project, as such agreement may be amended from time to time as permitted hereunder.

1.35“Development Plan” shall have the meaning set forth in Recital Paragraph A of this Agreement.

1.36“Discretionary Inside Mechanical Space” shall have the meaning set forth in the Ground Lease.

1.37“Dispute” shall have the meaning set forth in Section 4.4(b) of the Development Agreement.

1.38“DUO” shall have the meaning set forth in the Ground Lease.

1.39“ESAC” means Excess Site Acquisition Costs, as defined in the LADA.

1.40“Excess NYTC Guaranteed Amount” shall mean the excess, if any, of the NYTC Guaranteed Amount over NYTC Member’s Share of the Construction Loan.

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1.41“Extension Period” shall have the meaning set forth in Section 6.03.

1.42“Fair Market Rent” means with respect to any property, the rent that would be obtained in an arm’s length transaction for the lease of such property for cash between an informed and willing lessor and an informed and willing lessee, each with adequate understanding of the facts and under no compulsion to lease, as determined in good faith by the lessor and lessee of the property in question or, in the event of the failure of the lessor and lessee of the property in question to so agree, as determined in accordance with the valuation arbitration procedure set forth in Section 10.02.

1.43“Fair Market Value” means (i) with respect to any item of property, the value that would be obtained in an arm’s length transaction for the transfer of ownership of such property for cash between an informed and willing seller and an informed and willing purchaser, each with adequate understanding of the facts and under no compulsion to buy or sell, as determined in good faith by the purchaser and seller of the property in question or, in the event of the failure of the purchaser and seller of the property in question to so agree, as determined in accordance with the valuation arbitration procedure set forth in Section 10.01, and (ii) with respect to the Company, the value as determined in accordance with the valuation arbitration procedure set forth in Section 10.01.

1.44“FCE” means Forest City Enterprises, Inc. an Ohio corporation, with its principal office at 1160 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113 and any successors thereto by merger or by operation of law.

1.45“FC Entity” means FC 41^st Street Associates, LLC, a New York limited liability company.

1.46“FC Member ESAC Amount” shall have the meaning set forth in Section 3.07(b).

1.47“FC Member ESAC Percentage” shall have the meaning set forth in Section 3.07(b).

1.48“FC Member Excess Land Payment” shall have the meaning set forth in Section 3.07(b).

1.49“FC Member’s Costs” shall mean an amount equal to the additional Capital Contributions which NYTC Member would have been required to make under Article 3 hereof on or before the effective date of a purchase by NYTC Member pursuant to a Section 5.12 Notice under Section 5.12 hereof if the purchased space had been included in NYTC Member’s percentage share of both land and other project costs from the date of this Agreement (with interest at the rate of LIBOR plus one percent per annum from the date(s) such Capital Contributions would have been required to be made).  FC Member’s Costs shall be calculated by FC Member and reasonable documentation of such costs shall be delivered to NYTC Member within five (5) Business Days after request therefor by NYTC Member.  If NYTC Member disputes FC Member’s calculation of such costs, then such dispute shall be settled by arbitration in accordance with Section 11.01 hereof.  Pending the resolution of such dispute, FC Member’s Costs for purposes of Section 5.12 hereof shall be deemed to mean the undisputed amount of such costs.  Upon resolution of such dispute, NYTC Member shall pay to FC Member the

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amount, if any, by which the amount finally determined to be FC Member’s Costs exceeds the undisputed amount of such costs.  For the period of any dispute, with respect to such portion of the disputed amount ultimately included in FC Member’s Costs (if any), the interest rate referred to in the first sentence of this Section 1.45 shall be the Prime Rate plus one percent per annum rather than LIBOR plus one percent per annum.

1.50“FC Member’s Put Right” shall have the meaning set forth in Section 3.07(a).

1.51“FC Member Space” means the Retail Space and the portions of the Land and the Improvements designated as “FC Office” on Exhibit B-1 attached hereto, whether above grade or below grade, as said Exhibit B-1 may be adjusted from time to time pursuant to this Agreement.

1.52“FC Member Unit Permanent Financing” shall have the meaning set forth in Section 6.03.

1.53“FC Office Signage” shall have the meaning set forth in Section 5.10.

1.54“FC Put Closing” shall have the meaning set forth in Section 3.07(a).

1.55“FC Put Closing Date” shall have the meaning set forth in Section 3.07(a).

1.56“FC’s Election Notice” shall have the meaning set forth in Section 3.07(a).

1.57“FC Base Amount” shall have the meaning set forth in Section 5.16.

1.58“Final Approved Budget” means the Project Budget prepared by the Developer pursuant to the terms of the Development Agreement and approved in writing by both Members.

1.59“GAAP” shall mean generally accepted accounting principles consistently applied.

1.60“GMP Contract” shall have the meaning set forth in the Development Agreement.

1.61“Governmental Authorities” shall mean all federal, state, county, city and borough departments, bureaus, boards, agencies, offices, commissions and other subdivisions thereof, or of any official thereof, or of any other governmental, public or quasi-public body or authority.

1.62“Ground Lease” shall have the meaning set forth in Recital Paragraph C of this Agreement.

1.63“Improvements” means the buildings and improvements which the Company proposes to construct and erect on the Land as provided in the Schematic Design Plans, the Development Agreement and the Development Plan.

1.64“ING Bank” shall have the meaning set forth in Section 6.03.

1.65“ING Entity” shall mean INGREDUS Site 8 South LLC, a Delaware limited liability company, a member in FC Member.

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1.66“ING Vastgoed” shall mean ING Vastgoed B B.V., a Netherlands private limited liability company.

1.67“Insurance” shall have the meaning set forth in Section 5.16.

1.68“Insurance Extension” shall have the meaning set forth in Section 5.16.

1.69“Interest Rate” shall have the meaning set forth in Section 3.01(b).

1.70“IRS” means the Internal Revenue Service.

1.71“LADA” shall have the meaning set forth in Recital Paragraph C of this Agreement.

1.72“Land” shall have the meaning set forth in Recital Paragraph A of this Agreement.

1.73“Land Share” means the percentage equal to the ratio which the number of Square Feet within the NYTC Member Space (above grade), in the case of NYTC Member, and the number of Square Feet within the FC Member Space (above grade), in the case of FC Member, bears to the total number of Square Feet within both of the NYTC Member Space (above grade) and the FC Member Space (above grade), as determined from time to time.  As of the date of this Agreement, FC Member’s Land Share is 42.3951% and NYTC Member’s Land Share is 57.6049%.  The Members’ Land Shares will be adjusted to reflect changes from time to time in the number of Square Feet within the FC Member Space (above grade) and the NYTC Member Space (above grade), all based on the then last revised plans and specifications for the Improvements, and the Members hereby agree to enter into written confirmation of such adjusted Land Shares at such times.  On the Conversion Date, the Land Shares will be adjusted to reflect as-built conditions based upon the number of Square Feet in the NYTC Member Space (above grade) and the FC Member Space (above grade) as reflected in the final plans and specifications for the Improvements and such adjusted Land Shares will be confirmed in writing by the Members.

1.74“LLC Law” means the New York Limited Liability Company Act, as amended from time to time, and any successor to such statute.

1.75“LIBOR” means the rate per annum published on the date one (1) Business Day immediately preceding the first day of the relevant period, as reported in the section entitled “Money Rates” in The New York Times as the one (1) month London Interbank Offered Rate for U.S. Dollar deposits (or if The New York Times shall cease to be publicly available, then LIBOR shall be as reported by any publicly available source of similar market data selected by the Members that, in the Members’ reasonable judgment, accurately reflects such London Interbank Offered Rate).

1.76“Managers” shall have the meaning set forth in Section 5.01(a).  Reference to a “Manager” means any one of the Managers.

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1.77“Member Nonrecourse Debt” has the meaning set forth in Treasury Regulation section 1.704-2(b)(4).

1.78“Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a nonrecourse liability, determined in accordance with Treasury Regulation section 1.704-2(i).

1.79“Member Nonrecourse Deductions” means the excess, if any, of the net increase, if any, in the amount of Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during a fiscal year over the aggregate amount of any distributions during that fiscal year to the Member that bears the economic risk of loss for such Member Nonrecourse Debt to the extent such distributions are from the proceeds of such Member Nonrecourse Debt and are allocable to an increase in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation section 1.704-2(i).

1.80“Members” means FC Member, NYTC Member and any Person who is admitted as a Member of the Company in accordance with the terms of this Agreement.  Reference to a “Member” means any one of the Members.

1.81“Net Cash Flow” means, for any given period, all receipts from the conduct of the business of the Company for such period, from whatever source derived (but specifically excluding any Net Sale Proceeds, Net Financing Proceeds and any Signage/Antennae Revenues) which are available for distribution by the Company following (a) the payment of all operating, debt service and capital expenses of the Company for such period with respect to which no reserves have been established (including, without limitation, any principal and interest due during any such period with respect to any debt of the Company), and (b) the establishment or replenishment, as deemed reasonably necessary by the Board of Managers, of reserves for taxes, debt service, maintenance, repairs and other expenses and other working capital requirements of the Company or for contingent and unforeseen liabilities of the Company.  At all times, Net Cash Flow shall be calculated separately for the NYTC Member Space and the FC Member Space using the Allocation Methodology.

1.82“Net Financing Proceeds” means the amount by which any cash proceeds received by the Company from any loan exceeds (a) the amount required to be paid by the Company in reduction or satisfaction of prior loans or liens upon the Property, (b) any closing costs incurred or required to be paid by the Company in connection with such loan, (c) the amount of any such proceeds applied to fund any reserves as the Board of Managers deems appropriate, and (d) the amount of any such proceeds applied, to the extent authorized by the Board of Managers, to fund any capital improvements of the Property.  At all times, Net Financing Proceeds shall be calculated separately for the NYTC Member Space and the FC Member Space using the Allocation Methodology.

1.83“Net Sales Proceeds” means the amount by which the gross proceeds from the sale of all or any part of the Property, including the amount of any deferred payments or purchase money notes received in exchange for the Property, exceed (a) the amount required to

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be paid by the Company in reduction or satisfaction of prior loans or liens upon the Property, and (b) closing costs payable to third parties in connection with such sale.  At all times, Net Sales Proceeds shall be calculated separately for the NYTC Member Space and the FC Member Space using the Allocation Methodology.

1.84“NYTC Extension Loan” means the prepayment by NYTC Member of the portion of the Construction Loan equal to the Excess NYTC Guaranteed Amount, which prepayment shall take place together with the repayment by NYTC Member of NYTC Member’s Share of the Construction Loan and which prepayment shall constitute a loan by NYTC Member to FC Member, all pursuant to Section 6.03.

1.85“NYTC Guaranteed Amount” means, subject to Section 5.09, a portion of the Construction Loan (and interest thereon) equal to NYTC Member’s Share of the Total Costs of the Project (without any credit for amounts theretofore invested by NYTC Member).

1.86“NYTC Interiors Costs” means the cost of the leasehold improvements and building fixtures (e.g., electrical fixtures and wiring) to be constructed or installed in the NYTC Member Space, excluding telecommunications equipment (e.g., computer and telephones), telecommunication wiring/cabling, furniture and trade fixtures and other equipment and personal property which is not permanently affixed to the Improvements.

1.87“NYTC Member Space” means the SPU and the portions of the Land and the Improvements designated as “NYTC Office” on Exhibit B-1 attached hereto, whether above grade or below grade, which the Members agree shall be a minimum of 750,000 gross square feet of above grade and below grade space in the Improvements (as such measurement for the Project is used by the Architect), as said Exhibit B-1 may be adjusted from time to time pursuant to this Agreement.

1.88“NYTC Office Signage” shall have the meaning set forth in Section 5.10.

1.89“NYTC Signage” shall have the meaning set forth in Section 5.10.

1.90“NYTC’s Signage Costs” shall have the meaning set forth in Section 5.10.

1.91“Outside Delivery Date” shall have the meaning set forth in Section 3.07(a).

1.92“Person” shall mean any individual, corporation, partnership, limited liability company, trust, Governmental Authority or other legal entity.

1.93“Percentage Interests” shall have the meaning set forth in Section 3.03.

1.94“Prime Rate” means the fluctuating annual interest rate announced publicly by Citibank, N.A., or any successor, at its headquarters in New York City, as its base commercial lending rate, as the same may change from time to time.

1.95“Project” means the acquisition of a leasehold interest in the Property, the construction of the Core and Shell in accordance with the Development Plan and the recordation of the Condominium Declaration.

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1.96“Property” means collectively the Land and the Improvements.

1.97“Public Parties” shall have the meaning set forth in Recital Paragraph C of this Agreement.

1.98“Rating Agency” means Standard & Poor’s Rating Services, a division of the McGraw-Hill Companies, Inc., or its successor in interest, or if Standard & Poor’s or a successor thereto shall not exist, then Moody’s Investors Service Inc. or its successor in interest.  If neither Standard & Poor’s or a successor in interest thereto nor Moody’s or a successor in interest thereto shall exist, then the FC Member shall name a replacement Rating Agency, subject to the consent of NYTC Member, which consent shall not be unreasonably withheld.

1.99“Recognition Agreement” means that certain Recognition Agreement dated as of even date herewith by and among ING Entity, ING Vastgoed, FC Entity, the Company, NYTC Member, FC Member, Developer and The New York Times Company, a copy of which is attached hereto as Exhibit V.

1.100“Retail Signage” shall have the meaning set forth in Section 5.10.

1.101“Retail Space” means a portion of the FC Member Space which is designated as “FC Retail” on Exhibit B-1 attached hereto, whether above grade or below grade, as said Exhibit B-1 may be adjusted from time to time pursuant to this Agreement.

1.102“Schematic Design Estimate” means the estimated budget attached hereto as Exhibit D and setting forth the costs of each component of the Core and Shell as depicted in the Schematic Design Plans on a line item basis, including an appropriate contingency and inflation factor for each line item, with each line item allocated between NYTC Member and FC Member in accordance with the Allocation Methodology.

1.103“Schematic Design Plans” means the building design specifications document attached hereto as Exhibit C and setting forth the scope, overall design intent and standards of the Core and Shell, including without limitation (A) the design, base building standards, general specifications and layout of the floor plates, structure, elevations, cores, fire stairs, common areas, entrance lobbies (common and, if applicable, each Member’s), building MEP (base, emergency power and supplemental systems) and vertical transportation systems, and (B) specifications for all major components of the Core and Shell.

1.104“Section 3.01(h) Capital Contribution” shall have the meaning set forth in Section 6.03.

1.105“Section 3.04 Confirmation” shall have the meaning set forth in Section 3.04(b).

1.106“Section 3.04 Assignment Notice” shall have the meaning set forth in Section 3.04(b).

1.107“Section 3.04 Default Notice” shall have the meaning set forth in Section 3.04(b).

1.108“Section 5.12 Notice” shall have the meaning set forth in Section 5.12.

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1.109“Section 8.02 Member” shall have the meaning set forth in Section 8.02.

1.110“Selected Building Elements” shall have the meaning set forth in Section 5.07(f).

1.111“Share of the Construction Loan” means, as to each Member, the portion of the Construction Loan equal to the product of the principal amount of the Construction Loan multiplied by a fraction, the numerator of which is such Member’s Share of the Total Costs of the Project and the denominator of which is the Total Costs of the Project.

1.112“Share of the Total Costs of the Project” shall mean, as to each Member, the Total Costs of the Project multiplied by the Percentage Interest of such Member, as adjusted using the Allocation Methodology.

1.113“Signage” shall mean any signs, marquees, graphics, displays, monitors or similar devices or installations, including all related lighting, supports, and the like, other than directional signage for NYTC Member’s Space or FC Member’s Space, as the case may be, intended to be located on the Property during the period commencing on the day after the Completion Date.

1.114“Signage/Antennae Revenues” means all gross receipts of the Company derived from the rental or license of Temporary Signage, Signage and antennae on any portion of the exterior of the Improvements, on any scaffold or barricade located on the Property or elsewhere on the Property, reduced by all costs of the Company directly related to such receipts, such as installation and maintenance costs.

1.115“Site Acquisition Costs” shall have the meaning set forth in LADA.

1.116“SPU” means a portion of the NYTC Member Space which is designated as “SPU” on Exhibit B-1 attached hereto, whether above grade or below grade, as said Exhibit B-1 may be adjusted from time to time pursuant to this Agreement.

1.117“SPU Costs” mean the portion of the Total Costs of the Project allocable to the SPU, including without limitation, the cost of consultants retained and research conducted in connection with the intended use thereof, but excluding costs for telecommunications equipment (e.g. computers and telephones) telecommunication wiring/cabling, furniture and trade fixtures and other equipment and personal property which is not permanently affixed to the Improvements.

1.118“SPU Signage” shall have the meaning set forth in Section 5.10.

1.119“Square Feet” means square footage computed with reference to the gross square footage of the Project, above grade, measured from the outside of the exterior walls for each floor and including, without limitation, mechanical space, floor cutouts for ducts, interior partition walls and loading areas.  In the case of a double curtain wall, exterior walls for the purpose of this definition shall mean the innermost of the two walls.

1.120“Surviving Liabilities” shall have the meaning set forth in Section 3.04.

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1.121“Tax Controversies” shall have the meaning set forth in Section 7.05.

1.122“Temporary Signage” means any signs, marquees, graphics, displays, monitors or similar devices or installations, including all related lighting, supports and the like affixed to the exterior of the Improvements or on any scaffold or barricade located on the Property during the period occurring on and prior to the Completion Date and intended to be removed from the Property on or before the Completion Date.

1.123“Tenant’s Subway Agreement” means that certain Agreement dated as of even date herewith among the Company, the New York City Transit Authority, 42^nd St. Development Project, Inc., and The City of New York with respect to Tenant’s Subway Improvements.

1.124“Tenant’s Subway Improvements” shall have the meaning set forth in the Ground Lease.

1.125“Third Dispute Arbitrator” shall have the meaning set forth in Section 11.01.

1.126“Third Rental Arbitrator” shall have the meaning set forth in Section 10.02.

1.127“Third Valuation Arbitrator” shall have the meaning set forth in Section 10.01.

1.128“TMP” shall have the meaning set forth in Section 7.05.

1.129“Total Costs of the Project” means all hard and soft costs of acquisition of the Land and construction of the Improvements contemplated under the Development Plan, including without limitation tenant work allowances, leasing commissions and other leasing costs for the initial tenanting of the FC Member Space (no portion of which tenant work allowances, leasing commissions and other leasing costs for the initial tenanting of the FC Member Space shall be included in NYTC Member’s Share of the Total Costs of the Project), all to the extent set forth in Exhibit H attached hereto and such other costs as may be reasonably approved by the Members but excluding lease takeover costs and, unless otherwise required pursuant to Section 5.09, excluding the NYTC Interiors Costs.  The Total Costs of the Project shall include the costs for which Capital Contributions are to be made pursuant to Section 3.01, although responsibility for such costs (and, to the extent financed, the Construction Loan) shall be allocated as set forth in Section 3.01, Section 5.09 and Section 12.01.

1.130“Transfer” means to sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of an interest in the Company or the Project, or any direct or indirect interest in a Member, or any entity holding any interest in the Company or in the NYTC Member Space or the FC Member Space, directly or through intervening entities, whether voluntarily or by operation of law.  “Transferor”, “Transferee” and “Transferred” shall have meanings corresponding to the foregoing.

1.131“True Base Amount” shall have the meaning set forth in Section 5.16.

1.132“True-Up Payment” shall have the meaning set forth in Section 3.01(c).

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1.133“Unit Leases” means the leases between the Company, as sublandlord (the sublandlord’s interest in which will be assigned to the lessor under the Ground Lease on the Conversion Date) and NYTC Member and FC Member, as subtenants, respectively, demising the NYTC Member Space to NYTC Member and the FC Member Space to FC Member, as the case may be, each on terms and conditions acceptable to the Members and as the same may be amended from time to time as permitted hereunder.

1.134“Upset Amount” shall have the meaning set forth in Section 5.07(f).

1.135“Vesting Date” shall have the meaning set forth in the Ground Lease.

1.136“Work Authorization” shall have the meaning set forth in Section 3.01(a).

ARTICLE II

GENERAL PROVISIONS

2.01Formation of Company.  The parties to this Agreement have formed the Company under the LLC Law.

2.02Name.  The name of the Company is The New York Times Building LLC, or such other name as all of the Members may from time to time determine.  The Board of Managers shall cause to be filed on behalf of the Company such documents and certificates as may from time to time be required by law.

2.03Business.  The business of the Company shall be to (a) acquire and hold fee title or leasehold title to the Property, (b) construct the Improvements upon the Land and develop, finance, manage, operate, improve and lease the Property, (c) submit the Property to a condominium regime under the Condominium Law on the Conversion Date as provided herein, and (d) carry on any other activity which, in the opinion of the Board of Managers, may be reasonably necessary or appropriate in connection with or incidental to the foregoing.

2.04Office.  The principal office of the Company shall be at One MetroTech Center North, Brooklyn, New York, or such other location in the City of New York as the Board of Managers may select from time to time.

2.05Term.  The term of the Company commenced on November 28, 2001 and shall continue until 11:59 p.m., Eastern Standard Time, December 31, 2099, unless dissolved and terminated at an earlier date in the manner provided in Article IX.

2.06Ownership of Company Property.  As provided in Sections 2.08 and 2.09 and except as otherwise set forth in this Agreement, NYTC Member and FC Member are the beneficial owners of the NYTC Member Space and the FC Member Space, respectively, subject to the terms of this Agreement.  All other property acquired by the Company, real, personal or mixed, tangible or intangible, shall be owned or leased by the Company as an entity, and no Member, individually, shall have any ownership or leasehold interest therein.

2.07Qualification; Registered Office.

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(a)The Board of Managers shall cause the Company to become qualified and registered to do business, pay all property, income, gross receipts, franchise and other state and local taxes applicable to it and obtain such licenses and permits as may be required by law in each state or jurisdiction in which any such qualification, payment or other action is required by law in connection with the conduct of the Company’s business.

(b)The Members shall cooperate in causing the Company to become properly qualified and registered as a limited liability company, to pay any taxes and/or other fees or charges payable by the Company and to obtain such licenses and permits as may be required in connection with the conduct of the Company’s business in each state or jurisdiction in which the Board of Managers shall determine that it is necessary or advisable for any such action to be taken.

2.08Tax Status.  The Members agree that for federal, state and local tax purposes, NYTC Member and FC Member (rather than the Company) shall be treated as the beneficial owners  of the NYTC Member Space and the FC Member Space, respectively, and that the Company shall be treated as a partnership for such tax purposes.

2.09Beneficial Ownership.  NYTC Member and FC Member are the sole beneficial owners of the NYTC Member Space and the FC Member Space, respectively.  Except as otherwise expressly set forth herein, each such Member shall receive and be entitled to all of the benefits, and shall bear and be subject to all of the obligations, attributable to such Member’s Space.  Except as otherwise set forth herein, FC Member shall not have a beneficial ownership interest in the NYTC Member Space and NYTC Member shall not have a beneficial interest in the FC Member Space.

ARTICLE III

CAPITAL CONTRIBUTIONS; PERCENTAGE INTERESTS

3.01Capital Contributions.

(a)Development Costs.  FC Member will be credited with a Capital Contribution for development costs incurred by NYTC Member and reimbursed by FC Member to NYTC Member on or before the date hereof which are (subject to verification by NYTC Member), for the period through October 31, 2001, as set forth on Exhibit I attached hereto, and additional development costs paid by FC Member on or before the date hereof which are (subject to verification by NYTC Member), for the period through October 31, 2001, as set forth on said Exhibit I.  In addition, FC Member will make additional cash Capital Contributions to the Company from time to time between the date hereof and the Construction Loan Closing Date as and when required to provide the Company with all funds needed to pay for development costs related to the Project, excluding (i) Site Acquisition Costs, which costs shall be paid as provided in Section 3.01(c), (ii) legal fees incurred by either Member relating to the Project and the negotiation and preparation of all documentation relating thereto, it being acknowledged said fees shall be the responsibility of the Member incurring the same but that the same shall if possible be funded or reimbursed from the Construction Loan although allocated to the Member responsible therefor, (iii) the SPU Costs, which costs shall be paid as provided in Section 

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3.01(d), (iv) brokers’ commissions incurred by either Member, which commissions shall be paid as provided in Section 3.01(e), and (v) transfer taxes and title insurance premiums incurred by the Company, which costs set forth in this clause (v) shall be funded by the Members as Capital Contributions pursuant to Section 3.01(g), or, as applicable, pursuant to Section 3.07 hereof.  Development costs related to the Project shall be covered by this Section 3.01(a) only if the same have been pre-approved in a writing signed by each Member, using a work authorization in the form attached hereto as Exhibit J (each, a “Work Authorization”) to record the initiation and approval of all work in connection with the Project (unless otherwise previously approved by the Members in a Budget or otherwise in writing, and all such costs so approved by both Members shall be development costs and covered by this Section 3.01(a), if they are to be paid prior to the Construction Loan Closing Date), it being understood that any Work Authorizations in effect prior to the date of this Agreement shall remain in effect and the costs thereof shall remain the responsibility of the Members as provided in such Work Authorizations.  Any development costs incurred by or on behalf of either Member which are not so approved by the other Member in a Work Authorization, a Budget or otherwise in writing shall be borne solely by the Member which initiated such work and this Section 3.01(a) shall not cover the same.

(b)Funding on Construction Loan Closing Date.  On the Construction Loan Closing Date, NYTC Member will make a Capital Contribution to the Company in an amount equal to NYTC Member’s Percentage Interest in all development costs funded by FC Member as of such date pursuant to Section 3.01(a), plus an amount equal to NYTC Member’s Percentage Interest in the amount of interest which would have accrued at a floating rate per annum equal to the ninety (90) day London Interbank Offered Rate (as published from time-to-time in The New York Times) plus one percent (1%) (the “Interest Rate”) from the date such development costs were funded by FC Member (including, in the case of amounts covered by the first sentence of Section 3.01(a), from the date reimbursed to NYTC Member or paid by FC Member, as applicable, prior to the date hereof) to the Construction Loan Closing Date.  Such Capital Contribution will be immediately distributed by the Company to FC Member to reimburse FC Member for NYTC Member’s Percentage Interest in the Capital Contributions made by FC Member under Section 3.01(a).

(c)Funding of Site Acquisition Costs.  Each Member will make Capital Contributions to the Company in amounts determined pursuant to this Section 3.01(c) at the times set forth herein to pay for the Site Acquisition Costs, which Capital Contributions may be made by drawings under the letters of credit referenced in the immediately succeeding paragraph.

At the time or times required under the LADA or any other documents relating thereto, each Member shall make a Capital Contribution to the Company for the Site Acquisition Costs in an amount corresponding, except as hereinafter provided in this Section 3.01(c), to its Land Share.  It is understood that the LADA will require that the Company or its Members provide draw down letters of credit to secure the  obligations of the Company under the LADA in respect of the Site Acquisition Costs and that each Member shall be responsible for the portion of such draw down letters of credit corresponding to its Land Share and the fees and costs related thereto.  In the event any increase in the total amount of the draw down letters of credit or any other security in lieu thereof is required under the LADA, the Members shall increase the amount of their respective draw down letters of credit or deliver such additional security, as the case may

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be, in proportion to their respective Land Shares, and the failure of either Member to do so shall be deemed for all purposes of this Agreement, including without limitation Section 3.04 hereof, to be a default by such party in the making of a Capital Contribution in the amount of the increase in the letter of credit or security, as the case may be, which such party failed to make.  It is further understood that the LADA will, in consideration of the funding by the Company of the Site Acquisition Costs under the LADA, provide for credits to the Company against certain amounts due under the Ground Lease, which credits shall be allocated to NYTC Member and FC Member under the Unit Leases in accordance with their respective Land Shares.  At such times as the Land Share of each Member shall change, (x) the Member whose Land Share increases (the “Increased Share”) will make a Capital Contribution to the Company on the effective date of the applicable change in an amount equal to the excess of (A) the Capital Contributions which would have been required of such Member under this Section 3.01(c) if its Land Share had been the Increased Share, over (B) the amount of Capital Contributions actually made by such Member under this Section 3.01(c), plus interest on each such excess from the date on which each such larger Capital Contribution would have been made to the date such excess amount is paid at the Interest Rate, and the Company will immediately thereafter distribute the amount of such Capital Contribution to the Member whose Land Share has decreased (the “Decreased Share”), and (y) the Members shall take whatever action is necessary in order to adjust the letters of credit then being held under LADA so that the same shall reflect the changed Land Shares.  If at any time the letters of credit are drawn upon other than in proportion to the Member’s respective Land Shares, the Member whose letter of credit was drawn upon in an amount corresponding to less than its Land Share (the difference between what was drawn and what would have been drawn had the amount corresponded to such Member’s Land Share being hereinafter referred to as a “Shortfall”) will make a Capital Contribution to the Company in an amount equal to the Shortfall, and the Company will immediately thereafter distribute the amount of such Capital Contribution to the Member whose letter of credit was drawn upon in excess of the amount corresponding to its Land Share.

On the Completion Date, FC Member will make a cash Capital Contribution to the Company in an amount (the “True-Up Payment”) equal to the excess of:

(i)the product of (A) FC Member’s Funding Share (i.e., the percentage set forth on Exhibit K attached hereto in the column marked “Funding Share” which corresponds to FC Member’s Land Share as of the Completion Date), multiplied by (B) the “Completion Date SACs Amount” (as such term is hereinafter defined), over

(ii)the product of (A) FC Member’s Land Share as of the Completion Date, multiplied by (B) the Completion Date SACs Amount.

Such Capital Contribution will immediately be distributed by the Company to NYTC Member in reimbursement for a portion of its Capital Contributions required from the Members in connection with the Site Acquisition Costs.

As used herein, the term “Completion Date SACs Amount” shall mean the total amount of Site Acquisition Costs funded by the Company as of the Completion Date, provided, however, that if as of the Completion Date, the Company has funded more than $85,560,000 in Site Acquisition Costs, the term “Completion Date SACs Amount” shall mean $85,560,000.

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From and after the Completion Date, any additional Capital Contributions required for Site Acquisition Costs shall be made by the Members in accordance with their respective Land Shares, provided, however, that notwithstanding anything to the contrary contained in this Section 3.01(c), if as of the Completion Date, the Company has funded less than $85,560,000 in Site Acquisition Costs, then from and after the Completion Date until such time as the Company has funded a total of $85,560,000 in Site Acquisition Costs, Capital Contributions required for Site Acquisition Costs shall be made by the Members in accordance with their respective Funding Shares as set forth on Exhibit K.

(d)SPU Costs.  Each Member shall make Capital Contributions to the Company for the SPU Costs, said Capital Contributions to be made pursuant to Section 3.01(g) and to be made in an amount equal to each Member’s Percentage Interest in such SPU costs; provided, however, that in no event shall the aggregate Capital Contributions of FC Member for SPU Costs exceed FC Member’s Percentage Interest in Ten Million Dollars ($10,000,000) of such SPU Costs, NYTC Member being solely responsible for any such SPU Costs in excess thereof.  The foregoing provision shall not be construed to relieve the Developer of its obligations under Section 5.1 of the Development Agreement to pay SPU Costs in excess of the line item for the SPU Costs set forth in the Final Approved Budget, subject to the terms of said Section 5.1.

(e)Broker’s Fees.  Pursuant to a separate agreement, a copy of which has heretofore been provided to FC Member, NYTC Member is obligated to pay Insignia/ESG, Inc. (the “Broker”) a brokerage commission in connection with the acquisition by the Company of its interest in the Property.  The Company will reimburse NYTC Member for a portion of said brokerage commission in the amount of $500,000 on the first date on which a portion of said brokerage commission is payable by NYTC Member to the Broker under said separate agreement, and NYTC Member will be solely responsible for all other commissions, fees and costs payable to the Broker.  On the day prior to the date on which said reimbursement is payable by the Company to NYTC Member, FC Member will make a Capital Contribution to the Company in the full amount of said reimbursement.  It is understood that, to the extent any portion of said brokerage commission is refunded by the Broker to NYTC Member, NYTC Member shall reimburse the Company for an allocable portion of such refund (equal to that percentage of $500,000 determined by dividing the amount refunded by the total brokerage fees paid pursuant to the aforesaid separate agreement) and said reimbursement shall be distributed to FC Member.  Any brokerage fees incurred by FC Member or its Affiliates shall be paid by FC Member or such Affiliates.

(f)Curtain Wall System Costs.  Each Member shall make Capital Contributions to the Company for the hard and soft costs of development and construction of the portion of the Core and Shell constituting the Curtain Wall System, said Capital Contributions to be made pursuant to Section 3.01(g) and to be made in accordance with the methodology set forth in Exhibit T attached hereto; provided, however, that in no event shall the aggregate Capital Contributions of FC Member for the trade contractor costs for the supply and installation (including consultation) of the Curtain Wall System, including any necessary mock-ups, as set forth in the Final Approved Budget (as defined in the Development Agreement) exceed FC Member’s Percentage Interest in $120 per square foot of the exterior surface areas of the Curtain Wall System to be developed pursuant to the Development Plan, NYTC Member being solely

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responsible for such trade contractor costs for the supply and installation (including consultation) of the Curtain Wall System, including any necessary mock-ups, as set forth in the Final Approved Budget in excess of said $120 per square foot amount; provided, however, that the provisions of this sentence shall not be construed to relieve the Developer of its obligations under Section 5.1 of the Development Agreement to pay costs of the Curtain Wall System in excess of the line item for the Curtain Wall System set forth in the Final Approved Budget, subject to the terms of said Section 5.1.  All other costs of the Core and Shell relating to the Curtain Wall System (e.g., soft costs, general conditions) shall be borne by the Members in accordance with the methodology set forth in Exhibit T attached hereto.

(g)Capital Contributions Prior to the Conversion Date.  From and after the date hereof to and including the Conversion Date, and except as otherwise provided in this Section 3.01, each Member shall make Capital Contributions to the Company for its respective Share of the Total Costs of the Project not financed as and when required for the completion, maintenance and operation of the Project, including, without limitation, pursuant to Tenant’s Subway Agreement, the Construction Loan documents and other applicable agreements, and if otherwise required for the Project.  Each Member’s Share of the Total Costs of the Project not financed will be determined by multiplying the principal amount of the Construction Loan by the Percentage Interest of such Member and subtracting that product from such Member’s Share of the Total Costs of the Project.  Capital Contributions required pursuant to this Section 3.01(g) shall be made within five (5) Business Days following written request by the Board of Managers or a Member therefor.

(h)Capital Contributions to Repay the Construction Loan.  On the Conversion Date, each of NYTC Member and FC Member shall make a Capital Contribution to the Company in an amount equal to its Share of the Construction Loan, which Capital Contributions shall be applied by the Company to repay the Construction Loan; provided, however, that (i) the obligation of FC Member to make such Capital Contribution may be extended, and the amount to be contributed by or on behalf of NYTC Member pursuant hereto may be increased, pursuant to Section 6.03; and (ii) in lieu of such Capital Contribution, it is understood that a Member may (in order to minimize mortgage recording taxes) cause the portion of the Construction Loan which is to be repaid from its Capital Contribution to be refinanced if the same includes the spreader of such portion of the lien of the Construction Loan to such Member’s Unit and Unit Lease and the release of the Company, the Ground Lease and the other Member and its Unit and Unit Lease from liability for, and the lien of, such portion of the Construction Loan, and so long as it also includes, in the case of refinancing of the FC Member’s Share of the Construction Loan, the release of the guaranty by The New York Times Company of the Excess NYTC Guaranteed Amount.  In the event that (x) the Construction Loan matures, by acceleration or otherwise, prior to the Conversion Date, (y) the Company is unable to arrange for refinancing or extension thereof on terms acceptable to both Members and (z) either (i) the construction lender has accelerated the Construction Loan prior to its stated maturity by a reason of a default thereunder, or (ii) the stated maturity date of the Construction Loan has occurred and the construction lender commences any action or proceeding to obtain repayment of the Construction Loan or foreclose the mortgage securing the same, or (iii) the stated maturity date of the Construction Loan has occurred and the construction lender has not commenced any action or proceeding to obtain repayment of the Construction Loan or foreclose the mortgage securing the same, but three (3) months have elapsed since the stated maturity date of the Construction Loan (unless both

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Members have agreed to extend such three (3) month period in their sole and absolute discretion), then each of NYTC Member and FC Member shall immediately make a Capital Contribution to the Company in an amount equal to its Share of the Construction Loan then outstanding and NYTC Member shall no longer have an obligation to make the NYTC Extension Loan.  In no event shall the provisions of the preceding sentence be deemed to extend the obligations of the Members under the first sentence of this Section 3.01(h) beyond the Conversion Date.

(i)Capital Contributions to Pay the Developer’s Fee.   Pursuant to the Development Agreement, the Company is obligated to pay to Developer the Developer’s Fee in connection with the construction of the Project.  NYTC Member acknowledges that part of the consideration for this Agreement is that NYTC Member shall pay such Developer’s Fee.  On the day prior to the date on which any portion of said Developer’s Fee is payable by the Company to Developer, NYTC Member shall make a Capital Contribution to the Company in the full amount of such portion of the Developer’s Fee and the Company shall immediately, without offset or deduction of any kind, pay such portion of the Developer’s Fee to Developer.

(j)  Capital Contributions for Settlement Proposals Under the Development Agreement.   If NYTC Member shall cause Owner to assign to Developer a Dispute pursuant to Section 4.4(b) of the Development Agreement, each Member shall make a Capital Contribution to the Company in an amount equal to its respective Percentage Interest (as adjusted based on the Allocation Methodology, if applicable) in the amount then payable by Owner under Section 4.4(b) of the Development Agreement and the Company shall immediately, without offset or deduction of any kind, pay such Capital Contributions to Developer.

(k) Tenant’s Subway Improvements Letter of Credit.  It is understood that the Tenant’s Subway Agreement will require that the Company or its Members provide letters of credit to secure certain obligations of the Company under the Tenant’s Subway Agreement.  Each Member shall be obligated to post a letter of credit in an amount corresponding to its Percentage Interest of the total amount of the letters of credit required under the Tenant’s Subway Agreement and to pay the fees and costs related thereto and for replacing its letter of credit if the same terminates prior to the date the letters of credit are released under the Tenant’s Subway Agreement.  If at any time the letters of credit are drawn upon other than in proportion to the Member’s respective Percentage Interests, the Member whose letter of credit was drawn upon in an amount corresponding to less than its Percentage Interest will make a Capital Contribution to the Company in an amount equal to the difference between what was drawn and what would have been drawn had the amount corresponded to such Member’s Percentage Interest, and the Company will immediately thereafter distribute the amount of such Capital Contribution to the Member whose letter of credit was drawn upon in excess of the amount corresponding to its Percentage Interest.  Amounts drawn under each letter of credit shall be treated as a Capital Contribution made by the applicable Member, and the failure by either Member to post or replace its letter of credit within ten (10) Business Days after receipt of notice will be deemed a failure by such Member to make a Capital Contribution in the amount of its required letter of credit.

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3.02Return of Capital Contributions.  No Member will have the right to the return of its Capital Contribution or any right to receive interest on its Capital Contribution, except in accordance with Article IV, Article VI or Article IX hereof.

3.03Percentage Interests.  The Percentage Interest of each Member shall be the percentage which the gross square footage of above and below grade space within the NYTC Member Space, in the case of NYTC Member, and the gross square footage of above and below grade space within the FC Member Space, in the case of FC Member, bears to the total gross square footage of above and below grade space within both of the NYTC Member Space and the FC Member Space.  In the event that the Percentage Interests change between the date hereof and the Conversion Date, the Member whose Percentage Interest increases will make a Capital Contribution to the Company on the effective date of the applicable change, an amount equal to the difference between (A) the Capital Contributions which would have been required of such Member under this Section 3.03 if its Percentage Interest had been the larger percentage and (B) the amount of Capital Contributions actually made by such Member under this Section 3.03, plus interest on each such difference from the date on which each such larger Capital Contribution would have been made to the date of such payment at the Interest Rate, and the Company will immediately distribute such amount to the Member whose Percentage Interest decreases.   As of the date of this Agreement, FC Member’s Percentage Interest is 42.0517% and NYTC Member’s Percentage Interest is 57.9483%.  The Members’ Percentage Interests will be adjusted to reflect changes from time to time in the gross square footage of above and below grade space within the FC Member Space and the NYTC Member Space, all based on the then last revised plans and specifications for the Improvements, and the Members hereby agree to enter into written confirmation of such adjusted Percentage Interests at such times within ten (10) Business Days after written request by either Member.  On the Conversion Date, the Percentage Interests will be adjusted to reflect as-built conditions based upon the final plans and specifications for the Improvements and such adjusted Percentage Interests will be confirmed in writing by the Members within ten (10) Business Days after written request by either Member.  For purposes of this Section 3.03, “gross square footage” shall be computed in the same manner as in the definition of Square Feet (set forth in Section 1.107 hereof), but inclusive of both above and below grade space.

3.04Default.

(a)If a Member (a “Defaulting Member”) fails to contribute to the Company any Capital Contribution required of it hereunder (including, without limitation, any Capital Contribution required under Sections 3.01(a), (b), (c), (d), (e), (f), (g) (h), (i), (j) or (k) hereof), and such failure shall continue for ten (10) Business Days after notice to the Defaulting Member (but no such notice or cure period shall be required in the event the Contributing Member is barred by an automatic stay or court order from giving such notice by reason of or in connection with an Act of Insolvency of the Defaulting Member) specifying such failure (with time being of the essence as to such ten (10) Business Day cure period), then the other Member (the “Contributing Member”) may at its option make a loan to the Company in an amount equal to the Capital Contribution which should have been made by the Defaulting Member.  In such event, the Contributing Member will be entitled to interest on said loan at the Default Rate, which loan will (a) be payable on demand and (b) be secured by the Defaulting Member’s interest in the Company and the Defaulting Member’s rights to all distributions under Section

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4.03 and amounts payable or other distributions on the Conversion Date under Article VI or upon dissolution under Article IX.

(b)In the event that FC Member is the Defaulting Member and the defaulted Capital Contribution (and accrued and unpaid interest thereon at the Default Rate) exceeds $5,000,000 (or prior defaulted Capital Contributions with accrued and unpaid interest thereon, when aggregated with the most recent defaulted Capital Contribution with accrued and unpaid interest thereon, exceeds $5,000,000), NYTC Member may, by written notice (the “Section 3.04 Default Notice”) given to FC Member at any time during which said defaulted Capital Contribution remains unpaid (and without limiting the rights of NYTC Member under the Development Agreement), advise FC Member that it intends to acquire the interest of FC Member (including the FC Member Space) hereunder by reason of said default.  FC Member shall have (i) thirty (30) days (in the case of the first time FC Member is the Defaulting Member), (ii) ten (10) days (in the case of the second time FC Member is the Defaulting Member) or (iii) five (5) days (in the case of the third time or anytime thereafter that FC Member is the Defaulting Member) after NYTC Member gives the Section 3.04 Default Notice to FC Member to fund the defaulted Capital Contribution (and accrued and unpaid interest accrued thereon at the Default Rate from the date such Capital Contribution was originally payable to the date paid).  If FC Member shall fail within said (x) thirty (30) days, (y) ten (10) days or (z) five (5) days, as the case may be, to fund the defaulted Capital Contribution, NYTC Member may, at its sole election, acquire the interest of FC Member in the Company without further payment by NYTC Member to any Person.   Said acquisition shall be effected automatically upon written notice given at any time after such thirty (30), ten (10) or five (5) day period, as the case may be, by NYTC Member to FC Member electing (in NYTC Member’s sole discretion) to exercise such remedy (the “Section 3.04 Assignment Notice”).   Upon the giving of the Section 3.04 Assignment Notice by NYTC Member in accordance with the terms and provisions of this Section 3.04(b), NYTC Member shall be deemed to have and shall in fact have acquired the FC Member’s interest in the Company and no further action or notice by NYTC Member or FC Member shall be required and the books and records of the Company shall be modified to reflect that the NYTC Member has acquired the FC Member’s interest in the Company.  Upon written confirmation (the “Section 3.04 Confirmation”) by FC Member to NYTC Member (in form reasonably satisfactory to NYTC Member) that NYTC Member has acquired FC Member’s interest in the Company and has no claims against NYTC Member with respect to such acquisition (FC Member acknowledging that the failure of FC Member to deliver a Section 3.04 Confirmation shall not in any way affect the acquisition by NYTC Member of FC Member’s interest in the Company), NYTC Member shall release FC Member and FCE in writing from all liabilities thereof related to the Project, other than the following liabilities (herein, the “Surviving Liabilities”):

(i)liabilities for damages to third parties except that FC Member and, to the extent that it is a party to such contract or has executed a guarantee therefor (including, without limitation, guarantees of completion), FCE, shall, if such contracts and/or guarantees as originally executed provide for such a release, be released from liability under guarantees of completion and contracts entered into with third parties relating to the Project and which have been

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entered into by the Company, by FC Member or by FCE with the prior written consent of NYTC Member, excluding liability under indemnification provisions contained in any such contracts or guarantees for events arising prior to such acquisition (NYTC Member shall be under no obligation to obtain any such release as a condition of exercising its rights hereunder; however, if NYTC Member shall acquire the interest of FC Member hereunder, NYTC Member shall be obligated to make all Capital Contributions to the Company which would have been the obligation of FC Member hereunder but for such divestiture (but not to refund any payments or Capital Contributions theretofore made by FC Member) and, if any of the foregoing contracts and/or guarantees as originally executed so requires in order to enable FCE to obtain a release from such guarantee or guarantee of completion by FCE, NYTC Member shall provide to such third party a replacement guarantee or guarantees of completion by The New York Times Company, but NYTC Member shall not be obligated to provide any other guarantees or security to obtain such a release);

(ii)liability for any guarantee of the obligations of the Developer under Section 5.1 of the Development Agreement (except that such liability shall be terminated if NYTC Member elects, in its sole discretion, to terminate the Development Agreement, provided, however, that such liability is not to be terminated if NYTC Member elects to terminate the Development Agreement by reason of Developer’s default thereunder); and

(iii)liability under any letter(s) of credit or other security then posted by or on behalf of FC Member or FCE with the Public Parties to fund the Site Acquisition Costs pursuant to the LADA, as set forth in the immediately succeeding paragraph hereof.

In the event that NYTC Member elects to acquire the interest of FC Member in the Company pursuant to this Section 3.04, the entire amount theretofore paid by or on behalf of FC Member on account of Site Acquisition Costs, together with the remaining balance of any letter(s) of credit or other security then posted by or on behalf of FC Member hereunder with the Public Parties to fund the Site Acquisition Costs pursuant to the LADA, shall be deemed liquidated damages on account of the default (in addition to the right of NYTC Member to acquire the interest of FC Member hereunder and not to reimburse FC Member for any other amounts previously expended by FC Member), and such letter(s) of credit or other security shall remain in place and shall continue to secure (and may be drawn down to fund) the Site Acquisition Costs, and FC Member shall not be reimbursed for such forfeited money except

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as hereinafter specifically set forth in this paragraph.  However, in such event, FC Member shall not be responsible to provide any additional security for the Site Acquisition Costs required to be posted after the date NYTC Member acquires FC Member’s interest hereunder (it being understood, however, that the failure by FC Member to replace any such security which is due to expire may permit the holder thereof to draw upon the same), and if, as and to the extent that NYTC Member receives credits for ESAC in excess of amounts required to reimburse NYTC Member for all Site Acquisition Costs paid by NYTC Member above NYTC Member’s allocated portion of the Site Acquisition Costs (taking into account the True-Up Payment, but only if the same has actually been paid by FC Member to NYTC Member), then to the extent that neither FC Member nor FCE otherwise owes to NYTC Member any monies pursuant to this Agreement, the Development Agreement or any other agreement, FC Member shall be reimbursed (from and to the extent of any additional credits for ESAC received by NYTC Member) for amounts paid by FC Member for the Site Acquisition Costs in excess of FC Member’s allocated portion of the Site Acquisition Costs (taking into account the True-Up Payment, but only if the same has actually been paid by FC Member to NYTC Member), but not for any other portion of FC Member’s allocated portion of the Site Acquisition Costs.  In lieu of the payments provided for in the preceding sentence, if NYTC Member, in its sole discretion, finances said credits for ESAC, NYTC Member shall upon such financing reimburse FC Member for its excess portion of the Site Acquisition Costs by paying to FC Member a share of the net proceeds of such financing in the same ratio as the share of the credits for ESAC which FC Member would have received under the preceding sentence in the absence of such a financing bears to the total amount of the credits for ESAC financed, and upon such payment to FC Member, neither the Company nor NYTC Member share have any further liability or obligation to FC Member on account of Site Acquisition Costs.

(c)  As security for NYTC Member in the event FC Member is the Defaulting Member under Section 3.04(a) or Section 3.04(b), FC Member has delivered to NYTC Member (i) a pledge and assignment agreement in substantially the form attached hereto as Exhibit L, and (ii) one or more UCC-1 financing statements evidencing such pledge and assignment.

(d)  The remedies of NYTC Member pursuant to this Section 3.04 shall be the sole and exclusive remedies of NYTC Member in the event that FC Member shall default in the making of any Capital Contribution required of it hereunder, but shall not affect or limit NYTC Member’s rights or remedies under any guaranty or indemnity given to NYTC Member by any other Person.

3.05Effect of Section 3.04 Assignment Notice. Notwithstanding anything to the contrary contained in this Agreement, including, without limitation, Article 5 hereof, upon the delivery of a Section 3.04 Assignment Notice by NYTC Member to FC Member (provided the same was delivered in accordance with Section 3.04(b) hereof), all rights of FC Member to participate in the management, control and/or operation of the Company (including, without limitation, the design, construction and financing of the Project) shall terminate immediately, and all decisions regarding management, control and/or operation of the Company (including, without limitation, all decisions regarding the design, construction and financing of the Project) shall thereafter be made solely by NYTC Member.

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3.06No Additional Contributions.  No Member shall be permitted or required to make any Capital Contributions to the Company except as provided in Section 3.01 or as otherwise agreed by both Members.  All Capital Contributions shall be made in cash unless otherwise expressly agreed to in writing by both Members.

3.07FC Member’s Put Right.  (a)  If the Delivery Date has not occurred within thirty-two (32) months after the date of the Ground Lease (the “Outside Delivery Date”), and so long as FC Member shall not be in default in the payment of any Capital Contributions required under this Article III, FC Member may elect to require NYTC Member or its designee to acquire the interest of FC Member in the Company (including, without limitation, all rights in and to the FC Member Space) (“FC Member’s Put Right”), subject to and in accordance with the terms and conditions set forth in this Section 3.07.  FC Member may exercise FC Member’s Put Right by delivering written notice of such election (“FC’s Election Notice”) to NYTC Member within ten (10) Business Days after the Outside Delivery Date if Vesting Date shall have then occurred or, if the Vesting Date shall not have occurred on or before the Outside Delivery Date, within fifteen (15) days after the earlier to occur of (i) the Vesting Date, or (ii) the date which is 36 months after the date of the Ground Lease (time being of the essence in connection with the delivery of FC’s Election Notice within such 10 Business Day or 15 day period, as the case may be), setting forth a date (the “FC Put Closing Date”) for the closing of said acquisition (the “FC Put Closing”), which FC Put Closing Date shall be not more than sixty (60) days nor less than twenty (20) days after delivery of the FC Election Notice to NYTC Member.

(b)If FC Member shall fail to timely deliver FC’s Election Notice within the required period, FC Member’s Put Right under this Section 3.07 shall be null and void and of no further force or effect.  If FC Member shall timely deliver FC’s Election Notice, then on the FC Put Closing Date:

(i)FC Member shall convey by assignment (in form reasonably acceptable to both Members) all right, title and interest of FC Member in the Company and the FC Member Space free and clear of any and all liens and encumbrances other than liens and encumbrances granted by the Company with the prior written consent of both Members;

(ii)If, as of the FC Put Closing Date, FC Member has made Capital Contributions pursuant to Section 3.01(c) hereof to fund Site Acquisition Costs pursuant to LADA:

(1)in an aggregate amount less than $21,700,000, then FC Member shall pay to NYTC Member an amount equal to (x) $21,700,000 minus (y) the amount of any Site Acquisition Costs theretofore funded by or on behalf of FC Member, said amount to be paid by FC Member to NYTC Member at the FC Put Closing; or

(2)in an aggregate amount greater than $21,700,000 and if, as of the FC Put Closing Date, the total Site Acquisition Costs funded by the Company are less than or equal to $85,560,000, then NYTC Member shall pay to FC Member an amount (the “FC Member Excess Land Payment”) equal to (1) the amount of any Site Acquisition Costs theretofore funded by or on behalf of FC Member minus (2) $21,700,000, said FC Member Excess Land Payment to be paid by NYTC Member to FC Member at the FC Put Closing; or

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(3)in an aggregate amount greater than $21,700,000 and if, as of the FC Put Closing Date, the total Site Acquisition Costs funded by the Company are greater than $85,560,000, then NYTC Member shall pay to FC Member the FC Member Excess Land Payment as follows:

(A)at the FC Put Closing, NYTC Member shall pay to FC Member an amount equal to (1) the FC Member Excess Land Payment, minus (2) an amount (the “FC Member ESAC Amount”) equal to the product of (x) FC Member’s Land Share immediately prior to the FC Put Closing, multiplied by (y) the total ESAC which have been paid by the Company as of the FC Put Closing Date (i.e., the excess, if any, of the total Site Acquisition Costs funded by the Company as of the FC Put Closing Date over $85,560,000); and

(B)If, as and when the Company actually receives credits for ESAC, then until such time as FC Member has received a total payment pursuant to this clause (B) equal to the FC Member ESAC Amount (together with any interest accruing under the LADA from and after the FC Put Closing Date on the uncredited portion of the FC Member ESAC Amount), NYTC Member shall pay to FC Member the “FC Member ESAC Percentage” (as hereinafter defined) of each such credit for ESAC received by the Company.  The term “FC Member ESAC Percentage” shall mean a fraction, expressed as a percentage, the numerator of which is the FC Member ESAC Amount and the denominator of which is the total of all ESAC under the LADA.  NYTC Member shall cause The New York Times Company to provide to FC Member a guaranty (in a form similar to that attached hereto as Exhibit O) of NYTC Member’s obligation to pay the FC Member ESAC Amount (together with any interest accruing under the LADA from and after the FC Put Closing Date on the uncredited portion of the FC Member ESAC Amount), provided, however, that neither NYTC Member nor NYTC shall have any liability to FC Member with respect to the FC Member ESAC Amount if and to the extent NYTC Member fails to receive the corresponding ESAC credit for any reason whatsoever.

In lieu of the payments provided for in this clause (B) of this Section 3.07(b)(ii)(3), if NYTC Member, in its sole discretion, finances said credits for ESAC, NYTC Member shall, upon such financing, reimburse FC Member for the FC Member ESAC Amount by paying to FC Member the FC Member ESAC Percentage of the net proceeds of such financing, and upon such payment, neither the Company nor NYTC Member shall have any further obligation to FC Member on account of any unpaid balance of the FC Member ESAC Amount;

(c) NYTC Member shall pay to FC Member the amount NYTC Member would have contributed pursuant to Section 3.01(b) as if the date of the FC Put Closing had been the Construction Loan Closing Date;

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(d) FC Member shall pay all transfer taxes, if any, in connection with such conveyance, shall indemnify NYTC Member against any future assessment of transfer taxes in connection with such conveyance and shall execute all required transfer tax returns;

(e) NYTC Member shall release in writing and shall cause The New York Times Company and the Company to release in writing FC Member, Developer, FCE and ING Vastgoed from all obligations and liabilities of FC Member, Developer, FCE and ING Vastgoed to NYTC Member, The New York Times Company and the Company.  FC Member shall release in writing and shall cause Developer, FCE and ING Vastgoed to release in writing the Company, NYTC Member and The New York Times Company from all obligations and liabilities of the Company, NYTC Member and The New York Times Company to FC Member, Developer, FCE and ING Vastgoed;

(f) NYTC Member shall cooperate in obtaining the release of FC Member, FCE, Developer and ING Vastgoed from all obligations and liabilities relating to the Project, including (i) to the Public Parties (by, among other things, replacing any letters of credit and/or guarantees posted or given by or on behalf of FC Member, FCE or ING Vastgoed) and (ii) to third parties under contracts and/or guarantees if such contracts and/or guarantees as originally executed provide for such a release and have been entered into by the Company, FC Member, FCE or ING Vastgoed with the prior written consent of NYTC Member, but excluding liability under indemnification provisions contained in any such contracts and/or guarantees for obligations and liabilities arising prior to such acquisition; and

(g)  For illustration purposes only, Exhibit G hereto sets forth examples of the calculations described in Section 3.07(b)(ii)(3).

(h)  Notwithstanding anything to the contrary contained in this Section 3.07, in the event FC Member has timely delivered FC’s Election Notice but the Vesting Date has not occurred on or before the date which is ten (10) days prior to the date which would otherwise have been the FC Put Closing Date, the FC Put Closing Date may (at FC Member’s discretion by written notice, hereinafter called a “Closing Deferral Notice”, given to NYTC Member on or before the date which is five (5) days prior to the date which would otherwise have been the FC Put Closing Date) be deferred until a date selected by FC Member which is not later than thirty (30) days after the Vesting Date.  If FC Member elects to defer the FC Put Closing Date in accordance with this subsection (h), then from and after the giving of a Closing Deferral Notice, (i) FC Member shall thereafter not be responsible to make any Capital Contributions pursuant to this Agreement, (ii) FC Member shall not be entitled to participate in any vote or decision to be made by the Members pursuant to this Agreement including, without limitation, any Company action described in Section 5.07(a) hereof, (iii) FC Member shall not be entitled to (and shall not) exercise any other rights or take any action as a Member hereunder or on behalf of the Company and FC Member shall indemnify and hold harmless NYTC Member and NYTC against any losses, claims, damages or liabilities (including reasonable legal or other expenses reasonably incurred in defending against any such loss, claim, damages or liability) arising out of FC Member’s breach of the provisions of this clause (iii), and (iv) provided and for so long as FC Member does not exercise any rights or take any action as a Member hereunder or on behalf of the Company, NYTC Member shall indemnify and hold harmless FC Member, Developer, FCE and ING Vastgoed against any losses, claims, damages or liabilities (including reasonable legal

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or other expenses reasonably incurred in defending against any such loss, claim, damages or liability) arising out of NYTC Member’s actions or inactions on behalf of the Company during the period between the giving of a Closing Deferral Notice and the FC Put Closing Date. 

In the event that FC Member has timely delivered FC’s Election Notice but the Vesting Date has not occurred on or before the date which is five (5) days prior to the FC Put Closing Date, and FC Member does not elect to defer the FC Put Closing Date as hereinabove provided, FC Member may nevertheless elect to defer, until the date which is thirty (30) days after the Vesting Date, the payment required to be made to NYTC Member at the FC Put Closing pursuant to Section 3.07(b)(ii)(1) hereof (the “FC Put Closing Payment”) by giving written notice of such election at least five (5) days prior to the FC Put Closing Date and in such event the FC Put Closing shall proceed and FC Member shall deposit with NYTC Member at the FC Put Closing a letter of credit in form reasonably acceptable to NYTC Member in the amount of the FC Put Closing Payment, which letter of credit shall be held by NYTC Member as security for the payment of the FC Put Closing Payment.  In such event, if the FC Put Closing Payment is not thereafter paid to NYTC Member on or before the date which is thirty (30) days after the Vesting Date, NYTC Member may draw upon such letter of credit in satisfaction of the FC Put Closing Payment.  Upon payment by FC Member of the FC Put Closing Payment to NYTC Member, or, upon termination of the Ground Lease and the LADA as may be permitted thereunder by reason of the failure of the Vesting Date to have occurred, whichever is earlier, such letter of credit shall immediately be returned to FC Member.

(i)  Notwithstanding anything to the contrary contained in this Section 3.07, if the Put Closing Date shall be deferred pursuant to Section 3.07(h) and the Company shall thereafter exercise its right to terminate the LADA and the Ground Lease as may be permitted thereunder, FC’s Election Notice theretofore given by FC Member shall be deemed void and of no effect upon the date that the Ground Lease and LADA are actually terminated by reason of the exercise of such right.  In such event, the cash, letter of credit or guaranty deposited with NYTC Member pursuant to Section 3.07(h) shall be immediately returned to FC Member.

3.08No Third Party Rights.  Nothing contained in this Article III nor any other provision of this Agreement shall be construed to create any rights or benefits in any Person, other than the Members, and their respective legal representatives and permitted transferees, successors and assigns, subject to the limitations on transfer contained herein.

ARTICLE IV

CAPITAL ACCOUNTS; ALLOCATIONS AND DISTRIBUTIONS

4.01Capital Accounts.  The Company shall maintain a separate capital account (“Capital Account”) for each Member in accordance with federal income tax accounting principles and Treasury Regulation section 1.704-1(b)(2)(iv).  Notwithstanding the foregoing or any other provision of this Agreement, the Members intend that, for federal, state and local tax purposes, each Member, rather than the Company, shall from inception of the Ground Lease, be treated as owning one hundred percent (100%) of the NYTC Member Space, in the case of NYTC Member, and the FC Member Space, in case of FC Member.

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4.02Allocations.  (a)Each Member shall be allocated one hundred percent (100%) of every item of income, gain, loss, deduction and credit that is attributable to such Member’s Space using the Allocation Methodology.  No Member shall be allocated any portion of any item of income, gain, loss, deduction or credit that is attributable to the other Member’s Space using the Allocation Methodology.  To the extent that the Company accrues or incurs any item that is attributable to Company property, rather than to a particular Member’s Space, such item shall be allocated between the Members in accordance with their respective Percentage Interests, and in conformity with Code Section 704 and the regulations promulgated thereunder.  Where there is any federal, state or local tax election that affects solely a particular Member’s Space, and has no current or future tax effect on the other Member, the Member owning such Member’s Space shall have the sole authority to make, or cause the Company to make, such election.  All other elections shall be made by the TMP in its discretion.

(b)Deficit Capital Account and Nonrecourse Debt Rules.  Notwithstanding the general allocation rules set forth above, the following special allocation rules shall apply under the circumstances described therein.

(1)Limitation on Loss Allocations.  The Net Losses allocated to any Member pursuant to Section 4.02(c) with respect to any fiscal year shall not exceed the maximum amount of Net Losses that can be so allocated without causing such Member to have a Capital Account Deficit at the end of such fiscal year.  All Net Losses in excess of the limitation set forth in this Section 4.02(d)(1) shall be allocated to Members which are not subject to the foregoing limitation.

(2)Qualified Income Offset.  If in any fiscal year a Member unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), and such adjustment, allocation or distribution causes or increases a Capital Account Deficit for such Member, then, before any other allocations are made under this Agreement or otherwise, such Member shall be allocated items of income and gain (consisting of a pro rata portion of each item of Company income, including gross income and gain) in an amount and manner sufficient to eliminate such Capital Account Deficit as quickly as possible.

(3)Company Minimum Gain Chargeback.  If there is a net decrease in Company Minimum Gain during any Company fiscal year, each Member shall be allocated items of income and gain for such fiscal year (and, if necessary, for subsequent fiscal years) in proportion to and to the extent of, an amount equal to such Member’s share of the net decrease in Company Minimum Gain, in accordance with Treasury Regulation section 1.704-2(f) and (g).

(4)Member Nonrecourse Debt Minimum Gain Chargeback.  If there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Company fiscal year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation section 1.704-2(i), shall be specially allocated items of Company income and gain for such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal to such Member’s share of the net decrease in Member

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Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation section 1.704-2(i).

(5)Company Nonrecourse Deductions.  Company Nonrecourse Deductions for any Company fiscal year shall be specially allocated among the Members in proportion to their Percentage Interests.

(6)Member Nonrecourse Deductions.  Any Member Nonrecourse Deduction for any Company fiscal year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation section 1.704-2(i).

(c)Allocation of Nonrecourse Liabilities.  Pursuant to Treasury Regulations Section 1.752-3(a), Company nonrecourse liabilities shall be allocated among the Members as follows:

(1)First, to each Member to the extent of its respective share of Company Minimum Gain.

(2)Then, to each Member in the amount of any taxable gain that would be allocated to that Member under Code section 704(c) or in connection with a revaluation of Company property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(f) or (r), if the Company disposed of (in a taxable transaction) all Company property subject to one or more nonrecourse liabilities of the Company in full satisfaction of such liabilities and for no other consideration.

(3)Then, any portion of excess nonrecourse liabilities of the Company relating to either the FC Member Space or the NYTC Member Space, utilizing the Allocation Methodology, shall be allocated to the FC Member or the NYTC Member, respectively.

(4)Then, the balance of any excess nonrecourse liabilities will be allocated among the Members in accordance with their Percentage Interests.

4.03Distributions.  The Board of Managers shall make distributions to the Members, as follows:

(a)Net Cash Flow; Net Financing Proceeds; and Net Sales Proceeds.  The Company shall distribute the Net Cash Flow, Net Financing Proceeds and Net Sales Proceeds of the Company to the Members from time to time as determined by the Board of Managers, but not less often than annually, in the following order of priority:

(1)Net Cash Flow, Net Financing Proceeds and Net Sales Proceeds received in cash related to the NYTC Member Space will be distributed to NYTC Member, and Net Cash Flow, Net Financing Proceeds and Net Sales Proceeds related to the FC Member Space will be distributed to FC Member, using the Allocation Methodology.

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(2)All other Net Financing Proceeds and Net Sales Proceeds received in cash will be distributed in proportion to and to the extent of the respective positive Capital Account balances of the Members and then in accordance with their Percentage Interests.

If all Members so determine, Net Sales Proceeds received in the form of deferred payment obligations or one or more purchase money notes may be distributed to the Members in kind in the same proportions as set forth in the preceding subsections 4.03(a)(1) and (2), prior to the receipt of cash proceeds thereof, together with any security or collateral therefor.  Unless the Members so determine to distribute such assets in kind, Net Sales Proceeds received in such form shall be retained by the Company until paid.

(b)Signage/Antennae Revenues.   Until the Completion Date and subject to Section 5.10,  the Company will distribute Signage/Antennae Revenues to the Members in accordance with their respective Percentage Interests from time to time as determined by the Board of Managers, but not less often than annually.  After the Completion Date, Signage/Antennae Revenues will be distributed in accordance with Section 5 of Article IX of the Condominium Declaration, whether or not the same has been recorded.

(c)Defaulted Capital Contributions.  It is understood that any distribution to be made pursuant to this Section 4.03 to a Defaulting Member shall be payable to the Contributing Member in respect of the loan which it has made to the Defaulting Member pursuant to Section 3.04, but only to the extent of amounts outstanding under such loan.  Any excess thereof shall be deposited into an interest-bearing account maintained by the Company to be applied to any Capital Contributions required from the Defaulting Member over the twelve (12) month period following the deposit made pursuant to this Section 4.03.  To the extent any amount as so deposited is not required for a Capital Contribution within said twelve (12) month period, then the amount so deposited shall be distributed to the Defaulting Member, provided, however, that FC Member shall in no event be entitled to any distributions hereunder from and after the date NYTC Member sends a Section 3.04 Assignment Notice, provided the same is given in accordance with Section 3.04(b) hereof.

(d)Payments Under Developer’s Errors and Omissions Policy.  In the event the Company receives a payment made by or on behalf of Developer which shall have been reduced by reason of participation by any Affiliate of Developer directly or indirectly in the ownership of the Company (including, without limitation, any direct payment to the Company by the insurer pursuant to that certain errors and omissions policy procured by Developer under the Development Agreement), then the distribution of such payment to the Members shall be adjusted to reflect such reduction, NYTC being entitled to distribution of the portion of such payment which would have been distributable to it had such payment not been reduced and the balance of such payment shall be distributed to FC Member for the benefit of holders of direct or indirect interest therein which are not Affiliates of Developer.

ARTICLE V

MANAGEMENT; BOARD OF MANAGERS; ACTIVITIES OF MEMBERS

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On and prior to the Conversion Date, the Company shall be managed (and all decisions regarding the Property and the Project shall be made) in accordance with the provisions of this Agreement.  After the Conversion Date, the Company shall be managed (and all decisions regarding the Property and the Project shall be made) in accordance with the Condominium Declaration.

5.01Appointment and Removal of Managers; No Compensation.

(a)The Board of Managers of the Company shall be comprised of one manager appointed by NYTC Member and one manager appointed by FC Member (each, a “Manager”, and together, the “Managers”).  NYTC Member hereby appoints David A. Thurm as its initial Manager hereunder and FC Member hereby appoints MaryAnne Gilmartin as its initial Manager hereunder.  Each of NYTC Member and FC Member may revoke its appointment of a Manager and appoint a successor Manager in lieu thereof by written notice given to the other Member, said revocation and appointment to be effective only upon receipt by said other Member of notice thereof.  The Board of Managers shall perform the duties set forth in this Agreement, subject to and in accordance with the terms hereof.

(b)The Board of Managers shall not be entitled to receive any compensation for the performance of its duties and obligations as the Board of Managers under this Agreement unless otherwise determined by the Members.

5.02Rights and Powers of the Board of Managers.  The Board of Managers shall take no action except those actions which have been unanimously approved by the Managers.  Except as otherwise provided in this Agreement and specifically subject to Section 5.07, the Board of Managers shall have exclusive management and control of the business and affairs of the Company, and shall have the exclusive full power and authority to manage, conduct and operate the Company’s business, including, without limitation, the following specific powers:

(a)to take any and all actions which it deems necessary or advisable in connection with the business of the Company, including, without limitation, opening, maintaining and closing Company bank accounts and entering into any contract, agreement, undertaking or transaction;

(b)to register or qualify the Company under any applicable federal or state laws, or to obtain exemptions under such laws, if such registration, qualification or exemption is deemed necessary by the Board of Managers;

(c)to cause to be paid on or before the due date thereof all amounts due and payable by the Company to any Person;

(d)to borrow funds in the name of and on behalf of the Company and to secure any such loans with the Company’s properties and assets by the granting of mortgages or other security interests;

(e)to prepay, in whole or in part, refinance, recast, increase, modify or extend any mortgage which may affect any of the properties or assets owned by the Company, and, in

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connection therewith, to execute for and on behalf of the Company any extensions, renewals or modifications of such mortgages on any such properties or assets;

(f)to employ, discharge, contract with or terminate contracts with such agents, employees, hotel operators, managers, accountants, attorneys, consultants and other Persons as it deems necessary or appropriate to carry out the business and affairs of the Company, to appoint officers of the Company and define their duties and authority, and to pay such fees, expenses, wages and other compensation to any such Person as it shall deem appropriate;

(g)to comply with the LADA, the Ground Lease, DUO and Tenant’s Subway Agreement;

(h)to pay any and all fees and operating expenses (excluding Board of Manager’s overhead) and to make any and all expenditures which it deems necessary or appropriate in connection with the organization of the Company, the management of the affairs of the Company and the carrying out of its obligations and responsibilities under this Agreement;

(i)to commence or defend litigation related to the Company or any Company assets;

(j)to make any financial accounting decisions for or on behalf of the Company;

(k)to assume and exercise any and all rights, powers and responsibilities granted to members under the LLC Law;

(l)to sell the Company’s properties and assets and/or terminate the Company’s business; and

(m)to execute and deliver, in the name and on behalf of the Company, any documents and instruments which it deems necessary or appropriate in connection with the above rights and powers.

5.03Obligations of the Board of Managers.

(a)The Board of Managers shall take all action which may be necessary or appropriate for the development, maintenance, preservation and operation of the properties and assets of the Company in accordance with the provisions of this Agreement and applicable laws and regulations.

(b)The Board of Managers shall be under a duty to perform its duties in good faith, using due care and reasonable diligence in the management of the Company’s business and shall conduct the affairs of the Company in good faith and in accordance with the terms of this Agreement and in a manner consistent with the purposes set forth in Section 2.03.

(c)The Board of Managers shall take such action as may be necessary or appropriate in order to license, register or qualify the Company under the laws of any jurisdiction

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in which the Company is doing business or owns or uses property or in which such licensing, registration or qualification is necessary in order to protect the limited liability of the Members or to continue in effect such licensing, registration or qualification.  If required by law, the Board of Managers shall file or cause to be filed for recordation in the office of the appropriate authorities of the State of New York, and in the proper office or offices in each other jurisdiction in which the Company is licensed, registered or qualified, such documents as are required by the applicable statutes, rules or regulations of any such jurisdiction or as are necessary to reflect the identity of the Members and their Percentage Interests.

5.04Liability of the Board of Managers.

(a)Except as otherwise specifically provided herein or under the LLC Law, neither the Board of Managers, any Affiliate thereof nor the members, partners, directors, officers, shareholders, employers, agents or representatives of the Board of Managers nor such Affiliate (other than the members, partners, directors, officers, shareholders, employees, agents or representatives of any Affiliate of the Board of Managers which may be performing management and other related services for the Company, as to which Persons the terms of the applicable management or other agreement shall apply) shall be liable, responsible or accountable in damages or otherwise to the Company or to any Member for any act or omission performed or omitted on behalf of the Company in good faith and in a manner reasonably believed by it to be within the scope of the authority granted to it by this Agreement and in the best interests of the Company, unless a court of competent jurisdiction, upon entry of a final judgment, shall find that such act or omission was due to willful misconduct, gross negligence, bad faith, fraud or breach of fiduciary duty.

(b)Except as otherwise specifically provided herein or under the LLC Law, the Board of Managers shall not be personally liable for the return or payment of all or any portion of the Capital Contribution of or distributions to any Member (or any permitted successor, assignee or transferee thereof), it being expressly agreed that any such return of Capital Contribution or distributions pursuant to this Agreement shall be made solely from the assets of the Company (which assets shall not include any right of contribution from the Board of Managers).

5.05Indemnification of Members and the Board of Managers.  The Company shall indemnify and exonerate to the fullest extent permitted by law (subject to the limitations of this Section 5.05) each Member, the Board of Managers and each member, partner, director, officer, shareholder, employee, agent and representative thereof, against any losses, claims, damages or liabilities (including reasonable legal or other expenses reasonably incurred in defending against any such loss, claim, damages or liability), joint or several, arising out of such Member’s or the Board of Managers’ activities for or on behalf of the Company performed in good faith and in a manner reasonably believed by it to be within the scope of the authority granted to it by this Agreement and in the best interests of the Company, except for acts which are determined by a court of competent jurisdiction, upon entry of a final judgment, to constitute gross negligence, bad faith, willful misconduct, fraud or breach of fiduciary duty.  The Company shall advance and pay the expenses reasonably incurred by a Person indemnified hereunder in settling a claim or in defending a civil action brought by a third party that is not a Member prior to its final disposition if such action relates to duties and services performed by the indemnified Person on behalf of the

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Company, upon receipt of an undertaking of the indemnified Person to repay such expenses if it is adjudicated not to be entitled to indemnification.  In no event, however, shall any Member be liable for the indemnification set forth herein or required to make a Capital Contribution to the Company in order to enable the Company to satisfy its obligations under this Section 5.05.

5.06Rights of Members.  Except as specifically set forth herein, no Member shall (i) be permitted to take part in the management, control or conduct of the business or affairs of the Company; (ii) have the right to vote on any matters; (iii) have the authority or power in its capacity as a Member to act as agent for or on behalf of the Company or any other Member, to do any act which would be binding on the Company or any other Member, or to incur any expenditures or indebtedness on behalf of or with respect to the Company or any other Member or (iv) have any liability or obligation to any Person (including, without limitation, any member of the Board of Managers) by reason of this Agreement or the performance of its obligations hereunder.

5.07Restrictions on the Board of Managers; Directions by Members.  (a) Without the approval of all of the Members but subject to Section 3.05, Section 5.07(b) and Section 5.07(c) and the authority of the TMP under Articles IV and VII, the Board of Managers shall not have authority on behalf of the Company to take any of the following actions:

(i)commit any act or fail to act, in either case in contravention of this Agreement;

(ii)enter into any settlement on behalf of or confess a judgment against the Company or cause the Company to seek protection against creditors under any bankruptcy law or in any court;

(iii)convert property of the Company to its own use, or assign any rights in specific property of the Company for other than a purpose as permitted by this Agreement;

(iv)execute or deliver any general assignment for the benefit of the creditors of the Company or take any action that would constitute an Act of Insolvency with respect to the Company;

(v)contract with or make payments to the Board of Managers or any Affiliate of the Board of Managers, except as otherwise permitted under this Agreement;

(vi)admit any Person as a member or issue such Person a membership interest in the Company;

(vii)adopt, amend, restate or revoke the articles of organization or this Agreement;

(viii)approve the dissolution of the Company;

(ix)approve a merger or consolidation of the Company with another entity;

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(x)approve any change to the Development Plan or the Schematic Design Plans or the Schematic Design Estimate;

(xi)sell or otherwise transfer any property of the Company;

(xii)borrow monies, on a secured or unsecured basis, or enter into documentation with regard to such borrowing, or any amendments thereto;

(xiii)adopt any Budget or any amendment thereto (including, without limitation, the Final Approved Budget under the Development Agreement or the Total Costs of the Project as included in the budget for the Construction Loan) or incur any cost not included within a Budget;

(xiv)enter into an architect’s agreement with the Architect (or any replacement thereof) as architect for the Core and Shell or any amendment to such architect’s agreement or termination thereof, or commence any action or proceeding to enforce the Company’s rights under the same;

(xv)solicit bids from any construction managers or contractors for any portion of the Core and Shell, or enter into the GMP Contract or any other documentation with a construction manager or contractor with regard to its retention for the Core and Shell or any amendment thereto or termination thereof, or commence any action or proceeding to enforce the Company’s rights under the same;

(xvi)enter into the Ground Lease, the LADA, the Condominium Declaration, any other agreements with Governmental Authorities, or any other material agreement relating to acquisition of the Property, or any amendment to or termination of any of the foregoing (including, without limitation, termination of the Ground Lease pursuant to Section 2.1 thereof and termination of the  LADA pursuant to Section 2.02(a)(iii) thereof), or commence any action or proceeding to enforce the Company’s rights under the same;

(xvii)enter into any contract or commitment on behalf of the Company, which requires or may require under any contingency the expenditure by the Company of more than $500,000 in the aggregate or $250,000 in any calendar year, unless expressly covered in a Work Authorization or a Budget.

If the Board of Managers shall seek approval by the Members of a proposal regarding any of the foregoing matters set forth in clauses (i) through (xviii) of this Section 5.07 (a), each Member shall notify the Board of Managers in writing within seven (7) Business Days of its receipt of such proposal if it requires additional information (specifying the required information) with respect to the proposal.  Within ten (10) Business Days after receiving all material requested information with respect to the proposal, or within ten (10) Business Days after receipt of the request for approval of such proposal (if no additional information has been timely requested), each Member shall notify the Board of Managers in writing of its approval or disapproval of the proposal.  If a Member shall fail to disapprove such a proposal within said ten (10) Business Days, the proposal shall be deemed approved by said Member.  The provisions of this paragraph shall be effective only if the applicable notice requesting approval contains the following language in bold print:

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“FAILURE TO DISAPPROVE SUCH PROPOSAL WITHIN 10 BUSINESS DAYS SHALL BE DEEMED YOUR APPROVAL OF SUCH PROPOSAL.”

(b)Without the prior written approval of NYTC Member, the Board of Managers shall not have the authority on behalf of the Company to take, and NYTC Member shall have the sole right on behalf of the Board of Managers and the Company, without the approval of FC Member, to direct, and to cause its appointed Manager to implement and consummate, any of the following actions:

(i)entering into any amendment of the Development Agreement or a termination thereof, or commencing any action or proceeding to enforce the Company’s rights under the same;

(ii)engaging a replacement Developer and entering into a replacement Development Agreement with such replacement Developer, subject to the terms of the Recognition Agreement;

(iii)making any decision regarding the design, supply and installation of (including the hiring of consultants with respect to) the Curtain Wall System;

(iv)making any decision or taking any action relating to the construction and design of the interior portions of the SPU and other interior portions of the NYTC Member Space if such decision or action does not, except to an immaterial extent, affect the FC Member Space or the common areas (i.e. such decisions or actions (A) do not, except to an immaterial extent, involve a change to the floor plates, core fire stairs, building MEP or vertical transportation systems in the FC Member Unit, (B) do not, except to an immaterial extent, involve a change to the floor plates, core fire stairs, building MEP or vertical transportation systems in the common areas, (C) do not increase the portion of any item of the Schematic Design Estimate allocated to FC Member unless NYTC Member shall pay such increased cost, and (D) do not delay the construction schedule for the Core and Shell or the leasehold improvements in the FC Member Space);

(v)selecting a replacement architect for the Core and Shell, if necessary, such selection to be made by NYTC Member after consultation with FC Member;

(vi)entering into any lease of space within the NYTC Member Space (subject, however, to any restrictions on leasing set forth in the Condominium Declaration which shall be applicable whether or not it has been recorded) or any amendment thereto or termination thereof, or commencing any action or proceeding to enforce the Company’s rights under the same;

(vii)approving documentation not listed in Section 5.07(a) to the extent such documentation increases NYTC Member’s liabilities hereunder or decreases its rights hereunder;

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(viii)taking any action on behalf of Owner pursuant to Section 4.4(b) of the Development Agreement with respect to a Settlement Proposal (as defined therein); or

(ix)any action or decision within the authority of NYTC Member as TMP pursuant to this Agreement.

(c)Without the prior written approval of FC Member, but subject to Section 3.05 hereof, the Board of Managers shall not have the authority on behalf of the Company to take, and FC Member shall have the sole right on behalf of the Board of Managers and the Company without the approval of NYTC Member to direct, and to cause its appointed Manager to implement and consummate, any of the following actions:

(i)entering into any lease of space within the FC Member Space (subject, however, to any restrictions on leasing set forth in the Condominium Declaration which shall be applicable whether or not it has been recorded) or any amendment thereto or termination thereof, or commencing any action or proceeding to enforce the Company’s rights under the same;

(ii)making any decision or taking any action relating to the construction and design of the interior portions of the Retail Space and other interior portions of the FC Member Space if such decision or action does not, except to an immaterial extent, affect the NYTC Member Space or any common areas (i.e. such decisions or actions (A) do not, except to an immaterial extent involve a change to the floor plates, core fire stairs, building MEP or vertical transportation systems in the NYTC Member Unit, (B) do not, except to an immaterial extent involve a change to the floor plates, core fire stairs, building MEP or vertical transportation systems in the common areas, (C) do not increase the portion of any item of the Schematic Design Estimate allocated to NYTC Member unless FC Member shall pay such increased cost, and (D) do not delay the construction schedule or Core and Shell or the leasehold improvements in the NYTC Member Space); or

(iii)approving documentation not listed in Section 5.07(a) to the extent such documentation increases FC Member’s liabilities hereunder or decreases its rights hereunder.

(d)The Board of Managers shall (i) follow the unanimous written direction of the Members as to any matter covered by Section 5.07(a), (ii) follow the written directions of NYTC Member alone as to any matter covered by Section 5.07(b) (it being understood that the Company shall not engage in the development of interior portions of the NYTC Member Space), and (iii) follow the written directions of FC Member alone as to any matter covered by Section 5.07(c) (it being understood that the Company shall not engage in the development of the interior portions of the FC Member Space).  Each of NYTC Member and FC Member shall provide to the other a copy of any written direction given by it pursuant to the foregoing clauses (ii) and (iii).

(e)The Members shall use reasonable efforts to resolve any disputes which may arise as to the scope, overall design intent and standards of the proposed Improvements to

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be constructed pursuant to the Development Plan (excluding, however, the matters referred to in paragraphs (b) and (c) of this Section 5.07).  With respect to such disputes and, in particular, design issues which affect the operation of the Improvements as the headquarters of the New York Times Company (including, without limitation, the MEP systems) and budget issues related thereto, if either FC Member or NYTC Member believes an impasse has been reached, the dispute will be referred to Michael Golden on behalf of NYTC Member and Bruce Ratner on behalf of FC Member to attempt to reach a mutually agreeable resolution. If either of these individuals believes that a mutually agreeable resolution cannot be reached, NYTC Member shall determine the resolution of such dispute (and FC Member shall be bound thereby); provided, however, that if NYTC Member in its sole discretion elects to resolve such dispute by changing an item set forth in the Schematic Design Plans, such change shall not (w) except to an immaterial extent involve a change to the floor plates, core fire stairs, building MEP or vertical transportation systems in the FC Member Space, (x) except to an immaterial extent involve a change to the floor plates, core fire stairs, building MEP or vertical transportation systems in the common areas, (y) increase the cost of any line item set forth in the Schematic Design Estimate and allocated to FC Member unless NYTC Member shall pay such increased costs (except as set forth in paragraph (f) of this Section 5.07) and (z) except to an immaterial extent, delay the construction schedule for the Core and Shell or the leasehold improvements in the FC Member Space.

(f)The Members shall use reasonable efforts to minimize the Total Cost of the Project consistent, however, with the quality and scope of the Core and Shell as set forth in the Schematic Design Plans.  The Members have identified certain portions of the Core and Shell (the “Selected Building Elements”) as set forth in Exhibit U attached hereto with regard to which (subject to the limitations set forth herein) it may be appropriate for upgrades in design scope and specifications, but only if there are sufficient costs savings actually realized by the Company under the aggregate cost of the Core and Shell as set forth in the Schematic Design Estimate which may be applied to the additional costs related to such upgrades in design and specifications.  Accordingly, to the extent that there shall be a cost savings actually realized by the Company (based upon expenditures incurred and contracts executed) with respect to the Schematic Design Estimate, including, without limitation, by reason of reductions in the scope of work reflected in the Schematic Design Estimate heretofore agreed to by the Members, the design scope and specifications of the Selected Building Elements may be modified (as long as such changes do not violate clause (w) or (x) of Section 5.07(e) hereof), provided that as to any one such Selected Building Element the increased cost shall not exceed the resolution dispute cap amount (i.e., the “Upset Amount”) set forth therefor in Exhibit U and that as to all such Selected Building Elements the aggregate cost increases permitted pursuant to this paragraph (f) shall in no event exceed the aggregate amount of cost savings actually realized by the Company (based upon contracts executed and expenditures incurred) under the Schematic Design Estimate.  It is understood that if there shall be a reasonably anticipated cost savings with respect to the Schematic Design Estimate, then the Company shall obtain bids as to proposed modifications to design scope and specifications of the Selected Building Elements as alternates, which bids may then be selected by NYTC Member if costs savings, taking into account all associated costs to the Company, are actually realized such that any said modifications are permitted hereunder, provided that NYTC Member may not select such alternate bids if such work shall cause a delay in the scheduled Completion Date.  All disputes relating to upgrades in the design scope and specifications of the Selected Building Elements shall be resolved as set forth in Section 5.07(e)

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of this Agreement, except that clause (y) thereof shall apply only to the extent that such increased costs exceed the lesser of the resolution dispute cap amount set forth in Exhibit U as to any Selected Building Element or in the aggregate the cost savings actually realized by the Company and not theretofore applied to other Selected Building Elements.  It is understood that costs incurred by the Company as a result of modifications made at the election of NYTC Member shall, to the extent the same do not exceed the resolution dispute cap amount set forth therefor in Exhibit U, be shared by the Members in accordance with their Percentage Interests (as adjusted based on the Allocation Methodology, if applicable).  Costs incurred by the Company as a result of modifications made at the election of NYTC Member in excess of the resolution dispute cap amount set forth therefor in Exhibit U or to the extent not funded by realized cost savings pursuant to this Section 5.07(f) shall be borne solely by NYTC Member.

5.08Development Plan; Improvements; Use and Leasing; Construction Guarantees.

(a)The Members intend that the Property will be developed pursuant to the Development Plan.  It is understood that the Company shall construct only the Core and Shell, with all further work and improvements in the NYTC Member Space to be the sole responsibility and expense of NYTC Member and all further work and improvements in the FC Member Space to be the sole responsibility and expense of FC Member.

(b)FC Member shall be solely responsible for the improvement, use and leasing of the FC Member Space and all costs and liabilities incurred by the Company in connection therewith.  NYTC Member shall be solely responsible for the improvement and use of the NYTC Member Space and all costs and liabilities incurred by the Company in connection therewith subject to Section 3.01(d).  Notwithstanding the foregoing, all matters relating to improvements, alterations and changes to, and the use or leasing of the FC Member Space and the NYTC Member Space which relate to the period after the Completion Date shall be governed by the Condominium Declaration, whether or not the same shall have then been recorded.

(c)The Members shall, during the process of designing the Improvements, determine an appropriate division of the below-grade space within the Improvements and shall include the portion of such space allocated to NYTC Member within the NYTC Member Space and shall include the portion of such space allocated to FC Member within the FC Member Space, provided however, that NYTC Member shall have the first right to select the location of the below-grade space to be allocated to it.  In addition, the Discretionary Inside Mechanical Space shall be allocated to the NYTC Member Space and the FC Member Space in accordance with the Land Share of each Member.  To the extent possible, all systems, areas and equipment solely serving either the NYTC Member Space or the FC Member Space shall be included within the applicable NYTC Member Space or FC Member Space (as the case may be).

(d)FC Member shall cause FCE (or ING Vastgoed if FC Entity shall have transferred all of its interest in FC Member as may be permitted under the Recognition Agreement), and NYTC Member shall cause the New York Times Company to provide, the construction completion guaranties required pursuant to Section 6.3(b)(iv) of the Ground Lease as and when same are so required.

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5.09Financing.

(a)FC Member shall seek the maximum available Construction Loan for the Total Costs of the Project (which, at the election of NYTC Member or if otherwise required hereunder, shall include NYTC Interiors Costs) and shall cause FCE (or ING Vastgoed if FC Entity shall have transferred all of its interest in FC Member as may be permitted under the Recognition Agreement) to provide to the lender or lenders under the Construction Loan a construction completion guarantee covering the Core and Shell (but subject to the funding of the Construction Loan) in substantially the form attached hereto as Exhibit M or such other form as may be required by the lender under the Construction Loan, and NYTC Member shall cause The New York Times Company to provide to such lender or lenders a guaranty of the portion of the Construction Loan equal to the NYTC Guaranteed Amount (subject to adjustment as set forth in Section 5.09(b)).  FC Member shall provide all other credit enhancement required by the construction lender, except that if the long-term debt rating of The New York Times Company shall fall to “BBB+” as rated by Standard &  Poor’s (or an equivalent rating agency), or less, NYTC Member shall provide the necessary credit enhancement required by the construction lender in order to obtain from the lender construction financing for the same portion of NYTC Member’s Share of the Total Costs of the Project as would have been obtainable in the event The New York Times Company had maintained a long-term debt rating of “A-” (by Standard & Poor’s or the equivalent rating from an equivalent rating agency).  Notwithstanding the foregoing guarantees, each Member shall be responsible for repayment of (and debt service for) its Share of the Construction Loan.  Each disbursement of the Construction Loan will be treated on a line item basis and allocated in proportion to the Members’ Percentage Interests or as otherwise provided in the Project Budget or determined pursuant to the Allocation Methodology.

(b)If NYTC Member’s Share of the Total Costs of the Project is less on a per square foot basis than FC Member’s Share of the Total Costs of the Project on a per square foot basis, then the NYTC Guaranteed Amount shall be increased by the amount (not to exceed the NYTC Interiors Cost) necessary to equalize on a per square foot basis NYTC Member’s Share of the Total Costs of the Project and FC Member’s Share of the Total Costs of the Project.  It is understood that NYTC Member may waive the portion of the Construction Loan corresponding to the NYTC Interiors Costs if The New York Times Company provides to the construction lender a guarantee of completion of the work represented by the NYTC Interiors Costs.  At the time of delivery of such waiver and completion guaranty, the partial payment guaranty of the New York Times Company shall be reduced on a dollar for dollar basis for each dollar of NYTC Interiors Costs theretofore included in the NYTC Guaranteed Amount.

(c)The terms of the Construction Loan shall be acceptable to both Members, shall expressly permit the NYTC Extension Loan described in Section 6.03 hereof and shall be prepayable without premium or penalty at all times during the Extension Period.

5.10Building Name; Signage; Rooftop Antennae.

(a)The building shall be known as “The New York Times Building” at all times during the period on or prior to the Completion Date.  For the period after the Completion Date, the building shall be known as “The New York Times Building” subject to the terms and conditions of the Condominium Declaration, whether or not it has been recorded.

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(b)All matters relating to Temporary Signage shall be governed by the mutual approval of the Members and shall be subject to the terms of the Ground Lease (including without limitation DUO).

(c)All matters relating to Signage shall be subject to the terms of the Ground Lease (including without limitation DUO) and, subject to the following exceptions, shall be governed by the mutual approval of the Members:

(i)Signage, the content of which relates solely to The New York Times Company and/or its Affiliates, may be placed on the roof of the Improvements and on the uppermost portion of the façade of the Improvements by NYTC Member not less than fifteen (15) feet above the uppermost tenantable windows therein (collectively, “NYTC Signage”), in form, size and shape selected by NYTC in its sole discretion.  The cost of erection and maintenance of such NYTC Signage, including any incremental costs of the Core and Shell which are incurred by reason of any such NYTC Signage, shall be borne solely by NYTC Member; provided, however, that in no event shall NYTC Member pay any usage or licensing cost, charge or fee to FC Member or the Company to erect or maintain such NYTC Signage.  In no event shall said NYTC Signage be placed in a manner or location which will interfere with the efficient operation and use of the Improvements or any rooftop gardens in the reasonable judgment of NYTC Member, nor shall any such NYTC Signage interfere with the view from or the sunlight to any window in the FC Member Space except to an immaterial extent.  Additionally, to the extent such NYTC Signage is illuminated, the same shall not be placed in a manner or location which illuminates the interior of the FC Member Space except to an immaterial extent.  All interior Signage within the NYTC Member Space (excluding the SPU) shall not be visible from the exterior of the Improvements.

(ii)Signage, the content of which pertains solely to FC Member’s office anchor tenant(s) (and in no event shall such signs identify more than three (3) such office anchor tenants), may be placed on the facade flanking the entrances to the Improvements in locations and dimensions to be agreed upon by the Members in consultation with the Architect (“FC Office Signage”), in form and shape selected by such FC Member in its sole discretion, provided however, that the design of such FC Office Signage shall be commensurate with the stature and design intent of the Improvements, and that such FC Office Signage shall be less prominent than the NYTC Office Signage relating to NYTC and/or its Affiliates described under Section 5.10(c)(iii) hereof.  The cost of erection and maintenance of such FC Office Signage, including any incremental costs of the Core and Shell which are incurred by reason of any such FC Office Signage, shall be borne solely by FC Member; provided, however, that in no event shall FC Member pay any usage or licensing cost, charge or fee to NYTC Member or the Company to erect or maintain such FC Office Signage.  In no event shall such FC Office Signage be placed in a manner or location which will interfere with the efficient operation and use of the Improvements or with the view from or the sunlight to any window in the NYTC Member Space except to an immaterial extent.  Additionally, to the extent such FC Office Signage is illuminated, the same shall not be placed in a manner which illuminates the interior of the NYTC Member Space except to an immaterial extent.  All interior Signage within the FC Member Space (excluding the Retail Space) shall not be visible from the exterior of the Improvements.

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(iii)In addition to, and without limiting NYTC Member’s rights under Section 5.10(c)(i) with respect to NYTC Signage, Signage, the content of which pertains solely to NYTC Member’s office tenants or occupants (and in no event shall such signs identify more than three (3) such office tenants or occupants which are not affiliates of The New York Times Company), may be placed on the canopy (or canopies, as the case may be) of the Improvements and on the facade over and/or flanking the entrances to the Improvements in locations and dimensions to be agreed upon by the Members in consultation with the Architect (“NYTC Office Signage”), in form and shape selected by such NYTC Member in its sole discretion, provided however, that the design of such NYTC Office Signage shall be commensurate with the stature and design intent of the Improvements, and that in the case of NYTC Office Signage relating to NYTC and/or its Affiliates, the same shall be more prominent than the FC Office Signage described under Section 5.10(c)(ii) hereof.  The cost of erection and maintenance of such NYTC Office Signage, including any incremental costs of the Core and Shell which are incurred by reason of any such NYTC Office Signage, shall be borne solely by NYTC Member; provided, however, that in no event shall NYTC Member pay any usage or licensing cost, charge or fee to FC Member or the Company to erect or maintain such NYTC Office Signage.  In no event shall such NYTC Office Signage be placed in a manner or location which will interfere with the efficient operation and use of the Improvements or with the view from or the sunlight to any window in the FC Member Space except to an immaterial extent.  Additionally, to the extent such NYTC Office Signage is illuminated, the same shall not be placed in a manner which illuminates the interior of the FC Member Space except to an immaterial extent.  All interior Signage within the NYTC Member Space (excluding the SPU Space) shall not be visible from the exterior of the Improvements.

(iv)Signage, which is unrelated to any office tenant of the FC Member Space, which is not being leased or licensed to a user listed in item (1) of Exhibit N and the content of which does not relate to any of the prohibited uses listed items (2) – (18) of Exhibit N, may be placed on the facade of the Improvements above the windows of the Retail Space and below the lowermost windows of the NYTC Member Space in locations and dimensions to be agreed upon by the Members (“Retail Signage”) and in form and shape selected by FC Member in its sole discretion, provided however, that the design of such Retail Signage shall be commensurate with the stature and design intent of the Improvements.  The cost of erection and maintenance of such Retail Signage, including any incremental costs of the Core and Shell which are incurred by reason of any such Retail Signage, shall be borne solely by FC Member; provided, however, that in no event shall FC Member pay any usage or licensing cost, charge or fee to NYTC Member or the Company to erect or maintain such Retail Signage.  In no event shall such Retail Signage be placed in a manner or location which will interfere with the efficient operation and use of the Improvements or with the view from or the sunlight to any window in the NYTC Member Space except to an immaterial extent.  Additionally, to the extent such Retail Signage is illuminated, the same shall not be placed in a manner which illuminates the interior of the NYTC Member Space except to an immaterial extent.  All revenue derived from the Retail Signage shall belong to FC Member.

(v)Signage, the content of which pertains solely to the SPU, may be placed on the facade of the Improvements below the lowermost windows of the NYTC Member Space in locations and dimensions to be agreed upon by the Members (“SPU Signage”) and in form and shape selected by NYTC Member in its sole discretion and at its sole cost, provided

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however, that the design of such SPU Signage shall be commensurate with the stature and design intent of the Improvements.  The cost of erection and maintenance of such SPU Signage, including any incremental costs of the Core and Shell which are incurred by reason of any such SPU Signage,  shall be borne solely by NYTC Member; provided, however, that in no event shall NYTC Member pay any usage or licensing cost, charge or fee to FC Member or the Company to erect or maintain such SPU Signage.  In no event shall such SPU Signage be placed in a manner or location which will interfere with the efficient operation and use of the Improvements or with the view from or the sunlight to any window in the FC Member Space except to an immaterial extent.  Additionally, to the extent such SPU Signage is illuminated, the same shall not be placed in a manner which illuminates the interior of the FC Member Space except to an immaterial extent.

(vi)Commercial Signage may be placed on the Property if required by DUO or as agreed upon by the Members.  The form, size, shape, content and location of any Commercial Signage shall be determined by the Members, provided however, that, except to the extent that the form, size, shape, content or location of such Commercial Signage is governed by DUO or could result in a default under the Ground Lease or any of the Unit Leases, NYTC Member shall have the first right to require that the Commercial Signage or any portion thereof be used in a manner relating to The New York Times Company or another news-related purpose, but that otherwise the Members shall endeavor to obtain the maximum revenue to be derived therefrom, consistent with the stature and design intent of the Improvements and the DUO.  The cost of fabrication, erection and maintenance of all Commercial Signage shall be shared by the Members in proportion to their respective Percentage Interests.

(vii)Each of the NYTC Member (with respect to NYTC Signage, NYTC Office Signage and SPU Signage) and FC Member (with respect to FC Office Signage and Retail Signage) shall be solely responsible for any obligations under the Ground Lease and its respective Unit Lease with respect to such Signage, and shall cause such NYTC Signage, NYTC Office Signage and SPU Signage or FC Office Signage and Retail Signage, as the case may be, to comply with all applicable laws, the Ground Lease, DUO and its respective Unit Lease.

(viii)NYTC shall be entitled, at its sole election, to convert the use of any NYTC Signage or portion thereof to Commercial Signage by delivering written notice of such intention to FC Member together with a statement showing in reasonable detail the then unamortized portion of the costs (determined in accordance with GAAP), if any, of the fabrication and erection of such Signage (including incremental costs of the Core and Shell incurred by NYTC Member with respect thereto and an interest factor of LIBOR plus one percent per annum with respect to such costs, measured from the date such costs were expended by NYTC Member) (collectively, “NYTC’s Unamortized Signage Costs”).   FC Member shall have the option exercisable by written notice to NYTC Member within sixty (60) days after FC Member’s receipt of such notice and statement from NYTC Member, to elect to participate thereafter in the use of and share in the revenue generated by and ongoing operating and maintenance and replacement costs of such Signage, and if such election is made by FC Member, then FC Member shall to pay to NYTC Member an amount equal to FC Member’s Percentage Interest of NYTC’s Unamortized Signage Costs relating to such Signage.   Once any

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NYTC Signage has been converted to Commercial Signage, NYTC Member may not thereafter convert such Commercial Signage back to NYTC Signage.

(ix)  The Members shall develop a Signage plan for the interior portions of the Improvements outside of the FC Member Space and the NYTC Member Space (including the ground floor building lobby and any interior portion of the Improvements below the lowermost windows of the NYTC Member Space).

(d)Notwithstanding anything to the contrary contained herein, during the period after the Completion Date, all matters relating to Signage and communications equipment affixed or to be affixed to the exterior of the Improvements (including, without limitation, the roof thereof) (whether or not first affixed prior to the Completion Date) shall be governed pursuant to the Condominium Declaration, whether or not the same shall have then been recorded, and Sections 3, 4 and 5 of Article IX of the Condominium Declaration are hereby deemed incorporated herein by reference.

(e)NYTC Member shall have the exclusive right to decide the location of all communications equipment owned or operated by others on the roof or elsewhere, only in order to prevent interference with the functionality of its own communications equipment, including the right to require existing communications equipment to be relocated at the sole cost and expense of NYTC Member, if necessary in the sole discretion of NYTC Member.  At all times, (i) NYTC Member shall have the exclusive right to utilize an area under the roof of the Improvements designated as the “NYTC control room”, and (ii) FC Member shall have the exclusive right to utilize the area under the roof of the Improvements designated as the “FC control room”, in order to operate their respective communications equipment, said areas to be part of the NYTC Member Space and the FC Member Space, respectively, and designated mutually by the Members.   Subject to NYTC Member’s right to decide the location of all communications equipment in order to prevent interference with the functionality of its own communications equipment, the Members shall be entitled to use, in proportion to their Percentage Interests, such areas of the roof as are designated for communications equipment by the Members.  In no event shall said communications equipment be placed in a manner or location which will interfere with the efficient operation and use of the Improvements or any rooftop gardens in the reasonable judgment of NYTC Member.

5.11Entry and Use.  Prior to the Completion Date, to the extent permitted under Section 3.3(e) of the Development Agreement, NYTC Member shall have the right to enter the NYTC Member Space, to inspect the same and to perform work therein, and FC Member shall have the right to enter the FC Member Space, to inspect the same to perform work therein.  After the Completion Date, each Member may improve, use, alter, lease and occupy its respective Space in the manner and at the times provided under the Condominium Declaration; Articles IX, X, XI, XX and XXII of the Condominium Declaration, whether or not the same shall have been recorded, being hereby incorporated by reference.  Each Member shall be solely responsible for any such entry, inspection and performance of work on its behalf pursuant to this Section 5.11 and shall indemnify and hold the Company and the other Member harmless from and against any and all liabilities, damages, costs and expenses incurred by the Company or said other Member in connection therewith.

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5.12Adjustment to NYTC Member Space and FC Member Space.  NYTC Member may elect, on a one-time basis, by written notice (“Section 5.12 Notice”) given to FC Member at any time on or before the first anniversary of the date hereof, to purchase or lease additional space (other than space within the NYTC Member Space or the Retail Space) constituting a full floor or floors of the Improvements, which additional space shall be contiguous to the NYTC Member Space but in no event shall the above and below grade floor area contained in the NYTC Member Space exceed 900,000 gross square feet.  The Section 5.12 Notice shall be effective only if sets forth the specific space to be purchased or leased and is accompanied by:

(a) in the case of a purchase, a Capital Contribution to the Company in an amount equal to FC Member’s Costs; or

(b) in the case of a lease, (i) a security deposit in an amount equal to one year’s rent for such space or, so long as The New York Times Company shall have a rating of at least A- as determined by the Rating Agency, a guaranty of the obligations of NYTC Member under the lease (which guaranty shall be in substantially the form attached hereto as Exhibit O) in lieu of a security deposit, and (ii) an executed counterpart of said lease.

If NYTC Member shall elect to purchase such additional space, the Percentage Interests of the Members (for purposes of Land Share, Share of the Total Costs of the Project and NYTC Member’s Share of the Construction Loan) shall be adjusted to reflect the addition of such space to the NYTC Member Space and the removal of such space from FC Member Space and an amendment to this Agreement shall be executed simultaneously with the making of the additional Capital Contribution pursuant to this Section 5.12 reflecting such adjustments, but the failure of the parties to execute such an amendment shall not affect the provisions of this Section 5.12.  NYTC Member shall pay any transfer tax payable in connection with such purchase.  If NYTC Member shall elect to lease such space, the lease shall be in substantially the form attached hereto as Exhibit P providing for (x) a term of ten (10) years, with three (3) options of ten (10) years each for a total of not more than forty (40) years, commencing upon substantial completion of the Core and Shell for such space), (y) an annual rental equal to 10% of FC Member’s Costs for the first ten (10) years of the term, and (z) 95% of the then Fair Market Rent (determined in accordance with Section 10.02 hereof) beginning on the tenth anniversary of the commencement of the lease (if applicable) and adjustments in the annual rental on each of the twentieth (20^th) and thirtieth (30^th) anniversaries of the commencement date (as applicable) to reflect 95% of the then Fair Market Rent determined in accordance with Section 10.02 hereof.

5.13Activities of Members; Dedicated Individuals of FC Member.

(a)The Board of Managers shall not be required to devote its full time and effort to the affairs of the Company, but shall devote such time and effort as may reasonably be required to adequately promote the Company’s interests.

(b)Any Member and its Affiliates may at any time engage in and possess interests in other business ventures of any and every nature and description, independently or with others, including, but not limited to, engaging in activities which parallel or compete with the business of the Company, and neither the Company nor any other Member shall by virtue of

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this Agreement have any right, title or interest in or to such independent activities or to the income or profits derived therefrom.

(c)The Members hereby agree to meet regularly at the offices of The New York Times Company or elsewhere as agreed by the Members, in furtherance of the interests of the Company and in order to promote prompt decision-making and dispute resolution on behalf of the Company as may be required hereunder and under the Development Agreement.

(d)Reference is hereby made to Section 2.5 of the Development Agreement, which Section 2.5 is hereby incorporated by reference, wherein Developer covenants to devote certain Persons to the effectuation of the Development Plan (and a specific percentage of their available working time).  FC Member, in its capacity as a Member hereunder, shall cause Developer to comply with said covenant.

5.14Unauthorized Acts.  No Member shall take any action on behalf of or in the name of the Company, or enter into any commitment or obligation binding upon the Company, except as expressly provided for in this Agreement.  Each Member shall indemnify and hold harmless the other Members, their Affiliates, and the members, partners, directors, officers, shareholders, employees, agents and representative of such other Members and their Affiliates against any loss, liability, damage or expense arising out of any breach of this Section 5.14 by such Member or its Affiliates or the members, partners, directors, officers, shareholders, employees, agents and representative of such other Members and their Affiliates.

5.15Subleases and Brokerage Agreements for FC Member Space; Non-Disturbance by NYTC Member for FC Member Tenants.  (a)  In connection with the remedies of NYTC Member under Section 3.04, NYTC Member will provide, upon request by FC Member from time to time, non-disturbance agreements for each subtenant of the FC Member Space which executes a sublease meeting the following criteria:

(i)in the case of office subtenants, covers at least the greater of 15,000 rentable square feet of space or one-half of the subject floor in the Improvements;

(ii)in the case of retail subtenants, covers at least 5,000 rentable square feet of space;

(iii)has a sublease term of at least 5 years (which term does not conflict with NYTC Member expansion options to acquire or sublease additional space in the FC Member Space); and

(iv)is on commercially reasonable economic terms (on and after the Construction Loan Closing Date, any sublease as to which the construction lender has agreed to provide a non-disturbance agreement shall be deemed to be on commercially reasonable economic terms).

(b)NYTC Member shall not be obligated to fund any initial leasing costs (including tenant improvements or takeover costs); however, the sublease may permit the

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subtenant thereunder to net out the amount of any work allowance granted under the sublease and not funded by NYTC Member following attornment under the non-disturbance agreement, which unfunded amount shall be amortized over the term of the sublease.

(c)In no event shall NYTC Member be liable for any obligations of FC Member to any subtenants other than pursuant to non-disturbance agreements entered into under this Section 5.15.  Each sublease entered into by FC Member shall provide that, subject to any non-disturbance agreement which NYTC Member has entered into pursuant to this Section 5.15, if NYTC Member exercises its rights under Section 3.04(b) or in the event of a termination of FC Member’s Unit Lease, at the election of NYTC Member, to be exercised by notice given by NYTC Member to such subtenant stating that NYTC Member has elected to terminate such sublease, the sublease shall immediately upon the giving of such notice terminate and be of no further force or effect without condition or payment by FC Member and that NYTC Member shall have no liability under such sublease.  Each such sublease shall further provide that in any action brought against NYTC Member in connection with the termination of the sublease pursuant to this Section 5.15(c), the losing party shall pay the fees and disbursements incurred by the prevailing party in connection with such action.  Any brokerage agreements entered into by FC Member with respect to any sublease shall also provide that NYTC Member shall have no liability under such brokerage agreement and that in any action brought against NYTC Member regarding fees payable under such brokerage agreement, the losing party shall pay the fees and disbursements incurred by the prevailing party in connection with such action.

(d)Any sublease entered into by FC Member prior to the date FC Member’s option pursuant to Section 3.07 expires or is otherwise waived as against NYTC Member in writing by FC Member, and any non-disturbance agreement entered into pursuant to this Section 5.15 with respect to any such sublease, shall provide that such sublease shall automatically terminate and be of no further force or effect without condition or payment by FC Member and that NYTC Member shall have no further liability under such sublease in the event FC Member shall exercise its option to withdraw from or convey its interest in the Company pursuant to Section 3.07 of this Agreement.  Any non-disturbance agreement entered into prior to the Possession Date and, if the Third Non-Delivery Event (as defined in the Ground Lease) occurs, any non-disturbance agreement entered into on or after the Possession Date, shall also provide that such non-disturbance agreement and the sublease to which it relates may be terminated by NYTC Member (without payment by or other liability to NYTC Member) at NYTC Member’s election, which termination may be exercised by notice given by NYTC Member to such subtenant stating that NYTC Member has elected to terminate such non-disturbance agreement and sublease in the event FC Member is no longer a member of the Company at anytime after the occurrence of the Third Non-Delivery Event, and upon the giving of such notice, such sublease and non-disturbance agreement shall ipso facto terminate.

(e)Within ten (10) days after the execution by a Member of any sublease or brokerage agreement relating to the sublease, such Member shall deliver to the other Member an executed copy of such sublease or brokerage agreement, as the case may be, and any other documents relating thereto.

5.16Terrorism Insurance Extension.  If FC Member believes that the Company is entitled to an extension of the Fixed Construction Commencement Date pursuant to Section

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6.1(c)(vi) of the Ground Lease (the “Insurance Extension”) and that the Company should obtain the Insurance Extension, it shall so notify NYTC Member at least 60 days prior to the Fixed Construction Commencement Date.  Said notice shall set forth the grounds for such entitlement and, if one of such grounds is either (x) that the terrorism insurance referenced in Section 6.1(c)(vi) of the Ground Lease (the “Insurance”) cannot be obtained from an insurance company which would be acceptable to the proposed lender under the Construction Loan or (y) that the Insurance cannot be obtained for a commercially reasonable cost, such notice shall set forth the cost thereof which FC Member believes would be commercially reasonable for such Insurance (the “FC Base Cost”).  The Company thereafter shall proceed to seek the Insurance Extension unless, within 30 days after receipt of said notice, NYTC Member shall advise FC Member that NYTC Member has either (i) obtained such Insurance from an insurance company acceptable to the proposed lender under the Construction Loan or (ii) obtained a waiver from the lender under the Construction Loan of the requirement to obtain the Insurance.  In the event NYTC Member shall deliver such a notice, it shall pay the portion of any premium or other cost associated with obtaining such Insurance or waiver that is in excess of the FC Base Cost (NYTC Member and FC Member each being responsible for its pro rata share of such premium or other cost up to the FC Base Cost).  If, however, after obtaining the Insurance or waiver, NYTC Member believes that the FC Base Cost is less than the commercially reasonable cost for the Insurance, NYTC Member may submit to arbitration pursuant to Section 11.01 hereof the determination of the commercially reasonable cost for such Insurance for a premium high rise office building development project in the Borough of Manhattan (the “True Base Amount”).  If such arbitration shall determine that the True Base Amount  exceeds the FC Base Amount, FC Member shall within ten (10) Business Days after receiving such determination reimburse NYTC Member for FC Member’s Percentage Interest in the amount by which the True Base Amount exceeds the FC Base Amount, together with interest thereon at the Default Rate accruing from the date on which NYTC Member paid such excess amount to the date of payment by FC Member of its Percentage Interest thereof.

5.17Subway Agreement.  It is acknowledged that pursuant to Paragraph Third (A) of Tenant’s Subway Agreement, the Company shall have certain liquidated damages if it shall obtain a temporary certificate of occupancy for the actual occupancy of any office space in the Improvements (expressly excluding any zero occupancy certificate or any permits or certificates necessary for interior build-out) for any portion of the Improvements prior to substantial completion of certain work under Tenant’s Subway Agreement or obtain a final permanent certificate of occupancy for the Improvements prior to final completion of certain work under Tenant’s Subway Agreement.  If either Member shall obtain a temporary or permanent certificate of occupancy in violation of Tenant’s Subway Agreement, the liquidated damages payable thereunder shall be allocated to the Members in accordance with their respective Percentage Interests.

ARTICLE VI

CONVERSION DATE; NYTC EXTENSION LOAN

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6.01Conversion Date.  The Conversion Date shall mean the earliest day occurring after the Completion Date as the Company is permitted under the Construction Loan and under the Ground Lease, the Unit Leases and the Condominium Act to take the actions set forth in Section 6.02.

6.02Conversion Date Actions.  Upon the Conversion Date, the Company and each Member, as applicable, shall take each of the following actions in the order and priority herein set forth:

(i)the Company shall subject the leasehold interest under the Ground Lease to a condominium regime pursuant to the Condominium Declaration by executing the same and causing it to be recorded in the appropriate recording office, and the Company and the Members shall amend each of the Unit Leases to reflect the interests demised thereunder as then described by the Condominium Declaration;

(ii)the Company shall assign its interest under the Ground Lease to the Public Parties (and the landlord’s interest and tenant’s interest under the Ground Lease will not merge in such instance, but will continue as between the Public Parties, as landlord, and the Public Parties, as tenant) and cause the satisfaction of all of the requirements of Article XXXII of the Ground Lease;

(iii)unless such Capital Contributions have been made previously, the Members shall make the Capital Contributions required thereof pursuant to Section 3.01(h) and the Company shall apply the same as set forth in Section 3.01(h), all subject to provisions of said Section 3.01(h);

(iv)unless theretofore paid by FC Member, FC Member shall make the Capital Contribution required of it under Section 3.01(c) and the Company shall apply the same as set forth therein;

(v)the NYTC Member shall release the pledge and assignment agreement and terminate the UCC-1 delivered by FC Member pursuant to Section 3.04(c) hereof;

(vi)the Members shall approve the First Budget (as defined in the Condominium Declaration), shall appoint the initial managers of the condominium as provided in the Condominium Declaration and shall cause the

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condominium association to be incorporated as contemplated therein; and

(vii)the Company shall be dissolved as provided in Article IX.

In the event the Conversion Date is extended beyond the Completion Date, any payments and damages payable by the Company pursuant to the Ground Lease shall be allocated to the Members in the same proportions as would have applied if the Lease Assignment Date (as defined in the Ground Lease) had occurred on the Conversion Date and the Condominium Declaration had become effective notwithstanding that the same shall not then have been recorded.

6.03NYTC Extension Loan.  FC Member shall use commercially reasonable efforts to obtain permanent financing for FC Member’s Share of the Construction Loan on a non-recourse basis (other than customary carve-outs to non-recourse provisions then generally being required by institutional permanent mortgage lenders) (the “FC Member Unit Permanent Financing”).  In the event that despite the use of FC Member’s commercially reasonable efforts, FC Member is unable to obtain the FC Member Unit Permanent Financing, FC Member shall notify NYTC Member no later than twenty (20) days prior to the date on which FC Member is obligated to make a Capital Contribution pursuant to Section 3.01(h) (the “Section 3.01(h) Capital Contribution”).  In such event, in lieu of FC Member being required to make the Section 3.01(h) Capital Contribution and provided the events described in clauses (i) and (ii) of Section 6.02 hereof have occurred, NYTC Member shall undertake to make arrangements through third parties or shall otherwise arrange to repay to the construction lender the Excess NYTC Guaranteed Amount together with NYTC Member’s Share of the Construction Loan in exchange for a release of both the lien of the Construction Loan from all NYTC Individual Units and the SPU Unit (as each is defined in the Condominium Declaration) and any payment guaranty given by NYTC Member or its Affiliates to secure the Construction Loan (which payment, to the extent in excess of the NYTC Share of the Construction Loan, shall constitute the “NYTC Extension Loan”).  If NYTC Member makes the NYTC Extension Loan, (a) if acceptable to the lender under the Construction Loan, there shall be delivered to NYTC Member and NYTC Member shall accept, an assignment (said assignment and the documents effecting the same to be in forms customarily utilized in connection with the assignment of mortgage loans held by institutional lenders and reasonably acceptable to NYTC Member) of such portion of the Construction Loan which corresponds to the NYTC Extension Loan so as to minimize the applicable mortgage recording taxes otherwise payable by FC Member pursuant to this Section 6.03, and (b) FC Member shall have a period of up to five (5) years (the “Extension Period”) from the Completion Date to obtain the FC Member Unit Permanent Financing in an amount equal to the sum of (i) FC Member’s Share of the then outstanding Construction Loan plus (ii) the Excess NYTC Guaranteed Amount.  The right of FC Member to extend payment of the Section 3.01(h) Capital Contribution for the Extension Period and not be in default under this Agreement for failure to pay the same, and the obligation of NYTC Member to undertake to make arrangements through third parties or otherwise arrange for the NYTC Extension Loan, shall be subject to the following conditions:

(i)The NYTC Extension Loan shall bear interest at a rate of one percent (1%) per annum in excess of the then

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applicable interest rate on the Construction Loan or Bridge Financing, said payments to be made in arrears on the first day of each calendar month, and shall mature on the earlier of (X) the expiration of the Extension Period, or (Y) the maturity or acceleration of the Construction Loan (unless Bridge Financing is obtained) or the Bridge Financing;

(ii)The NYTC Extension Loan will be secured by those certain second mortgage lien documents in substantially the forms attached hereto as Exhibit Q-1 encumbering the condominium unit or units constituting the FC Member Space, as well as those second mortgage lien documents described in Exhibit Q-2 (which shall be in forms customary for mortgage loans by institutional lenders and reasonably acceptable to NYTC Member) and any other documents customary in connection with the severance of mortgage loans held by institutional lenders, and shall be subordinated to the mortgage for the Construction Loan or Bridge Financing pursuant to a subordination and intercreditor agreement (in substantially the form attached hereto as Exhibit R), or secured by other means acceptable to NYTC Member in its sole and absolute discretion;

(iii)The Construction Loan or Bridge Financing shall be prepayable without premium or penalty at all times during the Extension Period;

(iv)The construction or Bridge Financing lender, as the case may be, shall agree in writing with NYTC Member to provide NYTC Member with copies of all notices of default given to FC Member and shall further agree that NYTC Member shall have the right to cure FC Member defaults and/or to obtain an assignment to NYTC Member or its designee of the mortgage lien and all other documents signed in connection with the Construction Loan or Bridge Financing, as the case may be, at any time during the Extension Period that said Construction Loan or Bridge Financing is in default for an amount equal to the unpaid principal balance thereof and accrued interest thereon;

(v)If and to the extent FCE (or other guarantor as set forth in clause (vii) below) has provided the Construction Loan lender or Bridge Financing lender a completion guaranty with respect to any then incomplete items of tenant or leasehold improvement work to be performed by FC Member, FCE (or other guarantor as set forth in clause (vii) below) shall provide NYTC a comparable completion

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guaranty with respect to such incomplete tenant and leasehold improvement work;

(vi)The NYTC Extension Loan will be insured by a loan policy issued, at FC Member’s expense, by Chicago Title Insurance Company or another national title insurance company qualified to do business in New York State and satisfactory to NYTC Member exercising its reasonable discretion, insuring that the lien of the NYTC Extension Loan is a second priority lien on the FC Member Unit subordinate only to the first lien of the Construction Loan or Bridge Financing, real estate taxes on the FC Member Unit and the Condominium Declaration;

(vii)FC Member shall cause either FCE or another guarantor acceptable to NYTC Member in its sole and absolute discretion to provide a guaranty in substantially the form attached hereto as Exhibit S (the “Bad Acts Guaranty”) pursuant to which guarantor shall be responsible for any losses and costs incurred by NYTC Member by reason of a voluntary or collusive involuntary bankruptcy filing by FC Member, and FC Member shall diligently defend against and seek to have dismissed any other involuntary bankruptcy filing against FC Member, prior to repayment in full of the NYTC Extension Loan; provided, however, that if as of the date of the closing of the NYTC Extension Loan, FC Entity shall have transferred all of its interest in FC Member to ING Entity as may be permitted under the Recognition Agreement, in lieu of the Bad Acts Guaranty from FCE, FC Member shall have the right, in its sole and absolute discretion, to cause to be delivered at the closing of the NYTC Extension Loan either (i) a Bad Acts Guaranty from ING Vastgoed, together with a keep-well guaranty from ING Bank N.V. (“ING Bank”) for the benefit of NYTC Member in form reasonably satisfactory to NYTC Member and ING Bank to contribute funds to ING Vastgoed equal to the amount of any repayment of intercompany loans and interest thereon made by ING Vastgoed after the date hereof and any dividends and/or other distributions paid to ING Bank after the date hereof up to, and not exceeding, the outstanding principal amount and any accrued interest on the NYTC Extension Loan  (it being acknowledged that said keep-well guaranty shall not constitute a guaranty of the obligations of ING Vastgoed and shall not require ING Bank to contribute any amount in excess of such intercompany loans and interest thereon and such dividends and other distributions) or (ii) a stand-by

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letter of credit from ING Bank in the amount of the NYTC Extension Loan in customary form reasonably acceptable to ING Bank and NYTC Member.   As a condition to the delivery of the Bad Acts Guaranty by ING Vastgoed, (x) ING Vastgoed shall be required to have shareholders’ equity on the date of the closing of the NYTC Extension Loan that is not less than its shareholders’ equity set forth in the financial statements for ING Vastgoed for the year ending December 31, 2000 and (y) ING Vastgoed shall represent and warrant to NYTC Member in writing at the closing of the Extension Loan that there was no material adverse change in the financial condition of ING Vastgoed between the financial condition reflected in the financial statements for ING Vastgoed for the year ending December 31, 2000 and December 12, 2001.

(viii)NYTC Member shall not be required to incur any additional costs or expenses by reason of any extension of the Construction Loan and/or the Bridge Financing and FC Member shall pay promptly and/or reimburse NYTC Member with respect to any such additional costs and expenses, the failure of which shall be deemed a default under this Agreement;

(ix)there shall be no capitalization of interest on the Construction Loan or the Bridge Financing during the Extension Period (although there may be lease-up deficits covered under the Construction Loan or the Bridge Financing provided that these shall not exceed the amount budgeted by the construction lender for the period through Substantial Completion) and FC Member shall pay interest on its Share of the Construction Loan (or substitute the Bridge Financing, as the case may be) during the Extension Period on a current basis; and

(x)FC Member shall at all times during the Extension Period continue to use commercially reasonable efforts to obtain the FC Member Unit Permanent Financing in the amount required to repay FC Member’s Share of the Construction Loan or the Bridge Financing and the NYTC Extension Loan, in default of which NYTC Member may, after giving notice to FC Member and FC Member failing to cure said default within thirty (30) days, proceed to exercise its remedies under Section 3.04.  On request by NYTC Member from time to time during the Extension Period, FC Member will report the status of its efforts and the measures taken to obtain the FC Member Unit Permanent

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Financing, recognizing that if the financing markets are in turmoil so that it is futile to attempt to obtain a commitment for the FC Member Unit Permanent Financing, it shall be commercially reasonable for FC Member to curtail its efforts including the tenacity and frequency with which it contacts lenders or solicits proposals for commitments from such lenders for financing.

It is understood that FC Member may obtain bridge or substitute financing for the Construction Loan during the Extension Period (the “Bridge Financing”), subject to the foregoing provisions of this Section 6.03.  Notwithstanding any of the foregoing, on or prior to the expiration of the Extension Period, FC Member must obtain the FC Member Unit Permanent Financing or use its own funds to contribute to the Company its Share of the Construction Loan, and the NYTC Extension Loan, and, in such event the Company shall repay the balance of the Construction Loan and will distribute to NYTC Member the amount of the NYTC Extension Loan.

If FC Member does not (i) subject to subsection (x) above, use commercially reasonable efforts to obtain FC Member Unit Permanent Financing as of the Completion Date and at all times during the Extension Period and (ii) on or before the Completion Date or the expiration of the Extension Period, as applicable, either obtain the FC Member Unit Permanent Financing or use its own funds to enable the Company to repay the balance of the Construction Loan (or Bridge Financing) and the NYTC Extension Loan, and such failure shall continue beyond thirty (30) days after written notice to FC Member from NYTC Member, then such failure shall be a default under the Mortgage securing the Extension Loan as well as a default entitling NYTC Member to exercise its remedies under Section 3.04(b) for failure of FC Member to make a required Capital Contribution without regard to the $5,000,000 threshold under said Section 3.04(b) (without limiting any other remedies NYTC Member may have under any guarantees from FCE or otherwise).

ARTICLE VII

BOOKS, RECORDS, REPORTS AND ACCOUNTING

7.01Books and Records; Audits and Reports; Budgets.

(a)The Board of Managers shall keep just and true books of account with respect to the operations of the Company.  Such books and records shall be maintained at the principal office of the Company set forth in Section 2.04 hereof.  The Company shall also maintain at its office the following records:  (i) a current list of the full name and last known business address of each Member; (ii) copies of the Company’s federal, state and local income tax returns and reports, if any; (iii) copies of any financial statements of the Company; (iv) copies of all tenant leases; and (v) copies of all contracts and agreements to which the Company is party.  All Members, and their duly authorized representatives, shall at all reasonable times upon prior notice have access to the books and records maintained in accordance with this Section 7.01 for any purpose reasonably related to the Member’s interest as a member of the

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Company, and may make copies of such books and records as well as audit the same at their own expense.

(b)The Board of Managers shall furnish to each Member, within ninety (90) days after the close of each fiscal year of the Company, a written statement of the Board of Managers containing a balance sheet of the Company and the Company’s net income or net loss for such fiscal year.  In addition, the Board of Managers shall furnish to any Member such other information in its possession as such Member may from time to time reasonably request.

(c)Promptly after receipt, the Board of Managers shall furnish to the Members all proposed budgets prepared by Developer for development costs and construction costs related to the Project, and the allocation of said costs between the Members as contemplated hereby (including each of the Project Budget and Development Budget, as defined in the Development Agreement), and each revision thereof approved by the Members, each said budget shall together with all approved revisions thereof be a “Budget”.

(d)FC Member shall cause the Developer to maintain and make available to each Member a Work Authorization Log, together with copies of all related Work Authorizations, and copies of all invoices, relating to costs covered by Section 3.01(a).  FC Member shall cause Developer to produce monthly reports for each calendar month during the period prior to the Construction Loan Closing Date showing the Budget (i.e., the amount for work that has been authorized by the Members under Section 3.01(a)), commitments made against such Budget, approved revisions to such Budget, trends for revisions to the same and cost allocations between the Members.  FC, in its capacity as a Member, shall cause Developer to furnish to each Member all reports that Developer is required to furnish under the Development Agreement.

7.02Changes in Interests.  If there is a change in any Member’s interest in the Company during any fiscal year (including a change as a result of a transfer of a Member’s interest or the admission of a new Member), the books of the Company shall be closed on the last day of the month preceding the month in which the change is considered to have occurred in accordance with the following sentence.  For the purposes of the preceding sentence, changes in  interests during any month shall be treated as having occurred on the first day of that month.  The TMP shall make determinations required for tax purposes pursuant to this Section 7.02 in accordance with Section 7.05 hereof and applicable Treasury Regulations.  In the event that Treasury Regulations are adopted which require a different treatment from that described above, the TMP is authorized to follow the treatment required by such Regulations.

7.03Uninvested Funds and Banking.  All uninvested funds of the Company shall be invested in such accounts as the Members approve, provided that the Board of Managers may invest the funds in U.S. government securities, certificates of deposit or money market accounts of banks having a net worth in excess of $500 million without such approval, and withdrawals from such bank accounts will be made upon such signature or signatures as the Board of Managers may designate.  The funds of the Company will not be commingled with the funds of any other Person, except that the Company shall utilize FC Member’s cash management system.

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7.04Fiscal Year; Accounting Method.  The fiscal year of the Company shall be the calendar year unless the Board of Managers properly adopts a different fiscal year as permitted by law.  The Company shall utilize the accrual method of accounting.

7.05Tax Matters Member.   NYTC Member shall be the tax matters member (“TMP”) of the Company for purposes of Code Section 6231.  The TMP shall have the authority of a tax matters partner under applicable Code provisions, and in addition shall have the exclusive authority to perform the following, whether or not included within the authority of a tax matters partner within applicable Code provisions:

(a)Prepare and file or supervise the preparation and filing of the Company’s federal, state and local tax returns.

(b)Furnish or cause to be furnished to the Members, within one hundred twenty (120) days after the close of the taxable year of the Company (or such later date as shall be acceptable to the Members), a Schedule K-1 to Form 1065 with respect to their interest in the Company and such other tax information with respect to the Company as may be reasonably required by the other Members in connection with the preparation of such Member’s tax returns.

(c)Furnish the name, address, membership interest and taxpayer identification number of each Member to the Internal Revenue Service and take such action as may be reasonably necessary to constitute every Member as a “notice partner” as that term is defined in Code Section 6231.

(d)Refuse to extend the statute of limitations with respect to tax items of the Company without the unanimous written consent of the Members.

(e)1.Except with respect to any item, amount, election or reporting position which relates solely to one Member’s Space or which only affects items or amounts reported on one Member’s Federal Schedule K-1 to Form 1065 (or equivalent state or local report, form or schedule) or any item or amount otherwise allocable solely to one Member and which does not affect (a) any item or amount on any other Member’s Schedule K-1 (or equivalent) or (b) any item or amount otherwise allocable to or reportable by or with respect to, any other Member, to:

(i)select the shortest permissible depreciation period and consistent applicable conventions for all eligible Company assets:

(ii)elect not to capitalize interest, taxes or other items to the extent required or permitted pursuant to Code Section 263A or other applicable provisions;

(iii)cause the Company to adopt the accrual method of accounting and make any other tax elections on behalf of the Company as the TMP deems necessary or advisable;

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(iv)allocate costs or expenditures among depreciable or non-depreciable assets of the Company consistent with applicable law; and

(v)adopt and reflect in the Company’s tax returns any tax reporting positions other than those specified above which the TMP deems necessary or desirable after consultation with the other Member and the Company’s professional advisors;

2.With respect to any item, amount, election or reporting position which affects only one Member or is solely attributable to one Member’s Space as described in subsection 7.05(e)(1) above, the TMP shall report and elect as reasonably directed by that Member.

(f)Institute, conduct, prosecute and/or defend, with counsel of its choosing, any audits, proceedings, contests or litigations between the Company and any taxing authority, whether administrative or judicial (collectively, “Tax Controversies”), and compromise or settle the same as it may determine in its discretion; provided, that (i) the TMP shall keep the other Members fully informed with respect to any Tax Controversy and shall consult with the other Members with respect thereto prior to effecting any compromise or settlement thereof; (ii) if the Tax Controversy affects only one Member or relates solely to one Member’s Space (and does not relate to or affect any common elements or the Company as a whole), the TMP shall follow the reasonable instructions of that Member in connection with such Tax Controversy and shall not settle or compromise the same except with the consent of that Member; and (iii) if settlement or compromise of any issue involved in a Tax Controversy may have a material adverse effect on either Member, the TMP may not settle or  compromise such issue without the consent of the affected Member.

(g)Elect for the Company at the request of any Member to adjust the basis of the property of the Company under Code Section 754, except that in the absence of an agreement by the Members to the contrary, no such election shall be made unless the adjustments to the requesting Member’s share of the basis of Company assets will result in a basis increase of more than $500,000.

(h)The TMP shall use its best efforts to provide each Member with drafts of the Company’s federal, state and local income and other material tax returns no less than thirty (30) days prior to the due date thereof, and such returns shall be deemed accepted by each Member if no written objection thereto is received by the TMP within fifteen (15) days after such draft tax returns are provided to the Member.  The Members and the TMP shall endeavor in good faith to resolve any such objections prior to the due date of such returns.

(i)Members shall not take positions on their separate tax returns or other communications with a taxing authority with respect to items attributable to the Company which are inconsistent with the reporting positions adopted by the TMP in the Company’s tax returns unless a Member is required by a taxing authority to take an inconsistent position, in which event such Member may take such inconsistent position if it provides the TMP, at least twenty (20) days prior to the filing of the return or other document which is to incorporate such inconsistent

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position, written notice of such proposed inconsistent position and an explanation of the reason such inconsistent position is required, including a full statement of the position to be taken in the form in which such inconsistent position is to be disclosed and included in such Member’s tax return or otherwise submitted to the applicable taxing authority.  Subject to the preceding sentence, nothing in this Section shall limit the ability of any Member to take any action in its individual capacity relating to administrative proceedings or Company matters that under the Code, or any similar state or local provision, is left to the determination of an individual Member.

(j)The TMP will be entitled to reimbursement from the Company for all reasonable costs and expenses (including reasonable legal and accounting fees) incurred by it in complying with and carrying out its responsibilities as TMP. The costs and expenses of any Tax Controversy which affects only one Member, as to which the TMP is required to follow the direction of that Member as provided above, shall be paid by that Member. The costs and expenses of any other such tax proceeding or controversy shall be paid by the Company.

(k)FC Member shall, and shall cause Developer to, provide the TMP with access to the Company’s books and records sufficient to permit the TMP to perform its duties hereunder, and shall provide the TMP with such additional information and assistance as the TMP may reasonably request.

(l)To the fullest extent permitted by law, the TMP shall be entitled to indemnity from the Company for any act performed by it within the scope of its duties as TMP, except for acts which constitute gross negligence or willful misconduct, fraud or breach of fiduciary duty as a TMP, provided that any indemnity under this Section 7.05(l) shall be provided out of and to the extent of Company assets only and no Member shall have any personal liability on account thereof.

7.06Section 754 Election.  The Board of Managers in its discretion may cause the Company to elect under Code section 754 to adjust the basis of Company assets upon a distribution of Company property as described in Code section 734 or a transfer by a Member of its interest in the Company as described in Code section 743.

ARTICLE VIII

TRANSFERS OF INTERESTS; DEFAULT

8.01Transfers of Interests.

(a)Except as provided in this Article VIII and the Recognition Agreement, no Member may, directly or indirectly, Transfer its interest or any right or interest hereunder, and no Person may Transfer a direct interest in a Member, to any Person without the prior written consent of each other Member, which consent may be withheld in such non-transferring Member’s sole and absolute discretion.  No such Transfer shall be valid unless the Transferee agrees to be bound by this Agreement and to assume all of the obligations of the transferring Member under this Agreement with respect to such transferred interest and executes such documents as may be necessary, in the reasonable opinion of the non-transferring Member, to

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assume such obligations.  The Recognition Agreement is incorporated herein by reference, and those transfers and pledges permitted thereunder shall be permitted under this Agreement, subject to the terms of the Recognition Agreement.

(b)FC Member may assign all or part of its interest in the Company to an Affiliate of FC Member without approval of NYTC Member and NYTC Member may assign all or part of its interest in the Company to an Affiliate of NYTC Member without approval of FC Member, provided however, that the foregoing right shall not include a pledge or any other encumbrance of all or any portion of a Member’s interest in the Company, which shall require the prior written approval of the other Member.  In addition, (i) the members in FC Member may transfer membership interests in FC Member, without approval of NYTC Member; provided, however, that Bruce C. Ratner, FCE or an Affiliate of either of them shall retain management control of FC Member; and (ii) the Members in NYTC Member may transfer interests in NYTC Member, without approval of FC Member; provided, however, that The New York Times Company or an Affiliate thereof shall retain management control of NYTC Member.  At least five (5) days prior to a Transfer pursuant to this Section 8.01(b), the Member with respect to which such Transfer relates shall promptly provide evidence reasonably satisfactory to such other Member that the requirements of this Section 8.01(b) have been satisfied as to the applicable Transfer.

(c)Any Transfer of interests permitted under this Agreement shall result in the Transfer of all of the rights, benefits and privileges of the Transferor under this Agreement with respect to such interest.  Any Transfer by operation of law which does not otherwise comply with Section 8.01(b) shall confer upon the Transferee the right to receive no more than the Transferor’s share in allocation and distributions hereunder, but such Transferee shall not be entitled to participate in any vote or decision to be made by the Members pursuant to this Agreement or exercise any other rights as a Member.

(d)No Transfer of any interest, or any right or interest in such interest, shall release the Transferor from those liabilities to the Company which such Transferor has as of the date of such transfer.

(e)The Company agrees that it will record the Transfer of an interest and the admission of a new Member on its books only in accordance with the terms and conditions of this Agreement.  Any purported Transfer of an interest by a Member that is not in compliance with the terms and conditions of this Agreement will be null and void, and the Transferee under any such purported Transfer will acquire no title or ownership thereby.

8.02Act of Insolvency.

(a)If any Member (a “Section 8.02 Member”) shall commit an Act of Insolvency, the other Member shall have the option (if it shall so elect by notice to the Section 8.02 Member) to acquire the Section 8.02 Member’s interest in the Company by paying to the Section 8.02 Member the amount such Member would receive if the assets of the Company were sold for the Fair Market Value thereof and the net proceeds of such sale were distributed in accordance with Section 9.02.

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(b)Within ten (10) days following the date of the exercise of the option set forth in Section 8.02(a), the Member obligated to purchase shall, by notice to the Section 8.02 Member, fix a closing date which shall be not later than thirty (30) days following the date of the exercise of the option and a place of closing in the City and State of New York, and the closing shall take place on said date at such place.

(c)At the closing under this Section 8.02, the Section 8.02 Member shall execute and deliver to the purchasing Member assignments of interest, deeds, bills of sale, instruments of conveyance, and other instruments as the purchasing Member may reasonably require, to give it good and clear record title to all of the Section 8.02 Member’s right, title and interest in and to the Company and the Property, subject to liabilities and obligations as provided in Section 8.02(d) of this Agreement, and the Section 8.02 Member hereby irrevocably constitutes and appoints the purchasing Member its attorney-in-fact to execute, acknowledge and deliver such instruments as may be necessary or appropriate to carry out and enforce the provisions of this Section 8.02.  The purchase price to be paid pursuant to Section 8.02(a) shall be delivered to the Section 8.02 Member in cash in immediately available funds at the closing under this Section 8.02 or, if later, within five (5) days after determination of the price to be paid pursuant to Section 8.02 (a).

(d)The sale by the Section 8.02 Member of its interest in the Company pursuant to this Section 8.02 shall be subject to all liabilities and obligations of the Company, matured or unmatured, absolute or contingent, other than loans made to the Company by the Section 8.02 Member, and upon the consummation of such sale, the purchasing Member shall execute and deliver to the Section 8.02 Member, in form satisfactory to the Section 8.02 Member, an instrument assuming the aforesaid liabilities and obligations of the Company, together with a covenant to hold the Section 8.02 Member harmless from and against such liabilities and obligations.

ARTICLE IX

DISSOLUTION AND LIQUIDATION

9.01Events of Dissolution.

The Company shall be dissolved by any of the following events, whichever shall first occur:

(a)the sale, disposition or liquidation of substantially all of the property owned by the Company;

(b)11:59 p.m., Eastern Standard Time, December 31, 2099;

(c)as otherwise required by the LLC Law or as provided in this Article IX or elsewhere in this Agreement, or as determined by both Members; or

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(d)On or after the Conversion Date or, if the Extension Period is applicable, on or after the day on which FC Member satisfies its obligations under Section 3.01(h), unless the Members agree to the contrary, the Company will be dissolved and liquidated.

9.02Liquidation upon Dissolution.  Upon dissolution of the Company, the Board of Managers, on behalf of all Members, as liquidating trustee, shall dissolve the Company, sell (unless the dissolution occurs by reason of the Conversion Date under Section 9.01(d), in which event all Company assets shall be distributed as provided below and shall not be sold) or distribute all Company properties within a reasonable time, pay or arrange for the payment of all Company debts and expenses and distribute the balance of the Company assets to the Members in accordance with this Section 9.02.  Dissolution of the Company shall be effective on the day on which the event occurs giving rise to the dissolution, but the Company shall not terminate until the Company’s Articles of Organization shall have been cancelled and the assets of the Company shall have been distributed as provided herein.  Notwithstanding the dissolution of the Company prior to the termination of the Company, as aforesaid, the business of the Company and the affairs of the Members, as such, shall continue to be governed by this Agreement.  At the time of such dissolution, the assets of the Company will be distributed to the Members in kind as follows:

(ii)If the dissolution occurs by reason of the Conversion Date under Section 9.01(d) or if the Property or other assets of the Company under any other circumstance are to be distributed to the Members in kind rather than sold:

(a)The NYTC Member Space (and any related interest in the common areas within the Property) and all assets of the Company which relate solely to or are derived from the NYTC Member Space utilizing the Allocation Methodology will be distributed exclusively to NYTC Member, subject to any liabilities allocable to the NYTC Member Space and said related assets;

(b)The FC Member Space (and any related interest in the common areas within the Property) and all assets of the Company which relate solely to or are derived from the FC Member Space utilizing the Allocation Methodology will be distributed exclusively to FC Member, subject to any liabilities allocable to the FC Member Space and said related assets; and

(c)Any cash reserves or other liquid assets of the Company not directly related to the NYTC Member Space or the FC Member Space will be distributed to the Members in proportion to and to the extent of their Percentage Interests.

(ii) If the Company’s assets have been sold in connection with the liquidation, the Net Sales Proceeds shall be distributed as provided in Section 4.03(a) hereof.  Unless all Members determined to distribute in kind any deferred payment obligations or purchase money notes received in exchange for the Company’s assets, such obligations shall be retained by the Company and the Company shall not be dissolved until such obligations are fully paid and the cash proceeds distributed; provided, that the Board of Managers may determine to place such assets in a liquidating trust for the benefit of the Members, in which event the Company may be dissolved upon transfer of such obligations to such liquidating trust and distribution of all other assets as provided above.

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ARTICLE X

FAIR MARKET VALUE; FAIR MARKET RENT

10.01Appraisal Procedure.  At any time that the “Fair Market Value” is to be determined pursuant to this Section 10.01, the Members shall, for a period of twenty (20) days, meet and attempt in good faith to agree on the Fair Market Value.  If the Members do not reach agreement upon Fair Market Value within said twenty (20) days, then Fair Market Value shall be determined by arbitration using three (3) arbitrators, each of whom is a member of the American Institute of Real Estate Appraisers (or any successor thereto) and has at least fifteen (15) years of experience with and is actively engaged in the valuation of high-rise, premium first-class office buildings in the County, City and State of New York.  Any Member may serve a written notice on the other Member stating that an arbitration should be conducted pursuant to this Section 10.01 and stating that each party is obligated to name an arbitrator within fifteen (15) days after the giving of such notice.  Within fifteen (15) days after such notice is given, (i) the NYTC Member shall nominate and appoint one (1) arbitrator, and (ii) the FC Member shall nominate and appoint one (1) arbitrator.   If one Member shall fail to name its arbitrator within the foregoing  fifteen (15) day period and such failure continues for an additional period of three (3) business days after notice from the Member which has named its arbitrator, then such Member which has named its arbitrator shall be permitted to name the second arbitrator and shall do so within a further period of seven (7) days following expiration of the three (3) business days period.   The two (2) arbitrators shall, within ten (10) days after the appointment of the second arbitrator, and before exchanging views as to the question at issue, appoint in writing a third arbitrator (the “Third Valuation Arbitrator”) and give written notice of such appointment to the Members.  In the event the arbitrators shall fail to appoint or agree upon a Third Valuation Arbitrator within said ten (10) day period, then the Third Valuation Arbitrator shall be selected by the parties, if they so agree upon such Third Valuation Arbitrator within a further period of five (5) business days.  If the Third Valuation Arbitrator shall not be appointed or agreed upon within the time herein provided, then either Member may apply to the American Arbitration Association for the appointment of such Third Valuation Arbitrator.  The arbitrators shall be sworn faithfully and fairly to determine the question at issue.  The question to be determined by the arbitrators shall be: “What is the Fair Market Value with respect to such property as of the date in question?”  The arbitrators shall afford to the Members the right to submit evidence, with the privilege of cross-examination on the question at issue.  Such hearings shall be concluded as expeditiously as practicable and in any event within thirty (30) days following the appointment of the Third Valuation Arbitrator.  All three (3) arbitrators shall submit their determinations of Fair Market Value simultaneously in the presence of the Members on a “sealed bid” basis within fifteen (15) days after conclusion of such hearings.  If the two (2) arbitrators initially appointed by the parties shall have rendered different determinations of Fair Market Value, then (i) the determination of the one of such two (2) arbitrators which is closest to the determination of the Third Valuation Arbitrator shall be deemed to be the Fair Market Value, and (ii) if the determination of the Third Valuation Arbitrator is exactly the average of the other two (2) determinations, then the determination of the Third Valuation Arbitrator shall be deemed to be the Fair Market Value.  The determination of Fair Market Value in accordance with this Section 10.01 shall be binding upon the parties.  Each Member shall pay the fees and expenses of the arbitrator appointed by it and the fees and expenses of the Third Valuation Arbitrator shall be divided equally between them.  In the event any arbitrator appointed as aforesaid shall thereafter

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die or become unable or unwilling to act, such arbitrator’s successor shall be appointed in the same manner provided in this Section 10.01 for the appointment of the arbitrator so dying or becoming unable or unwilling to act.

10.02In the event the Fair Market Rent for any FC Member Space is to be determined pursuant to the appraisal procedure set forth in this Section 10.02, the Members shall, for a period of twenty (20) days, meet and attempt in good faith to agree on the Fair Market Rent.  If the parties do not reach agreement upon Fair Market Rent within said twenty (20) days, then Fair Market Rent shall be determined by arbitration using three (3) arbitrators each of whom is a licensed real estate broker in New York State and has at least fifteen (15) years of experience with and is actively engaged in the leasing of office space in high-rise premium first-class office buildings in the County, City and State of New York.  Any Member may serve a written notice on the other Member stating that an arbitration should be conducted pursuant to this Section 10.02 and stating that each Member is obligated to name an arbitrator within fifteen (15) days after the giving of such notice.  Within fifteen (15) days after such notice is given, (i) the NYTC Member shall nominate and appoint one (1) arbitrator, and (ii) the FC Member shall nominate and appoint  one (1) arbitrator.  If one Member shall fail to name its arbitrator within the foregoing fifteen (15) day period and such failure continues for an additional period of three (3) business days after notice from the Member which has named its arbitrator, then such Member which has named its arbitrator shall be permitted to name the second arbitrator and shall do so within a further period of seven (7) days following expiration of the three (3) business days period.   The two (2) arbitrators shall, within ten (10) days after the appointment of the second arbitrator, and before exchanging views as to the question at issue, appoint in writing a third arbitrator (the “Third Rental Arbitrator”) and give written notice of such appointment to the Members.   In the event the arbitrators shall fail to appoint or agree upon a Third Rental Arbitrator within said ten (10) day period, then the Third Rental Arbitrator shall be selected jointly by the Members, if they so agree upon such Third Rental Arbitrator within a further period of five (5) business days.  If the Third Rental Arbitrator shall not be appointed or agreed upon within the time herein provided, then either Member may apply to the American Arbitration Association for the appointment of such Third Rental Arbitrator.  The arbitrators shall be sworn faithfully and fairly to determine the question at issue.  The question to be determined by the arbitrators shall be: “What is the Fair Market Rent of the FC Member Space in question as of the date of exercise of the option to lease said space taking into account the form of lease, if applicable, which Fair Market Rent may include stated increases in fixed rent, if appropriate?”  The arbitrators shall afford to the Members the right to submit evidence, with the privilege of cross-examination on the question at issue.  Such hearings shall be concluded as expeditiously as practicable and in any event within thirty (30) days following the appointment of the Third Rental Arbitrator.  All three (3) arbitrators shall submit their determinations of Fair Market Rent simultaneously in the presence of the Members on a “sealed bid” basis within fifteen (15) days after conclusion of such hearings.  If the two (2) arbitrators initially appointed by the Members shall have rendered different determinations of Fair Market Rent, then (i) the determination of the one of such two (2) arbitrators which is closest to the determination of the Third Rental Arbitrator shall be deemed to be the Fair Market Rent of the subject FC Member Space, and (ii) if the determination of the Third Rental Arbitrator is exactly the average of the other two (2) determinations, then the determination of the Third Rental Arbitrator shall be deemed to be the Fair Market Rent of the subject FC Member Space.  If the determinations of Fair Market Rent shall include increases in fixed rent, the same shall be discounted to present

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value at the annual rate of ten percent (10%) in order to apply the foregoing determination process.  The determination of Fair Market Rent in accordance with this Section 10.02 shall be binding upon the Members.  Each Member shall pay the fees and expenses of the arbitrator appointed by it and the fees and expenses of the Third Rental Arbitrator shall be divided equally between them.  In the event any arbitrator appointed as aforesaid shall thereafter die or become unable or unwilling to act, such arbitrator’s successor shall be appointed in the same manner provided in this Section 10.02 for the appointment of the arbitrator so dying or becoming unable or unwilling to act.

In rendering any determination of Fair Market Rent of the subject FC Member Space, the arbitrators shall assume or take into consideration all of the following:

(i)there is an open and competitive market for the subject space;

(ii)market rents then being charged, including increases in fixed rent over a period of time, work allowances and rent concessions being granted, for comparable space in comparable buildings;

(iii)the FC Member, as owner, and NYTC Member, as tenant, of the subject space are acting prudently and are typically motivated;

(iv)the FC Member, as owner, and NYTC Member, as tenant, of the subject space are well informed and well advised and each is acting in what it considers its own best interest;

(v)the subject space is to be let in as-is condition, provided that the arbitrators shall not take into consideration any above building standard improvements or finishes which shall have been installed in the subject space;

(vi)the FC Member will not incur certain costs customarily incurred by landlords in leasing space to unaffiliated third parties in the open market, which costs may reduce the Fair Market Rent that would otherwise be charged by a landlord in comparable circumstances, such as the following:

(A)FC Member will not be requested to provide a work allowance or work letter or incur any related expenditure in preparing the subject space for a tenant’s occupancy (including, without limitation, architect’s and engineering fees, demolition costs and legal fees);

(B)there will be no period during which the subject space shall not be occupied or during which base rent and additional rent shall be abated;

(C)FC Member will not incur a brokerage commission;

(D)FC Member will not incur any “takeover costs” or similar expenses in assuming or mitigating a potential tenant’s leasing costs at another location; and

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(E)FC Member will not incur any advertising or promotional expenditures in renting the subject space to a prospective tenant.

(vii)The net worth of The New York Times Company in relation to a hypothetical prospective tenant or its guarantor;

(viii)That the tenant will pay its share of real estate taxes, PILOT (as defined in the Ground Lease) and common charges without base years or base amounts; and

(ix)The term of the sublease and the other terms and conditions of the sublease for the subject FC Member Space.

In no event, however, shall the arbitrators consider, or make any increase or decrease in the Fair Market Rent for the subject FC Member Space by reason of the fact that The New York Times Company (and/or its Affiliates) is a current occupant of the building or that the building is the headquarters for The New York Times Company, the arbitrators to consider the Fair Market Rent on the basis of a new transaction with an unrelated third party.

ARTICLE XI

ARBITRATION

11.01Arbitration.

(a)In the event of a dispute between the Members with respect to the interpretation or application of any provision of this Agreement, or any other matter specifically mentioned herein as a matter to be decided by arbitration, such dispute or matter shall be shall be determined and resolved by arbitration (and not by litigation) conducted in the City, County and State of New York in accordance with the terms of this Section 11.01 and the then applicable commercial arbitration rules of the American Arbitration Association, provided that if the terms of this Section 11.01 differ from or conflict with the then applicable commercial arbitration rules, the arbitrators shall be chosen and the arbitration shall be governed in accordance with and pursuant to the terms and provisions of this Section 11.01.

(b)The arbitration procedures shall commence when either Member submits the matter to arbitration by notice to the other Member.  Not later than twenty (20) days after the arbitration procedure has commenced, each Member shall appoint an arbitrator and notify the other Member of such appointment by identifying the appointee.  Each Member hereto agrees to select as its respective appointee an independent and unaffiliated individual who has not less than (10) years experience with respect to the subject matter at hand.  Not later than ninety (90) days after both arbitrators are appointed, each shall separately, but simultaneously, submit in a sealed envelope to each arbitrator their separate suggested resolution of the dispute or matter and shall provide a copy of such submissions to the other Member.  The two selected arbitrators, after reviewing such submissions, shall determine whether either proposed resolution more fairly reflects the intention of the parties as expressed in this Agreement or is otherwise in the best interest of the Company.  If both arbitrators agree that one of said proposed resolutions is preferable upon the basis set forth in the preceding sentence, they shall so declare and their decision shall be final and binding upon the Members.  If the two selected arbitrators are unable

66

to agree on one of the proposed resolutions within thirty (30) days after submission thereof, then the arbitrators shall select a third arbitrator (the “Third Dispute Arbitrator”) who shall also be an independent and unaffiliated individual with not less than ten (10) years experience in the subject matter at hand, such selection to take place within the ten (10) days after the expiration of the thirty (30) day period.  If no arbitrator is selected within such ten (10) day period, either Member may immediately petition the American Arbitration Association to appoint such Third Dispute Arbitrator.  The Third Dispute Arbitrator shall conduct an arbitration pursuant to the commercial arbitration rules of the American Arbitration Association, its successor or, if it shall cease to exist, an entity performing similar functions.  The Third Dispute Arbitrator shall select either proposed resolution not later than thirty (30) days after appointment, and the Third Dispute Arbitrator’s decision shall be final and binding upon the Members.  The arbitration decision, determined as provided in this Section, shall be conclusive and binding on the parties, shall constitute an “award” by the Arbitrator within the meaning of the American Arbitration Association rules and applicable law and judgment may be entered thereon in any court of competent jurisdiction.

(c)The fees of the arbitrators as well as expenses incident to the proceedings, shall be assessed as the arbitrators determine, it being the intention of the Members that the non-prevailing Member pay such fees and expenses.  The fees of respective counsel engaged by the parties, and the fees of expert witnesses and other witnesses called or engaged by the Members, shall be paid by the non-prevailing Member.

ARTICLE XII

ALLOCATION METHODOLOGY.

12.01Allocation of Costs.

(a)Costs which are part of the Total Costs of the Project are generally to be allocated to the Members in accordance with their respective Percentage Interests.  However, the Members acknowledge that certain costs which are part of the Total Costs of the Project may relate either entirely to the NYTC Member Space or the FC Member Space, or may relate to either the NYTC Member Space or the FC Member Space in a percentage which varies from their respective Percentage Interests.  For example, certain components may be built to a higher tolerance than is applicable to the Core and Shell in general in order to accommodate a particular use of the NYTC Member Space or the FC Member Space, or common areas and equipment may be modified to reflect a higher requirement for telecommunications, electricity, HVAC or other uses.  In addition, once the plans and specifications for the Improvements and the related Budget (and allocation of construction costs between the Members) have been approved, either Member may request changes to the plans and specifications as permitted under Section 5.07, which may result in increased costs to the Company.  Furthermore, as set forth in this Agreement (including, without limitation, Sections 3.01(c), 3.01(d) and 3.01(e)), the Members have agreed that certain costs will be allocated to the Members in a manner other than in accordance with their respective Percentage Interests.  Accordingly, the Members agree that in such instances and in other situations where allocating costs in accordance with the Percentage Interests would not result in an equitable allocation of such costs, such costs (and the corresponding Capital Contributions and responsibility for indebtedness of the Company) and any tax benefits, deductions, losses or

67

other related costs attributable thereto will instead be allocated in accordance with the methodology set forth in Exhibit T hereto, provided however, that FC Member shall be solely responsible for any and all costs incurred in connection with or payable to ING Entity or any other permitted equity investor in FC Member and any and all fees and guaranteed payments to Developer and other Affiliates of FC Entity under the Operating Agreement of FC Member.

(b)In furtherance of this Section 12.01, and not in limitation thereof, the Members agree that certain payment obligations under the Ground Lease shall be allocated as follows:

(i)payment obligations under Section 3.1 of the Ground Lease shall be allocated to the Members in accordance with their respective Land Shares (except that (1) said obligations shall with regard to below-grade retail be based upon whether the same is located within FC Member Space or the NYTC Space, and (2) said obligations with respect to rooftop garden space and discretionary inside mechanical space referenced therein shall be allocated in accordance with the Members’ respective Percentage Interests);

(ii)payment obligations under Section 3.2 of the Ground Lease shall be wholly allocated to FC Member to the extent that the same relates to the Retail Space and shall be wholly allocated to NYTC Member to the extent that the same relates to the SPU;

(iii)payment obligations under Section 3.3 of the Ground Lease in respect of Sales Tax Savings shall be wholly allocated to FC Member; and

(iv)payment obligations under Section 3.4 of the Ground Lease in connection with Mortgage Recording Tax (as to Exempted Mortgages only) shall be wholly allocated to NYTC Member;

(v)payment obligations under Section 3.5 of the Ground Lease shall be allocated to the Members based upon whether the occupied square feet referenced therein are located in the FC Member Space or the NYTC Member Space;

(vi)the Security Deposit under Section 10.9(a) of the Ground Lease shall be wholly payable by FC Member and the Insurance Guaranty required thereunder shall be provided by NYTC Member; and

(vii)the PA PILOT Reduction under Section 30.4 of the Ground Lease shall be wholly allocated to NYTC Member.

(c)Any disputes as to the proper allocation of such costs (and the corresponding Capital Contributions and responsibility or indebtedness of the Company) will be decided pursuant to arbitration under Section 11.01, and any tax benefits, deductions or losses attributable thereto shall be governed by the authority of the TMP under Section 7.05 and shall be consistent with such arbitration decision.

68

12.02Allocation of Net Cash Flow, Net Financing Proceeds and Net Sale Proceeds.  For purposes of determining the amount of Net Cash Flow, Net Financing Proceeds and Net Sale Proceeds which is related to the NYTC Member Space and the FC Member Space, respectively, receipts from the rental or other use of a particular area of the Property, and costs, expenses and disbursements related to, generated by, derived from or incurred with respect to, as the case may be, a particular area of the Property, will be allocated to that particular area, and general receipts of the Company and general costs, expenses and disbursements not related to a particular area will be allocated in accordance with the Percentage Interests.  Notwithstanding the foregoing, if certain expenses not directly related to the NYTC Member Space or the FC Member Space do not benefit the NYTC Member Space and the FC Member Space in the same proportion as the Percentage Interests, but are more properly allocated between the NYTC Member Space and the FC Member Space in a different proportion which more equitably reflects the relative benefit of such expenditures to the NYTC Member Space and the FC Member Space, respectively, such expenses and any related tax benefits will instead be allocated between the NYTC Member Space and the FC Member Space in the proportion which more equitably reflects the relative benefits derived from such expenses.  Any disputes as to the proper allocation of such revenues and expenses will be decided pursuant to arbitration under Section 11.01, and the reporting thereof shall be governed by the authority of the TMP under Section 7.05 and shall be consistent with such arbitration decision.

ARTICLE XIII

REPRESENTATIONS AND WARRANTIES

13.01Representations and Warranties of NYTC Member.  NYTC Member hereby represents and warrants to FC Member and the Company that NYTC Member is a limited liability company duly formed, validly existing and in good standing under the laws of the State of New York, that it is not subject to any proceeding for the reorganization, dissolution or liquidation thereof, that it has all requisite authorizations to enter into this Agreement and to consummate the transactions contemplated hereby and that the parties executing this Agreement on behalf of NYTC Member are duly authorized to so do.

13.02Representations and Warranties of FC Member.  FC Member hereby represents and warrants to NYTC Member and the Company that FC Member is a limited liability company duly formed, validly existing and in good standing under the laws of the State of New York, that it is not subject to any proceeding for the reorganization, dissolution or liquidation thereof, that it has all requisite authorizations to enter into this Agreement and to consummate the transactions contemplated hereby, and that the parties executing this Agreement on behalf of FC Member are duly authorized to so do.

ARTICLE XIV

MISCELLANEOUS

14.01Execution in Counterparts.  This Agreement may be executed in counterparts, each of which thus executed shall be deemed an original, but all of which, taken together, shall

69

constitute one and the same document, binding upon the parties hereto, their heirs, executors, administrators, successors and permitted assigns.

14.02Notices.  All notices, requests, demands, consents and approvals under this Agreement shall be in writing, and shall be hand delivered, sent by registered U.S. Mail, return receipt requested, or sent by overnight courier service, designated for next-day delivery, as follows:

If to NYTC Member:

NYT Real Estate Company LLC

c/o The New York Times Company

229 West 43^rd Street

New York, New York 10036

Attn:  Mr. David A. Thurm

With a copy to:

NYT Real Estate Company LLC

c/o The New York Times Company

229 West 43^rd Street

New York, New York  10036

Attn:   Solomon B. Watson, IV, Esq.

With a copy to:

Swidler Berlin Shereff Friedman, LLP

405 Lexington Avenue

New York, New York 10174

Attn:  Martin D. Polevoy, Esq.

If to FC Member:

FC Lion LLC

One MetroTech Center North

Brooklyn, New York 11201

Attn:  General Counsel

and

Kelley Drye & Warren LLP

101 Park Avenue

New York, New York  10178

Attn:  James J. Kirk, Esq.

Any party hereto may designate a different address to which or Person to whom notices or demands shall be directed by written notice given in the same manner and directed to the each other Member at its address hereinabove set forth.  Any notice given hereunder shall be deemed

70

received one (1) Business Day after delivery to an overnight delivery service, designated for next-day delivery; three (3) Business Days after mailing if sent by registered U.S. mail, return receipt requested; or when actually received if sent in any other permissible fashion.

14.03Amendments.  This Agreement may not be amended, restated, supplemented or otherwise modified except by a writing signed by all of the Members.

14.04Articles of Organization.  From time to time, the Members shall sign and acknowledge all such writings as are required to amend the Articles of Organization or for the carrying out of the terms of this Agreement or, upon dissolution of the Company, to cancel such Articles.

14.05Validity.  In the event that any provision of this Agreement shall be held to be invalid, such invalidity shall not affect in any respect whatsoever the validity of the remainder of this Agreement.

14.06Governing Law.  This Agreement shall be construed according to and governed by the laws of the State of New York.

14.07Waiver.  The waiver by any party hereto of the breach of any term, covenant, agreement or condition herein contained shall not be deemed a waiver of any subsequent breach of the same or any other term, covenant, agreement or condition herein, nor shall any custom, practice or course of dealings arising among the parties hereto in the administration hereof be construed as a waiver or diminution of the right of any party hereto to insist upon the strict performance by any other party of the terms, covenants, agreements and conditions herein contained.

14.08Brokers.  FC Member and NYTC Member each represents and warrants to the other that it  has had no dealings or communications with any broker, finder, or consultant with respect to the Property or the Project except for the Broker.  FC Member shall hold NYTC Member harmless and defend NYTC Member with respect to any claims or actions that may be brought by any broker or finder (other than the Broker) with whom it has dealt with respect to the Property or the Project.  NYTC Member shall hold FC Member harmless and defend FC Member with respect to any claims or actions that may be brought by any broker or finder (including, without limitation, the Broker) with whom it has dealt with respect to the Property or the Project, subject however to the obligations of the Company and FC Member pursuant to Section 3.01(e).  The provisions of this Section 14.08 shall survive the termination of this Agreement and the dissolution of the Company.

14.09Entire Agreement.  This Agreement, together with any other document executed contemporaneously herewith, sets forth the entire agreement and understanding of the Member with respect to the Project and the subject matter hereof and supersedes all prior agreements or understandings relating thereto.

14.10No Third Party Beneficiary.  Nothing contained in this Agreement shall be deemed to create any third party beneficiary status or grant any rights to any capital contributions to any party which is not a Member.

71

14.11Attorney’s Fees.  In the event of litigation to enforce or interpret this Agreement, the prevailing party(ies) in such litigation shall be entitled to recover from the losing party(ies) its or their reasonable attorney’s fees and costs incurred in such litigation, including such costs and fees on appeal.

14.12No Cross-Default.  Notwithstanding any other provision of this Agreement to the contrary, no default by FCE or Developer or any of their Affiliates under the Development Agreement or any guaranty or any other document relating to the Project shall constitute a default by FC Member under this Agreement.

14.13Certificated Interests.  The Company hereby irrevocably elects that all membership interests in the Company shall be securities governed by Article 8 of the Uniform Commercial Code.  Each certificate evidencing membership interests in the Company shall bear the following legend:  “This certificate evidences an interest in The New York Times Building LLC and shall be a security for purposes of Article 8 of the Uniform Commercial Code.”  This provision shall not be amended, and no such purported amendment to this provision, shall be effective until all outstanding certificates have been surrendered for cancellation.

[the remainder of this page is intentionally blank]

72

IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and year first above written.

FC LION LLC, a New York limited liability company
By:		FC 41st Street Associates, LLC, a New York limited liability company, its managing member
		By:	RRG 8 South, Inc., a New York corporation, its managing member
		By:	Bruce C. Ratner
			Name: Bruce C. Ratner
			Title: President
NYT REAL ESTATE COMPANY LLC, a New York limited liability company
By:	Michael Golden
	Name: Michael Golden
	Title: Manager

73

EXHIBIT A

Description of the Land

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

Beginning at the corner formed by the intersection of the northerly line of West 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 and place of Beginning.

Being premises known as and by Manhattan Tax Map Block 1012, Lots 1, 5, 8, 14, 53, 59, 61, 62, 63, and part of Lot 15.

A-1

EXHIBIT B

Development Plan

The Members intend to construct upon the Land an office building (with ground floor retail) of approximately 1,440,000 gross square feet of above grade space, additional below grade space and additional roof top and mechanical space, which building shall include the “SPU”, “NYTC Office”, “FC Retail”, “FC Office” and “Common Areas”, all as generally shown on the drawings attached hereto as Exhibit B-l.

B-1

EXHIBIT B-1

Floor Plans

B-1-1

EXHIBIT C

Schematic Design Plans

C-1

List of Schematic Design Documents

That Correspond with Final Schematic

Design Budget dated July 30, 2001

A 1000	7/20/2001	S 0001	7/20/2001
A 1001	7/20/2001	S 1000	7/20/2001
A 1002	7/20/2001	S 1001	7/20/2001
A 1003	7/20/2001	S 1003	7/20/2001
A 1004	7/20/2001	S 1006	7/20/2001
A 1005	7/20/2001	S 1008	7/20/2001
A 1006	7/20/2001	S 1011	7/20/2001
A 1008	7/20/2001	S 1021	7/20/2001
A 1010	7/20/2001	S 1027	7/20/2001
A 1011	7/20/2001	S 1030	7/20/2001
A 1021	7/20/2001	S 1041	7/20/2001
A 1027	7/20/2001	S 1052	7/20/2001
A 1030	7/20/2001	S 1052MEZ	7/20/2001
A 1041	7/20/2001	S 1053	7/20/2001
A 1052	7/20/2001	S 1054	7/20/2001
A 1052MEZ	7/20/2001	S 2000	7/20/2001
A 1053	7/20/2001	S 2001	7/20/2001
A 1054	7/20/2001	S 2002	7/20/2001
A 1056	7/20/2001
A 1101	7/20/2001	M 1000	9/18/2001
A 1102	7/20/2001	M 1001	9/18/2001
A 1103	7/20/2001	M 1005	9/18/2001
A 2001	7/20/2001	M 1006	9/18/2001
A 2101	7/20/2001	M 1021	9/18/2001
A 2102	7/20/2001	M 1027	9/18/2001
A 2103	7/20/2001	M 1027M	9/18/2001
A 2104	7/20/2001	M 1041	9/18/2001
A 3001a	7/20/2001	M 1052	9/18/2001
A 3001b	7/20/2001	M 1052MEZ	9/18/2001
A 3002	7/20/2001	M 1054	9/18/2001
A 3002b	7/20/2001	M 5000	9/18/2001
A 4020	7/20/2001	M 5001	9/18/2001
A 4021	7/20/2001	M 5002	9/18/2001
A 4038	7/20/2001	M 5003	9/18/2001
A 4039	7/20/2001	M 5004	9/18/2001
A 4040	7/20/2001	M 5005	9/18/2001
A 4041a	7/20/2001	M 5006	9/18/2001
A 4041b	7/20/2001	M 5007	9/18/2001
A 4042	7/20/2001	M 5008	9/18/2001
		M 5009	9/18/2001
		M 5010	9/18/2001
		M 5011	9/18/2001

List of Schematic Design Documents

That Correspond with Final Schematic

Design Budget dated July 30, 2001

P 0000	9/18/2001	E 0000	9/18/2001
P 1000	9/18/2001	E 1001	9/18/2001
P 1004	9/18/2001	E 1004	9/18/2001
P 1008	9/18/2001	E 1006	9/18/2001
P 1021	9/18/2001	E 1021	9/18/2001
P 1027	9/18/2001	E 1027	9/18/2001
P 1030	9/18/2001	E 1027M	9/18/2001
P 1040	9/18/2001	E 1052	9/18/2001
P 1052	9/18/2001	E 1052MEZ	9/18/2001
P 5000	9/18/2001	E 1041	9/18/2001
P 5001	9/18/2001	E 1054	9/18/2001
P 5002	9/18/2001	E 4000	9/18/2001
P 5003	9/18/2001	E 5000	9/18/2001
FP 0000	9/18/2001	T 0000	9/18/2001
FP 1000	9/18/2001	T 1000	9/18/2001
FP 1004	9/18/2001	T 1003	9/18/2001
FP 1008	9/18/2001	T 1008	9/18/2001
FP 1021	9/18/2001	T 5000	9/18/2001
FP 1027	9/18/2001	T 5001	9/18/2001
FP 1030	9/18/2001
FP 1040	9/18/2001
FP 1052	9/18/2001
FP 5001	9/18/2001

Schematic Design Outline Specifications 7/20/2001

EXHIBIT D

Schematic Design Estimate

D-1

The attached Schematic Design Estimate reflects the gross costs of the Development. The costs reflected will be reallocated to the Members pursuant Article 3 and Section 12.01(b) of the Operating Agreement.

PROJECT NAME:	The New York Times Building	Date:	July 30, 2001
LOCATION:	New York, NY	File:
CLIENT NAME:	The New York Times/FCRC	Job #:	-
ARCHITECT:	Renzo Piano Building Workshop/Fox and Fowle Architects	Est. #:	-
ESTIMATE TYPE:	0	S.F.:	1,553,966.00
EST. PHASE:	Schematic

TRADE SUMMARY	AMOUNT ($)					$/SF		%
	NYT	FCRC	Retail	SPU	TOTAL
02000 DEMOLITION	[*]	[*]	[*]	[*]	[*]	[*]		[*]
02100 ASBESTOS REMOVAL	[*]	[*]	[*]	[*]	[*]	[*]		[*]
02200 SITEWORK	[*]	[*]	[*]	[*]	[*]	[*]		[*]
03200 SUBSTRUCTURE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
03300 SUPERSTRUCTURE CONCRETE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
04200 MASONRY	[*]	[*]	[*]	[*]	[*]	[*]		[*]
04400 STONE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
05100 STRUCTURAL STEEL	[*]	[*]	[*]	[*]	[*]	[*]		[*]
05300 METAL DECK	[*]	[*]	[*]	[*]	[*]	[*]		[*]
05500 MISCELLANEOUS METALS	[*]	[*]	[*]	[*]	[*]	[*]		[*]
05700 ORNAMENTAL METALS	[*]	[*]	[*]	[*]	[*]	[*]		[*]
06100 ROUGH CARPENTRY	[*]	[*]	[*]	[*]	[*]	[*]		[*]
06200 FINISH CARPENTRY/MILLWORK	[*]	[*]	[*]	[*]	[*]	[*]		[*]
07100 WATERPROOFING	[*]	[*]	[*]	[*]	[*]	[*]		[*]
07200 INSULATION	[*]	[*]	[*]	[*]	[*]	[*]		[*]
07240 EIFS	[*]	[*]	[*]	[*]	[*]	[*]		[*]
07250 SPRAY-ON-FIREPROOFING	[*]	[*]	[*]	[*]	[*]	[*]		[*]
07400 METAL PANELS	[*]	[*]	[*]	[*]	[*]	[*]		[*]
07500 MEMBRANE ROOFING	[*]	[*]	[*]	[*]	[*]	[*]		[*]
07900 CAULKING	[*]	[*]	[*]	[*]	[*]	[*]		[*]
08100 METAL DOORS AND FRAMES	[*]	[*]	[*]	[*]	[*]	[*]		[*]
08300 OVERHEAD DOORS	[*]	[*]	[*]	[*]	[*]	[*]		[*]
08400 ENTRANCES AND STOREFRONTS	[*]	[*]	[*]	[*]	[*]	[*]		[*]
08700 HARDWARE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
08800 GLAZING	[*]	[*]	[*]	[*]	[*]	[*]		[*]
08900 CURTAINWALL	[*]	[*]	[*]	[*]	[*]	[*]		[*]
09250 GYPSUM WALLBOARD	[*]	[*]	[*]	[*]	[*]	[*]		[*]
09300 TILE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
09500 ACOUSTICAL CEILING TILE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
09650 RESILIENT FLOORING AND CARPET	[*]	[*]	[*]	[*]	[*]	[*]		[*]
09660 SPECIAL FINISHES	[*]	[*]	[*]	[*]	[*]	[*]		[*]
09900 PAINTING	[*]	[*]	[*]	[*]	[*]	[*]		[*]
10000 SPECIALTIES	[*]	[*]	[*]	[*]	[*]	[*]		[*]
10200 LOUVERS	[*]	[*]	[*]	[*]	[*]	[*]		[*]
10250 ACCESS FLOOR	[*]	[*]	[*]	[*]	[*]	[*]		[*]
10400 BUILDING SIGNAGE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
10532 CANOPIES	[*]	[*]	[*]	[*]	[*]	[*]		[*]
12500 WINDOW WASHING EQUIPMENT	[*]	[*]	[*]	[*]	[*]	[*]		[*]
13100 MAST	[*]	[*]	[*]	[*]	[*]	[*]		[*]
13200 DAMPER	[*]	[*]	[*]	[*]	[*]	[*]		[*]
14100 CONVEYANCES	[*]	[*]	[*]	[*]	[*]	[*]		[*]
14200 TURNTABLE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
15100 HVAC	[*]	[*]	[*]	[*]	[*]	[*]		[*]
15200 PLUMBING	[*]	[*]	[*]	[*]	[*]	[*]		[*]
15300 FIRE PROTECTION	[*]	[*]	[*]	[*]	[*]	[*]		[*]
16000 ELECTRICAL	[*]	[*]	[*]	[*]	[*]	[*]		[*]
SUBWAY ENTRANCE	[*]	[*]	[*]	[*]	[*]	[*]		[*]
TRADE SUB - TOTAL:	[*]	[*]	[*]	[*]	[*]		[*]	[*]
EXTERIOR PROJECTION SIGNAGE EQUIPMENT	[*]	[*]	[*]	[*]	[*]	[*]
SUBWAY ENTRANCE WORK	[*]	[*]	[*]	[*]	[*]	[*]
NYTC TENANT WORK (Allocations)
1. Communicating Stairs	[*]				[*]	[*]
2. Fin Tube Heating System	[*]				[*]	[*]
3. Newsroom Skylight	[*]				[*]	[*]
TRADE SUBTOTALS =	[*]	[*]	[*]	[*]	292,968,428	188.53

EXHIBIT E

Form of Condominium Declaration

See Item 76 – Declaration of Leasehold Condominium.

C-1

EXHIBIT F

Definition of the Core and Shell

F-1

Definition of the Core and Shell

I.GENERAL CONSTRUCTION

•	Demolition/Asbestos Abatement
•	Foundations
•	Excavation including basement excavation
•	Site Work
•	Landscaping, irrigation and drainage
•	Superstructure, complete structural frame providing a minimum of 50 lbs./ft2 of live load capacity
•	Fire Stairs including enclosure
•	Metal deck and concrete slabs
•	Roofing/Waterproofing/Paving/Roof Garden
•	Fireproofing
•	Curtain Wall system – Entire building enclosure.
•	Doors and Hardware for exterior and interior core and shell elements.
•	Storefronts, Entrance Doors and Screens
•	Demising partitions for MEP service rooms, shafts, ground floor lobbies, fire stairs, core area, shafts and toilet rooms.
	Finishes for the following areas:
		1.	Ground floor common area lobby.
		2.	Core Area Toilet rooms and additional toilet rooms on podium floors.
		3.	Common Corridors/Stairwells
		4.	MEP and Elevator equipment rooms
		5.	Loading dock areas and common support areas
•	Interior signage program to meet code requirements.
•	Building Identification Signage
•	Window washing equipment
•	Elevators including Shaftways

II.SUBWAY ENTRANCE

•Subway Entrance Improvements Including the following:

1.Construction of a new entrance within property limits to be constructed at the northeast corner of Eighth Avenue and 40th Street consisting of a 10 foot wide straight stairway with two intermediate landings, which connects to the mezzanine located below the east sidewalk of Eighth Avenue.

2.A street vestibule, at the top of the stairway that is within the building property, with minimum dimensions of 15 feet long by 10 feet wide.

3.Partial demolition and slabbing over of the existing sidewalk stair entrance at the northeast corner of Eighth Avenue and 40th Street as required to construct the above items. Modifications to the existing intermediate stair landing as required to seal the original entrance to stairway and create an entry to the proposed stairway.

4.Protection of all street utilities impacted by the construction of the above items during Owner’s construction.

5.The removal of the existing cast iron stair entrance railings, gates, and entrance lamp posts and delivery thereof to an Authority facility located within the City of New York, as designated by the Authority.

III.PLUMBING

Domestic cold water distribution system from tap in street to valved outlets at each floor with capacity for floor pantries.

Domestic hot water distribution to valved outles at each floor with capacity for floor pantries.

Complete storm water system with necessary sump pumps.

Sanitary waste system from city tie-in to plugged outlets at each floor, sized to accommodate NYTC cafeteria complete with all necessary ejector pumps.

Meters for consumption of energy, other than for base building HVAC equipment, to be installed by individual users.

In addition to the distribution system described above, core area bathrooms (including drinking fountains) will be built as part of the base building work including all fixtures. No other bathrooms remote from the core area will be built as part of the base building work except on the podium floors where additional bathrooms for general use will be provided.

Provision of two (2) additional dry columns with waste and vent risers remote from the core on tower floors and four (4) dry columns with waste and vent risers on podium floors. Each podium floor will include a remote wet column riser.

All domestic cold water piping in conditioned spaces and areas subject to freezing will be insulated.

IV.FIRE SPRINKLER SYSTEM

1. Fire protection water service as required by code including any necessary pumps and ATS equipment.

2. Complete standpipe system with hose outlets based on open plan floor

3. Sprinkler floor control valves with tamper switch and flow switch, including service double detector check.

4. TCO sprinkler coverage (loop around core and core rooms sprinklered)

5. Complete coverage including sprinkler heads as required in ground floor lobbies, mechanical rooms, and other common areas.

V.HVAC

1)Equipment sized on the following criteria:

a)Electric demand load: 2 w/ft² lighting, 3 w/ft² power, 2.0 w/ft² supplementary cooling, up to an additional 200 tons of cooling capacity for the NYTC Data Center if not provided for within the 2.0 w/ft² supplementary cooling allowance.

b)Ventilation: 20 cfm/person or, 0.2 cfm/ft²

c)Occupancy: 100 ft²/person

d)Outdoor conditions: summer 91/76°F, winter 5°F with 15 mph wind.

e)Indoor conditions: summer 75°F +/- 1°, 50% RH + 5% (uncontrolled), winter 72°F +/- 1°

2)Central Plant will be designed to allow for 24 hr per day 7 day per week 52 week per year operation.

3)Complete Refrigeration Plant including

a)Refrigeration machines with a capacity to satisfy the cooling load. Redundant machines are not provided. Multiple chillers (4 or more) are required.

b)Cooling towers with a capacity to satisfy cooling load (summer and winter as required by the New York State Energy Code.) Redundant cells are not provided.

c)Condenser water and chilled water pumps to satisfy cooling load. One redundant chilled water and condenser water pump of each size is provided.

2

d)Free cooling plate and frame plate exchangers to provide 100% of cooling requirements as required by the New York State energy code. Redundant plate and frame heat exchangers are not provided.

e)Chilled water and condenser water piping within the central plant, connecting cooling towers and a set of risers through the building piped to typical floor air handling units.

f)Valved outlets (2¹/₂”) on the condenser water and the chilled water risers for connection to by Owner/Tenant as required for supplementary cooling.

4)Complete heating plant including:

a)High Pressure Con Ed Steam Service.

b)Complete steam heating system as designed by Flack and Kurtz and approved by NYTC and FCRC.

5)Typical Floor Mechanical Rooms consisting of:

a)Air handling unit(s) with capacity to offset electric, occupancy, envelope and outside air loads. The unit will be provided with cooling coils, fan, medium efficiency filters 35% Eff’s/85% Eff’s, smoke detectors, variable speed drive and controls for the operation of the unit.

b)Heated ventilation air with automatic control damper.

c)Smoke exhaust either using a dedicated riser or the outside air shaft capable of exhausting each office floor one at a time at a rate of 6 air changes per hour.

d)Medium pressure ductwork from the air handling unit to the outside face of the core wall.

e)Return air transfer plenum (within the typical floor mechanical room) to a location on the exterior wall surface of the mechanical room wall which will be above the tenant provided hung ceiling.

6)Perimeter heating system consisting of:

a)Perimeter hot water risers.

7)Outside air ventilation system consisting of:

a)Air handing units with medium efficiency filters, fans, heating coils, cooling coils and variable speed drives.

b)Ductwork from units to outside air shafts.

c)Controls including valves, sensors, controllers and dampers.

d)Air monitoring system to monitor carbon dioxide levels in occupied spaces.

8)General Exhaust system with capacity to exhaust 1500 cfm per floor with stub outs on each floor with fire and smoke dampers as required by code.

9)Toilet exhaust systems with a capacity of 2 cfm/sf with 10% spare capacity.

10)Emergency power system for Base Building Life Safety Systems consisting of:

a)Fuel oil system with a capacity of 6 hours of fuel to operate the generator(s) at full load.

b)Exhaust system consisting of exhaust piping and silencers.

c)Ventilation and exhaust air as required to operate the generator.

11)Building control system consisting of:

a)Main processing unit.

b)Backbone distribution to a panel within each floor typical floor mechanical room with capacity to control VAV boxes (1 per 800-900 square feet), air handling units and dampers on each floor.

c)Control of all base building equipment such as outside air systems, boilers, chillers and toilet exhaust systems.

12)Smoke management system consisting of:

a)Fans to provide a minimum of 6 air changes per hour for any two occupied floors area of the building.

b)Ductwork from the fans to the space served.

3

c)Fire smoke dampers wired to the fire command station for all fire zones included in the base building design.

13)Complete HVAC systems for all public spaces such as:

a)Main lobby

b)Back of house spaces

14)Provide space to accommodate user-specific mechanical or electrical equipment.

15)Sound Attenuation design criteria:

a) NC-35 in general areas and NC-40 within 10’ of mechanical rooms.

VI.ELECTRICAL

Base building electrical service consisting of a 460 volt service, transformers and associated vaults, network protectors and main switchgear, including circuit breakers and fused disconnect switches.

Main service electrical distribution to each floor via buss ducts.

Provisions for three buss duct stabs per duct into each buss duct.

Buss tap switches, transformers, and branch circuit panel boards required to accommodate user needs, other than for base building mechanical equipment, will not be installed as part of core and shell work.   Provision of two electrical closets per tower floor and three electrical closets per podium floor with back boxes for cables.

Power distribution as required to support the floor by floor mechanical equipment.

Emergency Power sufficient for life safety functions as required by code including generators, automatic transfer switches.

Space provisions for running supplemental and standby power feeders through the building to selected floors.

Space and structural requirements to accommodate the Owner/Tenants standby generators, UPS, and fuel oil storage systems as may be required.

Lighting in all base building mechanical rooms, lobbies, and emergency stairwells.

Exterior and Facade Lighting.

Facilities will be provided to allow the distribution system to be increased for special user or tenant needs.

Attenuation will be provided for RFI/EMI as required.

VII.FIRE ALARM SYSTEM

Class E Alarm System sufficient in size to accommodate the point capacity of the entire building. All base building devices installed as required by Code on all floors and in the common areas to be provided as part of the base building core and shell.

VIII.SECURITY

Security for base building envelope including perimeter surveillance. Space will be provided to NYTC for purpose of installing dedicated security conduits in the core and common areas including the loading dock area.

4

IX.TELECOMMUNICATIONS

Provision of four (4) service entry points.

Provision of two (2) main telecom rooms.

Provide empty 4” conduits from point of entry to individual telecom closets.

Two IDF closets will be provided for each tower floor and three for each podium floor.

Provide 2- 4” conduit risers from the lowest NYTC floor to roof.

Allow for space on roof to accommodate NYTC communications satellite dishes.

EXHIBIT G

Examples of Calculations Under Section 3.07(C)(b)(iii)

G-1

Example for 3.07 (C) (b) FC Member’s Put-Right

		Example
)
IF	FC Member Contribution is <	$	21,700,000
THEN	FC Member Pays NYTC Member
	(x)	$	21,700,000
	-(y) FC Member Funded SACS	$	(10,000,000	)	Note: This value is used for illustrative purposes only.
	FC Member Payment	$	11,700,000
i)
IF	FC Member Contribution is >	$	21,700,000
AND	SAC Funded <	$	84,940,000
THEN	NYTC Member pays FC Member
	(1) FC Member Funded SACS	$	30,000,000		Note: This value is used for illustrative purposes only.
	- (2)	$	(21,700,000	)
	FC Member Excess Land Payment	$	8,300,000
ii)
IF	FC Member Contribution is >	$	21,700,000
AND	SAC Funded >	$	84,940,000
Then (A)	NYTC Member pays FC Member
	FC Member Funded SACS	$	40,000,000
		$	(21,700,000	)	Note: This value is used for illustrative purposes only.
	(1) FC Member Excess Land payment	$	18,300,000
	(2) The FC Member ESAC Amount
	(x) FC Member ESAC Percentage (FC Member’s Land Share)	45		%
	x(y) Total ESAC Paid as of FC Put Closing Date	$	3,948,889
		$	1,777,000
	(1)	$	18,300,000
	(2)	$	(1,777,000	)
	FC Member Excess Land Payment (net ESACS)	$	16,523,000
AND (B)	NYTC Member Pays FC Member ESAC Credit
	FC Member ESAC at time received
	FC Member ESAC	$	1,777,000
	Divided by Total ESAC	$	5,000,000		Note: This number is used for illustrative purposes only but would include all ESAC’s paid as of FC Put Closing Date plus all ESACS subsequently paid by NYTC.
	FC Member ESAC Percentage	35.54		%
	Total ESAC (if Total ESAC is < or = to 85% of PILOT for Year 1 then able to draw down total ESAC in Year 1; otherwise, FCR Member receives in this example 35.54% of total ESAC credits if, as and when received by NYTC)	5,000,000
	xFC Member ESAC Percentage	35.54		%
	FC Member ESAC Payment	$	1,777,000

EXHIBIT H

Total Costs of the Project

H-1

Exhibit H

Total Project Costs

	Description
	Description
1	SITE ACQUISITION:
2	Site Acquisition
3	20% LC
4	Broker Fee
5	Total Site Acquisition
6
7	HARD COSTS:
8	Trades -Base Building
9	Trades - Subway
10	Pre-construction Services
11	Tenant Contributions/Interior Build Out
12	SPU (Base, FF&E and Finishes)
13	General Conditions / CM Fee
14	Off-Site Work
15	Demolition/Environmental
16	Permits
17	Bonds
18	Owner’s Testing/Survey
19	Construction Contingency
20	Design/Scope Contingency
21	Total Hard Costs
22
23	SOFT COSTS:
24	A & E Base
25	A & E Reimburseables
26	A & E - Consultants/Web/Compel.
27	Architecture & Engineering
28
29	Internal Incentives
30	External Commissions
31	Leasing Commissions
32
33	Legal - General
34	Legal - Leasing
35	Legal - Financing
36	Legal - Zoning
37	Legal - Acquisitions
38	Legal
39
40	Construction Interest
41	Financing/Advisor Fees
42	Financing Fees & Out-of-Pocket Bank Expenses
43	Hedging Fee
44	FCE Finance Fee
45	ING Inspection Fee
46	Transfer Tax
47	Title Insurance Fee
48	Bank Inspection
49	Financing
50
51	Site Management
52	Project Expenses
53	Other Costs
54	Public Process
55	Signage/Art
56	Marketing/Public Relations/Project Expenses
57	Masterplanning
58	RE Taxes
59	Insurance
60	Other Costs
61
62	TOTAL SOFT COSTS
63
64	Sub-Total Project Costs
65
66	Rent Up Deficit
67	Development Contingency
68	ING Site Management Fee
69	Development/Developer Fee
70	TOTAL PROJECT COSTS

EXHIBIT I

Development Costs

I-1

FC Member Initial Capital Contribution

New York Times

Print Date: 12/10/01

Data Date: 11/08/01

		1	2	3	4 (1+2)	5	6 (4+5)
		Total FC Member Capital Contribution to the Company Total Costs Incurred	Total Incurred Shared Costs of FC Member + NYTC Member		NYTC Member Share of Incurred Shared Costs of FC Member + NYTC Member	NYTC Member Only Incurred Costs	NYTC Member Share of Total Incurred Costs
As Of Date : 10/31/01		As Of Date: 10/31/01	As Of Date: 10/31/01	NYTC %	As Of Date: 10/31/01	As Of Date: 10/31/01	As Of Date: 10/31/01
1	Acquisition	[*]	[*]	[*]	[*]		[*]	1
2	TOTAL SITE ACQUISITION	[*]	[*]	[*]	[*]		[*]	2
3							[*]	3
4	Traders: Base Building	[*]					[*]	4
5	Tenant Contributions	[*]					[*]	5
6	SPU Contribution	[*]					[*]	6
7	Trades – Subway	[*]					[*]	7
8	Pre-Construction Services	[*]	[*]	[*]	[*]		[*]	8
9	General Conditions/CM Fee	[*]					[*]	9
10	Demolition Environmental	[*]					[*]	10
11	Permits	[*]					[*]	11
12	Bonds	[*]					[*]	12
13	Owner’s Testing / Survey	[*]	[*]	[*]	[*]		[*]	13
14	Construction Contingency	[*]					[*]	14
15	Design/Scope Contingency	[*]					[*]	15
16	TOTAL HARD COSTS	[*]	[*]	[*]	[*]		[*]	16
17							[*]	17
18	A & E Base	[*]	[*]	[*]	[*]		[*]	18
19	A & E Reimburseables	[*]	[*]	[*]	[*]	[*]	[*]	19
20	A & E Consultants	[*]	[*]	[*]	[*]	[*]	[*]	20
21	ARCHITECTURE & ENGINEERING	[*]	[*]	[*]	[*]	[*]	[*]	21
24							[*]	24
25	LEASING COMMISSIONS	[*]					[*]	25
26							[*]	26
27	Legal – Ground Lse/Acqst/Tax Str.	[*]	[*]	[*]	[*]		[*]	27
28	Legal – Partnership & Develop Agreement	[*]					[*]	28
29	Legal – Financing/Condo	[*]					0	29
30	Legal – Leasing Office & Retail	[*]					0	30
31	LEGAL	[*]	[*]	[*]	[*]		[*]	31
32							[*]	32
33	Construction Interest	[*]					[*]	33
34	Financing Fees & Out-of Pocket	[*]					[*]	34
35	Mortgage Recording Tax	[*]					[*]	35
36	Transfer Tax	[*]					[*]	36
37	Title Insurance Fee	[*]					[*]	37
38	Bank Inspection/Appraisal	[*]					[*]	38
39	TOTAL FINANCING	[*]					[*]	39
40							[*]	40
41	Site Management	[*]					[*]	41
42	Marketing/Public Relations	[*]	[*]	[*]	[*]		[*]	42
43	Project Expenses	[*]					[*]	43
44	Signange / Art	[*]					[*]	44
45	Public Process	[*]					[*]	45
46	RE Taxes	[*]					[*]	46
47	Sunk Costs	[*]					[*]	47
48	Insurance	[*]	[*]	[*]	[*]		[*]	48
49	TOTAL OTHER COSTS:	[*]	[*]	[*]	[*]		[*]	49
50								50
51	TOTAL SOFT COSTS	[*]	[*]	[*]	[*]	[*]	[*]	51
52							[*]	52
53	SUB-TOTAL PROJECT COSTS	[*]	[*]		[*]	[*]	[*]	53
54							[*]	54
55	ING Fee	[*]					[*]	55
56	Development Contingency	[*]					[*]	56
57	Development Costs	[*]					[*]	57
58	TOTAL PROJECT COST	[*]	[*]		[*]	[*]	[*]	58
59								59
60	Recovery NYTC Sunk Costs							60
61	Developer Management Fee							61
62	Recovery of ESACS							62
63	State Sales Tax Deduction							63
64	Rent Up Deficit							64
65	Signage Income During Construction							65
66	NET PROJECT COST	14,814,297	6,834,186		3,959,438	21,700	3,981,138	—

*** NOTE: Cost incurred does not include interest payable by NYTC Member to FC Member

EXHIBIT J

Work Authorization

L-1

NEW YORK TIMES PROJECT
WORK AUTHORIZATION

06-Dec-01

09:41 PM

Requested By:	Forest City Ratner Companies						W.A. #:
Vendor:							Date:
Budget Line Item/
Cost Code:
Type of Agreement:		o	Hourly as per attached sheet
		o	Lump Sum
		o	Not to Exceed
		o	Other
Total Budget Allowance				Duration:	Start Date:
Previous Work Authorizations					Completion Date:
Amt. of this Work Authorization
Revised Work Authorizations
Remaining Budget Available
Cost Allocation:
NYT Real Estate Company LLC
				Confidentiality Form:		Signed:
FC Lion LLC						Attached:
NYT Real Estate/FC Lion
Special Purpose Use Cost
Recommendation:
Action:
NYT Real Estate Company LLC			Date	FC Lion LLC				Date

EXHIBIT K

True-Up Schedule

Exhibit K

NYTC Member						FC Member						Totals
Land Share		Funding Share		TP $		Land Share		Funding Share		TP $		Land Share		Funding Share		Trans Price
43.75	%	19.56	%	$	16,733	56.25	%	80.44	%	$	68,828	100.00	%	100.00	%	$	85,560
44.10	%	20.17	%	$	17,260	55.90	%	79.83	%	$	68,300	100.00	%	100.00	%	$	85,560
44.44	%	20.79	%	$	17,787	55.56	%	79.21	%	$	67,773	100.00	%	100.00	%	$	85,560
44.79	%	21.40	%	$	18,314	55.21	%	78.60	%	$	67,246	100.00	%	100.00	%	$	85,560
45.14	%	22.02	%	$	18,841	54.86	%	77.98	%	$	66,719	100.00	%	100.00	%	$	85,560
45.49	%	22.64	%	$	19,368	54.51	%	77.36	%	$	66,192	100.00	%	100.00	%	$	85,560
45.83	%	23.25	%	$	19,895	54.17	%	76.75	%	$	65,665	100.00	%	100.00	%	$	85,560
46.18	%	23.87	%	$	20,422	53.82	%	76.13	%	$	65,138	100.00	%	100.00	%	$	85,560
46.53	%	24.48	%	$	20,949	53.47	%	75.52	%	$	64,611	100.00	%	100.00	%	$	85,560
46.88	%	25.10	%	$	21,476	53.13	%	74.90	%	$	64,084	100.00	%	100.00	%	$	85,560
47.22	%	25.72	%	$	22,003	52.78	%	74.28	%	$	63,557	100.00	%	100.00	%	$	85,560
47.57	%	26.33	%	$	22,530	52.43	%	73.67	%	$	63,030	100.00	%	100.00	%	$	85,560
47.92	%	26.95	%	$	23,058	52.08	%	73.05	%	$	62,503	100.00	%	100.00	%	$	85,560
48.26	%	27.56	%	$	23,585	51.74	%	72.44	%	$	61,975	100.00	%	100.00	%	$	85,560
48.61	%	28.18	%	$	24,112	51.39	%	71.82	%	$	61,448	100.00	%	100.00	%	$	85,560
48.96	%	28.80	%	$	24,639	51.04	%	71.20	%	$	60,921	100.00	%	100.00	%	$	85,560
49.31	%	29.41	%	$	25,166	50.69	%	70.59	%	$	60,394	100.00	%	100.00	%	$	85,560
49.65	%	30.03	%	$	25,693	50.35	%	69.97	%	$	59,867	100.00	%	100.00	%	$	85,560
50.00	%	30.65	%	$	26,220	50.00	%	69.35	%	$	59,340	100.00	%	100.00	%	$	85,560
50.35	%	31.26	%	$	26,747	49.65	%	68.74	%	$	58,813	100.00	%	100.00	%	$	85,560
50.69	%	31.88	%	$	27,274	49.31	%	68.12	%	$	58,286	100.00	%	100.00	%	$	85,560
51.04	%	32.49	%	$	27,801	48.96	%	67.51	%	$	57,759	100.00	%	100.00	%	$	85,560
51.39	%	33.11	%	$	28,328	48.61	%	66.89	%	$	57,232	100.00	%	100.00	%	$	85,560
51.74	%	33.73	%	$	28,855	48.26	%	66.27	%	$	56,705	100.00	%	100.00	%	$	85,560
52.08	%	34.34	%	$	29,383	47.92	%	65.66	%	$	56,178	100.00	%	100.00	%	$	85,560
52.43	%	34.96	%	$	29,910	47.57	%	65.04	%	$	55,650	100.00	%	100.00	%	$	85,560
52.78	%	35.57	%	$	30,437	47.22	%	64.43	%	$	55,123	100.00	%	100.00	%	$	85,560
53.13	%	36.19	%	$	30,964	46.88	%	63.81	%	$	54,596	100.00	%	100.00	%	$	85,560
53.47	%	36.81	%	$	31,491	46.53	%	63.19	%	$	54,069	100.00	%	100.00	%	$	85,560
53.82	%	37.42	%	$	32,018	46.18	%	62.58	%	$	53,542	100.00	%	100.00	%	$	85,560
54.17	%	38.04	%	$	32,545	45.83	%	61.96	%	$	53,015	100.00	%	100.00	%	$	85,560
54.51	%	38.65	%	$	33,072	45.49	%	61.35	%	$	52,488	100.00	%	100.00	%	$	85,560
54.86	%	39.27	%	$	33,599	45.14	%	60.73	%	$	51,961	100.00	%	100.00	%	$	85,560
55.21	%	39.89	%	$	34,126	44.79	%	60.11	%	$	51,434	100.00	%	100.00	%	$	85,560
55.56	%	40.50	%	$	34,653	44.44	%	59.50	%	$	50,907	100.00	%	100.00	%	$	85,560
55.90	%	41.12	%	$	35,180	44.10	%	58.88	%	$	50,380	100.00	%	100.00	%	$	85,560
56.25	%	41.73	%	$	35,708	43.75	%	58.27	%	$	49,853	100.00	%	100.00	%	$	85,560
56.60	%	42.35	%	$	36,235	43.40	%	57.65	%	$	49,325	100.00	%	100.00	%	$	85,560
56.94	%	42.97	%	$	36,762	43.06	%	57.03	%	$	48,798	100.00	%	100.00	%	$	85,560
57.29	%	43.58	%	$	37,289	42.71	%	56.42	%	$	48,271	100.00	%	100.00	%	$	85,560
57.64	%	44.20	%	$	37,816	42.36	%	55.80	%	$	47,744	100.00	%	100.00	%	$	85,560
57.99	%	44.81	%	$	38,343	42.01	%	55.19	%	$	47,217	100.00	%	100.00	%	$	85,560
58.33	%	45.43	%	$	38,870	41.67	%	54.57	%	$	46,690	100.00	%	100.00	%	$	85,560
58.68	%	46.05	%	$	39,397	41.32	%	53.95	%	$	46,163	100.00	%	100.00	%	$	85,560
59.03	%	46.66	%	$	39,924	40.97	%	53.34	%	$	45,636	100.00	%	100.00	%	$	85,560
59.38	%	47.28	%	$	40,451	40.63	%	52.72	%	$	45,109	100.00	%	100.00	%	$	85,560
59.72	%	47.89	%	$	40,978	40.28	%	52.11	%	$	44,582	100.00	%	100.00	%	$	85,560
60.07	%	48.51	%	$	41,505	39.93	%	51.49	%	$	44,055	100.00	%	100.00	%	$	85,560
60.42	%	49.13	%	$	42,033	39.58	%	50.87	%	$	43,528	100.00	%	100.00	%	$	85,560
60.76	%	49.74	%	$	42,560	39.24	%	50.26	%	$	43,000	100.00	%	100.00	%	$	85,560
61.11	%	50.36	%	$	43,087	38.89	%	49.64	%	$	42,473	100.00	%	100.00	%	$	85,560
61.46	%	50.97	%	$	43,614	38.54	%	49.03	%	$	41,946	100.00	%	100.00	%	$	85,560
61.81	%	51.59	%	$	44,141	38.19	%	48.41	%	$	41,419	100.00	%	100.00	%	$	85,560
62.15	%	52.21	%	$	44,668	37.85	%	47.79	%	$	40,892	100.00	%	100.00	%	$	85,560
62.50	%	52.82	%	$	45,195	37.50	%	47.18	%	$	40,365	100.00	%	100.00	%	$	85,560
62.85	%	53.44	%	$	45,722	37.15	%	46.56	%	$	39,838	100.00	%	100.00	%	$	85,560
63.19	%	54.05	%	$	46,249	36.81	%	45.95	%	$	39,311	100.00	%	100.00	%	$	85,560
63.54	%	54.67	%	$	46,776	36.46	%	45.33	%	$	38,784	100.00	%	100.00	%	$	85,560
63.89	%	55.29	%	$	47,303	36.11	%	44.71	%	$	38,257	100.00	%	100.00	%	$	85,560
64.24	%	55.90	%	$	47,830	35.76	%	44.10	%	$	37,730	100.00	%	100.00	%	$	85,560
64.58	%	56.52	%	$	48,358	35.42	%	43.48	%	$	37,203	100.00	%	100.00	%	$	85,560

If Land Share percentages are between the above ranges, Funding Shares shall be determined by interpolation (e.g., NYTC Member Land Share of 60.00% shall result in NYTC Member Funding Share of 48.39%, computed as follows: 47.89% + ((48.51%-47.89%) / (60.07%-59.72%)) x (60.00%-59.72%) = 48.39%.

EXHIBIT L

Pledge and Assignment Agreement

EXHIBIT L

[Pledge and Assignment Agreement]

PLEDGE AND ASSIGNMENT AGREEMENT

PLEDGE AND ASSIGNMENT AGREEMENT (as it may be amended, supplemented, or otherwise modified from time to time, this “Agreement”) dated as of                       , 2001 made by FC Lion LLC, a New York limited liability company (the “Pledgor”), in favor of NYT Real Estate Company LLC, a New York limited liability company, as the secured party (the “Secured Party”).

RECITALS

WHEREAS:

A.Pursuant to that certain Operating Agreement made as of even date herewith (as the same may be amended, supplemented or otherwise modified from time to time, (the “Operating Agreement”) between the Pledgor and Secured Party (individually, each sometimes referred to as a “Member” and collectively sometimes referred to as the “Members”) and the Articles of Organization of The New York Times Building LLC, Pledgor and Secured Party formed a limited liability company (the “Company”) to lease certain real property and develop thereon a multi-story office building that will serve as the corporate headquarters of The New York Times Company (the “Project”).

B.Pursuant to the terms of the Operating Agreement (including, without limitation, Sections 3.01 (a), (b), (c), (d), (e), (f), (g), (h), (i), (j) or (k) thereof), Pledgor is required to make capital contributions to the Company for the development of the Project (“Capital Contributions”).

C.Pursuant to Section 3.04(a) of the Operating Agreement, if Pledgor fails to make any required capital contribution or contributions, Secured Party may elect to make a loan to the Company (“Demand Loan”) in an amount equal to the delinquent capital contribution, such loan to bear interest at the Default Rate and to be repayable by Pledgor on demand and secured by Pledgor’s interest in the Company and its rights to distributions and other amounts payable to it under the Operating Agreement.

D.Pursuant to Section 3.04(b) of the Operating Agreement, if the amount of Capital Contributions (inclusive of accrued and unpaid interest thereon) that Pledgor has failed to make as required pursuant to the terms of the Operating Agreement exceeds, in the aggregate, $5,000,000 (the “Acquisition Threshold”) Secured Party may acquire the Membership Interest of Pledgor in the Company in accordance with the procedures in said Section 3.04(b) set forth (the “Acquisition Option”).

E.The Members have agreed that as further and additional security to Secured Party for Pledgor’s obligations to make Capital Contributions and to repay any Demand Loan

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(hereinafter collectively referred to as the “Secured Obligations”), and in confirmation of Secured Party’s Acquisition Option, the Pledgor shall execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing covenants and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Pledgor and the Secured Party hereby agree as follows:

1.Grant of Security Interests; Certain Definitions. As security for the payment and performance in full of the Secured Obligations, the Pledgor does hereby (i) grant to the Secured Party, a first priority and exclusive continuing lien on and security interest in, and hereby pledges to the Secured Party, the properties and property rights listed on Schedule 1 hereto (hereinafter individually and collectively called the “Collateral”) and (ii) ratify and confirm Secured Party’s Acquisition Option with respect thereto. For purposes of this Agreement, the terms “Company”, “Company Documents” and “Membership Interest” shall have the meanings given thereto in said Schedule 1 hereto. All other capitalized terms used herein without definition shall have the meanings ascribed thereto in the Operating Agreement.  The Pledgor shall not grant or suffer to exist any other lien on or security interest in, or any other claim or encumbrance affecting, the Collateral or any part thereof except as expressly permitted under the Operating Agreement.

2.Assurances.

At any time and from time to time, upon demand of the Secured Party, at the Pledgor’s sole expense, the Pledgor will give, execute, file and record, or cause the same to be done by other parties, any and all notices, financing statements, financing statement amendments, or continuation statements, that the Secured Party may reasonably consider necessary to create, confirm, preserve, maintain, continue, perfect or validate, or establish the priority of, the security interest granted hereunder or to enable the Secured Party to exercise or enforce its rights hereunder with respect to such lien, security interest and Acquisition Option.

3.Representations; Warranties; Covenants. The Pledgor hereby represents, warrants and covenants, to and with the Secured Party, that:

(1)Except for the security interest granted hereunder, but subject, however, to Secured Party’s exercise of the Acquisition Option in accordance with the provisions of Section 6 of this Agreement and Section 3.04 of the Operating Agreement, the Pledgor (i) is and will at all times continue to be the direct legal and beneficial owner of the Collateral hereunder, (ii) holds in the manner aforesaid the Collateral hereunder free and clear of all liens, claims, charges, restrictions, encumbrances, security interests or voting agreements (except as may be set forth in the Company Documents as in effect on the date hereof to the extent not waived or modified) or trusts of any kind or nature, and has not executed or authorized and will not execute or authorize (except as contemplated hereunder) the filing of any financing statement or other similar notice covering the Collateral or any part thereof, (iii) will not make or suffer any assignment or pledge, or create or suffer the creation of any lien, claim, charge, encumbrance or security interest affecting, or any voting agreement (except as may be set forth in the Company Documents as in effect on the date hereof to the extent not waived or modified) or trusts with respect to, the Collateral or any part thereof, and (iv) will not sell, assign, or

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transfer or encumber its interest in the Company except as permitted under the Operating Agreement, but nevertheless subject to the lien hereof.

(2)The Pledgor (i) has, and at all times will have, good right and legal authority to grant a security interest in the Collateral in the manner hereby contemplated and (ii) will defend, at its own cost, its and the Secured Party’s title and interest thereto or therein, against any and all attachments, liens, claims, charges, encumbrances, security interests, agreements, trusts, or other impediments of any nature not permitted hereunder, however arising, of all persons whomsoever.

(3)No consent or approval of any governmental body or regulatory authority or any securities exchange or any other person is necessary for the validity of the grant or enforcement of the security interest effected hereby, including, without limitation, Secured Party’s exercise of the Acquisition Option, nor does the entering into or performance hereunder by the Pledgor violate or constitute, nor the enforcement of any such security interest constitute a default or require any consent or approval of any other person (other than such as have been obtained) under the terms of the Pledgor’s organizational documents or any material indenture, agreement, instrument or document, or any order or decree of any court, tribunal, or other person or body, to which the Pledgor is a party or by which the Pledgor or the property thereof is bound or affected.

(4)Pledgor hereby irrevocably waives any defense to the enforcement of Secured Party’s rights and remedies under this Agreement premised upon a claim that (i) the execution and delivery of this Agreement by the Pledgor fails to vest in the Secured Party, the rights in the Collateral as set forth herein, or (ii) upon execution and delivery hereof, the Secured Party does not have a valid and enforceable first priority continuing security interest in and contingent option to acquire the Collateral, or (iii) upon filing of appropriate Uniform Commercial Code financing statements with the office(s) specified in Schedule 3 hereto, such security interest is not fully perfected, and is not at all times superior to any other lien, security interest or encumbrance against the Collateral.

(5)The Pledgor is a New York limited liability company in good standing under applicable law.

(6)All necessary action on the part of the Pledgor to authorize the execution, delivery and performance of this Agreement, and the creation and grant of the security interests and Acquisition Option hereunder in the Collateral, has been duly and properly taken and all conditions to the effectiveness of such security interests and Acquisition Option have been met.

(7)Pledgor was formed on November 30, 2001 and the office where it keeps its records regarding the Collateral is and at all times has been as set forth in Schedule 4 hereto.

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4.Distributions; Other Rights; Pledgor Obligations.

(1)After written notice by the Secured Party to the Company, which the Secured Party may give, in its sole discretion, upon the giving of a Section 3.04 Assignment Notice following the occurrence and during the continuation of an Event of Default, there shall become vested in the Secured Party the sole and exclusive right and authority to receive and retain payments and distributions from the Company otherwise payable to the Pledgor (which shall, (i) unless a “Major Event of Default”, as such term is defined in Section 6(a) hereof, shall have occurred and be continuing and the “Section 3.04 Assignment Notice”, as such term is defined in the Operating Agreement, shall have been delivered, be applied against any Demand Loans then outstanding, and (ii) if a “Major Event of Default” shall have occurred and be continuing and the Section 3.04 Assignment Notice shall have been delivered, be retained by Secured Party without obligation to account to Pledgor with respect thereto), which right and authority the Secured Party may exercise by written notice to the Company and Pledgor. Any amounts paid or distributed to the Pledgor notwithstanding the preceding sentences of this paragraph shall forthwith be delivered to the Secured Party in the form received (except for the appropriate endorsement of any checks and except for any other appropriate instruments of transfer), and all such amounts distributed to the Pledgor shall be received and held apart separately in trust for the benefit of the Secured Party pending such delivery.

(2)After the occurrence of a Major Event of Default and the giving of the 3.04 Assignment Notice in accordance with the Operating Agreement, (i) the Pledgor shall not be entitled to exercise any and all rights to consent, approve, elect, determine, consult, propose, agree, or similar prerogatives, if any, pertaining to the Collateral or any part thereof (“Prerogatives”), and (ii) automatically, without further notice, all rights of the Pledgor to exercise Prerogatives, if any, that it would otherwise be entitled to exercise shall cease, and the exercise of any such Prerogatives shall thereupon be subject in each instance to the prior approval of the Secured Party.

(3)Notwithstanding anything contained elsewhere herein, this Agreement shall not in any way be deemed to obligate any other transferee of Secured Party, to assume any of the Pledgor’s obligations, duties, expenses or liabilities in respect of the Collateral (collectively, “Pledgor Obligations”) unless such purchaser or other transferee, at its written election, becomes a member of the Company or otherwise agrees in writing to assume any or all of said Pledgor Obligations.

5.Additional Covenants. The Pledgor hereby covenants and agrees:

(1)that, to the extent permitted by law, the Secured Party may file without the signature of the Pledgor Uniform Commercial Code financing statements and continuations and amendments thereof in respect of the security interest and Acquisition Option hereunder, and that photographic or other reproductions of this Agreement or of any financing statement or continuation thereof shall be sufficient as a financing statement or continuation thereof;

(2)that the Pledgor will give the Secured Party prior notice of any change of Pledgor’s residence or principal place of business, place where books and records

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covering the Collateral are kept, name, identity, social security or taxpayer identification number or change of structure in respect of the Company, including, without limitation, notice of any merger, consolidation or combination to which the Company is a party, or of any other event that might result in an impairment of the effectiveness of any Uniform Commercial Code filing in respect of any Collateral;

(3)that the Pledgor will, at its expense, execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Secured Party may from time to time reasonably request to better assure, preserve, protect and perfect the security interest and pledge and the rights and remedies created hereby, including the Acquisition Option and the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of the security interest, the pledge, and the filing of any financing statements or other documents in connection herewith; and

(4)that at its option and upon at least twenty (20) days prior written notice to Pledgor, the Secured Party may discharge past due taxes, assessments, charges, fees, liens, security interests or other encumbrances at any time levied or placed on the Collateral and may pay for the maintenance and preservation of the Collateral to the extent the Pledgor fails to do so as required by this Agreement or the Operating Agreement, and the Pledgor agrees to reimburse the Secured Party on demand for any payment made or any expense incurred by the Secured Party pursuant to the foregoing authorization; provided that nothing in this paragraph shall be interpreted as excusing the Pledgor from the performance of, or imposing any obligation on the Secured Party to cure or perform, any covenants or other promises of the Pledgor in respect of taxes, assessments, charges, fees, liens, security interests or other encumbrances and maintenance as set forth herein or in the Operating Agreement, except and to the extent it is so obligated as a member of the Company.

6.Event of Default.

(a)As used in this Agreement, an “Event of Default” shall mean:

(i)the failure by the Pledgor to make any Capital Contribution required to be made by the Pledgor under the Operating Agreement which defaulted Capital Contribution (and accrued and unpaid interest thereon at the Default Rate) exceeds $5,000,000 (or which defaulted Capital Contribution, when aggregated with any prior defaulted Capital Contributions of Pledgor with accrued and unpaid interest thereon at the Default Rate, exceeds $5,000,000), which failure continues after the giving of the Section 3.04 Default Notice and the expiration of applicable cure periods under Section 3.04(b) of the Operating Agreement (hereinafter sometimes called a “Major Event of Default”); or

(ii)the failure by Pledgor to repay any Demand Loan upon demand by the Secured Party (it being acknowledged and

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agreed that the failure to repay any Demand Loan in an amount equal to or in excess of, or in an amount which when aggregated with the amount of any other unpaid Demand Loan(s) equals or exceeds, $5,000,000, upon demand by the Secured Party, shall also be deemed a “Major Event of Default”).

(b)Upon the occurrence and during the continuation of a Major Event of Default, the Secured Party may (without any obligation to seek performance of any guarantee or other accommodation in favor of Secured Party in respect of any Contribution Obligation or to resort to any other security, right or remedy granted to it under any other instrument or agreement, including without limitation, any other document or other instrument or agreement referred to herein) exercise the Acquisition Option and acquire the Membership Interest of Pledgor in the Company subject to and in accordance with Section 3.04 of the Operating Agreement.

7.No Obligation of Secured Party. The powers conferred on the Secured Party hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers or any other responsibility except as set forth herein and except such obligations as Secured Party may have upon the acquisition of the Collateral following the exercise of the Acquisition Option pursuant to Section 3.04(b) of the Operating Agreement. The Secured Party may, in its sole and absolute discretion, but with no obligation whatsoever to do so, expend or invest moneys to cure a default by the Pledgor individually or as a member or manager of the Company or otherwise protect the Collateral. Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for monies actually received by it hereunder, the Secured Party shall have no duty as to any Collateral, except and only to the extent that the Secured Party shall have the responsibilities imposed on it as a member and a manager of the Company under the Operating Agreement.

8.Rights Cumulative. No failure on the part of the Secured Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy by the Secured Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Subject to Section 3.04(d) of the Operating Agreement, all rights and remedies of the Secured Party hereunder and under the Operating Agreement are cumulative and are not exclusive of any other rights or remedies provided herein or therein or by law or otherwise.

9.Rights Absolute; No Discharge of Pledgor; No Assumption of Pledgor Liabilities. All rights of the Secured Party hereunder, the grant of the security interest in and pledge of the Collateral, and all obligations of the Pledgor hereunder, shall be absolute and unconditional, irrespective of (i) any lack of validity or enforceability of the Operating Agreement or any other agreement or instrument with respect to any of the Secured Obligations or of any other agreement or instrument relating to any of the foregoing except that the foregoing shall not preclude Pledgor from asserting the defense that Pledgor is not in default in the payment or performance of the Secured obligations in accordance with the terms of the Operating Agreement, (ii) any change in the time, manner or place of payment of, or in any other term of, all or any part of the Secured Obligations, including, without limitation, any increase or

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reduction in amount, extension of the time of payment of all or any amount due thereunder, any change in interest rates applicable thereto, any subordination thereof or of other obligations thereto, or renewal of all or any thereof, or any other amendment or waiver of or any consent to any departure from the terms of the Operating Agreement or any other agreement or instrument, (iii) any exchange, release or nonperfection of any lien, security interest or collateral security in respect thereof, or any release or amendment or waiver of or departure from any guarantee of all or any of the Secured Obligations or the failure to enforce any such collateral security or any release, amendment or waiver of or consent to or departure from any guarantee for or undertaking relating to any of the Secured Obligations, (iv) any exercise or nonexercise by the Secured Party of any right, remedy, power or privilege under or in respect of this Agreement, or applicable law, including, without limitation, Secured Party’s failure to or delay in the exercise of the Acquisition Option and any failure by the Secured Party to setoff or release in whole or in part any credit on its books in favor of the Pledgor or any waiver, consent, extension, indulgence or other action or inaction in respect of any thereof, (v) any change in the structure or tax characterization of the Pledgor, or any transaction (including any merger or consolidation) to which it may be a party (in each case whether or not permitted under the Operating Agreement), or (vi) any other act, omission or delay to do any act or thing or any circumstance which may or might vary the risk of the Pledgor or impair the Collateral or which might otherwise constitute a defense available to, or a discharge, release, or exoneration of, any person, including the Pledgor, in respect of the Secured Obligations or in respect of this Agreement. Nothing in this Section shall deprive the Pledgor of the defense of payment of any Contribution Obligation. Nothing in this Agreement shall cause or obligate the Secured Party to assume or otherwise be or become liable for any of the Pledgor’s obligations, liabilities, duties, expenses, or costs in respect of any Collateral, under any Company Documents or under law in respect of the Company or its property or its interest in any other membership or entity, unless it becomes a member thereof at its written election, or except as may be provided for under the Operating Agreement.

10.Further Waivers. The Pledgor hereby waives presentment, demand, and protest (to the fullest extent permitted by applicable law) of any kind in connection with this Agreement or any Collateral. Except notices which are expressly provided for herein, the Pledgor hereby waives notice (to the fullest extent permitted by applicable law) of any kind in connection with this Agreement. The Pledgor hereby further waives any claims of any nature whatsoever against the Secured Party (and its respective officers, employees, agents, nominees, counsel and each of them) arising out of or related to the sale or transfer of the Collateral, or any part thereof, in accordance with this Agreement or applicable law, notwithstanding that such sale or transfer occurred at such time or in such a manner as to directly or indirectly decrease the purchase price required to be paid for the Collateral. The Pledgor hereby consents to, and waives any claim by reason of, any sale or other disposition pursuant to this Agreement of the economic rights to receive payments and distributions from the Company under Section 4(a) separate from any managerial rights of the Pledgor as a member and manager of the Company.

11.Termination and Release. This Agreement shall terminate upon the earlier to occur of the following two (2) events: (i) Secured Party’s acquisition of the Collateral pursuant to this Agreement, or (ii) the occurrence of the Conversion Date.   Secured Party will deliver to Pledgor upon request after termination instruments confirming such termination, including without limitation, UCC-3 Termination Statements, provided that, in the event of a termination by reason of Secured Party’s acquisition of the Collateral pursuant to this

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Agreement, Pledgor shall have delivered to Secured Party a written confirmation in form reasonably satisfactory to Secured Party that Pledgor has no right, title or interest in and to the Collateral and that such Collateral is owned by Secured Party without any claims retained by Pledgor with respect to such Collateral, but the failure of Pledgor to deliver such a confirmation shall not affect the exercise of Secured Party’s rights pursuant to this Agreement or Secured Party’s right, title and interest in and to the Collateral.

12.Amendments; Waivers; No Consequential Damages. No amendment or waiver of any provision of this Agreement, nor consent to any departure by the Pledgor therefrom, shall in any event be effective unless the same shall be in writing and signed by the party to be charged therewith. Any such waiver, consent or approval shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Pledgor in any case shall entitle the Pledgor to any other or further notice or demand in the same, similar or other circumstances. No waiver by the Secured Party of any breach or default of or by the Pledgor under this Agreement shall be deemed a waiver of any other previous breach or default or any thereafter occurring.

13.Reliance, Survival; Severability.

(1)All covenants, agreements, representations and warranties made by the Pledgor herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or the Operating Agreement shall be considered to have been relied upon by the Secured Party and shall survive the Secured Obligations, regardless of any investigation made by the Secured Party or on its behalf, and shall continue in full force and effect as long as the Secured Obligations are outstanding and unpaid or any other fee or amount payable under this Agreement is outstanding and unpaid.

(2)Any provision of this Agreement that is illegal, invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without invalidating the remaining provisions hereof or affecting the legality, validity or enforceability of such provisions in any other jurisdiction. The parties hereto agree to negotiate in good faith to replace any illegal, invalid or unenforceable provision of this Agreement with a legal, valid and enforceable provision that, to the extent possible, will preserve the economic bargain of this Agreement, or to otherwise amend this Agreement to achieve such result.

14.Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Pledgor or the Secured Party that are contained in this Agreement shall bind and inure to the benefit of the Pledgor, the Secured Party, and their respective successors and assigns. Neither Pledgor nor Secured Party may assign or transfer any of its rights or obligations hereunder or any interest herein or in the Collateral except in connection with a permitted assignment or transfer of its respective interest under the Operating Agreement (and any such attempted assignment shall be null and void).

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15.GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ANY CONFLICT OF LAWS PRINCIPLES.

16.Headings. Any Article or Section headings in this Agreement are for convenience only and shall not affect the construction hereof.

17.Notices. Notices, consents and other communications provided for herein shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 14.02 of the Operating Agreement. Communications and notices to the Company shall be given to it at its address set forth in Schedule 2 hereto.

18.Expenses; Indemnification.

(1)In the event of litigation to enforce or interpret this Agreement, the prevailing party(ies) in such litigation shall be entitled to recover from the losing party(ies) its or their reasonable attorney’ s fees and costs incurred in such litigation, including such costs and fees on appeal.

(2)Any amounts payable by the Pledgor as provided hereunder shall be additional Secured Obligations secured hereby. The provisions of this Section shall remain operative and in full force and effect regardless of the termination of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any investigation made by or on behalf of the Secured Party. All amounts due under this Section shall be payable on written demand therefor and shall bear interest until paid in full at the Default Rate and shall be secured by the Secured Party’s security interest in the Collateral.

19.Counterparts. This Agreement may be executed in separate counterparts (telecopy of any executed signature page hereof having the same effect as manual delivery of an executed counterpart hereof), each of which shall constitute an original, but all of which, when taken together, shall constitute but one Agreement.

20.Integration; Submission to Jurisdiction; Consent to Service.

(1)Except as expressly herein provided, this Agreement, the Operating Agreement, and any and all other signed writings of even date herewith, constitute the entire agreement among the parties relating to the subject matter hereof. Any previous agreement among the parties with respect to the transactions contemplated hereunder is superseded by this Agreement and such other agreements and writings. Except as expressly provided herein, nothing in this Agreement, expressed or implied, is intended to confer upon any party, other than the parties hereto, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

(2)The Pledgor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County, New York and of the United States District Court for the

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Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Operating Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(3)The Pledgor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Operating Agreement or any related instrument in any court referred to in the preceding paragraph. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(4)Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 14.02 of the Operating Agreement. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

21.WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OPERATING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Pledge and Assignment Agreement to be as of the day and year first above written.

PLEDGOR:
FC LION LLC, a New York limited liability company, a member
By:		FC 41st Street Associates, LLC, a New York limited liability company, its managing member
		By:	RRG 8 South, Inc., a New York corporation, its managing member
			By:
				Name:
				Title:
SECURED PARTY:
NYT Real Estate Company LLC, a New York limited liability company
By:
	Name:
	Title:  Manager

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Schedule 1 to Pledge and Assignment Agreement

Collateral

(1)The entire membership interest of the Pledgor in The New York Times Building LLC, a New York limited liability company (the “Company”), as evidenced by the certificate issued to Pledgor pursuant to Section 14.13 of the Operating Agreement of the Company, including any shares or units representing an equity interest in the Company existing at any time (collectively hereinafter referred to as the “Membership Interest”) and all other present and future right, title and interest of the Pledgor as a member of the Company, and the rights, interest, and benefits in respect of the Pledgor arising under the agreements, documents and/or certificates (including, without limitation, articles of organization, as amended at any time, or similar or related publicly filed documents in respect of the Company, its operating agreement, as amended at any time, and any and all present and future similar or related constitutional or governing instruments of the Company) constituting or governing such Company (collectively, the “Company Documents”), and all other benefits pertaining thereto, including, without limitation, (i) all distributions by, and any other payments from, the Company, made at any time, and all present and future rights to receive any distributions or other payments from the Company, whether the same constitute distributions of capital, surplus, or profits, or derive from any other source, including, without limitation, any such distribution or payment derived from, representing, based upon, measured by, or otherwise in respect of, (x) the operating revenues of the Company, or (y) any sale, assignment, transfer, or other disposition (or transaction having comparable effect) of any assets of the Company, any mortgaging, encumbering, or other financing or refinancing of any assets of the Company, any insurance proceeds or condemnation awards in respect of any assets of the Company, any merger, consolidation, or recapitalization of the Company, any redemption or liquidation of the interest of the Pledgor in the Company, or any contribution of any property to the Company by any other holder of any interest therein, (ii) without limiting clause (i), any and all of Pledgor’s present and future rights to receive any other payments or distributions, made at any time, from the Company, or other holders of any interests therein, or from any other party, in respect of (A) any sale, assignment, transfer, encumbrance or other disposition (or transaction having comparable effect) of any other party’s interest in such Company or any rights in respect thereof, and (B) any payments of principal, interest, or of any other character in respect of any debt owed by the Company or other holder of any interest therein to the Pledgor, and (iii) subject to the terms of the Pledge and Assignment Agreement to which this Schedule is attached, all present and future rights to consent, approve, determine, consult, propose, agree, or similar prerogatives in respect of any actions or decisions pertaining to the Company or which affect the Collateral herein described or the security interest of the secured party, or to receive any indemnification for any acts or omissions, and all present and future rights to receive reports, notices, or information pertaining to, or to inspect or review properties, books, or records of, the Company (all of which property and rights referred to in this paragraph (a) are referred to collectively as the “Pledged Property”); and

(2)all of the cash and non cash proceeds (including, without limitation, all proceeds as such term is defined at any time in the NYUCC), products, rents, issues and profits of, and all distributions and payments in respect of, any of the property described above in paragraph (a) or this paragraph (b).

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Schedule 2 to Pledge and Assignment Agreement

Address of the Company for Notices

The New York Times Building LLC

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: David A. Thurm

with a copy to:

The New York Times Building LLC

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: Solomon B. Watson IV

and to:

Swidler Berlin Shereff Friedman, LLP

The Chrysler Building

405 Lexington Avenue

New York, New York. 10174

Attention: Martin D. Polevoy, Esq.

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Schedule 3 to Pledge and Assignment Agreement

Offices for Filing Forms UCC-1

New York State Secretary of State

City Register, New York County

City Register, Kings County

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Schedule 4 to Pledge and Assignment Agreement

Pledgor’s Principal Place of Business, and Place Where Records Regarding Collateral are Kept

One MetroTech Center North

Brooklyn, New York 11201

Tradenames and Fictitious Names of the Pledgor

None

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EXHIBIT M

FCE Completion Guaranty to Construction Lender

EXHIBIT M

[FCE Completion Guaranty to Construction Lender]

COMPLETION GUARANTY

THIS COMPLETION GUARANTY (“Guaranty”) is made and entered into as of the       day of                  , 2001, by FOREST CITY ENTERPRISES, INC., an Ohio corporation, whose address is 50 Public Square, Suite 1100, Cleveland, Ohio 44113-2267, Attention: Mr. James A. Ratner, President (“Guarantor”), in favor of                                                               , whose address is                                                               , Attention:                         (“Lender”).

W I T N E S S E T H  THAT:

WHEREAS, Lender has agreed upon certain conditions to make a construction and term loan to The New York Times Building LLC, a New York limited liability company (“Borrower”), in the total principal amount of up to                                                           ($                       ) (“Loan”), pursuant to the terms and conditions contained in that certain Construction Loan Agreement of even date herewith between Lender and Borrower (“Construction Loan Agreement”), which Loan is evidenced by a Promissory Note (“Note”) in the principal face amount of $                       , of even date herewith, and is secured by a Mortgage, Assignment of Leases and Rents, and Security Agreement (“Mortgage”) pertaining to certain property owned by Borrower and located in the City, County and State of New York, which is therein described (“Subject Property”); and

WHEREAS, Guarantor has an indirect interest in Borrower; and

WHEREAS, in order to induce Lender to make the Loan, and as additional security for performance by Borrower of its obligations under the Construction Loan Agreement relating to construction of the Project (as that term is defined in the Construction Loan Agreement) on the Subject Property, Borrower has agreed to obtain, and Guarantor has agreed to execute, deliver and perform, this Guaranty; and

WHEREAS, it is a condition precedent to the obligation of Lender to make the Loan to Borrower and to make any advances under the Construction Loan Agreement that this Guaranty be executed by Guarantor and be delivered to Lender; and

WHEREAS, Guarantor expects to derive benefits from the Loan to be made by Lender to Borrower and finds it advantageous, desirable and in its best interests to execute and deliver this Guaranty to Lender.

NOW, THEREFORE, in consideration of Lender’s agreement to make the Loan to Borrower in accordance with the terms of the Construction Loan Agreement, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by

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Guarantor, Guarantor hereby agrees that the foregoing recitals are true and correct and are by this reference hereby made a part hereof as if fully set forth below, and further covenants and agrees with Lender as follows:

1.Guarantor, for itself, its successors and assigns, hereby primarily, unconditionally, absolutely and irrevocably guarantees to Lender, and to its successors and assigns, that Borrower shall fully and punctually comply with and perform all of the agreements, covenants, obligations and liabilities of Borrower relating only with respect to the timely construction and completion of all basic building core and shell and all exterior Improvements (as that term is defined in the Construction Loan Agreement), including, but not limited to, that construction of the Project (as that term is defined in the Construction Loan Agreement) shall commence when required by the Construction Loan Agreement and construction of said Improvements (but not the Tenant Improvements [as that term is defined in the Construction Loan Agreement]) shall proceed diligently to Completion (as that term is defined in the Construction Loan Agreement) on or before the Completion Date (as that term is defined in the Construction Loan Agreement), in strict accordance with the Plans (as that term is defined in the Construction Loan Agreement) approved by Lender and with the other provisions of the Construction Loan Agreement and of the other Loan Documents (as that term is defined in the Construction Loan Agreement), free and clear of any mechanics’, materialmen’s and/or laborers’ liens, in accordance with all applicable zoning, building, environmental, land use and other laws, statutes, orders, codes, ordinances, rules and regulations, and all Costs (as that term is defined in the Construction Loan Agreement) of said Improvements shall be paid as and when due including, without limitation, the following:

(i)To perform, complete and pay for (or cause to be performed, completed and paid for) the construction of the Improvements and to pay all costs of said construction and all other costs associated therewith including, without limitation, the costs of any architects’ and engineers’ fees, if Borrower shall fail to perform or complete such work, as and when required under the Construction Loan Agreement, including any sums expended in excess of the amount of indebtedness incurred by Borrower under the Construction Loan Agreement, whether or not the construction is actually completed;

(ii)To pay all real estate taxes and PILOT Payments levied and assessed against the Subject Property during the construction if not paid when due by Borrower, as and when required under the Construction Loan Agreement; and

(iii)The full and prompt payment of any Enforcement Costs (as hereinafter defined in Paragraph 19 hereof).

Completion of the Improvements shall be deemed to have occurred upon satisfaction of all conditions to “Completion” set forth in the Construction Loan Agreement.

2.If the Project is not commenced as and when required by the Construction Loan Agreement and/or Completion of the Improvements described in Paragraph 1 hereof (hereinafter called “Subject Improvements”) does not occur in the manner provided for in the Construction Loan Agreement on or before the Completion Date, or construction thereof shall cease for a

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period of time such that an event of default exists under the Construction Loan Agreement, Guarantor shall promptly, upon demand by Lender, (i) diligently proceed to complete the Subject Improvements at Guarantor’s sole cost and expense; (ii) fully pay all unpaid Costs of the Subject Improvements theretofore incurred by Borrower and thereafter incurred by Guarantor to complete the same; (iii) pay and cause to be released and discharged of record all mechanic’s, materialmen’s and laborers’ liens resulting from unpaid Costs of the Subject Improvements; provided, however, that Guarantor shall have the same right to bond the same off and/or to contest the same granted to Borrower in the Mortgage, upon the terms and conditions therein provided; and (iv) pay Lender’s attorneys’ fees and all court costs incurred by Lender in enforcing this Completion Guaranty. Without in any way limiting the above obligations of Guarantor, and subject to there being no continuing event of default by Guarantor under this Guaranty, Lender shall make the undisbursed balance of the Loan available to Guarantor (pursuant to all of the terms and conditions of the Construction Loan Agreement and all of the other Loan Documents) for the purposes of completing the Project and fulfilling its other obligations under this Guaranty. The obligations and liabilities of Guarantor hereunder shall be direct and primary and not indirect or secondary, and shall be absolute, unconditional and irrevocable. Guarantor’s obligations hereunder shall not be deemed exonerated, discharged or satisfied, except as provided in Section 15 hereof. Notwithstanding anything else herein set forth which may be interpreted to provide to the contrary, by acceptance hereof Lender recognizes and acknowledges that this is not a guaranty of payment of the indebtedness evidenced and secured by the Loan Documents.

3.If Guarantor fails to promptly perform its obligations under this Guaranty, Lender shall have the following remedies: (a) at Lender’s option and without any obligation to do so, to take possession of the Subject Property and proceed and perform on behalf of Guarantor any or all of Guarantor’s obligations hereunder, and Guarantor shall, upon demand and whether or not construction of the Project is actually completed by Lender, pay to Lender all sums expended by Lender in excess of proceeds available under the Loan in taking possession of the Subject Property and performing Guarantor’s obligations hereunder, together with interest thereon at the Default Rate (as that term is defined in the Construction Loan Agreement); and/or (b) from time-to-time, and without first attempting to require performance by Borrower or exhausting any security for the Loan, to bring any action at law or in equity, or both, to compel Guarantor to perform its obligations hereunder, and/or to collect in any such action compensation for all losses, costs, expenses, damages and injuries sustained or incurred by Lender as a direct or indirect consequence of the failure of Guarantor to perform such obligations, together with interest thereon at the Default Rate.

4.Guarantor hereby acknowledges having received, reviewed and understood a true, correct and complete copy of the Construction Loan Agreement and each of the other Loan Documents. Guarantor acknowledges that this Guaranty is in effect and binding without reference to whether this Guaranty is signed by any other person or entity, that possession of this Guaranty by Lender shall be conclusive evidence of due delivery hereof by Guarantor and acceptance hereof by Lender, and that this Guaranty shall continue in full force and effect, both as to guaranteed obligations and liabilities now existing and/or those hereafter created.

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5.Guarantor hereby consents and agrees that, without any further notice to, or consent or agreement of, Guarantor (a) Lender make take, hold, exchange, enforce, waive, surrender and/or release other guarantees, collateral or security which further secure(s) payment and/or performance of the Loan Documents, or any of them, and (b) that any of the obligations, terms, covenants and conditions contained in the Loan Documents (including, but not limited to, Borrower’s obligations thereunder) may be renewed, altered, extended, changed, modified, supplemented or released at Lender’s written direction, or with lender’s written consent, without in any manner affecting this Guaranty or releasing Guarantor herefrom, and without the further consent of or notice to Guarantor, and Guarantor shall continue to be liable hereunder to pay and perform pursuant hereto notwithstanding any such renewal, alteration, extension, change, modification, supplement or release, or the taking, holding, exchanging, enforcing, waiving, surrender and/or release of such other guarantees, collateral or security. Guarantor hereby agrees that all or any part of the Subject Property and any other collateral may be released from, and any new or additional security may be released from, and any new or additional security may be added to, the lien and security interest of the Loan Documents; Borrower, its members and any additional parties who are or may become liable for payment or performance of the Loan Documents may hereafter be released from its or their liability under the Loan Documents; Lender may perfect or fail to perfect, or to continue the perfection of, any lien or security interest; and Lender may take, or delay in taking, or refuse to take, any and all action with reference to the Loan Documents, including specifically the settlement or compromise of any default or event of default allegedly existing thereunder, all without notice to, consideration to or the consent of Guarantor, and without in any way releasing, diminishing or affecting the absolute nature of Guarantor’s obligations and liabilities hereunder.

6.Guarantor hereby waives any and all legal requirements that Lender, or its successors or assigns, must institute any action or proceeding at law or in equity, or obtain any judgment, or exhaust their rights, remedies and/or recourses against Borrower or any other person or entity, or with respect to any security for the obligations hereby guaranteed, as a condition precedent to making any demand on, bringing an action against, or obtaining or enforcing any judgment against, Guarantor upon this Guaranty, and/or that they join Borrower or any other person or entity as a party to any such action. Guarantor agrees that Lender may simultaneously maintain an action upon this Guaranty and an action or proceeding upon the Note and/or the Construction Loan Agreement, and/or to foreclose or otherwise enforce the Mortgage and/or any other Loan Document. All remedies afforded to Lender, and its successors or assigns, by reason of this Guaranty and the Loan Documents, are separate and cumulative remedies, and it is agreed that no one of such remedies, whether or not exercised by Lender, or its successors or assigns, shall be deemed in exclusion of any of the other remedies available to Lender or its successors or assigns, at law, in equity, by statute, under contract (including, but not limited to, the Loan Documents), hereunder or otherwise, and shall in no way limit or prejudice any such other remedies which Lender, or its successors or assigns, may have. Mere delay or failure to act shall not preclude the exercise or enforcement of any rights and remedies available to Lender. Guarantor further waives any requirement that lender demand or seek payment or performance by Borrower or by any other person or entity of the amounts owing or the covenants to be performed under the Loan Documents, whether hereby guaranteed or not, as a condition precedent to bringing any action against Guarantor upon this Guaranty, it being agreed that a

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failure to comply with or perform the obligations, terms, covenants and conditions herein guaranteed shall, without further act, make Guarantor liable as herein set forth.

7.This Guaranty is an absolute, unconditional, complete and continuing guaranty of performance of the obligations recited in Paragraphs 1, 2 and 3 hereof. Guarantor hereby expressly waives all defenses of Borrower pertaining to said obligations, except for the defense of discharge by complete and irrevocable performance. Guarantor shall not be released (a) by any act, omission or thing which might, but for this provision of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, (b) by any application by Borrower of the proceeds of the Loan for purposes other than required by the Loan Documents, (c) by any defense based upon any statute or rule of law which provides that the obligations of a surety or guarantor must be neither larger in amount nor in other respects more burdensome than those of a principal, (d) by reason of any waiver, extension, renewal, modification, forbearance or delay by Lender, or its successors or assigns, or its or their failure to proceed promptly or otherwise, or (e) by reason of any further obligation or agreement between Borrower, and/or the then owner of the Subject Property, and the then holder of the Note, relating to the payment of any sum evidenced thereby or to any of the other terms, covenants and conditions contained therein or in the other Loan Documents, and Guarantor hereby expressly waives and surrenders any defense to liability hereunder based upon the foregoing acts, omissions, things, statutes, rules, waivers, extensions, modifications, forbearance’s, delays, obligations, agreements, or any of them, except the defense of complete and irrevocable performance in full. Guarantor also waives any defense arising by virtue of any disability, insolvency, bankruptcy, defect in formation or continuation, lack of authority or power, death, insanity, incompetence, liquidation or dissolution of, or any cessation or limitation of liability from any cause (other than full and irrevocable performance) of, Borrower, any member or agent thereof, or any other surety, co-maker, endorser or guarantor. No change in the ownership of Borrower or in Borrower’s members shall affect or change the terms of this Guaranty or in any way change or reduce the liability of Guarantor hereunder.

8.Guarantor hereby waives diligence in collection, notice of acceptance of this Guaranty by Lender and of presentment, protest, and all other notices and demands of any kind and description now or hereafter provided for by any law, statute, rule, regulation or agreement, except as herein otherwise expressly required. Guarantor hereby waives any and all right to cause a marshaling of the assets of Borrower (collectively or individually) or any other action with respect thereto by any court or other governmental body, and consents and agrees that Lender may direct the order and manner of the sale and/or disposition of all collateral and security under the Loan Documents and apply the proceeds thereof to the indebtedness evidenced and secured thereby in such order as Lender may in its sole discretion determine.

9.Guarantor hereby expressly agrees that the liabilities and obligations of Guarantor under this Guaranty shall not in any way be impaired or otherwise affected by the institution by or against Borrower or any other person or entity of any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or any other similar proceedings for relief under any bankruptcy law or similar law for the relief of debtors and that any discharge of any of the obligations and/or liabilities hereby guaranteed pursuant to any such bankruptcy or similar law or other law shall not diminish, discharge or otherwise affect in any way the obligations of

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Guarantor under this Guaranty, and that upon the institution of any of the above actions, such obligations shall be enforceable against Guarantor.

10.In the event that Guarantor shall advance or become obligated to pay any sums or incurs any costs or expenses hereunder, or in the event that for any reason Borrower and/or any subsequent owner of the Subject Property is now or shall hereafter become indebted or obligated to Guarantor, the amount of such sum, costs, expenses and such indebtedness or obligation shall at all times be subordinated as to lien, time of payment and in all other respects to the amounts owing to Lender under the Loan Documents. Notwithstanding any payment or payments made, or costs or expenses incurred, by Guarantor hereunder, Guarantor shall not be entitled to be subrogated to any of the rights of Lender against Borrower or any other guarantor or any collateral security or guaranty held by Lender for the payment of the guaranteed obligation, nor shall Guarantor seek or be entitled to seek any contribution or reimbursement from Borrower or any other guarantor in respect of payments made, or costs or expenses incurred, by Guarantor hereunder unless and until the indebtedness evidenced and secured by the Loan Documents shall have been paid in full. Except as otherwise set forth herein, Guarantor shall have no right to participate in any way in the Note, in the Construction Loan Agreement, in the other Loan Documents or in the right, title or interest of Lender in the Subject Property, or to receive payments from Borrower upon any indebtedness or obligation, notwithstanding any payments made, or costs or expenses incurred, by Guarantor hereunder, all rights of reimbursement, indemnification, subrogation and participation being hereby expressly waived and released with respect to any such payments, costs and expenses. Guarantor agrees that, following any default or event of default under the Loan Documents, and until the indebtedness evidenced and secured by the Loan Documents shall have been paid in full, Guarantor will not accept any payment or satisfaction of any kind of any indebtedness or obligation of Borrower to Guarantor. Further, as long as Guarantor remains liable hereunder, Guarantor agrees that, if, following any default or event of default under the Loan Documents, Guarantor should receive any payment, satisfaction or security for any indebtedness or obligation of Borrower to Guarantor, the same shall be delivered to Lender in the form received, endorsed or assigned as maybe appropriate, for application on account of or as security for the indebtedness evidenced and secured by the Loan Documents, and, until so delivered, shall be held in trust for Lender as security for said indebtedness. In addition, at any time, in the event of any receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization or arrangement with creditors (whether or not pursuant to bankruptcy laws), sale of all or substantially all of the assets, dissolution, liquidation or any other marshaling of the assets and liabilities of Borrower, Lender shall be entitled to performance in full of the obligations hereby guaranteed prior to the payment of all or any part of any indebtedness of Borrower to Guarantor, and Guarantor will, at the request of Lender, file any claim, proof of claim or other instrument of similar character necessary to enforce the obligations of Borrower in respect of such indebtedness and hereby assigns to Lender, and will hold in trust for Lender, any and all monies, dividends or other assets received in any such proceeding on account of such indebtedness, unless and until the obligations hereby guaranteed shall be irrevocably performed in full. In the event Guarantor fails to perform said obligations, it shall pay and deliver said monies, dividends or other assets to Lender.

11.Guarantor hereby warrants and represents unto Lender that:

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(a)all warranties and representations made by Borrower with respect to Guarantor in the Construction Loan Agreement, in the other Loan Documents and in the Indemnification Agreement (as that term is defined in the Construction Loan Agreement) are true, correct and complete on the date hereof and are not misleading in any material respect;

(b)there are no actions, suits or proceedings pending or, to the knowledge of Guarantor, threatened against or affecting Guarantor, which will have a material adverse impact upon Guarantor’s ability to perform its obligations hereunder, or involving the validity or enforceability of this Guaranty, at law or in equity; and Guarantor is not in default under any order, writ, injunction, decree or demand of any court or any administrative body having jurisdiction over Guarantor;

(c)any and all balance sheets, net worth statements, income and expense statements, cash flow statements and other financial statements of, and other financial statements and data relating to, Guarantor previously or hereafter delivered to Lender fairly and accurately present, or will fairly and accurately present, the financial condition of Guarantor as of the dates thereof; since the dates of those most recently delivered, there has been no material adverse change in the financial condition of Guarantor; Guarantor has disclosed all events, conditions, and facts known to Guarantor which are more likely than not to have a material adverse effect on the financial condition of Guarantor; and neither this Guaranty nor any document, financial statement, financial or credit information, certificate or statement relating to Guarantor and referred to herein or in the Loan Documents, or furnished to Lender by Guarantor contains, or will contain, any untrue statement of a material fact or omits, or will omit, a material fact;

(d)Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio, and has all power, authority, permits, consents, authorizations and licenses necessary to carry on its business, and to execute, deliver and perform this Guaranty and any other Loan Documents which it is required to execute; all resolutions of the board of directors of Guarantor necessary to authorize the execution, delivery and performance of this Guaranty and such other Loan Documents have been duly adopted and are in full force and effect; and this Guaranty and such other Loan Documents have been duly authorized, executed and delivered by and on behalf of Guarantor so as to constitute this Guaranty and such other Loan Documents the valid and binding obligation of Guarantor, enforceable in accordance with their terms.

(e)The execution, delivery, and performance by Guarantor of this Guaranty does not and will not contravene or conflict with (i) any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality court having jurisdiction over Guarantor, or (ii) any contractual restriction binding on or affecting Guarantor or Guarantor’s property or assets which may adversely affect Guarantor’s ability to fulfill its obligations under this Guaranty.

12.The validity, construction and enforceability of this Guaranty shall be governed by the internal laws of the State of                      , without giving effect to conflict of laws principles thereof. Whenever possible, each provision of this Guaranty and any other statement, instrument or transaction contemplated hereby or relating hereto shall be interpreted in such

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manner as to be effective and valid under such applicable law, but, if any provision of this Guaranty or any other statement, instrument or transaction contemplated hereby or relating hereto or any right or remedy hereby guaranteed or provided shall be held to be unenforceable, prohibited or invalid under applicable law as to any person, party or entity or under any circumstances, for any reason, such provision, right or remedy shall be ineffective only to the extent of such unenforceability, prohibition or invalidity, and only with respect to such person, party, entity or circumstances, without invalidating or limiting or preventing the enforcement of the remainder of such provision, right or remedy, or the remaining provisions of this Guaranty, or any other right, remedy, statement, instrument or transaction contemplated hereby or relating hereto, as to any other person, party or entity or any other circumstances.

13.Lender may arrange for other lenders to purchase interests in, or to participate with Lender in, the Loan, subject to any applicable requirements of the Construction Loan Agreement, and Lender shall be entitled to so assign or otherwise transfer portions of its rights and obligations under the Construction Loan Agreement, its rights hereunder, and all information relating to Guarantor which is in Lender’s possession to such lenders and to retain any compensation received from any such other lender.

14.Notwithstanding any other provision or provisions herein contained, no provision of this Guaranty shall require or permit the collection from Guarantor of interest in excess of the maximum rate or amount, if any, which Guarantor may be required or permitted to pay by any applicable law.

15.This Guaranty shall remain in full force and effect until the earlier of (i) payment of the Note in full, or (ii) completion of the Improvements in accordance with Section 1 hereof and thereafter, this Guaranty shall be discharged, null, void and of no further force and effect. Upon request by Guarantor, Lender will deliver to Guarantor written confirmation of the discharge of the obligations and liabilities of Guarantor hereunder, and Lender will return to Guarantor the original counterpart of this Guaranty. This instrument shall inure to the benefit of Lender and its successors, assigns and Transferees (as that term is defined in the Construction Loan Agreement), and shall bind Guarantor and Guarantor’s successors and assigns. The obligations of Guarantor under this Guaranty shall be enforceable in all events against Guarantor, its successors and assigns, and each of them. All capitalized terms used herein and not otherwise expressly defined herein, shall have the meanings set forth for them in the Construction Loan Agreement.

16.This Guaranty may be waived, modified, amended, terminated or discharged only explicitly in a writing signed by Lender and Guarantor. A waiver so signed shall be effective only in the specific instance and for the specific purpose given.

17.Any notice, demand or request by Lender to Guarantor or from Guarantor to Lender shall be in writing and shall be deemed to have been duly given or made if either delivered personally or if mailed by certified or registered mail addressed to the address set forth below (or at the correct address of any assignee of Lender), except that mailed written notices shall not be deemed given or served until three (3) days after the date of mailing thereof:

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(a)	If to Lender:
	Attention:
(b)	If to Guarantor:
	Forest City Enterprises, Inc.
	50 Public Square, Ste. 1100
	Cleveland, Ohio 44113-2267
	Attention: General Counsel

18.In the event Lender or the holder of the Note shall assign the Note to any bank or other entity to secure a loan from such bank or other entity to Lender or such holder for an amount not in excess of the amount which will be due, from time to time, from Borrower to Lender under the Note with interest not in excess of the rate of interest which is payable by Borrower to Lender under the Note, Guarantor will accord full recognition thereto and agree that all rights and remedies of Lender or such holder hereunder shall be enforceable against Guarantor by such bank or other entity with the same force and effect and to the same extent as would have been enforceable by Lender or such holder but for such assignment.

19.If: (i) this Guaranty is placed in the hands of an attorney for collection or is collected through any legal proceeding; (ii) an attorney is retained to represent Lender in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors rights and involving a claim under this Guaranty; (iii) an attorney is retained to provide advice or other representation with respect to this Guaranty; or (iv) an attorney is retained to represent Lender in any proceedings whatsoever in connection with this Guaranty, then each Guarantor shall pay to lender upon demand all attorney’s fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, expenses of foreclosure, title insurance premiums, survey costs, minutes of foreclosure, and all other costs and expenses incurred in connection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other amounts due hereunder, regardless of whether all or a portion of such Enforcement Costs are incurred in a single proceeding brought to enforce this Guaranty as well as the other Loan Documents.

20.GUARANTOR HEREBY IRREVOCABLY SUBMITS TO PERSONAL JURISDICTION IN THE STATE WHERE THE PREMISES IS LOCATED FOR THE ENFORCEMENT OF THIS GUARANTY AND WAIVES ANY AND ALL PERSONAL RIGHTS TO OBJECT TO SUCH JURISDICTION FOR THE PURPOSES OF LITIGATION TO ENFORCE THIS GUARANTY. GUARANTOR HEREBY CONSENTS TO THE JURISDICTION OF EITHER ANY COURT OF THE STATE WHERE THE PREMISES IS LOCATED OR (IN A CASE INVOLVING DIVERSITY OF CITIZENSHIP) THE UNITED STATES DISTRICT COURT WHERE THE PREMISES IS LOCATED, IN ANY ACTION, SUIT, OR PROCEEDING WHICH LENDER MAY AT

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ANY TIME WISH TO FILE IN CONNECTION WITH THIS GUARANTY OR ANY RELATED MATTER.  GUARANTOR HEREBY AGREES THAT AN ACTION, SUIT, OR PROCEEDING TO ENFORCE THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN THE STATE WHERE THE PREMISES IS LOCATED AND HEREBY WAIVES ANY OBJECTION WHICH SUCH GUARANTOR MAY HAVE TO THE LAYING OF THE VENUE OF ANY SUCH ACTION, SUIT, OR PROCEEDING IN ANY SUCH COURT; PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE DEEMED TO PRECLUDE LENDER FROM FILING ANY SUCH ACTION, SUIT, OR PROCEEDING IN ANY OTHER APPROPRIATE FORUM.

21.This Guaranty may be executed in any number of duplicate originals and each such duplicate original shall be deemed to constitute but one and the same instrument. Any signature page of this Guaranty may be detached from any duplicate original of this Guaranty without impairing the legal effect of any signatures thereon and may be attached to another duplicate original of this Guaranty identical in form hereto but having attached to it one or more additional signature pages.

22.GUARANTOR, ADMINISTRATIVE AGENT AND LENDER HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the day and year first above written.

FOREST CITY ENTERPRISES, INC., an Ohio corporation
By:
	Name:
	Title:

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EXHIBIT N

Prohibited Users/Uses

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Any Person or entity whose primary business is any of the following:

(1)the collection and distribution of news by one or more of the following media: (a) newspapers, (b) magazines, (c) internet, (d) television, and/or (e) radio;

Any use which includes any of the following:

(2)a Person or entity which engages in governmental lobbying, but not a law firm or public relations firm that engages in lobbying activity;

(3)a “fast food” restaurant at which food is prepared on-premises and which operates under a national or regional multi-store food concept such as, by way of example only, McDonald’s, Nathan’s, Wendy’s, Taco Bell and other similar facilities; but specifically not including, a specialty eat-in or take out “quick food” establishment that offers higher quality food such as, by way of example only, Cosi, Starbucks and other similar facilities;

(4)photographic reproductions and/or offset printing (other than use by office tenants of portions of the premises for photocopying in connection with their own business and/or activities), provided, however, the foregoing shall not apply to the Retail Unit if permitted under DUO;

(5)employment agency (other than executive search firms) or job training center

(6)a school or classroom or juvenile or adult day care or drop in center;

(7)medical uses, including without limitation, hospital, medical or dental offices, agencies, or clinics;

(8)an auction house, provided, however, the foregoing shall not apply to high end auction houses specializing in art and historical artifacts located in the Retail Unit;

(9)gambling activities;

(10)obscene, pornographic or similar disreputable activities;

(11)an agency, department, bureau or controlled entity of the United States Government, any state or municipality within the United States, or any political subdivision of any of them, except if such use is for administrative, executive, professional or technical offices and does not result in (i) more off-the-street traffic (i.e., without appointments) in the Building above the ground floor, or (ii) in more pedestrian traffic in the Building above the ground floor, than would arise, in the case of either clause (i) or (ii) of this sentence, from normal office occupancy in a first class office building, and specifically not permitting a welfare or social services office, homeless shelter or homeless assistance center, court or court-related facility, parking violations bureau or any other similar purpose;

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(12)an agency, department, bureau or controlled entity of the United Nations or any foreign government (other than such agency, department, bureau or controlled entity which is not considered controversial in the sole and absolute discretion of NYTC), except if such use is for administrative, executive, professional or technical offices and does not result in (i) more off-the-street traffic (i.e., without appointments) in the Building above the ground floor or in demonstrations at the Building, or (ii) in more pedestrian traffic in the Building above the ground floor, than would arise, in the case of either clause (i) or (ii) of this sentence, from normal office occupancy in a first class office building;

(13)an outlet (except that if a Public Party is the Unit Owner, in which case a premium outlet shall be acceptable), warehouse, close-out bargain or any form of “deep discount” store, including, without limitation, stores whose primary business is the sale or discounting of merchandise at “closeout,” “wholesale”, “bargain basement”, “warehouse”, or other similarly discounted prices or the conduct of fire, “going out of business”, bankruptcy and sheriff or receiver sales;

(14)a drug or any other type of rehabilitation center;

(15)a pawn shop or flea market;

(16)an arcade for videos or other electronic games;

(17)a live entertainment performance space, other than an eating or drinking establishment where entertainment is included, and other than as required to satisfy DUO; or

(18)any use prohibited under DUO or the Unit Leases.

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EXHIBIT O

NYTC Sublease Guaranty

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EXHIBIT O

[NYTC Sublease Guaranty]

GUARANTY

THIS GUARANTY (“Guaranty”) is made and entered into as of the         day of                  , 20   , by THE NEW YORK TIMES COMPANY, a             corporation, whose address is 229 West 43^rd Street, New York, New York 10036, Attention:                                 (“Guarantor”), in favor of [FC UNIT OWNER], a                                                               , whose address is One MetroTech Center North, Brooklyn, New York 11201, Attention: General Counsel (“Landlord”).

W I T N E S S E T H:

WHEREAS:

A.Concurrently with execution and delivery of this Guaranty, Landlord and                                (“Tenant”) have entered into a Lease (the “Lease”) pursuant to which Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from Seller, the “Premises”, as such term is defined in the Lease.

B.Guarantor has an interest in Tenant and has agreed to guaranty the “Guaranteed Obligations” as such term is hereinafter defined.

NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Guarantor, Guarantor hereby agrees as follows (all capitalized terms used herein without definition having the meanings ascribed to them in the Lease):

1.(a)Guarantor, for itself, its successors and assigns, hereby primarily, unconditionally, absolutely and irrevocably guarantees:

(i)the full and faithful keeping, performance and observance of all the covenants, agreements, terms, provisions and conditions of the Lease provided to be kept, performed and observed by Tenant (expressly including, without being limited to, the payment as and when due of the fixed rent, additional rent, charges and damages payable by Tenant under the Lease) and the payment of any and all other damages for which Tenant shall be liable by reason of any act or omission contrary to any of said covenants, agreements, terms, provisions or conditions;

(ii)the full and prompt payment of any Enforcement Costs (as hereinafter defined in Paragraph 19 hereof).

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(b)Guarantor represents and warrants that, as of the date of this Guaranty, Guarantor has a credit rating of “A-minus”(1) or better as determined by the “Rating Agency” (as such term is defined in that certain Declaration of Leasehold Condominium governing the real property of which the Premises forms a part).

2.Guarantor guarantees the Guaranteed Obligations regardless of any law, statute, rule, regulation, decree or order now or hereafter in effect in any jurisdiction affecting or purporting to affect in any manner any of the terms or the rights or remedies of Landlord with respect to the Guaranteed Obligations. The obligations and liabilities of Guarantor hereunder shall be direct and primary and not indirect or secondary, and shall be absolute, unconditional and irrevocable. Guarantor’s obligations hereunder shall not be deemed exonerated, discharged or satisfied, except as provided in Section 16 hereof.

3.If Guarantor fails to promptly perform its obligations under this Guaranty, Landlord shall, from time-to-time, and without first attempting to require performance by Tenant, have the right to bring any action at law or in equity, or both, to compel Guarantor to perform its obligations hereunder, and/or to collect in any such action compensation for all losses, costs, expenses, damages and injuries sustained or incurred by Lender as a direct or indirect consequence of the failure of Guarantor to perform such obligations. Guarantor shall indemnify and hold Lender free and harmless from and against any and all loss, damage, cost, expense, injury, or liability Lender may suffer or incur in connection with the exercise of its rights under this Guaranty or the performance of the Guaranteed Obligations.

4.All of the remedies set forth herein and/or provided for in the Lease or at law or equity shall be equally available to Landlord and the choice of one such alternative over another shall not be subject to question or challenge by Guarantor or any other person, nor shall any such choice be asserted as a defense, setoff, or failure to mitigate damages in any action, proceeding, or counteraction by Landlord to recover or seeking any other remedy under this Guaranty, nor shall such choice preclude Landlord from subsequently electing to exercise a different remedy. The parties have agreed to the alternative remedies provided herein in part because they recognize that the choice of remedies in the event of a default hereunder will necessarily be and should properly be a matter of good-faith business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by Landlord at the lowest cost to Tenant and/or Guarantor. It is the intention of the parties that such good-faith choice by Landlord be given conclusive effect regardless of such subsequent developments.

5.Guarantor hereby waives (i) notice of acceptance of this Guaranty by Landlord and any and all notices and demands of every kind which may be required to be given by any statute, rule or law, (ii) any defense, right of set-off or other claim which any Guarantor may have against Landlord, except for claims of actual payment or actual performance (iii) presentment for payment, demand for payment, notice of nonpayment or dishonor, protest and notice of protest, diligence in collection and any and all formalities which otherwise might be

(1) Substitute equivalent rating to “A-Minus” if Rating Agency is no longer Standard & Poors.

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legally required to charge Guarantor with liability, and (iv) any failure by Landlord to inform Guarantor of any facts Landlord may now or hereafter know about Tenant or the terms of the Lease, it being understood and agreed that Landlord has no duty so to inform and that Guarantor is fully responsible for being and remaining informed by Tenant of all such circumstances bearing on the risk of nonperformance of the Tenant’s obligation under the Lease. Guarantor agrees that any claims which Guarantor may have against Tenant must be brought in a separate action, which action shall not be consolidated with any action brought by Landlord, unless such consolidation is required by law. Landlord shall have no obligation to disclose or discuss with Guarantor its assessment of the financial condition of Tenant. Guarantor acknowledges that no representations of any kind whatsoever have been made to it by Landlord. No modification or waiver of any of the provisions of this Guaranty shall be binding upon Landlord except as expressly set forth in a writing duly signed and delivered on behalf of Landlord.

6.Guarantor further agrees that Guarantor’s liability as guarantor shall in nowise be impaired or affected by any extensions which may be made from time to time, with or without the knowledge or consent of Guarantor, of the time for performance by Tenant under the Lease or by any forbearance or delay in enforcing same, or by way of waiver by Landlord under the Lease. Landlord’s failure or election not to pursue any other remedies it may have against Tenant, Guarantor, or by virtue of any change or modification in the Lease or by the acceptance by Landlord of any additional security or any increase, substitution or change therein, or by the release by Landlord of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Obligations, even though Landlord might lawfully have elected to apply such payments to any part or all of the Guaranteed Obligations, it being the intent hereof that Guarantor shall remain liable as principal for payment and/or performance of the Guaranteed Obligations until the Guaranteed Obligations have been paid or performed in full and notwithstanding any act or thing which might otherwise operate as legal or equitable discharge of a surety. Guarantor further understands and agrees that Landlord may at any time enter into agreements with Tenant to amend and modify the Lease and may waive or release any provision or provisions of the Lease, and, with reference to such instruments, may make and enter into any such amendments or agreements as the parties thereto may deem proper and desirable, and may apply any monies received by Landlord, regardless of the purpose for which the same was given to Landlord to cure any default or to apply on account of the Guaranteed Obligations, in such order and priority as Landlord, in its sole discretion, may require without in any manner impairing or affecting this Guaranty or any of Landlord’s rights hereunder or Guarantor’s obligations hereunder.

7.Guarantor hereby acknowledges having received, reviewed and understood a true, correct and complete copy of the Lease. Guarantor acknowledges that this Guaranty is in effect and binding without reference to whether this Guaranty is signed by any other person or entity, that possession of this Guaranty by Landlord shall be conclusive evidence of due delivery hereof by Guarantor and acceptance hereof by Landlord, and that this Guaranty shall continue in full force and effect, both as to guaranteed obligations and liabilities now existing and/or those hereafter created.

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8.Guarantor hereby consents and agrees that, without any further notice to, or consent or agreement of, Guarantor (a) Landlord make take, hold, exchange, enforce, waive, surrender and/or release other guarantees, collateral or security which further secure(s) payment and/or performance of this Guaranty or the Lease, and (b) that any of the obligations, terms, covenants and conditions contained in the Lease (including, but not limited to, Tenant’s obligations thereunder) may be renewed, altered, extended, changed, modified, supplemented or released at Landlord’s written direction, or with Landlord’s written consent, without in any manner affecting this Guaranty or releasing Guarantor herefrom, and without the further consent of or notice to Guarantor, and Guarantor shall continue to be liable hereunder to pay and perform pursuant hereto notwithstanding any such renewal, alteration, extension, change, modification, supplement or release, or the taking, holding, exchanging, enforcing, waiving, surrender and/or release of such other guarantees, collateral or security. Landlord may perfect or fail to perfect, or to continue the perfection of, any lien or security interest without notice to, consideration to or the consent of Guarantor, and without in any way releasing, diminishing or affecting the absolute nature of Guarantor’s obligations and liabilities hereunder.

9.Guarantor hereby waives any and all legal requirements that Landlord, or its successors or assigns, must institute any action or proceeding at law or in equity, or obtain any judgment, or exhaust their rights, remedies and/or recourses against Tenant or any other person or entity, or with respect to any security for the obligations hereby guaranteed, as a condition precedent to making any demand on, bringing an action against, or obtaining or enforcing any judgment against, Guarantor upon this Guaranty, and/or that it join Tenant or any other person or entity as a party to any such action. All remedies afforded to Landlord, and its successors or assigns, by reason of this Guaranty, are separate and cumulative remedies, and it is agreed that no one of such remedies, whether or not exercised by Landlord, or its successors or assigns, shall be deemed in exclusion of any of the other remedies available to Landlord or its successors or assigns, at law, in equity, by statute, under contract, hereunder or otherwise, and shall in no way limit or prejudice any such other remedies which Landlord, or its successors or assigns, may have. Mere delay or failure to act shall not preclude the exercise or enforcement of any rights and remedies available to Landlord. Guarantor further waives any requirement that Landlord demand or seek payment or performance by Tenant or by any other person or entity of the amounts owing or the covenants to be performed under the Lease, whether hereby guaranteed or not, as a condition precedent to bringing any action against Guarantor upon this Guaranty, it being agreed that a failure to comply with or perform the obligations, terms, covenants and conditions herein guaranteed shall, without further act, make Guarantor liable as herein set forth.

10.This Guaranty is an absolute, unconditional, present and continuing guaranty of performance of the obligations recited in Paragraph 1 hereof. Guarantor hereby expressly waives all defenses of Tenant pertaining to said obligations, except for the defense of discharge by complete and irrevocable performance, and except for such defenses as would constitute a defense to Tenant’s obligation under the Lease. Guarantor shall not be released (a) by any act, omission or thing which might, but for this provision of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, (b) by any defense based upon any statute or rule of law which provides that the obligations of a surety or guarantor must be neither larger in amount nor in other respects more burdensome than those of a principal, or (c) by reason of any waiver, extension, renewal, modification, forbearance or delay by Landlord, or its successors or assigns,

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or its failure to proceed promptly or otherwise, and Guarantor hereby expressly waives and surrenders any defense to liability hereunder based upon the foregoing acts, omissions, things, statutes, rules, waivers, extensions, modifications, forbearances, delays, obligations, agreements, or any of them, except the defense of complete and irrevocable performance in full. Guarantor also waives any defense arising by virtue of any disability, insolvency, bankruptcy, defect in formation or continuation, lack of authority or power, death, insanity, incompetence, liquidation or dissolution of, or any cessation or limitation of liability from any cause (other than full and irrevocable performance) of, Tenant, any member or agent thereof, or any other surety, co-maker, endorser or guarantor. No change in the ownership of Tenant or in Tenant’s members shall affect or change the terms of this Guaranty or in any way change or reduce the liability of Guarantor hereunder. This Guaranty shall continue to be effective or be reinstated (as the case may be) if at any time payment of all or any part of any sum payable pursuant to the Lease or hereunder is rescinded or otherwise required to be returned upon the insolvency, bankruptcy, dissolution, liquidation, or reorganization of Tenant, or upon or as a result of the appointment of a receiver, intervener, custodian or conservator of or trustee or similar officer for, or any substantial part of its property, or otherwise, all as though such payment had not been made, regardless of whether the recipient thereof contested the order requiring the return of such payment.

11.Guarantor hereby expressly agrees that the liabilities and obligations of Guarantor under this Guaranty shall not in any way be impaired or otherwise affected by the institution by or against Tenant or any other person or entity of any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or any other similar proceedings for relief under any bankruptcy law or similar law for the relief of debtors and that any discharge of any of the obligations and/or liabilities hereby guaranteed pursuant to any such bankruptcy or similar law or other law shall not diminish, discharge or otherwise affect in any way the obligations of Guarantor under this Guaranty, and that upon the institution of any of the above actions, such obligations shall be enforceable against Guarantor.

12.In the event that Guarantor shall advance or become obligated to pay any sums or incurs any costs or expenses hereunder, or in the event that for any reason Tenant is now or shall hereafter become indebted or obligated to Guarantor, the amount of such sum, costs, expenses and such indebtedness or obligation shall at all times be subordinated as to lien, time of payment and in all other respects to the amounts owing to Landlord hereunder. Notwithstanding any payment or payments made, or costs or expenses incurred, by Guarantor hereunder, Guarantor shall not be entitled to be subrogated to any of the rights of Landlord against Tenant or any other guarantor or any collateral security or guaranty held by Landlord for the payment of the guaranteed obligation, nor shall Guarantor seek or be entitled to seek any contribution or reimbursement from Tenant or any other guarantor in respect of payments made, or costs or expenses incurred, by Guarantor hereunder unless and until the Guaranteed Obligations and any Enforcement Costs shall have been paid in full. Except as otherwise set forth herein, Guarantor shall have no right to participate in any way in the right, title or interest of Landlord in the Premises, or to receive payments from Tenant upon any indebtedness or obligation, notwithstanding any payments made, or costs or expenses incurred, by Guarantor hereunder, all rights of reimbursement, indemnification, subrogation and participation being hereby expressly waived and released with respect to any such payments, costs and expenses. Guarantor agrees

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that, following any default or event of default-under the Lease, and until the Guaranteed Obligations thereunder shall have been paid and/or performed in full, Guarantor will not accept any payment or satisfaction of any kind of any indebtedness or obligation of Tenant to Guarantor. Further, as long as Guarantor remains liable hereunder, Guarantor agrees that, if, following any default or event of default under the Lease, Guarantor should receive any payment, satisfaction or security for any indebtedness or obligation of Tenant to Guarantor, the same shall be delivered to Landlord in the form received, endorsed or assigned as may be appropriate, for application on account of or as security for the Guaranteed Obligations thereunder, and, until so delivered, shall be held in trust for Landlord as security for said Guaranteed Obligations. In addition, at any time, in the event of any receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization or arrangement with creditors (whether or not pursuant to bankruptcy laws), sale of all or substantially all of the assets, dissolution, liquidation or any other marshaling of the assets and liabilities of Tenant, Landlord shall be entitled to performance in full of the obligations hereby guaranteed prior to the payment of all or any part of any indebtedness of Tenant to Guarantor, and Guarantor will, at the request of Landlord, file any claim, proof of claim or other instrument of similar character necessary to enforce the obligations of Tenant in respect of such indebtedness and hereby assigns to Landlord, and will hold in trust for Landlord, any and all monies, dividends or other assets received in any such proceeding on account of such obligations, unless and until the obligations hereby guaranteed shall be irrevocably performed in full. In the event Guarantor fails to perform said obligations, it shall pay and deliver said monies, dividends or other assets to Landlord.

13.Guarantor hereby warrants and represents unto Landlord that:

(a)there are no actions, suits or proceedings pending or, to the knowledge of Guarantor, threatened against or affecting Guarantor, which will have a material adverse impact upon Guarantor’s ability to perform its obligations hereunder, or involving the validity or enforceability of this Guaranty, at law or in equity; and Guarantor is not in default under any order, writ, injunction, decree or demand of any court or any administrative body having jurisdiction over Guarantor;

(b)any and all balance sheets, net worth statements, income and expense statements, cash flow statements and other financial statements of, and other financial statements and data relating to, Guarantor previously or hereafter delivered to Landlord fairly and accurately present, or will fairly and accurately present, the financial condition of Guarantor as of the dates thereof; since the dates of those most recently delivered, there has been no material adverse change in the financial condition of Guarantor; Guarantor has disclosed all events, conditions, and facts known to Guarantor which are more likely than not to have a material adverse effect on the financial condition of Guarantor; and neither this Guaranty nor any document, financial statement, financial or credit information, certificate or statement relating to Guarantor and referred to herein, or furnished to Landlord by Guarantor contains, or will contain, any untrue statement of a material fact or omits, or will omit, a material fact;

(c)Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of New York, and has all power, authority, permits, consents, authorizations and licenses necessary to carry on its business, and to execute, deliver

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and perform this Guaranty and any other documents or instruments in connection therewith which it is required to execute; all resolutions of the board of directors of Guarantor necessary to authorize the execution, delivery and performance of this Guaranty and such other documents or instruments have been duly adopted and are in full force and effect; and this Guaranty and such other documents or instruments have been duly authorized, executed and delivered by and on behalf of Guarantor so as to constitute this Guaranty and such other documents or instruments the valid and binding obligation of Guarantor, enforceable in accordance with their terms.

(d)The execution, delivery, and performance by Guarantor of this Guaranty does not and will not contravene or conflict with (i) any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality court having jurisdiction over Guarantor, or (ii) any contractual restriction binding on or affecting Guarantor or Guarantor’s property or assets which may adversely affect Guarantor’s ability to fulfill its obligations under this Guaranty.

14.The validity, construction and enforceability of this Guaranty shall be governed by the internal laws of the State of New York, without giving effect to conflict of laws principles thereof. Whenever possible, each provision of this Guaranty and any other statement, instrument or transaction contemplated hereby or relating hereto shall be interpreted in such manner as to be effective and valid under such applicable law, but, if any provision of this Guaranty or any other statement, instrument or transaction contemplated hereby or relating hereto or any right or remedy hereby guaranteed or provided shall be held to be unenforceable, prohibited or invalid under applicable law as to any person, party or entity or under any circumstances, for any reason, such provision, right or remedy shall be ineffective only to the extent of such unenforceability, prohibition or invalidity, and only with respect to such person, party, entity or circumstances, without invalidating or limiting or preventing the enforcement of the remainder of such provision, right or remedy, or the remaining provisions of this Guaranty, or any other right, remedy, statement, instrument or transaction contemplated hereby or relating hereto, as to any other person, party or entity or any other circumstances.

15.Notwithstanding any other provision or provisions herein contained, no provision of this Guaranty shall require or permit the collection from Guarantor of interest in excess of the maximum rate or amount, if any, which Guarantor may be required or permitted to pay by any applicable law.

16.This Guaranty shall remain in full force and effect until payment and/or performance of the Guaranteed Obligations in full, and thereafter, this Guaranty shall be discharged, null, void and of no further force and effect. Upon request by Guarantor, Landlord will deliver to Guarantor written confirmation of the discharge of the obligations and liabilities of Guarantor hereunder, and Landlord will return to Guarantor the original counterpart of this Guaranty. This instrument shall inure to the benefit of Landlord and its successors, assigns, and shall bind Guarantor and Guarantor’s successors and assigns. The obligations of Guarantor under this Guaranty shall be enforceable in all events against Guarantor, its successors and assigns, and each of them.

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17.This Guaranty may be waived, modified, amended, terminated or discharged only explicitly in a writing signed by Landlord and Guarantor. A waiver so signed shall be effective only in the specific instance and for the specific purpose given.

18.Any notice, demand or request by Landlord to Guarantor or from Guarantor to Landlord shall be in writing and shall be deemed to have been duly given or made if either delivered personally or if mailed by certified or registered mail addressed to the address set forth below (or at the correct address of any assignee of Landlord), except that mailed written notices shall not be deemed given or served until three (3) days after the date of mailing thereof:

(a)If to Guarantor:

The New York Times Company

229 West 43^rd Street

New York, New York 10036

Attention:

with a copy to:

The New York Times Company

229 West 43^rd Street

New York, New York 10036

Attention:     General Counsel

with a copy to:

Swidler Berlin Shereff Friedman, LLP

405 Lexington Avenue

New York, New York 10174

Attention: Martin D. Polevoy, Esq.

(b)If to Landlord:

[                                    ]

One MetroTech Center North

Brooklyn, New York 11201

Attention: General Counsel

with a copy to:

Kelley Drye & Warren LLP

101 Park Avenue

New York, New York 10178

Attention: James J. Kirk, Esq.

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19.If: (i) this Guaranty is placed in the hands of an attorney for collection or is collected through any legal proceeding; (ii) an attorney is retained to represent Landlord in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors’ rights and involving a claim under this Guaranty; (iii) an attorney is retained to provide advice or other representation with respect to this Guaranty; or (iv) an attorney is retained to represent Landlord in any proceedings whatsoever in connection with this Guaranty, then each Guarantor shall pay to Landlord upon demand all attorney’s fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, expenses of foreclosure, title insurance premiums, survey costs, minutes of foreclosure, and all other costs and expenses incurred in connection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other amounts due hereunder, regardless of whether all or a portion of such Enforcement Costs are incurred in a single proceeding brought to enforce this Guaranty.

20.Guarantor hereby irrevocably submits to personal jurisdiction in the state of New York, City and County of New York for the enforcement of this Guaranty and waives any and all personal rights to object to such jurisdiction for the purposes of litigation to enforce this Guaranty. Guarantor hereby consents to the jurisdiction of either any court in such city, county and state or (in a case involving diversity of citizenship) the United States District Court located there, in any action, suit, or proceeding which Landlord may at any time wish to file in connection with this guaranty or any related matter. Guarantor hereby agrees that an action, suit, or proceeding to enforce this Guaranty may be brought in any state or federal court therein located and hereby waives any objection which such guarantor may have to the laying of the venue of any such action, suit, or proceeding in any such court; provided, however, that the provisions of this paragraph shall not be deemed to preclude Landlord from filing any such action, suit, or proceeding in any other appropriate forum.

21.This Guaranty may be executed in any number of duplicate originals and each such duplicate original shall be deemed to constitute but one and the same instrument. Any signature page of this Guaranty may be detached from any duplicate original of this Guaranty without impairing the legal effect of any signatures thereon and may be attached to another duplicate original of this Guaranty identical in form hereto but having attached to it one or more additional signature pages.

22.Guarantor and Landlord hereby waive any right to a trial by jury in any action or proceeding to enforce or defend any right under this Guaranty or relating thereto or arising from the relationship which is the subject of this Guaranty and agree that any such action or proceeding shall be tried before a court and not before a jury.

Dated:
	THE NEW YORK TIMES COMPANY
	By:
		Name:
		Title:

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EXHIBIT P

NYT Real Estate Company LLC Lease

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Lease

between

                                              , Landlord,

and

, Tenant

Date:                     

Premises:

The New York Times Building Condominium

[Portion of] Units                       

TABLE OF CONTENTS

EXHIBITS

Exhibit A –	Land
Exhibit B –	Certificate of Occupancy
Exhibit C –	Rentable Square Feet Measurement Standard
Exhibit D –	Form of Letter of Credit
Exhibit E –	Mortgagee SNDA
Exhibit F –	Unit Lease SNDA
Exhibit G –	Exclusive Use Rights of Other Tenants
Exhibit H –	HVAC Specifications
Exhibit I –	Building Standards
Exhibit J –	Cleaning Specifications
Exhibit K –	Form of Guaranty
Exhibit L –	Form of Confidentiality Agreement
Exhibit M –	Building Systems

LEASE (this “Lease”), dated as of                             , 2     , between                                                              , having an office at                                                                                                                                                                        & nbsp;                 (“Landlord”) and                                                                                                                                                                     , having an office at                                                                                                                                                                        & nbsp;                           (“Tenant”).

WHEREAS,

1.                                                                  (the “Ground Lessor”) is (i) the fee owner of the Land, (ii) the lessor and lessee under the Ground Lease, and (iii) the lessor under the Unit Lease, and

2.  Landlord is the lessee under the Unit Lease (as hereinafter defined) and desires to sublease to Tenant and Tenant desires to hire from the Landlord, the Premises, on the terms and conditions hereinafter set forth,

NOW THEREFORE, Landlord and Tenant do hereby covenant and agree as follows:

Definitions

For purposes of this Lease, the following terms shall have the respective meanings hereinafter specified, such definitions to be applicable equally to the singular and plural forms of such terms:

“AAA” shall have the meaning ascribed to such term in Sections 3.03(d)(iv);

“ADA” shall have the meaning ascribed to such term in Section 2.01(e);

“Additional Charges” shall have the meaning ascribed to such term in Section 1.04(a);

“Alteration” shall have the meaning ascribed to such term in Section 11.01;

“Appointment Date” shall have the meaning ascribed to such term in Section 35.01;

“Arbiter” shall have the meaning ascribed to such term in Section 3.03(d)(iv);

“Arbitration Notice” shall have the meaning ascribed to such term in Section 35.01;

“Assignment Recapture Offer Notice” shall have the meaning ascribed to such term in Section 7.01(b);

“Assignment Recapture Period” shall have the meaning ascribed to such term in Section 7.01(b);

“Base Building Elements” shall have the meaning ascribed to such term in Section 19.04(a);

“Base Building Restoration Estimate” shall have the meaning ascribed to such term in Section 19.04(a);

“Base Operating Amount” shall have the meaning ascribed to such term in Section 3.01(a);

“Base Operating Year” shall have the meaning ascribed to such term in Sections 3.01(b);

“Base Rate” shall have the meaning ascribed to such term in Section 34.05(j);

“Base Tax Amount” shall have the meaning ascribed to such term in Sections 3.01(c);

“Basic Restoration” shall have the meaning ascribed to such term in Section 19.02;

“Board SNDA” shall have the meaning ascribed to such term in Section 10.01;

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“Building” shall have the meaning ascribed to such term in Section 1.01;

“Building Systems” shall have the meaning ascribed to such term in Section 8.01(c);

“Business Days” shall have the meaning ascribed to such term in Section 15.01(b);

“Business Hours” shall have the meaning ascribed to such term in Section 15.01(b);

“By-Laws” shall have the meaning ascribed to such term in Section 1.01;

“Cleaning Cost Reduction” shall have the meaning ascribed to such term in Section 15.01(a);

“Commencement Date” shall have the meaning ascribed to such term in Section 1.05;

“Comparable Buildings” shall have the meaning ascribed to such term in Section 13.04(a);

“Comparable Space” shall have the meaning ascribed to such term in Section 7.05(c);

“Condominium” shall have the meaning ascribed to such term in Section 1.01;

“Confidentiality Agreement” shall have the meaning ascribed to such term in Section 3.03(d);

“Consumer Price Index” shall have the meaning ascribed to such term in Section 34.05(k);

“Court” shall have the meaning ascribed to such term in Section 35.01;

“Date of the Taking” shall have the meaning ascribed to such term in Section 20.01;

“Declaration” shall have the meaning ascribed to such term in Section 1.01;

“Defects Notice” shall have the meaning ascribed to such term in Section 2.01(c);

“Event of Default” shall have the meaning ascribed to such term in Section 22.02;

“Existing Mortgage” shall have the meaning ascribed to such term in Section 5.04(b);

“Expedited Arbitration” shall have the meaning ascribed to such term in Section 35.04;

“Expiration Date” shall have the meaning ascribed to such term in Section 1.03;

“Extension Notice” shall have the meaning ascribed to such term in Section 36.01(a);

“Extension Term” shall have the meaning ascribed to such term in Section 36.01(a);

“Fair Market Rent” shall have the meaning ascribed to such term in Section 1.04(b);

“FC Office Units” shall have the meaning ascribed to such term in Section 3.01(e);

“First Adjustment Date” shall have the meaning ascribed to such term in Section 1.04(b);

“Fixed Rent” shall have the meaning ascribed to such term in Section 1.04(a);

“Food Service Facility” shall have the meaning ascribed to such term in Section 15.05;

“Force Majeure Causes” shall have the meaning ascribed to such term in Section 34.04(a);

“Ground Lease” shall have the meaning ascribed to such term in Section 5.04(a);

“Ground Lessor” shall have the meaning ascribed to such term in the Preamble;

“Hazardous Materials” shall have the meaning ascribed to such term in Section 33.03;

“Improvements Demolition Work” shall have the meaning ascribed to such term in Section 19.01(a);

“Improvements Restoration Work” shall have the meaning ascribed to such term in Section 19.01(a);

“Index Month” shall have the meaning ascribed to such term in Section 11.01;

“Interest Rate” shall have the meaning ascribed to such term in Section 34.05(j);

“Land” shall have the meaning ascribed to such term in Section 1.01;

“Landlord” shall have the meaning ascribed to such term in the Preamble and in Section 34.05(e);

“Landlord Affiliate” shall have the meaning ascribed to such term in Section 3.01(e);

“Landlord Applicable Cure Period” shall have the meaning ascribed to such term in Section 27.02;

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“Landlord Long-Term Cure Default” shall have the meaning ascribed to such term in Section 27.02;

“Landlord’s Assignment Recapture Notice” shall have the meaning ascribed to such term in Section 7.0l(b);

“Landlord’s Casualty Termination Notice” shall have the meaning ascribed to such term in Section 19.03;

“Landlord’s Rate” shall have the meaning ascribed to such term in Section 14.02(c);

“Landlord’s Restoration Work” shall have the meaning ascribed to such term in Section 2.01(a);

“Landlord’s Statement” shall have the meaning ascribed to such term in Section 3.01(d);

“Landlord’s Stoppage Notice” shall have the meaning ascribed to such term in Section 15.04;

“Latent Defects” shall have the meaning ascribed to such term in Section 2.01(c);

“laws and requirements of any public authorities” shall have the meaning ascribed to such term in Section 34.05(b);

“Legal Requirements” shall have the meaning ascribed to such term in Section 34.05(l);

“Long-Term Cure Default” shall have the meaning ascribed to such term in Section 22.02(b);

“Material Alteration” shall have the meaning ascribed to such term in Section 11.01;

“Material Alterations Request” shall have the meaning ascribed to such term in Section 11.01;

“mortgage” shall have the meaning ascribed to such term in Section 34.05(a);

“Notices” shall have the meaning ascribed to such term in Section 29.01;

“NYTC Floors” shall have the meaning ascribed to such term in Section 2.01(a);

“Operating Expenses” shall have the meaning ascribed to such term in Section 3.01(e);

“Operating Payment” shall have the meaning ascribed to such term in Section 3.03(a);

“Operating Year” shall have the meaning ascribed to such term in Section 3.01(f);

“Overtime Freight Elevator/Loading Dock Service” shall have the meaning ascribed to such term in Section 15.02(c);

“Overtime HVAC Service” shall have the meaning ascribed to such term in Section 15.02(a);

“Person” shall have the meaning ascribed to such term in Section 34.05(h);

“Premises” shall have the meaning ascribed to such term in Section 1.02;

“Prior Tenant Restoration Work” shall have the meaning ascribed to such term in Section 2.01(b);

“Qualifying SNDA Agreement” shall have the meaning ascribed to such term in Section 5.05(c);

“Records” shall have the meaning ascribed to such term in Section 3.03(d);

“Requirements of insurance bodies” shall have the meaning ascribed to such term in Section 34.05(c);

“Second Adjustment Date” shall have the meaning ascribed to such term in Section 1.04(b);

“Section 14.07 Demand” shall have the meaning ascribed to such term in Section 14.07;

“Secured Areas” shall have the meaning ascribed to such term in Section 16.05;

“Slab Cut Improvements” shall have the meaning ascribed to such term in Section 2.01(a);

“SNDA Agreement” shall have the meaning ascribed to such term in Section 5.05(a);

“Sublease Profit” shall have the meaning ascribed to such term in Sections 7.07(b);

“Sublease Term” shall have the meaning ascribed to such term in Section 7.07(b);

“Substantially” shall have the meaning ascribed to such term in Section 3.03(d);

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“Successor Landlord” shall have the meaning ascribed to such term in Section 5.03;

“Superior Lease” shall have the meaning ascribed to such term in Section 5.01;

“Superior Lessor” shall have the meaning ascribed to such term in Section 5.01;

“Superior Mortgage” shall have the meaning ascribed to such term in Section 5.01;

“Superior Mortgagee” shall have the meaning ascribed to such term in Section 5.01;

“Systems Defects” shall have the meaning ascribed to such term in Section 2.01(c);

“Tax Adjustment Date” shall have the meaning ascribed to such term in Section 3.02(a);

“Tax Payment” shall have the meaning ascribed to such term in Section 3.02(a);

“Tax Year” shall have the meaning ascribed to such term in Section 3.01(h);

“Taxes” shall have the meaning ascribed to such term in Section 3.01(g);

“Tenant” shall have the meaning ascribed to such term in the Preamble and in Section 34.05(d);

“Tenant Affiliate” shall have the meaning ascribed to such term in Section 7.01(d);

“Tenant Negotiation Notice” shall have the meaning ascribed to such term in Section 7.05(c);

“Tenant Shaft Share” shall have the meaning ascribed to such term in Section 15.05;

“Tenant’s Costs” shall have the meaning ascribed to such term in Sections 7.07(a) and 7.07(c);

“Tenant’s electrical consultant” shall have the meaning ascribed to such term in Section 14.07;

“Tenant’s Operating Share” shall have the meaning ascribed to such term in Section 3.01(i);

“Tenant’s Property” shall have the meaning ascribed to such term in Section 12.02;

“Tenant’s Statement” shall have the meaning ascribed to such term in Section 3.03(d);

“Tenant’s Representative” shall have the meaning ascribed to such term in Section 3.03(d);

“Tenant’s Tax Share” shall have the meaning ascribed to such term in Section 3.01(j);

“Then Tenant” shall have the meaning ascribed to such term in Section 7.04;

“Third Adjustment Date” shall have the meaning ascribed to such term in Section 1.04(b);

“Transfer” shall have the meaning ascribed to such term in Section 34.05(e);

“Transferee” shall have the meaning ascribed to such term in Section 34.05(e);

“Transferor” shall have the meaning ascribed to such term in Section 34.05(e);

“Unit” shall have the meaning ascribed to such term in Section 1.02;

“Unit Lease” shall have the meaning ascribed to such term in Section 5.01;

“Unit Lease SNDA Agreement” shall have the meaning ascribed to such term in Section 5.05(b);

“Users” shall have the meaning ascribed to such term in Section 7.01(a);

ARTICLE 1

Term and Fixed Rent

1.01.Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, upon and subject to the terms, covenants, provisions and conditions of this Lease, the premises described in Section 1.02 hereof in the building (the “Building”) known as The New York Times Building, which Building is a leasehold condominium (the “Condominium”), in the City, County and State of New York.  The Building is located on a portion of the land (the “Land”) described in Exhibit A annexed hereto and made a part hereof.  The Condominium was established pursuant to the Condominium’s Declaration of Leasehold Condominium dated                         and recorded in the New York County Office of the Register of the City of New York on

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                         in Reel           , Page            (the “Declaration”) and the By-Laws annexed thereto (the “By-Laws”).

1.02.(a)    The Premises (the “Premises”) leased to Tenant consist of [the entire] [a portion of] the              floor(s) of the Building which floor(s) are designated as Unit No(s).                 of the Condominium (collectively, the “Unit”).  The Unit also consists of an undivided  [            %] interest in the Common Elements and the FC Limited Common Elements of the Condominium (each, as defined in the Declaration).  Landlord hereby grants to Tenant the non-exclusive right to use, in common with others, the Common Elements and the FC Limited Common Elements.  The parties agree that the Premises shall be deemed to contain                      rentable square feet for all purposes under this Lease.  The measurement standard for rentable square feet for the Building and the Premises is set forth on Exhibit C annexed hereto and made a part hereof.

1.03.The term of this Lease shall be a period of                 (      ) years(1) which term (a) shall commence on the Commencement Date (as hereinafter defined) and (b) shall end at 11:59 p.m. on the date (the “Expiration Date”) which is the day immediately preceding the                 (           ) anniversary of the Commencement Date, or on such earlier date upon which the term of this Lease shall expire or be canceled or terminated pursuant to any of the conditions or covenants of this Lease or pursuant to law.

1.04.(a)The rents shall be and consist of:

(i)fixed rent (“Fixed Rent”) at a rate determined in accordance with [Article XX, Section 5(a), 5(b), 5(c), or 5(d), as applicable, of the Declaration, and Article XX, Section 8(b) of the Declaration](2), which Fixed Rent shall be payable commencing on the Commencement Date, in equal monthly installments in advance on the first day of every calendar month during the term of this Lease, ***and which Fixed Rent shall be subject to increase or decrease as of the First Adjustment Date, Second Adjustment Date and Third Adjustment Date, as such terms are hereinafter defined, as provided in Section 1.04(b) hereof***; and

(ii)additional rent (“Additional Charges”) consisting of Tax Payments, Operating Payments and charges for electricity, and any other utilities furnished to Tenant at Tenant’s request for which Tenant does not pay on a

(1) To be filled in upon exercise of applicable option by NYTC.  Initial term to be ten (10), twenty (20), thirty (30) or forty (40) years, as elected by NYTC upon exercise of option.  If NYTC elects initial term of ten (10) years, Tenant to have three (3) 10-year renewal options pursuant to Article 36.  If NYTC elects initial term of twenty (20) years, Tenant to have two (2) 10-year renewal options pursuant to Article 36.  If NYTC elects initial term of thirty (30) years, Tenant to have one (1) 10-year renewal option pursuant to Article 36.

(2) Substitute “Section 5.12 of the Operating Agreement” if applicable.

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direct metered basis, and all other sums of money as shall become due from and payable by Tenant to Landlord pursuant to the provisions of this Lease;

all to be paid in lawful money of the United States to Landlord at its office in the United States of America, or such other place in the United States of America as Landlord shall designate by not less than thirty (30) days prior written notice to Tenant.

***(3)(b)The Fixed Rent shall be subject to adjustment (i.e., either increase or decrease) effective as of the tenth (10th) anniversary of the Commencement Date (the “First Adjustment Date”), the twentieth (20th) anniversary of the Commencement Date (the “Second Adjustment Date”), and the thirtieth (30th) anniversary of the Commencement Date (the “Third Adjustment Date”), such that (i) the Fixed Rent for the ten (10) year period beginning on the First Adjustment Date shall be the “Fair Market Rent”, as such term is defined in Article XX, Section 8(b) of the Declaration, for the Premises as of the First Adjustment Date, (ii) the Fixed Rent for the ten (10) year period beginning on the Second Adjustment Date shall be the Fair Market Rent for the Premises as of the Second Adjustment Date, and (iii) the Fixed Rent for the ten (10) year period beginning on the Third Adjustment Date shall be the Fair Market Rent for the Premises as of the Third Adjustment Date.(4)  Fair Market Rent as of the First Adjustment Date, Second Adjustment Date or Third Adjustment Date, as the case may be, shall be determined in accordance with Article XX, Section 8(b) of the Declaration.  In each case, the twenty (20) day period for the parties to meet and attempt in good faith to determine Fair Market Rent referred to in the first sentence of Article XX, Section 8(b) of the Declaration shall commence on the date which is one-hundred twenty (120) days prior to the First Adjustment Date, Second Adjustment Date or Third Adjustment Date, as the case may be, and, in the event the parties do not reach agreement upon Fair Market Rent within said twenty (20) days, then Fair Market Rent shall be determined by arbitration as more particularly set forth in Article XX, Section 8(b) of the Declaration.

(c)Within ten (10) Business Days after written request by either party following any determination of Fixed Rent as provided in Section 1.04(a) and/or Section 1.04(b) hereof, the parties shall enter into a supplemental agreement in recordable form confirming such Fixed Rent for the applicable period.  In the event the Fixed Rent for the initial term of this Lease shall not have been finally determined as of the Commencement Date, Tenant shall pay an amount equal to Landlord’s determination of the Fixed Rent as set forth in a notice to Tenant given within twenty (20) days after the date Tenant exercises its option to lease the Premises as described in Article XX of the Declaration, until the final determination of Fixed Rent for such initial term has been made.  Within ten (10) Business Days following the final determination of Fixed Rent for such initial term, (x) Landlord shall reimburse Tenant the amount by which the Fixed Rent paid by

(3) First Adjustment Date, Second Adjustment Date and Third Adjustment Date – depending on terms of Lease, one or more of these terms may have to be deleted.

(4) 95% of Fair Market Rent for space leased pursuant to Section 5.12 of the Operating Agreement.

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Tenant for the period beginning on the Commencement Date and ending on the last day of the calendar month in which such final determination is made exceeds the Fixed Rent as finally determined for such period, together with interest on such excess amount at the Interest Rate, or (y) Tenant shall pay Landlord the amount by which the Fixed Rent as finally determined for the period beginning on the Commencement Date and ending on the last day of the calendar month in which such final determination is made exceeds the amount of Fixed Rent for such period paid by Tenant, together with interest on such excess amount at the Interest Rate.  If Landlord does not reimburse Tenant for any amount due Tenant in accordance with the provisions of this Paragraph 1.04(c) within such ten (10) Business Day period, Tenant may offset the amount of Tenant’s overpayment with interest at the Interest Rate from the date such amount was due Tenant, against the next succeeding installments of Fixed Rent and Additional Charges.

(d)In the event the Fixed Rent for any subsequent ten (10) year period shall not have been finally determined as of the First Adjustment Date, Second Adjustment Date or Third Adjustment Date, as the case may be, then pending such final determination Tenant shall pay Fixed Rent at the rate payable hereunder immediately prior to the First Adjustment Date, Second Adjustment Date or Third Adjustment Date, as the case may be, and within ten (10) Business Days following the final determination of Fixed Rent for such ten (10) year period, (x) Tenant shall pay Landlord the amount by which the Fixed Rent as finally determined for the period beginning on the applicable Adjustment Date and ending on the last day of the calendar month in which such final determination is made exceeds the amount of Fixed Rent for such period paid by Tenant, together with interest on such excess amount at the Interest Rate, or (y) Landlord shall reimburse Tenant the amount by which the Fixed Rent paid by Tenant for the period beginning on the applicable Adjustment Date and ending on the last day of the calendar month in which such final determination is made exceeds the Fixed Rent as finally determined for such period, together with interest on such excess amount at the Interest Rate.  If Landlord does not reimburse Tenant for any amount due Tenant in accordance with the provisions of this Paragraph 1.04(d) within such ten (10) Business Day period Tenant may offset the amount of Tenant’s overpayment with interest at the Interest Rate from the date such amount was due Tenant against the next succeeding installments of Fixed Rent and Additional Charges.

1.05.For purposes of this Lease, the term “Commencement Date” shall mean [the date vacant possession of the Premises is delivered to Tenant in accordance with the provisions of this Lease] or [actual date, if known].

1.06.Tenant covenants and agrees to pay Fixed Rent and Additional Charges promptly when due without notice or demand therefor and without any abatement, deduction or setoff for any reason whatsoever, except as may be expressly provided in this Lease.

1.07.If the Commencement Date occurs on a day other than the first day of a calendar month, or if the Expiration Date occurs on a day other than the last day of a calendar month, the Fixed Rent and Additional Charges for the partial calendar month shall be prorated.

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1.08.No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the correct Fixed Rent or Additional Charges shall be deemed to be other than a payment on account, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance or pursue any other remedy in this Lease or at law provided.

1.09.If any Fixed Rent or Additional Charges payable by Tenant to Landlord pursuant to the provisions of the Lease are not paid within two (2) days following the date due, Tenant shall pay interest thereon from the date when such installment of Fixed Rent or Additional Charges became due to the date of Landlord’s receipt thereof at the lesser of (i) the Interest Rate, or (ii) the maximum rate permitted by law, until paid in full.

ARTICLE 2
Delivery and Use of Premises

2.01.(a)On or before the Commencement Date, Landlord shall, at Landlord’s sole cost and expense, perform the following work in and to the Premises (collectively, “Landlord’s Restoration Work”) (i) remove any internal staircases, elevators and escalators, atriums, internal vertical transportation systems and other slab cuts and associated equipment and improvements (collectively, “Slab Cut Improvements”) between the Premises and any other floors of the Building not currently owned or occupied by (or currently being acquired or leased by) Tenant or an affiliate of The New York Times Company (the “NYTC Floors”) and restore the portions of the floor slab of the Premises affected by such Slab Cut Improvements to their original condition and level and ready for floor covering, and (ii) disconnect or segregate any special services (e.g., any other tenant’s supplemental HVAC system) which service both the Premises and other space in the Building other than NYTC Floors.(5)  Tenant may waive the performance by Landlord of any Landlord’s Restoration Work by written notice to Landlord given within ten (10) Business Days after the date of this Lease, in which event Landlord shall not perform and shall have no obligation to Tenant on account of, the Landlord’s Restoration Work so waived by Tenant.  If and to the extent Landlord’s Restoration Work not so waived by Tenant is not complete as of the Commencement Date, Tenant shall receive a credit against the first installments of Fixed Rent and Additional Charges due hereunder (until such credit is exhausted) for the estimated cost of completing such Landlord’s Restoration Work as estimated by a reputable contractor designated by Tenant and approved by Landlord, such approval not to be unreasonably withheld, delayed or conditioned.  Subject to the provisions of this Section 2.01 and Section 13.04 hereof, the Premises shall be demised in their “AS IS” condition on the date of this Lease and Tenant shall accept the same as such, provided that all services which Landlord is required to provide to Tenant and the

(5) If and for so long as Ground Lessor is (A) the “Landlord” under this Lease and (B) a governmental entity or a public benefit corporation, Section 2.01 will provide that in lieu of performing Landlord’s Restoration Work, Tenant will receive the credit described in this section.

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Premises are provided in accordance with the provisions of this Lease.  Furthermore, the building systems set forth in Exhibit M shall, as of the Commencement Date, be in good working order and condition to the standard then prevailing for comparable premium first class midtown Manhattan office buildings.

(b)Landlord has advised Tenant that the following current or prior tenants of the Premises have obligations under their leases to perform removal and/or restoration work with respect to any existing leasehold improvements in the Premises: [IDENTITY OF TENANT(S) AND NATURE OF REMOVAL/RESTORATION OBLIGATION TO BE INSERTED PRIOR TO EXECUTION](“Prior Tenant Restoration Work”).  Promptly after the date hereof, Landlord shall notify such tenants of the foregoing removal/restoration obligations and shall use commercially reasonable efforts to enforce such obligations and to have such Prior Tenant Restoration Work completed prior to the Commencement Date(6)  On the Commencement Date, Landlord shall assign to Tenant all of Landlord’s rights and remedies against such tenants with respect to such removal/restoration obligations.  Landlord shall cooperate with Tenant to the extent reasonably requested by Tenant in connection with the enforcement of such rights and remedies and Landlord shall within 20 days after demand reimburse Tenant for the actual cost (without profit or markup) to Tenant in connection with the enforcement of such rights and remedies.  Tenant may waive the performance by Landlord of any Prior Tenant’s Restoration Work by written notice to Landlord given within ten (10) Business Days after the date of this Lease, in which event Landlord shall have no obligation to Tenant on account of, the Prior Tenant’s Restoration Work so waived by Tenant.  The provisions of this subsection 2.01(b) shall not be deemed to relieve Landlord of the obligation to perform Landlord’s Restoration Work.

(c)The taking of possession by Tenant of any portion of the Premises for the performance of Alterations or for any other reason whatsoever shall be deemed an acceptance of such portion of the Premises, other than defects in the HVAC, electrical, mechanical, plumbing and other systems of the Building (“Systems Defects”) and latent defects in the Premises (“Latent Defects”), which in either case are reported by Tenant to Landlord within twelve (12) months after Tenant first occupies the Premises for the conduct of Business (a “Defects Notice”).  If Tenant gives a Defects Notice, the taking of possession of the Premises by Tenant shall be deemed an acceptance of the Premises except with respect to the items set forth on such Defects Notice.  Landlord shall repair the defects set forth on any Defects Notice delivered to Landlord within the foregoing twelve (12) month period promptly following delivery of same to Landlord.

(d)Nothing contained in this Section 2.01 shall be deemed to relieve Landlord of its obligation to observe or perform any term, covenant or condition of this Lease on the part of Landlord to be observed or performed.

(6) If and for so long as Ground Lessor is (A) the “Landlord” under this Lease and (B) a governmental entity or a public benefit corporation, this sentence shall not be applicable.

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(e)Landlord hereby covenants and agrees with Tenant that, on the Commencement Date, the core bathroom located on each of the floor of the Premises and all other common areas and facilities of the Unit which affect Tenant’s access to, or use or enjoyment of the Premises (including, for example, all elevators and elevator call buttons) are in compliance with the Americans with Disabilities Act of 1990 (hereinafter called the “ADA”) and New York City Local Law No. 58 and all other state and local laws relating to accessibility, and the regulations promulgated pursuant to any of the foregoing, in effect as of the date hereof.(7)

2.02.(a)Landlord represents and warrants to Tenant that the terms of any existing leases, subleases licenses or other agreements for the use and occupancy of the Premises have expired or expire on or before the Commencement Date and are not subject to extension or renewal by the tenant, subtenant, licensee or occupant thereunder.  Possession of the Premises shall be delivered to Tenant on or before the Commencement Date vacant and free and clear of all leases, tenancies, subtenancies, licenses or other rights to use or occupy the Premises, subject to the provisions of Section 2.02(b).

(b)If for any reason whatsoever, Landlord shall be unable to deliver vacant possession of the Premises on the date hereinabove set forth as the Commencement Date, then notwithstanding anything to the contrary hereinbefore contained, the term of this Lease shall commence on, and the Commencement Date shall be, the date on which Landlord is able to so deliver vacant possession of the Premises.  Landlord shall not be subject to any liability for failure to give vacant possession of the Premises on the date hereinabove set forth as the Commencement Date (except to the extent that the same arises out of a breach of any of Landlord’s representations or covenants under Section 2.02(a)), and the validity of this Lease shall not be impaired under such circumstances.  Notwithstanding the foregoing, in the event that, as of the Commencement Date, any tenant, subtenant, licensee or occupant is holding over in the Premises, then Landlord shall use its best efforts, including the immediate commencement and diligent prosecution of holdover proceedings, to obtain vacant possession of the Premises as expeditiously as possible.  If Landlord has not delivered to Tenant vacant possession of the Premises within one hundred eighty (180) days after the originally scheduled Commencement Date and such failure continues for twenty (20) days following written notice to Landlord, Tenant shall have the right at any time thereafter (provided such space has not been delivered to Tenant) to terminate this Lease, and upon such termination this Lease shall be null and void (other than those provisions hereof which expressly survive a termination of this Lease), and the parties hereto shall be relieved of all further obligations and liability under this Lease.  Tenant hereby waives any right to rescind this Lease under the provisions of Section 223(a) of the Real Property Law of the State of New York, and agrees that the provisions of this Article are intended to constitute “an express provision to the contrary” within the meaning of said Section 223(a).

(7) If and for so long as the “Landlord” under this Lease is (A)(i) Ground Lessor and (ii) a governmental entity or a public benefit corporation, or (B) the party who acquires the interest of the “Landlord” in this Lease from such governmental entity or public benefit corporation (but not any other party who becomes the “Landlord” under this Lease), the provisions of subparagraph 2.01(e) shall not be applicable.

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2.03.(a)The Premises may be used for executive and general offices and for purposes ancillary and incidental thereto, and for any other legal purposes for which the Unit may be used under the Declaration, and for no other purpose.

(b)Attached hereto as Exhibit B is a copy of the current Certificate of Occupancy covering the Unit.  Landlord hereby represents, to the best of Landlord’s knowledge, such Certificate of Occupancy is in full force and effect.(8)  Subject to the provisions of this subparagraph 2.03(b) Landlord hereby agrees at all times during the term of this Lease to keep in full force and effect a Certificate of Occupancy for the Unit permitting Tenant to use the Premises for executive and general offices (unless Tenant obtains a modification or amendment of the Certificate of Occupancy for the Unit changing the permitted use of the Premises to other than for executive and general offices or Tenant’s acts or omissions have caused the Certificate of Occupancy for the Unit to be revoked).  Landlord further agrees that it will not take any action to reduce the permitted occupancy levels for the Unit below the currently permitted levels.  Should any Alterations (hereinafter defined) or Tenant’s use of the Premises for other than executive and general offices require any modification or amendment of any Certificate of Occupancy for the Unit, Tenant shall, at its expense, procure such modification or amendment, and Landlord, at no out-of-pocket cost to Landlord, shall cooperate with Tenant in connection therewith (including assisting and/or joining Tenant in any application or similar instrument), provided that Tenant shall indemnify and hold harmless Landlord from and against any claims arising in connection with such cooperation, other than any such claims arising from any incorrect information provided by Landlord in connection therewith or any conditions at or in the Unit which are Landlord’s responsibility hereunder, provided however, that in no event shall the foregoing indemnity relieve Landlord of any obligation of Landlord hereunder.  If any violation of any Legal Requirement noted against the Premises or any other portion of the Unit shall prevent Tenant from obtaining any such modification or amendment to the Certificate of Occupancy for the Unit then, promptly after Tenant’s request that Landlord do so, Landlord shall cause such violation to be cured or otherwise removed of record, except to the extent that such violation (x) arises solely from Tenant’s use or occupancy of the Premises in violation of this Article 2 or any Alterations made by Tenant or (y) is not Landlord’s responsibility to cure pursuant to the provisions of this Lease.

(c)If any governmental license or permit (other than a Certificate of Occupancy for the Unit) shall be required for the lawful conduct of Tenant’s business in the Premises, Tenant, at its expense, shall duly procure and thereafter maintain such license or permit.  Tenant shall at all times comply with the terms and conditions of each such license or permit.

(8) If and for so long as the “Landlord” under this Lease is (A)(i) Ground Lessor and (ii) a governmental entity or a public benefit corporation, or (B) the party who acquires the interest of the “Landlord” in this Lease from such governmental entity or public benefit corporation (but not any other party who becomes the “Landlord” under this Lease), the provisions of this sentence shall not be applicable.

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ARTICLE 3

Escalations

3.01.The terms defined below shall for the purposes of this Lease have the meanings herein specified:

(a)“Base Operating Amount” shall mean the Operating Expenses for the Base Operating Year, subject to adjustment as provided in § 3.03(a).

(b)“Base Operating Year” shall mean the calendar year in which occurs the Commencement Date.

(c)“Base Tax Amount” shall mean the Taxes, as finally determined, for the Tax Year in which occurs the Commencement Date, subject to the adjustment as provided in § 3.02(a).

(d)“Landlord’s Statement” shall mean an instrument or instruments setting forth for a specified Operating Year, the Operating Payment payable by Tenant pursuant to this Article 3, including the other information required by this Lease to be included therein.

(e)“Operating Expenses” shall mean the following expenses incurred by Landlord or any Landlord Affiliate in respect of the FC Collective Unit (as defined in the Declaration) (collectively the “FC Office Units”), provided, however, that if Landlord or any Landlord Affiliate shall sell any units originally part of the FC Collective Unit to a third party, then expenses paid or incurred in respect of such units shall not be deemed “Operating Expenses” from and after the consummation of such sale and the “FC Office Units” shall not include such units from and after the consummation of a sale.  For purposes of this Lease, the term “Landlord Affiliate” means a corporation, partnership in limited liability company or other entity which controls, is controlled by, or is under common control with Landlord.  For purposes of this Section 3.01, “control” means the ownership or voting control, directly or indirectly, of 50% or more of the voting stock, partnership, membership or similar interest in such entity:

(i)subject to the provisions of item (23) of this subsection 3.01(e), common charges and special assessments and other charges assessed against the FC Office Units by the Condominium Board of Managers and/or the FC Board of Managers (as such terms are defined in the Declaration), as applicable; provided, however, that any special assessments which are payable in more than one installment shall be deemed payable in the maximum number of installments permitted by the Condominium Board of Managers and the FC Board of Managers, as applicable and only such installments as are payable during the term of this Lease shall be included in Operating Expenses and such installments shall be included for the Operating Year in which they are so payable, regardless of when same are actually paid by Landlord; and

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(ii)To the extent not included in clause (i) of this Section 3.01(e), the total of all of the reasonable and customary costs and expenses incurred by Landlord or Landlord Affiliates (provided Landlord has provided Tenant with prior notice as to the identities of such Landlord Affiliates) with respect to the repair, replacement, maintenance, operation and/or security of the FC Office Units and the Building and the services provided to the tenants and other users or occupants thereof, including without limitation, the cost and expenses incurred with respect to: (1) salaries, wages, medical, surgical, hospitalization, insurance (including, without limitation, group life and disability insurance) of employees of Landlord or Landlord Affiliates, union and general welfare benefits, pension benefits, retirement plans, severance and sick day payments, and other fringe benefits of employees of Landlord and Landlord Affiliates and their respective contractors engaged in such repair, replacement, maintenance, operation and/or security; (2) payroll taxes, social security, unemployment, worker’s compensation, uniforms and related expenses (whether direct or indirect) for such employees; (3) the cost of fuel, gas, steam, electricity, heat, ventilation, air conditioning, chilled and condenser water, water, sewer, telephone and other utilities, together with any taxes and surcharges on, and fees paid in connection with the calculation and billing of such utilities, (4) the cost of painting and/or decorating all areas of the FC Office Units excluding, however, any space contained therein which is demised or to be demised to tenant(s); (5) the cost of fire and extended coverage insurance, special extended coverage insurance, owner’s protective insurance, other casualty insurance coverage, boiler and machinery insurance, sprinkler and apparatus insurance, public liability and umbrella insurance, property damage insurance, rent or rental value insurance for up to two (2) years rent, plate glass insurance and other insurance commonly or customarily carried by owners of premium first class office buildings in the midtown Manhattan (i.e. from 34^th Street to 60^th Street, from 1^st Avenue to 8^th Avenue), City of New York (“Comparable Buildings”) or which is required by any Superior Lessor or Superior Mortgagee; (6) the cost of all supplies, tools, materials and equipment, whether by purchase or rental, used in the repair, replacement, maintenance, operation and/or security of the FC Office Units, and any sales and other taxes thereon; provided, however, that if under generally accepted accounting principles, consistently applied, any costs referred to in this clause (ii)(6) are required to be capitalized, same shall be amortized, including interest thereon at the Base Rate (as hereinafter defined) in effect as of December 31 of the year in which such alteration or improvement is made, over a period commencing upon the completion of the item in question and extending for the useful life of the item in question; (7) the cost of cleaning, janitorial and security services, including, without limitation, glass cleaning and garbage and waste collection and/or disposal; (8) management fees incurred for the management of the FC Office Units, provided, however, that if Landlord or a Landlord Affiliate is the managing agent of the FC Office Units then the annual management fee shall be equal to the

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then-prevailing market rate of Comparable Buildings; and (9) commercially reasonable attorneys’ fees and expenses in connection with any proceeding that may be prosecuted by Landlord to reduce the assessed valuation of the FC Office Units;

(iii)the cost of any alterations and improvements made by Landlord or Landlord Affiliates (as contrasted with any such alterations or improvements which are made by the Condominium Board of Managers or the FC Board of Managers) to the FC Office Units which are made or installed after the expiration of the Base Operating Year either (x) by reason of any law enacted or any governmental rule or regulation issued or any reinterpretation of any law or governmental rule or regulation issued after the date of this Lease, or (y) for the reduction of Operating Expenses with respect to the FC Office Units; provided, however, that if under generally accepted accounting principles, consistently applied, any costs referred to in this clause (iii) are required to be capitalized, same shall be amortized, including interest thereon at the Base Rate in effect as of December 31 of the year in which such alteration or improvements is made, over a period commencing upon the completion of the item in question and extending for the useful life of the item in question.

Notwithstanding the foregoing, “Operating Expenses” shall not include, or there shall be deducted therefrom, as applicable, the following items, whether or not same are included in common charges and special assessments and other charges assessed against the FC Office Units by the Condominium Board of Managers:

(1)interest on and amortization of debts;

(2)the cost of tenant improvements made for new or existing tenant(s) of the Building or allowances in lieu thereof;

(3)brokerage commissions;

(4)financing or refinancing costs;

(5)the cost of any work or services performed for any tenant of the Building, whether at the expense of Landlord, the Condominium Board of Managers, or such tenant, to the extent that such work or services are in excess of the work or services which Landlord is required to furnish or is furnishing to Tenant under this Lease at the expense of Landlord;

(6)Taxes or any amounts expressly excluded from the definition of “Taxes” under Section 3.01(g) hereof;

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(7)the cost of any repairs made to remedy damage to the extent caused by or resulting from the negligence of Landlord, its agents, servants or employees, or Landlord Affiliates,

(8)legal or brokerage or finder’s fees or other fees, leasing commissions, advertising expenses and other costs incurred in leasing or attempting to lease any portion of the FC Office Units or in connection with placing or refinancing any mortgages on the FC Office Units;

(9)any funds or money given to any tenants in cash, by offset or otherwise, or the cost of any work done for any tenants in connection with the leasing of space in the FC Office Units;

(10)the cost of any items to the extent Landlord or the Condominium Board of Managers is reimbursed by the proceeds of insurance, condemnation, warranties, guarantees or otherwise compensated, including items reimbursable (whether or not paid) by any tenant for specific services performed for such tenant (other than under operating expense escalation provisions of its lease),

(11)that portion of any cost paid to a Landlord Affiliate which is in excess of the amount which would be paid in the absence of such relationship;

(12)Salaries and fringe benefits for officers, employees, and executives above the grade of Building Manager;

(13)financing and refinancing costs in respect of any indebtedness of Landlord or any Landlord Affiliate, whether secured or unsecured, including, legal and accounting fees and expenses, prepayment penalties and interest and amortization payments in connection therewith;

(14)rent, additional rent or other charges payable under any ground or underlying lease, including, without limitation, the Unit Lease;

(15)costs incurred in connection with the transfer or disposition of direct or indirect ownership interests in the FC Office Units or Landlord;

(16)the costs of repairs or restoration necessitated by condemnation;

(17)costs incurred in connection with the making or enforcement of leases or resolution of disputes with tenants, including, without limitation, court costs, attorneys’ fees and disbursements in connection with any summary proceedings to dispossess any tenant;

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(18)fines, judgments or awards against Landlord based on Landlord’s negligence, willful misconduct or criminal act;

(19)general overhead of Landlord’s or the managing agent’s office;

(20)costs resulting from Landlord’s default under any lease or mortgage or under the Declaration; and

(21)advertising, promotional and public relations expenditures;

(22)costs of installing any specialty facility for use by tenants at the Building (such as a restaurant or fitness center);

(23)capital expenditures, whether charged as assessments or otherwise, other than those which:

(i)are required to comply with any laws and requirements of any public authorities or the requirements of insurance bodies; or

(ii)are for the reduction of Operating Expenses.

No item of expense shall be counted more than once either as an inclusion in or an exclusion or deduction from Operating Expenses, and any expense which should be allocated, in accordance with generally accepted accounting principles, between the Unit, on the one hand, and any other FC Office Units or any other property owned by Landlord or a Landlord Affiliate, on the other hand, shall be properly allocated in accordance therewith.  In determining the amount of Operating Expenses for any Operating Year, including the Base Operating Year, if less than all of the rentable square footage of the FC Office Units shall have been occupied by tenant(s) at any time during such Operating Year, Operating Expenses shall be determined for such Operating Year to be an amount equal to the expenses which would have been incurred had ninety-five percent (95%) of all of the rentable square footage of the FC Office Units been occupied by tenants throughout such Operating Year.

(f)“Operating Year” shall mean each calendar year in which occurs any part of the term of this Lease following the end of the Base Operating Year.

(g)“Taxes” shall mean (A) the real estate taxes (or PILOT in lieu of real estate taxes), assessments and special assessments, and business improvement district or similar charges, levied, assessed or imposed upon or with respect to the FC Office Units, by any federal, state, municipal or other governments or governmental bodies or authorities, and (B) all taxes assessed or imposed with respect to the rentals payable hereunder other than general income and gross receipts taxes.  If at any time during the term of this Lease the methods of taxation prevailing on the date hereof shall be altered so that in lieu of, or as an addition to or as a substitute for, the whole or any part of such real estate taxes, assessments and special assessments

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now imposed on real estate, there shall be levied, assessed or imposed with respect to the Unit (x) a tax, assessment, levy, imposition, license fee or charge wholly or partially as a capital levy or otherwise on the rents received therefrom, or (y) any other such additional or substitute tax, assessment, levy, imposition, fee or charge, then all such taxes, assessments, levies, impositions, fees or charges or the part thereof so measured or based shall be deemed to be included within the term “Taxes” for the purposes hereof, but only to the extent calculated as if Landlord’s interest in the Unit were Landlord’s only asset; provided, however, that any such taxes, assessments, levies, fees, impositions or charges which are “in addition to” (as opposed to “in lieu of” or “as a substitute for”) taxes otherwise includable in this definition of Taxes shall only be deemed Taxes if such amounts, from and after the time of their imposition, shall generally be treated as Taxes in other leases entered into by Landlord and by landlords of buildings comparable to the Building in midtown Manhattan.  Any dispute between Landlord and Tenant as to whether any taxes, assessments, levies, fees, impositions or charges should be included in Taxes as amounts which are includable on the basis that they are “in addition to” Taxes in accordance with the proviso at the end of the immediately preceding sentence shall be determined by arbitration in accordance with the then-prevailing rules of the American Arbitration Association in the City of New York.  The term “Taxes” shall, notwithstanding anything to the contrary contained herein, exclude any net income, franchise or “value added” tax, inheritance tax or estate tax imposed or constituting a lien upon Landlord or all or any part of the Unit, the Land or Building, except to the extent that any of the foregoing are hereafter assessed against owners or lessors of real property in their capacity as such (as opposed to any such taxes which are of general applicability).

(h)“Tax Year” shall mean each period of twelve (12) months, commencing on the first day of July of each such period, in which occurs any part of the term of this Lease, or such other period of twelve (12) months occurring during the term of this Lease as hereafter may be duly adopted as the fiscal year for real estate tax purposes of the City of New York.

(i)“Tenant’s Operating Share” shall mean       % (which percentage may be adjusted in accordance with the provisions of Section 3.03(a) hereof), which has been calculated as a fraction, expressed as a percentage, the numerator of which is the rentable area of the Premises, which Landlord and Tenant agree is                 rentable square feet, and the denominator of which is the rentable area of the FC Office Units, which Landlord and Tenant agree is                 rentable square feet.

(j)“Tenant’s Tax Share” shall mean shall mean       % (which percentage may be adjusted in accordance with the provisions of Section 3.02(a) hereof), which has been calculated as a fraction, expressed as a percentage, the numerator of which is the rentable area of the Premises, which Landlord and Tenant agree is                 rentable square feet, and the denominator of which is the rentable area of the FC Office Units which are owned by Landlord and/or Landlord Affiliates which Landlord and Tenant agree is                    rentable square feet as of the date of this Lease.

3.02.(a)If Taxes payable for any Tax Year, any part of which shall occur during the term of this Lease, shall exceed the Base Tax Amount, Tenant shall pay to Landlord as Additional

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Charges for such Tax Year an amount (the “Tax Payment”) equal to Tenant’s Tax Share of the amount by which the Taxes for such Tax Year are greater than the Base Tax Amount.  Notwithstanding the provisions of the foregoing sentence, in the event that Landlord or any Landlord Affiliate (the identity of whom Landlord has provided Tenant with prior notice) shall sell any of their condominium units in the FC Office Units to a third party during the term of this Lease, then, with respect to the calculation of any Tax Payment required to be made by Tenant from and after the later of: (i) the date of such sale or (ii) the date that the taxing authority shall designate a separate tax lot for the portion of the FC Office Units which continue to be owned by Landlord and/or any Landlord Affiliate and includes the Premises (the “Tax Adjustment Date”)(including any portion of the Tax Payment for the Tax Year in which such designation is made accruing after the Tax Adjustment Date), (x) an appropriate reduction in the Base Tax Amount shall be made by Landlord and Tenant to reflect the amount of Taxes that were incurred during the Tax Year in which the Commencement Date occurred with respect to only the portion of the FC Office Units which remain within the tax lot owned by Landlord and/or any Landlord Affiliate after the Tax Adjustment Date and (y) an appropriate modification to Tenant’s Tax Share shall be made by Landlord and Tenant to reflect the reduction in the number of rentable square feet of area in the FC Office Units after the Tax Adjustment Date.  Any dispute between Landlord and Tenant with respect to such reduction or modification shall be determined by “Expedited Arbitration” (as defined in Article 35 of this Lease).  The Tax Payment for each Tax Year shall be due and payable in installments in the same manner that Taxes for such Tax Year are due and payable by Landlord under the Unit Lease, if applicable, or otherwise to the City of New York.  Tenant shall pay Tenant’s Tax Share of each such installment within twenty (20) days after the rendering of a statement therefor by Landlord to Tenant, which statement shall be rendered by Landlord so as to require Tenant’s Tax Share of Taxes to be paid by Tenant no more than ten (10) days prior to the date such Taxes first become due, provided, however, that if a Superior Mortgagee shall require that Landlord make monthly or other less frequent periodic escrow payments of Taxes, then Landlord shall so notify Tenant and effective thirty (30) days following Tenant’s receipt of such notice Tenant’s Tax Payments shall be made to Landlord in installments at least ten (10) days before such periodic escrow deposits are due under the terms of such Superior Mortgage.  The statement to be rendered by Landlord shall set forth in reasonable detail the computation of Tenant’s Tax Share of the particular installment(s) being billed (and, upon written request from Tenant, Landlord shall provide Tenant with a copy of the tax bill from the taxing authorities relevant to the computation of Tenant’s Tax Payment).  If there shall be any increase in the Taxes for any Tax Year, whether during or after such Tax Year, or if there shall be any decrease in the Taxes for any Tax Year, whether during or after such Tax Year, the Tax Payment for such Tax Year shall be appropriately adjusted and paid or refunded, as the case may be, in accordance herewith.

(b)If Landlord shall receive a refund of the Taxes for any Tax Year, Landlord shall either pay to Tenant, or permit Tenant to credit against subsequent payments under this Article, Tenant’s Tax Share of the net refund (after deducting from such refund the costs and expenses, including, without limitation, reasonable appraisal and counsel fees of obtaining same to the extent that the same have not theretofore been paid by Tenant pursuant to Section 3.02(g)

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hereof); provided, however, such payment to Tenant shall in no event exceed Tenant’s Tax Payment paid for such Tax Year.

(c)Landlord shall, with respect to each Tax Year, initiate and pursue in good faith an application or proceeding seeking a reduction in Taxes or the assessed valuation of the Unit; provided, however, that Landlord shall not be required to initiate or pursue any such application or proceeding for any such Tax Year if Landlord obtains with respect to such Tax Year a letter from a recognized certiorari attorney or consultant that in such person’s opinion, it would not be advisable or productive to bring such application or proceeding and a reasonably detailed explanation from such recognized certiorari attorney or consultant setting forth the basis for such person’s opinion.

(d)In respect of any Tax Year which begins prior to the occurrence of the Commencement Date or terminates after the Expiration Date, the Tax Payment in respect of each such Tax Year or tax refund pursuant to subdivision (b) above therefor shall be prorated accordingly.

3.03.(a)For each Operating Year, subsequent to the Base Operating Year, any part of which shall occur during the term of this Lease, Tenant shall pay to Landlord as Additional Charges an amount (“Operating Payment”) equal to the sum of Tenant’s Operating Share of the amount by which the Operating Expenses for such Operating Year exceed the Base Operating Amount.  Notwithstanding the provisions of the foregoing sentence, in the event that Landlord or Landlord Affiliates shall sell any of their condominium units in the FC Office Units to a third party during the term of this Lease, then, with respect to the calculation of any Operating Payment required to be made by Tenant from and after the date of such sale (including any portion of the Operating Payment for the Operating Year in which such sale occurs accruing after the date of such sale) (x) an appropriate reduction shall be made by Landlord and Tenant in the Base Operating Amount to reflect the amount of Operating Expenses that were incurred during the Base Operating Year with respect to only the portion of the FC Office Units which remain owned by Landlord and Landlord Affiliates after such sale and (y) an appropriate modification to Tenant’s Operating Share shall be made by Landlord and Tenant to reflect the reduction in the number of rentable square feet of area in the FC Office Units after such sale.  Any dispute between Landlord and Tenant with respect to such reduction shall be determined by Expedited Arbitration.

(b)Landlord may furnish to Tenant, prior to or following the commencement of each Operating Year a written statement setting forth in reasonable detail Landlord’s reasonable estimate of the Operating Payment for such Operating Year.  Such estimate shall be accompanied by a reasonably detailed explanation of such increase.  In the event that Tenant disputes an estimate of the Operating Payment which reflects an increase in total Operating Expenses for the Building, Tenant shall have the right to challenge such estimate substantially in the manner set forth in Section 3.03(d) below.  Tenant shall pay to Landlord on the first day of each month during the Operating Year in which the Operating Payment will be due, an amount equal to one-twelfth (l/12th) of Landlord’s reasonable estimate of the Operating Payment for

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such Operating Year.  If, however, Landlord shall not furnish any such estimate for an Operating Year or if Landlord shall furnish any such estimate for an Operating Year subsequent to the commencement thereof, then until the first day of the month following the month in which such estimate is furnished to Tenant, Tenant shall pay to Landlord on the first day of each month an amount equal to the monthly sum payable by Tenant to Landlord under this Article 3 in respect of the last month of the preceding Operating Year.  After such estimate is furnished to Tenant, Landlord shall give notice to Tenant stating whether the installments of the Operating Payment previously made for such Operating Year were greater or less than the installments of the Operating Payment to be made for the Operating Year in which the Operating Payment will be due in accordance with such estimate, and (A) if there shall be a deficiency, Tenant shall pay the amount thereof within thirty (30) days after demand therefor, or (B) if there shall have been an overpayment, Landlord shall within thirty (30) days of such notice refund to Tenant the amount thereof, together with interest thereon at the Interest Rate from the date of the payment to which such refund relates until the date that Landlord shall pay such refund to Tenant in the event that the Operating Expenses for the preceding Operating Year shall exceed the Operating Expenses for the Operating Year in which the Operating Payment will be due in accordance with such estimate.  On the first day of the month following the month in which such estimate is furnished to Tenant and monthly thereafter throughout the remainder of such Operating Year Tenant shall pay to Landlord an amount equal to one-twelfth (l/12th) of the Operating Payment shown on such estimate.  Landlord may, during each Operating Year, furnish to Tenant one revised statement of Landlord’s reasonable estimate of the Operating Payment for such Operating Year, and in such case, the Operating Payment for such Operating Year shall be adjusted and paid or refunded or credited as the case may be, substantially in the same manner as provided in the preceding sentence.

(c)Landlord shall furnish to Tenant a Landlord’s Statement for each Operating Year within two hundred seventy (270) days after the end of each Operating Year.  Such statement shall set forth in reasonable detail the Operating Expenses for such Operating Year.  If the Landlord’s Statement shall show that the sums paid by Tenant, if any, under subsection 3.03(b) exceeded the Operating Payment to be paid by Tenant for the Operating Year for which such Landlord’s Statement is furnished, Landlord shall refund to Tenant the amount of such excess, together with interest thereon at the Interest Rate from the date of the payment to which such refund relates until the date that Landlord shall pay such refund to Tenant in the event that Landlord’s estimate of Operating Expenses pursuant to subsection 3.03(b) exceeded the Operating Expenses for the Operating Year for which such Landlord’s Statement is furnished; and if the Landlord’s Statement for such Operating Year shall show that the sums so paid by Tenant were less than the Operating Payment to be paid by Tenant for such Operating Year, Tenant shall pay the amount of such deficiency within thirty (30) days after demand therefor.  If the Landlord’s Statement for any Operating Year is not delivered to Tenant within one (1) year after the end of such Operating Year, Tenant shall not be obligated to make the monthly payment of Operating Expenses until such Landlord’s Statement is delivered to Tenant in which event, within thirty (30) days after receipt of such Landlord’s Statement, Tenant shall pay to Landlord any installments of Tenant’s Operating Payment which were so withheld by Tenant.

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(d)(i)Tenant, upon reasonable notice given within one hundred eighty (180) days of the receipt of such Landlord’s Statement and the execution of a confidentiality agreement in the form attached hereto as Exhibit L (“Confidentiality Agreement”), may elect to have Tenant’s designated (in such notice) representative (“Tenant’s Representative”), which Tenant’s Representative may or may not be an employee of Tenant (but who shall not be compensated for services on a contingency or success fee basis), examine such of Landlord’s books and records (collectively “Records”) as are relevant to the Landlord’s Statement in question, together with reasonable supporting data therefor, including applicable Records for the Base Operating Year or Base Tax Year, as the case may be, such examination to occur during Business Hours and upon at least ten (10) Business Days prior notice to Landlord, and which shall commence not later than forty-five (45) days following the date of Tenant’s notice.  If Tenant shall not give timely notice under this subsection 3.03(d)(i) with respect to any Landlord’s Statement it shall be deemed to have waived its right of examination under this Section 3.03(d)(i) with respect thereto and such Landlord’s Statement shall be conclusive and binding on Tenant.

(ii)Landlord hereby agrees to maintain and preserve its Records with respect to each Operating Year for a period of at least three (3) years following the delivery of Landlord’s Statement with respect thereto.  Notwithstanding anything to the contrary contained herein, in the event that any examination pursuant to subsection 3.03(d)(i) results in a finding of a discrepancy with respect to any item of Operating Expenses, Tenant, upon reasonable prior notice given within thirty (30) days after such finding, may elect to have Tenant’s designated Tenant’s Representative examine or re-examine such of the Records as are relevant to such item or any other similar item as included in Landlord Statements for all prior years during the term of the Lease for which Landlord shall then be retaining Records, as required pursuant to this subsection 3.03 (d)(ii).(9)

(iii)Tenant shall, at Tenant’s expense, have the right to obtain copies and/or make abstracts of the Records as it may request in connection with its verification of any such Operating Statement, subject to the provisions of the Confidentiality Agreement.

(iv)In the event that Tenant within one hundred eighty (180) days year from the date on which the Records are all made available to Tenant, (which period shall be extended by one (1) day for each day, if any, that Landlord fails to provide Tenant with any additional relevant information in Landlord’s possession or under Landlord’s control with regard to the Operating Payment which is reasonably requested by Tenant), shall disagree with the Landlord’s Statement, then Tenant may, as its sole remedy to adjust disputes with Landlord concerning a Landlord Statement (except in the event of Landlord’s fraud), send a written notice (hereinafter called “Tenant’s Statement”) to Landlord of such disagreement, specifying the basis for Tenant’s disagreement and Tenant’s determination of the Operating Payment for the year question.

(9)If and for so long as Ground Lessor is (i) the “Landlord” under this Lease and (ii) a governmental entity or a public benefit corporation, the provisions of this subparagraph 3.03(d)(ii) shall not be applicable.

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Landlord and Tenant shall attempt to adjust such disagreement.  If they are unable to do so within thirty (30) days, Landlord and Tenant shall designate a certified public accountant (hereinafter called the “Arbiter”) whose determination of the Operating Payment for the year in question made in accordance with this subsection 3.03(d)(iv) shall be binding upon the parties.

If the determination of the Arbiter shall substantially confirm the determination of Landlord and not substantially confirm the determination of Tenant, then Tenant shall pay the cost of the Arbiter.  If the determination of the Arbiter shall substantially confirm the determination of Tenant and not substantially confirm the determination of Landlord, then Landlord shall pay the cost of the Arbiter.  In all other events, the cost of the Arbiter shall be borne equally by Landlord and Tenant.  The term “substantially” as used herein, shall mean the determination of the Arbiter shall find a variance of 5% or less in the aggregate of either Landlord’s or Tenant’s determination, as applicable.

The Arbiter shall be a member of an independent certified public accounting firm having at least three (3) accounting professionals and having at least ten (10) years of experience in commercial real estate accounting.  In the event that Landlord and Tenant shall be unable to agree upon the designation of the Arbiter within thirty (30) days after receipt of notice from the other party requesting agreement as to the designation of the Arbiter, which notice shall contain the names and addresses of two or more certified public accountants who are acceptable to the party sending such notice (any one of whom, if acceptable to the party receiving such notice as shall be evidenced by notice given by the receiving party to the other party within such thirty (30) day period, shall be the agreed upon Arbiter), then either party shall have the right to request the American Arbitration Association (the “AAA”) (or any organization which is the successor thereto) to designate as the Arbiter a certified public accountant whose determination of the Operating Payment made in accordance with this subsection 3.03(d)(iv) shall be conclusive and binding upon the parties, and the cost charged by the AAA (or any organization which is the successor thereto), for designating such Arbiter, shall be shared equally by Landlord and Tenant.  In rendering its determination the Arbiter shall not add to, subtract from or otherwise modify the provisions of this Lease.

3.04.In any case provided in this Article 3 in which Tenant is entitled to a refund, at Landlord’s option, Landlord may, in lieu of such refund (In any event if Landlord does not refund such amount to Tenant within 30 days after such amount is due then Tenant may offset such amount against the next due installment of Fixed Rent and Additional Charges.) credit against the next installments of Fixed Rent and Additional Charges any amounts to which Tenant shall be entitled until such credit shall have been exhausted.  If this Lease shall expire before any such credit shall have been fully applied, then Landlord shall refund to Tenant the unapplied balance of such credit within thirty (30) days after the last day of the term of this Lease.

3.05.Each year during the term of this Lease, Tenant shall pay to Landlord as an Additional Charge the Theatre Surcharge (as defined in Section 3.5(a) of the Ground Lease)

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which is charged to the Premises in accordance with the Ground Lease, such payment to be made within thirty (30) Business Days following Landlord’s invoice to Tenant therefor.  If the Commencement Date shall occur on a date other than the first day of a calendar year and/or if the Expiration Date shall occur on a date other than the last day of a calendar year, the Theatre Surcharge payable by Tenant for the partial calendar year in which the Commencement Date or the Expiration Date, as the case may be, occurs, shall be reduced pro rata to reflect the number of days in the applicable calendar year that this Lease is in effect.

ARTICLE 4

Security Deposit

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4.01.Tenant has deposited with Landlord the sum of one year’s Fixed Rent as security for the full and faithful performance and observance by Tenant of Tenant’s covenants and obligations under this lease.  If Tenant defaults in the full and prompt payment and performance of any of Tenant’s covenants and obligations under this lease, including, but not limited to, the payment of Fixed Rent and Additional Charges, and such default continues after the giving of notice and the expiration of applicable cure periods under this Lease, Landlord may, but shall not be required to, use, apply or retain the whole or any part of the security so deposited and the interest accrued thereon, if any, to the extent required for the payment of any Fixed Rent and Additional Charges or any other sums as to which Tenant is in default or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s default in respect of any of the terms, covenants and conditions of this lease, including, but not limited to, any damages or deficiency in the reletting of the Premises, whether such damages or deficiency accrue before or after summary proceedings or other re-entry by Landlord.  If Landlord shall so use, apply or retain the whole or any part of the security or the interest accrued thereon, if any, Tenant shall upon demand immediately deposit with Landlord a sum equal to the amount so used, applied or retained, as security as aforesaid failing which Landlord shall have the same rights and remedies as for the non-payment of Fixed Rent beyond the applicable grace period.  If Tenant shall fully and faithfully comply with all of Tenant’s covenants and obligations under t this lease, the security or any balance thereof, to which Tenant is entitled, shall be returned or paid over to Tenant after the date fixed as the end of this lease and after delivery to Landlord of entire possession of the Premises.  In the event of any sale, transfer or leasing of Landlord’s interest in the Building whether or not in connection with a sale, transfer or leasing of the Land to a vendee, transferee or lessee, Landlord shall have the right to transfer the unapplied part of the security and the interest thereon, if any, to which Tenant is entitled, to the vendee, transferee or lessee and Landlord shall thereupon be released by Tenant from all liability for the return or payment thereof, and Tenant shall look solely to the new landlord for the return or payment of the same.  The provisions of the preceding sentence shall apply to every subsequent sale, transfer or leasing of the Building, and any successor of Landlord may, upon a sale, transfer, leasing or other cessation of the interest of such successors in the Building, whether in whole or in part, pay over any unapplied part of said security to any vendee, transferee or lessee of the Building and shall thereupon be relieved of all liability with respect thereto.  Except in connection with a permitted assignment of this lease, Tenant shall not assign or encumber or attempt to assign or encumber the monies deposited herein as security or any interest thereon to which Tenant is entitled, and neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.

4.02.In lieu of cash security required hereunder, at any time during the term of this Lease, Tenant may, at Tenant’s election, deposit with Landlord a letter of credit from a bank reasonably acceptable to Landlord substantially in the form annexed hereto as Exhibit D in the amount of the security required under Section 4.01 hereof, and simultaneously with delivery of such letter of credit, the cash security shall be returned to Tenant.(10)

(10) Article 4 to be deleted if (i) Tenant of Lease is NYTC or (ii) Tenant of Lease is an Affiliate of NYTC and Tenant provides a guaranty from NYTC in the form annexed hereto as Exhibit K; and, in the event of either (i) or

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ARTICLE 5

Subordination, Notice to Lessor under the Unit Lease and Mortgagees

5.01.Subject to the provisions of Section 5.05 hereof, this Lease, all rights of Tenant hereunder, are and shall be subject and subordinate to the “Unit Lease” (as such term is defined in the Declaration), all matters and instruments to which the Unit Lease is subordinate and to all other ground leases or underleases or mortgages which may now or hereafter affect the Unit, to each and every advance made or hereafter to be made under such mortgages, and to all renewals, modifications, replacements and extensions of the Unit Lease and such mortgages and spreaders and consolidations of such mortgages.  This Section 5.01 shall be self-operative and no further instrument of subordination shall be required.  In confirmation of such subordination, Tenant shall promptly execute, acknowledge and deliver any instrument that Landlord, the lessor under the Unit Lease or any ground or underlying lease or the holder of any such mortgage or any of their respective successors in interest may reasonably request to evidence such subordination.  Any mortgage to which this Lease is, at the time referred to, subject and subordinate is herein called a “Superior Mortgage” and the holder of a Superior Mortgage is herein called a “Superior Mortgagee”.  Any ground lease or underlying lease to which this Lease is, at the time referred to, subject and subordinate is herein called a “Superior Lease” and the lessor under a Superior Lease is herein called a “Superior Lessor”.

5.02.Subject to the provisions of any SNDA Agreement between Tenant and any Superior Mortgagee or Superior Lessor, if any act or omission of Landlord would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease or to claim a partial or total eviction (other than a right of cancellation, termination, abatement or offset specifically provided for in this Lease), Tenant shall not exercise such right (a) until it has given written notice of such act or omission to Landlord and each Superior Mortgagee and Superior Lessor whose name and address shall previously have been furnished to Tenant, and (b) until the period to which Landlord would be entitled under this Lease or otherwise, after similar notice, to effect the remedy of such act or omission shall have elapsed following the giving of such notice and following the time when such Superior Mortgagee or Superior Lessor shall have become entitled under such Superior Mortgage or Superior Lease, as the case may be, to remedy the same, provided such Superior Mortgagee or Superior Lessor shall with due diligence give Tenant notice of intention to, and commence and continue to, remedy such act or omission.

5.03.Subject to the provisions of any SNDA Agreement between any Superior Mortgagee or Superior Lessor, if a Superior Lessor or any Superior Mortgagee, or any designee of any Superior Lessor or any Superior Mortgagee, shall succeed to the rights of Landlord under this Lease, whether through possession or foreclosure action or delivery of a new lease or deed, then at the request of such party so succeeding to Landlord’s rights (“Successor Landlord”) and upon

(ii), NYTC has a credit rating of A- or better as determined by the Rating Agency (as defined in the Declaration).

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such Successor Landlord’s written agreement to accept Tenant’s attornment, Tenant shall attorn to and recognize such Successor Landlord as Tenant’s landlord under this Lease and shall promptly execute and deliver any instrument that such Successor Landlord may reasonably request to evidence such attornment.  Upon such attornment this Lease shall continue in full force and effect as a direct lease between the Successor Landlord and Tenant upon all of the terms, conditions and covenants as are set forth in this Lease, the Successor Landlord shall not be:

(a)liable for any accrued obligation of Landlord, or for any act or omission of Landlord, prior to such foreclosure or sale, except that such non-liability shall in no way diminish Tenant’s rights under this Lease with respect to the continuing failure of the Successor Landlord to perform the obligations of any prior Landlord under this Lease after the date upon which the Successor Landlord succeeds to the interests of Landlord under this Lease,

(b)required to perform or provide any services not expressly set forth in this Lease, or

(c)subject to any offsets (other than offsets expressly provided for in this Lease), defenses or counterclaims which have accrued against Landlord prior to the date Successor Landlord succeeds to the interests of Landlord under this Lease;

5.04.Landlord hereby represents that:(11)

(a)there are no ground, superior or underlying leases affecting the Premises as of the date hereof other than the Unit Lease and the “Ground Lease” as such term is defined in the Declaration, and

(b)the only existing Superior Mortgage as of the date hereof is that certain                                                                                                                                                                           &nb sp; (the “Existing Mortgage”).

5.05.(a)Concurrently with execution of this Lease, Landlord, Tenant and the Superior Mortgagee under the existing Superior Mortgage, have executed a subordination, non-disturbance and attornment agreement (an “SNDA Agreement”) with respect to the Existing Mortgage substantially in the form annexed hereto as Exhibit E.

(b)Concurrently with execution of this Lease, Landlord, Tenant and the Ground Lessor have executed a subordination, non-disturbance and attornment agreement (the

(11) If and for so long as the “Landlord” under this Lease is (A)(i) Ground Lessor and (ii) a governmental entity or a public benefit corporation, or (B) the party acquiring the interest of the “Landlord” in this Lease from such governmental entity or public benefit corporation (but not any other party who becomes the “Landlord” under this Lease), the preamble to Section 5.04 shall read “Landlord hereby represents that to Landlord’s knowledge:”

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“Unit Lease SNDA Agreement”) with respect to the Unit Lease in the form annexed hereto as Exhibit F.

(c)With respect to future Superior Mortgages and Superior Leases, the provisions of Section 5.01 hereof shall be conditioned upon the execution, acknowledgment and delivery by and between Tenant and any such Superior Mortgagee or Superior Lessor, of an agreement which

(i)shall provide in substance that so long as no default exists hereunder beyond any applicable grace period (if any), Tenant shall not be disturbed in its possession of the Premises pursuant to the provisions of this Lease and

(ii)shall not, except to a de minimis extent, reduce the rights of Tenant or increase the obligations of Tenant in either case as compared to the SNDA Agreement in Exhibit E annexed hereto, in the case of future Superior Mortgages, or the Unit Lease SNDA Agreement in Exhibit F annexed hereto, in the case of future Superior Leases.

(any SNDA Agreement which satisfies the requirements of clause (i) and (ii) above is a “Qualifying SNDA Agreement”).Any dispute as to whether a proposed agreement constitutes a Qualifying SNDA Agreement may be submitted by either party for resolution by arbitration in accordance with Article 35 hereof.

ARTICLE 6

Quiet Enjoyment

6.01.So long as Tenant pays all of the Fixed Rent and Additional Charges and is not in default after notice and the expiration of any grace period with respect to such default, Tenant shall peaceably and quietly have, hold and enjoy the Premises without hindrance, ejection or molestation by Landlord or any person lawfully claiming through or under Landlord, subject, nevertheless, to the provisions of this Lease, the Declaration, the By-laws, the Unit Lease and any Superior Leases and Superior Mortgages.

ARTICLE 7

Assignment and Subletting

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7.01.(a)Subject to the provisions of subsections 7.01(b), 7.01(c) and 7.01(e) hereof, Tenant shall have the right, without the consent or approval of Landlord, to (i) assign or otherwise transfer this Lease, (ii) sublet the Premises or any part thereof and modify or terminate any existing sublease, and/or (iii) allow not more than one-half of the rentable square footage of the Premises or any portion(s) thereof to be used, occupied or utilized by third parties who are providing a material business service to Tenant (“Users”).  Tenant agrees to notify Landlord at least thirty (30) days prior to taking any action referred to in clauses (i), (ii) or (iii) of the immediately preceding sentence, which notice, in the case of an assignment of this Lease, shall be accompanied by a duly executed counterpart of an assignment and assumption instrument whereby the assignee agrees to assume the obligations of Tenant under this Lease accruing from and after the effective date of such assignment.  Notwithstanding the foregoing, no User shall be in privity with the Landlord under this Lease and Landlord shall have no obligations to any User under this Lease for any reason whatsoever in connection with such Users’ occupancy of the Premises.  No separate entrances to the Premises from public or common areas shall be constructed to provide access to the space used by any User.  No User shall use the Premises, or any portion thereof for a use that is prohibited by the terms of this Lease.  Any breach or violation of this Lease by any User shall be deemed to be and shall constitute a default by Tenant under this Lease, and subject to the foregoing notice requirement any act or omission of a User shall be deemed to be and shall constitute an act or omission of Tenant under this Lease.  Tenant hereby indemnifies and holds harmless Landlord against any loss, claim or damage arising from the acts or omissions of any User in or about the Premises.

(b)Except for any assignment to a Tenant Affiliate pursuant to paragraph 7.01(d) hereof, if Tenant shall at any time or times during the term of this Lease desire to assign this Lease, Tenant shall give notice thereof (herein called an “Assignment Recapture Offer Notice”) to Landlord, which notice shall set forth: (i) Tenant’s intention to assign this Lease, (ii) the proposed date upon which the Premises are intended or proposed (as the case may be) to be vacated by Tenant, which date shall be no sooner than sixty 60 days after the Assignment Recapture Offer Notice, and (iii) the consideration which Tenant would be willing to accept from a third party in connection with an assignment of this Lease to a third party.  Such Assignment Recapture Offer Notice shall be deemed an offer from Tenant to Landlord whereby Landlord shall terminate this Lease if Landlord accepts such offer.  Said option may be exercised by Landlord by notice (herein called “Landlord’s Assignment Recapture Notice”) given to Tenant at any time within thirty (30) days after such Assignment Recapture Offer Notice has been given by Tenant to Landlord (herein called the “Assignment Recapture Period”), and time shall be of the essence with respect to the delivery to Tenant of the Landlord’s Assignment Recapture Notice prior to the expiration of the Assignment Recapture Period.

(c)If Landlord exercises its option to terminate this Lease by delivering to Tenant Landlord’s Assignment Recapture Notice, then this Lease shall end and expire on the date the proposed assignment was to be effective and the Fixed Rent and Additional Charges shall be paid and apportioned to such date.  If Landlord does not exercise its option to terminate this Lease prior to the expiration of the Assignment Recapture Period, then Tenant may assign this Lease to a third party within Two Hundred Seventy (270) days following the expiration of the Assignment

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Recapture Period provided the consideration payable to Tenant for the assignment on a net present value basis (using a discount rate of 9% per annum) is not more than five (5%) percent less than the consideration set forth in the Assignment Recapture Offer Notice.  In the event that Tenant desires to assign this Lease either (i) for consideration payable to Tenant (on a net present value basis [using a discount rate of 9% per annum]) which is more than five (5%) percent less than the consideration set forth in the Assignment Recapture Offer Notice or (ii) at any time after two hundred seventy (270) days following the expiration of the Assignment Recapture Period, then before Tenant may assign this Lease to a third party Tenant must first provide Landlord with another Assignment Recapture Offer Notice which sets forth the new terms that Tenant would be willing to accept from a third party.  Landlord shall have the right to accept such offer as is set forth in Section 7.01(b) and the provisions of Section 7.01(b) shall apply to such Assignment Recapture Offer Notice.

(d)Notwithstanding the provisions of this Section 7.01 to the contrary, Tenant shall have the right, without being subject to Landlord’s option as described in paragraph 7.01(b) to assign this Lease to a “Tenant Affiliate”.  For purposes hereof, the term “Tenant Affiliate” means a corporation, partnership, limited liability company or other entity (i) into or with which Tenant is merged or consolidated or, (ii) to which substantially all of Tenant’s assets are transferred, or (iii) which controls is controlled by or is under common control with Tenant.  For purposes of this Section 7.01(d) the term “control” means the ownership or voting control, directly or indirectly, of 50% or more of the voting stock, partnership, membership or similar interests in such entity.

(e)Notwithstanding anything to the contrary provided in Section 7.01(a), except for an assignment of this Lease or a sublease of all or any portion of the Premises to a Tenant Affiliate in accordance with Section 7.01(d), Tenant shall not, whether voluntarily, involuntarily or by operation of law assign or otherwise transfer the Lease or sublet all or any portion of the Premises (including entering into a so-called “takeover” agreement for the Premises), without in each instance obtaining the prior written consent of Landlord (such consent to not be unreasonably withheld, delayed or conditioned).  Without limitation, Landlord shall be deemed to have reasonably withheld its consent if:

(i)the proposed sublessee or assignee is a Prohibited Person (as defined in any Superior Lease) or falls within the categories described in items (2) - (18) on Exhibit I to the Declaration;

(ii)Landlord has actively negotiated with the proposed sublessee or assignee for space in the FC Office Units which is either of a comparable size as the Premises (in the case of a proposed assignment) or of a comparable size as the proposed premises to be sublet (in the case of a proposed sublease) within the ninety (90) days immediately prior to Landlord’s receipt of written notice from Tenant which indicates that Tenant has entered into negotiations with the proposed sublessee or assignee, provided, however, that if within ten (10) Business Days after

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Landlord’s receipt of such notice, Landlord has not certified to Tenant that Landlord has actively negotiated with such proposed assignee or sublessee within the prior ninety (90) days, then Landlord shall not be deemed to have reasonably denied its consent to such proposed assignment or subleasing on the grounds that it has actively negotiated with such party within the prior ninety (90) days;

(iii)the proposed sublessee or assignee is then a tenant in other premises in the FC Office Units;

(iv)the terms and provisions of the proposed sublease do not state that they are subject to the provisions of the Lease;

(v)the terms of the proposed assignment or sublease do not state that the proposed assignee or sublessee, as the case may be, shall not have the right to further sublet its demised premises or further assign this Lease or allow its demised premises to be used by others except in compliance with the terms and provisions of this Article 7;

(f)No User, Subtenant or assignee may use the Premises for a use that violates the exclusive use rights of any other tenant of the FC Office Units, which exclusive uses are set forth on Exhibit G annexed hereto.  Notwithstanding the preceding sentence, the provisions of this Section 7.01(f) shall not be applicable to and shall not restrict the use of the Premises for, the conduct of any business owned by or any business activity conducted by the New York Times Company.

(g)Landlord’s consent to an assignment or sublease shall be given or withheld (and if withheld, Landlord’s notice withholding such consent shall set forth with specificity the reasons for such withholding) on or before the date that is ten (10) Business Days after Landlord’s receipt of Tenant’s request for such consent.  If Landlord fails to respond to Tenant’s request for an assignment or sublease within such ten (10) Business Day period, Landlord shall be deemed to have granted its consent to such transaction provided that Tenant’s request shall state that Landlord’s failure to withhold its consent to the proposed assignment or sublease, as the case may be, within ten (10) Business Days shall be deemed a consent by Landlord

(h)Tenant shall not enter into any amendment to a sublease (with respect to which Landlord’s consent was required) without obtaining the prior written consent of Landlord unless such amendment provides for (i) the termination of the term of the sublease prior to its expiration; or (ii) the reduction, abatement or deferral of any rent, additional rent or other charges, provided such reduction, abatement or deferral is for a good business purpose.  Landlord’s consent shall not be required for any amendment to a sublease described in clauses (i) and (ii) of this Section 7.10(h).

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(i)Any assignment or transfer, or attempted assignment or transfer, of this Lease and any sublease, or any attempted sublease, of all or any portion of the Premises which is undertaken by Tenant in violation of the provisions of this Article shall be void ab initio.

7.02.If this Lease be assigned, Landlord may collect rent from the assignee.  If the Premises or any part thereof are sublet or used or occupied by anybody other than Tenant, Landlord may, after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant.  In either event, Landlord shall apply the net amount collected to the Fixed Rent and Additional Charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the performance by Tenant of Tenant’s obligations under this Lease.

7.03.The original named Tenant covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of Fixed Rent and/or Additional Charges by Landlord from an assignee, transferee, or any other party, the original named Tenant shall remain primarily liable for the payment of the Fixed Rent and Additional Charges and for the performance and observance of other obligations of this Lease on the part of Tenant to be performed or observed.

7.04.The joint and several liability of Tenant and any immediate or remote successor in interest of Tenant for the due performance and observance of the obligations of this Lease on Tenant’s part to be performed or observed shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord extending the time of, or modifying any of the obligations of, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of this Lease.  If any such agreement or modification operates to increase the obligations of a tenant under this Lease (the “Then Tenant”),the liability of all predecessors to the Then Tenant shall continue to be no greater than if such agreement or modification had not been made (except as any such predecessor shall otherwise agree).

7.05.With respect to each and every sublease or subletting under the provisions of this Lease, it is further agreed that:

(a)No subletting shall be for a term (including any renewal or extension options contained in the sublease) ending later than one day prior to the expiration date of this Lease; and

(b)Each sublease shall provide that it is subject and subordinate to this Lease and to any matters to which this Lease is or shall be subordinate, and that in the event of termination, reentry or dispossess by Landlord under this Lease Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor, under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not be (i) liable for any previous act or omission of Tenant under such sublease, (ii) subject to any credit, offset, claim, counterclaim, demand or

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defense which such subtenant may have against Tenant, (iii) bound by any previous modification of such sublease or by any previous prepayment of more than one (1) month’s rent, (iv) required to account for any security deposit of the subtenant other than any security deposit actually delivered to Landlord by Tenant, (vi) bound by any obligation to make any payment to such subtenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the sublease to be performed after the date of such attornment, or (vii) responsible for any monies owing by Landlord to the credit of Tenant; and

(c)Provided that Landlord shall have space comparable in size then available, or to become available, for leasing in the Building that Landlord has elected to Lease to tenants, within nine (9) months from the effective date of the proposed subletting, (herein called “Comparable Space”), the proposed sublessee shall not then be an occupant of any part of the Building or a party with whom Landlord has been actively negotiating with respect to space in the Building during the ninety (90) day period immediately preceding Landlord’s receipt of a notice from Tenant to Landlord (herein called a “Tenant Negotiation Notice”) that Tenant has entered into negotiations with such party; provided, however, that if Landlord shall have failed to identify in writing, such Comparable Space or a prospective subtenant identified in a Tenant Negotiation Notice as a party within ten (10) Business Days following Landlord’s receipt of a Tenant Negotiation Notice, the foregoing condition shall not apply to the subletting in question.

7.06.Each subletting shall be subject to all of the covenants, agreements, terms, provisions and conditions contained in this Lease.  Notwithstanding any such subletting to any subtenant and/or acceptance of rent or additional rent by Landlord from any subtenant, Tenant shall and will remain fully primarily liable for the payment of the Fixed Rent and Additional Charges due and to become due hereunder and for the performance of all the covenants, agreements, terms, provisions and conditions contained in this Lease on the part of Tenant to be performed and all acts and omissions of any licensee or subtenant or anyone claiming under or through any subtenant which shall be in violation of any of the obligations of this Lease, and any such violation shall be deemed to be a violation by Tenant.

7.07.(a)In the event of any sublease other then to a Tenant Affiliate, Tenant shall in consideration therefor, pay to Landlord, as Additional Charges an amount equal to fifty (50%) percent of any “Sublease Profit” (as such term is hereinafter defined), after deducting therefrom the amount of “Tenant’s Costs” (as such term is hereinafter defined).

(b)For purposes of this Section 7.07, the term “Sublease Profit” shall mean, for the term of the applicable sublease (the “Sublease Term”):

(1)any rents, additional charges or other consideration payable under the sublease or other occupancy agreement to Tenant by the subtenant or other occupant which is in excess of the Fixed Rent and Additional Charges accruing during the Sublease Term in respect of the subleased space (at the rate per square foot payable by Tenant hereunder) pursuant to the terms hereof, and

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(2)all sums paid for the sale or rental of Tenant’s fixtures, leasehold improvements, equipment, furniture or other personal property, less:

1.in the case of a sale or rental of property which is deemed to be in the property of Landlord pursuant to the provisions of Article 12 hereof; zero;

2.in the case of a sale of Tenant’s Property, the then net unamortized or undepreciated portion (determined on the basis of Tenant’s federal income tax returns) of the original cost thereof; or

3.in the case of a rental of Tenant’s Property, the fair rental value thereof.

(c)The sums payable under this Section 7.07, if any, shall be paid to Landlord within thirty (30) days after the same are paid by the subtenant to Tenant.

(d)For purposes hereof, the term “Tenant’s Cost” shall mean:

(1)the amount of any commercially reasonable brokers’ fees or commissions paid to any brokers as a result of any subletting by Tenant hereunder and any transfer, sales or gains taxes paid by Tenant in connection with such subletting;

(2)the cost to Tenant of any improvements made to prepare the space in question for the occupancy of the subtenant and any rent abatement and/or concession (including moving expenses and any lease takeover costs) and/or work allowance (or equivalent) granted by Tenant to any such subtenant in lieu of or in addition to Tenant’s performance of any such improvements made to prepare the space in question for the occupancy of the subtenant;

(3)advertising and marketing expenses directly related to the subletting of the space;

(4)reasonable legal fees directly related to the subletting of the space;

For the purposes of computing “Sublease Profit”, Tenant’s Costs with respect thereto shall be deducted as and when they are paid by Tenant (or, as necessary, deducted from future Sublease Profit, to the extent that current Tenant’s Costs exceed current Sublease Profit).

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ARTICLE 8

Compliance with Laws

8.01.(a)Tenant shall give prompt notice to Landlord of any notice it receives of the violation of any law or requirement of any public authority with respect to the Premises or the use or occupation thereof.  Tenant shall, at Tenant’s expense, comply with all present and future laws and requirements of any public authorities in respect of the Premises or the use and occupation thereof, or the abatement of any nuisance in, on or about the Premises; provided, however, that Tenant shall not be obligated to make any repairs, replacements, alterations, additions or improvements of a structural nature or any repairs, replacements, alterations, additions or improvements to any “Building Systems”, as such term is hereinafter defined, in order to comply with laws and requirements of public authorities unless the need for same arises out of any of the following causes:

(i)Tenant’s manner of use of the Premises (other than the mere use of the Premises as executive and general offices with customary ancillary uses),

(ii)the manner of operation of Tenant’s installations, equipment or other property therein (other than the operation thereof in a manner incidental to the mere use of the Premises for executive and general offices with customary ancillary uses),

(iii)any cause or condition created by or at the instance of Tenant (other than the mere use of the Premises as executive and general offices with customary ancillary uses and other than installations, equipment or other property incidental to such use and commonly installed in “Comparable Buildings”, as such term is defined in Section 13.04 hereof), or

(iv)the breach of any of Tenant’s obligations hereunder.

Landlord shall give Tenant not less than thirty (30) days notice prior to Landlord’s effecting any compliance with such laws and requirements for which Tenant is responsible pursuant to the preceding sentence.

Notwithstanding the foregoing provisions of this Section 8.01(a), Tenant shall not be required to comply with any law or requirement of any public authority, and Landlord shall not effect any such compliance for which Tenant is responsible, so long as Tenant shall be contesting the validity thereof, or the applicability thereof to the Premises, in accordance with Section 8.02 hereof.

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(b)Except to the extent that either (i) Tenant is required by this Lease to comply therewith, or (ii) such compliance is the responsibility of the Condominium Board of Managers or the NYTC Board of Managers pursuant to the Declaration or the By-Laws, Landlord shall comply with all present and future laws and requirements of public authorities in respect of the Premises and any other portions of the Unit.  Notwithstanding the foregoing, Landlord may defer compliance with any such law or requirement so long as Landlord shall be contesting the validity or applicability thereof in good faith by appropriate proceedings diligently prosecuted provided that (x) such deferral of compliance does not adversely affect Tenant’s use of the Premises or Tenant’s right or ability lawfully to use the Premises or to make alterations or improvements as permitted by this Lease, (y) Tenant shall not be subject to criminal penalty or to prosecution for a crime, or any other fine or charge, nor shall the Premises or any part thereof be subject to being condemned or vacated, and (z) Landlord shall keep Tenant advised as to the status of such proceedings.  Without limiting the application of the above, Tenant shall be deemed subject to prosecution for a crime if Tenant or any officer, director, partner, shareholder or employee of Tenant, as an individual, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Tenant, or such officer, director, partner, shareholder or employee of Tenant is required to plead or answer thereto.

(c)For purposes of this Section 8.01 and any other applicable provision of this Lease, the term “Building Systems”shall mean

(i)the elevators and escalators of the Building;

(ii)the window washing and waste compacting and removal equipment of the Building, if any;

(iii)the core toilets and utility closets of the Building, and all fixtures and equipment installed therein; and

(iv)the electrical, HVAC, mechanical, chilled water, condenser water, plumbing, domestic water, sanitary, sprinkler, fire control, alarm and prevention, BMS, life safety and security systems of the Building (together with all related equipment), brought to and including, but not beyond, the point on each floor of the Building at which such systems connect to horizontal distribution facilities; provided, however that, notwithstanding anything contained in clause (iv) of the foregoing to the contrary, the following shall be considered part of the Building Systems: (x) the entire main distribution loop of the sprinkler system on each floor on which the Premises are located and (y) the entire perimeter HVAC system on each floor on which the Premises are located.

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8.02.Tenant, at its expense, after notice to Landlord, may contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any law or requirement of any public authority, provided that Landlord shall not be subject to criminal penalty or to prosecution for a crime, or any other fine or charge, nor shall the Premises or any part thereof or the Building or Land, or any part thereof, be subject to being condemned or vacated, nor shall the Building or Land, or any part thereof, be subjected to any lien (unless Tenant shall remove such lien by bonding or otherwise) or encumbrance, by reason of non-compliance or otherwise by reason of such contest.  Tenant shall keep Landlord advised as to the status of such proceedings.  Without limiting the application of the above, Landlord shall be deemed subject to prosecution for a crime if Landlord, or its managing agent, or any officer, director, partner, shareholder or employee of Landlord or its managing agent, as an individual, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or its managing agent, or such officer, director, partner, shareholder or employee of Landlord or its managing agent (as the case may be) is required to plead or answer thereto.

ARTICLE 9

Insurance

9.01.Tenant shall not violate, or permit the violation of, any condition imposed by any insurance policy then issued in respect of the Real Property which is standard and customary for Comparable Buildings (as herein defined) and shall not do, or permit anything to be done, or keep or permit anything to be kept in the Premises which would increase any insurance rate in respect of the Real Property over the rate which would otherwise then be in effect or which would result in insurance companies of good standing refusing to insure the Real Property in amounts required under the By-Laws, or which would result in the cancellation of or the assertion of any defense by the insurer in whole or in part to claims under any policy of insurance in respect of the Real Property.

9.02.If, by reason of any failure of Tenant to comply with the provisions of this Lease (which failure Landlord shall notify Tenant of and, to the extent reasonably possible, afford Tenant a reasonable period of time to cure), the premiums on Landlord’s insurance on the Real Property shall be higher than they otherwise would be, Tenant shall reimburse Landlord, within thirty (30) days and as Additional Charges, for that part of such premiums attributable to such failure on the part of Tenant.  A schedule or “make up” of rates for the Real Property or the Premises, as the case may be, issued by the New York Fire Insurance Rating Organization or other similar body making rates for insurance for the Real Property or the Premises, as the case may be, shall be conclusive evidence of the facts therein stated and of the several items and charges in the insurance rate then applicable to the Real Property or the Premises, as the case may be.

9.03.Tenant, at its expense, shall maintain at all times during the term of this Lease (a) fire insurance with “all risk” coverage, vandalism and malicious mischief endorsements covering

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all present and future Tenant’s Property and all leasehold improvements installed in the Premises (including Tenant’s Work) to a limit of not less than the full replacement value thereof, such insurance to include a replacement cost endorsement, (b) commercial general liability insurance, including contractual liability, in respect of the Premises and the conduct or operation of business therein, with Landlord and its managing agent, if any, and the lessor under the Unit Lease and each Superior Lessor or Superior Mortgagee whose name and address shall previously have been furnished to Tenant, as additional insureds, with limits of not less than Five Million ($5,000,000) Dollars combined single limit for bodily injury and property damage liability in any one occurrence, (c) steam boiler, air-conditioning (other than base Building HVAC equipment) or machinery insurance, if Tenant installs a boiler or pressure object or similar equipment in the Premises, with Landlord and its managing agent, if any, and the lessor under the Unit Lease and each Superior Lessor or Superior Mortgagee whose name and address shall previously have been furnished to Tenant, as additional insureds, with limits of not less than Five Million ($5,000,000) Dollars and (d) when Alterations are in progress, the insurance specified in Article 11.  The limits of such insurance shall not limit the liability of Tenant.  Tenant shall deliver to Landlord, prior to the Commencement Date, certificates of insurance, in form reasonably satisfactory to Landlord issued by the insurance company or its authorized agent.  Such insurance may be carried in a blanket policy covering the Premises and other locations of Tenant, if any, provided that each such policy shall in all respects comply with this Article 9.  Tenant shall procure and pay for renewals of such insurance from time to time before the expiration thereof, and Tenant shall deliver to Landlord such renewal policy or a certificate thereof at least ten (10) days before the expiration of any existing policy.  All such policies shall be issued by companies rated in the A.M.  Best Key Rating Guide with ratings of at least A and of at least X and such company shall be licensed to do business in New York State or authorized to write insurance in New York State, whether or not so admitted.  The proceeds of policies providing “all risk” property insurance of Tenant’s Property and leasehold improvements installed in the Premises shall be payable to Tenant.

9.04.Each party agrees to have included in each of its insurance policies insuring against loss, damage or destruction to the Unit or the Building or any property owned or leased by such party in, on or around the Unit or the Building, or the rents earned therefrom, or the conduct of business therein, a waiver of the insurer’s right of subrogation against the other party during the term of this Lease or, if such waiver should be unobtainable or unenforceable, (i) an express agreement that such policy shall not be invalidated if the assured waives the right of recovery against any party responsible for a casualty covered by the policy before the casualty or (ii) any other form of permission for the release of the other party.  If such waiver, agreement or permission shall not be, or shall cease to be, obtainable from either party’s then current insurance company, the insured party shall so notify the other party promptly after learning thereof, and shall use commercially reasonable efforts to obtain the same from another insurance company described in Section 9.03 hereof.

Landlord hereby releases Tenant with respect to any claim (including a claim for negligence) which Landlord might otherwise have against Tenant for loss, damage or destruction to the Unit or the Building, or any property owned by Landlord therein, or interruption of rents

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earned therefrom, in either case to the extent to which Landlord is, or is required to be insured, under a policy or policies containing a waiver of subrogation or permission to release liability, as provided in this Section.

Tenant hereby releases Landlord with respect to any claim (including a claim for negligence) which Tenant might otherwise have against Landlord for loss, damage or destruction to Tenant’s Property and leasehold improvements installed in the Premises, or interruption of business at the Premises, in either case to the extent to which Tenant is, or is required to be insured, under a policy or policies containing a waiver of subrogation or permission to release liability, as provided in this Section.

Nothing contained in this Section shall be deemed to relieve either party of any duty imposed elsewhere in this Lease to repair, restore or rebuild or to nullify any abatement of rents provided for elsewhere in this Lease.

9.05.Landlord, at its expense, shall maintain at all times during the term of this Lease (i) a commercial general liability insurance policy with limits of not less than Five Million ($5,000,000) Dollars combined single limit for bodily injury and property damage liability in any one occurrence, and (ii) “all-risk” property insurance covering any personal property owned by Landlord in the Unit or the Building, in each case with such limits not less than that required by either (x) the bona fide, third-party holder of the first mortgage on the Building or (y) if no such mortgagee exists, third party mortgagees of comparable first-class office buildings in the Borough of Manhattan.(12)

ARTICLE 10

Condominium Provisions

10.01(a) Throughout the term of this Lease, this Lease (and the rights of Tenant hereunder) shall remain subject and subordinate to the terms of the Declaration and the By-laws and any Superior Lease, as each of the same shall be amended or modified in accordance with their respective terms, provided, however, that this Lease shall not be subject to any modification which shall increase Tenant’s obligations or liabilities or diminish Tenant’s rights or otherwise adversely affect Tenant under this Lease, except to a de minimis extent.

(b)Notwithstanding any of the provisions of this Section 10.01 to the contrary, if Landlord or a Landlord Affiliate obtains a non-disturbance, recognition and attornment agreement (or similar agreement) from the Condominium Board of Managers in favor of any other tenant (an “SNDA Tenant”) in the FC Office Units (a “Board SNDA”), Landlord shall

(12) If and for so long as Ground Lessor is (i) the Landlord under this Lease and (ii) a governmental entity or a public benefit corporation, the provisions of Section 9.05 shall be deleted.

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obtain a Board SNDA in favor of Tenant on the same terms, provisions, and conditions as the Board SNDA provided to such SNDA Tenant (except to the extent any such terms, provisions and conditions are not applicable to the provisions of this Lease) within ten (10) days after the date the Condominium Board of Managers executes and delivers such Board SNDA.(13)

ARTICLE 11

Alterations

(13) The provisions of (b) will only apply if Premises is comprised of at least one (1) full floor.

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11.01.During the term of this Lease, Tenant shall have the right to make improvements, changes or alterations (any such improvement, change or alteration made by or on behalf of Tenant being an “Alteration”) in and to the Premises permitted to be made under the Declaration to the same extent, and subject to compliance by Tenant with the same conditions, as would apply under Article X of the Declaration if Tenant were the owner of the Unit.  Notwithstanding the provisions of this Section 11.01 to the contrary, not later than ten (10) days prior to commencing any Alteration and thirty (30) days prior to commencing any “Material Alteration” (as hereinafter defined), Tenant shall provide reasonably detailed architectural plans and specifications to Landlord which clearly and accurately describe the proposed Alteration or Material Alteration, as the case may be.  In addition, within thirty (30) days following the completion of any Alteration or Material Alteration, Tenant shall deliver to Landlord CAD disks containing a complete set of “as built” plans and specifications for the Alteration or Material Alteration, provided Landlord is requiring the same from other tenants in the Building.  As an Additional Charge hereunder, Tenant shall, within thirty (30) days after Landlord’s delivery to Tenant of an invoice therefor, reimburse Landlord for the reasonable third party out-of-pocket costs and expenses (without markup or profit) incurred by Landlord in connection with its review of any proposed plans and specifications for an Alteration or Material Alteration.  Except as provided in the foregoing sentence, Landlord shall not impose any charge or fee in connection with any Alterations.  Notwithstanding any provisions of this Section 11.01 to the contrary, Tenant shall be required to obtain Landlord’s prior written consent, which consent, except as herein provided, may be withheld in Landlord’s sole discretion, to the performance of any Material Alteration.  If Landlord shall fail to respond to Tenant’s written request for approval of any Material Alteration, (herein called a “Material Alterations Request”), within twenty (20) days (subject to extension to 45 days as hereinafter provided) after such Material Alterations Request is made by Tenant, with any disapproval including detailed comments thereon explaining the reasons for such disapproval, then provided that such Material Alterations Request shall state that Landlord’s failure to disapprove of the proposed request within twenty (20) days (subject to extension to 45 days as hereinafter provided) shall be deemed an approval by Landlord, such Material Alterations Request shall be deemed approved by Landlord.  For purposes of this Article 11, a “Material Alteration” is an Alteration which (a) is not limited to the interior of the Premises or which affects the exterior appearance of the Premises, the Unit or the Building, and Landlord agrees that it shall not unreasonably withhold or condition its consent to such an Alteration, or (b) affects, except to an immaterial extent, the structure of the Unit or the Building, and Landlord agrees that it shall not unreasonably withhold or condition its consent to such an Alteration if the proposed Alteration does not adversely affect (except to an immaterial extent) such structure, or (c) affects, except to an immaterial extent, the usage or the proper functioning of the mechanical, electrical, sanitary, heating, ventilating, air-conditioning or other services systems of the Unit or the Building and Landlord agrees that it shall not unreasonably withhold or condition its consent to such an Alteration if the proposed Alteration does not adversely affect (except to an immaterial extent) such systems, or (d) will cost more than $250,000 in the aggregate (which amount shall be increased annually in the same month in which the Commencement Date [the “Index Month”] occurs, by the same percentage increase which occurs in the Consumer Price Index from the Index Month of the preceding year), and Landlord agrees that it shall not unreasonably withhold or condition its consent to such an Alteration.  Notwithstanding the provisions of clauses (b) and

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(c) of this Section 11.01, if, in the reasonable judgment of Landlord’s independent reputable engineer, a Material Alteration as described in such clauses shall have an adverse affect (which shall be greater than to an immaterial extent) on the structure of the Unit or the Building or the systems, as applicable, but such adverse effect will be remediated by Tenant’s proposed remedial action, Landlord will not unreasonably withhold or delay or condition its consent to any Material Alterations.  If Tenant’s plans for any Material Alteration affects a structural component of the Building or Unit or a building system and Landlord elects to have an independent engineer review the plans for such Material Alteration, then the twenty (20) day period set forth in this Section 11.01 shall be extended to forty five (45) days.

11.02.At any and all reasonable times during the progress of Alterations, upon reasonable prior notice to Tenant, representatives of Landlord shall have the right of access to the Premises and inspection thereof (provided, however, that such representatives shall not interfere with the performance of such Alterations and shall be subject to the security requirements of Tenant or Tenant’s contractor).  Landlord shall incur no liability, obligation or responsibility to Tenant or any third party by reason of the access and inspection provided in this Section 11.02.

11.03.Throughout the performance of Alterations, Tenant, at its expense, shall carry, or cause to be carried, worker’s compensation insurance for all persons employed in connection with such Alterations in statutory limits, all risk “Builders Risk” insurance and general liability insurance, with completed operation endorsement, for any occurrence in or about the Unit or the Building, under which Landlord and its managing agent, if any, the Board of Mangers, the FC Board of Managers and any Superior Lessor and Superior Mortgagee whose name and address shall previously have been furnished to Tenant shall be named as parties insured, in such limits as Landlord may reasonably require, provided that such limits are obtainable from reputable insurers at commercially reasonable rates and consistent with limits required with respect to comparable Alterations performed by tenants in Comparable Buildings.  Tenant shall furnish Landlord and the Board of Managers with an original certificate of insurance or other reasonably satisfactory evidence that such insurance is in effect at or before the commencement of Alterations and, on request, at reasonable intervals thereafter during the continuance of Alterations.

11.04.Tenant, at its expense, shall procure the satisfaction or discharge of record of all mechanics and other liens, encumbrances and violations filed in connection with any Alterations, within thirty (30) days after the filing thereof (or bond or otherwise remove such lien or encumbrance if Tenant is contesting same in accordance with the terms hereof) is received by Tenant.  Provided that Tenant provides such bonding during the pendency of any contest, nothing herein contained shall prevent Tenant from contesting, in good faith and at its own expense, any notice of violation, provided that Tenant shall comply with the provisions of Section 8 hereof,

ARTICLE 12

Landlord’s and Tenant’s Property

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12.01.All fixtures, equipment, improvements, ventilation and air-conditioning equipment and appurtenances attached to or built into the Premises at the commencement of or during the term of this Lease (including raised flooring), whether or not by or at the expense of Tenant, shall be and remain a part of the Premises, shall, upon the expiration or sooner termination of this Lease, be deemed the property of Landlord (without representation or warranty by Tenant) and shall not be removed by Tenant, except as provided in Section 12.02; except that Tenant may elect, at Tenant’s option to remove any such fixtures, equipment, improvements, ventilation and air-conditioning equipment and appurtenances attached to or built into the Premises and installed by Tenant at Tenant’s expense after the date of this Lease, provided that same can be removed without permanent damage to the Premises and provided, further, that Tenant shall, in the event of any such removal, repair the portion of the Premises affected by such removal and restore same to the condition which existed prior to the installation of the removed item(s), reasonable wear and tear excepted.

12.02.All furniture systems, movable partitions, special cabinet work, business and trade fixtures, machinery and equipment, communications equipment (including, without limitation, telephone system, security system and wiring) and office equipment, whether or not attached to or built into the Premises, which are installed in the Premises by or on behalf of Tenant and can be removed without structural damage to the Building, and all furniture, furnishings and other articles of movable personal property owned by Tenant and located in the Premises (all of the foregoing referred to in this sentence being herein collectively called “Tenant’s Property”) shall be and shall remain the property of Tenant and may be removed by Tenant at any time during the term of this Lease; provided that if any of Tenant’s Property is removed, Tenant shall repair or pay the cost of repairing any damage to the Premises or to the Building resulting from the installation and/or removal thereof.

12.03.At or before the Expiration Date of this Lease (or within thirty (30) days after any earlier termination of this Lease) Tenant, at its expense, shall remove from the Premises all of Tenant’s Property and Tenant shall repair any damage to the Premises or the Building resulting from any installation and/or removal of Tenant’s Property.  Any items of Tenant’s Property which shall remain in the Premises after the Expiration Date of this Lease, or within thirty (30) days following an earlier termination date, may at the option of Landlord, be deemed to have been abandoned, and in such case such items may be retained by Landlord as its property or disposed of by Landlord, without accountability, in such manner as Landlord shall determine, at Tenant’s expense.  Notwithstanding the foregoing, Tenant shall not be required to remove, or pay Landlord for the cost of removing, any wiring, conduit or cabling.

ARTICLE 13

Repairs and Maintenance

13.01.Tenant shall, at its expense, throughout the term of this Lease, take good care of and maintain in good order and condition the Premises and the fixtures and improvements therein

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including, without limitation, the property which is deemed Landlord’s pursuant to Section 12.01 hereof, except as otherwise expressly provided in this Lease.

Subject to the provisions of Section 9.04 hereof, and except as otherwise provided for in this Lease, Tenant shall be responsible, at is sole cost and expense, for all repairs, interior and exterior, structural and non-structural, ordinary and extraordinary, foreseen or unforeseen, in and to the Premises and the Building and the facilities and systems thereof, the need for which arises out of

(a)the performance by or on behalf of Tenant of any Alterations,

(b)the installation, use or operation of any property installed by or on behalf of Tenant which is deemed Landlord’s pursuant to Section 12.01 hereof and Tenant’s Property,

(c)the moving of any property installed by or on behalf of Tenant which is deemed Landlord’s pursuant to Section 12.01 hereof and Tenant’s Property in or out of the Building, or

(d)the gross negligence or willful misconduct of Tenant or any of its subtenants or its or their employees, agents, contractors or invitees.

As used in this Article, the term “repairs” shall include replacements.

All repairs in or to the Premises for which Tenant is responsible shall be promptly performed by Tenant in a manner which will not unreasonably interfere with the use of the Building by other occupants, but Tenant shall not be required to perform same on an overtime or premium pay basis, except if and to the extent the use of such overtime or premium pay labor would be required under the Declaration if the owner of the Unit were performing such repairs.

13.02.Tenant shall give Landlord notice of any defective condition in any plumbing, heating, air-conditioning or ventilation system or electrical lines located in, servicing or passing through the Premises of which it has actual knowledge.  Following such notice, Landlord shall comply with its obligations under Section 13.04 hereof, but if Tenant is responsible for same under the provisions of this Article 13, Tenant shall reimburse Landlord for its commercially reasonable out-of-pocket costs without profit or markup incurred in doing so.

13.03.Except as otherwise expressly provided in this Lease, Landlord shall have no liability to Tenant, nor shall Tenant’s covenants and obligations under this Lease be reduced or abated in any manner whatsoever, by reason of any inconvenience, annoyance, interruption or injury arising from Landlord’s making any repairs which Landlord is required or permitted by this Lease, or required by law, to make in or to the fixtures, equipment or appurtenances of the Building or the Premises; provided, however, that Landlord shall make such repairs at such times and in such manner as to minimize interference with the conduct of Tenant’s business in the

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Premises, including, without limitation, the performance of such work on an overtime or premium-pay basis to the extent required of a Unit Owner under the Declaration.

Except in emergency circumstances, upon Tenant’s request, Landlord shall perform any maintenance or repairs which would interfere with Tenant’s conduct of business in or use of the Premises during hours other than Business Hours of Business Days (as herein defined), and Tenant shall reimburse Landlord for the incremental costs incurred by Landlord in connection with performing such maintenance or repairs during such hours, unless the necessity for such maintenance or repairs shall arise from (i) the gross negligence or willful misconduct of Landlord or any of its agents, contractors or employees, or (ii) the failure of Landlord to observe or perform any of the terms, covenants or conditions of this Lease required to observed or performed by Landlord, in which case such incremental costs shall be borne by Landlord.  Any incremental costs required to be paid by Tenant pursuant to the preceding sentence shall constitute Additional Charges hereunder and shall be paid to Landlord within thirty (30) days after demand.

13.04.(a)Landlord shall, at its expense, but subject to the provisions of this Lease including, without limitation Section 13.01,

(i)keep and maintain in good order and condition to the standard then prevailing for comparable premium first-class midtown Manhattan office buildings (“Comparable Buildings”) the Unit and the Building Systems servicing same, and

(ii)make all repairs, interior and exterior, structural and non-structural, ordinary and extraordinary, foreseen or unforeseen, in and to the foregoing necessary or appropriate in order to keep the same in such condition, as set forth in clause (i) of this subsection 13.04(a),

except to the extent same is the responsibility of the Condominium Board of Managers or the FC Board of Managers under the Declaration.

Landlord shall, at its expense, but subject to the provisions of this Lease, clean the common or public areas and facilities of the Unit, if any, in accordance with standards then prevailing for Comparable Buildings.

13.05Tenant agrees to comply with the Building Standards set forth on Exhibit I annexed hereto.  [Exhibit I will be attached to the Lease when agreed upon between Landlord and Tenant].

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ARTICLE 14

Electricity

14.01.Landlord agrees that prior to the Commencement Date risers, feeders and wiring will be installed in the Building by Landlord to furnish electrical service to the Premises in accordance with the provisions of Exhibit G annexed hereto.  After the Commencement Date any additional risers, feeders or other equipment or service proper or necessary to supply Tenant’s electrical requirements, upon written request of Tenant, will be installed by Landlord at the sole cost and expense of Tenant.

[*(14)14.02.(a)For the period commencing on the Commencement Date, Tenant shall have the right to contract directly with and to pay directly to the utility company supplying electric current for the Premises the amounts due for such electric current consumed as indicated by meters installed at Tenant’s cost measuring Tenant’s consumption thereof.  Landlord shall cooperate with Tenant at no cost to Landlord, if Tenant elects to obtain electric energy directly from the electric service provider.

(b)Tenant shall purchase from Landlord all electric current that Tenant requires at the Premises and will pay Landlord for the same as follows: As an Additional Charge hereunder, Tenant shall pay Landlord for the electricity consumed by Tenant, as measured by the submeter(s) furnished therefor on each floor of the Premises or elsewhere in the Building, which submeter(s) shall be installed by Landlord at Landlord’s expense on or prior to the Commencement Date and shall measure electrical consumption in the Premises separately from that of all other users of electricity.  Landlord shall bill Tenant separately for Tenant’s consumption, at the same rate being charged to Landlord (without profit or rnark-up) by the utility company which provides electricity to the FC Office Units, which rate shall include any tax, levy or other such charge imposed upon Landlord or with respect to the purchase, sale or resale of electricity (“Landlord Rate”).

(c)Tenant shall pay for electricity on a monthly basis, or at such less frequent intervals as Landlord may determine, within thirty (30) days following Landlord’s presentation to Tenant of an invoice therefor.

(d)Where more than one rneter or sub meter measures the electricity supplied to the Premises, the electricity rendered through all such meters or submeters shall be measured, consolidated and totalized as if all service were rendered through a single meter.

(14) Section 14.02(a) is only applicable if the Premises is being supplied with electric on a direct basis (i.e., there is no submeter measuring Tenant’s electric consumption).  Section 14.02(c) will be applicable if there is a submeter measuring Tenant’s electric consumption.

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(e)If any rebate from the utility company furnishing electricity to the FC Office Units with respect to the Premises is paid directly to either party on account of installations of equipment, the party that paid for such equipment shall receive such rebate within thirty (30) days thereafter.  No such rebate shall be taken into account (i.e., subtracted in calculating the true cost of electricity) in determining Landlord’s Rate.

14.03.Intentionally Deleted.

14.04.Tenant’s use of electric current in the Premises shall not at any time exceed the capacity of any of the electrical conductors and equipment in or otherwise serving the Premises.

14.05.To the extent permitted by applicable law, Landlord shall not be liable in any way to Tenant for any failure or defect in the supply or character of electric energy furnished to the Premises by reason of any requirement, act or omission of the public utility providing the Building with electricity or for any other reason whatsoever, except for Landlord’s gross negligence or willful misconduct.

14.06.Landlord covenants and agrees that at all times during the term of this Lease, Landlord shall make available to the base building electrical closet on each floor in the Premises 6 watts per gross square foot of electrical power demand load (exclusive of electric energy used in connection with providing base building air conditioning service to the Premises and domestic hot water to the common areas of the floor).

ARTICLE 15

Landlord’s Services

15.01.(a)Landlord will provide, after the term of this Lease shall have commenced the following services to the Premises in the manner hereinafter more particularly set forth: (i) heat, ventilation and air conditioning; (ii) elevator service; (iii) domestic hot and cold water; and (iv) cleaning (unless Tenant shall at any time during the term of this Lease elect to provide its own cleaning service with respect to the Premises, in which event Tenant shall be entitled to a reduction in Fixed Rent (the “Cleaning Cost Reduction”)from and after the effective date of such election by Tenant equal to (x) the number of rentable square feet contained in the Premises, multiplied by (y) the cost which would have been incurred by Landlord on a per rentable square foot basis to provide cleaning services to the Premises in accordance with the provisions of Exhibit J annexed hereto under the cleaning contract with an independent cleaning contractor unaffiliated with Landlord covering the remaining office portions of the Building to which Landlord (or a Landlord Affiliate) is providing cleaning services, or if no such contract is in effect, the prevailing cost to provide such cleaning services by independent cleaning contractors in Comparable Buildings.  Landlord shall also provide, at no cost to Tenant, connections to the Building’s life safety systems, but the actual cost (without profit or markup) to physically make such connections shall be at Tenant’s Cost.  Any dispute between the parties as to the amount of

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the Cleaning Cost Reduction, if applicable, may be submitted by either party to arbitration in accordance with the provisions of Article 35 hereof.  Notwithstanding the provisions of this Section 15.01(a) to the contrary, if Tenant elects to provide its own cleaning service with respect to the Premises, Tenant agrees that (i) Tenant shall not exercise such rights in a manner which would create any work stoppage at the Building and (ii) notwithstanding the provisions of Exhibit J, if Tenant elects to provide its own cleaning service as provided in this Section 15.01(a), Tenant shall not perform any cleaning outside the Premises and the Cleaning Cost Reduction shall not include any amount attributable to cleaning outside of the Premises.

(b)As used herein, the terms “Business Hours” and “Business Days” shall have the meanings set forth in the Declaration.

15.02.(a)Landlord shall:

(i)supply heat to the Premises during Business Hours of Business Days when needed for comfortable occupancy, and

(ii)supply air conditioning and ventilation to the Premises during Business Hours on Business Days throughout the year,

and such heating, air conditioning and ventilation shall be provided so as to satisfy the conditions set forth on Exhibit H annexed hereto.

If Tenant shall require heat or air-conditioning services (“Overtime HVAC Service”) at any time other than Business Hours on Business Days, Landlord shall furnish such service for such times upon notice from Tenant, and Tenant shall pay to Landlord within thirty (30) days after delivery of an invoice therefor, any incremental costs incurred by Landlord or a Landlord Affiliate in providing such Overtime HVAC Services, including without limitation, the charges assessed to Landlord or a Landlord Affiliate by the Condominium Board of Managers for providing such Overtime HVAC Service to the Premises without profit or markup to Landlord.  In the event such Overtime HVAC Service is provided to portions of the FC Office Units in addition to the Premises during any portion of the period Tenant has requested such Overtime HVAC Service, an allocation of such charges shall be made on a prorata basis between the Premises and such other portions of the FC Office Units.

(b)If Landlord shall make steam available for Tenant’s use within the Premises for any additional heating or permitted kitchen use, the cost of such steam as well as the cost of piping and other equipment or facilities required to supply steam to and distribute steam within the Premises shall be paid by Tenant.  Landlord may install and maintain at Tenant’s expense, meters to measure Tenant’s consumption of steam and Tenant shall reimburse Landlord, within thirty (30) days after Tenant’s receipt of an invoice therefor, for the quantities of steam shown on such meters at Landlord’s actual cost of such steam which is charged to Landlord by the utility providing the same without profit or markup to Landlord.

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(c)(i)Landlord shall provide passenger elevator service to each floor of the Premises at all times during Business Hours of Business Days and Landlord agrees that at least one passenger elevator in each elevator bank serving the Premises shall be subject to call at all other times.

(ii)Landlord shall provide freight elevator (and, as needed, loading dock) service to the Premises on a first come-first served basis (i.e., no advance scheduling) during Business Hours of Business Days.  Freight elevator (and, as needed, loading dock) service shall also be provided to the Premises at Tenant’s request on a reserved dedicated basis at all other times (i.e., twenty-four (24) hours per day, seven (7) days per week) (“Overtime Freight Elevator/Loading Dock Service”).  In respect of any such Overtime Freight Elevator/Loading Service furnished to Tenant at its request, Tenant shall pay to Landlord, as Additional Charges hereunder, any incremental costs incurred by Landlord or Landlord Affiliates in providing such Overtime Freight Elevator/Loading Dock Service, including without limitation the charges assessed to Landlord or Landlord Affiliates under the Declaration by reason of the provision of such Overtime Freight Elevator/Loading Dock Service to the Premises (e.g., charges for overtime personnel, if applicable) without profit or mark-up, but such Overtime Freight Elevator Service/Loading Dock Service shall be otherwise without charge to Tenant.

(e)Landlord shall furnish reasonable quantities of hot and cold water to the floor(s) on which the Premises are located for core lavatory, cleaning, drinking and sprinkler purposes only.  If Tenant shall require water for any other purpose, Landlord need only furnish cold water at the Building core riser through a capped outlet located on the floor of the Premises, and the cost of heating such water shall be paid by Tenant as provided in the last sentence of this Section 15.02(e).  Landlord may install and maintain, at Tenant’s expense, meters to measure Tenant’s consumption of such cold water and/or hot water for such other purposes.  Tenant shall pay to Landlord, within thirty (30) days after its receipt of an invoice therefor, (i) Landlord’s charges for the quantities of cold water shown on such meters, which charges shall not exceed the actual costs (without profit or markup) charged to Landlord by the utility supplying cold water to the Building, and (ii) Landlord’s charges for the quantities of hot water shown on such meters, which charges shall not exceed the actual costs charged to Landlord by the utility supplying cold water to the Building, plus the actual cost to Landlord of heating such water.

(f)(i)Except as otherwise provided below, or unless Tenant shall elect to provide its own cleaning services as provided in Section 15.01(a) hereof, Landlord shall cause, the interior of the Premises, to be cleaned in accordance with the provisions of Exhibit J attached hereto and made a part hereof.  For so long as Landlord is providing such cleaning services, Tenant shall pay to Landlord, within thirty (30) days after its receipt of an invoice therefor, the costs incurred by Landlord for (x) extra cleaning work in the Premises required because of (i) misuse on the part of Tenant or its subtenants, Users or its or their employees or visitors, and (ii) materials and finishes installed by Tenant or at its request which are unusually difficult or time-consuming to clean, (if cleaning thereof is requested by Tenant), and (y) removal from the Premises and the Building of any refuse and rubbish of Tenant in excess of that ordinarily

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accumulated in business office occupancy, including, without limitation, kitchen refuse, or at times other than Landlord’s standard cleaning times.

(ii)Tenant shall not clean, nor require, permit, suffer or allow any windows in the Premises to be cleaned, from the outside in violation of Section 202 of the Labor Law, or any other applicable law.

15.03.Tenant shall have the right to access and use, without additional charge therefor, at least such share of all Building utility and telecommunication shaft ways, risers, conduits and utility closets serving the office portions of the Building as shall equal the share (the “Tenant Shaft Share”) being used by the occupant of the Premises immediately prior to Tenant.  Tenant shall have the right, at Tenant’s cost and expense, to remove from the Tenant Shaft Share areas, all wiring, cabling and other telecommunications equipment present on the Commencement Date.

15.04.Subject to the provisions of Section 34.04(b) and Article 19 and 20 hereof, Landlord reserves the right, without liability to Tenant and without it being deemed a constructive eviction, to stop or interrupt any heating, elevator, escalator, lighting, ventilating, air-conditioning, steam, power, electricity, water, cleaning or other service and to stop or interrupt the use of any Building facilities and systems at such times, in either case, as may be necessary and for as long as may reasonably be required by reason of accidents, strikes, or the making of repairs, alterations or improvements, or inability to secure a proper supply of fuel, gas, steam, water, electricity, labor or supplies, or by reason of any other similar or dissimilar cause beyond the reasonable control of Landlord.  Subject to the provisions of Section 34.04(b) and Article 19 and 20 hereof, no such stoppage or interruption shall result in any liability from Landlord to Tenant or entitle Tenant to any diminution or abatement of rent or other compensation nor shall this Lease or any of the obligations of Tenant be affected or reduced by reason of any such stoppage or interruption.  Except in emergency circumstances, Landlord shall give Tenant at least ten (10) Business Days prior written notice (“Landlord’s Stoppage Notice”)of its intention to make any repairs, alterations or improvements referred to in this Section 15.04 or any other stoppages or interruptions or reductions of services of which Landlord has prior knowledge or notice.  Such Landlord Stoppage Notice shall state the date, time and estimated duration of such stoppage, interruption or reduction.  Landlord shall use reasonable efforts in making such repairs, alterations or improvements and in dealing with such other stoppages of service so as to minimize interference with Tenant’s business operations, including the performance of such work on an overtime or premium-pay basis to the extent required of a Unit Owner under the Declaration.

15.05.Tenant may, at Tenant’s sole cost and expense, install, maintain and operate in a portion of the Premises a food preparation, service and/or dining facility (the “Food Service Facility”)for use by the officers, employees and guests of Tenant or any permitted occupant of the Premises, including appropriate food and beverage preparation, handling, cooking, serving and/or dining and/or other associated facilities, provided that Tenant shall (a) comply with all applicable laws, ordinances and regulations with respect to such Food Service Facility and its operations, (b) cause all food preparation areas to be properly ventilated so that no odor shall emanate from the Premises to any other portion of the Building, (c) maintain such Food Service

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Facility in a clean and sanitary condition and free of refuse at all times, and (d) bag all wet garbage and place the same in containers within the Premises that prevent the escape of odor and remove all such wet garbage from the Building at Tenant’s sole cost and expense.  All of the provisions of this Lease shall be applicable to the installation, maintenance and operation of the Food Service Facility.

15.06.Tenant acknowledges that it is currently a member of The New York Times Building Company and is a member of the Condominium Board of Managers.  For so long as Tenant (or a Tenant Affiliate) is a member of the Condominium Board of Managers, Tenant will not willfully and intentionally exercise its voting rights to prevent or materially hinder Landlord from providing the services that Landlord is obligated to provide to Tenant or the Premises under this Lease.  The provisions of this Section 15.06 shall have no application whatsoever in the event of failure by Landlord to fund any monetary obligations owed by Landlord to the Board of Managers after a final adjudication that such monetary obligations are owed to the Condominium Board of Managers.(15)

ARTICLE 16

Access

16.01.Landlord and persons authorized by Landlord shall have the right, upon reasonable advance notice, except in cases of emergency, to enter and/or pass through the Premises at reasonable times provided Landlord shall use reasonable efforts to minimize any interference with Tenant’s business operations and use of the Premises and shall be accompanied by a designated representative of Tenant,

(a)to examine the Premises and to show them to actual and prospective lessors under the Unit Lease, Superior Mortgagees or Superior Lessors, or prospective purchasers, mortgagees or lessees of the Unit,

(b)to make such repairs, alterations, additions and improvements in or to the Premises as Landlord is required to make under this Lease or by applicable Legal Requirements (unless Tenant specifically waives in writing Landlord’s obligation to make any such repairs, alterations, additions and improvements required under this Lease or by applicable Legal Requirements), and

(15) If and for so long as the “Landlord” under this Lease is (A)(i) Ground Lessor and (ii) a governmental entity or a public benefit corporation, or (B) the party who acquires the interest of the “Landlord” under this Lease from such governmental entity or public benefit corporation (but not any other party who becomes the “Landlord” under this Lease), the provisions of this sentence shall not be appllicable.

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(c)to read any utility meters located therein.

Landlord and such authorized persons shall be allowed to take reasonable amounts of materials into and upon the Premises that may be required in connection therewith, without any liability to Tenant and without any reduction of Tenant’s covenants and obligations hereunder provided, however, the amount and placement of such materials shall not interfere with the conduct of Tenant’s business except to a de minimis extent.  Except as provided in Section 13.03 with respect to clause (b) of this Section 16.01, Landlord shall perform any work or activity pursuant to this Section 16.01 which would interfere with Tenant’s conduct of business in or use of the Premises, other than to a de minimis extent, during hours other than Business Hours of Business Days at Landlord’s sole cost and expense.

16.02.If at any time any windows of the Premises are either temporarily darkened or obstructed by reason of any repairs, improvements, maintenance and/or cleaning in or about the Building (or permanently darkened or obstructed if required by law), the same shall be without liability to Landlord and without any reduction or diminution of Tenant’s obligations under this Lease.

16.03.If Tenant shall not be personally present to open and permit an entry into the Premises at any time when for any reason an entry therein shall be urgently necessary by reason of fire or other emergency, Landlord or Landlord’s agents may forcibly enter the same without rendering Landlord or such agents liable therefor (if during such entry Landlord or Landlord’s agents shall accord reasonable care to the Premises and Tenant’s Property therein) and without in any manner affecting the obligations and covenants of this Lease.

16.04.Any damage to the Premises resulting from the exercise by Landlord of its rights granted under this Article 16 shall be promptly repaired by Landlord at Landlord’s expense (except as provided in the following sentence).  Tenant shall have the right, at Landlord’s expense, to repair any damage to any Tenant’s Property located in the Premises or to any property or parts of the Premises which are deemed Landlord’s property pursuant to Section 12.01 hereof resulting from the exercise by Landlord of its rights granted under this Article 16 (and Landlord shall reimburse Tenant for the actual out-of-pocket expenses reasonably incurred by Tenant in performing any such repair within thirty (30) days after delivery of an invoice therefor, together with documentation of such expenses reasonably satisfactory to Landlord), failing which Tenant may offset such amounts, together with interest thereon at the Interest Rate from the date incurred by Tenant until reimbursed to or offset by Tenant, against the next installment of Fixed Rent and/or Additional Charges payable under this Lease.

16.05.Landlord acknowledges that Tenant may, from time to time, have certain security or confidentiality requirements such that portions of the Premises shall be locked and inaccessible to persons unauthorized by Tenant (the “Secured Areas”).  Notwithstanding anything to the contrary contained in this Article 16, Landlord therefore agrees that, except in cases of emergency, Landlord’s right of access to the Secured Areas shall be restricted subject to the following conditions: (i) Tenant shall deliver to Landlord floor plans of the Premises designating

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the Secured Areas,(ii) except in cases of emergency, any access to the Secured Areas requested by Landlord shall be upon no less than twenty-four (24) hours notice to Tenant, which notice may be oral, and accompanied by a representative of Tenant, whom Tenant agrees to make available, and (iii) Landlord shall have no obligation to provide to the Secured Areas cleaning services or any other services or repairs that require access to the Secured Areas unless Tenant shall provide Landlord with such access to the Secured Areas for purposes of providing such cleaning services or other services or repairs at those times that Landlord shall reasonably designate in accordance with Landlord’s ordinary Building schedule.

ARTICLE 17

Notice of Occurrences

17.01.Tenant shall give notice to Landlord, the Board of Managers and the FC Board of Managers of (a) any occurrence in or about the Premises for which Landlord might be liable, (b) any fire or other casualty in the Premises, (c) any damage to or defect in the Premises, including the fixtures, equipment and appurtenances thereof, for the repair of which Landlord might be responsible, and (d) any damage to or defect in any part or appurtenance of the Building’s sanitary, electrical, heating, ventilating, air-conditioning, elevator or other systems located in or passing through the Premises or any part thereof, if and to the extent that Tenant shall have knowledge of any of the foregoing matters.

ARTICLE 18

Indemnification

18.01.Subject to the terms of Article 9 hereof relating to waivers of subrogation, Tenant shall indemnify and defend Landlord (including Landlord’s shareholders, officers, directors, partners, joint venturers and agents) and save it harmless from and against any and all liability, damages, costs or expenses, including reasonable attorneys’ fees, arising from the negligence of Tenant or its officers, contractors, licensees, agents, employees, or visitors in or about the Premises.  This provision shall not be construed to make Tenant responsible for loss, damage, liability or expense resulting from injuries to third parties if (but only to the extent) caused by the gross negligence or willful misconduct of Landlord, or its officers, contractors, directors, shareholders, partners, joint venturers, licensees, agents, employees, or invitees.

18.02.Subject to the terms, conditions, restrictions and limitations elsewhere contained in this Lease, Landlord shall indemnify Tenant and save Tenant harmless from and against any and all liability, actual damages (not consequential damages), costs or expenses, including reasonable attorneys’ fees, to third parties arising from the negligence of Landlord or its officers, contractors, agents or employees in or about the FC Office Units (other than the Premises).  This provision shall not be construed to make Landlord responsible for loss, damage, liability or expense resulting from injuries to third parties caused by the gross negligence or willful misconduct of Tenant or its officers, contractors, licensees, agents, employees or invitees.

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18.03.If any action or proceeding is brought against a person entitled to indemnification hereunder, the indemnifying party shall have the right to participate in the defense of same with counsel of its choice, who shall be reasonably satisfactory to the party benefiting from the indemnity, and insurance company counsel shall be deemed satisfactory.

18.04.Notwithstanding the foregoing provisions of this Article 18 or any other provision of this Lease (except as provided in Section 21.03(b) hereof), (i) Landlord shall not be liable to Tenant for consequential damages, and (ii) Tenant shall not be liable to Landlord for consequential damages, in either case even if arising from any act, omission or negligence of such party or from the breach by such party of its obligations under this Lease.

18.05Notwithstanding anything to the contrary provided in this Lease, in the event of any liability of Landlord to Tenant arising by reason of this Lease, Tenant agrees that it shall have recourse only to the estate of Landlord and Landlord Affiliates in the FC Office Units and the proceeds of any sale of the FC Office Units or any part thereof, and no other property or assets of Landlord or Landlord Affiliates, and their respective agents, officers, directors, shareholders, partners, members or principals, disclosed or undisclosed, shall be subject to levy, recourse, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under or with respect to this Lease, the relationship of Landlord and Tenant hereunder or under law or Tenant’s use or occupancy of the Premises or any other liability of Landlord to Tenant.

ARTICLE 19

Damage or Destruction

19.01.If the Building or the Premises shall be partially or totally damaged or destroyed by fire or other casualty (and if this Lease shall not be terminated as in this Article 19 hereinafter provided), then in the event that the Condominium Board of Managers elects to repair the damage to and restore and rebuild the Building diligently and in a workmanlike manner after notice to it of the damage or destruction, Tenant shall (x) at Tenant’s option, restore all or such portion of Tenant’s Property as Tenant may elect to restore and (y) at Tenant’s option, to be exercised separately with respect to each floor of the Premises, either

(i)repair the damage to and restore such portion of the leasehold improvements in the Premises as Tenant elects in its sole discretion (the “Improvements Restoration Work”); or

(ii)demolish the leasehold improvements located in the Premises (the “Improvements Demolition Work”),

which Improvements Restoration Work or Improvements Demolition Work (as the case may be) shall be performed diligently and in a workmanlike manner after the substantial completion repairs and restoration of the Building.

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The Improvements Restoration Work and the Improvements Demolition Work shall be deemed to constitute Alterations for the purposes of Article 11 hereof and shall be subject to the provisions of Article 11.

The proceeds of policies providing coverage for leasehold improvements installed in the Premises shall be paid to Tenant, to be used by Tenant to perform the Improvements Restoration Work and/or the Improvements Demolition Work (as the case may be), to the extent Tenant is required to perform the same, and otherwise to be retained by Tenant.

Tenant shall be solely responsible for (i) the amount of any deductible under the policy insuring the leasehold improvements and (ii) the amount, if any, by which the cost of the Improvements Restoration Work and/or the Improvements Demolition Work (as the case may be) exceeds the available insurance proceeds therefor.

Notwithstanding any of the provisions of this Section 19.01 to the contrary, if Landlord or any Landlord Affiliate executes any lease for space in the Building that contains a provision that Landlord or such Landlord Affiliate will be obligated under the circumstances provided in such provision to restore any damaged or destroyed space or cause the Condominium Board of Managers to perform such restoration, then Landlord shall give Tenant prompt notice thereof (or will respond to a request from Tenant to do so within 30 days of such request), and, at Tenant’s election, Landlord and Tenant will promptly cause this Lease to be amended to incorporate such provision into this Lease.(16)

19.02.If on account of fire or other casualty, all or a part of the Premises shall be rendered untenantable (whether as a result of damage or destruction to the Premises or damage or destruction to other parts of the Building) the Fixed Rent and the Additional Charges under Article 3 hereof shall be abated in the proportion that the untenantable area of the Premises bears to the total area of the Premises (and if more than seventy-five (75%) percent of a floor shall be rendered untenantable, then the entire floor shall be deemed to have been rendered untenantable) for the period from the date of the damage or destruction to the date on which:

(i)the repair and restoration of the Building (including all base building systems serving the Premises) shall have been substantially completed (the “Basic Restoration”); and

(ii)the damaged leasehold improvements could be restored, with due diligence and dispatch (commencing after Landlord’s substantial completion of the restoration of the Building including all base building systems serving the

(16)This provision will only be applicable if the Premises (aggregated with all prior space leased by Tenant and Tenant Affiliates in the FC Office Units) is comprised of at least one (1) full floor.

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Premises) with materials of like kind and quality to the same condition as existed prior to such damage;

provided, however, should Tenant reoccupy a portion of the Premises for the conduct of business during the period the repair work is taking place and prior to the date that the Premises are substantially repaired or made tenantable, the Fixed Rent and the Additional Charges allocable to such reoccupied portion, based upon the proportion which the area of the reoccupied portion of the Premises bears to the total area of the Premises, shall be payable by Tenant from the date of such occupancy.

19.03.If the Building shall be totally damaged or destroyed by fire or other casualty, or the Building shall be so damaged or destroyed by fire or other casualty that the Condominium Board of Managers shall have elected not to repair and restore the Building, then Landlord may terminate this Lease by giving Tenant notice to such effect (“Landlord’s Casualty Termination Notice”) as soon as practicable under the circumstances.  If the Condominium Board of Managers shall elect not to repair and restore the Building, and if Landlord shall not dispute such election, then, at Tenant’s option, Landlord shall assign to Tenant, such rights of Landlord as may be reasonably required by Tenant in order to bring an action or proceeding against the Condominium Board of Managers for its failure to effect such repairs and restoration.

19.04.(a)If any portions of the Building required for reasonable access to the Premises or the provision of any services to the Premises required under this Lease (“Base Building Elements”)are damaged or destroyed by fire or other casualty and Landlord and/or the Board of Managers is required to or elects to repair and restore the Base Building Elements, Landlord shall, within 60 days after such damage or destruction, provide Tenant with a written notice of the estimated date on which the restoration shall be substantially completed (“Base Building Restoration Estimate”).If such estimated date is more than twelve (12) months after the date of such damage or destruction, Tenant may terminate this Lease by notice to Landlord, which notice shall be given within sixty (60) days after the date Landlord provides the Base Building Restoration Estimate, and such termination shall be effective upon the giving of Tenant’s notice.  If Tenant elects not to terminate this Lease, and if Landlord and/or the Board of Managers, as applicable, has not substantially completed the required repairs and restored the Base Building Elements within the period originally estimated by Landlord or within such period thereafter (not to exceed 3 months) as shall equal the aggregate period Landlord may have been delayed in doing so by Force Majeure Causes, then Tenant shall have the further right to elect to terminate this Lease upon written notice to Landlord and such election shall be effective upon the date of such notice.  Tenant shall have the right to submit any dispute as to the determination of the Base Building Restoration Estimate pursuant to this Section 19.04(a) to Expedited Arbitration.

(b)If the Premises or any part thereof shall be damaged by fire or other casualty as set forth in Article 9, whether or not any other portions of the Building or Base Building Elements have also been damaged, and the Base Building Restoration Estimate provides that the estimated time period to complete the repairs and restoration to the Premises, which time period shall be aggregated with the time period required to complete the repairs and restoration of

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any Base Building Elements if same have also been damaged, is more than twelve (12) months after the date of such damage or destruction, Tenant may terminate this Lease by notice to Landlord, which notice shall be given within sixty (60) days after the date Landlord provides the Base Building Restoration Estimate, and such termination shall be effective upon the giving of Tenant’s notice.  Tenant shall have the right to submit any dispute as to the determination of the Base Building Restoration Estimate pursuant to this Section 19.04(b) to Expedited Arbitration.

19.05.Landlord and Tenant shall fully cooperate with each other in connection with the collection of any insurance proceeds payable in respect of any casualty to the Building and shall comply with all reasonable requests made by each other in connection therewith, including, without limitation, the execution of any affidavits required by the applicable insurance companies.

19.06.Except to the extent expressly set forth in this Article 19, Tenant shall not be entitled to terminate this Lease and Landlord shall have no liability to Tenant for inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Premises or of the Building pursuant to this Article 19.

19.07.Landlord will not carry insurance of any kind on Tenant’s Property or on Tenant’s leasehold improvements and shall not be obligated to repair any damage to or replace any of the foregoing and Tenant agrees to look solely to its insurance for recovery of any damage to or loss of any of the foregoing.

19.08.The provisions of this Article 19 shall be deemed an express agreement governing any case of damage or destruction of the Premises by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, providing for such a contingency in the absence of an express agreement, and any other law of like import, now or hereafter in force, shall have no application in such case.

ARTICLE 20

Eminent Domain

20.01.If the whole of the Building or the Premises shall be taken by condemnation or in any other manner for any public or quasi-public use or purpose, this Lease and the term and estate hereby granted shall terminate as of the date of vesting of title on such taking (“Date of the Taking”), and the Fixed Rent and Additional Charges shall be prorated and adjusted as of such date.

20.02.If a portion of the Building or the Premises shall be so taken and the Condominium Board of Managers shall elect in accordance with the Declaration not to rebuild the or restore the balance of the Building, then this Lease and the term and estate hereby granted shall terminate as of the date such election is made, and the Fixed Rent and Additional Charges shall be prorated and adjusted as of such date.

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If forty (40%) percent or more of the Premises or any Base Building Elements shall be so taken and the Premises or the remaining area of the Premises, as the case may be, shall no longer be sufficient or suitable, in Tenant’s reasonable judgment, for Tenant to continue the operation of its business, Tenant may, at its option, terminate this Lease by giving Landlord notice to that effect within 90 days after the Date of the Taking.

In case of any termination pursuant to this Section 20.02, this Lease shall terminate on the date that such notice from Landlord or Tenant to the other shall be given, and the Fixed Rent and Additional Charges shall be prorated and adjusted as of such termination date, except that with respect to any portion of the Premises taken the Fixed Rent and Additional Charges shall be prorated and adjusted as of the Date of the Taking if earlier.

Upon any partial taking of the Premises and this Lease continuing in force as to any part of the Premises, the Fixed Rent and Additional Charges shall be adjusted according to the rentable area remaining.

20.03.The award or payment in connection with any taking shall be payable to Landlord; provided, however, that Tenant shall have the right to make a separate claim for its moving expenses and for any of Tenant’s Property and Alterations taken.

20.04.If the temporary use or occupancy of all or any part of the Premises shall be taken by condemnation or in any other manner for any public or quasi-public use or purpose during the term of this Lease, Tenant shall be entitled, except as hereinafter set forth, to receive that portion of the award or payment for such taking which represents compensation for the use and occupancy of the Premises, for the taking of Tenant’s Property and for moving expenses, and Landlord shall be entitled to receive that portion which represents reimbursement for the cost of restoration of the Premises. This Lease shall be and remain unaffected by such taking and Tenant shall continue to be responsible for all of its obligations hereunder insofar as such obligations are not affected by such taking and shall continue to pay in full the Fixed Rent and Additional Charges when due. If the period of temporary use or occupancy shall extend beyond the Expiration Date of this Lease, that part of the award which represents compensation for the use and occupancy of the Premises (or a part thereof) shall be divided between Landlord and Tenant so that Tenant shall receive so much thereof as represents the period up to and including such Expiration Date and Landlord shall receive so much thereof as represents the period after such Expiration Date. All monies paid as, or as part of, an award for temporary use and occupancy for a period beyond the date to which the Fixed Rent and Additional Charges have been paid shall be received, held and applied by Landlord as a trust fund for payment of the Fixed Rent and Additional Charges becoming due hereunder.

20.05.In the event of a taking of less than the whole of the Building and/or the Land which does not result in termination of this Lease, or in the event of a taking for a temporary use or occupancy of all or any part of the Premises which does not result in a termination of this Lease, after the Condominium Board of Managers shall proceed to repair the remaining parts of

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the Building and the Premises (other than those parts of the Premises which are deemed Landlord’s property pursuant to Section 12.01 hereof and Tenant’s Property) to substantially their former condition to the extent that the same may be feasible (subject to reasonable changes which Landlord and the Condominium Board of Managers shall deem desirable) and so as to constitute complete and rentable Building and Premises, then Tenant, at its expense, and whether or not any award or awards shall be sufficient for the purpose, shall proceed with reasonable diligence to repair the remaining parts of the Premises which are deemed Landlord’s property pursuant to Section 12.01 hereof and Tenant’s Property, to substantially their former condition to the extent that the same may be feasible, subject to reasonable changes which shall be deemed Alterations. Notwithstanding anything to the contrary set forth in this Article 20, the portion of any award which is allocable to the repairs which Tenant is obligated to perform pursuant to the preceding sentence shall be paid to Tenant.

ARTICLE 21

Surrender

21.01.On the Expiration Date or upon any earlier termination of this Lease, or upon any reentry by Landlord upon the Premises, Tenant shall quit and surrender the Premises to Landlord “broom-clean” and in good order, condition and repair, except for ordinary wear and tear and damage or destruction by fire or other casualty or condemnation (subject to Tenant’s obligations provided in Article 19 or 20, as the case may be) and Tenant shall remove all of the Tenant’s Property therefrom except as otherwise expressly provided in this Lease.

21.02.No act or thing done by Landlord or its agents shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender shall be valid unless in writing and signed by Landlord.

21.03.(a)In the event this Lease is terminated in accordance with its terms or this Lease is not renewed or extended or a new Lease is not entered into between the parties, and if Tenant shall then hold over after the expiration or sooner termination of the term of this Lease, the parties hereby agree that Tenant’s occupancy of the Premises after the expiration or sooner termination of the term of this Lease shall be under a month-to-month tenancy commencing on the first day after the expiration or sooner termination of the term of this Lease, which tenancy shall be upon all of the terms set forth in this Lease except Tenant shall pay on the first day of each month of the holdover period as Fixed Rent, an amount equal to the product obtained by multiplying (x) one-twelfth of the sum of the Fixed Rent payable by Tenant during the last year of the term of this Lease (i.e., the year immediately prior to the holdover period) by (y) (i) hundred ten (110%) percent for the first month of such month-to-month tenancy, (ii) one hundred twenty-five (125%) percent for the next month of such month-to-month tenancy, (iii) one hundred fifty (150%) percent for the next month of such month-to-month tenancy, and (iv) two hundred (200%) percent thereafter.

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(b)Landlord shall not be required to perform any work during the holdover period, provided, however, that Landlord shall continue to be obligated to make all required repairs within the Premises that are Landlord’s obligation under this Lease. If Tenant shall hold-over beyond the expiration or sooner termination of this Lease and thereafter for more than one hundred fifty (150) days, then the provisions of clause (ii) of Section 18.04 hereof shall not be applicable to any claims by Landlord against Tenant for consequential damages in the event that Tenant holds over for more than one hundred fifty (150) days and Tenant agrees that it shall be liable to Landlord for Landlord’s consequential damages in the event that Tenant holds over for more than one hundred fifty (150) days.

ARTICLE 22

Conditions of Limitation

22.01.This Lease and the term and estate hereby granted are subject to the limitation that whenever Tenant, or any guarantor of Tenant’s obligations under this Lease, shall make an assignment for the benefit of creditors, or shall file a voluntary petition under any bankruptcy or insolvency law, or an involuntary petition alleging an act of bankruptcy or insolvency shall be filed against Tenant or such guarantor under any bankruptcy or insolvency law, or whenever a petition shall be filed by or against Tenant or such guarantor under the reorganization provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or whenever a petition shall be filed by Tenant, or such guarantor, under the arrangement provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or whenever a permanent receiver of Tenant, or such guarantor, or of or for the property of Tenant, or such guarantor, shall be appointed, then Landlord (a) if such event occurs without the acquiescence of Tenant, or such guarantor, as the case may be, at any time after the event continues for ninety (90) days, or (b) in any other case at any time after the occurrence of any such event, may give Tenant a notice of intention to end the term of this Lease at the expiration of five days from the date of service of such notice of intention, and upon the expiration of said five-day period this Lease and the term and estate hereby granted, whether or not the term shall theretofore have commenced, shall terminate with the same effect as if that day were the expiration date of this Lease, but Tenant shall remain liable for damages as provided in Article 24 hereof.

22.02.This Lease and the term and estate hereby granted are subject to the further limitations that in the event that any of the following (each, an “Event of Default”) shall occur:

(a)if Tenant shall default in the payment of any Fixed Rent or Additional Charges, and such default shall continue for ten (10) days after written notice thereof has been received by Tenant, or

(b)if Tenant shall, whether by action or inaction, be in default of any of its obligations under this Lease (other than a default in the payment of Fixed Rent or Additional Charges) and such default shall continue and not be remedied within twenty-five (25) days after Landlord shall have given to Tenant a notice specifying

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the same, or, in the case of a default which cannot with due diligence be cured within a period of twenty-five (25) days (a “Long-Term Cure Default”),if Tenant shall not (x) within said twenty-five (25) day period advise Landlord of Tenant’s intention to take all steps reasonably necessary to remedy such Long-Term Cure Default, (y) duly commence within said 20-day period, and thereafter diligently prosecute to completion all steps reasonably necessary to remedy such Long-Term Cure Default and (z) complete such remedy within a reasonable time after the date of said notice of Landlord; provided, however, that the foregoing extension of the cure period beyond twenty-five (25) to cure a Long-Term Cure Default shall not apply if the continuance of such Long-Term Cure Default for the period required for cure would (A) subject Landlord or the lessor under the Unit Lease or any Superior Mortgagee or Superior Lessor to prosecution for a crime, (B) subject the Premises or any part thereof or the Building or Land, or any part thereof, to being condemned or vacated or (C) result in the termination of the Unit Lease or any Superior Lease or foreclosure of any Superior Mortgage; or

(c)Tenant shall fail to maintain in full force and effect any of the insurance policies that it is required to maintain pursuant to Article 9 which failure continues for more than ten (10) days after Landlord shall have given Tenant a notice specifying same;

then in any of said cases Landlord, during the continuance of such default, may give to Tenant a notice of intention to end the term of this Lease at the expiration of five (5) days from the date of the service of such notice of intention, and upon the expiration of said five days this Lease and the term and estate hereby granted, whether or not the term shall theretofore have commenced, shall terminate with the same effect as if that day was the day herein definitely fixed for the end and expiration of this Lease, but Tenant shall remain liable for damages as provided in Article 24 hereof.

22.03.If Tenant shall have assigned its interest in this Lease, and this Lease shall thereafter be disaffirmed or rejected in any proceeding under the United States Bankruptcy Code or under the provisions of any Federal, state or foreign law of like import, or in the event of termination of this Lease by reason of any such proceeding, the Tenant named herein or any subsequent assignor of its interest under this Lease, upon request of Landlord given within ninety (90) days after such disaffirmance or rejection shall (a) pay to Landlord all Fixed Rent and Additional Charges then due and payable to Landlord under this Lease to and including the date of such disaffirmance or rejection and (b) enter into a new lease as lessee with Landlord of the Premises for a term commencing on the effective date of such disaffirmance or rejection and ending on the Expiration Date, unless sooner terminated as in such lease provided, at the same Fixed Rent and Additional Charges and upon the then executory terms, covenants and conditions as are contained in this Lease, except that (i) the rights of the lessee under the new lease, shall be subject to any possessory rights of the assignee in question under this Lease and any rights of persons claiming through or under such assignee, (ii) such new lease shall require all defaults existing under this Lease to be cured by the lessee with reasonable diligence, and (iii) such new

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lease shall require the lessee to pay all Additional Charges which, had this Lease not been disaffirmed or rejected, would have become due after the effective date of such disaffirmance or rejection with respect to any prior period. If the lessee shall fail or refuse to enter into the new lease within ten (10) days after Landlord’s request to do so, then in addition to all other rights and remedies by reason of such default, under this Lease, at law or in equity, Landlord shall have the same rights and remedies against the lessee as if the lessee had entered into such new lease and such new lease had thereafter been terminated at the beginning of its term by reason of the default of the lessee thereunder.

ARTICLE 23

Reentry by Landlord

23.01.If an Event of Default shall occur, or if this Lease shall terminate as provided in Article 22 hereof, Landlord or Landlord’s agents and employees may, in the case of any such default, during the continuance thereof, or in case of any such termination, immediately or at any time thereafter reenter the Premises, or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any person therefrom, to the end that Landlord may have, hold and enjoy the Premises. The word “reenter,” as used herein, is not restricted to its technical legal meaning. If this Lease is terminated under the provisions of Article 22, or if Landlord shall reenter the Premises under the provisions of this article, or in the event of the termination of this Lease, or of reentry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the Fixed Rent and Additional Charges payable up to the time of such termination of this Lease, or of such recovery of possession of the Premises by Landlord, as the case may be, and shall also pay to Landlord damages as provided in Article 24 hereof.

23.02.In the event of a breach or threatened breach by Tenant of any of its obligations under this Lease, Landlord shall also have the right of injunction. The special remedies to which Landlord may resort hereunder are cumulative and are not intended to be exclusive of any other remedies to which Landlord may lawfully be entitled at any time and Landlord may invoke any remedy allowed at law or in equity as if specific remedies were not provided for herein.

23.03.If this Lease shall terminate under the provisions of Article 22 hereof, or if Landlord shall reenter the Premises under the provisions of this Article 23, or in the event of the termination of this Lease, or of reentry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, Landlord shall be entitled to retain all monies, if any, paid by Tenant to Landlord, whether as advance rent, security or otherwise, but such monies shall be credited by Landlord against any Fixed Rent or Additional Charges due from Tenant at the time of such termination or reentry or, at Landlord’s option, against any damages payable by Tenant under Article 24 hereof or pursuant to law.

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ARTICLE 24
Damages

24.01.If this Lease is terminated under the provisions of Article 22 hereof, or if Landlord shall reenter the Premises under the provisions of Article 23 hereof, or in the event of the termination of this Lease, or of reentry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, Tenant shall pay to Landlord as damages, at the election of Landlord, either:

(a)a sum which at the time of such termination of this Lease or at the time of any such reentry by Landlord, as the case may be, represents the then value of the excess, if any (assuming a discount at a rate per annum equal to the interest rate then applicable to 7-year Federal Treasury Bonds), of (i) the aggregate amount of the Fixed Rent and the Additional Charges under Article 3 hereof which would have been payable by Tenant (conclusively presuming the average monthly Additional Charges under Article 3 hereof to be the same as were payable for the last 12 calendar months, or if less than 12 calendar months have then elapsed since the Commencement Date, all of the calendar months immediately preceding such termination or reentry) for the period commencing with such earlier termination of this Lease or the date of any such reentry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so reentered the Premises, over (ii) the aggregate fair market rental value of the Premises for the same period, or

(b)sums equal to the Fixed Rent and the Additional Charges under Article 3 hereof which would have been payable by Tenant had this Lease not so terminated, or had Landlord not so reentered the Premises, payable upon the due dates therefor specified herein following such termination or such reentry and until the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so reentered the Premises, provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rents received by Landlord from such reletting, such net rents to be determined by first deducting from the gross rents as and when received by Landlord from such reletting the expenses incurred or paid by Landlord in terminating this Lease or in reentering the Premises and in securing possession thereof, as well as the expenses of reletting, including, without limitation, altering and preparing the Premises for new tenants, brokers’ commissions, reasonable legal fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease; but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this subdivision to a credit in respect of any net rents from a reletting,

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except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space, then proper apportionment on a square foot basis shall be made of the rent received from such reletting and of the expenses of reletting.

If the Premises or any part thereof be relet by Landlord for the greater of ten (10) years or the unexpired portion of the term of this Lease, or any part thereof, before presentation of proof of such damages to any court, commission or tribunal, the amount of rent reserved upon such reletting shall, prima facie, be the fair and reasonable rental value for the Premises, or part thereof, so relet during the term of the reletting. Landlord shall not be liable in any way whatsoever for its failure or refusal to relet the Premises or any part thereof, or if the Premises or any part thereof are relet, for its failure to collect the rent under such reletting, and no such refusal or failure to relet or failure to collect rent shall release or affect Tenant’s liability for damages or otherwise under this Lease.

24.02.Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 22 hereof, or had Landlord not reentered the Premises. Nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant of any sums or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant. Nothing herein contained shall be construed to limit or prejudice the right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or reentry on the Premises for the default of Tenant under this Lease an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved whether or not such amount be greater than any of the sums referred to in Section 24.01 hereof.

ARTICLE 25
Affirmative Waivers

25.01.Tenant, on behalf of itself and any and all persons claiming through or under Tenant, does hereby waive and surrender all right and privilege which it, they or any of them might have under or by reason of any present or future law, to redeem the Premises or to have a continuance of this Lease after being dispossessed or ejected therefrom by process of law or under the terms of this Lease or after the termination of this Lease as provided in this Lease.

25.02.If Tenant is in arrears in payment of Fixed Rent or Additional Charges, Tenant waives Tenant’s right, if any, to designate the items to which any payments made by Tenant are to be credited, and Tenant agrees that Landlord may apply any payments made by Tenant to such items as Landlord sees fit, irrespective of and notwithstanding any designation or request by Tenant as to the items which any such payments shall be credited.

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25.03.Landlord and Tenant hereby waive trial by jury in any action, proceeding or counterclaim brought by either against the other on any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises, including, without limitation, any claim of injury or damage, and any emergency and other statutory remedy with respect thereto.

25.04.Tenant waives the right to interpose any counterclaim of any kind in any action or proceeding commenced by Landlord to recover possession of the Premises (other than compulsory counterclaims).

ARTICLE 26
No Waivers

26.01.The failure of either party to insist in any one or more instances upon the strict performance of any one or more of the obligations of this Lease, or to exercise any election herein contained, shall not be construed as a waiver or relinquishment for the future of the performance of such one or more obligations of this Lease or of the right to exercise such election, and such right to insist upon strict performance shall continue and remain in full force and effect with respect to any subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or partial payments thereof or Additional Charges or partial payments thereof with knowledge of breach by Tenant of any obligation of this Lease shall not be deemed a waiver of such breach.

26.02.If there be any agreement between Landlord and Tenant providing for the cancellation of this Lease upon certain provisions or contingencies and/or an agreement for the renewal hereof at the expiration of the term, the right to such renewal or the execution of a renewal agreement between Landlord and Tenant prior to the expiration of the term shall not be considered an extension thereof or a vested right in Tenant to such further term so as to prevent Landlord from canceling this Lease and any such extension thereof during the remainder of the original term; such privilege, if and when so exercised by Landlord, shall cancel and terminate this Lease and any such renewal or extension; any right herein contained on the part of Landlord to cancel this Lease shall continue during any extension or renewal hereof; any option on the part of Tenant herein contained for an extension or renewal hereof shall not be deemed to give Tenant any option for a further extension beyond the first renewal or extended term.

ARTICLE 27
Curing Defaults

27.01.(a)If Tenant shall default in the performance of any of Tenant’s obligations under this Lease, Landlord without thereby waiving such default, may (but shall not be obligated to) perform the same for the account and at the expense of Tenant, without notice in a case of emergency, and in any other case only if such default continues after the expiration of the

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applicable grace period, if any, and Landlord has given to Tenant at least ten (10) days prior notice of its intention to take action under this Section 27.01.

(b)Bills for any expenses incurred by Landlord in connection with any such performance by it for the account of Tenant, and, if Landlord shall have been the successful party in any action or suit, bills for all costs, expenses and disbursements of every kind and nature whatsoever, including reasonable counsel fees, involved in collecting or endeavoring to collect the Fixed Rent or Additional Charges or any part thereof or enforcing or endeavoring to enforce any rights against Tenant or Tenant’s obligations hereunder, under or in connection with this Lease or pursuant to law, including any such cost, expense and disbursement involved in instituting and prosecuting summary proceedings or in recovering possession of the Premises after default by Tenant or upon the expiration or sooner termination of this Lease, and interest on all sums advanced by Landlord under this Section 27.01 (at the Interest Rate or the maximum rate permitted by law, whichever is less) may be sent by Landlord to Tenant monthly, or immediately, at its option, and such amounts shall be due and payable as Additional Charges in accordance with the terms of such bills. Notwithstanding anything to the contrary contained in this Section, Tenant shall have no obligation to pay Landlord’s costs, expenses, or disbursements in any proceeding in which there shall have been rendered a final judgment against Landlord, and the time for appealing such final judgment shall have expired.

27.02.If Landlord shall default in the performance of any of Landlord’s obligations under this Lease, Tenant, without thereby waiving such default, may (but shall not be obligated to) perform the same for the account and at the expense of Landlord, without notice in a case of emergency, and in any other case only if such default shall continue and not be remedied within the “Landlord Applicable Cure Period” (as such term is hereinafter defined), and Tenant has given at least ten (10) days prior notice to Landlord of its intention to take action under this Section 27.02. All reasonable costs and expenses incurred by Tenant in connection with any such performance by it for the account of Landlord, and any expenses referred to in Section 27.03 hereof incurred by Tenant, together with interest at the Interest Rate or the maximum rate permitted by law, whichever is less, on all such costs and expenses from the date incurred until the date paid by Landlord shall be reimbursed by Landlord to Tenant within thirty (30) days after demand by Tenant therefor. In the event Landlord shall fail so to reimburse Tenant for such amounts within such thirty (30) day period, Tenant shall have the right to offset such amounts against the next installment(s) of Fixed Rent and/or Additional Charges payable under this Lease. As used herein the term “Landlord Applicable Cure Period” shall mean thirty (30) days after Tenant shall have given to Landlord a notice specifying the default, or, in the case of a default which cannot with due diligence be cured within a period of thirty (30) days (a “Landlord Long-Term Cure Default”),if Landlord shall not (x) within said thirty (30) day period advise Tenant of Landlord’s intention to take all steps reasonably necessary to remedy such Landlord Long-Term Cure Default, (y) duly commence within said thirty (30) day period, and thereafter diligently prosecute to completion all steps reasonably necessary to remedy such Landlord Long-Term Cure Default and (z) complete such remedy within a reasonable time after the date of said notice of Tenant; provided, however, that the foregoing extension of the cure period beyond thirty (30) days to cure a Landlord Long-Term Cure Default shall not apply if the continuance of such

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Landlord Long-Term Cure Default for the period required for cure would (A) subject Tenant to prosecution for a crime, (B) subject the Premises or any part thereof or the Building or Land, or any part thereof, to being condemned or vacated or (C) result in the termination of the Unit Lease, or (D) prevent Tenant from performing or completing any Alterations required by Tenant for the conduct of its business in the Premises.

27.03.(a)If Tenant shall have been the successful party in any action or suit in connection with Landlord’s obligations under this Lease, Landlord shall reimburse Tenant for all costs, expenses and disbursements of every kind and nature whatsoever (including reasonable counsel fees) incurred by Tenant in connection with enforcing or endeavoring to enforce any rights against Landlord or Landlord’s obligations hereunder, under or in connection with this Lease or pursuant to law, together with interest at the Interest Rate or the maximum rate permitted by law, whichever is less, from the date incurred until the date paid by Landlord.

(b)If Landlord shall have been the successful party in any action or suit in connection with Tenant’s obligations under this Lease, Tenant shall reimburse Landlord for all costs, expenses and disbursements of every kind and nature whatsoever (including reasonable counsel fees) incurred by Landlord in connection with enforcing or endeavoring to enforce any rights against Tenant or Tenant’s obligations hereunder, under or in connection with this Lease or pursuant to law, together with interest at the Interest Rate or the maximum rate permitted by law, whichever is less, from the date incurred until the date paid by Tenant.

ARTICLE 28
Broker

28.01.(a)Tenant covenants, warrants and represents that Tenant had no conversations or negotiations with any broker concerning the leasing of the Premises. Tenant agrees to indemnify and hold harmless Landlord against and from any claims for any brokerage commissions relative to this Lease and all costs, expenses and liabilities in connection therewith, including, without limitation, reasonable attorneys’ fees and expenses, arising out of any conversations or negotiations had by Tenant with any broker.

(b)Landlord covenants, warrants and represents that. Landlord had no conversations or negotiations with any broker concerning the leasing of the Premises. Landlord agrees to indemnify and hold harmless Tenant against and from any claims for any brokerage commissions relative to this Lease and all costs, expenses and liabilities in connection therewith, including, without limitation, reasonable attorneys’ fees and expenses, arising out of any conversations or negotiations had by Landlord with any broker.

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ARTICLE 29

Notices

29.01.Any notice, statement, demand, consent, approval or other communication required or permitted to be given, rendered or made by either party to this Lease or pursuant to any applicable law or requirement of public authority (collectively, “notices”)shall be in writing (whether or not so stated elsewhere in this Lease) and shall be deemed to have been properly given, rendered or made only if sent (i) by registered or certified mail, return receipt requested, posted in a United States post office station or letter box in the continental United States, or (ii) by overnight courier service (e.g., Federal Express) with verification of delivery requested, addressed to the other party as follows:

If to Landlord:

c/o Forest City Ratner Companies

One Metro Tech Center North

Brooklyn, New York 11201

Attn: General Counsel

and if to Tenant as follows:

and shall be deemed to have been given, rendered or made (x) if mailed, on the second Business Day following the day so mailed, unless mailed to a location outside of the State of New York, in which case it shall be deemed to have been given, rendered or made on the third business day after the day so mailed, or (y) if sent by overnight courier, one (1) Business Day after the day sent. Either party may, by notice as aforesaid, designate a different address or addresses for notices intended for it.

29.02.Notices hereunder from Landlord may be given by Landlord’s managing agent, if one exists, or by Landlord’s attorney. Notices hereunder from Tenant may be given by Tenant’s attorney.

29.03.In addition to the foregoing, either Landlord or Tenant may, from time to time, request in writing that the other party serve a copy of any notice on one other person or entity designated in such request in addition to the two persons or entities designated in Section 29.01 hereof, and Landlord shall also have the right to request in writing that Tenant serve a copy of any notice on the lessor under the Unit Lease or any Superior Lessor or Superior Mortgagee, such service in any case to be effected as provided in Section 29.01 or 29.02 hereof.

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ARTICLE 30
Estoppel Certificates

30.01.Each party agrees, at any time and from time to time, as requested by the other party with not less than 10 days’ prior notice, to execute and deliver to the other a statement

(i) certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications),

(ii) certifying the dates to which the Fixed Rent and Additional Charges have been paid,

(iii) certifying as to the name and address of all persons or entities to whom notices are to be given on behalf of such party,

(iv) stating whether or not, to the best knowledge of the signer, the other party is in default in performance of any of its obligations under this Lease, and if so, specifying each such default of which the signer shall have knowledge, and

(v) stating whether or not, to the best knowledge of the signer, any event has occurred which with the giving of notice or passage of time, or both, would constitute such a default, and, if so, specifying each such event of which the signer shall have knowledge,

it being intended that any such statement delivered pursuant hereto shall be deemed a representation and warranty to be relied upon by the party requesting the certificate and by others with whom such party may be dealing, regardless of independent investigation.   Tenant also shall include in any such statement such other information concerning this Lease to the best knowledge of the signer as Landlord may reasonably request.

ARTICLE 31
Memorandum of Lease

31.01.Tenant shall not record this Lease, but at the request of either party, Landlord and Tenant shall execute, acknowledge and deliver, and Landlord or Tenant may record, a statutory form of memorandum with respect to this Lease pursuant to the provisions of Section 291-C of the Real Property Law of the State of New York.

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ARTICLE 32
No Representations by Landlord

32.01.Tenant expressly acknowledges and agrees that Landlord has not made and is not making, and Tenant, in executing and delivering this Lease, is not relying upon, any warranties, representations, promises or statements, except to the extent that the same are expressly set forth in this Lease or in any other written agreement which may be made between the parties concurrently with the execution and delivery of this Lease and shall expressly refer to this Lease. All understandings and agreements relating to the subject matter of this Lease heretofore had between the parties are merged in this Lease and any other written agreement(s) made concurrently herewith, which alone fully and completely express the agreement of the parties and which are entered into after full investigation, neither party relying upon any statement or representation not embodied in this Lease or any other written agreement(s) made concurrently herewith.

ARTICLE 33
Hazardous Materials

33.01.Landlord covenants that upon delivery to Tenant of any portion of the Premises such portion of the Premises will be free of any Hazardous Materials that are required by applicable Legal Requirements to be removed or remediated or that would be required by applicable Legal Requirements to be removed or remediated if the same were to be disturbed or otherwise affected by work or other activity in or about the Building.(17) In the event that after the date hereof there are found in the Premises any Hazardous Materials that are required by applicable Legal Requirements to be removed or remediated (including so required by reason of or in connection any work or other activity performed or desired to be performed by Tenant which would disturb or otherwise affect the same) then, as Tenant’s sole remedy in connection therewith, Tenant may remove or otherwise remediate such Hazardous Materials at Landlord’s expense; provided, however, that at Landlord’s option, such removal or remediation shall be supervised, at Landlord’s expense, by an environmental consultant designated by Landlord. This paragraph shall not be applicable to any Hazardous Materials brought to or placed at the Premises by Tenant or any of Tenant’s subtenants or licensees or its or their employees, agents, contractors or invitees.

33.02.Tenant shall not cause or permit Hazardous Materials to be used, transported, stored, released, handled, produced or installed in, on or from, the Premises or the Building, provided that the foregoing shall not be deemed to prohibit Tenant from utilizing in the Premises, as an incident to the use permitted pursuant to Article 2 hereof, any materials in amounts and forms as are generally used by tenants in first-class office buildings in lower Manhattan using

(17)  If and for so long as the “Landlord” under this Lease is (A)(i) Ground Lessor and (ii) a governmental entity or a public benefit corporation, or (B) the party who acquires the interest of the “Landlord” in this Lease from such governmental entity or public benefit corporation (but not any other party who becomes the “Landlord” under this Lease), the covenant set forth in this sentence shall not be applicable, provided, however, that Tenant’s remedies as set forth in the second sentence of this section shall continue to apply.

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premises for the purposes for which Tenant is permitted to use the Premises pursuant to Article 2 hereof, provided that (i) the use or storage of such materials in the Building shall not be prohibited by applicable Legal Requirements or the requirements of any insurance bodies, (ii) such materials are stored and safeguarded in a manner reasonably satisfactory to Landlord and in compliance with all applicable Legal Requirements, (iii) no such materials shall in any event be released or discharged other than as their use dictates or in such a manner as to contaminate the Building or the Premises, and (iv) such materials shall not be incorporated into, or used as part of, the construction or decoration of the Premises in violation of law. In the event of a breach of the provisions of this Section 33.02, Landlord shall, in addition to all of its rights and remedies under this Lease and pursuant to law, require Tenant to remove any such Hazardous Materials from the Premises in the manner prescribed for such removal by Legal Requirements. The provisions of this Section 33.02 shall survive the termination of this Lease.

33.03.The term “Hazardous Materials” shall, for the purposes hereof, mean any flammable explosives, radioactive materials, hazardous wastes, hazardous and toxic substances, or related materials, asbestos or any material containing asbestos, or any other substance or material, as defined by any federal, state or local environmental law, ordinance, rule or regulation including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, the Hazardous Materials Transportation Act, as amended, the Resource Conservation and Recovery Act, as amended, and in the regulations adopted and publications promulgated pursuant to each of the foregoing.

ARTICLE 34
Miscellaneous Provisions and Definitions

34.01.No agreement shall be effective to change, modify, waive, release, discharge, terminate or effect an abandonment of this Lease, in whole or in part, including, without limitation, this Section 34.01, unless such agreement is in writing, refers expressly to this Lease and is signed by the party against whom enforcement of the change, modification, waiver, release, discharge, termination or effectuation of the abandonment is sought. If Tenant shall at any time request Landlord to sublet the Premises for Tenant’s account, Landlord or its agent is authorized to receive keys for such purposes without releasing Tenant from any of its obligations under this Lease, and Tenant hereby releases Landlord of any liability for loss or damage to any of the Tenant’s Property in connection with such subletting unless caused by or resulting from the negligence or willful act of Landlord, its agents, servants, contractors, or employees.

34.02.Except as otherwise expressly provided in this Lease, the obligations of this Lease shall bind and benefit the successors and assigns of the parties hereto with the same effect as if mentioned in each instance where a party is named or referred to;  provided, however, that (a) no violation of the provisions of Article 7 shall operate to vest any rights in any successor or assignee of Tenant and (b) the provisions of this Article 34 shall not be construed as modifying the conditions of limitation contained in Article 22.

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34.03.Intentionally omitted.

34.04.(a)Except as expressly provided in Section 34.04(b) and Articles 19 and 20 hereof, the obligations of Tenant hereunder shall be in no wise affected, impaired or excused, nor shall Landlord have any liability whatsoever to Tenant, nor shall it be deemed a constructive eviction because (a) Landlord is unable to fulfill, or is delayed in fulfilling, any of its obligations under this Lease by reason of strike, lock-out or other labor trouble, governmental preemption of priorities or other controls in connection with a national or other public emergency or shortages of fuel, supplies or labor resulting therefrom, or any other cause, whether similar or dissimilar, beyond Landlord’s reasonable control; or (b) of any failure or defect in the supply, quantity or character of electricity or water furnished to the Premises, by reason of any requirement, act or omission of the public utility or others serving the Building with electric energy, steam, oil, gas or water, or for any other reason whether similar or dissimilar, beyond Landlord’s reasonable control (the foregoing circumstances described in this Section 34.04 being “Force Majeure Causes”).Landlord shall give Tenant prompt notice of the occurrence of any Force Majeure Cause and shall use diligent efforts to overcome any such Force Majeure Cause, including, without limitation, the performance of such work on an overtime or premium-pay basis to the extent required of a Unit Owner under the Declaration.

(b)Notwithstanding anything to the contrary contained in this Lease, but subject to the provisions of Article 19 and 20 hereof to the extent applicable, if for a period of two (2) consecutive Business Days (commencing on the day after the date Tenant delivers the notice required in (z) below to Landlord) Landlord fails to provide the services or make the repairs required of Landlord under this Lease to be provided to the Premises or any portion thereof, and (w) the cause of such failure shall not be Force Majeure Causes or the act or omission of Tenant, its agents, representatives, contractors or employees, and (x) as a result of such failure the Premises or any portion thereof shall be rendered untenantable and (y) as a result of such failure Tenant shall not use the Premises or such portion thereof for the conduct of its business except to retrieve records and/or maintain equipment, and (z) Tenant shall concurrently with its failure to use the Premises give notice of such fact to Landlord; then, in such event, the Fixed Rent and Additional Charges under Article 3 payable pursuant to this Lease shall be abated for the period commencing on the day immediately succeeding the expiration of such two (2) consecutive Business Day period and ending on the date that the Premises or such portion thereof shall be rendered tenantable (or such earlier date, if any, as Tenant shall reoccupy the Premises or such portion thereof for the conduct of its business).

34.05.For the purposes of this Lease, the following terms have the meanings indicated:

(a)The term “mortgage” shall include a mortgage and/or a deed of trust, and the term “holder of a mortgage” or “mortgagee” or words of similar import shall include a mortgagee of a mortgage or a beneficiary of a deed of trust.

(b)The term “laws and requirements of any public authorities” and words of a similar import shall mean laws and ordinances of any or all of the federal, state, city, town,

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county, borough and village governments including, without limitation, The Americans with Disabilities Act of 1990, as amended, and rules, regulations, orders and directives of any and all departments, subdivisions, bureaus, agencies or offices thereof, and of any other governmental, public or quasi-public authorities having jurisdiction over the Building and/or the Premises, and the direction of any public officer pursuant to law, whether now or hereafter in force.

(c)The term “requirements of insurance bodies” and words of similar import shall mean rules, regulations, orders and other requirements of the New York Board of Underwriters and/or the New York Fire Insurance Rating Organization and/or any other similar body performing the same or similar functions and having jurisdiction or cognizance over the Building and/or the Premises, whether now or hereafter in force.

(d)The term “Tenant” shall mean the Tenant herein named or any assignee or other successor in interest (immediate or remote) of the Tenant herein named, which at the time in question is the owner of the Tenant’s estate and interest granted by this Lease; but the foregoing provisions of this Section shall not be construed to permit any assignment of this Lease or to relieve the Tenant herein named or any assignee or other successor in interest (whether immediate or remote) of the Tenant herein named from the full and prompt payment, performance and observance of the covenants, obligations and conditions to be paid, performed and observed by Tenant under this Lease.

(e)The term “Landlord” shall mean only the owner at the time in question of the Unit or the lessee under a severance lease covering the Unit, so that in the event of any transfer of the Unit, (any such transfer being a “Transfer”), the transferor (a “Transferor”) shall be and hereby is relieved and freed of, and it shall be deemed, without further agreement that upon a subsequent Transfer, the transferee (a “Transferee”) has assumed and agreed to perform, all obligations of Landlord under this Lease.

(f)The terms “herein,” “hereof and “hereunder,” and words of similar import, shall be construed to refer to this Lease as a whole, and not to any particular article or section, unless expressly so stated.

(g)The term “and/or” when applied to one or more matters or things shall be construed to apply to any one or more or all thereof as the circumstances warrant at the time in question.

(h)The term “person” shall mean any natural person or persons, a partnership, a corporation, and any other form of business or legal association or entity.

(i)The terms “Landlord shall have no liability to Tenant” or “the same shall be without liability to Landlord” or “without incurring any liability to Tenant therefor”, or words of similar import shall mean that Tenant is not entitled to terminate this Lease, or to claim actual or constructive eviction, partial, or total, or to receive any abatement or diminution of rent, or to be relieved in any manner of any of its other obligations hereunder, or to be compensated for loss

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or injury suffered or to enforce any other right or kind of liability whatsoever against Landlord under or with respect to this Lease or with respect to Tenant’s use or occupancy of the Premises.

(j)The term “Interest Rate,” when used in this Lease, shall mean an interest rate equal to two percent (2%) above the so-called annual “Base Rate” of interest established and approved by Citibank, N.A., New York, New York, from time to time, as its interest rate charged for unsecured loans to its corporate customers, but in no event greater than the highest lawful rate from time to time in effect.

(k)The term “Consumer Price Index” shall mean the Consumer Price Index for All Urban Consumers (“CPI-AUC”), New York, New York-Northeastern New Jersey, All Items (1982-1984=100), issued and published by the Bureau of Labor Statistics of the United States Department of Labor. In the event that CPI-AUC ceases to use a 1982-84 base rate of 100 as the basis of calculation, or if a substantial change is made in the terms or number of items contained in CPI-AUC, then the CPI-AUC shall be adjusted to the figure that would have been arrived at had the manner of computing the CPI-AUC in effect at the date of this Lease not been altered. If CPI-AUC is not available, the term “Consumer Price Index” shall mean (i) a successor or substitute index to CPI-AUC, appropriately adjusted; or (ii) if such a successor or substitute index is not available or may not lawfully be used for the purposes herein stated, a reliable governmental or other non-partisan publication, selected by Landlord and approved by Tenant (which approval shall not be unreasonably withheld or delayed), evaluating the information theretofore used in determining CPI-AUC.

(1)The term “Legal Requirements” and words of a similar import shall mean laws and ordinances of any or all of the federal, state, city, town, county, borough and village governments and rules, regulations, orders and directives of any and all departments, subdivisions, bureaus, agencies or offices thereof, and of any other governmental, public or quasi-public authorities having jurisdiction over the Building and/or the Premises, and the direction of any public officer pursuant to law, whether now or hereafter in force.

34.06.All obligations and liabilities of Landlord or Tenant to the other which accrued before the expiration or earlier termination of this Lease and all such obligations and liabilities which by their nature or under the circumstances can only be, or by the provisions of this Lease may be performed after such expiration or other termination, shall survive the expiration or earlier termination of this Lease. Without limiting the generality of the foregoing, the rights and obligations of the parties with respect to any indemnity under this Lease, and with respect to Tax Payments, Operating Payments and any other amounts payable by either party under this Lease, shall survive the expiration or earlier termination of this Lease.

34.07.(a)If Tenant shall request Landlord’s consent and Landlord shall fail or refuse to give such consent, Tenant shall not be entitled to any damages or any other remedy for any withholding by Landlord of its consent; provided, however, that in those cases in which Landlord has expressly agreed in this Lease not to unreasonably withhold its consent or where as a matter of law Landlord may not unreasonably withhold its consent, Tenant shall have the right, as its

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sole and exclusive remedy, either (i) to prosecute an action for specific performance, injunction and/or (if Landlord shall have acted in bad faith) damages, or (ii) to submit the dispute to arbitration in The City of New York in accordance with the following provisions of Section 34.07(b).

(b)Within ten (10) Business Days next following the giving of any notice by Tenant stating that it wishes to submit the dispute to arbitration pursuant to this Section 34.07(b), Landlord and Tenant shall each give notice to the other setting forth the name and address of an arbitrator designated by the party giving such notice. If the two arbitrators shall fail to agree upon the designation of a third arbitrator within five (5) Business Days after the designation of the second arbitrator then either party may apply to the American Arbitration Association in New York City for the designation of such arbitrator and if he is unable or refuses to act within ten (10) Business Days, then either party may apply to the Supreme Court in New York County or to any other court having jurisdiction for the designation of such arbitrator. The three arbitrators shall conduct such hearings as they deem appropriate, making their determination in writing and giving notice to Landlord and Tenant of their determination as soon as practicable, and if possible, within five (5) Business Days after the designation of the third arbitrator; the concurrence of or, in the event no two of the arbitrators shall render a concurring determination, then the determination of the third arbitrator designated, shall be binding upon Landlord and Tenant. Judgment upon any decision rendered in any arbitration held pursuant to this Section 34.07(b) shall be final and binding upon Landlord and Tenant, whether or not a judgment shall be entered in any court. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Section 34.07(b), including the expenses and fees of any arbitrator selected by it in accordance with the provisions of this Section 34.07(b), and the parties shall share all other expenses and fees of any such arbitration. The arbitrators shall be bound by the provisions of this Lease, and shall not add to, subtract from or otherwise modify such provisions. The sole remedy which may be awarded by the arbitrators in any proceeding pursuant to this Section 34.07 is an order compelling Landlord to consent to or approve the matter in dispute, and the arbitrators may not award damages or grant any monetary award or any other form of relief.

34.08.If an excavation shall be made upon land adjacent to or under the Building, or shall be authorized to be made, Tenant shall afford to the person causing or authorized to cause such excavation, license to enter the Premises for the purpose of performing such work as said person shall deem necessary or desirable to preserve and protect the Building from injury or damage to support the same by proper foundations, without any claim for damages or liability against Landlord and without reducing or otherwise affecting Tenant’s obligations under this Lease.

34.09.Tenant shall not place a load upon any floor of the Premises which violates applicable law or the certificate of occupancy of the Building (as now in effect or as the same may be amended pursuant to Section 2.04(b)) or which exceeds the floor load per square foot which such floor was designed to carry or is reinforced (in compliance with the applicable provisions of this Lease) to carry. All heavy material and/or equipment must be placed by Tenant, at Tenant’s expense, so as to distribute the weight. Business machines and mechanical equipment shall be placed and maintained by Tenant, at Tenant’s expense, in settings sufficient in Landlord’s

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reasonable judgment to absorb and prevent vibration, noise and annoyance.  If the Premises be or become infested with vermin as a result of the use or any misuse or neglect of the Premises by Tenant, its agents, employees, visitors or licensees, Tenant shall at Tenant’s expense cause the same to be exterminated from time to time to the reasonable satisfaction of Landlord and shall employ such exterminators and such exterminating company or companies as shall be reasonably approved by Landlord.

34.10.Irrespective of the place of execution or performance, this Lease shall be governed by and construed in accordance with the laws of the State of New York. If any provisions of this Lease or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Lease and the application of that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent permitted by law. The table of contents, captions, headings and titles in this Lease are solely for convenience of references and shall not affect its interpretation. this Lease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Lease to be drafted. Each covenant, agreement, obligation or other provision of this Lease on the part of Landlord or Tenant to be performed, shall be deemed and construed as a separate and independent covenant of such party, not dependent on any other provision of this Lease. All terms and words used in this Lease, shall be deemed to include any other number and any other gender as the context may require.

34.11.If under the terms of this Lease Tenant is obligated to pay Landlord a sum in addition to the Fixed Rent, Tax Payments or Operating Payments payable under this Lease and no payment period therefor is specified, Tenant shall pay Landlord the amount due within thirty (30) days after being billed, unless such sum relates to the provision of electricity to Tenant, in which event Tenant shall pay Landlord the amount due within twenty (20) days after being billed.

34.12.Notwithstanding anything to the contrary contained in this Lease, during the continuance of any default by Tenant in the payment of any sums due hereunder after the giving of notice and the expiration of any applicable grace periods hereunder, Tenant shall not be entitled to exercise any expansion or renewal rights or options, or to receive any funds or proceeds being held, under or pursuant to this Lease.

34.13.Each of Landlord and Tenant represents and warrants that this Lease has been duly authorized, executed and delivered by such party.

34.14.Any sums which are owed to or are to be reimbursed by Landlord to Tenant under any provision of this Lease and not paid within twenty (20) days after their due date may, at the option of Tenant, be credited by Tenant against the Fixed Rent or Additional Charges payable under this Lease with interest on the unpaid amount at the Interest Rate from the original due date until repaid to or credited by Tenant.

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ARTICLE 35

Arbitration

35.01.Either party may request arbitration of any matter in dispute which, pursuant to the terms of this Lease, expressly allows such dispute to be resolved by arbitration. The party desiring such arbitration shall give notice to the other party (the “Arbitration Notice”), (a) requesting that the dispute be submitted to arbitration, (b) setting forth with particularity the nature of the dispute sought to be arbitrated, and (c) stating that the party sending the Arbitration Notice desires to meet within ten (10) days with the other party to attempt to agree on a single arbitrator (the “Arbitrator”). If the parties shall not have agreed on a choice of an arbitrator within fifteen (15) days after the service of such Arbitration Notice, then either party may apply to the local office of the AAA, or if the AAA shall not then exist or shall fail, refuse or be unable to act such that the Arbitrator is not appointed by the AAA within thirty (30) day after application therefor, then either party may apply to the presiding judge of the Supreme Court of New York County (the “Court”) and the other party shall not raise any question as to the Court’s full power and jurisdiction to entertain the application and make the appointment. The date on which the Arbitrator is appointed by agreement of the parties, by the AAA or by appointment by the Court, is referred to herein as the “Appointment Date”. If any Arbitrator appointed hereunder shall be unwilling or unable, for reason, to serve, or continue to serve, a replacement shall be appointed in the same manner as the original Arbitrator.

35.02.(a)The arbitration shall be conducted in accordance with the then prevailing rules of the local office of the AAA, modified as follows:

(i)The Arbitrator shall be disinterested and impartial, shall not be Affiliated with any party to the arbitration, and shall have at least ten (10) years’ experience with the matter which is the subject of the arbitration.

(ii)Promptly following the Appointment Date, the Arbitrator shall hold one or more hearings with respect to the matter which is the subject of the arbitration. The hearings shall be held in the City of New York, at such location and time as shall be specified by the Arbitrator. Each of the parties shall be entitled to present all relevant evidence and to cross-examine witnesses at the hearings. The Arbitrator shall have the authority to adjourn any hearing to such later date as the Arbitrator shall specify, provided that in all events all hearings shall be concluded not later than forty-five (45) days following the Appointment Date.

(iii)The Arbitrator shall render his or her determination in a signed and acknowledged written instrument, original counterparts of which shall be sent simultaneously to all of the parties to the arbitration, within ten (10) days after the conclusion of the hearing(s) required by clause (ii) of this subparagraph.

(b)The arbitration decision, determined as provided in this Section, shall be conclusive and binding on the parties, shall constitute an “award” by the Arbitrator within the

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meaning of the AAA rules and applicable law and judgment may be entered thereon in any court of competent jurisdiction.

(c)Each party shall pay its own fees and expenses relating to the arbitration (including, without being limited to, the fees and expenses of its counsel and of experts and witnesses retained or called by it). Each party shall pay one-half (1/2) of the fees and expenses of the AAA and of the Arbitrator, provided that the Arbitrator shall have the authority to award such fees and expenses in favor of the prevailing party if the Arbitrator determines that the position of the non-prevailing party lacked substantial basis.

35.03.Landlord and Tenant agree to sign all documents and to do all other things necessary to submit any such matter to arbitration and further agree to, and hereby do waive, any and all rights they or either of them may at any time have to revoke their agreement hereunder to submit to arbitration and to abide by the decision rendered thereunder. For such period, if any, that this agreement to arbitrate is not legally binding or the arbitrator’s award is not legally enforceable, the provisions requiring arbitration shall be deemed deleted, and matters to be determined by arbitration shall be subject to litigation.

35.04.Any dispute which is required by this Lease to be resolved by Expedited Arbitration shall be submitted to binding arbitration under the Expedited Procedures provisions (currently, Rules 56 through 60) of the Arbitration Rules of the Real Estate Industry of the AAA. In cases where the parties utilize such expedited arbitration: (i) the parties will have no right to object if the arbitrator so appointed was on the list submitted by the AAA and was not objected to in accordance with Rule 54 (except that any objection shall be made within four days from the date of mailing), (ii) the Notice of Hearing shall be given four days in advance of the hearing, (iii) the first hearing shall be held within seven (7) Business Days after the appointment of the arbitrator, (iv) if the arbitrator shall find that a party acted unreasonably in withholding or delaying a consent or approval, such consent or approval shall be deemed granted (but the arbitrator shall not have the right to award damages, unless the arbitrator shall find that such party acted in bad faith), and (v) the losing party in such arbitration shall pay the arbitration costs charged by the AAA and/or the arbitrator, together with the reasonable counsel fees and disbursements incurred by the prevailing party in connection with such arbitration.

35.05.The arbitrators shall, in rendering any decision pursuant to this Article 35, answer only the specific question or questions presented to them. In answering such question or questions (and rendering their decision), the arbitrators shall be bound by the provisions of this Lease, and shall not add to, subtract from or otherwise modify such provisions.

35.06.Judgment may be had on the decision and award of an arbitrator rendered pursuant to the provisions of this Article 35 and may be enforced in accordance with the laws of the State of New York.

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35.07.The provisions of this Article 35 shall not apply to any arbitration pursuant to Section 1.04(b), which shall be governed by the provisions of Article XX, Section 8(b) of the Declaration.

35.08.The provisions of this Article 35 shall be applicable with regard to the Lease whenever (x) there is a dispute between Landlord and Tenant as to (i) the reasonableness of Landlord’s refusal to consent to any Alterations within the applicable time periods therefor set forth in this Lease, where Landlord has agreed that its consent would not be unreasonably withheld, conditioned or delayed, (ii) the reasonableness of Landlord’s refusal to consent to any subletting or assignment, where Landlord has agreed that its consent would be unreasonably withheld, conditioned or delayed, or (iii) Landlord’s refusal to consent to any other matter, where Landlord has agreed that its consent would not be unreasonably withheld, conditioned or delayed, within the time period specified in this Lease for the granting of such consent, or (y) where otherwise provided in this Lease.

ARTICLE 36
Extension of Term Options

36.01(a)Tenant shall have the right to extend the term of this Lease for up to                                           additional term(s)(18) of ten (10) years each, each such term (an “Extension Term”) commencing on the day following the expiration of the initial term of this Lease in the case of the first Extension Term, or the day following the immediately preceding Extension Term, in the case of Extension Term after the first Extension Term (the first day of any such Extension Term being herein referred to as the commencement date of the applicable Extension Term) and ending on the day preceding the tenth (10th) anniversary of the commencement date of such Extension Term provided that Tenant shall give Landlord notice (hereinafter called the “Extension Notice”) of its election to extend the term of this Lease at least nine (9) months prior to the commencement date of the applicable Extension Term.

(b)The fixed annual rent payable by Tenant to Landlord during each Extension Term shall be determined in accordance with Section 1.04(b) hereof.

(c)Effective as of the Commencement Date of each Extension Term:

(i) the “Base Tax Amount” shall mean the Taxes, as finally determined, for the Tax Year in which occurs the Commencement Date of such Extension Term; and

(ii)“Base Operating Year” shall mean the calendar year in which occurs the Commencement Date of such Extension Term.

(18)  To be completed in accordance with Footnote 1.

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36.02.(a)Except as provided in Section 36.01 hereof, Tenant’s occupancy of the demised premises during any Extension Term shall be on the same terms and conditions as are in effect immediately prior to the expiration of the initial term of this Lease or the immediately preceding Extension Term, as the case may be.

(b)  If this Lease is renewed for any Extension Term, then Landlord or Tenant can request the other party hereto to execute an instrument in form for recording setting forth the exercise of Tenant’s right to extend the term of this Lease and the last day of such Extension Term, provided, however, the failure of Landlord or Tenant to execute such an instrument shall have no effect whatsoever on Tenant’s rights pursuant to this Article 36.

(m)  If Tenant exercises its right to extend the term of this Lease for any Extension Term pursuant to this Article, the phrases “the term of this Lease” or “the term hereof” as used in this Lease, shall be construed to include, when practicable, such Extension Term.

IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day and year first above written.

		, Landlord
By:
	Name:
	Title:
THE NEW YORK TIMES COMPANY, Tenant
By:
	Name:
	Title:

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Exhibit A

Land

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Exhibit B

Certificate of Occupancy

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Exhibit C

METHOD OF FLOOR MEASUREMENT FOR OFFICE BUILDINGS

[Real Estate Board of New York — Effective January 1, 1987]

Measure the floor to the outside surface of the building.  Subtract from this area the following, including the finished enclosing walls:

•Public elevator shafts and elevator machines and their enclosing walls.

•Public stairs and their enclosing walls.

•Heating, ventilating, and air-conditioning facilities (including pipes, ducts and shafts) and their enclosing walls, unless such equipment, mechanical room space, or shafts serve the floor in questions.

•Fire towers and fire tower courts and their enclosing walls.

•Main telephone equipment rooms and main electric switchgear rooms, except that telephone equipment, and electric switchgear rooms serving the floor exclusively shall not be subtracted.

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Exhibit D
Form of Letter of Credit

IRREVOCABLE STAND-BY LETTER OF CREDIT

BENEFICIARY: APPLICANT:

EXPIRATION DATE:

AMOUNT:

WE HEREBY ISSUE THIS IRREVOCABLE STAND-BY LETTER OF CREDIT IN YOUR FAVOR WHICH IS AVAILABLE TO YOU AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON [BANK] AND BEARING THE CLAUSE “DRAWN UNDER [BANK] CREDIT NUMBER [         ]” ACCOMPANIED BY:

BENEFICIARY’S CERTIFICATION THAT (i) AN EVENT OF DEFAULT HAS OCCURRED UNDER THE LEASE DATED                 , 2      BETWEEN BENEFICIARY AS LANDLORD AND APPLICANT AS TENANT, WHICH DEFAULT HAS CONTINUED BEYOND THE EXPIRATION OF ALL APPLICABLE NOTICE AND CURE PERIODS OR (ii) TENANT UNDER SUCH LEASE HAS NOT RENEWED OR REPLACED THIS LETTER OF CREDIT AT LEAST 30 DAYS PRIOR TO ITS STATED EXPIRATION DATE.

IT IS A CONDITION OF THIS LETTER THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED WITHOUT AN AMENDMENT FOR ONE YEAR FROM THE PRESENT OR ANY FUTURE EXPIRATION DATE HEREOF UNLESS 30 DAYS PRIOR TO ANY SUCH DATE WE SHALL NOTIFY YOU IN WRITING THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD. UPON PRESENTATION TO YOU OF SUCH NOTICE, YOU MAY, UNTIL THE EXPIRATION DATE HEREOF, DRAW THE FULL AMOUNT OF THE CREDIT HEREUNDER, AGAINST YOUR DRAFT.

THIS LETTER OF CREDIT IS NON-NEGOTIABLE, NON-ASSIGNABLE AND NON-TRANSFERABLE EXCEPT TO ANY SUCCESSOR TO THE BENEFICIARY AS LANDLORD UNDER LEASE, DATED                 , 2     BETWEEN BENEFICIARY AS LANDLORD AND APPLICANT AS TENANT.

WE HEREBY AGREE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS CREDIT WILL BE DULY HONORED ON DUE PRESENTATION TO THE DRAWEES IF PRESENTED ON OR BEFORE THE EXPIRATION DATE.

THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION) INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500.

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Exhibit E

Mortgagee SNDA

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

This Subordination, Non-Disturbance and Attornment Agreement (this “Agreement”) is dated as of the       day of                  , 2     , between                        , a                        with an address at                                  (“Lender”), and                                , a                          with an address at                                       (“Tenant”).

RECITALS

A.Tenant is the tenant under a certain lease (the “Lease”) dated                    , 2     with                                                   (“Landlord”) of the         floor space described in the Lease (the “Premises”) located at                                      in the City, County and State of New York and more particularly described on Exhibit A attached hereto and made a part hereof (such building and land, including the Premises, is hereinafter referred to as the “Property”).

B.This Agreement is being entered into in connection with a mortgage loan (as amended and supplemented from time to time, the “Loan”) dated                       , 2       made by Lender to Landlord, secured by, among other things: (a) a first mortgage to secure debt on the Property (the “Mortgage”) recorded with the registry or clerk of the county in which the Property is located; and (b) a first assignment of leases and rents on the Property (the “Assignment of Leases and Rents”) recorded with such registry or clerk. The Mortgage and the Assignment of Leases and Rents are hereinafter collectively referred to as the “Security Documents”. [RECORDING INFO TO BE ADDED]

AGREEMENT

For mutual consideration, including the mutual covenants and agreements set forth below, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.Subject to the terms, covenants and conditions of this Agreement, the Lease is and shall be subject and subordinate to the lien of the Security Documents and to all present or future advances under the obligations secured thereby and all renewals, amendments, modification, consolidations, replacements and extensions of the secured obligations and the Security Documents, to the full extent of all amounts secured by the Security Documents from time to time.  Said subordination is to have the same force and effect as if the Security Documents and such renewals, modifications, consolidations, replacements and extension thereof had been

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executed, acknowledged, delivered and recorded prior to the Lease, any amendments or modifications thereof and any notice thereof.

2.Lender hereby consents to the Lease and agrees that, if Lender exercises any of its rights under the Security Documents, including an entry by Lender pursuant to the Mortgage or a foreclosure of the Mortgage, Lender shall not join Tenant as a party defendant in any foreclosure action unless such joinder shall be required by law and, subject to the terms of the Lease, shall not terminate the Lease nor disturb Tenant’s right of quiet possession of the Premises and shall recognize Tenant as its tenant under the terms of the Lease so long as pursuant to the then existing provisions thereof the Lease is in full force and effect and Tenant is not in default beyond any applicable notice and grace period of any term, covenant or condition of the Lease.

3.Tenant agrees that, in the event of a foreclosure of the Mortgage by Lender or the acceptance of a deed in lieu of foreclosure by Lender or any other succession of Lender to fee ownership, Tenant will attorn to and recognize Lender as its landlord under the Lease for the remainder of the term of the Lease (including all extension periods which have been or are hereafter exercised) upon all of the same terms and conditions as are set forth in the Lease. Notwithstanding the provisions of this Section 3 to the contrary, if Lender succeeds to the interest of Landlord under the Lease, Lender shall not be:

(a)liable for any act or omission of any prior Landlord (including, without limitation, the then defaulting Landlord) except for defaults which continue after Lender succeeds to the interest of Landlord under the Lease and except for defaults which arise after the date of such succession; or

(b)subject to any defense or offset which Tenant may have against any prior Landlord (including, without limitation, the then defaulting Landlord) that are not provided for in the Lease, except for defenses or offsets which arise after the date Lender succeeds to the interest of Landlord, or

(c)bound by any payment of rent or additional rent which Tenant might have paid for more than one month in advance of the due date under the Lease to any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent received by Lender or made in accordance with the provisions of the Lease, or

(d)accountable for any monies deposited with any prior Landlord (including security deposits), except to the extent such monies are actually received by Lender.

4.As long as the Security Documents shall remain in effect, Tenant shall not seek to terminate the Lease by reason of any act or omission of Landlord (except pursuant to a provision in the Lease which gives Tenant an express right to terminate the Lease) until Tenant shall have given written notice of such act or omission to Lender and, if Lender shall have notified Tenant within ten (10) business days following receipt of such notice of its intention to remedy such act or omission, until a reasonable period of time (not to exceed ten (10) days for

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monetary defaults and not to exceed thirty (30) days for non-monetary defaults unless, for the non-monetary defaults, more than thirty (30) days would be required, using commercially reasonable and diligent efforts, to remedy such act or omission, in which case such time period shall be extended for such additional time as shall be required, using commercially reasonable and diligent efforts, to remedy such act or omission, not to exceed an aggregate of ninety (90) days) shall have elapsed following the giving of such notice, during which period of time Lender shall have the right, but not the obligation, to remedy such act or omission.

5.Any notice, election, communication, request or other document or demand required or permitted under this Agreement shall be in writing and shall be deemed delivered on the earlier to occur of (a) receipt or (b) the date of delivery, refusal or nondelivery indicated on the return receipt, if deposited in a United States Postal Service Depository, postage prepaid, sent certified or registered mail, return receipt requested, or if sent via a recognized commercial overnight courier service providing for a receipt, addressed to Tenant or Lender, as the case may be, at the following addresses:

If to Tenant:

with a copy to:

with a copy to:

If to Lender:

with a copy to:

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6.This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

7.If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to be enforceable, or if such modification is not practicable, such provision shall be deemed deleted from this Agreement, and the other provisions of this Agreement shall remain in full force and effect.

8.Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing executed by the party against which enforcement of the termination, amendment, supplement, waiver or modification is sought.

9.As between Landlord and Tenant, nothing herein expands Tenant’s obligations or limits Tenant’s rights under the Lease.

10.This Agreement shall be construed in accordance with the laws of the State of New York.

11.Each person executing this Agreement on behalf of Lender and Tenant represents that he or she is authorized by Lender and Tenant, respectively, to do so and execution hereof is the binding act of Lender and Tenant enforceable against Lender and Tenant.

12.This Agreement contains the entire agreement between the parties, and any executory or oral agreement hereinbefore or hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it in whole or in part unless such agreement is made after the date hereof and is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.

13.This Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument. The transmission by telecopier of a copy of the signature page from this Agreement executed by the transmitting party, together with instructions that same may be attached to a copy of this Agreement being held by the recipient of such transmission, shall constitute execution and delivery of this Agreement by the transmitting party.

(Signature Page Attached Hereto)

, Lender

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			By:
				Name:
				Title:
					, Tenant
			By:
				Name:
				Title:
CONSENTED TO:
		, Landlord
By:
	Name:
	Title:

E-5

ACKNOWLEDGMENT

To Be Used Within the State of New York:

State of New York	)
	):ss
County of	)

On the           day of                                      in the year 2          , before me, the undersigned, a Notary Public in and for said state, personally appeared                                                       personally known to me or proved to me on the basis or satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

Notary Public

To Be Used Outside of the State of New York:

State of	)
	):ss
County of	)

On the           day of                                      in the year 2         , before me, the undersigned, a Notary Public in and for said state, personally appeared                                                       personally known to me or proved to me on the basis or satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the [place of acknowledgment].

Notary Public

E-6

EXHIBIT A

[Description of Property]

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Exhibit F

SUBORDINATION, NON-DISTURBANCE, RECOGNITION
AND ATTORNMENT AGREEMENT

This Subordination, Non-Disturbance, Recognition and Attornment Agreement (this “Agreement”) is dated as of the                day of        , 2      , between                                  , a                                      , with an address at                                                 (“Ground Lessor”), and                                                 , a                              with an address at                           (“Tenant”).

RECITALS

A.Ground Lessor is (i) the fee owner of certain real property located in the Borough of Manhattan, City, County and State of New York, and more particularly described in Exhibit A attached hereto and made a part hereof (the “Property”), and (ii) the lessor under that certain Ground Lease dated as of December         , 2001 between Ground Lessor and                                           , as lessee (“Landlord”) demising the Property (such lease, as the same may be amended or supplemented from time to time, the “Ground Lease”); recorded in [RECORDING INFORMATION TO BE ADDED].

B.Tenant is the tenant under a certain lease (the “Lease”) dated                              , 2      between Landlord, as landlord and Tenant, as tenant, of the          floor space (the “Premises”) of the building located on the Property as described in the Lease.

C.This Agreement is being entered into pursuant to the provisions of the Lease.

AGREEMENT

For mutual consideration, including the mutual covenants and agreements set forth below, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.Subject to the terms, covenants and conditions of this Agreement, the Lease is and shall be subject and subordinate to the Ground Lease and to any renewals, amendments, modification, supplements, replacements and extensions of the Ground Lease. Said subordination shall have the same force and effect as if the Ground Lease and such renewals, modifications, consolidations, replacements and extensions thereof had been executed, acknowledged, delivered and recorded prior to the Lease and /or any amendments, modifications, renewals or extensions thereof.

F-1

2.Ground Lessor hereby consents to the Lease and agrees that if Ground Lessor exercises any of its rights under the Ground Lease, including an entry by Ground Lessor pursuant to the Ground Lease or termination of the Ground Lease, Ground Lessor shall not join Tenant or any party claiming through or under Tenant, as a party defendant in any action to enforce or terminate the Ground Lease, unless such joinder shall be required by law and, subject to the terms of the Lease, shall not terminate the Lease nor disturb Tenant’s right of quiet possession of the Premises and shall recognize Tenant as its tenant under the terms of the Lease so long as pursuant to the then existing provisions thereof the Lease is in full force and effect and Tenant is not in default beyond any applicable notice and grace period of any term, covenant or condition of the Lease.

3.Tenant agrees that, in the event of a termination of the Ground Lease by Ground Lessor or any other succession of Ground Lessor to the interest of Landlord under the Lease, Tenant will attorn to and recognize Ground Lessor as its landlord under the Lease for the remainder of the term of the Lease (including all extension periods which have been or are hereafter exercised) upon all of the same terms and conditions as are set forth in the Lease. Notwithstanding the provisions of this Section 3 to the contrary, if Ground Lessor succeeds to the interest of Landlord under the Lease, Ground Lessor shall not be:

(a)liable for any act or omission of any prior Landlord (including, without limitation, the then defaulting Landlord) except for defaults which continue after Ground Lessor succeeds to the interest of Landlord under the Lease and except for defaults which arise after the date of such succession; or

(b)subject to any defense or offset which Tenant may have against any prior Landlord (including, without limitation, the then defaulting Landlord) that are not provided for in the Lease, except for defenses or offsets which arise after the date Ground Lessor succeeds to the interest of Landlord, or

(c)bound by any payment of rent or additional rent which Tenant might have paid for more than one month in advance of the due date under the Lease to any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent received by Ground Lessor or made in accordance with the provisions of the Lease, or

(d)accountable for any monies deposited with any prior Landlord (including security deposits), except to the extent such monies are actually received by Ground Lessor.

4.As long as the Ground Lease shall remain in effect, Tenant shall not seek to terminate the Lease by reason of any act or omission of Landlord (except pursuant to an express right to terminate the Lease) until Tenant shall have given written notice of such act or omission to Ground Lessor and, if Ground Lessor shall have notified Tenant within ten (10) business days following receipt of such notice of its intention to remedy such act or omission, until a reasonable period of time (not to exceed ten (10) days for monetary defaults and not to exceed thirty (30)

F-2

days for non-monetary defaults unless, for the non-monetary defaults, more than thirty (30) days would be required, using commercially reasonable and diligent efforts, to remedy such act or omission, in which case such time period shall be extended for such additional time as shall be required, using commercially reasonable and diligent efforts, to remedy such act or omission, not to exceed an aggregate of ninety (90) days) shall have elapsed following the giving of such notice, during which period of time Ground Lessor shall have the right, but not the obligation, to remedy such act or omission.

5.Any notice, election, communication, request or other document or demand required or permitted under this Agreement shall be in writing and shall be deemed delivered on the earlier to occur of (a) receipt or (b) the date of delivery, refusal or nondelivery indicated on the return receipt, if deposited in a United States Postal Service Depository, postage prepaid, sent certified or registered mail, return receipt requested, or if sent via a recognized commercial overnight courier service providing for a receipt, addressed to Tenant or Ground Lessor, as the case may be, at the following addresses:

If to Tenant:

with a copy to:

If to Ground Lessor:

with a copy to:

6.This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

7.If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary

F-3

to be enforceable, or if such modification is not practicable, such provision shall be deemed deleted from this Agreement, and the other provisions of this Agreement shall remain in full force and effect.

8.Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing executed by the party against which enforcement of the termination, amendment, supplement, waiver or modification is sought.

9.As between Landlord and Tenant, nothing herein expands Tenant’s obligations or limits Tenant’s rights under the Lease.

10.This Agreement shall be construed in accordance with the laws of the State of New York.

11.Each person executing this Agreement on behalf of Ground Lessor and Tenant represents that he or she is authorized by Ground Lessor and Tenant, respectively, to do so and execution hereof is the binding act of Ground Lessor and Tenant enforceable against Ground Lessor and Tenant.

12.This Agreement contains the entire agreement between the parties, and any executory or oral agreement hereinbefore or hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it in whole or in part unless such agreement is made after the date hereof and is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.

13.This Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument. The transmission by telecopier of a copy of the signature page from this Agreement executed by the transmitting party, together with instructions that same may be attached to a copy of this Agreement being held by the recipient of such transmission, shall constitute execution and delivery of this Agreement by the transmitting party.

(Signature Page Attached Hereto)
			, Ground Lessor
	By:
		Name:
		Title:
			, Tenant

F-4

			By:
				Name:
				Title:
CONSENTED TO:
		, Landlord
By:
	Name:
	Title:

F-5

ACKNOWLEDGMENT

To Be Used Within the State of New York:

State of New York	)
	):ss
County of	)

On the            day of                           in the year 2       , before me, the undersigned, a Notary Public in and for said state, personally appeared                                                     personally known to me or proved to me on the basis or satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

Notary Public

To Be Used Outside of the State of New York:

State of	)
	):ss
County of	)

On the            day of                           in the year 2       , before me, the undersigned, a Notary Public in and for said state, personally appeared                                                     personally known to me or proved to me on the basis or satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the [place of acknowledgment].

Notary Public

F-6

EXHIBIT A

[Description of Property]

F-7

Exhibit G

Exclusive Use Rights Of Certain Tenants

[To Be Completed, if applicable, upon Lease execution]

G-1

Exhibit H

HVAC Specifications

HVAC systems will maintain the following conditions:

Outdoor Conditions

Summer	Winter
91°F db/76°F wb	5°F db with a 15 mph wind

Indoor Conditions

Occupied Office Areas:	Summer	Winter
	75°F db/50% + 5% RH	72°F db/with humidity control

Ventilation

Outside air ventilation rates for occupied areas will comply with ASHRAE (American Society for Heating Refrigeration and Air Conditioning Energy) 62/89 and will be capable of maintaining 20 cfm per occupant. The outside air to each floor will be varied using CO₂ sensors.

H-1

Exhibit I

Building Standards

I-1

Exhibit J

Cleaning Specifications

INIGHTLY SERVICES

A.Public Areas

1.Maintain public area walls in clean condition. Public areas shall also include elevator lobbies on multiple tenant floors;

2.Vacuum clean all carpets in public areas. If flooring, sweep floors with treated mop to maintain in clean condition throughout the public areas;

3.Inspect and maintain cleanliness of fire hoses, extinguishers and other similar equipment; and

4.Remove finger marks from all doors and elevator cabs.

B.Tenant Office Areas

1.Sweep all uncarpeted floors, using chemical treated dust mop to prevent dust dispersion;

2.Carpet sweep carpeted areas and rugs four (4) nights each week and vacuum once each week, moving light furniture other than desks, file cabinets, etc.;

3.Empty and clean all ashtrays and screen all sand urns;

4.Hand dust and wipe clean with a treated cloth, mitt or duster, all furniture, file cabinets, desk lamps, window sills and convector covers;

5.Move and dust under all desk equipment and phones, replacing and dusting said equipment with approved anti-bacterial cloth;

6.Scour and wash clean all water coolers and fountains;

7.Clean all glass furniture tops;

8.Empty and clean all waste basket and disposal receptacles, and remove waste to designated areas of building. Plastic bag liners replaced as required at no additional cost to Tenant.

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9.Dust all chair rails, trim etc., in normal reach on a weekly basis.

C.Lavatories

1.Scour, wash and disinfect all basins, bowls and urinals with approved germicidal detergent solution;

2.Wash and disinfect both sides of all toilet seats with approved germicidal detergent solution;

3.Wash and polish with a non-acid polish all mirrors, pewter shelves, bridgework and enamel surfaces etc., including flushmeters, piping and toilet seat hinges;

4.Hand dust and wash all partitions, dispensers and receptacles;

5.Sweep and wash all lavatory flooring with an approved disinfectant;

6.Empty and clean all paper towels, sanitary disposal receptacles, transporting waste to the designated location;

7.Fill all toilet holders, paper towel dispensers, sanitary napkin, soap dispensers and sanitary toilet seat covers; and

8.Remove graffiti.

II.WEEKLY SERVICES

1.Hand dust all louvers and ventilating louvers in Premises; and

2.Remove all finger marks from all painted surfaces near light switches, entrance doors, and the like in Premises.

Tenant Office Area:

1.Dust Venetian blinds; and

2.Dust surfaces not reached in nightly cleaning.

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MONTHLY OR QUARTERLY CLEANING (as noted below)

A.Public Areas

1.Wash and wax all floors in public corridors. Public corridors shall also include elevator lobbies on multiple-tenant floor (monthly)

B.Tenant Office Area

1.Remove all smudges, fingermarks, and other marks from painted surfaces on doors, and areas around electrical light walls switches and doorjambs (monthly);

2.Hand dust all pictures, frames, charts, graphs, and similar wall hangings not reached in nightly or weekly cleaning (quarterly); and

3.Dust air-conditioning louvers, grills, etc., not reached in nightly cleaning (quarterly).

C.Lavatories

1.Machine scrub flooring (monthly);

2.Hand dust, clean and wash all tile walls and apply disinfecting solutions (monthly);

3.High dust lights, walls, grilles, etc.; (annually) and

4.Dust all lighting fixtures (quarterly).

IVPEST CONTROL

1.Pest control treatment in all public areas, lavatories on multi-tenant floors, and service sink rooms will be done not less than once a month or more frequently, if reasonably necessary in order to maintain a sanitary condition. All service will be rendered by operators licensed by Board of Health of the City of New York.

V.WINDOW CLEANING

1.Wash all exterior windows on the outside and inside from the main floor to roof three (3) times per year. Landlord shall submit a report or notice from its window cleaning contractor confirming that such window washing has been completed.

General

•Dust closets, shelving and coat racks (quarterly),

J-3

•Dust exterior of lighting fixtures (annually).

•Police all public stairwells throughout the entire building and keep in clean condition, mop as necessary.

Lavatories/Nightly

•Report all mechanical deficiencies, i.e., dripping faucets, etc., to building manager.

Building Service Areas

•Keep janitor closets and adjacent areas in the Premises in a clean and orderly condition.

Duties of Day Matron In Base Building and Core Lavatories

•During Business Hours, police all core lavatories once each day.

•Fill toilet tissue dispensers with toilet issue.

•Fill paper towel dispenser with paper towels.

•Fill sanitary napkins dispensers with sanitary napkins.

•Fill sanitary toilet seat cover dispensers with paper covers.

Timing and Frequency of Services

On those days in which cleaning service is provided, nightly cleaning services in the Premises will be performed only between the hours of 6pm and 6am (except with respect to services required to be performed at other times).

Supervision

A competent supervisor will be assigned to the Premises during days, nights and weekends as required. The night supervisor shall be required to verify that all required work has been completed, all lights within the Premises are turned off and all doors are locked.

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Exhibit K

Form of Guaranty

THIS GUARANTY (“Guaranty”) is made and entered into as of the            day of                       , 2    , by THE NEW YORK TIMES COMPANY, a New York corporation, whose address is                                                   , Attention:                                            (“Guarantor”) “), in favor of [FC UNIT OWNER], a                                                , whose address is One MetroTech Center North, Brooklyn, New York 11201, Attention: General Counsel (“Landlord”).

W I T N E S S E T H:

WHEREAS:

A.Concurrently with execution and delivery of this Guaranty, Landlord and                           (“Tenant”) have entered into a Lease (the “Lease”) pursuant to which Landlord has agreed to lease to Tenant, and Tenant has agreed to lease from Landlord, the “Premises”, as such term is defined in the Lease.

B.Guarantor has an interest in Tenant and has agreed to guaranty the “Guaranteed Obligations” as such term is hereinafter defined.

NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Guarantor, Guarantor hereby agrees as follows (all capitalized terms used herein without definition having the meanings ascribed to them in the Lease):

1.(a)Guarantor, for itself, its successors and assigns, hereby primarily, unconditionally, absolutely and irrevocably guarantees the full and prompt payment of an amount equal to one years’ Fixed Rent and any Enforcement Costs (as hereinafter defined in Paragraph 19 hereof).

(b)Guarantor represents and warrants that, as of the date of this Guaranty, Guarantor has a credit rating of   “A-minus”(1) or better as determined by the “Rating Agency” (as such term is defined in the Declaration).

2.Guarantor guarantees the Guaranteed Obligations regardless of any law, statute, rule, regulation, decree or order now or hereafter in effect in any jurisdiction affecting or purporting to affect in any manner any of the terms or the rights or remedies of Landlord with

(1)Substitute equivalent rating to “A-minus” if Rating Agency is no longer Standard & Poors.

K-1

respect to the Guaranteed Obligations. The obligations and liabilities of Guarantor hereunder shall be direct and primary and not indirect or secondary, and shall be absolute, unconditional and irrevocable. Guarantor’s obligations hereunder shall not be deemed exonerated, discharged or satisfied, except as provided in Section 16 hereof

3.If Guarantor fails to promptly pay the Guaranteed Obligations in accordance with this Guaranty, Landlord shall, from time-to-time, and without first attempting to require performance by Tenant, have the right to bring any action to collect the Guaranteed Obligations. Guarantor shall indemnify and hold Landlord free and harmless from and against any and all loss, damage, cost, expense, injury, or liability Landlord may suffer or incur in connection with the exercise of its rights under this Guaranty or the payment of the Guaranteed Obligations.

4.All of the remedies set forth herein and/or provided for in the Lease or at law or equity shall be equally available to Landlord and the choice of one such alternative over another shall not be subject to question or challenge by Guarantor or any other person, nor shall any such choice be asserted as a defense, setoff, or failure to mitigate damages in any action, proceeding, or counteraction by Landlord to recover or seeking any other remedy under this Guaranty, nor shall such choice preclude Landlord from subsequently electing to exercise a different remedy. The parties have agreed to the alternative remedies provided herein in part because they recognize that the choice of remedies in the event of a default hereunder will necessarily be and should properly be a matter of good-faith business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by Landlord at the lowest cost to Tenant and/or Guarantor. It is the intention of the parties that such good-faith choice by Landlord be given conclusive effect regardless of such subsequent developments.

5.Guarantor hereby waives (i) notice of acceptance of this Guaranty by Landlord and any and all notices and demands of every kind which may be required to be given by any statute, rule or law, (ii) any defense, right of set-off or other claim which any Guarantor may have against Landlord, except for claims of actual payment or actual performance (iii) presentment for payment, demand for payment, notice of nonpayment or dishonor, protest and notice of protest, diligence in collection and any and all formalities which otherwise might be legally required to charge Guarantor with liability, and (iv) any failure by Landlord to inform Guarantor of any facts Landlord may now or hereafter know about Tenant or the terms of the Lease, it being understood and agreed that Landlord has no duty so to inform and that Guarantor is fully responsible for being and remaining informed by Tenant of all such circumstances bearing on the risk of nonperformance of the Tenant’s obligation under the Lease. Guarantor agrees that any claims which Guarantor may have against Tenant must be brought in a separate action, which action shall not be consolidated with any action brought by Landlord, unless such consolidation is required by law. Landlord shall have no obligation to disclose or discuss with Guarantor its assessment of the financial condition of Tenant. Guarantor acknowledges that no representations of any kind whatsoever have been made to it by Landlord. No modification or waiver of any of the provisions of this Guaranty shall be binding upon Landlord except as expressly set forth in a writing duly signed and delivered on behalf of Landlord.

K-2

6.Guarantor further agrees that Guarantor’s liability as guarantor shall in nowise be impaired or affected by any extensions which may be made from time to time, with or without the knowledge or consent of Guarantor, of the time for performance by Tenant under the Lease or by any forbearance or delay in enforcing same, or by way of waiver by Landlord under the Lease. Landlord’s failure or election not to pursue any other remedies it may have against Tenant, Guarantor, or by virtue of any change or modification in the Lease or by the acceptance by Landlord of any additional security or any increase, substitution or change therein, or by the release by Landlord of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Obligations, even though Landlord might lawfully have elected to apply such payments to any part or all of the Guaranteed Obligations, it being the intent hereof that Guarantor shall remain liable as principal for payment of the Guaranteed Obligations until the Guaranteed Obligations have been paid in full and notwithstanding any act or thing which might otherwise operate as legal or equitable discharge of a surety. Guarantor further understands and agrees that Landlord may at any time enter into agreements with Tenant to amend and modify the Lease and may waive or release any provision or provisions of the Lease, and, with reference to such instruments, may make and enter into any such amendments or agreements as the parties thereto may deem proper and desirable, and may apply any monies received by Landlord, regardless of the purpose for which the same was given to Landlord to cure any default or to apply on account of the Guaranteed Obligations, in such order and priority as Landlord, in its sole discretion, may require without in any manner impairing or affecting this Guaranty or any of Landlord’s rights hereunder or Guarantor’s obligations hereunder.

7.Guarantor hereby acknowledges having received, reviewed and understood a true, correct and complete copy of the Lease. Guarantor acknowledges that this Guaranty is in effect and binding without reference to whether this Guaranty is signed by any other person or entity, that possession of this Guaranty by Landlord shall be conclusive evidence of due delivery hereof by Guarantor and acceptance hereof by Landlord, and that this Guaranty shall continue in full force and effect as to the Guaranteed Obligations.

8.Guarantor hereby consents and agrees that, without any further notice to, or consent or agreement of, Guarantor (a) Landlord make take, hold, exchange, enforce, waive, surrender and/or release other guarantees, collateral or security which further secure(s) payment and/or performance of this Guaranty or the Lease, and (b) that any of the obligations, terms, covenants and conditions contained in the Lease (including, but not limited to, Tenant’s obligations thereunder) may be renewed, altered, extended, changed, modified, supplemented or released at Landlord’s written direction, or with Landlord’s written consent, without in any manner affecting this Guaranty or releasing Guarantor herefrom, and without the further consent of or notice to Guarantor, and Guarantor shall continue to be liable hereunder to pay the Guaranteed Obligations pursuant hereto notwithstanding any such renewal, alteration, extension, change, modification, supplement or release, or the taking, holding, exchanging, enforcing, waiving, surrender and/or release of such other guarantees, collateral or security. Landlord may perfect or fail to perfect, or to continue the perfection of, any lien or security interest without

K-3

notice to, consideration to or the consent of Guarantor, and without in any way releasing, diminishing or affecting the absolute nature of Guarantor’s obligations and liabilities hereunder.

9.Guarantor hereby waives any and all legal requirements that Landlord, or its successors or assigns, must institute any action or proceeding at law or in equity, or obtain any judgment, or exhaust their rights, remedies and/or recourses against Tenant or any other person or entity, or with respect to any security for the obligations hereby guaranteed, as a condition precedent to making any demand on, bringing an action against, or obtaining or enforcing any judgment against, Guarantor upon this Guaranty, and/or that it join Tenant or any other person or entity as a party to any such action. All remedies afforded to Landlord, and its successors or assigns, by reason of this Guaranty, are separate and cumulative remedies, and it is agreed that no one of such remedies, whether or not exercised by Landlord, or its successors or assigns, shall be deemed in exclusion of any of the other remedies available to Landlord or its successors or assigns, at law, in equity, by statute, under contract, hereunder or otherwise, and shall in no way limit or prejudice any such other remedies which Landlord, or its successors or assigns, may have. Mere delay or failure to act shall not preclude the exercise or enforcement of any rights and remedies available to Landlord. Guarantor further waives any requirement that Landlord demand or seek payment or performance by Tenant or by any other person or entity of the amounts owing or the covenants to be performed under the Lease, whether hereby guaranteed or not, as a condition precedent to bringing any action against Guarantor upon this Guaranty, it being agreed that a failure to comply with or perform the obligations, terms, covenants and conditions herein guaranteed shall, without further act, make Guarantor liable as herein set forth.

10.This Guaranty is an absolute, unconditional, present and continuing guaranty of performance of the Guaranteed Obligations. Guarantor hereby expressly waives all defenses of Tenant pertaining to the Guaranteed Obligations, except for the defense of discharge by payment in full, and except for such defenses as would constitute a defense to Tenant’s obligation under the Lease. Guarantor shall not be released (a) by any act, omission or thing which might, but for this provision of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, (b) by any defense based upon any statute or rule of law which provides that the obligations of a surety or guarantor must be neither larger in amount nor in other respects more burdensome than those of a principal, or (c) by reason of any waiver, extension, renewal, modification, forbearance or delay by Landlord, or its successors or assigns, or its failure to proceed promptly or otherwise, and Guarantor hereby expressly waives and surrenders any defense to liability hereunder based upon the foregoing acts, omissions, things, statutes, rules, waivers, extensions, modifications, forbearances, delays, obligations, agreements, or any of them, except the defense of payment in full. Guarantor also waives any defense arising by virtue of any disability, insolvency, bankruptcy, defect in formation or continuation, lack of authority or power, death, insanity, incompetence, liquidation or dissolution of, or any cessation or limitation of liability from any cause (other than full payment) of, Tenant, any member or agent thereof, or any other surety, comaker, endorser or guarantor. No change in the ownership of Tenant or in Tenant’s members shall affect or change the terms of this Guaranty or in any way change or reduce the liability of Guarantor hereunder. This Guaranty shall continue to be effective or be reinstated (as the case may be) if at any time payment of all or any part of any sum payable pursuant to the Lease or

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hereunder is rescinded or otherwise required to be returned upon the insolvency, bankruptcy, dissolution, liquidation, or reorganization of Tenant, or upon or as a result of the appointment of a receiver, intervener, custodian or conservator of or trustee or similar officer for, or any substantial part of its property, or otherwise, all as though such payment had not been made, regardless of whether the recipient thereof contested the order requiring the return of such payment.

11.Guarantor hereby expressly agrees that the liabilities and obligations of Guarantor under this Guaranty shall not in any way be impaired or otherwise affected by the institution by or against Tenant or any other person or entity of any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or any other similar proceedings for relief under any bankruptcy law or similar law for the relief of debtors and that any discharge of any of the obligations and/or liabilities hereby guaranteed pursuant to any such bankruptcy or similar law or other law shall not diminish, discharge or otherwise affect in any way the obligations of Guarantor under this Guaranty, and that upon the institution of any of the above actions, such obligations shall be enforceable against Guarantor.

12.In the event that Guarantor shall advance or become obligated to pay any sums or incurs any costs or expenses hereunder, or in the event that for any reason Tenant is now or shall hereafter become indebted or obligated to Guarantor, the amount of such sum, costs, expenses and such indebtedness or obligation shall at all times be subordinated as to lien, time of payment and in all other respects to the amounts owing to Landlord hereunder. Notwithstanding any payment or payments made, or costs or expenses incurred, by Guarantor hereunder, Guarantor shall not be entitled to be subrogated to any of the rights of Landlord against Tenant or any other guarantor or any collateral security or guaranty held by Landlord for the payment of the guaranteed obligation, nor shall Guarantor seek or be entitled to seek any contribution or reimbursement from Tenant or any other guarantor in respect of payments made, or costs or expenses incurred, by Guarantor hereunder unless and until the Guaranteed Obligations and any Enforcement Costs shall have been paid in full. Except as otherwise set forth herein, Guarantor shall have no right to participate in any way in the right, title or interest of Landlord in the Premises, or to receive payments from Tenant upon any indebtedness or obligation, notwithstanding any payments made, or costs or expenses incurred, by Guarantor hereunder, all rights of reimbursement, indemnification, subrogation and participation being hereby expressly waived and released with respect to any such payments, costs and expenses. Guarantor agrees that, following any default or event of default under the Lease, and until the Guaranteed Obligations shall have been paid in full, Guarantor will not accept any payment or satisfaction of any kind of any indebtedness or obligation of Tenant to Guarantor. Further, as long as Guarantor remains liable hereunder, Guarantor agrees that, if, following any default or event of default under the Lease, Guarantor should receive any payment, satisfaction or security for any indebtedness or obligation of Tenant to Guarantor, the same shall be delivered to Landlord in the form received, endorsed or assigned as may be appropriate, for application on account of or as security for the Guaranteed Obligations and, until so delivered, shall be held in trust for Landlord as security for said Guaranteed Obligations. In addition, at any time, in the event of any receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization or arrangement with creditors (whether or not pursuant to bankruptcy laws), sale of all or substantially all of the assets, dissolution,

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liquidation or any other marshaling of the assets and liabilities of Tenant, Landlord shall be entitled to performance in full of the obligations hereby guaranteed prior to the payment of all or any part of any indebtedness of Tenant to Guarantor, and Guarantor will, at the request of Landlord, file any claim, proof of claim or other instrument of similar character necessary to enforce the obligations of Tenant in respect of such indebtedness and hereby assigns to Landlord, and will hold in trust for Landlord, any and all monies, dividends or other assets received in any such proceeding on account of such obligations, unless and until the Guaranteed Obligations shall be paid in full. In the event Guarantor fails to pay the Guaranteed Obligations in accordance with this Guaranty, it shall pay and deliver said monies, dividends or other assets to Landlord.

13.Guarantor hereby warrants and represents unto Landlord that

(a)there are no actions, suits or proceedings pending or, to the knowledge of Guarantor, threatened against or affecting Guarantor, which will have a material adverse impact upon Guarantor’s ability to perform its obligations hereunder, or involving the validity or enforceability of this Guaranty, at law or in equity; and Guarantor is not in default under any order, writ, injunction, decree or demand of any court or any administrative body having jurisdiction over Guarantor;

(b)any and all balance sheets, net worth statements, income and expense statements, cash flow statements and other financial statements of, and other financial statements and data relating to, Guarantor previously or hereafter delivered to Landlord fairly and accurately present, or will fairly and accurately present, the financial condition of Guarantor as of the dates thereof, since the dates of those most recently delivered, there has been no material adverse change in the financial condition of Guarantor; Guarantor has disclosed all events, conditions, and facts known to Guarantor which are more likely than not to have a material adverse effect on the financial condition of Guarantor; and neither this Guaranty nor any document, financial statement, financial or credit information, certificate or statement relating to Guarantor and referred to herein, or furnished to Landlord by Guarantor contains, or will contain, any untrue statement of a material fact or omits, or will omit, a material fact;

(c)Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of New York, and has all power, authority, permits, consents, authorizations and licenses necessary to carry on its business, and to execute, deliver and perform this Guaranty and any other documents or instruments in connection therewith which it is required to execute; all resolutions of the board of directors of Guarantor necessary to authorize the execution, delivery and performance of this Guaranty and such other documents or instruments have been duly adopted and are in full force and effect; and this Guaranty and such other documents or instruments have been duly authorized, executed and delivered by and on behalf of Guarantor so as to constitute this Guaranty and such other documents or instruments the valid and binding obligation of Guarantor, enforceable in accordance with their terms; and

(d)The execution, delivery, and performance by Guarantor of this Guaranty does not and will not contravene or conflict with (i) any law, order, rule, regulation, writ,

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injunction or decree now in effect of any government, governmental instrumentality court having jurisdiction over Guarantor, or (ii) any contractual restriction binding on or affecting Guarantor or Guarantor’s property or assets which may adversely affect Guarantor’s ability to fulfill its obligations under this Guaranty.

14.The validity, construction and enforceability of this Guaranty shall be governed by the internal laws of the State of New York, without giving effect to conflict of laws principles thereof. Whenever possible, each provision of this Guaranty and any other statement, instrument or transaction contemplated hereby or relating hereto shall be interpreted in such manner as to be effective and valid under such applicable law, but, if any provision of this Guaranty or any other statement, instrument or transaction contemplated hereby or relating hereto or any right or remedy hereby guaranteed or provided shall be held to be unenforceable, prohibited or invalid under applicable law as to any person, party or entity or under any circumstances, for any reason, such provision, right or remedy shall be ineffective only to the extent of such unenforceability, prohibition or invalidity, and only with respect to such person, party, entity or circumstances, without invalidating or limiting or preventing the enforcement of the remainder of such provision, right or remedy, or the remaining provisions of this Guaranty, or any other right, remedy, statement, instrument or transaction contemplated hereby or relating hereto, as to any other person, party or entity or any other circumstances.

15.Notwithstanding any other provision or provisions herein contained, no provision of this Guaranty shall require or permit the collection from Guarantor of interest in excess of the maximum rate or amount, if any, which Guarantor may be required or permitted to pay by any applicable law.

16.This Guaranty shall remain in full force and effect until payment of the Guaranteed Obligations in full, and thereafter, this Guaranty shall be discharged, null, void and of no further force and effect. Upon request by Guarantor, Landlord will deliver to Guarantor written confirmation of the discharge of the obligations and liabilities of Guarantor hereunder, and Landlord will return to Guarantor the original counterpart of this Guaranty. This instrument shall inure to the benefit of Landlord and its successors, assigns, and shall bind Guarantor and Guarantor’s successors and assigns. The obligations of Guarantor under this Guaranty shall be enforceable in all events against Guarantor, its successors and assigns, and each of them.

17.This Guaranty may be waived, modified, amended, terminated or discharged only explicitly in a writing signed by Landlord and Guarantor. A waiver so signed shall be effective only in the specific instance and for the specific purpose given.

18.Any notice, demand or request by Landlord to Guarantor or from Guarantor to Landlord shall be in writing and shall be deemed to have been duly given or made if either delivered personally or if mailed by certified or registered mail addressed to the address set forth below(or at the correct address of any assignee of Landlord), except that mailed written notices shall not be deemed given or served until three (3) days after the date of mailing thereof

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(a)If to Guarantor:

The New York Times Company

[                                                   

]

Attention:

with a copy to:

Swidler Berlin Shereff Friedman, LLP

405 Lexington Avenue

New York, New York 10174

Attention: Martin D. Polevoy, Esq.

(b)If to Landlord:

[                                                 ]

One MetroTech Center North

Brooklyn, New York 11201

Attention: General Counsel

with a copy to:

Kelley Drye & Warren LLP

101 Park Avenue

NewYork, NewYork 10178

Attention: James J. Kirk, Esq.

19.If. (i) this Guaranty is placed in the hands of an attorney for collection or is collected through any legal proceeding; (ii) an attorney is retained to represent Landlord in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors’ rights and involving a claim under this Guaranty; (iii) an attorney is retained to provide advice or other representation with respect to this Guaranty; or (iv) an attorney is retained to represent Landlord in any proceedings whatsoever in connection with this Guaranty, then each Guarantor shall pay to Landlord upon demand all attorney’s fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, expenses of foreclosure, title insurance premiums, survey costs, minutes of foreclosure, and all other costs and expenses incurred in connection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other amounts due hereunder, regardless of whether all or a portion of such Enforcement Costs are incurred in a single proceeding brought to enforce this Guaranty.

20.Guarantor hereby irrevocably submits to personal jurisdiction in the state of New York, City and County of New York for the enforcement of this Guaranty and waives any and all personal rights to object to such jurisdiction for the purposes of litigation to enforce this

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Guaranty. Guarantor hereby consents to the jurisdiction of either any court in such city, county and state or (in a case involving diversity of citizenship) the United States District Court located there, in any action, suit, or proceeding which Landlord may at any time wish to file in connection with this guaranty or any related matter. Guarantor hereby agrees that an action, suit, or proceeding to enforce this Guaranty may be brought in any state or federal court therein located and hereby waives any objection which such guarantor may have to the laying of the venue of any such action, suit, or proceeding in any such court; provided, however, that the provisions of this paragraph shall not be deemed to preclude Landlord from filing any such action, suit, or proceeding in any other appropriate forum.

21.This Guaranty may be executed in any number of duplicate originals and each such duplicate original shall be deemed to constitute but one and the same instrument. Any signature page of this Guaranty may be detached from any duplicate original of this Guaranty without impairing the legal effect of any signatures thereon and may be attached to another duplicate original of this Guaranty identical in form hereto but having attached to it one or more additional signature pages.

22.Guarantor and Landlord hereby waive any right to a trial by jury in any action or proceeding to enforce or defend any right under this Guaranty or relating thereto or arising from the relationship which is the subject of this Guaranty and agree that any such action or proceeding shall be tried before a court and not before a jury.

Dated:
	THE NEW YORK TIMES COMPANY
	By:
		Name:
		Title:

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Exhibit L

Form of Confidentiality Agreement

CONFIDENTIALITY AGREEMENT

THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made and entered into as of the          day of                  , 2      , by                                  (the “Landlord”) and                                                                    (“Tenant”).

RECITALS:

1.Landlord and Tenant are parties to a lease agreement dated as of                               , 2      (the “Lease”); and

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2.Pursuant to Section 3.03(d) of the Lease, Tenant’s Representative has the right to examine Landlord’s books and records relevant to any Landlord’s Statement delivered to Tenant (hereinafter collectively called the “Confidential Information”), and

3.Tenant is exercising its rights to examine the Confidential Information in connection with its review of the Landlord’s Statement given to Tenant on                           , 2        .

NOW, THEREFORE, in consideration of the mutual premises herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, it is hereby agreed as follows:

(1)Definitions. Capitalized terms used in this Agreement and not otherwise defined shall have the meanings set forth in the Lease.

(2)Obligations of Te nant. Tenant acknowledges and agrees that the Confidential Information is proprietary to Landlord. In consideration of providing Tenant with access to the Confidential Information, Tenant agrees to treat the Confidential Information in confidence by complying (and causing compliance therewith by Tenant’s attorneys, employees, agents and other representatives) with the following:

(a)To use the Confidential Information for the sole purpose of its examination of Landlord’s Statement as provided in Section 3.03(d) of the Lease;

(b)Not to disclose the Confidential Information to persons who are not in the employ of Tenant, other than its accountants, attorneys and other representatives as necessary to accomplish the purpose described in subsection (a) above; and

(c)To limit dissemination of the Confidential Information to only those employees who have a need to know to perform the tasks set forth in subsection (a) above.

(3)Excep tion to Restrictions. The obligations of Tenant provided for in Paragraph 2 above shall not apply to any Confidential Information:

(a)which was known to the public at the time of its receipt by Tenant; or

(b)which Tenant lawfully obtains from a third party; or

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(c)which is not under an obligation of secrecy or confidentiality to Landlord; or

(d)with respect to which Tenant is compelled by law to disclose.

5.Miscellaneous.

(a)This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

(b)If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to be enforceable, or if such modification is not practicable, such provision shall be deemed deleted from this Agreement, and the other provisions of this Agreement shall remain in full force and effect.

(c)Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing executed by the party against which enforcement of the termination, amendment, supplement, waiver or modification is sought.

(d)As between Landlord and Tenant, nothing hereir expands Tenant’s obligations or limits Tenant’s rights under the Lease.

(e)This Agreement shall be construed in accordance with the laws of the State of New York.

(f)Each person executing this Agreement on behalf of Landlord and Tenant represents that he or she is authorized by Landlord and Tenant, respectively, to do so and execution hereof is the binding act of Landlord and Tenant enforceable against Landlord and Tenant.

(g)This Agreement contains the entire agreement between the parties, and any executory or oral agreement hereinbefore or hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it in whole or in part unless such agreement is made after the date hereof and is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.

(h)This Agreement may be executed in any number of counterparts, each of which shall, when executed, be deemed to be an original and all of which shall be deemed to be one and the same instrument. The transmission by telecopier of a copy of the signature page from this Agreement executed by the transmitting party, together with instructions that same may be

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attached to a copy of this Agreement being held by the recipient of such transmission, shall constitute execution and delivery of this Agreement by the transmitting party.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

		, Tenant
By:
	Name:
	Title:
		, Landlord
By:
	Name:
	Title:

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Exhibit M

(1)Electrical - The entire electrical distribution system on the floor of the Premises from the main disconnect switch at the switchboard serving the floor of the Premises;

(2)HVAC. - (w) The air handling unit located on the floor of the Premises and its attendant devices; (x) the ceiling ductwork distribution system on the floor of the Premises; (y) the chilled water coil system located on the floor of the Premises which services the floor’s air handler; and (z) the entire steam distribution system on the floor of the Premises from the connection with the Building’s vertical steam conduits and risers;

(3)Water/Plumbing - The entire branch plumbing and sanitary distribution systems on the floor of the Premises from the connection with the Building’s vertical water and waste conduits and risers to the public bathrooms and public drinking fountains located on the floor of the Premises;

(4)Fire Safety - (x) The entire sprinklering system located within the ceiling and walls of the floor of the Premises from the connection with the Building’s vertical sprinklering conduits and risers; and (y) individual fire alarm devices located on the floor of the Premises.

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EXHIBIT Q

Second Mortgage Lien Documents

MODIFICATION OF SUBSTITUTE EXTENSION LOAN NOTE

$ As of              , 200  

MODIFICATION OF SUBSTITUTE EXTENSION LOAN NOTE made this       day of            2004, by and between FC LION LLC, a New York limited liability company having an address at                                                (hereinafter called “Borrower”) and [NYTC ENTITY], a New York                      having an address at 229 West 43^rd Street, New York, New York 10036 hereinafter called (“Lender”).

WHEREAS, Lender is the holder of the note listed in Exhibit A annexed hereto and made apart hereof (hereinafter called the “Original Note”);

WHEREAS, Borrower confirms that the principal amount outstanding under the Original Note is $      and that there are no offsets, advances, setoffs or counterclaims against payment of said amount; and

WHEREAS, Borrower and Lender desire to modify the terms of the Original Note as hereinafter set forth, and as so modified, to constitute a restatement in full of the Original Note, which shall hereinafter be deemed to be superseded by the “Note” (hereinafter defined),

NOW, THEREFORE, Borrower and Lender agree that the Original Note constitutes an indebtedness in the principal amount of $        (hereinafter called the “Principal Indebtedness” with interest payable as hereinafter set forth.

FOR VALUE RECEIVED, without grace, except as expressly provided for herein and in the Mortgage, Borrower does hereby covenant and promise to pay to the order of Lender at 229 West 43^rd Street, New York, New York 10036 or at such other place as Lender may designate to Borrower in writing from time to time, in legal tender of the United States, the principal sum of            and NO/100 DOLLARS ($            ) (hereinafter called the “Principal Indebtedness”) together with interest on the unpaid principal balance (hereinafter called the “Principal Balance”) at a floating rate of interest (hereinafter called the “Interest Rate”) equal to one (1%) percent per annum above the rate of interest payable from time to time with respect to that certain [Construction Loan Note or Bridge Loan Note, as applicable] made by Borrower to                    dated                    , from the date of this Extension Loan Note (hereinafter called the “Note”) until the Principal Indebtedness shall be fully paid in installments as follows:

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(a)            Commencing on the first day of                       , 200   and continuing on the first day of each succeeding month thereafter (each such date is hereinafter called an (“Installment Day”) until the earlier of (x) the Installment Day immediately prior to the Maturity Date (hereinafter defined) or (y) the maturity date whether by acceleration or otherwise of the [Construction Loan Note or Bridge Loan Note, as applicable], monthly payments of interest only on the Principal Balance in arrears at the Interest Rate, and

(b)            On , 200    (hereinafter called the “Maturity Date”) [5 years from substantial completion of Core and Shell] the Principal Balance with all accrued and unpaid interest thereon shall be due and payable.

Notwithstanding the foregoing, (i) if the unpaid Principal Balance, together with accrued and unpaid interest thereon is not paid when due, whether on the Maturity Date or any earlier date upon which such sum is due (by acceleration or otherwise), or (ii) upon the occurrence of any “Event of Default” (as defined in the “Mortgage” (hereinafter defined)), the Principal Balance shall thereafter bear interest at a rate equal to the lower of (x) 15% per annum (hereinafter called the “Involuntary Rate”) or (y) the “Maximum Rate” (as hereinafter defined).

Interest on this Note shall be computed on the basis of a 360-day year composed of twelve 30-day months, and only on the Principal Balance.

This Note is secured by a Substitute Extension Loan Mortgage and Security Agreement (Leasehold) made by Borrower as of the date hereof (hereinafter called the “Mortgage”) encumbering leasehold interests in certain property located at [The New York Times Building Condominium, Units            ], City of New York, County of New York, State of New York (hereinafter called the “Premises”), which Mortgage specifies various defaults upon the happening of which all sums owing on this Note may be declared immediately due and payable.

From time to time, without affecting the obligation of Borrower or its successors or assigns to pay the Principal Balance and observe the covenants of the Borrower contained herein, without affecting the guaranty of any person, corporation, partnership or other entity for payment of the Principal Balance of this Note, without giving notice to or obtaining the consent of Borrower its successors or assigns or guarantors and without liability on the part of the Lender, Lender may, at its option, extend the time for payment of the Principal Balance or any part thereof, reduce the payments thereon, release anyone liable on any of the Principal Balance, accept a renewal of this Note, modify the terms and time of payment of the Principal Balance, join in any extension or subordination agreement, release any security given heretofore, take or release other or additional security, and agree in writing with Borrower to modify the rate of interest or period of amortization of this Note or change the amount of the monthly installments payable hereunder.

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Prepayment

Borrower shall have the right to prepay the Principal Balance of the Mortgage, in whole or in part, without premium or penalty at any time upon not less than ten (10) days prior written notice to Lender.

Waivers

Borrower hereby waives presentment and demand for payment, notice of dishonor, protest and notice of protest of this Note and agrees to pay all costs of collection when incurred, including, without limitation, reasonable attorneys’ fees and disbursements (which costs may be added to the amount due under this Note, be receivable therewith) and to perform and comply with each of the terms, covenants and provisions contained in this Note, the Mortgage and the Assignment of Leases and Rents made by Borrower and given to Lender of even dated herewith (hereinafter, called the “Assignment of Leases”) on the part of Borrower to be observed or performed.

No Release

No release of any security for: (i) the Principal Balance, (ii) interest accrued and unpaid thereon and (iii) other sums due under this Note, the Mortgage and the Assignment of Leases (hereinafter collectively called the “Debt”) or extension of time for payment of this Note, or any installment thereof, and no alteration, amendment or waiver of any provision of this Note, the Mortgage or the Assignment of Leases made by agreement between Lender and any other person or party shall release, discharge, modify, change or affect the liability of Borrower under this Note, the Mortgage or the Assignment of Leases. The right to plead any and all statutes of limitations as a defense to any demand on this Note, or any agreement to pay the same, or any demand secured by the Mortgage, or any and all obligations and liabilities arising out of or in connection with this Note or in the Mortgage, is expressly waived by the Borrower and all guarantors, co-signers or endorsers to the fullest extent permitted by law.

Writings

This Note may not be changed orally, but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.

Event of Default

It is hereby expressly agreed that the entire Debt shall, then or at any time thereafter, without notice except as provided in the Mortgage, become immediately due and payable at the option of Lender on the happening of any Event of Default (as defined in the Mortgage) and the Mortgage may be foreclosed. Failure to exercise such option, or any other rights Lender may be entitled to in the event of any such Event of Default, shall not constitute a

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waiver of the right to exercise such option or any other rights in the event of any subsequent Event of Default, whether of the same or different nature.

Late Charge

If any sum payable under this Note (other than principal and interest payments on the Maturity Date or any earlier date upon which the Principal Balance is due by acceleration or otherwise) is not paid within ten (10) days of its due date, Borrower shall pay upon demand a late payment charge of four cents ($.04) for each dollar ($1) so overdue to defray the expenses incurred by Lender in handling and processing such delinquent payment, and such amount shall be secured by the Mortgage. A late charge shall not be imposed from and after the date upon which the Involuntary Rate becomes effective.

Involuntary Rate

In addition to any late payment charge which may be due under this Note, from and after the happening of a default under this Note or the Mortgage, or the declaration that the Debt is immediately due and payable by Lender pursuant to the provisions of this Note or the Mortgage, or if the Debt is not paid in full on the Maturity Date, Borrower shall thereafter pay interest on the Principal Balance from the date of any of such events, as the case may be, until the date the Principal Balance is paid in full at the Involuntary Rate or the Maximum Rate, whichever is the lesser, provided that there shall be no automatic reduction to the Maximum Rate as to any Borrower hereof barred by law from availing itself in any action or proceeding of the defense of usury or any Borrower barred or exempted from the operation of any law limiting the amount of interest that may be paid for the loan or use of money or in the event this transaction, because of its amount or purpose or for any other reason, is exempt from the operation of any statute limiting the amount of interest that may be paid for the loan or use of money.

Notices

All notices, demands, request, consents and other communications which are required or permitted to be given under this Note shall be in writing and shall be sufficiently given when given as set forth in the Mortgage.

Applicable Law

This Note is to be construed and enforced in accordance with the laws of the State of New York.

Maximum Rate

In the event the interest provisions hereof or any exactions provided for herein or in the Mortgage, the Assignment of Leases, or any other instrument(s) securing this Note shall

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result, because of reduction of principal or for any reason at any time during the life of the loan, in an effective rate of interest which, for any month, transcends the limit of the usury or any other law applicable to the loan evidenced hereby (hereinafter called the “Maximum Rate”), all sums in excess of those lawfully collectible as interest for the period in question shall, without further agreement or notice between or by any party hereto, be applied in reduction of the Principal Indebtedness immediately upon receipt of such moneys by Lender with the same force and effect as though Borrower had specifically designated such extra sums to be so applied and Lender had agreed to accept such extra payment(s) as a premium-free prepayment. In no event shall any agreed to or actual exaction as consideration for this loan transcend the limits imposed or provided by the law applicable to this transaction or to Borrower in the jurisdiction in which the land is located for the use or detention of money or for forbearance in seeking its collection.

Joint and Several

If Borrower consists of more than one person or party, the obligations and liabilities of each such person or party hereunder shall be joint and several. In no event shall any member in Borrower be liable for any amount outstanding hereunder, but the foregoing shall not be deemed to limit the liability of Forest City Enterprises, Inc. under that certain Guaranty executed and delivered to Lender of even date herewith.

Power

Borrower represents that Borrower has full power, authority and legal right to execute and deliver this Note and that the Debt constitutes a valid and binding obligation of Borrower.

Form

Whenever used in this Note, the singular number shall include the plural, the plural the singular, and the words “Lender” and “Borrower” shall include their respective successors and assigns.

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IN WITNESS WHEREOF, Borrower and Lender have duly executed this Note as of the day and year first above written.

Tax I.D. No.	BORROWER:
	FC LION LLC
	By:	FC 41st Street Associates, LLC its managing member
		By:			RRG 8 South, Inc. its managing member
				By:
				Its:
	LENDER:
	[                                                                        ]
	By:
			Name:
			Title:

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FC LION LLC

Borrower

AND

[NYTC ENTITY],

Lender

MODIFICATION OF SUBSTITUTE EXTENSION LOAN MORTGAGE

AND SECURITY AGREEMENT

(LEASEHOLD)

Dated: As of                  , 200  

Location:  Eighth Avenue, New York, New York

Tax Map Designation:

Block:

Lots:

RECORD AND RETURN TO:

Swidler Berlin Shereff Friedman LLP

405 Lexington Avenue

New York, New York 10174

Attention: Martin D. Polevoy, Esq.

Table of Contents

CERTAIN DEFINITIONS
ARTICLE I REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER
SECTION 1.01.		Title; No Encumbrances; First Mortgage
SECTION 1.02.		Related Mortgage Documents
SECTION 1.03.		Filing and Recording of Mortgage Documents
SECTION 1.04.		Manner of Payment
SECTION 1.05.		Compliance With Law
SECTION 1.06.		Future Acquisitions
SECTION 1.07.		Taxes, Assessments and Other Charges
	(a)	Timely Payment
	(b)	Removal of Liens
SECTION 1.08.		Mortgage Taxes
SECTION 1.09.		Insurance
	(a)	Minimum Requirements
	(b)	Evidence of Insurance; Payment of Proceeds
	(c)	Use of Proceeds
	(d)	Restriction on Separate Insurance
	(e)	Flood Insurance
SECTION 1.10.		Permanent Financing
SECTION 1.11.		Lender’s Right To Cure Defaults
SECTION 1.12.		Borrower’s Finances
	(a)	Books and Records
	(b)	Annual Financial Statement
	(c)	Intentionally Omitted
	(d)	Prohibition Against Waste or Change in Use

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	(e)		Legal Proceedings
SECTION 1.13.			Condemnation
SECTION 1.14.			Leases
	(a)		Assignment
	(b)		Restrictions on Leasing
	(c)		Rent Roll
	(d)		Tenant Estoppel Certificates
	(e)		Copies of Leases
SECTION 1.15.			Subordination and Attornment
SECTION 1.16.			Lien Law
SECTION 1.17.			Borrower Estoppel Certificate
ARTICLE II EVENTS OF DEFAULT AND REMEDIES
SECTION 2.01.		Events of Default
	(a)	Nonpayment
	(b)	Misrepresentation
	(c)	Other Defaults
	(d)	Liquidation or Receivership
	(e)	Voluntary Bankruptcy
	(f)	Involuntary Bankruptcy
	(g)	Intentionally Omitted
	(h)	Illegal Taxes
	(i)	Other Mortgages
	(j)	Intentionally Omitted
	(k)	Cross-Default
	(1)	Hazardous Materials Violation
SECTION 2.02.		Sale by Lender
	(a)	Time and Place of Sale
	(b)	Transfer of Mortgaged Property; Borrower Ratification

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	(c)	Note Due on Sale
	(d)	Application of Sale Proceeds
	(e)	Acquisition of Mortgaged Property by Lender
SECTION 2.03.		Borrower’s Liability
	(a)	Accelerated Payment
	(b)	Accelerated Judgment
	(c)	Non-Limitation of Lender’s Rights
	(d)	Application of Judgment Proceeds
SECTION 2.04.		Receiver
SECTION 2.05.		Lender Control
SECTION 2.06.		Non-Waiver
SECTION 2.07.		Waiver of Right of Redemption
SECTION 2.08.		Use and Occupancy Fee; Surrender of Premises
SECTION 2.09.		Payment of Lender’s Expenses
SECTION 2.10.		Lender Right to Cure
ARTICLE III MISCELLANEOUS
SECTION 3.01.		Severability
SECTION 3.02.		Notices
SECTION 3.03.		Successors and Assigns
SECTION 3.04.		Limitations of Law
SECTION 3.05.		Counterparts
SECTION 3.06.		Future Mortgage Taxes
SECTION 3.07.		Real Property Law
SECTION 3.08.		Cover Sheet
SECTION 3.09.		New York Law
SECTION 3.10.		No Member Liability
SECTION 3.11.		Non-Residential Dwelling
SECTION 3.12.		Partial Payments
SECTION 3.13.		Hazardous Materials

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(a)	Representations and Warranties
(b)	Removal of Hazardous Materials
(c)	Indemnification

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EXHIBITS
	A.	Mortgage Schedule
	B.	Description of Premises

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THIS MODIFICATION OF SUBSTITUTE EXTENSION LOAN MORTGAGE AND SECURITY AGREEMENT (LEASEHOLD) made as of the             day of               , 200   between FC LION LLC, a New York limited liability company, having an address at One MetroTech Center North, Brooklyn, New York 11201 (“Borrower”) and [NYTC ENTITY], a                , having an office at 229 West 43rd Street, New York, New York 10036 having an office at (“Lender”).

WHEREAS:

A.            Lender is the holder of the mortgage listed on Exhibit A annexed hereto and made a part hereof (hereinafter collectively called the “Original Mortgage”);

B.              The outstanding principal amount secured by the Original Mortgage is  $                  ;

C.             The Original Mortgage is a second mortgage lien covering the Mortgage Property (as such term is hereinafter defined), which lien is to secure payment of the modified note evidenced by that certain Modification of Substitute Extension Loan Note (hereinafter called the “Note”) of even date given by Borrower to Lender in the principal amount of $           ; and

D.             Borrower and Lender desire to modify and restate the Original Mortgage upon the terms set forth herein and, as so modified to constitute a restatement in full of the Original Mortgage, which shall hereinafter be deemed to be superseded by the “Mortgage”  (hereinafter defined);

CERTAIN DEFINITIONS

Unless the context otherwise specifies or requires, the following terms shall have the meanings herein specified, such definitions to be applicable equally to the singular and the plural forms of such terms.

“Affiliate” means, as used with respect to any person or entity, any other person or entity directly or indirectly controlling, controlled by or under common control with, such person or entity. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any person or entity, shall mean (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity,

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whether through the ownership of voting securities or by contract or otherwise, provided (but without limiting the foregoing) that no pledge of voting securities of any person or entity without the current right to exercise voting rights with respect thereto shall by itself be deemed to constitute control over such person or entity, and (b) equity ownership in such person or entity of fifty-one percent (51%) or more of all equity, capital and profits interests.

“By-laws” means the by-laws of the condominium adopted pursuant to the “Declaration”.

“Chattels” means all fixtures, fittings, appliances, apparatus, equipment, machinery and articles of personal property and additions thereto and replacements thereof, now or at any time hereafter owned by Borrower and affixed to, attached to, placed upon, or used in any way in connection with the complete and comfortable present or future use, enjoyment, occupancy or operation of the Improvements on the Premises.

“Debt” means the principal amount evidenced by the Note together with all interest and any other sums which may or shall become due under the Note or this Mortgage.

“Declaration” means that Declaration described in the definition of “Premises” herein.

“Events of Default” means the events and circumstances described as such in Section 2.01 hereof.

“Ground Lease” means, collectively, (x) that certain Agreement of Sublease by and between The New York Times Building, LLC, Landlord, and Borrower, Tenant, dated as of          , 2001, a memorandum of which was recorded in the Office of the Register of the City of New York, New York County (the “Register’s Office”) on            , 2001, as amended by [Amendment] dated            , 200  , a memorandum of which [Amendment] was recorded in the Register’s Office on, 200   , the Landlord’s interest in which Agreement of Sublease has been assigned to 42nd St. Development Project, Inc. by Assignment and Assumption Agreement dated         , 200  , between The New York Times Building, LLC, assignor, and 42nd St. Development Project, Inc., assignee; and (y) that certain Agreement of Sublease by and between The New York Times Building, LLC, Landlord, and Borrower, Tenant, dated as of      , 2001, a memorandum of which was recorded in the Register’s Office on          , 2001, as amended by [Amendment] dated            , 200  , a memorandum of which [Amendment] was recorded in the Register’s Office on            , 200   , the Landlord’s interest in which Agreement of Sublease has been assigned to 42nd St. Development Project, Inc. by Assignment and Assumption Agreement dated              , 200  , between The New York Times Building, LLC, assignor, and 42nd St. Development Project, Inc., assignee [AND ANY OTHER AGREEMENT(S) OF SUBLEASE BETWEEN THE NEW YORK TIMES BUILDING, LLC, AS LANDLORD, AND BORROWER, AS TENANT, (IDENTIFY)].

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“Improvements” means all structures or buildings owned by Borrower, to be erected or now or hereafter located upon the Premises, including all of Borrower’s plant equipment, apparatus, machinery and fixtures of every kind and nature whatsoever forming part of said structures or buildings.

“Involuntary Rate” means the lesser of (x) fifteen percent (15%) per annum, or (y) the highest rate of interest per annum allowed by law for loans evidenced by the Note and secured by this Mortgage.

“Mortgage” means this Substitute Extension Loan Mortgage and Security Agreement, which mortgage has resulted from the severance and splitter of the Original Mortgage more particularly described on Exhibit A annexed hereto.

“Mortgage Amount” means the amount secured by this Mortgage as of the date hereof, i.e., $                    .

“Premises” means the units designated as Unit(s) No(s)                 through in the Declaration establishing a plan of leasehold condominium ownership of premises located atEighth Avenue, New York, New York pursuant to Article 9-B of the Real Property Law of the State of New York dated                 and recorded in the office of the Register of the City of New York, New York County on in Reel, Page                 , together with plans designated Condominium Plan No.                 , covering the land described on Exhibit B annexed hereto including the percentage interest of the owner of Unit(s) (No(s).through                 comprising a        percentage interest therein in and to all common elements including all of the easements, rights, privileges and appurtenances (including, without limitation, any air or development rights) thereunto belonging or in anywise appertaining, and all of the estate, right, title, interest, claim or demand whatsoever of Borrower therein and in the rights-of-way, gores of land, streets, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, and all estates, rights, titles, interests, privileges, tenements, hereditaments, and appurtenances of any nature whatsoever, in any way belonging, relating or pertaining thereto, either in law or in equity, in possession or expectancy, now or hereafter acquired.

All terms of this Mortgage which are not defined above shall have the meaning set forth elsewhere in this Mortgage.

NOW, THEREFORE, Borrower, in consideration of the premises and in order to secure the payment of the Debt and the performance and observance of all of the provisions of this Mortgage and of the Note, hereby gives, grants, bargains, sells, releases, conveys, assigns, transfers, mortgages, hypothecates, pledges, sets over and confirms unto Lender, the leasehold interest of Borrower under the Ground Lease in the Premises (the “Leasehold”) and the

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Improvements, together with all of Borrower’s estate, right, title and interest in, to and under any and all of the following described property (hereinafter, together with the Leasehold and the Improvements, collectively called the “Mortgaged Property”) whether now owned or held or hereafter acquired:

(i)            the Chattels;

(ii)           all proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insurance and condemnation awards, and all rights of Borrower to refunds of real estate taxes and assessments and the reasonable attorney’s fees, costs and disbursements incurred by Lender in connection with the collection of such award or payment;

(iii)          all leases of the Premises now or hereafter entered into and all right, title and interest of Borrower thereunder, including, without limitation, cash or securities deposited thereunder to secure performance by the lessees of their obligations thereunder, whether such cash or securities are to be held until the expiration of the terms of such leases or applied to one or more of the installments of rent coming due immediately prior to the expiration of such terms, including, further, the right upon the happening of an Event of Default, to receive and collect the rents thereunder; and

(iv)          all proceeds of any unearned premiums on any insurance policies covering the Premises, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments or settlements made in lieu thereof, for damage to the Premises.

The Leasehold and the Improvements are hereinafter sometimes collectively referred to as the “Leasehold Premises.”

As to any of the Mortgaged Property aforesaid which does not form a part and parcel of the real estate, this Mortgage is and is hereby deemed to be, as well, a Security Agreement under the Uniform Commercial Code for the purpose of creating hereby a security interest in such property, which is hereby granted to Lender as “Secured Party” (as said quoted term is defined in the Uniform Commercial Code), securing the aforesaid indebtedness and obligations.

TO HAVE AND TO HOLD unto Lender, its successors and assigns forever.

ARTICLE I

REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER

Borrower represents, warrants and covenants as follows:

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SECTION 1.01.Title; No Encumbrances; First Mortgage.  Borrower warrants leasehold title to the Mortgaged Property subject to no lien, charge or encumbrance except (a) that certain [Residual Construction Loan Mortgage] dated as of       made by Borrower to in the amount of $            and recorded on            ,in the Office of the City Register of New York County (hereinafter called the “Register’s Office”) on Reel            , Page        (hereinafter called the “First Mortgage”), which mortgage has resulted from the severance and splitter of the Original Mortgage more particularly described on Exhibit A annexed hereto; and (b) such other encumbrances as would be listed as exceptions to title in a title policy were same dated as of the date hereof insuring Lender’s lien of this Mortgage; that it owns the Chattels free and clear of liens and claims; and that this Mortgage is and will remain a valid first lien on the Mortgaged Property subject only to the exceptions referred to above. Borrower has full power and lawful authority to mortgage the Mortgaged Property in the manner and form herein done or intended hereafter to be done. Borrower will preserve such title, and will forever warrant and defend the same to Lender and Borrower will forever warrant and defend the validity and priority of the lien hereof against the claims of all persons and parties whomsoever but not to the provider of title insurance insuring this Mortgage. This Mortgage is in all respects subject and subordinate to the First Mortgage and the Declaration and to all modifications, renewals and extensions of each of them, in the case of the First Mortgage, to the extent and subject to the provisions of that certain Subordination and Intercreditor Agreement of even date herewith between Lender and the holder of the First Mortgage.

SECTION 1.02.             Related Mortgage Documents.  Borrower will, at its sole cost and expense, and without expense to Lender, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignment, subordinations, transfers and assurances as Lender shall from time to time reasonably require, for the better assuring, conveying, assigning, transferring and confirming unto Lender the property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Mortgage, or for filing, registering or recording this Mortgage and, on demand, will execute and deliver, and hereby authorizes Lender to execute and file in Borrower’s name, to the extent it may lawfully do so, one or more financing statements, chattel mortgages or comparable security instruments, to evidence more effectively the lien of this Mortgage upon the Chattels.

SECTION 1.03.             Filing and Recording of Mortgage Documents.

(a)           Recording. Borrower forthwith upon the execution and delivery of this Mortgage, and thereafter from time to time, will cause this Mortgage and any security instrument creating a lien or evidencing the lien of this Mortgage upon the Chattels and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien of this Mortgage upon, and the interest of Lender in, the Mortgaged Property, provided that no such

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instrument of further assurance will materially increase the obligations of Borrower under this Mortgage.

(b)           Recording Fees.  Borrower will pay all filing, registration or recording fees, and all expenses incident to the execution and acknowledgment of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Chattels, and any instrument of further assurance, and all federal, state, county, and municipal stamp taxes and other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Note, this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Chattels or any instrument of further assurance.

SECTION 1.04.             Manner of Payment.  Borrower will punctually pay the principal and interest and all other sums to become due in respect of the Note at the time and place and in the manner specified in the Note, according to the true intent and meaning thereof, all in any coin or currency of the United States of America which at the time of such payment shall be legal tender for the payment of public and private debts.

SECTION 1.05.             Compliance With Law.  Borrower will do all things necessary to preserve and keep in full force and effect its existence, franchises, rights and privileges as a business or stock corporation, limited liability company, partnership, trust or other entity under the laws of the state of its formation and will comply with all regulations, rules, statutes, orders and decrees of any governmental authority or court applicable to it or to the Mortgaged Property or any part thereof.

SECTION 1.06.             Future Acquisitions.  All right, title and interest of Borrower in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property, hereafter acquired by, or released to Borrower or constructed, assembled or placed by Borrower on the Mortgaged Property, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, conveyance, assignment or other act by Borrower, shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by Borrower and specifically described in the granting clause hereof, but at any and all times Borrower will execute and deliver to Lender any and all such further assurances, mortgages, conveyances or assignments thereof as Lender may reasonably require for the purpose of expressly and specifically subjecting the same to the lien of this Mortgage.

SECTION 1.07.             Taxes, Assessments and Other Charges.

(a)           Timely Payment.  Subject to the terms and provisions of Section 1.07(b) hereof, Borrower, from time to time, will pay and discharge prior to the date interest or penalties attach all taxes of every kind and nature (including, without limitation, real and personal property taxes

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and income, franchise, withholding, profits and gross receipts taxes), all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, and all other public charges whether of a like or different nature, imposed upon or assessed against it or the Mortgaged Property (which for purposes hereof shall include the entirety of any tax lot of which the Mortgaged Property constitutes a part) or any part thereof or upon the revenues, rents, issues, income and profits of the Mortgaged Property or arising in respect of the occupancy, use or possession thereof. Borrower will, upon Lender’s request, deliver to Lender receipts evidencing the payment of all such taxes, assessments, levies, fees, rents and other public charges imposed upon or assessed against it or the Mortgaged Property or the revenues, rents, issues, income or profits thereof.

(b)           Removal of Liens.  Borrower will pay or bond so as to remove a lien of record, from time to time when the same shall become due, all lawful claims and demands of mechanics, material men, laborers, and others which, if unpaid, might result in, or permit the creation of, a lien on the Mortgaged Property or any part thereof, or on the revenues, rents, issues, income and profits arising therefrom and in general will do or cause to be done everything necessary so that the lien of this Mortgage shall be fully preserved, at the cost of Borrower and without expense to Lender.

SECTION 1.08.             Mortgage Taxes.  Borrower will pay any taxes, except income and gross receipts taxes, imposed on Lender by reason of its ownership of the Note or this Mortgage.

SECTION 1.09.             Insurance.

(a)           Minimum Requirements.  Borrower will keep the Improvements and Chattels insured against loss by fire, casualty and such other hazards as may reasonably be specified by Lender for the benefit of Lender. Such insurance shall be written in forms, amounts, and by companies satisfactory to the landlord under the Ground Lease, the holder of the First Mortgage and to Lender, and, subject to the provisions of the First Mortgage, losses thereunder shall be payable to Lender pursuant to a standard first Lender endorsement substantially equivalent to the New York standard Lender endorsement. Without limiting the generality of the foregoing, such insurance shall include (i) coverage for contingent liability from operation of building laws together with a demolition cost endorsement, (ii) rental insurance based upon 100% of the then current rents receivable for a period of not less than twelve (12) months naming Lender as loss payee, (iii) comprehensive general public liability insurance against claims for bodily injury, death or property damage in amounts not less than $1,000,000 for bodily injury or death (combined single limit) and not less than $500,000 for property damage and (iv) boiler and machinery insurance in an amount acceptable to Lender. All insurance policies shall not be cancelable or materially modifiable except after thirty (30) days written notice to Lender and premiums thereon shall be prepaid for not less than one year. Lender acknowledges that satisfaction of the insurance requirements of Borrower under the First Mortgage and the Declaration satisfies the requirements of this subsection (a) as to the insurer, the coverages and

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the policy limits.

(b)                   Evidence of Insurance; Payment of Proceeds.  The originals or certified copies of all policies of insurance, together with original certificates or binders thereof required by this Mortgage shall be delivered to Lender. Renewals of such policies shall be delivered to Lender at least ten (10) days before any such insurance shall expire. Borrower shall give Lender prompt notice of any loss covered by such insurance and Lender shall have the right to join Borrower in adjusting any loss. In addition, after the entry of any decree of foreclosure of this Mortgage, any purchaser at foreclosure sale or the decree creditor, as the case may be, shall also have the right to join in the adjustment of any such losses. Subject to the First Mortgage and the Declaration and further subject to the provisions of subsections (c) and (d) below, any moneys received as payment for any loss under any such insurance shall be paid over to the Lender to be applied without prepayment premium, at Lender’s option, either to the prepayment of the Note at the rate of interest provided therein, or to the reimbursement of Borrower from time to time for expenses incurred by it in the restoration of the Improvements and upon terms otherwise satisfactory to Lender in Lender’s sole discretion. The rights of Lender specified in this Mortgage supersede its rights under Section 254 of the New York Real Property Law.

(c)                   Use of Proceeds.  Subject to the terms and conditions of the Ground Lease and First Mortgage, notwithstanding the foregoing, Lender shall endorse over to Borrower the proceeds of individual insured claims that do not exceed $250,000.00 for use toward restoration of the Mortgaged Property. Upon restoration, Borrower shall provide Lender evidence reasonably acceptable to it that the funds have been so used. Further, and subject to the provisions of the Ground Lease, unless it cannot be demonstrated to the reasonable satisfaction of Lender that (i) the Mortgaged Property can be substantially restored to its condition immediately prior to the damage, and (ii) the damage or destruction is capable of being restored within a twelve (12) month period from the receipt of insurance proceeds, in the Lender’s reasonable judgment (provided rent insurance is in effect for the entire period of reconstruction), in which event Lender’s option as to the application of insurance proceeds shall continue to apply, Lender agrees to make proceeds of such insurance available for the repair and restoration of the Improvements, not by way of application against and readvancement of loan funds under the Mortgage but solely as a security fund from which to reimburse Borrower for the costs of such repair and restoration for so long as there has been no transfer of the Mortgaged Property other than such transfer as may be permitted pursuant to Section 2.01(j) hereinafter set forth, and in the absence of an Event of Default under this Mortgage, but only on the following terms and conditions:

(A)          If the Improvements should be damaged or destroyed by fire or other casualty, Borrower shall promptly upon insurance settlement, which settlement shall be diligently pursued, commence the work of repair and restoration of the Improvements. Borrower shall pay or cause to be paid all expenses in connection with such repair and restoration of the Improvements so that the Mortgaged Property, at all times, shall be and remain free and clear

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from any and all liens and claims for labor, materials, fees and any other liens, title retention devices, charges or expenses.

(B)In defraying the costs and expenses that may be incurred by Borrower in the repair and restoration of the Mortgaged Property (but only so long as such repair and restoration can be completed within the period for restoration hereinbefore specified), Lender shall make proceeds from policies of insurance required to be carried under the Mortgage available to Borrower as provided in subsection (D) below and Borrower shall utilize such proceeds only for the purposes of repairing and restoring the Improvements and for no other purpose whatsoever, except as hereinafter set forth. All sums necessary to effect the repair and restoration of the Improvements over and above the amount available from said insurance monies, shall be at the sole cost and expense of Borrower. Any unexpended insurance proceeds remaining after completion of such repair and restoration shall be paid over to Borrower.

(C)At all times during any repair, demolition, construction, renovation or restoration of the Improvements, Borrower, at the cost and expense of the Borrower, shall obtain or cause to be maintained workmen’s compensation and public liability insurance in amounts necessary to protect Borrower and Lender from all liabilities, damages, claims or demands arising out of any accident or occurrence causing injury or death to any person or property whatsoever. All insurance shall be with responsible insurance companies, licensed and authorized to transact business in the State of New York and shall be written in forms, amounts and by companies reasonably satisfactory to Lender. Nothing contained herein shall relieve Borrower from any requirement of the Lender regarding the insuring of the Mortgaged Property.  The originals or certified copies of all policies of insurance, together with original certificates or binders thereof required by this Agreement shall be delivered to Lender. Renewals of such policies shall be delivered to Lender at least ten (10) days before any such insurance shall expire.

(D)All insurance proceeds recovered by or paid to Lender on account of damage or destruction to the Improvements, less the actual out-of-pocket cost, if any, to Lender of such recovery and of paying out such proceeds (including reasonable attorneys’ fees and costs allocable to inspecting the work and the plans and specifications therefor), upon the written request of Borrower, shall be applied by the Lender to the payment of the cost of repairing and restoring the Improvements so damaged or destroyed (hereinafter referred to as the “Work”) and shall be paid out from time to time to the Borrower as the Work progresses, but subject to the following conditions:

(i)If the Work is structural or if the cost of the Work is reasonably estimated to exceed Two Hundred Fifty Thousand Dollars ($250,000), the Work shall be supervised by a registered architect or engineer and inspected by a consultant engaged by Lender at the cost and expense of Borrower (hereinafter called the “Inspector”). Before Borrower commences any Work, other than temporary Work to protect property or prevent interference with business, Lender shall have been furnished and approved (i) an estimate of the cost of restoration or repair

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accompanied by an architect’s certification as to such costs and (ii) appropriate final plans and specifications for the Work, it being nevertheless understood that said plans and specifications shall provide for Work so that, upon completion thereof, the Improvements shall be comparable in character and equal in value and general utility to the Improvements prior to the damage or destruction. Borrower shall furnish Lender with evidence satisfactory to Lender that the Improvements so restored and/or repaired and their contemplated use fully comply with all zoning, environmental and building laws, ordinances and regulations, and with all other applicable federal, state and municipal laws and requirements;

(ii)           Each request for payment shall be made on ten (10) days prior notice to Lender and shall be accompanied by certificates to be made by the Inspector or, if none shall be required, by the management agent and an officer of Borrower, stating (aa) that all of the Work completed has been done in compliance with the approved plans and specifications, if any be required under subsection (a)(i) above, (bb) that the sum requested is justly required to reimburse the Borrower for payments by Borrower, or is justly due to the contractor, subcontractors, material men, laborers, engineers, architects or other persons rendering services or materials for the Work (giving a brief description of such services and materials), and that (prior to the final completion of the Work) the requested payment does not exceed the greater of (x) the retainage required pursuant to the applicable general contract or subcontract or (y) 90% of the value of the Work performed (hereinafter called the “Applicable Percentage”) and that all sums previously paid out by Lender do not exceed the Applicable Percentage of the aggregate value of the Work done to the date of such certificate, (cc) that if the sum requested is to cover payment relating to repair and restoration of personal property required or relating to the Mortgaged Property, that title to the personal property items covered by the request for payment is vested in Borrower, (dd) that the amount of such proceeds remaining in the hands of Lender will be sufficient on completion of the Work to pay for the same in full and free and clear of liens. Additionally, each request for payment as above shall contain a statement signed by the managing agent and an officer of Borrower approving both the Work done to date and the Work covered by the request for payment in question;

(iii)          Each request shall be accompanied by invoices, or, with respect to Work completed and paid for, receipts or waivers of lien satisfactory to Lender covering that part of the Work for which payment or reimbursement is being requested and, if required by Lender, a search prepared by a title company or licensed abstractor or by other evidence satisfactory to Lender that there has not been filed with respect to the Mortgaged Property any mechanics’ or other lien or instrument for the retention of title in respect of any part of the Work not discharged of record, by payment, bonding or otherwise. Additionally, as to any personal property, Lender shall be furnished with evidence of payment covered by the request for payment therefor and evidence of payment satisfactory to Lender of its valid first lien on the personal property;

(iv)          There shall be no Event of Default under any loan document held by Lender securing the Note;

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(v)           The request for final payment after the Work has been completed shall be accompanied by (i) a copy of any certificate or certificates required by law to render occupancy and full operation of the Mortgaged Property legal, (ii) a certification by the Inspector as to completion in accordance with the approved plans and specifications and an architect’s certificate of completion, (iii) the filing of a Notice of Completion and the expiration of the period, provided under New York law for the filing of mechanics’ and material men’s liens;

(vi)          Lender may at its option require an endorsement to its title insurance policy insuring the continued priority of the lien of the Mortgage as to all sums advanced hereunder, such endorsement to be paid for by Borrower; and,

(vii)         Upon any failure on the part of Borrower to commence the Work or to proceed diligently and continuously to completion of the Work, subject to force majeure delays, but not to exceed twelve (12) months, Lender may apply the amount of any such proceeds then or thereafter in the hands of Lender to the payment of any indebtedness secured by the Mortgage, or to the restoration of the Mortgaged Property, as it shall elect. Upon completion of the Work in accordance with the terms hereof, any excess proceeds remaining unused after completion shall be paid over to the Borrower. Providing, however, Lender shall be entitled to apply at any time the whole or any part of insurance proceeds then held by it to the curing of any Event of Default under the Mortgage, or any other instrument taken in connection with the Note.

It is understood that the foregoing provisions of this Section 1.09(c) shall not apply to any proceeds which are governed by the Declaration. In addition, Lender hereby consents to all disbursements of proceeds consented to or otherwise approved by the holder of the First Mortgage and agrees that satisfaction of the requirements regarding the disbursement of proceeds under the First Mortgage shall be deemed to satisfy the requirements hereunder and of Lender.

(d)             Restriction on Separate Insurance.  Borrower shall not take out separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 1.09 unless Lender is included thereon as a named insured with loss payable to Lender under a standard Lender endorsement of the character above described. Borrower shall immediately notify Lender whenever any such separate insurance is taken out and shall promptly deliver to Lender the policy or policies of such insurance.

(e)             Flood Insurance.  If the Premises are located in an area which has been identified by the Secretary of the United States Department of Housing and Urban Development as a flood hazard area, Borrower will keep the Improvements covered, until all sums secured by this Mortgage have been repaid in full, by flood insurance in an amount satisfactory to Lender.

SECTION 1.10.             Permanent Financing. Borrower shall at all times until the Debt is paid in full use commercially reasonable efforts to obtain permanent financing on a non-recourse

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basis (other than customary carve-outs to non-recourse provisions then generally being required by institutional permanent mortgage lenders) in the amount required to repay the First Mortgage and the Debt secured by this Mortgage (“Permanent Financing”).  Upon request by Lender from time to time, Borrower will report the status of its efforts and the measures taken to obtain the Permanent Financing, recognizing that if the financing markets are in turmoil so that it is futile to attempt to obtain a commitment for the Permanent Financing, it shall be commercially reasonable for Borrower during such period that the financing markets are in turmoil to curtail its efforts including the tenacity and frequency with which it contacts lenders or solicits proposals for commitments from such lenders for the Permanent Financing.

SECTION 1.11.             Lender’s Right To Cure Defaults.  If Borrower shall fail to perform any of the representations, warranties and covenants contained in Sections 1.03, 1.07, 1.08, 1.09 or elsewhere herein beyond notice and applicable grace periods, Lender may make advances to perform the same on its behalf, and all sums so advanced, with interest at the Involuntary Rate, shall immediately be due from Borrower to Lender, and shall be added to the Debt and shall be secured by this Mortgage. The provisions of this Section shall not prevent any default in the observance of any of the representations, warranties and covenants contained in said Sections 1.01, 1.03, 1.07, 1.08, 1.09 or elsewhere herein from constituting an Event of Default.

SECTION 1.12.             Borrower’s Finances.

(a)Books and Records.  Borrower will keep adequate records and books of account in accordance with generally accepted accounting principles, consistently applied, and will permit Lender, by its agents, accountants and attorneys, to visit and inspect the Premises and examine such records and books of account and to discuss such affairs, finances, and accounts with the officers of Borrower, at such reasonable times on reasonable notice as may be requested by Lender.

(b)Annual Financial Statement.  Commencing with fiscal year              , Borrower will deliver to Lender within 120 days after the close of its fiscal year, a balance sheet and statement of profit and loss of review quality or better for both Borrower and the Mortgaged Property setting forth, in comparative form, figures for the preceding fiscal year, audited and certified by Borrower or an independent certified public accountant reasonably satisfactory to Lender. Said statement and balance sheet shall list the income and expenses of the Mortgaged Property and contain a current accurate rent roll certified by Borrower to be true and correct. Upon request of Lender, Borrower shall make available to Lender convenient facilities at the office of Borrower for the audit and verification of any such statement. Throughout the term of this Mortgage, Borrower will deliver to Lender with reasonable promptness, copies of the foregoing and such other information with respect to Borrower and the Mortgaged Property as Lender may reasonably request from time to time, including, without limitation, such further and additional financial information as Borrower shall be required to provide under the terms of the First Mortgage. All financial statements of Borrower shall be prepared in accordance with generally

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accepted accounting principles, consistently applied, and shall be delivered in duplicate.

(c)Intentionally Omitted.

(d)Prohibition Against Waste or Change in Use.  Borrower will not commit any waste on the Leasehold Premises. Borrower will, at all times, maintain the Improvements and Chattels in good operating order and condition and will promptly make, from time to time, all repairs, renewals, replacements, additions and improvements in connection therewith which are needful or desirable to such end. Borrower shall comply or take all necessary steps to comply with all laws, ordinances, rules and regulations, including, without limitation, all those applicable to zoning, environmental and energy-related laws and regulations, made or promulgated by any government, municipality or agency which are now or may hereafter become applicable to the Leasehold Premises. Borrower shall not construct any additional building or buildings or make any other improvements, other than tenant finish work and non-structural renovations, on the Leasehold Premises, nor alter (other than tenant finish work), remove or demolish any Improvements in violation of the Declaration. Borrower shall not change the existing use of the Leasehold Premises or any portion thereof in violation of the Declaration, nor will Borrower initiate, join in or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restrictions, limiting or defining the uses which may be made of the Leasehold Premises or any portion thereof in violation of the Declaration. Lender hereby agrees that Borrower’s compliance with the terms of the First Mortgage and the Declaration regarding use and prohibition against waste shall be deemed compliance with this Section 1.12(d).

(e)Legal Proceedings.  Whether or not an Event of Default has occurred and exists, Lender shall have the right, but not the duty or obligation, to intervene or otherwise participate in, prosecute or defend at any legal or equitable proceedings (including, without limitation, any eminent domain proceedings) which, in Lender’s reasonable discretion, affect the Mortgaged Property, the Leases (hereinafter defined) or any of the rights created hereunder the reasonable cost of which, to the extent such proceedings involve enforcement by the holder of the First Mortgage of its remedies under the First Mortgage, shall be reimbursed by Borrower to Lender and shall be secured by this Mortgage.

SECTION 1.13.             Condemnation.  Borrower, immediately upon obtaining knowledge of the institution or pending institution of any proceedings for the condemnation of the Leasehold Premises or any portion thereof, will notify Lender thereof. Lender may participate in any such proceedings and may be represented therein by counsel of its selection. Borrower from time to time will deliver to Lender all instruments requested by it to permit or facilitate such participation. Subject to the terms of the Ground Lease and the First Mortgage, in the event of such condemnation proceedings, the award or compensation payable is hereby assigned to and shall be paid to Lender. Lender shall be under no obligation to question the amount of any such award or compensation and may accept the same in the amount in which the same shall be paid. Subject to the Ground Lease, the First Mortgage and the Declaration, the proceeds of any award

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or compensation so received shall, except for a temporary taking the award of compensation for which shall be paid over to Borrower, at the option of Lender, either be applied without prepayment premium, in the absence of an Event of Default, to the prepayment of the Note at the rate of interest provided therein, regardless of the rate of interest payable on the award by the condemning authority, or be paid over to Borrower from time to time for expenses incurred by it in the restoration of the Improvements and upon terms otherwise satisfactory to Lender in Lender’s sole discretion.

SECTION 1.14.             Leases.

(a)                  Assignment.  Borrower hereby absolutely and unconditionally assigns and transfers to Lender all leases now existing or hereafter entered into for all or any portion of the Mortgaged Property (hereinafter called a “Lease”)the Leases and all rents, income issues or profits derived therefrom (hereinafter called the “Property Income”). Borrower shall not otherwise assign, transfer or encumber in any manner the Leases or the Property Income or any portion thereof, except as permitted pursuant to the First Mortgage. Borrower shall have a license to collect and use the Property Income as the same becomes due and payable and to exercise its rights as landlord under the Leases consistent with the provisions hereof, so long as no Event of Default has occurred and is continuing, which license is revocable by Lender upon the occurrence and during the continuance of an Event of Default, but may not collect any Property Income more than 30 days in advance of the date the same becomes due (other than security deposits and the first month’s rent). The assignment in this Section 1.14 shall constitute an absolute and present assignment of the Leases and the Property Income, and not an assignment for security, and the existence or exercise of the Borrower’s conditional license to collect Property Income shall not operate to subordinate this assignment to any subsequent assignment. The exercise by Lender of any of its rights or remedies under this Section 1.14 shall not be deemed or construed to make Lender a Lender-in-possession.

(b)                  Restrictions on Leasing.  Except as permitted under the Declaration, Borrower will not enter into new Lease(s) or alter or modify the terms of the Lease(s), give any consent or exercise any option, accept a surrender thereof, or consent to any assignment of or subletting under the Lease(s). Borrower shall not take any action referred to in this Section 1.14(b) unless the consent of the holder of the First Mortgage to such action shall have been obtained if and to the extent required under the First Mortgage. Lender shall have all the rights against tenants of the Mortgaged Property as set forth in Section 291-f of the Real Property Law of the State of New York, and reference to said Section 291-f is hereby made.

(c)                  Rent Roll.  Borrower shall furnish to Lender, but, so long as no Event of Default has occurred and is continuing, not more than twice per calendar year and within ten (10) days after a request by Lender, a certified written statement containing the names of all lessees on the Mortgaged Property, the terms of their respective Leases, the space occupied and the rentals payable thereunder.

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(d)                  Tenant Estoppel Certificates.  If any of the Leases provide for the giving by the lessee thereunder of certificates with respect to the status of such Leases, Borrower shall exercise its right to request such certificates within ten (10) days of any demand therefor by Lender, provided, however, that Lender shall not make such demand more than once in any Loan Year.

(e)                   Copies of Leases.  Borrower, within ten (10) days upon request, which request shall not be made more than once annually, will furnish true copies of all Leases not previously provided to Lender, subleases and other occupancy agreements, including amendments and renewals thereof and guaranties given in connection therewith.

SECTION 1.15.             Subordination and Attornment.  Each Lease shall be subordinate to the lien of this Mortgage, to all advances hereunder and to any renewals, extensions, modifications or consolidations thereof, and shall provide that, in the event of the enforcement by Lender of the remedies provided for by law or by this Mortgage, the lessee thereunder will, upon request of any person succeeding to the interest of Borrower as a result of such enforcement, automatically become the lessee of and shall attorn to said successor in interest, without change in the terms or other provisions of such Lease; provided, however, that said successor in interest shall not be bound by (i) any payment of rent or additional rent for more than one (1) month in advance, except prepayments in the nature of security for the performance by said lessee of its obligations under said Lease, or (ii) any amendment or modification of the Lease made without the consent of Lender or such successor in interest, unless such consent is not required by Section 1.14 hereof. Each Lease shall also provide that, upon request by said successor in interest, such lessee shall execute and deliver an instrument or instruments confirming such Attornment. Lender shall execute and deliver a Subordination, Non-disturbance and Attornment Agreement (each, an “SNDA”) to each tenant to which the holder of the First Mortgage delivers an SNDA in substantially the same form as is delivered by the holder of the First Mortgage to such tenants.

SECTION 1.16.             Lien Law.  Pursuant to Section 13 of the Lien Law of New York, Borrower will receive the advances secured by this Mortgage and will hold the right to receive such advances as a trust fund to be applied first for the purpose of paying the costs of completing the Improvements and will apply the same first to the payment of such costs before using any part of the total of the same for any other purpose. Borrower will indemnify and hold Lender harmless against any loss or liability, cost or expense, including, without limitation, any judgments, attorneys’ fees, costs of appeal bonds and printing costs, arising out of or relating to any proceeding instituted by any claimant alleging a violation by Borrower of any applicable lien law.

SECTION 1.17.             Borrower Estoppel Certificate.  Borrower, within ten (10) days upon request and not more than twice per calendar year or any greater number of times an estoppel certificate is required to be provided to the holder of the First Mortgage, will furnish a

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written statement, duly acknowledged, stating (i) the amount due, whether for principal or interest, on the Note, (ii) whether or not this Mortgage has been modified in any respect, and if so, specifying any such modification, and (iii) whether any offsets, counterclaims or defenses exist against the indebtedness secured by this Mortgage, and if so, specifying any such offsets, counterclaims or defenses.

SECTION 1.18.             (a) Ground Lease in Force.  The Ground Lease is in full force and effect and, to the best of Borrower’s knowledge, neither landlord nor tenant is in default thereunder.   The Ground Lease has not been further amended nor modified and the instruments recited herein as constituting the Ground Lease constitute the full agreement of the parties with respect to the subject matter therein set forth. Borrower has not paid rent in advance for a period in excess of one month, nor is it in arrears. All of Landlord’s work to be performed thereunder has been fully completed. The copies of the Ground Lease furnished to Lender are true and complete.

(b)        Lawfully Executed.  This Mortgage is lawfully executed in conformity with the Ground Lease.

(c)        Borrower to Perform.  Borrower will promptly perform and observe all of the terms, covenants and conditions required to be performed and observed by the Borrower as Tenant under the Ground Lease, before the expiration of any applicable grace or cure periods set forth in the Ground Lease, and will do all things necessary to preserve and to keep unimpaired its rights under the Ground Lease.

(d)        Default Notice.  Borrower will promptly notify Lender in writing of receipt by Borrower of notice from the landlord under the Ground Lease noting or claiming any default by Borrower in the performance or observance of any of the terms, covenants, or conditions on the part of the Borrower to be performed or observed under the Ground Lease.

(e)        Other Notices.  Borrower will (i) promptly notify Lender in writing of the receipt by Borrower of any notice from the landlord to Borrower of termination of the Ground Lease pursuant to the provisions of the Ground Lease; and (ii) promptly cause a copy of any such notice received by Borrower from landlord to be delivered to the Lender.

(f)         No Termination.  Borrower will not, without the prior written consent of Lender, terminate, modify, or surrender or suffer or permit any termination, modification or surrender of the Ground Lease.

(g)      Landlord Certificate.  Borrower will, within ten (10) business days after written demand from Lender, request and thereafter use its best efforts to obtain from the landlord under the Ground Lease and deliver to Lender (not more often than three (3) times in any twelve month period) certificates (a) certifying that (i) such Ground Lease is in full force

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and effect, is unmodified (or if there have been modifications, stating the modifications), and (ii) date to which each item of Charges (as defined in the Ground Lease) payable by the Tenant thereunder to the Landlord has been the paid and (b) stating (i) whether to the best knowledge of Landlord thereunder, an Event of Default (as defined in the Ground Lease) or any event that, with the giving of notice or the passage of time, or both, would constitute an Event of Default, has occurred, and (ii) whether to the best knowledge of the Landlord thereunder a Default (as defined in the Ground Lease) has occurred in the Tenant’s performance of any covenant, agreement, obligation or condition contained in the Ground Lease, and if so, specifying in detail, each such Default or Event of Default.

(h)     Proof of Payment.  Borrower will furnish to the Lender, upon demand, proof of payment of all items which are required to be paid pursuant to the Ground Lease and proof of payment of which is required to be given.

(i)       Waiver of Modification.  Borrower shall not consent to any modification or cancellation of the Ground Lease.

(j)       Curing Defaults.  Borrower shall execute and deliver, on request of Lender, such instruments as Lender may deem useful or required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action as the Lender considers desirable to cure or remedy the matter in default and preserve the interest of Lender in the Mortgaged Property.

(k)      No Subordination.  Borrower shall not in any manner make the leasehold estate subject to the lien of any other mortgage, other than the First Mortgage, whether or not constituting as well a mortgage on the fee title in and to the Mortgaged Property. The grant of any such mortgage lien shall not be effective as against the Lender in addition to constituting an Event of Default hereunder.

ARTICLE II

EVENTS OF DEFAULT AND REMEDIES

SECTION 2.01.             Events of Default. If one or more of the following Events of Default shall happen:

(a)           Nonpayment. If (i) default shall be made in the payment of any principal, interest or other sums due under the Note, in any such case, when and as the same shall become due and payable, whether at maturity or by acceleration or as part of any payment or permitted prepayment or otherwise, in each case, as in the Note and this Mortgage provided, and any such default set forth in this clause (i) shall not be cured within ten (10) days (the “10-Day Cure Period”) after delivery of written notice by Lender to Borrower (the “10-Day Notice”), and which

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default, solely in the case of the first default in the payment of principal, interest or other sums due under the Note as to which Lender has delivered the 10-Day Notice, continues after the expiration of the 10-Day Cure Period for a further period of five (5) days after delivery of written notice by Lender to Borrower (the “5-Day Notice”), it being acknowledged and agreed that with respect to the second and any subsequent occasion on which Lender delivers a 10-Day Notice, Lender shall not be required to and shall not deliver a 5-Day Notice, or (ii) default shall be made in the payment of any tax required by Section 1.07 hereof or insurance premiums required by Section 1.09 hereof to be paid and the same shall not be cured within ten (10) days after written notice of such default from Lender to Borrower, or (iii) default shall be made in providing to Lender the annual financial statement required by Section 1.12(b) or rent roll provided by Section 1.12(c) hereinbefore set forth, and such default has not been cured within thirty (30) days after written notice of such default from Lender to Borrower; or

(b)Misrepresentation.  If any material representation or warranty of Borrower made in this Mortgage, or in any certificate, report, financial statement or other instrument given or furnished in connection with the making of the Note or this Mortgage, shall prove materially false or misleading at the time such representation or warranty was given; or

(c)Other Defaults.  If default shall be made in the due observance or performance of any other covenant, condition or agreement in the Note, this Mortgage or in any other document executed or delivered to Lender in connection with the loan secured by this Mortgage or the First Mortgage and such default has not been cured within thirty (30) days after written notice of such default from Lender to Borrower, provided, however, that if such default is not capable of cure within such thirty (30) day period, such period in which to cure may be extended by the amount of time required to effect a cure on condition that Borrower promptly commences to cure and diligently and uninterruptedly pursues such cure to completion; or

(d)Liquidation or Receivership.  If by order of a court of competent jurisdiction, a trustee, receiver or liquidator of the Mortgaged Property or any part thereof, or of Borrower shall be appointed; or

(e)Voluntary Bankruptcy.  If Borrower shall file a petition in bankruptcy or for an arrangement or for reorganization pursuant to the Federal Bankruptcy Act or any similar law, federal or state, or if, by decree of a court of competent jurisdiction, Borrower shall be adjudicated a bankrupt, or be declared insolvent, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall consent to the appointment of a receiver or receivers of all or any part of its property; or

(f)Involuntary Bankruptcy.  If any of the creditors of Borrower shall file a petition in bankruptcy against Borrower or for reorganization of Borrower pursuant to the Federal Bankruptcy Act or any similar law, federal or state, and if such petition shall not be discharged or dismissed within ninety (90) days after the date on which such petition was filed; or

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(g)           Intentionally Omitted.

(h)           Illegal Taxes.  If it shall be illegal for Borrower to pay any tax referred to in Section 1.08 hereof or if the payment of such tax by Borrower would result in the violation of applicable usury laws; or

(i)            Other Mortgages.  Except as herein otherwise provided to the contrary, if there should occur a default which is not cured within the applicable grace period, if any, under any other mortgage encumbering all or part of the Mortgaged Property regardless of whether any such other mortgage is prior or subordinate to this Mortgage; it being further agreed by Borrower that an Event of Default under this Mortgage shall constitute an Event of Default under any such other mortgage in respect of the Mortgaged Property held by Lender; or

(j)            Transfer of Mortgaged Property.  If Borrower shall transfer, or agree to transfer, in any manner, either voluntarily or involuntarily, by operation of law or otherwise, all or any portion of the Mortgaged Property, or any interest therein (including, without limitation, any air or development rights) without, in any such case, the prior written consent of Lender. Lender may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Mortgage and any other documents which evidence or secure the loan secured by this Mortgage, and any such transferee shall assume all of Borrower’s obligations under this Mortgage and thereunder and agree to be bound by all provisions and perform all obligations contained in this Mortgage and therein. Consent to one such transfer shall not be deemed to be a waiver of the right to require consent to future or successive transfers. As used in this Section 2.01(j), “transfer” shall include, without limitation, (i) any sale, assignment, lease or conveyance of the Mortgaged Property or any part thereof, or any interest therein except permitted leases for occupancy subordinate to this Mortgage; (ii) if the Borrower should at any time be a partnership, the sale, assignment or conveyance of any general or limited partnership interest in Borrower or in any general partner of Borrower; (iii) if the Borrower should at any time be a corporation, any sale, assignment or conveyance of the voting stock thereof or a substantial portion of its assets other than shares of stock appurtenant to proprietary leases; and (iv) if the Borrower should at any time be a trust, the assignment or conveyance of all or any part of the beneficial interest therein or a substantial portion of its assets; and (v) if the Borrower should at any time be or include a limited liability company, the assignment or conveyance of all or any part of the shares of beneficial interest therein, or management thereof, or a substantial portion of its assets. Notwithstanding the foregoing, the Mortgaged Property and/or equity interests in Mortgagor may be transferred (a) to Lender or a designee of Lender, or (b) upon not less than fifteen (15) days prior written notice to Lender, to (i) to an Affiliate of Forest City Enterprises, Inc. or Bruce C. Ratner, (ii) to a Family Member of Bruce C. Ratner, provided Bruce C. Ratner shall retain management control following such transfer (or, if Bruce C. Ratner shall be incompetent or deceased, then such Family Member or Family Members of Bruce C. Ratner shall retain such management control) or (iii) to a trust established for the

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benefit of Bruce C. Ratner or his Family Members, or any further transfer to the beneficiaries of such trust, provided Bruce C. Ratner shall retain management control following such transfer (or, if Bruce C. Ratner shall be incompetent or deceased, then such Family Member or Family Members of Bruce C. Ratner shall retain such management control). As used herein (i) “Family Members” shall mean, as to any individual, any parent, spouse, sibling, child, grandchild, aunt, uncle, niece, nephew or cousin, or any step-child or step-grandchild of such individual, and (ii) “management control” shall mean the ability to control management affairs and day-to-day operations (the foregoing restrictions are, however, not applicable to any transfers permitted under that certain Recognition Agreement dated                , 2001 among ING Vastgoed B B.V., FC 41st Street Associates, LLC, the Company, NYTC Member, FC Member, Developer, The New York Times Company and INGREDUS Site 8 South LLC); or

(k)           Intentionally Omitted.

(1)           Cross-Default.  If there should occur a default which is not cured within the applicable grace period, if any, under any of the terms, covenants or conditions of any other document or instrument executed in connection with this Mortgage, including, without limitation, any other mortgage encumbering all or part of the Mortgaged Property held by Lender, or any other prior mortgages or upon default in the performance of any covenant, agreement, term or condition, which is not cured within the applicable grace period, if any, under the notes evidencing such mortgages such event shall constitute a default under this Mortgage, notwithstanding that the owner of the premises described in said other mortgage may be different than the owner of the Mortgaged Property or that the title to such other premises covered by said other mortgage or mortgages be vested in whole or in part in a person or persons other than Borrower;

(m)          Hazardous Materials Violation.  If a court or other forum of competent jurisdiction shall impose a lien on the Mortgaged Property arising out of or based upon the presence of any Hazardous Materials (as such term is defined in Section 3.14 hereof) on the Mortgaged Property and Borrower fails to pay such judgment or discharge or bond such lien within thirty (30) days of the imposition thereof; or

(n)           Ground Lease.  If there shall occur a default by Borrower beyond any applicable grace or cure periods under the Ground Lease;

then and in every such case:

I.                Lender may declare the entire principal of the Note then outstanding (if not then due and payable), and all accrued and unpaid interest thereon, to be due and payable immediately, and upon any such declaration, (i) all accrued and unpaid interest due under the Note, (ii) the outstanding principal of the Note, (iii) any prepayment premium due under the Note, if any, and (iv) any and all other charges required to be paid by Borrower pursuant to any

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provision of this Mortgage, the Note or any other document securing the Note shall become and be immediately due and payable, anything in the Note or in this Mortgage to the contrary notwithstanding; and

II.            Lender personally, or by its agents or attorneys, may enter into and upon all or any part of the Mortgaged Property, and each and every part thereof, and is hereby given a right and license and appointed Borrower’s attorney-in-fact to do so, and may exclude Borrower, its agents and servants, wholly therefrom; and having and holding the same, may use, operate, manage and control the Mortgaged Property and conduct the business thereof either personally or by its superintendents, managers, agents, servants, attorneys or receivers; and upon every such entry, Lender, at the expense of the Mortgaged Property, from time to time, either by purchase, repairs or construction, may maintain and restore the Mortgaged Property, whereof it shall become possessed as aforesaid; and likewise, from time to time, at the expense of the Mortgaged Property, Lender may make all necessary or proper repairs, renewals and replacements and such alterations, additions, betterments and improvements thereto and thereon as to it may seem advisable; and in every such case Lender shall have the right to manage and operate the Mortgaged Property and to carry on the business thereof and exercise all rights and powers of Borrower with respect thereto either in the name of Borrower or otherwise as it shall deem best; and Lender shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and every part thereof, all of which shall for all purposes constitute property of Borrower; and in furtherance of such right, Lender may collect the rents payable under all Leases directly from the lessees thereunder upon notice to each such lessee that an Event of Default exists under this Mortgage accompanied by a demand on such lessee for the payment to Lender of all rents due and to become due under its Lease, and Borrower, for the benefit of Lender and each such lessee, hereby covenants and agrees that the lessee shall be under no duty to question the accuracy of Lender’s statement of default and shall unequivocally be authorized to pay said rents to Lender without regard to the truth of Lender’s statement of default and notwithstanding notices from Borrower disputing the existence of an Event of Default such that the payment of rent by the lessee to Lender pursuant to such a demand shall constitute performance in full of the lessee’s obligation under the Lease for the payment of rents by the lessee to Borrower; and after deducting the expenses of conducting the business thereof and of all maintenance, repairs, renewals, replacements, alterations, additions, betterments, and improvements and amounts necessary to pay for taxes, assessments, insurance and prior or other proper charges upon the Mortgaged Property or any part thereof, as well as just and reasonable compensation for the services of Lender and for all attorneys, counsel, agents, clerks, servants and other employees by it engaged and employed, Lender shall apply the moneys arising as aforesaid, first, to the payment of (i) any and all charges required to be paid by Borrower pursuant to any provision of this Mortgage, the Note or any other document securing the Note, (ii) any prepayment premium due under the Note, if any, (iii) all accrued and unpaid interest due under the Note, and (iv) the outstanding principal of the Note, when and as the same shall become payable; and

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III.                   Lender may, either with or without entry or taking possession of the Mortgaged Property as provided in this Mortgage or otherwise, personally or by its agents or attorneys, and without prejudice to the right to bring an action for foreclosure of this Mortgage, sell the Mortgaged Property or any part thereof pursuant to any procedures provided by applicable law, including, without limitation, the procedures set forth in Article 14 of the New York Real Property Actions and Proceedings Law (and any amendments or substitute statutes in regard thereto), and all estate, right, title, interest, claim and demand therein, and right of redemption thereof, at one or more sales as an entity or in parcels, and at such time and place upon such terms and after such notice thereof as may be required or permitted by applicable law.

IV.                  Notwithstanding and in addition to the provisions of Section III hereinabove set forth, Lender, with or without entry personally or by its agents or attorneys, insofar as applicable, may:

(1)                   institute proceedings for the complete or partial foreclosure of this Mortgage; or

(2)                   take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific performance of any covenant, condition or agreement in the Note or in this Mortgage, or in aid of the execution of any power granted in this Mortgage, or for any foreclosure under this Mortgage, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as Lender may elect.

SECTION 2.02.             Sale by Lender.

(a)                    Time and Place of Sale.  Lender may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and, except as otherwise provided by applicable provision of law, Lender, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.

(b)                   Transfer of Mortgaged Property; Borrower Ratification.  Upon the completion of any sale or sales made by Lender under or by virtue of this Article II, Lender, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument or instruments conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. Lender is hereby appointed the true and lawful attorney irrevocable of Borrower, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Mortgaged Property and rights so sold and for that purpose, Lender may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more persons with like power, Borrower hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do so by virtue hereof. Nevertheless, Borrower, if requested by Lender, shall ratify and confirm any such

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sale or sales by executing and delivering to Lender or to such purchaser or purchasers all such instruments as may be advisable, in the judgment of Lender, for the purpose, and as may be designated in such request. Any such sale or sales made under or by virtue of this Article II, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Borrower in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Borrower and against any and all persons claiming or who may claim the same, or any part thereof from, through or under Borrower.

(c)                    Note Due on Sale.  In the event of any sale or sales made under or by virtue of this Article II (whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale), the entire principal of, and interest on, the Note, if not previously due and payable, and all other sums, including the prepayment premium, if any, required to be paid by Borrower pursuant to this Mortgage or the Note, immediately thereupon shall, anything in the Note or in this Mortgage to the contrary notwithstanding, become due and payable.

(d)                   Application of Sale Proceeds.  The purchase money, proceeds or avails of any sale or sales made under or by virtue of this Article II, together with any other sums which then may be held by Lender under this Mortgage, whether under the provisions of this Article II or otherwise, shall be applied as follows:

First: To the payment of the costs and expenses of such sale, including reasonable compensation to Lender, its agents and counsel, and of any judicial proceedings wherein the same may be made, and of all reasonable expenses, liabilities and advances made or incurred by Lender under this Mortgage, together with interest at the Involuntary Rate on all advances made by Lender, and of all taxes, assessments or other charges, except any taxes, assessments or other charges subject to which the Mortgaged Property shall have been sold.

Second: To the payment of any other sums required to be paid by Borrower pursuant to any provision of this Mortgage or of the Note or any other documents securing the Note, including any prepayment premium due under the Note, if any.

Third: To the payment of the whole amount then due, owing or unpaid upon the Note for interest and principal, with interest on the unpaid principal at the Involuntary Rate from and after the happening of any Event of Default described in Section 2.01 hereof from the due date of any such payment of principal until the same is paid.

Fourth: To the payment of the surplus, if any, to whomsoever may be lawfully entitled to receive the same.

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(e)           Acquisition of Mortgaged Property by Lender.  Upon any sale or sales made under or by virtue of this Article II, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, Lender may bid for and acquire the Mortgaged Property or any part thereof and in lieu of paying cash thereunder may make settlement for the purchase price by crediting upon the indebtedness secured by this Mortgage the net sales price after deducting therefrom the reasonable expenses of the sale and the costs of the action and any other sums which Lender is authorized to deduct under this Mortgage.

SECTION 2.03.             Borrower’s Liability.

(a)                  Accelerated Payment.  In case an Event of Default shall have occurred and be continuing, then, upon written demand of Lender, Borrower will pay to Lender the whole amount which then shall have become due and payable upon the Note, for principal or interest or both, as the case may be, and will also pay to Lender interest at the Involuntary Rate on the then unpaid principal of the Note, and the sums required to be paid by Borrower pursuant to any provision of this Mortgage, and, in addition thereto, such further amount as shall be sufficient to cover the costs and reasonable expenses of collection, including reasonable compensation to Lender, its agents and counsel and any reasonable expenses incurred by Lender hereunder. In the event Borrower shall fail forthwith to pay such amounts upon such demand, Lender shall be entitled and empowered to institute such action or proceedings at law or in equity as may be advised by its counsel for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against Borrower and collect, out of the property of Borrower wherever situated, as well as out of the Mortgaged Property, in any manner provided by law, moneys adjudged or decreed to be payable.

(b)                  Accelerated Judgment.  Lender shall be entitled to recover judgment as aforesaid either before, after or during the pendency of any proceedings for the enforcement of the provisions of this Mortgage; and the right of Lender to recover such judgment shall not be affected by any entry or sale hereunder, or by the exercise of any other right, power or remedy for the enforcement of the provisions of this Mortgage, or the foreclosure of the lien hereof; and in the event of a sale of the Mortgaged Property, and of the application of the proceeds of sale, as in this Mortgage provided, to the payment of the Debt, Lender shall be entitled to enforce payment of, and to receive all amounts then remaining due and unpaid upon, the Note, and to enforce payment of all other charges, payments and costs due under this Mortgage, and shall be entitled to recover judgment for any portion of the Debt remaining unpaid, with interest at the Involuntary Rate. In case of proceedings against Borrower in insolvency or bankruptcy or any proceedings for its reorganization or involving the liquidation of its assets, then Lender shall be entitled to prove the whole amount of principal and interest due upon the Note to the full amount thereof, and all other payments, charges and costs, including the prepayment premium due under this Mortgage and the Note, without deducting therefrom any proceeds obtained from the sale of

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the whole or any part of the Mortgaged Property; provided, however, that in no case shall Lender receive a greater amount than such principal and interest and such other payments, charges and costs from the aggregate amount of the proceeds of the sale of the Mortgaged Property and the distribution from the estate of Borrower.

(c)                   Non-Limitation of Lender’s Rights.  No recovery of any judgment by Lender and no levy of an execution under any judgment upon the Mortgaged Property or upon any other property of Borrower shall affect in any manner or to any extent, the lien of this Mortgage upon the Mortgaged Property or any part thereof, or any liens, rights, powers or remedies of Lender hereunder, but such liens, rights, powers and remedies of Lender shall continue unimpaired as before.

(d)                  Application of Judgment Proceeds.  Any moneys thus collected by Lender under this Section shall be applied by Lender in accordance with the provisions of clause (d) of Section  2.02 hereof.

SECTION 2.04.             Receiver.  During the existence of any Event of Default and immediately upon the commencement of any action, suit or other legal proceedings by Lender pursuant to any provision of this Mortgage, or of any other nature in aid of the enforcement of the Note or of this Mortgage, Borrower will if required by Lender, consent to the appointment of a receiver or receivers of the Mortgaged Property and of all the earnings, revenues, rents, issues, profits and income thereof. During the existence of any Event of Default, or upon, or at any time after, the commencement of any proceedings to foreclose this Mortgage or to enforce the specific performance hereof or in aid thereof or upon, or at any time after, the commencement of any other judicial proceeding to enforce any right of Lender, Lender shall be entitled, as a matter of right, if it shall so elect, without the giving of notice to any other party and without regard to the adequacy or inadequacy of any security for the indebtedness secured by this Mortgage, forthwith either before or after declaring the unpaid principal of the Note to be due and payable, to the appointment of such a receiver or receivers. Such appointment may be made either before or after any foreclosure sale without regard to the solvency or insolvency of Borrower at the time of application for such receiver and without regard to the then value of the Mortgaged Property and Lender may be appointed as such receiver. Such receiver shall have power: (a) to collect the rents, issues and profits of the Mortgaged Property and, in case of a foreclosure sale and a deficiency, during the full statutory period of redemption, whether there be redemption or not, as well as during any further times when Borrower, except for the intervention of such receiver, would be entitled to collect such rents, issues and profits, (b) to extend or modify any then existing Leases and to make new Leases, which extensions, modifications and new Leases may provide for terms to expire, or for options to lessees to extend or renew terms to expire, beyond the maturity date of the indebtedness secured by this Mortgage and beyond the date of the issuance of a deed or deeds to a purchaser or purchasers at a foreclosure sale, it being understood and agreed that any such Leases, and the options or other such provisions to be contained therein, shall be binding upon Borrower and all persons whose interests in the Mortgaged Property are

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subject to the lien hereof and upon the purchaser or purchasers at any foreclosure sale, notwithstanding any redemption from sale, discharge of the indebtedness secured hereby, satisfaction of any foreclosure decree, or issuance of any certificate of sale or deed to any purchaser, and (c) all other powers which may be necessary or are usual in such cases for the protection, possession, control, management and operation of the Mortgaged Property during the whole of said period. The court from time to time may authorize the receiver to apply the net income in his hands in payment in whole or in part of: (a) the indebtedness secured by this Mortgage, or by any decree foreclosing this Mortgage, or any tax, special assessment or other lien which may be or become superior to the lien hereof or of such decree, provided such application is made prior to foreclosure sale, and (b) all rents due or which may become due under the Ground Lease.

SECTION 2.05.               Lender Control.  Notwithstanding the appointment of any receiver, liquidator or trustee of Borrower, of any of its property, or of the Mortgaged Property or any part thereof, Lender shall be entitled to retain possession and control of all property now or hereafter held under this Mortgage.

SECTION 2.06.             Non-Waiver.  No remedy conferred upon or reserved to Lender in this Mortgage is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission of Lender to exercise any right or power accruing upon any Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Event of Default or any acquiescence therein; and every power and remedy given by this Mortgage to Lender may be exercised from time to time as often as may be deemed expedient by Lender and as permitted by this Mortgage. Nothing in this Mortgage or in the Note shall affect the obligation of Borrower to pay the principal of, and interest on, the Note in the manner and at the time and place therein respectively expressed.

SECTION 2.07.             Waiver of Right of Redemption.  Borrower will not at any time insist upon, or plead, or in any manner whatever claim or take any benefit or advantage of any stay or extension or moratorium law, any exemption from execution or sale of the Mortgaged Property or any part thereof, wherever enacted, now or at any time hereafter in force, which may affect the covenants and terms of performance of this Mortgage, nor claim, take or insist upon any benefit or advantage of any law now or hereafter in force providing for the valuation or appraisal of the Mortgaged Property, or any part thereof, prior to any sale or sales thereof which may be made pursuant to any provision herein, or pursuant to the decree, judgment or order of any court of competent jurisdiction; nor, after any such sale or sales, claim or exercise any right under any statute heretofore or hereafter enacted to redeem the property so sold or any part thereof, and Borrower hereby expressly waives all benefit or advantage of any such law or laws, and covenants not to hinder, delay or impede the execution of any power herein granted or delegated to Lender, but to suffer and permit the execution of every power as though no such law

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or laws had been made or enacted. Borrower, for itself and all who may claim under it, waives, to the extent that it lawfully may, all right to have the Mortgaged Property marshaled upon any foreclosure hereof.

SECTION 2.08.             Use and Occupancy Fee; Surrender of Premises.  During the existence of any Event of Default and pending the exercise by Lender of its right to exclude Borrower from all or any part of the Mortgaged Property, Borrower agrees to pay the fair and reasonable rental value for the actual use and occupancy of the Mortgaged Property or any portion thereof which are in its possession for such period and, upon default of any such payment, will vacate and surrender possession of the Mortgaged Property to Lender or to a receiver, if any, and in default thereof may be evicted by any summary action or proceeding for the recovery or possession of premises for non-payment of rent, however designated.

SECTION 2.09.               Payment of Lender’s Expenses.  In any suit to foreclose the lien hereof (including any partial foreclosure) or to enforce any other remedy of Lender under this Mortgage or the Note, there shall be allowed and included as additional indebtedness in the decree for sale or other judgment or decree all reasonable expenditures and reasonable expenses which may be paid or incurred by or on behalf of Lender for attorneys’ fees, appraiser’s fees, outlays for documentary and expert evidence, stenographer’s charges, publication costs, and costs (which may be estimated as to items to be expended after entry of the decree) of procuring all such abstracts of title, title searches and examinations, title insurance policies, Torrens certificates, and similar data and assurances with respect to title and value as Lender may deem necessary either to prosecute such suit or to evidence to bidders at any sale which may be had pursuant to such decree the true condition of the title to or the value of the Mortgaged Property.

SECTION 2.10.             Lender Right to Cure.  In the event of any default by Borrower in the performance of or compliance with any of the terms, covenants, conditions or obligations to be performed or complied with by Borrower under this Article II, Lender or a lawfully appointed receiver, at their respective options, after notice and the expiration of any grace period, upon ten (10) days’ prior written notice to Borrower stating the nature of the default (or upon shorter notice, or with no notice at all, if necessary to meet an emergency situation or a governmental or municipal time limitation), may perform the same, and may enter upon the Mortgaged Property for any of the foregoing purposes, and the cost thereof shall be paid by Borrower to Lender upon demand and shall be added to the Debt and secured by the lien of this Mortgage.

ARTICLE III

MISCELLANEOUS

SECTION 3.01.             Severability.  In the event any one or more of the provisions contained in this Mortgage or in the Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Mortgage, but this Mortgage shall be construed as if such invalid, illegal

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or unenforceable provision had never been contained herein or therein.

SECTION 3.02.             Notices.  All notices hereunder shall be in writing and shall be deemed sufficiently given or served for all purposes when delivered (i) by personal service, and shall be deemed given on the date when signed for or, if refused, when refused by the person designated as an agent for receipt of service, or (ii) by nationally recognized overnight courier service for next-business day delivery, and shall be deemed given on the next business day after being so sent, or (iii) by facsimile transmission and shall be deemed given when printed confirmation of completion of transmission is generated by the sender’s facsimile transmission instrument, to any party hereto at its address below stated.

If to Lender:
	[NYTC Entity]
	c/o The New York Times Company
	229 West 43rd Street
	New York, New York 10036
	Attention: David Thurm
with a copy to:
	New York Times Company
	229 West 43rd Street
	New York, New York 10036
	Attention:	Solomon B. Watson IV, Esq. General Counsel
with a copy to:
	Swidler Berlin Shereff Friedman, LLP 405 Lexington Avenue New York, New York 10174 Attention: Martin D. Polevoy, Esq.
If to Borrower:
	FC Lion LLC
	One MetroTech Center North Brooklyn, New York 11201 Attention: General Counsel
with a copy to:

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	Kelley Drye & Warren LLP 101 Park Avenue New York, New York 10178 Attention: James J. Kirk, Esq.
and
	INGREDUS Site 8 South LLC c/o Clarion Partners 335 Madison Avenue New York, New York  10017 Attn: Mr. Charles Grossman Telephone: (212) 883-2500
with a copy to:	INGREDUS Site 8 South LLC
	c/o Clarion Partners 601 13th Street, N.W. Suite 450 North Washington, DC 20005 Attn: Mr. Martin Standiford Telephone: (202) 879-9495
and to:	Skadden, Arps, Slate, Meagher & Flom LLP
	Four Times Square New York, New York 10036 Attn: Benjamin F. Needell, Esq. Telephone: (212) 735-2600

or such other address of which a party shall have notified the party giving such notice in writing as aforesaid. For purposes hereof, notices may be given by the parties hereto or by their attorneys identified above.

SECTION 3.03.             Successors and Assigns.  All of the grants, covenants, terms, provisions and conditions of this Mortgage shall run with the land and shall apply to, bind and inure to the benefit of, the successors and assigns of Borrower and the successors and assigns of Lender.

SECTION 3.04.             Limitations of Law.  That if, from any circumstances whatever, fulfillment of any provision of this Mortgage, the Note which it secures or any other instrument securing or evidencing this loan, shall transcend the limit of validity prescribed by the usury statute or any other law of the State of New York, then ipso facto the obligation to be fulfilled

29

shall be reduced to the limit of such validity so that in no event shall any exaction be possible under this Mortgage, the Note or such other instrument that is in excess of the limit of such validity, but such obligation shall be fulfilled to the limit of such validity. And in no event shall the Borrower, heirs, representatives, successors or assigns, be bound to pay for the use or detention of the money loaned and secured hereby, or the Lender’s forbearance in collecting same, interest of more than the maximum rate lawfully collectible in accordance with the applicable laws of the State of New York; the right to demand any such excess shall be and is hereby waived. The provision of this paragraph shall control every other provision of this Mortgage, the Note which it secures and any other undertaking, agreement or document evidencing, supporting or securing this loan.

SECTION 3.05.Counterparts.  This Mortgage may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same mortgage.

SECTION 3.06.               Future Mortgage Taxes.  In the event of the passage after the date of this Mortgage of any law of the State of New York deducting from the value of real property for the purpose of taxation any lien or encumbrance thereon or changing in any way the laws for the taxation of mortgages or debts secured by mortgages for state or local purposes or the manner of the collection of any such taxes, and imposing a tax, either directly or indirectly, on this Mortgage, the Note or the Debt, Borrower shall, if permitted by law, pay any tax imposed as a result of any such law within the statutory period or within fifteen (15) days after demand by Lender, whichever is less, provided, however, that if, in the opinion of the attorneys for Lender, Borrower is not permitted by law to pay such taxes, Lender shall have the right, at its option, to declare the Debt due and payable, without prepayment premium, on a date specified in a prior notice to Borrower of not less than thirty (30) days.

SECTION 3.07.             Real Property Law.  All covenants and conditions contained in this Mortgage, other than those included in the New York Statutory Short Form of Mortgage, shall be construed as affording to Lender rights additional to, and not exclusive of, the rights conferred under the provisions of Section 254 of the Real Property Law of the State of New York.

SECTION 3.08.             Stamp Tax.  If at any time the United States of America, any state

thereof or any governmental subdivision of any such state, shall require revenue or other stamps to be affixed to the Note or this Mortgage, Borrower will pay for the same, with interest and penalties thereon, if any.

SECTION 3.08.             Cover Sheet.  The information set forth on the cover of this Mortgage is hereby incorporated herein.

SECTION 3.09.             New York Law.  The terms of this Mortgage shall be construed in accordance with the laws of the State of New York.

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SECTION 3.10.             No Member Liability.  In no event shall any member in Borrower be liable for any amount outstanding hereunder, but the foregoing shall not be deemed to limit the liability of Forest City Enterprises, Inc. under that certain Guaranty executed and delivered to Lender of even date herewith.

SECTION 3.11.             Non-Residential Dwelling.  This Mortgage does not cover real property principally improved or to be improved by one or more structures containing in the aggregate not more than six residential dwelling units, each having their own separate cooking facilities.

SECTION 3.12.             Partial Payments.  Borrower hereby acknowledges and agrees that Lender shall have the right to apply any partial payments made by Lender on account of principal, interest, tax escrow installments or tax arrears in any manner that Lender, in its sole discretion, shall determine.

SECTION 3.13.             Hazardous Materials.

(a)           Representations and Warranties.  Borrower represents and warrants that:

1.To the best of Borrower’s knowledge after due and diligent inquiry, no Hazardous Materials have been or are stored, treated, disposed of, buried or incorporated into the Mortgaged Property, nor has any uncontrolled loss, seepage or filtration of Hazardous Materials occurred on the Mortgaged Property;

2.To the best of Borrower’s knowledge after due and diligent inquiry, the Leasehold Premises are in compliance with all applicable statutes and regulations, including environmental, health and safety requirements;

3.To the best of Borrower’s knowledge after due and diligent inquiry, Borrower has no notice of any pending or threatened action or proceeding arising out of the condition of the Mortgaged Property or any alleged violation of environmental health or safety statutes, ordinances or regulations;

4.To the best of Borrower’s knowledge after due and diligent inquiry, all governmental permits required to operate whatever business is contemplated on the Leasehold Premises are and will continue to be in full force and effect and no condition exists which might threaten the validity of such permits; and

5.Neither Borrower, nor any person or entity acting under or through Borrower (including, without limitation, any tenant of the Leasehold Premises) has been, is or will be involved in operations at or near the Leasehold Premises which operations could lead to

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(A) the imposition of liability on Borrower, or on any subsequent owner of the Leasehold Premises or (B) the creation of a lien on the Mortgaged Property under the Hazardous Waste Laws or under similar laws or regulations; and (ii) Borrower has not permitted and will not permit, any tenant or occupant of the Leasehold Premises to engage in any activity that could impose liability under the Hazardous Waste Laws (hereinafter defined) on any other owner of any of the Mortgaged Property.

(b)Removal of Hazardous Materials.  Borrower, at its sole cost and expense, agrees to ameliorate and remove from the Leasehold Premises with all due care, any contamination of Hazardous Materials which may be discovered on the Leasehold Premises, in a safe manner, and to a safe degree, in accordance with applicable law, as the same may be changed from time to time and to monitor or cause to be monitored the levels of Hazardous Materials in the ground water in accordance with the terms and procedures as may be required by federal, state, or local governmental agencies having jurisdiction including, but not limited to, any Regional Water Quality Control Board and the Environmental Protection Agency. “Hazardous Material(s)” for purposes of this Section 3.14 shall mean all toxic or hazardous materials, chemicals, wastes or similar substances, including, without limitation, asbestos insulation and/or urea formaldehyde insulation and any other materials or substances deemed to be hazardous substances by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 6901, et seq., the Resource Conservation and Recovery Act 42 U.S.C. Section 6901, et seq., or any other applicable federal, state or municipal law, regulation, ordinance or requirement pertaining to Hazardous Materials, all as amended or hereafter amended (collectively “Hazardous Waste Laws”), introduced into the Leasehold Premises by Borrower or any person or entity acting under or through Borrower (including, without limitation, any tenant of the Leasehold Premises).  “Petroleum” for purposes of this Section 3.14 shall include, without limitation, crude oil or any fraction thereof which is liquid at standard conditions of temperature or pressure.

(c)Indemnification.  Borrower shall indemnify and save harmless Lender and its agents, representatives, partners, and employees, its successors and assigns (individually and collectively “Indemnitee”), each of them, jointly and severally, from and against:

1.             Any and all claims, demands, causes of action, damages, costs, losses, debts, obligations, judgments, charges, expenses, lawsuits and liabilities, at law or in equity, of every kind or nature whatsoever under or on account of Hazardous Waste Laws or any similar laws or regulations, including, but not limited to, (i) injury to or death of any person or persons and damage to or destruction of the Mortgaged Property, threatened, brought or instituted, arising out of or in any manner directly or indirectly connected with Hazardous Materials introduced by Borrower or anyone acting under or through Borrower (including any tenant of Borrower) into the Leasehold Premises after the date of the completion of the core and shell of the Improvements, or (ii) resulting from a breach of Borrower’s representation and warranties set forth above, Borrower’s obligations under this Section 3.14 and/or any ameliorative work performed by Borrower or any entity authorized by Borrower;

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2.                     Any and all penalties threatened, sought, or imposed on account of a violation of any laws, statutes, regulations or ordinances pertaining to the Hazardous Materials, or Borrower’s obligations hereunder;

3.                     Any discharge of Hazardous Materials, the threat of a discharge of any Hazardous Materials, or the presence of any Hazardous Materials affecting the Leasehold Premises including any loss of value of the Mortgaged Property as a result of any of the foregoing; and

4.                     Any costs of removal or remedial action incurred by the United States Government or any costs incurred by any other person or damages from injury to, destruction of, or loss of natural resources, including reasonable costs of assessing such injury, destruction or loss incurred pursuant to any Hazardous Waste Laws from the Mortgaged Property.

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IN WITNESS WHEREOF, this Mortgage has been duly executed by Borrower and Lender as of the day first above written.

FC LION LLC
By:	FC 41st Street Associates, LLC its managing member
	By:	RRG 8 South, Inc., its managing member
		By:
		Its:
LENDER:
[                                                                    ]
By:
	Name:
	Title:

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STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the           of             200   , before me, the undersigned, personally appeared                       , personally known to me or proved to me on the basis of satisfactory evidence to be the person 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 entity upon behalf of which the individual acted, executed the instrument.

Notary Public

STATE OF NEW YORK	)
	)	ss.:
:COUNTY OF NEW YORK	)

On the             of200   , before me, the undersigned, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person 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 entity upon behalf of which the individual acted, executed the instrument.

Notary Public

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EXHIBIT A

Mortgage Schedule

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EXHIBIT B

Property Description

The Condominium Units (in the Building known as The New York Times Building Condominium and located at and known as and by Street Number          Eighth Avenue, New York, New York) designated and described as Units                         and          (hereinafter called the “Units”) in the Declaration of Leasehold Condominium (hereinafter called “Declaration” made by the Grantor under the Condominium Act of The State of New York) datedand recordedin the Office of the Register of The City of New York, County of New York, in Reel, P.establishing a plan for leasehold condominium ownership of said building and the land upon which the same is erected (hereafter sometimes collectively called the “Property”) and also designated and described as Tax Lots Nos., Block              , Section             , Borough of Manhattan, on the Tax Map of the Real Property Assessment Department of the City of New York and on the Floor Plans of said Building certified by A.I. A. of Fox & Fowle, Architects on             and filed as Condominium Plan No.onin the aforesaid Register’s Office.

The land upon which the Building containing the Units is erected is 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 comer 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.

Being the property located at and known as                   , New York, New York and also being Section, Block         , Lots           on the Tax Assessment Map of the County of New York.

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FC LION LLC
a New York limited liability company

Assignor

Notice Address: One MetroTech Center North
Brooklyn, New York 11201

to

[NYTC ENTITY]

a New York

Assignee

Notice Address: The New York Times Company

229 West 43^rd Street

New York, New York 10036

Attention: General Counsel

ASSIGNMENT OF LEASES AND RENTS

Dated: as of             , 200  

Note Amount: $                   

Maturity Date:                 

Location:                 Eighth Avenue

New York, New York              

Tax Map Designation:

Block:     

Lots:     

THIS DOCUMENT PREPARED BY AND RECORD AND RETURN TO:

Swidler Berlin Shereff Friedman LLP

405 Lexington Avenue

New York, New York 10174

Attn: Martin D. Polevoy, Esq.

ASSIGNMENT OF LEASES AND RENTS

ASSIGNMENT (this “Assignment”) MADE AS OF THIS         dayof          , 200by FC LION LLC, a New York limited liability company having an address at (“Assignor”) in favor of [NYTC ENTITY] a New York limited liability company having an address at (“Assignee”).

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor does hereby absolutely, presently and irrevocably assign, transfer and set over unto Assignee the following:

A.All of the right, title and interest of Assignor in and to those certain lease(s) affecting all or a portion of the Assignor’s interest in real property more particularly described on Exhibit A hereto (the “Premises”) which lease(s) are listed on Exhibit B hereto, and all other and future lease(s) of the Premises, and all modifications, renewals, and extensions of the lease(s) listed on Exhibit B and of other and future lease(s), and guarantees, if any, of the lessee’s obligations under said lease(s) listed on Exhibit B and under other and future lease(s). Each of said lease(s) and other and future lease(s) and all modifications, renewals and extensions and guarantees, if any, relating thereto are hereinafter collectively referred to as the “Lease(s)”; and

B.All rents, issues, income, proceeds and profits arising from the Lease(s) and from the use and occupancy of the Premises, including, without limitation, all fixed and additional rents, cancellation payments, and all sums due and payments made under any guarantee of any of the Lease(s) or any obligations thereunder  (collectively “Rents”).

C.All rights, powers, privileges, options and other benefits of Assignor under the Leases, including without limitation the immediate and continuing right to make claim for, receive, collect and receipt for all Rents, including the right to make such claim in a proceeding under the Bankruptcy Code (hereinbelow defined), and the right to apply the same to the payment of the Debt (hereinbelow defined).

THIS ASSIGNMENT is an absolute, present and irrevocable assignment and is made for the purpose of securing:

A. The payment of all sums and indebtedness now or hereafter due under that certain Substitute Extension Loan Note and any amendments, extensions or renewals thereof, (the Substitute Extension Loan Note together with all amendments, extensions or renewals thereof is hereinafter

referred to as the “Note”) in the original principal sum of DOLLARS ($) made by Assignor to Assignee, and dated of even date herewith, which Note is also secured by a Substitute Extension Loan Mortgage and Security Agreement (Leasehold) (the Substitute Extension Loan Mortgage and Security Agreement (Leasehold) together with all amendments, extensions or renewals thereof is hereinafter called the “Mortgage”) dated of even date herewith, and intended to be duly recorded concurrently herewith.

B.             The performance and discharge of each and every obligation, covenant and agreement of Assignor under this Assignment, the Note, the Mortgage and any other instruments securing the Note (collectively the “Loan Documents”).

C.             The payment of all sums now and hereafter becoming due and payable under the Loan Documents (hereinafter the “Debt”).

THIS ASSIGNMENT is made on the following covenants, terms and conditions:

SECTION 1. ASSIGNOR’S COVENANTS AND WARRANTIES

Assignor hereby covenants and warrants to Assignee as follows:

(a)                   Assignor has not executed any prior assignment of the Leases or Rents, except for that Assignment of Leases and Rents made to Assignee in connection with the First Mortgage (as defined in the Mortgage) nor has it performed any act or executed any other instrument which might prevent Assignor from fulfilling any of the terms and conditions of this Assignment or which might prevent Assignee from operating under any of the terms and conditions of this Assignment or which would limit Assignee in such operation;

(b)                   Assignor has not executed or granted any modification whatsoever of any of the Lease(s), except as indicated on Exhibit B; the Lease(s) are in full force and effect; and there are no defaults now existing under the Lease(s), or any conditions which, after notice, passage of time, or both would constitute material defaults, except as described in Schedule 1 to the Rent Roll Certification made by Assignor of even date herewith;

(c)                   Assignor will observe and perform all the obligations imposed upon the lessor under any Lease(s) and will not do or permit to be done anything to impair any of the Lease(s);

(d)                   Assignor will not collect any of the rents, issues, income, proceeds and profits arising or accruing under the Lease(s) or from the Premises (except security deposits) for more than one (1) month in advance of the time when the same shall become due under the Lease(s) nor execute any other assignment of the Lease(s) or assignment of rents, issues, income, proceeds or profits with respect to the Premises; and

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(e)           Except as permitted under the Declaration (as such term is defined in the Mortgage), Assignor will not enter into new Lease(s) or alter or modify the terms of the Lease(s), give any consent or exercise any option, accept a surrender thereof, or consent to any assignment of or subletting under the Lease(s), and Assignor shall not take any action referred to in this clause (e) unless the consent of the holder of the First Mortgage to such action shall have been obtained if and to the extent required under the First Mortgage.

SECTION 2. ABSOLUTE ASSIGNMENT OF LEASE(S); FIRST MORTGAGE

Assignor and Assignee intend that this Assignment constitute a present, irrevocable and absolute assignment of the Lease(s) and Rents, and not an assignment for additional security only. Subject to the terms of this Section 2, Assignee grants to Assignor a revocable license (“License”) to collect and receive the Rents. Assignor hereby agrees that Assignee may authorize and direct the lessee(s) named in the Lease(s), and any other occupants of the Premises, and all Lease guarantors, to pay over to Assignee or such other party as Assignee may direct, all Rents, upon receipt from Assignee of written notice to the effect that an Event of Default (defined below) exists, and to continue to do so until the lessees are otherwise notified by Assignee.

This Assignment is in all respects subject and subordinate to the First Mortgage (as defined in the Mortgage) and to all modifications, renewals and extensions thereof subject to and in accordance with that certain Subordination and Intercreditor Agreement of even date herewith between Assignee and the holder of the First Mortgage.

SECTION 3. REVOCATION OF LICENSE

Upon or at any time after the occurrence of a default under this Assignment after any applicable notice or cure period herein provided for, or an Event of Default as defined in the Note or Mortgage (collectively, an “Event of Default”), the License granted to Assignor in Section 2 of this Assignment shall automatically be revoked without the need of any action by Assignee, and Assignee shall immediately be entitled to receipt and possession of all Rents, whether or not Assignee enters upon or takes control of the Premises.

Upon demand by Assignee following the occurrence of an Event of Default, Assignor shall immediately deliver to Assignee all Rents in the possession of Assignor or its agents, and shall cooperate in instructing Assignor’s agents and the lessee(s) under the Leases(s) and all others in possession of the Premises or any portion thereof to pay directly to Assignee all Rents.

Upon revocation of the License, Assignee may, at its option, without waiving such Event of Default and without notice or regard to the adequacy of the security for the Debt, either in person or by agent, nominee or attorney, or by a receiver appointed by a court, with or without bringing any action or proceeding, dispossess Assignor and its agents and servants from the

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Premises, without liability for trespass, damages or otherwise, and exclude Assignor and its agents from the Premises.

Upon revocation of the License, Assignee may also take possession of the Premises, and all books, records and accounts relating thereto and have, hold, manage, lease and operate the Premises on such terms and for such period of time as Assignee may deem proper. In addition, and with or without taking possession of the Premises, Assignee, in its own name, may demand, sue for or otherwise collect and receive all Rents, including those past due and unpaid and may apply any Rents collected in such order of priority as Assignee in its sole discretion deems appropriate, to the payment of:

(a)           all expenses of managing the Premises, including, without limitation, the salaries, fees and wages of a managing agent and such other persons or entities as Assignee may deem necessary or desirable, and all expenses of operating and maintaining the Premises, including, without limitation, all taxes, claims, assessments, ground rents, water rents, sewer rents and any other liens or charges, and premiums for all insurance which Assignee may deem necessary or desirable, and the cost of all alterations, renovations, repairs or replacements, and all expenses incident to taking and retaining possession of the Premises;

(b)                  the Debt; and

(c)            all costs and reasonable attorneys’ fees incurred in connection with the enforcement of this Assignment and any of the Loan Documents.

SECTION 4. NO LIABILITY OF ASSIGNEE

This Assignment shall not be construed to bind Lender to the performance of any of the covenants, conditions, or provisions contained in any Lease, or otherwise impose any obligation upon Assignee. Assignee shall not be liable for any loss sustained by Assignor resulting from Assignee’s failure to let the Premises after an Event of Default, or from any other act or omission of Assignee either in collecting the Rents, or if Assignee shall have taken possession of the Premises, in managing the Premises after an Event of Default, unless such loss is caused by the willful misconduct or bad faith of Assignee.

SECTION 5. NO MORTGAGEE IN POSSESSION

In the absence of taking of actual possession of the Premises by Assignee, in its own right and person, Assignee (i) shall not be deemed a mortgagee in possession, (ii) shall not be responsible for the payment of any taxes or assessments with respect to the Premises, (iii) shall not be liable to perform any obligation of the lessor under any Lease(s) or under applicable law,

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(iv) shall not be liable to any person for any dangerous or defective condition in the Premises nor for any negligence in the management, upkeep, repair, or control of the said Premises resulting in loss or injury or death to any person, and (v) shall not be liable in any manner for the remediation of any environmental impairment.

SECTION 6. BANKRUPTCY

If there shall be filed by or against Assignor a petition under the United States Bankruptcy Code (the “Bankruptcy Code”), and Assignor, as lessor under any Lease(s), shall determine to reject any Lease(s) pursuant to Section 365(a) of the Bankruptcy Code, the Assignor shall give Assignee not less than ten (10) days’ prior notice of the date on which Assignor shall apply to the bankruptcy court for authority to reject the Lease(s). Assignee shall have the right, but not the obligation, to serve upon Assignor within such ten-day period a notice stating that (i) Assignee demands that Assignor assume and assign the Lease to Assignee pursuant to Section 365 of the Bankruptcy Code and (ii) Assignee covenants to cure or provide adequate assurance of future performance under the Lease(s). If Assignee serves upon Assignor the notice described in the preceding sentence, Assignor shall not seek to reject the Lease(s) and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given, subject to the performance by Assignee of the covenant provided for in clause (ii) of the preceding sentence.

SECTION 7. INDEMNITY OF ASSIGNEE

Assignor hereby indemnifies Assignee for, and holds Assignee harmless from, any and all liability, loss or damage which may be incurred under said Lease(s), or under or by reason of this Assignment, and from any and all claims and demands whatsoever which may be asserted against Assignee by reason of any alleged obligations or undertakings under any of the Lease(s), except for such claims and demands as may result from Assignee’s gross negligence or willful misconduct. Should Assignee incur any such liability under the Lease(s) or under or by reason of this Assignment or in defense of any such claims or demands, the amount thereof, including costs, expenses and reasonable attorneys’ fees, shall be secured by the Mortgage and Assignor shall reimburse Assignee therefor, immediately upon demand and upon the failure of Assignor so to do, Assignee, at its option, may declare all sums secured by the Mortgage immediately due and payable.

SECTION 8. NO WAIVER OF RIGHTS BY ASSIGNEE

Nothing contained in this Assignment and no act done or omitted by Assignee pursuant to the powers and rights granted it hereunder shall be deemed to be a waiver by Assignee of any of its rights and remedies under the Note, Mortgage or any other instrument securing the Note. This

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Assignment is made and accepted without prejudice to any of such rights and remedies possessed by Assignee to collect the Debt and to enforce the Loan Documents, and said rights and remedies may be exercised by Assignee either prior to, simultaneously with, or subsequent to any action taken by it hereunder.

SECTION 9. RELEASES OF PARTIES AND SECURITY

Assignee may take or release other security for the payment of the Debt, may release any party primarily or secondarily liable therefor, and may apply any other security held by it to the satisfaction of any portion of the Debt without prejudice to any of its rights under this Assignment. In no event shall any member in Borrower be liable for any amount outstanding hereunder, but the foregoing shall not be deemed to limit the liability of Forest City Enterprises, Inc. under that certain Guaranty executed and delivered to Assignee of even date herewith.

SECTION 10. FUTURE ASSURANCES

Assignor agrees that it will, from time to time, upon demand therefor by Assignee, deliver to Assignee an executed counterpart of each and every Lease. Further, Assignor agrees that it will execute, acknowledge and record such additional assurances and assignments as Assignee may reasonably request covering any and all of the Lease(s). Such assignments shall be on forms approved by the Assignee, and Assignor agrees to pay all costs incurred in connection with the recording of such assignments.

SECTION 11. AMENDMENTS

This Assignment may not be altered or amended except in a writing, intended for that specific purpose, signed by both Assignor and Assignee.

SECTION 12. HEADINGS AND CAPTIONS

The headings and captions of various sections of this Assignment are for convenience only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof.

SECTION 13. NOTICES

The parties agree that all notices, demands or documents which are required or permitted to be given or served hereunder shall be given in the manner and to the parties as provided in the Mortgage.

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SECTION 14. GOVERNING LAW

This instrument shall be governed by the laws of the jurisdiction in which the Premises are located and, upon the occurrence of an Event of Default, Assignee shall have, in addition to the rights and remedies expressly set forth herein, all rights and remedies available to Assignee as the holder of an assignment of leases, rents, issues and profits in that jurisdiction.

SECTION 15. DISCHARGE

Until the payment in full of the Debt, this Assignment shall continue in full force and effect, whether or not recorded. Assignor hereby authorizes Assignee to furnish to any person written notice, that this Assignment of Leases and Rents remains in effect and agrees that such person may rely upon and shall be bound by such statement. Upon payment in full of the Debt and the delivery and recording of a satisfaction or discharge of Mortgage duly executed, this Assignment shall be terminated, void and of no effect and Assignee shall deliver to assignor an instrument in recordable form confirming such termination.

SECTION 16. SEVERABILITY

If any one or more of the provisions contained in this Assignment shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Assignment but this Assignment shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

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IN WITNESS WHEREOF, the Assignor has duly executed this Assignment as of the date first written above.

Borrower:
FC LION LLC
By:	FC 41st Street Associates, LLC its managing member
	By:	RRG 8 South, Inc. its managing member
		By:
		Its:

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ACKNOWLEDGMENTS

STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the             of200, before me, the undersigned, personally appeared, personally known to me or proved to me on the basis of satisfactory evidence to be the person 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 entity upon behalf of which the individual acted, executed the instrument.

Notary Public

EXHIBIT A

DESCRIPTION OF LAND

The Condominium Units (in the Building known as The New York Times Building Condominium and located at and known as and by Street Number          Eighth Avenue, New York, New York) designated and described as Units                              and     (hereinafter called the “Units”) in the Declaration of Leasehold Condominium (hereinafter called “Declaration” made by the Grantor under the Condominium Act of The State of New York) dated and recordedin the Office of the Register of The City of New York, County of New York, in Reel, P.establishing a plan for leasehold condominium ownership of said building and the land upon which the same is erected (hereafter sometimes collectively called the “Property”) and also designated and described as Tax Lots Nos., Block, Section, Borough of Manhattan, on the Tax Map of the Real Property Assessment Department of the City of New York and on the Floor Plans of said Building certified byA.I. A. of Fox & Fowle, Architects onand filed as Condominium Plan No.         on in the aforesaid Register’s Office.

The land upon which the Building containing the Units is erected is 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 4I^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^lh Street, 400 feet to the point or place of BEGINNING.

Being the property located at and known as                    , New York, New York and also being Section, Block, Lotson the Tax Assessment Map of the County of New York.

EXHIBIT B

LEASES

NAME OF TENANT DATE OF LEASE

EXHIBIT R

Intercreditor Agreement

R-1

EXHIBIT R

[Form of Standstill Agreement]

SUBORDINATION AND INTERCREDITOR AGREEMENT

THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Agreement”) is dated as of               , 2001 between [               ] (together with its successors and assigns, “Senior Lender”), a               , having an office at               , and THE NEW YORK TIMES COMPANY [or an entity designated by NYTC] (together with its successors and assigns, “Subordinate Lender”), a                , having an office at                 .

RECITALS:

A.Senior Lender is the holder of a loan (the “Senior Loan”) to FC Lion LLC, a New York limited liability company (“Borrower”), in the principal amount of $               , which Senior Loan is evidenced by a Mortgage Note (the “Senior Note”) dated               and is secured by a Mortgage and Security Agreement and an Assignment of Leases and Rents (the “Senior Mortgage”) dated                 encumbering Borrower’s leasehold interest in the premises described in Exhibit A attached hereto (the “Property”) and recorded in the Office of the Register of the City of New York, New York County (the “City Register’s Office”) on                               as instrument number                , and by an Assignment of Rents and Leases dated as of               and recorded in the City Register’s Office on               as instrument number               . The documents evidencing and securing the Senior Loan are referred to herein as the “Senior Loan Documents” and the real and personal property encumbered and pledged thereunder are referred to herein as the “Senior Loan Collateral”.

B.Subordinate Lender has made or is about to make a loan (the “Subordinate Loan”) to Borrower in the principal amount of $               , which Subordinate Loan is evidenced by a Modification of Substitute Extension Loan Note (the “Subordinate Note”) and secured by an Assignment of Leases and Rents (the “Assignment of Leases”) and a Mortgage and Security Agreement (the “Subordinate Mortgage”) encumbering the Senior Loan Collateral. The documents evidencing and securing the Subordinate Loan are referred to herein as the “Subordinate Loan Documents”.

C.Subordinate Lender and Senior Lender desire to establish by this Agreement their respective rights and obligations between each other as well as the relative priorities of their rights and remedies with respect to the Senior Loan and the Subordinate Loan.

sufficiency of which are hereby acknowledged and agreed, Subordinate Lender and Senior Lender hereby agree as follows:

1.Consent and Estoppel of Senior Lender. Senior Lender hereby acknowledges and consents to the making of the Subordinate Loan and to the encumbrance of the Senior Loan Collateral evidenced by the Subordinate Loan Documents and, subject to the terms and conditions of this Agreement, agrees that the Subordinate Loan and such encumbrances shall not be deemed to constitute a default under the Senior Loan Documents.

2.Subordination.  (a) Subordinate Lender hereby covenants and agrees with Senior Lender that the lien of the Subordinate Mortgage is, and shall continue to be, subject and subordinate to the lien of the Senior Mortgage and to any extensions, renewals, consolidations, splitters and modifications thereof, and to all advances heretofore made or which hereafter may be made thereon; provided, that except for such advances as may be made pursuant to the terms of the Senior Loan Documents, the principal amount of the Senior Note shall not be increased. Any assignment of rents or leases given in conjunction with the Subordinate Mortgage is and shall in all respects be subject and subordinate to the Senior Mortgage and to any assignment of rents or leases given in conjunction with the Senior Mortgage. The foregoing shall apply notwithstanding the availability of other collateral to Senior Lender or the actual date and time of execution, delivery, recordation, filing or perfection of the Senior Mortgage or the Subordinate Mortgage, or the lien or priority of payment thereof, and notwithstanding the fact that the Senior Loan or any claim for the Senior Loan is subordinated, avoided or disallowed, in whole or in part, under Title 11 of the United States Code (the “Bankruptcy Code”) or other applicable federal or state law. In the event of a proceeding by or against Borrower or a member in Borrower for insolvency, liquidation, reorganization, dissolution, bankruptcy or other similar proceeding pursuant to the Bankruptcy Code or other applicable federal or state law (a “Reorganization Proceeding”), the Senior Loan shall include all interest accrued on the Senior Loan, in accordance with and at the rates specified in the Senior Loan Documents, both for periods before and for periods after the commencement of any of such proceeding, even if the claim for such interest is not allowed pursuant to applicable law.

(b)If any lien or security interest granted to Senior Lender under the Senior Loan Documents is or becomes, for any reason, unenforceable or unperfected, such unenforceability or lack of perfection shall not affect the relative rights, as between Senior

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Lender and Subordinate Lender, which are intended to be created by the Senior Loan Documents, the Subordinate Lender and this Agreement.  Subordinate Lender will not contest the enforceability or perfection of the Senior Loan Documents.

(c)Subordinate Lender will, at Subordinate Lender’s expense and at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further actions, that may be reasonably necessary, or that Senior Lender may reasonably request, to protect any right or interest granted by this Agreement or to enable Senior Lender to exercise and enforce its rights and remedies under this Agreement.

(d)To the extent that Borrower makes a payment or payments to Senior Lender or Senior Lender receives any payment or proceeds of any security for the Senior Loan, which payment(s) or proceed(s) (or any part) are subsequently voided, invalidated, declared to be fraudulent conveyances or preferential transfers, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then, to the extent of the payment(s) or proceeds received by Senior Lender, the Senior Loan (or part intended to be satisfied) will be revived for all purposes of this Agreement and will continue in full force and effect, as if such payment or proceeds had not been received by Senior Lender.

3.Subordinate Loan Defaults.  Subordinate Lender shall send to Senior Lender simultaneously with the delivery of any of the following notices to Borrower, in accordance with the notice provisions set forth in Section 8 hereof, a copy of each written notice or writing or other written communication given by or on behalf of Subordinate Lender with respect to:  (a) any default or event of default under or pursuant to the Subordinate Loan Documents; (b) any documents regarding any agreement or proposed agreement with respect to any foreclosure under the Subordinate Loan Documents, including, but not limited to, any deed in lieu of foreclosure; and (c) the exercise by Subordinate Lender of any other rights or remedies under the Subordinate Loan Documents.

4.Senior Loan Defaults. (a) Senior Lender shall send to Subordinate Lender simultaneously with the delivery of any of the following notices to Borrower, in accordance with the notice provisions set forth in Section 8 hereof, a copy of each written notice or writing or other written communication given by or on behalf of such Senior Lender with respect to: (i) any default or event of default under or pursuant to the Senior Loan Documents; (ii) any documents regarding any agreement or proposed agreement with respect to any foreclosure with respect to the Senior Loan Collateral, including, but not limited to, any deed in lieu of foreclosure; and (iii) the exercise by Senior Lender of any other

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rights or remedies under the Senior Loan Documents (collectively herein referred to as a “Senior Lender Notice”).

(b)Notwithstanding anything to the contrary contained in the Senior Loan Documents, (i) Subordinate Lender shall have the right, but not the obligation, to cure any default under the terms of any of the Senior Loan Documents which can be cured with the payment of a sum of money, on or before the tenth (10^th) day after Senior Lender has given a Senior Lender Notice of such default (and, in the event that Subordinate Lender and/or Borrower successfully cures such default, Senior Lender shall not commence any acceleration, foreclosure action or other proceeding against the Senior Loan Collateral, and any amounts expended or paid by Subordinate Lender to cure such default shall be deemed permitted advances under the Subordinate Loan Documents and under this Agreement without the further consent of Senior Lender); and (ii) in the event of a default by Borrower, and in lieu of the cure right set forth in clause (i) of this subparagraph (b), Subordinate Lender shall have the right, but not the obligation, on or before the forty-fifth (45^th) day after Senior Lender has given a Senior Lender Notice of such default, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the unpaid principal balance (including any protective advances made by Senior Lender) and any accrued and unpaid interest thereon (without any prepayment premium or penalty, including any default interest rate) under the Senior Loan Documents together with any reasonable counsel fees incurred by the Senior Lender in connection with such assignment.

(c)Notwithstanding anything to the contrary set forth in the Senior Loan Documents, if the default so specified in a Senior Lender Notice is the failure of Borrower to observe or perform any covenant, promise or agreement in any Senior Loan Document, other than the payment of indebtedness or money, Subordinate Lender shall have the right, but not the obligation, (i) to cure such default by observing or performing such covenant, promise or agreement, or (ii) to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the unpaid principal balance (including any protective advances made by Senior Lender) and any accrued and unpaid interest thereon (without any prepayment premium or penalty including default interest rate) under the Senior Loan Documents together with any reasonable counsel fees incurred by the Senior Lender in connection with such assignment, in either such case, on or before the forty-fifth (45^th) day after Senior Lender has given a Senior Lender Notice of such default. If the default is not susceptible of cure within such forty-five (45) day period, Subordinate Lender shall have such additional time as is necessary in order to effect such cure on the condition that Subordinate Lender promptly commences and diligently pursues such cure to completion. If the curing of such default is successfully completed within said time period, Senior Lender shall not commence any acceleration, any foreclosure action or proceeding against the Senior Loan Collateral.

(d)If the default specified in a Senior Lender Notice is not cured in accordance with the provisions of either subparagraph 4(b) or (c) hereinabove, Senior Lender shall be entitled to exercise its acceleration and other rights and remedies under the Senior Loan Documents.

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(e)Following the occurrence and during the continuation of an Event of Default (as defined in the Senior Mortgage), Subordinate Lender shall not accept any payment (whether from Borrower or any other person or entity) with respect to the Subordinate Loan before the Senior Loan has been irrevocably paid in full in cash. In the event that following the occurrence and during the continuation of an Event of Default, Subordinate Lender receives, directly or indirectly, any payment with respect to the Subordinate Loan before the Senior Loan has been paid in full, Subordinate Lender will receive and hold the same in trust, as trustee, for the benefit of Senior Lender and will promptly deliver the same to Senior Lender in precisely the form received (except for the endorsement or assignment without recourse and without representation or warranty by Subordinate Lender to Senior Lender or its order where necessary) for application to the Senior Loan.

(f)Without limiting Senior Lender’s rights, benefits, remedies and privileges under this Agreement or the Senior Loan Documents, Senior Lender may, at any time, in its sole discretion, take all or any of the following actions without releasing Subordinate Lender from its obligations hereunder or incurring any liability to Subordinate Lender: (i) renew, extend, accelerate (on the terms set forth in the Senior Loan Documents) or postpone the time of payment of all or any portion of the Senior Debt or grant any indulgence with respect to the Senior Loan; (ii) compromise or settle the Senior Loan; and (iii) waive, substitute, surrender, exchange or release any of the security provided by the Senior Loan Documents; provided, however, that the principal amount of the Senior Note shall not be increased.

5.Standstill. For so long as any portion of the Senior Loan remains unpaid:

(a)  Subordinate Lender shall waive any rights it may have pursuant to the Subordinate Mortgage to approve or to consent to any action of Borrower if Senior Lender shall have approved or consented to such action;

(b)  Subordinate Lender shall not, without the prior written consent of Senior Lender take any Enforcement Action (hereinafter defined). For the purposes of this Agreement, the term “Enforcement Action” shall mean with respect to the Subordinate Loan Documents, the acceleration of all or any part of the Subordinate Loan, any foreclosure proceedings, the exercise of any power of sale, the acceptance by the holder of the Subordinate Mortgage of a deed or assignment in lieu of foreclosure, the obtaining of a receiver, the seeking of default interest (provided, however, that nothing shall prevent the accrual of such default interest pursuant to the terms of the Subordinate Note), the taking of possession or control of the Property, the suing on any of the Subordinate Note or any guaranty or other obligation contained in the Subordinate Loan Documents, the exercising of any banker’s lien or rights of set-off or recoupment, the commencement of any bankruptcy, reorganization or insolvency proceedings against Borrower under any federal or state law, or the taking of any other enforcement action against the Property, provided however that if Senior Lender accelerates the maturity of Borrower’s indebtedness secured by the Senior Loan Documents, then Subordinate Lender may

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accelerate the indebtedness secured by the Subordinate Loan Documents (but may not take any further action without Senior Lender’s consent as aforesaid);

(c)  in the event (i) the Senior Loan becomes due or is declared due and payable prior to its stated maturity, (ii) Subordinate Lender receives any prepayment of principal or interest, in part or in whole, under the Subordinate Mortgage contrary to the terms of the Subordinate Loan Documents, (iii) an Event of Default has occurred and is continuing under the Senior Loan Documents, or (iv) of a Reorganization Proceeding, then, any payment or distribution of any kind or character, whether in cash, property or securities which, but for these subordination provisions, shall be payable or deliverable with respect to any or all of the Subordinate Loan, shall be paid forthwith or delivered directly to Senior Lender for application to the payment of the Senior Loan to the extent necessary to make payment in full of all sums due under the Senior Loan remaining unpaid after giving effect to any concurrent payment or distribution to Senior Lender. Any such payment or distribution received by Subordinate Lender (notwithstanding the preceding sentence of this paragraph) shall be segregated from the funds and property of Subordinate Lender and held in trust by Subordinate Lender for the benefit of, and shall be forthwith be paid over or delivered in the same form as so received (with any necessary endorsements) by Subordinate Lender to Senior Lender for application to the payment of the Senior Loan to the extent necessary to make payment in full of all sums due under the Senior Loan remaining unpaid after giving effect to any concurrent payment or distribution to Senior Lender. Senior Lender may, but shall not be obligated to, demand, claim and collect any such payment or distribution that would, but for these subordination provisions, be payable or deliverable with respect to the Subordinate Loan. In the event of the occurrence of (i), (ii), (iii) or (iv) above and until the Senior Loan shall have been fully paid and satisfied and all of the obligations of Borrower to Senior Lender have been performed in full, no payment shall be made to or accepted by Subordinate Lender in respect of the Subordinate Loan;

(d)  Subordinate Lender retains any right it may have to request that a final judgment in a foreclosure of the Senior Mortgage direct payment to Subordinate Lender of all or any part of the indebtedness secured by the Subordinate Mortgage from the proceeds of the foreclosure sale of the Senior Mortgage to the extent that the proceeds of such foreclosure sale are in excess of any amounts necessary to satisfy the Senior Loan;

(e)  Subordinate Lender shall not modify, waive or amend any of the terms or provisions of the Subordinate Mortgage, without the prior written consent of Senior Lender. In addition, Subordinate Lender shall not pledge, assign, hypothecate, transfer, convey or sell (each, a “Transfer”) the Subordinate Loan or any interest in the Subordinate Loan (other than to an affiliated entity) without first notifying Senior Lender of each such Transfer; and

(f)  Subordinate Lender shall not collect payments for the purpose of escrowing taxes, assessments or other charges imposed on the Property or insurance premiums due on the insurance policies required under the First Mortgage or the Subordinate Mortgage if Senior Lender is collecting payments for such purposes,

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however, Subordinate Lender may collect payments for such purposes if Senior Lender is not collecting the same, provided such payments shall be held in trust by Subordinate Lender to be applied only for such purposes.

(g)           Notwithstanding anything to the contrary contained in the Senior Loan Documents, in the event of a default by Borrower under the Subordinate Loan Documents beyond any applicable notice or grace period, if the Senior Loan Documents are not then in default with respect to the payment of principal and interest, Subordinate Lender shall have the right, but not the obligation, at any time prior to the giving by Senior Lender of a Senior Lender Notice, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the unpaid principal balance (including any protective advanced made by Senior Lender) and any accrued and unpaid interest thereon (without any prepayment premium or penalty) under the Senior Loan Documents together with any reasonable counsel fees incurred by the Senior Lender in connection with such assignment.

6.Waiver of Rights of Subrogation. Until such time as the Senior Loan is paid in full, the Subordinate Lender shall not exercise any right of subrogation that the Subordinate Lender may have or obtain pursuant to the exercise of any right or remedy in connection with the Subordinate Loan. Without limiting the generality of the foregoing, the Subordinate Lender agrees not to acquire, directly or indirectly, by subrogation or otherwise, any lien, estate, right or other interest which is or may be prior in right to the Senior Mortgage, including, without limitation, advances for real estate taxes.

7.Insurance; Taking and Condemnation. Subordinate Lender hereby assigns and transfers to Senior Lender:

(a)  all of Subordinate Lender’s right, title, interest or claim, if any, in and to the proceeds of all policies of insurance covering the Property (or any portion thereof) with respect to damages arising from the occurrence of a fire or other casualty for application or disposition thereof in accordance with the terms, conditions and provisions of the Senior Loan Documents; and

(b)  all of Subordinate Lender’s right, title, interest or claim, if any, in and to all awards or other compensation made for any taking or condemnation of any part of the Property (or any portion thereof) for application or disposition thereof in accordance with the terms, conditions, and provisions of the Senior Loan Documents.

8.Notices. All notices, requests, demands, consents and approvals under this Agreement shall be in writing, and shall be hand delivered, sent by registered U.S. Mail, return receipt requested, or sent by overnight courier service, designated for next-day delivery, as follows:

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If to Senior Lender:

With a copy to:

If to Subordinate Lender:

c/o The New York Times Company
229 West 43^rd Street
New York, New York 10036
Attn:  Mr. David A. Thurm

With a copy to:

c/o The New York Times Company
229 West 43^rd Street
New York, New York  10036
Attn:Solomon B. Watson, IV, Esq.,

General Counsel

and to:

Swidler Berlin Shereff Friedman, LLP
405 Lexington Avenue
New York, New York 10174
Attn:  Martin D. Polevoy, Esq.

Any party hereto may designate a different address to which or person to whom notices or demands shall be directed by written notice given in the same manner and directed to the other parties at the address hereinabove set forth. Any notice given hereunder shall be deemed received one (1) business day after delivery to an overnight delivery service designated for next-day delivery, three (3) business days after mailing if sent by registered U.S. mail return receipt requested, or when actually received if sent in any other permissible fashion.

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9.Representations, Warranties and Covenants.

(a) Subordinate Lender represents and warrants to Senior Lender that: (i) this Agreement has been duly authorized, executed and delivered on behalf of Subordinate Lender; (ii) Subordinate Lender is the sole legal and equitable holder and owner of the Subordinate Loan Documents, (iii) the Subordinate Loan Documents are the only agreements or instruments creating or purporting to create in favor of Subordinate Lender a lien encumbering the Property (and Subordinate Lender agrees that, so long as any portion of the Senior Loan remains unpaid, Subordinate Lender shall not claim any rights under, or the benefit of, any other agreement or instrument creating or purporting to create in favor of Subordinate Lender a security interest in the Property prior in lien or right of payment to the Senior Loan), (iv) the Subordinate Lender owns the Subordinate Loan, and (v) the aggregate principal indebtedness secured by the Subordinate Loan Documents is $                  and the maturity date is                  .

(b)Subordinate Lender acknowledges that Senior Lender has made no warranties or representations with respect to the due execution, legality, validity, completeness or enforceability of the Senior Loan Documents or the collectibility of the Senior Loan. Senior Lender will be entitled to manage and supervise the Senior Loan in accordance with its usual practices, modified from time to time as Senior Lender deems appropriate under the circumstances, without regard to the existence of any rights that Subordinate Lender may now or in the future have in or to the Senior Loan Collateral. Senior Lender will have no liability to Subordinate Lender for, and Subordinate Lender waives, any claim which it may now or in the future have against Senior Lender arising out of: (i) any and all actions which Senior Lender, in good faith, takes or omits to take with respect to the Senior Loan Documents or the collection of the Senior Loan or the valuation, use, protection or release of any collateral (including, without limitation, actions or inactions of Senior Lender with respect to the creation, perfection or continuation of liens or security interests in its collateral, the occurrence of an Event of Default, the foreclosure on, sale, release of, depreciation of, or failure to realize on, any of its collateral, and the collection of any claim for all or any part of the Senior Loan from any account debtor, guarantor or other party); (ii) Senior Lender’s election, in any Reorganization Proceeding, of the application of Section 1111(b)(2) of the Bankruptcy Code; or (iii) any borrowing or grant of a security interest by Borrower or a member in Borrower in a Reorganization Proceeding under Section 364 of the Bankruptcy Code. Notwithstanding anything to the contrary contained herein, Subordinate Lender does not waive any claim it may have against Senior Lender arising out of Senior Lender’s alleged breach hereof. Subordinate Lender hereby waives any rights it may have to require a marshalling of the assets of Borrower.

(c) Senior Lender shall have no duty to advise Subordinate Lender of information known to Senior Lender regarding Borrower’s business, financial or other condition or the risk of non-payment of the Senior Loan. Upon written request made by Subordinate Lender from time to time, but not more often than once in any calendar year, Senior Lender will furnish certificates indicating the principal, interest and other sums, if

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any, due under the Senior Loan Documents and whether or not, to the best of Senior Lender’s knowledge, an Event of Default (or event which, with notice or the passage of time, would constitute an Event of Default) has occurred.

10.No Third Party Beneficiary.  The terms of this Agreement are for the sole and exclusive protection and use of Subordinate Lender and any holders of the Subordinate Loan Documents and the Senior Lender and any holders of the Senior Loan Documents. Neither Borrower, nor any other person or party shall be a third-party beneficiary hereunder, and no provision hereof shall operate or inure to the use and benefit of Borrower or any such other person or party.

11.Construction of this Agreement.  This Agreement is for the sole benefit of Subordinate Lender and Senior Lender and shall be binding upon Subordinate Lender and Senior Lender, and all of their respective affiliates, participants, trustees, receivers, successors and assigns. Nothing herein shall be deemed to modify, limit or in any way affect (a) the obligations of Borrower to Senior Lender under Senior Loan Documents, or (b) the obligations of Borrower to Subordinate Lender under the Subordinate Loan Documents.

12.Headings; Severability. The section headings herein are for convenience of reference only and shall not affect the construction hereof. If any provision hereof is prohibited, invalid or unenforceable in any jurisdiction, or as to any fact or circumstance, the same shall not affect the remaining provision hereof nor affect the validity or enforceability of such provision in any other jurisdiction or as to other facts or circumstances.

13.Jurisdiction and Venue; Waiver of Jury Trial.  Each of the parties hereby irrevocably submits to the jurisdiction of any federal or state court sitting in State of New York over any suit, action or proceeding arising out of or relating to this Agreement and covenants and agrees that such courts shall have exclusive jurisdiction over any such suit, action or proceeding. Each party irrevocably waives, to the fullest extent permitted under applicable law, any objections it may now or hereafter have to the venue of any suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. Each party irrevocably waives, to the fullest extent permitted under applicable law, any right it may have to a jury trial.

14.Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

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15.Modification.  This Agreement may not be amended or modified except by an agreement in writing executed by all parties to this Agreement, and no provision of this Agreement may be waived except by a waiver in writing signed by the party against whom the waiver is asserted.

16.Business Days.  The terms “Business Day” and “Business Days” as used in this Agreement shall mean any day other than a Saturday, a Sunday or a Federal holiday on which the U.S. Postal Service offices are closed for business in New York, New York.

17.Counterparts.  This Agreement and the consent hereto may be executed in counterparts, all of which, taken together, shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart.

18.Attorneys’ Fees.  In the event of any lawsuit or other legal proceeding arising from or relating to this Agreement, the prevailing party shall be entitled to an award of its actual reasonable attorneys’ fees and related costs and expenses.

19.Specific Performance. In addition to any other remedies available under any applicable law, each party hereto shall be entitled to specific performance of this Agreement, and each party hereby irrevocably waives any defense to such specific performance based on the adequacy of any remedy at law.

20.Waiver of Jury Trial. SUBORDINATE LENDER AND SENIOR LENDER WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, WITH RESPECT TO, IN CONNECTION WITH OR ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH.

21.Termination. The following events are referred to herein as “Termination Events”:  (a) complete payment and satisfaction in full of the Senior Loan; and (b) complete payment and satisfaction in full of the Subordinate Loan. Upon the occurrence of a Termination Event, this Agreement shall automatically terminate, and the provisions herein shall automatically be of no further force and effect.  Promptly upon request by Subordinate Lender or Senior Lender, the other party hereto shall execute any reasonable documents and/or instruments confirming any such termination.

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WITNESS the execution hereof as of the day and date first above written.

SENIOR LENDER:

By:

Name:

Title:

WITNESS the execution hereof as of the day and date first above written.

SUBORDINATE LENDER:

By:

Name:

Title:

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STATE OF NEW YORK	)
	:	SS.:
COUNTY OF NEW YORK	)

On the      day of            , 200    before me, the undersigned, a Notary Public in and for said State, personally appeared (Person Appearing), (Personally Proved) to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Notary Name)

Notary Public

My commission expires: (expiration)

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STATE OF NEW YORK	)
	:	SS.:
COUNTY OF NEW YORK	)

On the      day of            , 200    before me, the undersigned, a Notary Public in and for said State, personally appeared (Person Appearing), (Personally Proved) to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Notary Name)

Notary Public

My commission expires: (expiration)

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EXHIBIT A

TO

INTERCREDITOR AGREEMENT

Legal Description

15

EXHIBIT S

Form of Bankruptcy Guaranty

S-1

EXHIBIT S TO OWNER’S OPERATING AGREEMENT

GUARANTY

This GUARANTY (this “Guaranty”) is made as of [DATE OF NYTC EXTENSION LOAN], by FOREST CITY ENTERPRISES, INC., a corporation organized under the laws of the State of Ohio, having an address at 1160 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2203 (“Guarantor”), to [LENDER], a               organized under the laws of the State of               , having an address c/o The New York Times Company, 229 West 43rd Street, New York, New York 10036 (“Lender”).

WITNESSETH:

A.The New York Times Building LLC, a limited liability company organized under the laws of the State of New York (“Owner”), is the tenant under that certain Agreement of Lease dated as of                   , 2001 between 42nd St. Development Project, Inc. and Owner (as the same may hereafter be amended from time to time, the “Ground Lease”) affecting certain land known as Site 8 South, located at Eighth Avenue between 40th and 41st Streets, in the County, City and State of New York (the “Property”);

B.NYT Real Estate Company LLC, a limited liability company organized under the laws of the State of New York (“NYTC Member”) and FC Lion LLC, a limited liability company organized under the laws of the State of New York (“Borrower”), are the members in Owner pursuant to a certain Operating Agreement dated as of               , 2001 (as the same may hereafter be amended from time to time, “Owner’s Operating Agreement”);

C.Borrower has requested that Lender make the “NYTC Extension Loan” to Borrower pursuant to Section 6.03 of Owner’s Operating Agreement, which NYTC Extension Loan is in the original principal amount of                                                             ($                              ) Dollars and is evidenced by that certain Modification of Substitute Extension Loan Note of even date herewith (the “Extension Loan Note”) and secured, inter alia, by that certain Modification of Substitute Extension Loan Mortgage and Security Agreement (Leasehold) of even date herewith (the “Extension Loan Mortgage”) and that certain Assignment of Leases and Rents of even date herewith (the “Extension Loan ALR”, and together with the Extension Loan Note, the Extension Loan Mortgage and all other documents evidencing, securing or governing the NYTC Extension Loan, collectively the “Extension Loan Documents”);

D.Simultaneously herewith Lender is executing a Subordination and Intercreditor Agreement (the “Intercreditor Agreement”) with                              ;

E.Lender has required, as an inducement to Lender to make the NYTC Extension Loan, that Guarantor be responsible for any losses and costs incurred by Lender by reason of (i) a voluntary bankruptcy, liquidation, assignment for the benefit of creditors, or similar action by Borrower, (ii) a collusive involuntary bankruptcy, liquidation, assignment for the benefit of creditors, or similar action by Borrower, (iii) the consenting by Borrower to, or failure by Borrower to diligently defend against, any other involuntary bankruptcy, liquidation, assignment for the benefit of creditors, or similar action by Borrower, or (iv) the failure of Borrower, upon the occurrence of a default in the payment of interest or principal under the NYTC Extension Loan at such time as the Senior Loan (as such term is defined in the Intercreditor Agreement) is not in default with respect to the payment of principal or interest due under the Senior Loan, to take all actions required in connection with the Required Conveyance Action (as such term is hereinafter defined);

F.Guarantor is an affiliate of Borrower;

G.Guarantor will derive substantial benefit from Lender’s making the NYTC Extension Loan; and

H.Guarantor has agreed to deliver to Lender this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby covenants and agrees as follows:

1.Definitions.  Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in Owner’s Operating Agreement.

2.Guaranteed Obligations. Guarantor, for itself, its successors and assigns, hereby primarily, unconditionally, absolutely and irrevocably guarantees the following obligations referred to in subparagraph (a) or (b) of this Paragraph 2 applicable to a Bankruptcy Triggering Event (as such term is hereinafter defined) or a Non-Conveyance Triggering Event (as such term is hereinafter defined), as the case may be (the “Guaranteed Obligations”):

(a)in the event of a Bankruptcy Triggering Event, the full and prompt payment to Lender of (i) the unpaid principal balance of the NYTC Extension Loan, any accrued and unpaid interest thereon, late charges, and interest at the Involuntary Rate (as defined in the Extension Loan Mortgage) after default by Borrower in repaying the NYTC Extension Loan, and any costs of collection, including attorneys’ fees and expenses in enforcing the terms of the NYTC Extension Loan or exercising any right or remedy permitted under the Extension Loan Documents, or at law or in equity as against Borrower (the amounts referred to in this clause 2(a)(i) being herein collectively called the “Extension Loan Balance”), (ii) the payment of any and all other actual losses or damages suffered or incurred by Lender by reason of the occurrence of a Bankruptcy Triggering Event prior to repayment in full of the NYTC Extension

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Loan (or subsequent to repayment of the NYTC Extension Loan if, following any Bankruptcy Triggering Event, Lender is required to disgorge or repay to Borrower, any creditor of Borrower, Borrower’s estate in bankruptcy, or any trustee appointed in any bankruptcy proceeding affecting Borrower, any payment made by Borrower or Guarantor with respect to or on account of the NYTC Extension Loan), and (iii) any Enforcement Costs (as hereinafter defined in Paragraph 18 hereof); and

(b)in the event of a Non-Conveyance Triggering Event, the full and prompt payment to Lender of (i) the Extension Loan Balance (including, without limitation, accrued interest at the Involuntary Rate from the Demand Date until repayment of the Extension Loan Balance in full by Borrower to Lender), (ii) the payment of any and all other actual losses or damages suffered or incurred by Lender by reason of the occurrence of a Non-Conveyance Triggering Event, and (iii) any Enforcement Costs.

3.Triggering Events. Notwithstanding anything to the contrary herein, Lender hereby agrees that Lender shall not seek to collect or enforce this Guaranty, and Guarantor shall have no liability hereunder, if and for so long as no Bankruptcy Triggering Event and no Non-Conveyance Triggering Event shall have occurred (i.e., Guarantor shall be liable under this Guaranty if at any time any one or more Bankruptcy Triggering Events or any one or more Non-Conveyance Triggering Events occurs), to wit:

(a)neither Borrower nor Guarantor commences an action for, conducts, files or applies for or is the subject of any voluntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment, or other similar protection, remedy, action or proceeding; and/or

(b)neither Borrower nor Guarantor is the subject of any involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment, or other similar filing, protection, remedy, action or proceeding (collectively, an “Involuntary Bankruptcy Action”) which is collusive or which is initiated on the basis of a debt or obligation for money borrowed by Borrower or goods or services obtained by Borrower in violation of Borrower’s articles of organization or operating agreement. For purposes hereof an Involuntary Bankruptcy Action is deemed be “collusive” when it can reasonably be demonstrated that Borrower, Guarantor or any other individual or entity affiliated with, related to or holding an interest in Borrower (including without limitation INGREDUS Site 8 South LLC), or an entity related thereto, or any successors or assigns of any of the foregoing, either (A) is a petitioner in such involuntary filing, protection, remedy, action or proceeding, or (B) has collaborated with a third party petitioner to cause, establish or default in the payment of, the debt or obligation on the basis of which such Involuntary Bankruptcy Action is brought; and/or

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(c)in the event of any involuntary Bankruptcy Action against Borrower or Guarantor, as the case may be, neither Borrower nor Guarantor shall consent to or acquiesce in the filing of such involuntary Bankruptcy Action or the appointment of a receiver, trustee or liquidator of it or any substantial portion of its assets in connection therewith, it being understood and agreed that the term “acquiesce” includes but is not limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree within twenty (20) days after entry of same if and to the extent Borrower or Guarantor, as the case may be, has a good faith basis to raise any grounds for filing such a petition or motion to vacate or discharge) and shall diligently defend against (if and to the extent Borrower or Guarantor has a good-faith basis to raise any defense) and seek to have dismissed any such Involuntary Bankruptcy Action (if and to the extent Borrower or Guarantor has a good-faith basis to raise any grounds for dismissal), provided that the foregoing shall not be deemed to obligate Borrower or Guarantor to pay the debt or obligation giving rise to such Involuntary Bankruptcy Action or any part thereof in order to obtain such dismissal

(any action or occurrence in violation of the provisions of subparagraph (a), (b) or (c) of this Paragraph 3 being herein called a “Bankruptcy Triggering Event”); and/or

(d)in the event of a default in the payment of interest or principal with respect to the NYTC Extension Loan (including, without limitation, a default in the payment of principal on maturity of the NYTC Extension Loan) at such time as the Senior Loan is not in default with respect to the payment of principal or interest due under the Senior Loan, which default under the NYTC Extension Loan continues for ten (10) days (the “10-Day Cure Period”) after delivery of written notice by Lender to Borrower and Guarantor in the form annexed hereto as Exhibit A (the “10-Day Notice”), and which default, solely in the case of the first default in the payment of principal or interest during the term of the Extension Loan as to which Lender has delivered the 10-Day Notice, continues after the expiration of the 10- Day Cure Period for a further period of five (5) days after delivery of written notice by Lender to Borrower and Guarantor in the form annexed hereto as Exhibit B (the “5-Day Notice”) (it being acknowledged and agreed that with respect to the second and any subsequent occasion on which Lender delivers a 10- Day Notice, Lender shall not be obligated to give and shall not give a 5-day Notice), Borrower, within ten (10) days after delivery by Lender to Borrower and Guarantor of a Demand Notice accompanied by counterparts of the Conveyance Documents or the Foreclosure Documents, as the case may be, to be executed by Borrower, takes all of the following actions (collectively, the “Required Conveyance Action”) set forth in clauses subparagraph 3(d)(i) and 3(d) (ii) below (any failure by Borrower to take such actions within ten (10) days after delivery by Lender of a Demand Notice accompanied by counterparts of the Conveyance Documents or the Foreclosure Documents, as the case may be, to be executed by

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Borrower being herein called a “Non-Conveyance Triggering Event”, the terms “Conveyance Documents”. “Demand Notice” and “Foreclosure Documents” having the meanings hereinafter set forth):

(i)at Lender’s option (as elected by Lender at Lender’s sole and absolute discretion in the Demand Notice), either:

(A)(1) conveys to Lender (or its designee) the Mortgaged Property (as defined in the Extension Loan Mortgage), including, without limitation, the execution of all assignments and required ancillary transfer documentation and/or affidavits, all in the form annexed to this Guaranty as Exhibit C or otherwise in form and substance satisfactory to Lender and, in any event, approved by Lender’s title insurance company (collectively, the “Conveyance Documents”), and (2) pays any and all transfer taxes and any other expenses of Lender (or its designee) in connection with the conveyance of the Mortgaged Property to Lender (or its designee), and (3) delivers to Lender or its designee possession of the Mortgaged Property subject only to the rights of permitted tenants and occupants under the Condominium Declaration (as defined in the Extension Loan Mortgage), or

(B)(1) executes a stipulation consenting to the immediate entry of a judgment of foreclosure and the immediate sale at public auction of the Mortgaged Property in accordance with the terms thereof, and all other documents required in connection therewith to effectuate such immediate entry of a judgment of foreclosure and the immediate sale at public auction of the Mortgaged Property, said judgment and stipulation and other documents to be in the form annexed to this Guaranty as Exhibit D or otherwise in form and substance satisfactory to Lender and, in any event, approved by Lender’s title insurance company (collectively, the “Foreclosure Documents”), and (2) pays any and all transfer taxes and any other expenses of Lender (or its designee) in connection with the foreclosure of the Extension Loan pursuant to the Foreclosure Documents and the transfer of the Mortgaged Property pursuant to such foreclosure; and

(ii)pays all accrued interest on the Extension Loan Balance at the Involuntary Rate from the Demand Date through and including the date Borrower fully complies with the provisions of clauses (A) or (B), as applicable, of subparagraph 3(d)(i) hereof.

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As used herein the term “Demand Date” shall mean the date on which Lender notifies Guarantor and Borrower in writing (the “Demand Notice”), such Demand Notice to be in the form of Exhibit E annexed hereto, that Lender has elected that Borrower take a Required Conveyance Action and specifying whether Lender has elected that Borrower take the Required Conveyance Action described in clause (A) of the first sentence of subparagraph 3(d)(i) hereof, in which event the Demand Notice shall be accompanied by counterparts of the Conveyance Documents to be executed by Borrower, or clause (B) of the first sentence of this subparagraph 3(d)(i) hereof, in which event the Demand Notice shall be accompanied by counterparts of the Foreclosure Documents to be executed by Borrower.

Notwithstanding the foregoing provisions of subparagraph 3(d), in the event Borrower is prevented from taking any of the actions referred to in subparagraph 3(d)(i) or 3(d)(ii) hereof solely by reason of the fact that (i) Borrower has been enjoined by a court of competent jurisdiction, over Borrower’s objection and diligent opposition and defense in a hearing on the merits that is based on Borrower’s good faith belief that its objection is meritorious, from taking such action (other than by reason of an injunction obtained by or on behalf of Borrower, Guarantor, any member of Borrower including without limitation INGREDUS Site 8 South LLC, or any affiliate of Borrower, Guarantor or INGREDUS Site 8 South LLC, or any of their respective successors or assigns), or (ii) all of Borrower’s members have been enjoined by a court of competent jurisdiction, over the objection and diligent opposition and defense in a hearing on the merits by each such member of Borrower, from taking such action (other than by reason of an injunction obtained by or on behalf of Borrower, Guarantor, any member of Borrower including without limitation INGREDUS Site 8 South LLC, or any affiliate of Borrower, Guarantor or INGREDUS Site 8 South LLC, or any of their respective successors or assigns), it being acknowledged and agreed that the provisions of this clause (ii) shall not apply in the case of an injunction against any one or more but not all of the members of Borrower, or (iii) Borrower is prevented from taking such action by reason of the imposition of the automatic stay provisions of the Bankruptcy Code in an Involuntary Bankruptcy Action (other than an Involuntary Bankruptcy Action which would constitute a Bankruptcy Triggering Event under this Guaranty), then the Demand Date shall be postponed until the first date on which Borrower is no longer precluded from taking the actions referred to in subparagraph 3(d)(i) or 3(d)(ii) solely by reason of the circumstances described in clause (i), (ii) or (iii) of this sentence.

The foregoing provisions of this Paragraph 3 shall not (a) constitute a waiver of any obligation guarantied or secured by this Guaranty, (b) affect in any way the legality, validity, binding effect or enforceability of this Guaranty, of Owner’s Operating Agreement or the NYTC Extension Loan Documents, (c) release or impair this Guaranty, or (d) prevent or in any way hinder Lender from exercising, or constitute a defense, an affirmative defense, a counterclaim, or basis for relief in respect of the exercise of, any remedy and/or remedies against any party or assets under Owner’s Operating Agreement.

For purposes of this Guaranty, the term “Involuntary Bankruptcy Action” shall not include any involuntary liquidation, dissolution, receivership, insolvency, bankruptcy,

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assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment, or other similar protection, remedy, action or proceeding initiated by The New York Times Company or any Affiliate (as such term is defined in Owner’s Operating Agreement) of The New York Times Company.

Notwithstanding anything to the contrary contained in the Extension Loan Documents, from and after the occurrence of a Non-Conveyance Triggering Event, the term “Involuntary Rate” shall mean (i) eighteen (18%) percent per annum, or (ii) the maximum rate or amount, if any, permitted by applicable law, whichever is less.

4.Guaranty Absolute.

(a)Guarantor guarantees the Guaranteed Obligations, regardless of any law, statute, rule, regulation, decree or order now or hereafter in effect in any jurisdiction affecting or purporting to affect in any manner any of the terms or the rights or remedies of Lender with respect thereto.

(b)The liability of Guarantor under this Guaranty is present, primary, continuing, absolute and unconditional, and shall not be affected, released, terminated, discharged or impaired, in whole or in part, by any or all of the following, and Lender may proceed, with or without further notice to or assent from Guarantor, to exercise any right or remedy hereunder irrespective of and Guarantor hereby waives any defense or counterclaim predicated upon; any or all of the following:

(i)any lack of genuineness, regularity, validity, legality or enforceability, or the voidableness of the NYTC Extension Loan Documents or Owner’s Operating Agreement or any other agreement or instrument relating thereto;

(ii)the failure of Lender to exercise or to exhaust any other right or remedy or take any other action against any other security available to it;

(iii)any failure, delay, waiver, consent, indulgence, or forbearance of Lender in connection with the exercise of, or any lack of diligence in exercising, any right or remedy with respect to the NYTC Extension Loan Documents or Owner’s Operating Agreement or this Guaranty;

(iv)any dealings or transactions between Lender and Borrower, whether or not Guarantor shall be a party to or cognizant of the same;

(v)any bankruptcy, insolvency, assignment for the benefit of creditors, receivership, trusteeship or dissolution of or affecting Borrower, Owner or any other party;

(vi)any other guaranty now or hereafter executed by Guarantor or any other guarantor or the release of any other guarantor from liability for the payment, performance

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or observance of any of the Guaranteed Obligations on the part of Guarantor to be paid, performed or observed, as applicable, whether by operation of law or otherwise;

(vii)any rights, powers or privileges Guarantor may now or hereafter have against any Borrower or any other person, entity or collateral in respect of the Guaranteed Obligations;

(viii)any other circumstance which might in any manner or to any extent constitute a defense available to, or vary the risk of Guarantor, or might otherwise constitute a legal or equitable discharge or defense available to a surety or guarantor, whether similar or dissimilar to the foregoing;

(ix)any notice of the creation, renewal or extension of the Guaranteed Obligations and notice of or proof of reliance by Lender upon this Guaranty or acceptance of this Guaranty;

(x)any change, restructuring or termination of the structure or existence of Borrower;

(xi)any amendment, extension or modification of or addition or supplement to the NYTC Extension Loan Documents or Owner’s Operating Agreement or any of them, except that insofar as the Guaranteed Obligations change by reason thereof this Guaranty shall extend to the Guaranteed Obligations as they may be extended, increased, diminished, reduced or otherwise changed by reason thereof;

(xii)any irregularity in or invalidity or unenforceability of all or any part of the NYTC Extension Loan Documents or Owner’s Operating Agreement or any of them;

(xiii)any assignment, conveyance, mortgage, merger or other transfer, voluntarily or involuntarily (whether by operation of law or otherwise), of all or any part of Borrower’s interest in the “Mortgaged Property” (as such term is defined in the NYTC Extension Loan Documents);

(xiv)any failure or purported failure of Lender to mitigate damages arising from a breach, violation or default by Borrower or Guarantor;

(xv)any defense, right of set-off or other claim which Guarantor may have against Lender, except for claims of actual payment or actual performance of the Guaranteed Obligations;

(xvi)any failure by Lender to inform Guarantor of any facts Lender may now or hereafter know about Borrower or the Mortgaged Property, or the terms of the NYTC Extension Loan Documents or Owner’s Operating Agreement, it being

8

understood and agreed that Recipients have no duty so to inform and that Guarantor is fully responsible for being and remaining informed by Borrower of the risk of non-payment of the Guaranteed Obligations; or

(xvii)any termination of the NYTC Extension Loan Documents or Owner’s Operating Agreement or any of them, or the exercise of any remedies by Lender or NYTC Member thereunder, or the sale, transfer, or conveyance of any direct or indirect interest of Borrower in the Mortgaged Property.

(c)This is a guaranty of payment of debt under the conditions specifically provided in Sections 2 and 3 of this Guaranty. Insofar as the Guaranteed Obligations require the payment of money, this Guaranty is a guaranty of payment and not of collection. Guarantor hereby waives any and all legal requirements that Lender, or their successors or assigns, must institute any action or proceeding at law or in equity, or obtain any judgment, or exhaust their rights, remedies and/or recourses against Borrower or any other person or entity, or with respect to any security for the obligations hereby guaranteed, as a condition precedent to making any demand on, bringing an action against, or obtaining or enforcing any judgment against, Guarantor upon this Guaranty, and/or that they join Borrower or any other person or entity as a party to any such action.

(d)All of the remedies set forth herein and/or provided for in the NYTC Extension Loan Documents or Owner’s Operating Agreement or at law or equity shall be equally available to Lender and the choice of one such alternative over another shall not be subject to question or challenge by Guarantor or any other person, nor shall any such choice be asserted as a defense, setoff, or failure to mitigate damages in any action, proceeding, or counteraction by Lender to recover or seeking any other remedy under this Guaranty, nor shall such choice preclude Lender from subsequently electing to exercise a different remedy. The parties have agreed to the alternative remedies provided herein in part because they recognize that the choice of remedies in the event of a default hereunder will necessarily be and should properly be a matter of good-faith business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by Lender at the lowest cost to Borrower and/or Guarantor. It is the intention of the parties that such good-faith choice by Lender be given conclusive effect regardless of such subsequent developments.

(e)Guarantor hereby acknowledges having received, reviewed and understood a true, correct and complete copy of each of the NYTC Extension Loan Documents and Owner’s Operating Agreement. Guarantor acknowledges that this Guaranty is in effect and binding without reference to whether this Guaranty is signed by any other person or entity, that possession of this Guaranty by Lender shall be conclusive evidence of due delivery hereof by Guarantor and acceptance hereof by Lender, and that this Guaranty shall continue in full force and effect, both as to guaranteed obligations and liabilities now existing and/or those hereafter created.

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5.Representations and Warranties.  Guarantor represents and warrants to Lender as follows:

(a)Guarantor is a duly organized, validly existing corporation in good standing under the laws of the State of Ohio and has full power, authority and legal right to execute and deliver this Guaranty and to perform fully and completely all of its obligations hereunder.

(b)The execution, delivery and performance of this Guaranty by Guarantor has been duly authorized by all necessary corporate action, and will not violate any provision of any law, regulation, order or decree of any governmental authority, bureau or agency or of any court binding on Guarantor, or any provision of the by-laws of Guarantor, or of any contract, undertaking or agreement to which Guarantor is a party or which is binding upon Guarantor or any of its property or assets, and will not result in the imposition or creation of any lien, charge or encumbrance on, or security interest in, any of its property or assets pursuant to the provisions of any of the foregoing.

(c)This Guaranty has been duly executed and delivered by a duly authorized officer of Guarantor and constitutes a legal, valid and binding obligation of Guarantor, enforceable against it in accordance with its terms.

(d)All necessary resolutions, consents, licenses, approvals and authorizations of any person or entity required in connection with the execution, delivery and performance of this Guaranty have been duly obtained and are in full force and effect.

(e)There are no conditions precedent to the effectiveness of this Guaranty that have not been either satisfied or waived.

(f)Guarantor has, independently and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty.

(g)There are no actions, suits or proceedings pending or, to the knowledge of Guarantor, threatened against or affecting Guarantor nor any judgment rendered against Guarantor, which will have a material adverse impact upon Guarantor’s ability to perform its obligations hereunder, or involving the validity or enforceability of this Guaranty, at law or in equity; and Guarantor is not in default under any order, writ, injunction, decree or demand of any court or any administrative body having jurisdiction over Guarantor.

(h)Any and all balance sheets, net worth statements, income and expense statements, cash flow statements and other financial statements of, and other financial statements and data relating to, Guarantor previously or hereafter delivered to Lender fairly and accurately present, or will fairly and accurately present, the financial condition of Guarantor as of the dates thereof; since the dates of those most recently delivered, there has been no material adverse change in the financial condition of Guarantor; Guarantor has disclosed all events, conditions, and facts known

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to Guarantor which are more likely than not to have a material adverse effect on the financial condition of Guarantor; and neither this Guaranty nor any document, financial statement, financial or credit information, certificate or statement relating to Guarantor and referred to herein, or furnished to Lender by Guarantor contains, or will contain, any untrue statement of a material fact or omits, or will omit, a material fact.

6.Waivers.  Guarantor expressly waives the following:

(a)notice of acceptance of this Guaranty and of any change in the financial condition of Borrower;

(b)promptness, diligence, presentment and demand for payment of any of the Guaranteed Obligations;

(c)protest, notice of dishonor, notice of the performance or non-performance of any of the Guaranteed Obligations, notice of default and any other notice with respect to any of the Guaranteed Obligations and/or this Guaranty;

(d)any demand for payment under this Guaranty;

(e)the right to interpose all substantive and procedural defenses of the law of guaranty, indemnification and suretyship, except the defenses of prior payment or performance by Borrower of the Guaranteed Obligations which Guarantor is called upon to pay or perform under this Guaranty;

(f)all rights and remedies accorded by applicable law to guarantors, or sureties, including, without being limited to, any extension of time conferred by any law now or hereafter in effect;

(g)the right to trial by jury in any action or proceeding of any kind arising on, under, out of, or by reason of or relating, in any way, to this Guaranty or the interpretation, breach or enforcement hereof;

(h)the right to interpose any set-off or counterclaim of any nature or description in any action or proceeding arising hereunder or with respect to this Guaranty; and

(i)any right or claim of right to cause a marshaling of the assets of Borrower or to cause Lender to proceed against Borrower and/or any collateral or security held by Borrower at any time or in any particular order.

7.Bankruptcy. Notwithstanding anything to the contrary herein, Guarantor’s liability shall extend to all amounts or other obligations which constitute part of the Guaranteed Obligations and would be owed by, or required to be performed by, Borrower under the NYTC

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Extension Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving Borrower or any other party.  Without limiting the foregoing, neither Guarantor’s obligation to make payment or otherwise perform in accordance with this Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed, stayed, released or limited in any manner by any impairment, modification, change, release, limitation or stay of the liability of Borrower or any other party or its estate in bankruptcy or any remedy for the enforcement thereof, resulting from the operation of any present of future provision of the Bankruptcy Code or other statute or from the decision of any court interpreting any of the same.

8.Currency of Payments; Interest.

(a)Any and all amounts required to be paid by Guarantor hereunder shall be paid in lawful money of the United States of America and in immediately available funds.  Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to Lender on account of its liability hereunder, it will notify Lender in writing that such payment is made under this Guaranty for that purpose.

(b)Any amount payable by Guarantor hereunder which is not paid when due shall bear interest at the rate of eighteen percent (18 %) per annum from its due date until repaid, and such interest shall be deemed part of the Guaranteed Obligations. Notwithstanding any other provision or provisions herein contained, no provision of this Guaranty shall require or permit the collection from Guarantor of interest in excess of the maximum rate or amount, if any, which Guarantor may be required or permitted to pay by any applicable law.

9.Waiver of Rights Against Borrower; Subordination.

(a)Guarantor hereby waives all rights of subrogation and any other claims that it may now or hereafter acquire against Borrower or any insider that arise from the existence, payment, performance or enforcement of Guarantor’s obligations under this Guaranty, including, without limitation, any right of reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Owner or Lender against Borrower or any insider, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from Borrower or any insider, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right.

(b)If any amount shall be paid to Guarantor in violation of the preceding subsection (a), such amount shall be held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and applied to all amounts payable under this Guaranty in accordance with the terms of this Guaranty, or to be held as collateral for any amounts payable under this Guaranty thereafter arising.  Guarantor acknowledges that it has and will receive

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substantial benefit from the making of the NYTC Extension Loan and that the waiver set forth in this subsection is knowingly made in contemplation of such benefits.

(c)All indebtedness, liabilities and obligations of Borrower to Guarantor, whether secured or unsecured and whether or not evidenced by any instrument, now existing or hereafter created or incurred, are and shall be subordinate and junior as to lien, time of payment and in all other respects to the Guaranteed Obligations

(d)Guarantor agrees that, following any default or event of default by Borrower in the payment of the Guaranteed Obligations, and until the Guaranteed Obligations shall have been paid in full, Guarantor will not accept any payment or satisfaction of any kind of any indebtedness or obligation of Borrower to Guarantor. Further, as long as Guarantor remains liable hereunder, Guarantor agrees that, if, following any default or event of default by Borrower in the payment of the Guaranteed Obligations, Guarantor should receive any payment, satisfaction or security for any indebtedness or obligation of Borrower to Guarantor, the same shall be delivered to Lender in the form received, endorsed or assigned as may be appropriate, for application on account of or as security for the Guaranteed Obligations, and, until so delivered, shall be held in trust for Lender as security for said obligations.  In addition, at any time, in the event of any receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization or arrangement with creditors (whether or not pursuant to bankruptcy laws), sale of all or substantially all of the assets, dissolution, liquidation or any other marshaling of the assets and liabilities of Borrower, Lender shall be entitled to performance in full of the obligations hereby guaranteed prior to the payment of all or any part of any indebtedness of Borrower to Guarantor, and Guarantor will, at the request of Lender, file any claim, proof of claim or other instrument of similar character necessary to enforce the obligations of Borrower in respect of such indebtedness and hereby assigns to Lender, and will hold in trust for Lender, any and all monies, dividends or other assets received in any such proceeding on account of such obligations, unless and until the obligations hereby guaranteed shall be irrevocably performed in full. In the event Guarantor fails to perform said obligations, it shall pay and deliver said monies, dividends or other assets to Lender.

10.Amendment in Writing.  No amendment or waiver of any provision of this Guaranty nor consent to any departure by Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by Guarantor and Lender, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

11.Remedies. The obligations of Guarantor under this Guaranty are independent of Borrower’s obligations under the NYTC Extension Loan Documents, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against Borrower or whether Borrower is joined in any such action or actions. Any one or more successive and/or concurrent actions may be

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brought hereon against Guarantor either in the same action, if any, brought against Borrower or in separate actions, as often as Lender, in its sole discretion, may deem advisable.

12.Certified Statement.  Guarantor agrees that it will, at any time and from time to time, within ten (10) days following request by Lender, execute and deliver to Lender a statement certifying that this Guaranty is unmodified and in full force and effect (or if modified, that the same is in full force and effect as modified and stating such modifications).

13.Notices. All notices and other communications which may be or are desired to be given hereunder shall be in writing and shall be hand delivered, sent by registered U.S. Mail, return receipt requested, or sent by overnight courier service, designated for next-day delivery, as follows:

If to Guarantor:

Forest City Enterprises, Inc.
1160 Terminal Tower
50 Public Square
Cleveland, Ohio 44113-2267
Attention: General Counsel

With a copy to:

Forest City Ratner Companies
One MetroTech Center North
Brooklyn, New York 11201
Attention: David Berliner, Esq.

And to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.

If to Lender:

[Lender]

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: General Counsel

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With a copy to:

[Lender]

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: Director of Real Estate

And to:

Swidler Berlin Shereff Friedman, LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attention:  Martin D. Polevoy, Esq.

Any party hereto may designate a different address to which or person to whom notices or demands shall be directed by written notice given in the same manner and directed to the other at its address hereinabove set forth. Any notice given hereunder shall be deemed received when delivered if delivered by hand, one (1) Business Day (as hereinafter defined) after delivery if sent overnight delivery service, designated for next-day delivery, and three (3) Business Days after mailing if sent by registered U.S. mail, provided, however, that rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall be deemed to be receipt of the notice, demand or request sent.

As used in this Guaranty, the term “Business Day” means any day which is not a Saturday, a Sunday or a day observed as a holiday by either the State of New York or the federal government of the United States.

14.Termination of Guaranty; Successors and Assigns. This Guaranty shall

(a)remain in full force and effect:

(i)with respect to any Bankruptcy Triggering Event, until payment and performance in full of the Guaranteed Obligations applicable to a Bankruptcy Triggering Event and the expiration of all applicable periods under the laws governing bankruptcy, insolvency, fraudulent conveyances and creditor’s rights during which any payment made by Guarantor or Borrower with respect to the Guaranteed Obligations may be required to be disgorged or repaid by Lender; and

(ii)with respect to any Non-Conveyance Triggering Event, until payment and performance in full of the Guaranteed Obligations applicable to a

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Non-Conveyance Triggering Event or such earlier date as Borrower takes all actions required in connection with the Required Conveyance Action (provided that, in the case of a Required Conveyance Action which is not made within ten (10) days after delivery of a Demand Notice, Lender elects to accept such Required Conveyance Action, it being acknowledged and agreed that Lender shall not be under any obligation to accept a Required Conveyance Action which is not made within ten (10) days after delivery of a Demand Notice and that Lender may refuse to accept a Required Conveyance Action which is not made within ten (10) days after delivery of a Demand Notice in its sole and absolute discretion),

and, in either case, the expiration of all applicable periods under the laws governing bankruptcy, insolvency, fraudulent conveyances and creditor’s rights during which any payment made by Guarantor or Borrower with respect to the Guaranteed Obligations may be required to be disgorged or repaid by Lender or any action taken by Borrower in connection with the Required Conveyance Action may be voided, as the case may be. In addition, this Guaranty shall be automatically reinstated if, following the Required Action, Borrower or Guarantor shall take any actions, steps or procedures which might delay, impede or preclude NYTC (or its designee) from recording the conveyance instruments with respect to the Mortgaged Property, taking possession of the Mortgaged Property or collecting rents from occupants of the Mortgaged Property, whether the Mortgaged Property is transferred pursuant to the conveyance instruments or the judgment of foreclosure referred to in subparagraph 3(d) of this Guaranty;

(b)be binding upon Guarantor and its successors, transferees and permitted assigns; and

(c)inure to the benefit of and be enforceable by Lender and its successors, transferees and assigns.

Wherever in this Guaranty reference is made to Guarantor or Lender, the same shall be deemed to refer also to the then successor or assign of Guarantor or Lender. Notwithstanding anything herein to the contrary, Guarantor shall not have the right to assign this Guaranty or delegate its obligations without the prior written consent of Lender, which may be withheld in Lender’s sole and absolute discretion, and any purported assignment in violation of the foregoing clause shall be null and void as against Lender.

15.Governing Law.

(a)This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within said state, without giving effect to conflict of laws principles thereof.

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(b)Guarantor hereby irrevocably submits to personal jurisdiction in the State of New York for the enforcement of this Guaranty and waives any and all rights to object to such jurisdiction for the purposes of litigation to enforce this Guaranty. Guarantor hereby consents to the jurisdiction of either any court of the State of New York or (in a case involving diversity of citizenship) the United States District Court where the Project is located, in any action, suit, or proceeding which Lender may at any time wish to file in connection with this Guaranty or any related matter. Guarantor hereby agrees that an action, suit, or proceeding to enforce this Guaranty may be brought in any State or Federal court in the State of New York and hereby waives any objection which Guarantor may have to the laying of the venue of any such action, suit, or proceeding in any such court; provided, however, that the provisions of this subparagraph 14(b) shall not be deemed to preclude Lender from filing any such action, suit, or proceeding in any other appropriate forum.

16.Severability.  If any term, covenant, condition or provision of this Guaranty or the application thereof to any circumstance or to Guarantor shall be invalid or unenforceable to any extent, the remaining terms, covenants, conditions and provisions of this Guaranty or the application thereof to any circumstances or to Guarantor other than those as to which any term, covenant, condition or provision is held invalid or unenforceable, shall not be affected thereby and each remaining term, covenant, condition and provision of this Guaranty shall be valid and shall be enforceable to the fullest extent permitted by law.

17.Headings. The headings used in this Guaranty are for convenience only and are not to be considered in connection with the interpretation or construction of this Guaranty.

18.Enforcement Costs. If: (i) this Guaranty is placed in the hands of an attorney for collection or is collected through any legal proceeding; (ii) an attorney is retained to represent Lender in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors’ rights and involving a claim under this Guaranty; or (iii) an attorney is retained to represent Lender in any proceedings whatsoever in connection with this Guaranty, then Guarantor shall pay to Lender upon demand all attorneys’ fees, costs and expenses, including, without limitation, court costs, filing fees, recording costs, and all other costs and expenses incurred in connection therewith (all of which are referred to herein as “Enforcement Costs”), in addition to all other amounts due hereunder, regardless of whether all or a portion of such Enforcement Costs are incurred in a single proceeding brought to enforce this Guaranty.

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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the date first above written.

GUARANTOR:

FOREST CITY ENTERPRISES, INC., an Ohio
corporation

By:

Name:

Title:

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EXHIBIT A

FORM OF 10-DAY NOTICE

[Lender]
c/o The New York Times Company
229 West 43^rd Street
New York, New York 10036

Date:              

FC Lion LLC

[ADDRESS FOR NOTICES

IN NYTC EXTENSION LOAN

MORTGAGE]

Forest City Enterprises, Inc.
1160 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
Attention: General Counsel

Ladies and Gentlemen:

Notice is herewith given that FC Lion LLC as “Borrower” under (i) that certain Modification of Substitute Extension Loan Note (the “Note”) dated                2001 and (ii) that certain Modification of Substitute Extension Loan Mortgage and Security Agreement (Leasehold), (the “Mortgage”) dated                , 2001, which documents, among others, evidence and secure that certain loan in the original principal amount of $                                 from [Lender] (“Lender”) to Borrower (the “NYTC Extension Loan”), is in default of its obligations regarding payments of interest and/or principal under the NYTC Extension Loan.

Specifically, Borrower has failed to make payments of [interest required under the Note in the aggregate amount of $                ,] [plus interest accruing subsequent to                 ;] [and Borrower has failed to make payments of principal under the Note in the aggregate amounts of $                .](1)

If this default is not cured within ten (10) days after delivery of this Notice, in addition to any other rights and remedies that the Lender may have (with or without the giving of notice) under the Note, the Mortgage or any other document evidencing or securing the NYTC

(1) Specific defaults to be described.

A-1

Extension Loan, by way of acceleration of the obligations or otherwise, Lender may exercise all of its rights and remedies set forth in that certain Guaranty dated                from Forest City Enterprises, Inc. to Lender (the “Guaranty”), subject to the terms therein.

This Notice shall satisfy in all respects the “10-Day Notice” requirement under paragraph 3(d) of the Guaranty.

Capitalized terms used but not otherwise defined herein shall have the meanings described to such terms in the Guaranty.

Yours very truly,
[LENDER]
By:
	Name:
	Title:

copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: General Counsel

A-2

EXHIBIT B

FORM OF 5-DAY NOTICE

[Lender]
c/o The New York Times Company
229 West 43^rd Street
New York, New York 10036

Date:               

FC Lion LLC

[ADDRESS FOR NOTICES

IN NYTC EXTENSION LOAN

MORTGAGE]

Forest City Enterprises, Inc.
1160 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
Attention: General Counsel

Ladies and Gentlemen:

Notice is herewith given that FC Lion LLC as “Borrower” under (i) that certain Modification of Substitute Extension Loan Note (the “Note”) dated                 2001 and (ii) that certain Modification of Substitute Extension Loan Mortgage and Security Agreement (Leasehold), (the “Mortgage”) dated              , 2001, which documents, among others, evidence and secure that certain loan in the original principal amount of $                       from [Lender] to Borrower (the “NYTC Extension Loan”), is in default of its obligations regarding payments of interest or principal under the NYTC Extension Loan AND such default has continued beyond the expiration of the 10-day cure period referred to in the notice of default to Borrower and Guarantor dated                   .

Specifically, Borrower has failed to make payments of: [interest required under the Note in the aggregate amount of $                          ,] [plus interest accruing subsequent to                          ;] [and Borrower has failed to make payments of principal under the Note in the aggregate amounts of $                        .](2)

(2)Specific defaults to be described.

B-1

If this default is not cured within five (5) days after delivery of this Notice, in addition to any other rights and remedies that the Lender may have (with or without the giving of notice) under the Note, the Mortgage or any other document evidencing or securing the NYTC Extension Loan, by way of acceleration of the obligations or otherwise, Lender may exercise all of its rights and remedies set forth in that certain Guaranty dated                        from Forest City Enterprises, Inc. to Lender (the “Guaranty”), subject to the terms therein.

This Notice shall satisfy in all respects the “5-Day Notice” requirement under Paragraph 3(d) of the Guaranty.

Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Guaranty.

Yours very truly,
[LENDER]
By:
	Name:
	Title:

copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: General Counsel

B-2

EXHIBIT C

FORM OF CONVEYANCE DOCUMENTS

[See attached Assignment and Assumption Agreement.  In addition, Borrower to execute transfer
tax returns in form satisfactory to Lender’s title insurance company reflecting Borrower’s
payment of transfer taxes and such other documents as may be required by Lender’s title
insurance company to record Assignment and Assumption Agreement.]

C-1

This ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Assignment”) dated as of                        , 20         by and between FC LION LLC (“Assignor”), a New York limited liability Landlord, having an office at                                             and [LENDER OR ITS DESIGNEE] (“Assignee”), a                        having an office c/o The New York Times Company, 229 West 43rd Street, New York, New York 10036.

WITNESSETH:

WHEREAS, Assignor is the tenant under those certain Agreements of Sublease more particularly described on Exhibit 1 annexed hereto (collectively, the “Subleases”) affecting a portion of the property more particularly described in Exhibit 2 attached hereto and hereby made a part hereof and the improvements located thereon;

WHEREAS, Assignor wishes to assign all of its right, title and interest in and to the Subleases to Assignee, and Assignee wishes to assume all such right, title and interest from and after the effective date of such assignment.

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 covenant and agree as follows:

1.Capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the Subleases. References herein to any document or instrument shall refer to the same as it may be amended, modified, supplemented, extended, renewed or assigned.

2.Assignor hereby assigns, grants, bargains, sells and transfers all of its right, title and interest in and to the Subleases, together with any and all amendments, extensions and renewals thereof, and together with all rights and obligations accrued or to accrue under said Subleases, to Assignee and its successors and assigns, TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, from the date hereof, for all the rest of the term of the Subleases.

3 .Assignee hereby assumes and agrees to perform and comply with all of the covenants and conditions of the Subleases to be performed or complied with by the tenant thereunder on and after the date hereof, as if Assignee had originally executed the Ground Lease as the tenant thereunder.

4.This Assignment shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.

5.This Assignment shall be governed by, and construed in accordance with

C-2

the laws of the State of New York.

6.This Assignment may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have signed and delivered this Assignment as of the date first set above.

ASSIGNOR:

FC LION LLC

By:

Name:

Title:

ASSIGNEE:

[LENDER OR ITS DESIGNEE]

By:

Name:

Title:

C-3

STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the            day of                       , in the year 20       , before me, the undersigned, a Notary Public in and for said State, personally appeared                                    , 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 she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Notary Public

Commission Expires

STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the            day of                       in the year 20       , before me, the undersigned, a Notary Public in and for said State, personally appeared                                    , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Notary Public

Commission Expires

C-4

Exhibit 1 to Assignment and Assumption Agreement

RETAIL SUBLEASE

Agreement of Sublease by and between The New York Times Building, LLC, Landlord, and FC Lion LLC, Tenant, dated as of             , 2001, a memorandum of which was recorded in the Office of the Register of the City of New York, New York County on             , 2001, as amended by [Amendment] dated             , 200      , a memorandum of which [Amendment] was recorded in the Office of the Register of the City of New York, New York County on             , 200     , the Landlord’s interest in which Agreement of Sublease has been assigned to 42nd St. Development Project, Inc. by Assignment and Assumption Agreement dated                 , 200     , between The New York Times Building, LLC, assignor, and 42nd St. Development Project, Inc., assignee.

OFFICE SUBLEASE

Agreement of Sublease by and between The New York Times Building, LLC, Landlord, and FC Lion LLC, Tenant, dated as of             , 2001, a memorandum of which was recorded in the Office of the Register of the City of New York, New York County on             , 2001, as amended by [Amendment] dated             , 200    , a memorandum of which [Amendment] was recorded in the Office of the Register of the City of New York, New York County on              , 200     , the Landlord’s interest in which Agreement of Sublease has been assigned to 42nd St. Development Project, Inc. by Assignment and Assumption Agreement dated                  , 200   , between The New York Times Building, LLC, assignor, and 42nd St. Development Project, Inc., assignee.(3)

(3)Revise as necessary if there are multiple Office Severance Subleases.

C-5

Exhibit 2 to Assignment and Assumption Agreement

DESCRIPTION OF PROPERTY

[Land Description from Condominium Declaration]

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EXHIBIT D

FORM OF FORECLOSURE DOCUMENTS

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK	x

[LENDER],			Index No.
	Plaintiff,
-against-
FC LION LLC,			STIPULATION
			OF SETTLEMENT
	Defendant.
		x

WHEREAS, plaintiff [LENDER] (“NYT”) shall commence a foreclosure action (the “Foreclosure Action”) by filing a summons and verified complaint (the “Foreclosure Complaint”) with respect to a Mortgage (hereinafter defined) on the leasehold interest in certain improved real property located at [Site 8 South], New York, New York (the “Mortgaged Premises”), as such property is described more particularly in Exhibit A hereto, naming as a defendant, FC Lion LLC (“Borrower”); and

WHEREAS, Borrower borrowed the sum of [             ] from NYT, which loan, together with interest thereon, was evidenced by a certain Modification of Substitute Extension Loan Note dated [                              ] (the “Note”) whereby Borrower was bound and promised to repay to NYT said sum with interest thereon at the rate provided in the Note, and

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WHEREAS, Borrower, as collateral security for the payment of the indebtedness evidenced by the Note, executed, acknowledged and delivered to NYT, that certain Modification of Substitute Extension Loan Mortgage and Security Agreement (Leasehold) dated [             ] (the “Mortgage”); and

WHEREAS, Forest City Enterprises, Inc., a corporation organized under the laws of the State of Ohio, as an inducement to NYT to make the loan evidenced by the Note, executed and delivered that certain Guaranty dated [             ] (the “Guaranty”); and

WHEREAS, Borrower defaulted under the terms of the Note and Mortgage in that Borrower failed to pay to NYT the installments of principal and interest due on [             ] (for interest period [             ] through [             ] and thereafter; and

WHEREAS, NYT notified Borrower of its defaults under the Note and the Mortgage and, upon Borrower’s failure to cure the defaults, NYT has accelerated and declared immediately due and payable the entire unpaid principal balance of the Note, to wit, the sum of [            ], with interest, late charges and other fees (including attorneys’ fees) as provided in the Note, the Mortgage and Guaranty.

NOW, THEREFORE, it is hereby stipulated and agreed by and between the undersigned as follows:

1.The recitals set forth hereinabove are true, accurate and incorporated herein by reference as if repeated at length herein.

2.Borrower acknowledges, agrees and admits that it is in default under the Note and that the following amounts are due and owing to NYT under the Note and Mortgage, without defense, offset or counterclaim:  (i) the outstanding principal balance in the sum of [             ];

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(ii) outstanding interest arrears through [             200   ] in the sum of [             ]; (iii) late charges of [             ]; (iv) insurance premiums, fees (including attorneys’ fees) and other expenses of [             ]; (v) interest on [                          ] from and after [             ] at the rate of [             ] per diem; and (vi) additional expenses reimbursable under the Note, the Mortgage and Guaranty (such as taxes, assessments and penalties, if any, with respect to the Mortgaged Premises, insurance premiums, costs for maintenance, protection and preservation of the Mortgaged Premises, appraisal and environmental fees, legal fees, Court costs and disbursements and any additional allowances pursuant to CPLR 8302 or 8303 or any successor statute(s)).

3.Borrower hereby:

(a)ratifies and confirms the jurisdiction of this Court, acknowledges and admits due and proper service upon it of a copy of the summons and the Foreclosure Complaint in the Foreclosure Action and waives service of all papers and notices of all proceedings in the Foreclosure Action;

(b)irrevocably, unconditionally and with prejudice waives and releases all defenses, affirmative defenses, set-offs and counterclaims, in fact, law or equity, to or relating to the Foreclosure Complaint, the Foreclosure Action, the Note and the Mortgage;

(c)assigns and transfers to NYT all security deposits held for the Mortgaged Premises, or any portion thereof, agrees to promptly provide to the tenants of the Mortgaged Premises notice of the transfer to NYT, and delivers to NYT possession, custody and control of the Mortgaged Premises along with all records, rents, keys, equipment, fixtures and supplies attendant thereto (“Possession”);

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(d)consents to the immediate entry, on the terms and conditions hereinafter set forth, of (i) a judgment of foreclosure and sale, on consent, in the form annexed hereto as Exhibit B (the “Judgment of Foreclosure”), to the computation of the indebtedness contained therein and to the immediate sale at public auction of the Mortgaged Premises in accordance with the terms thereof;

(e)agrees that, other than as specifically contemplated hereunder, it shall take no actions, steps or procedures which might delay, impede or preclude (i) NYT from taking Possession of the Mortgaged Premises and collecting rents from occupants of the Mortgaged Premises, the Mortgaged Premises is transferred pursuant to the Judgment of Foreclosure or otherwise, and (ii) NYT from causing the Judgment of Foreclosure to be duly and promptly entered; and

(f)admits there are no defenses, affirmative defenses, set-offs or counterclaims with respect to the Note and the Mortgage, that all of the provisions of each of the foregoing documents are valid, binding, enforceable and unimpaired in accordance with their terms and are hereby ratified and confirmed.

4.Borrower agrees to cooperate with NYT in taking all steps (including furnishing testimony, where necessary) and executing or furnishing all documents and affidavits requested by NYT and/or as may be necessary for the submission and entry of the Judgment of Foreclosure and the turnover and surrender of possession, custody and control of the Mortgaged Premises in accordance with the terms thereof.

5.Borrower hereby represents, warrants and covenants to NYT that Borrower’s execution of this Stipulation and the performance by Borrower of its obligations hereunder (i) has been duly and properly authorized by all requisite corporate acts, and (ii) has been duly authorized and approved by the requisite Courts, municipal officers, governmental officials or third-parties, and

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(iii) will not violate any contract, document, understanding, agreement or instrument to which Borrower is a party or by which Borrower or the Mortgaged Premises might be bound or affected.

6.Borrower hereby acknowledges, agrees and consents that NYT is entitled forthwith, and without objection, interference, delay or restraint by or on behalf of Borrower, to execute immediately upon the Judgment of Foreclosure for the full amount thereof and to cause the immediate sale of the Mortgaged Premises at public auction. Upon a default by Borrower in any of its obligations hereunder or if any of the Representations is false or misleading, NYT shall be entitled, in addition to the sale of the Mortgaged Premises at public auction, to enter a deficiency judgment against Borrower for the difference between the amount set forth in the Judgment of Foreclosure and the amount of the successful bid at the public auction of the Mortgaged Premises (such sum conclusively representing the value of the Mortgaged Premises in accordance with Section 1371 of the Real Property Actions and Proceedings Law).

7.Borrower and Guarantor hereby unconditionally and irrevocably releases and forever discharges NYT, its officers, directors, employees, agents, attorneys, representatives, successors and assigns from and against any and all rights, claims, causes of action, damages, liabilities and obligations of any nature or kind whatsoever arising out of or in connection with the Note, the Mortgage, the Guaranty and/or the Mortgaged Premises. NYT hereby unconditionally and irrevocably releases and forever discharges Borrower and Guarantor, their respective officers, directors, employees, agents, attorneys, representatives, successors and assigns from and against any and all rights, claims, causes of action, damages, liabilities and obligations of any nature or kind whatsoever arising out of or in connection with the Note, the Mortgage, the Guaranty and/or the Mortgaged Premises, provided, however, that such release shall not be deemed to discharge

D-5

Borrower and Guarantor of their respective representations, warranties and obligations, made or covenanted to under this Stipulation.

8.No failure or delay by NYT to exercise any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder.

9.The parties executing this Stipulation and ancillary documents hereby represent that (i) they have read and reviewed this Stipulation and all ancillary documents with their independent counsel and they understand and consent to the terms and provisions hereof; and (ii) this Stipulation and the Judgment of Foreclosure when executed by the parties hereto, will be the legal, valid and binding obligations of the parties hereto enforceable in accordance with their respective terms and duly authorized by all requisite corporate acts.   This Stipulation may not be amended except in a writing signed by the parties hereto and this Stipulation shall be governed by and construed in accordance with the laws of the State of New York. In the event any one or more of the provisions of this Stipulation shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Stipulation, but this Stipulation shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

10.This Stipulation shall inure to the benefit of and shall be binding upon the parties hereto and their respective legal representatives, successors and assigns. Nothing in this Stipulation, express or implied, is intended to confer on any person other than the parties hereto, or

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their respective legal representatives, successors and assigns, any rights, remedies, obligations or liabilities.

11.This Stipulation may be executed in separate counterparts, which, together, shall constitute one and the same fully executed Stipulation.

12.This Stipulation sets forth the entire understanding of the parties with respect to the subject matter of this Stipulation. Neither party has made to the other party, with respect to the subject matter of this Stipulation, any representation or warranty, oral or written, express or implied in fact or by law except as set forth in or required by this Stipulation.  Neither party is entering into this Stipulation in reliance upon, or is concerned with the accuracy or completeness of, anything, oral or written, expressed or given to it by the other party, except as set forth in this Stipulation.

D-7

IN WITNESS WHEREOF, this Stipulation has been executed and delivered as of the         day of [                   ], 2001.

FC LION LLC:
By:
	Name:
	Title:
[LENDER]
By:
	Name:
	Title:
FOREST CITY ENTERPRISES, INC.
By:
	Name:
	Title:

D-8

STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the                      day of [              ], 2001, before me, the undersigned, a Notary Public in and for said state, personally appeared                 personally known to me or proved to me on the basis or satisfactory evidence to be the person 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 person, or the entity upon behalf of which the person acted, executed the instrument.

Notary Public

STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the               day of [               ], 2001, before me, the undersigned, a Notary Public in and for said state, personally appeared               personally known to me or proved to me on the basis or satisfactory evidence to be the person 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 person, or the entity upon behalf of which the person acted, executed the instrument.

Notary Public

On the                    day of [            ], 2001, before me, the undersigned, a Notary Public in and for said state, personally appeared                 personally known to me or proved to me on the basis or satisfactory evidence to be the person 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 person, or the entity upon behalf of which the person acted, executed the instrument.

Notary Public

D-9

Exhibit A to Stipulation of Settlement

DESCRIPTION OF MORTGAGED PROPERTY

[From Extension Loan Mortgage]

D-10

Exhibit B to Stipulation of Settlement

JUDGMENT OF FORECLOSURE AND SALE

(See Attached)

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At IAS Part          of the Supreme Court of the State of New York, held in and for the County of New York, at the Courthouse, 60 Centre Street, New York, New York, on the         day of          , 2001         

PRESENT:
Hon.                        ,
		Justice.
			x
[LENDER],			Index No.
		Plaintiff,
-against-
FC LION LLC, [names of other defendants to be inserted], THE PEOPLE OF THE STATE OF NEW YORK, THE CITY OF NEW YORK, JOHN DOE NOS. 1-100, JOHN DOE COMPANY NOS. 1-100 and JOHN DOE CORPORATION NOS. 1-100, The Names of the “John Doe” Defendants Being Fictitious and Unknown to Plaintiff, the Persons and Firms Intended Being Those Who May Be in Possession of, or May Have a Possessory, Lien or Other Interests in, the Premises Herein Described.				JUDGMENT OF FORECLOSURE AND SALE
	Defendant.
				x

Upon the summons, verified complaint and notice of pendency heretofore filed in this action on                     ,                      the affidavit of regularity of [                     ], sworn to                     ,                     showing that each of the defendants herein has been duly served with a copy of the summons and verified complaint in this action, or has appeared herein by their attorneys; the stipulation of settlement by and between plaintiff and defendant FC Lion

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LLC (“Borrower”) dated                   (the “Stipulation”), and upon all papers and proceedings heretofore had herein, from all of which it appears that this action was brought to foreclose, and that Borrower consents to the foreclosure of, that certain leasehold mortgage dated [                     ] (the “Mortgage”), given as security for that certain note in the original principal sum of [                     ] (the “Note”), on certain property located at [Site 8 South], New York, New York, and more particularly described in the Mortgage (the “Mortgaged Premises”), and that (i) the outstanding principal balance in the sum of [                     ]; (ii) outstanding interest arrears through [                     ] in the sum of [                     ]; (iii) late charges of [                     ]; (iv) insurance premiums, fees (including attorneys’ fees) and other expenses of [                     ]; (v) interest on [                     ] from and after [                   ] at the rate of[                     ] per diem; and (vi) additional expenses reimbursable under the Note and Mortgage (such as taxes, assessments and penalties, if any, with respect to the Mortgaged Premises, insurance premiums, costs for maintenance, protection and preservation of the Mortgaged Premises, appraisal and environmental fees, legal fees, Court costs and disbursements and any additional allowances pursuant to CPLR 8302 or 8303) are now due and payable; that all of the defendants herein have been duly served with a copy of the summons and verified complaint; that Borrower has appeared herein through its attorneys, [                                          ], waived service of all papers herein and consents to this judgment of foreclosure and sale upon the terms and conditions hereinafter set forth by subjoining its consent hereto; that the time to move or answer with the respect to the complaint has expired and that no answer or motion directed to the complaint or otherwise has been interposed except by Borrower, who has consented to this judgment of foreclosure, and that the

D-13

time to do so has not been extended by order of this Court; and that the defendant, other than as previously set forth, is in default in answering the complaint; and that the defendant is not an infant, incompetent or absentee; and that the notice of pendency heretofore filed has been on file for twenty (20) days or more and contains correctly and truly all of the particulars required by law to be stated in such notice.

NOW, on the motion of SWIDLER BERLIN SHEREFF FRIEDMAN, LLP, attorneys for plaintiff, it is

ORDERED, ADJUDGED AND DECREED that plaintiff is entitled to have judgment herein for the sum of [                     ], together with interest on the outstanding principal sum of [                     ] at the rate of [                     ] per diem from [                     ] until the date of judgment and thereafter at the legal rate until payment is made to plaintiff, together with any expenses paid or incurred by plaintiff pursuant to the Mortgage not previously included in the above computations from [                     ] until payment is made to plaintiff, with interest thereon at the contract rate, besides the sum of $                     as taxed by the Clerk of the Court and hereby adjudged to plaintiff for costs and disbursements in this action, with interest thereon from the date hereof, together with an additional allowance of [                     ] hereby awarded to plaintiff in addition to costs and disbursements, with interest thereon from the date hereof; and it is further

ORDERED, ADJUDGED AND DECREED that the Mortgaged Premises described in the complaint in this action and as hereafter described, or such part thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of this action as provided by the Real Property Actions and Proceedings Law be sold, in one parcel, at public auction at the “rotunda” of the Courthouse, 60 Centre St., New York, New York 10007 by and

D-14

under the direction of                                          who is hereby appointed Referee for that purpose; that the said Referee give public notice of the time and place of such sale in accordance with RPAPL §231 in                                          and that the plaintiff or any other parties to this action may become the purchaser or purchasers at such sale; that in case plaintiff, its assignee, designee or nominee, shall become the purchaser at such sale, it shall not be required to make any deposit thereon; that said Referee execute to the purchaser or purchasers on such sale a deed or other instrument of conveyance of the Mortgaged Premises sold; that in the event a party other than the plaintiff becomes the purchaser or purchasers at such sale, the closing of title shall be had thirty days after such sale unless otherwise stipulated by plaintiff and all parties to the sale; and it is further

ORDERED, ADJUDGED AND DECREED, that said Referee on receiving the proceeds of the sale shall forthwith pay therefrom the lien(s) on the Mortgaged Premises for real estate taxes, special assessments, school taxes, water and sewer charges, emergency repair liens, sidewalk repair charges, pest control charges, health department clean-up liens and all other tax liens that have priority pursuant to applicable law over any amount due to plaintiff which may have lawfully accrued thereon to the date of payment, and it is further

ORDERED, ADJUDGED AND DECREED, that said referee then deposit the balance of said proceeds of sale in his/her own name as Referee in                                           , and shall thereafter make the following payments therefrom and his/her checks drawn for that purpose shall be paid by said depository:

D-15

FIRST:A sum not exceeding $500, to the referee for his or her fees herein as provided in section 8003(b) of the Civil Practices Law and Rules.

SECOND:The expenses of the sale and the advertising expenses as shown on the bills presented and certified by the Referee to be correct.

THIRD:To the plaintiff or plaintiffs attorney the sum of $                        adjudged to the plaintiff for costs and disbursements in this action, to be taxed by the Clerk of the Court, and inserted herein, with interest thereon from the date hereof; together with an additional allowance of $                     hereby awarded to the plaintiff or plaintiffs attorneys, in addition to costs, with interest thereon from the date hereof, and also the sum of [                     ], the amount due as aforesaid, together with interest on the outstanding principal sum of [                     ] at the rate of [                     ] per diem from [                     ] until the date of judgment and thereafter at the legal rate until payment is made to plaintiff, and also any amounts paid by plaintiff for any taxes, insurance or for preservation of the Mortgaged Premises since                  and any principal and interest and any other charges due to prior mortgages, or to maintain the premises pending consummation of this foreclosure sale, not previously included in the computation and upon presentation of receipts for said expenditures to the Referee, all together with interest thereon pursuant to the Note and Mortgage.

ORDERED, ADJUDGED AND DECREED that in case plaintiff, its assignee, designee or nominee, is the purchaser of the Mortgaged Premises, or in the event that the rights of the purchasers at said sale and the terms of sale under this judgment shall be assigned to and be acquired by the plaintiff, and a valid assignment thereof filed with said Referee, said referee shall not require it to pay in cash the entire amount bid at the sale, but shall execute and deliver

D-16

to plaintiff or its assignee a deed or other instrument of conveyance of the Mortgaged Premises upon the payment to said Referee of the amounts specified above in items marked “FIRST” and “SECOND” and the amounts of the aforesaid taxes, assessments, sewer rents and water rates, with interest and penalties thereon, or in lieu of the payment of said last mentioned amounts, upon filing with the referee receipts of the proper municipal authorities, showing payment thereof; that the balance of the amount bid, after deduction therefrom of the aforesaid amounts paid by plaintiff for Referee’s fees, advertising expenses, taxes, assessments, sewer rents and water rates shall be allowed to the plaintiff and applied by said Referee upon the amounts due to the plaintiff as specified in item marked “THIRD”; that if after so applying the balance of the amount bid there shall be a surplus over and above the amounts due to plaintiff, plaintiff shall pay to the referee, upon delivery of the referee’s deed or other instrument of conveyance, the amount of such surplus; that the referee on receiving the amounts from plaintiff shall forthwith pay therefrom said taxes, assessments, sewer rents, water rates, with interest and penalties thereon, unless the same have already been paid, and shall then deposit the balance; and it is further

ORDERED, ADJUDGED AND DECREED that the referee shall take the receipts of plaintiff or its attorneys for the amounts paid as hereinbefore directed in item marked “THIRD,” and file it with his/her report of sale; that the referee shall deposit the surplus monies, if any, with the New York County Clerk within five days after the same shall be received and be ascertainable, to the credit of this action, to be withdrawn only on the order of the Court signed by a Justice of this Court; that the referee shall make a report of the sale under oath showing the disposition of the proceeds of the sale and accompanied by the vouchers of the person to whom

D-17

the payments were made and file it with the Clerk of New York County within thirty days after completing the sale and executing the proper conveyance to the purchaser and that if the proceeds of the sale be insufficient to pay the amount so due to plaintiff with the expenses of sale, interest, costs and allowances, as aforesaid, the referee shall specify the amount of such deficiency in his or her report and Borrower hereby consents to a deficiency judgment against it, in the amount of such deficiency, in accordance with the provisions of Section 1371 of the Real Property Actions and Proceedings Law; and it is further

ORDERED, ADJUDGED AND DECREED that the purchaser or purchasers at the sale of the Mortgaged Premises be let into possession on production of the referee’s deed or other instrument of conveyance therefor; and it is further

ORDERED, ADJUDGED AND DECREED that, inasmuch as defendants “John Does Nos. 1 - 100,” “John Doe Company 1 -100” and “John Doe Corporations 1 - 100” are unknowns and have not been served with process, the action is discontinued as against them, their names are deleted from the caption hereof and the caption of this action shall be amended to read hereafter as follows:

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF New York	x

[LENDER],
	Plaintiff,		Index No.
-against-
FC LION LLC [Names of additional defendants to be inserted]
	Defendants.
		x

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and it is further

ORDERED, ADJUDGED AND DECREED that the defendant in this action and all persons claiming under or through such defendants after the filing of the notices of the pendency of this action, be and they hereby are forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption in the Mortgaged Premises sold pursuant to the terms hereof and each and every part thereof; and it is further

ORDERED, ADJUDGED AND DECREED that said Mortgaged Premises is to be sold in one parcel in “as is” physical order and condition, subject to any state of facts that an inspection of the Mortgaged Premises would disclose, any state of facts that an accurate survey of the Mortgaged Premises would show, any covenants, restrictions, declarations, reservations, easements, rights of way and public utility agreements of record, if any, any building and zoning ordinances of the municipality in which the Mortgaged Premises is located and possible violations of same, any rights of tenants or persons in possession of the subject Mortgaged Premises, prior lien(s) of record, if any, except those liens addressed in section 1354 of the Real Property Actions and Proceedings Law, and the right, if any, of the UNITED STATES OF AMERICA to redeem the Mortgaged Premises as provided in Title 28 of the United States Code, Section 2410(c).

ORDERED, ADJUDGED AND DECREED that a copy of this judgment with notice of entry shall be served upon the owner of the equity of redemption, any tenants named in this action and any other party entitled to notice.

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Said premises commonly known as [Site 8 South], New York, New York.  The following is a description of the Mortgaged Premises hereinbefore mentioned.

[INSERT LEGAL DESCRIPTION]

ENTER:

J.S.C.

CONSENT TO ENTRY OF THE WITHIN JUDGMENT OF FORECLOSURE AND SALE ON BEHALF OF THE RESPECTIVE PARTIES HERETO THIS        DAY OF            .

SWIDLER BERLIN SHEREFF FRIEDMAN, LLP	[KELLEY DRYE & WARREN LLP]
By:	By:
405 Lexington Avenue	101 Park Avenue
New York, New York 10174	New York, New York 10178
(212) 973-0111	(212) 212-808-7800
Attorneys for Plaintiff	Attorneys for Defendant
[LENDER]	[FC Member]

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EXHIBIT E

FORM OF DEMAND NOTICE

[Lender]
c/o The New York Times Company
229 West 43^rd Street
New York, New York 10036

Date:                

FC Lion LLC

[ADDRESS FOR NOTICES

IN NYTC EXTENSION LOAN

MORTGAGE]

Forest City Enterprises, Inc.
1160 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
Attention: General Counsel

Ladies and Gentlemen:

Demand is hereby made that FC Lion LLC as “Borrower” under (i) that certain Modification of Substitute Extension Loan Note (the “Note”) dated                    2001 and (ii) that certain Modification of Substitute Extension Loan Mortgage and Security Agreement  (Leasehold) (the “Mortgage”), dated                    , 2001, which documents among others evidence and secure that certain loan in the original principal amount of $                    from [LENDER] (“Lender”) to Borrower (the “NYTC Extension Loan”), take any and all such actions as indicated below (the “Required Conveyance Action”) within ten (10) days after delivery to Borrower of this Demand Notice pursuant to the terms and provisions of that certain Guaranty dated                   from Forest City Enterprises, Inc. to Lender (the “Guaranty”).

[Borrower shall execute the attached stipulation consenting to the immediate entry of a judgment of foreclosure and the immediate sale at public auction of the Mortgaged Property (as defined in the Mortgage) in accordance with the terms thereof, and shall thereafter execute and deliver all other documents required in connection therewith to effectuate such immediate entry of a judgment of foreclosure and the immediate sale at public auction of the Mortgaged Property. In connection with the foregoing and the foreclosure of the NYTC Extension Loan,

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Borrower shall pay any and all transfer taxes and any other expenses of Lender (or its designee) (including reasonable fees and expenses of counsel).]

-or-

[Borrower shall convey to Lender (or its designee, if herein so indicated:                                        ) the Mortgaged Property (as defined in the Mortgage) and shall execute and deliver to Lender the attached assignment and required ancillary documentation and take any other reasonable actions as Lender may require to that end.  In connection with the foregoing, Borrower shall (x) pay all transfer taxes, recording charges and other expenses (including reasonable fees of counsel) of Lender and shall (y) deliver possession of the Mortgaged Property to [LENDER] (or it’s designee), subject only to the rights of permitted tenants and occupants under the Condominium Declaration (as defined in the Mortgage).]

Failure of the Borrower to take the above described actions within the 10-day period set forth herein, and to comply with the applicable requirements of Paragraph 3(d) of the Guaranty, time being of the essence, shall constitute a “Non-Conveyance Triggering Event” under such Guaranty. The rights and remedies of Lender under such Guaranty and this Demand Notice shall be in addition to and in no way prejudice or act as a waiver of any and all rights and remedies of Lender, whether by acceleration or otherwise, under the Note, the Mortgage or any other document evidencing or securing the obligations NYTC Extension Loan.

Capitalized terms used by not otherwise defined herein shall have the meanings ascribed to such terms in the Guaranty.

Yours very truly,
[LENDER]
By:
	Name:
	Title:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: General Counsel

E-2

EXHIBIT T

Allocation Methodology Strategy

EXHIBIT T

Site Work/ Demolition / Subway Entrance

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF.

Foundation & Excavation

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF except for the following considerations:

1.Elevator pits reaching foundation level to be allocated to area serviced by the elevator.

Structural Frame including structural steel, metal decks, concrete fill, and spray fireproofing.

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF except for the following considerations:

1.Any enhanced floor loading that exceeds typical office loads, atypical column-free space, or repositioning beams or bracing should be allocated to the specific user.

Stairs

The cost of fire stairs and the associated structural support will be allocated between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF.

The cost of stairs over and above those required by code, including communicating or convenience stairs that are included to serve a specific user, will be allocated to that user. (For example the cost of any stairs that provide access to and from multiple levels of the news room should be allocated NYTC and similarly, the cost of any stairs that provide access to an from floors in a Tenant’s space should be allocated to FCRC.)

Roofing & Waterproofing

1.Allocate cost of roofing and waterproofing between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF.

2.Other than the skylights over the Lobby Garden (see below), the cost of any skylights over the “Podium” will be allocated to NYTC after deducting a credit for the cost of roofing cited above.

Exterior Wall System

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on area of curtain wall required to enclose floor area occupied by the different users. In the case of floor plates that are occupied by more than one user, the cost of enclosing the floor will be allocated based on a percentage of floor area occupied by each of the four users as that percentage is applied to the surface area of exterior wall required to enclose the entire floor. To the extent that the Exterior Wall System extends above the roof the cost of the Exterior Wall System and associated support structure will be allocated among NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF. The cost of enclosing those areas that are not occupied by a particular user, but instead is either common area or is used to house common MEP equipment which is separate and distinct from MEP equipment that specifically serves a specific user, will be allocated based on the same approach as outlined below in the “Percentage of GSF Calculation.”   The total cost of the exterior wall system, including the CMU wall at the east end of the site, will be divided by the total square footage of surface area of the exterior wall system in order to calculate a blended cost per SF which will be applied to the surface area allocated to each user. The cost of all ground floor and podium level canopies will be allocated to each of the four users based on a percentage of GSF. The cost of all ground floor awnings will be allocated to each of the four users based on a percentage of GSF.

Interior Partitions & Finishes- Core, Base Building and Lobbies only

Allocate cost of interior finishes, including but not limited to lobby artwork, between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF except for the following considerations:

1.Allocate demising partitions among adjacent users. (Specifically, on the Ground Level and sub-grade level(s).)

2.Allocate specific ground floor lobby finish costs to appropriate users.

3.Allocate core drywall, finishes, doors, hardware, toilet accessories, and toilet partition costs to the area that the specific portion of the core is serving.

4.Signs that merely identify The Times shall not be considered artwork for purposes of allocating costs.

5.Cost of shaftwall construction for blind elevator shafts, or other shafts required for building elements which are not included in the Base Building Core, and Shell scope, shall be allocated to the appropriate user.

Equipment & Specialties

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF.

Vertical Transportation

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on usage or areas of service instead of a percentage of GSF. i.e. NYTC, FCRC Retail, FCRC Office and SPU will pay for the full price of the elevators serving their space. The cost of each of the freight elevators will be allocated to the four users based on a pro rata share of the number of stops that the elevator makes to service each user. The cost of the East Freight Elevator will be allocated based on GSF.   The cost of the East Service Elevator will be allocated based on 3 stops for the NYTC and three stops for Common Use. The GSF occupied by the Passenger Elevator Machine Rooms will be allocated to the user of the associated elevators.   The GSF occupied by the Freight Elevator Machine rooms will be allocated to Common Mechanical. The pro rata share of the cost of two stops of each of the passenger elevators that serve the rooftop facility shall be allocated to the NYTC and FCRC based on their respective percentage interest in the rooftop facility.

Plumbing

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF except in the case of any special requirements that may be separately designated by the parties in writing.

Fire Protection

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF except in the case of any special requirements that may be separately designated by the parties in writing.

H.V.A.C.

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on a percentage of GSF except for atypical and specific user requirements outside of the base building scope as defined in the “Base Building Core and Shell” description. The cost of the chiller plant, as defined in the Core and Shell definition, will be allocated between NYTC, FCRC Retail, FCRC Office and SPU based on a percentage of GSF. Any excess need required by either NYTC or FCRC that is not included in the base Core and Shell definition (e.g. additional cooling capacity for newsroom or cafeteria if required), will be paid for by the specific user on the basis of cost per ton of cooling capacity. If the excess capacity that is required to satisfy the needs of an FCRC tenant necessitates the installation of an additional chiller, then FCRC will bear the incremental cost of the additional chiller. If FCRC bears that incremental cost for an additional chiller, then all remaining excess cooling capacity afforded to the building would run to FCRC.

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Electrical

Allocate cost between NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF except for atypical and specific user requirements outside of the base building scope as defined in the “Base Building Core and Shell” description.

Lobby Garden

Allocate the cost, including but not limited to skylight, smoke purge, column cladding, and lobby level enclosure, among NYTC, FCRC Retail, FCRC Office and SPU based on percentage of GSF except for the following considerations:

1.Garden enclosure, railings and related features in NYT’s space at the walls of the lobby garden will be allocated to NYT to the extent that the costs exceed a standard fire rated sheetrock enclosure.

Roof Garden

Allocated cost between NYTC and FCRC office based on percentage of GSF.

Percentage of GSF Calculation

Each of the four users (FCRC Office, NYTC Office, FCRC Retail, and SPU) occupies a certain GSF area. The remaining GSF includes Common Areas, Mechanical Space specifically serving one of the four user areas, shaft areas, and Mechanical Space that is required for central plant and/or common base building equipment. The GSF of the Mechanical Space that is occupied by equipment, including passenger elevator equipment, specifically serving a particular user area will be included in that user’s total GSF area. With the sole exception of the blind FCRC elevator shafts, all shaft areas will be included in the total of each GSF floor area that is penetrated by the shaft. An appropriate percentage of GSF will be assigned to each user based on the total of the occupied space, user-specific mechanical space and appropriate shaft space. The total of all Common and Central Plant Mechanical GSF, including freight elevator equipment rooms, will then be allocated to each of the four users based on the previously calculated percentages.

The FCRC blind elevator shaft space that penetrates the NYTC floors will not be included in the GSF area calculation for any of the four user areas.

For Example:

Occupied Areas:

FCRC Office GSF:	600,000		44	%	(Inc. Mech Space serving user and appropriate shaft areas.)
NYTC Office GSF:	670,000		49	%	(Inc. Mech Space serving user and appropriate shaft areas.)
FCRC Blind Shaft:	30,000				(Area of FCRC elevator shafts penetrating NYTC floors.)
FCRC Retail:	60,000		4	%	(Inc. Mech Space serving user and appropriate shaft areas.)
SPU:	40,000		3	%	(Inc. Mech Space serving user and appropriate shaft areas.)
Sub Total	1,400,000
Blind Shaft Deduct	(30,000	)
Subtotal	1,370,000		100	%
Common Areas:
Lobby	30,000
Common Areas	40,000				(Inc. basement corridors, driveways, bldg mgmt space.)
Common Mech Space	30,000				(e.g. switchgear, chiller/boiler, fuel tanks, base genset.)
Subtotal	100,000

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By applying the percentages calculated in “Occupied Areas” subtotal to the “Common Areas” subtotal, and removing the FCRC Blind Shaft area from the total amount used as the basis of the allocation, the following percentages of the Total will be used for GSF allocation purposes:

FCRC Office GSF:	644,000	44	%
NYTC Office GSF:	719,000	49	%
FCRC Retail:	64,000	4	%
SPU:	43,000	3	%
Total	1,470,000

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EXHIBIT U

Exhibit U

Cost Dispute Resolution List

Building Element	Current Budget		Upset Amount
•  Ground Floor Lobby Finishes, not including Artwork	$	[*]	$	[*]
•  Entrances and Storefronts	[*]		[*]
•  Lobby Garden Landscaping	[*]		[*]
•  Building Canopies	[*]		[*]
•  Ground Floor Interior Glass & Courtyard Curtainwall	[*]		[*]
•  Exterior Lighting, Signage & Artwork	[*]		[*]
•  Rooftop Facility and Garden	[*]		[*]

EXHIBIT V

NYTC Recognition Agreement

RECOGNITION AGREEMENT

This RECOGNITION AGREEMENT, dated as of December 12, 2001 (this “Agreement”), is made by INGREDUS SITE 8 SOUTH LLC, a Delaware limited liability company (“ING”), having an office at c/o Clarion Partners, 335 Madison Avenue, New York, New York 10017; ING VASTGOED B B.V., a Netherlands private limited liability company (“ING Indemnitor”) having an office at c/o Clarion Partners, 355 Madison Avenue, New York, New York; FC 41st STREET ASSOCIATES, LLC, a New York limited liability company (“FC”), having an office at c/o Forest City Ratner Companies, One MetroTech Center North, Brooklyn, New York 11201; FC LION LLC, a New York limited liability company (“FC Member”), having an office at c/o Forest City Ratner Companies, One MetroTech Center North, Brooklyn, New York 11201; NYT REAL ESTATE COMPANY LLC, a New York limited liability company having an office at c/o The New York Times Company, 229 West 43rd Street, New York, New York 10036 (“NYTC Member”); THE NEW YORK TIMES BUILDING LLC, a New York limited liability company (“Property Owner”), having an office at c/o The New York Times Company, 229 West 43rd Street, New York, New York 10036; FOREST CITY RATNER COMPANIES, a New York general partnership (“Developer”), having an office at One MetroTech Center North, Brooklyn, New York 11201; and THE NEW YORK TIMES COMPANY, a New York corporation (“NYTC”), having an office at 229 West 43rd Street, New York, New York 10036.

R E C I T A L S

WHEREAS:

A.FC Member and NYTC Member are parties to that certain Operating Agreement of The New York Times Building LLC, dated as of the date hereof (the “Operating Agreement”), pursuant to which FC Member and NYTC Member have agreed to jointly develop certain property located at 8th Avenue and 40th Street, New York, New York, known as Site 8 South (the “Project”):

B.Property Owner is entering into that certain Agreement of Lease dated as of the date hereof between 42nd St. Development Project, Inc. and Property Owner (as the same may hereafter be amended from time to time, the “Ground Lease”) affecting certain land known as Site 8 South, located at Eighth Avenue between 40th and 41st Streets, in the County, City and State of New York (the “Property”) on which the Project will be constructed;

C.Upon completion of the Project, FC Member and NYTC Member intend to enter into that certain Declaration of Leasehold Condominium of The New York Times Building Condominium in the form attached as an exhibit to the Operating Agreement (the “Declaration”) to form The New York Times Building Condominium (the “Condominium”):

D.Property Owner, FC Member and NYTC Member have entered into a certain Development Agreement, dated as of the date hereof (the “Development Agreement”), with Developer for the development of the Project; and

E.ING, FC, FC Member, NYTC Member, Property Owner, Developer and NYTC desire to recognize certain rights granted to ING with respect to the Project and certain rights granted to NYTC to participate in a right of first offer and buy/sell provision contained in that certain Operating Agreement of FC Member, dated as of the date hereof (the “FC Member Agreement”).

NOW, THEREFORE, in consideration of the foregoing premises, Ten Dollars ($10.00) paid in hand, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.Notices. NYTC Member and Property Owner agree to provide ING with a copy of any request, notice or demand delivered to, or served by NYTC Member or Property Owner upon FC, FC Member, Property Owner or Developer pursuant to the Operating Agreement, the Declaration, the Development Agreement, the Project Documents (as defined in the Ground Lease) or any of the exhibits to the foregoing documents, including, without limitation, any request, notice or demand made pursuant to Section 3.01 of the Operating Agreement, which notice shall be delivered to ING in the manner prescribed in this Agreement. No such notice shall be effective as against FC, FC Member, Property Owner or Developer, as the case may be, unless and until same is so delivered to ING as provided in the immediately preceding sentence.

2.Replacement of FC as Managing Member. (a) NYTC Member and Property Owner have been advised by ING and FC that ING has the right, subject to and pursuant to the FC Member Agreement, to remove FC as the managing member of FC Member as a result of specified default provisions set forth in the FC Member Agreement. Upon such removal, but subject to the provisions of the Project Documents, ING or an Affiliate (as defined in the FC Member Agreement) of ING Indemnitor, shall have the right to be substituted for FC as the managing member of FC Member or to a substitute a third party as managing member of the FC Member provided that any such third party (other than ING) shall have been approved in writing in advance by NYTC Member in its sole and absolute discretion (any replacement managing member of the FC Member complying with the provisions of this sentence, a “Replacement FC Managing Member”).  FC and Developer acknowledge that ING shall have the right and power to notify NYTC Member and Property Owner of such removal and replacement by written notice given in accordance with this Agreement (a “Replacement Notice”) and that Property Owner, NYTC and NYTC Member shall have the right to rely on a Replacement Notice purportedly delivered by ING. Upon receipt by NYTC, NYTC Member and Property Owner of a Replacement Notice, the Replacement FC Managing Member shall have the right to exercise on behalf of FC Member as the managing member of FC Member all of the rights of FC Member as a member of Property Owner pursuant to the Operating Agreement and the documents evidencing and securing the NYTC Extension Loan (as defined in the Operating Agreement) or as an owner of a unit in the Condominium pursuant to the Declaration, and NYTC, NYTC Member and Property Owner shall recognize the exercise of all such rights by the Replacement FC Managing Member on behalf of FC Member from and after receipt by NYTC, NYTC

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Member and Property Owner of a Replacement Notice.  FC and Developer, for themselves and on behalf of their Affiliates (as defined in the Operating Agreement) and their respective officers, directors, members, managers, shareholders, and agents, and the respective successors and assigns of each of the foregoing, hereby release Property Owner, NYTC Member and NYTC from and against any and all claims, actions or causes of action based in whole or in part upon the reliance of Property Owner, NYTC Member and/or NYTC on a Replacement Notice or any action taken by the Replacement FC Managing Member as managing member of FC Member from and after delivery of a Replacement Notice.   ING Indemnitor hereby agrees to indemnify, defend and hold harmless NYTC Member and NYTC and their respective officers, directors, members, managers, shareholders, agents and Affiliates, and the successors and assigns of each of the foregoing (collectively, “Indemnitees”), from and against all claims, actions, causes of action, losses, damages and expenses (including, without limitation, reasonable attorneys fees and expenses) suffered or incurred by the Indemnitees arising out of or related to the delivery of a Replacement Notice, any reliance by Property Owner or any Indemnitee upon such Replacement Notice, and/or the replacement of FC by the Replacement FC Managing Member as managing member of FC Member.

(b)From and after the giving of a Replacement Notice, the reference in Section 5.07(e) of the Operating Agreement to “Bruce Ratner” shall automatically be deemed deleted and replaced with “Charles Grossman” or such other individual designated by ING that is approved by NYTC Member in its sole and absolute discretion.

3.Replacement of Developer. (a) FC, FC Member and ING acknowledge and agree that, pursuant to the Operating Agreement, the right to exercise any and all rights and remedies against Developer, including without limitation, termination of the Development Agreement, on account of a default by Developer under the Development Agreement is vested solely in the NYTC Member. If the NYTC Member, in its sole and absolute discretion, elects to terminate the Development Agreement by reason of a default by Developer thereunder prior to Substantial Completion of the Core and Shell (as such terms are defined in the Development Agreement), then NYTC Member shall hire or cause Property Owner to hire (and FC, ING and FC Member hereby consent to any such hiring by NYTC Member or Property Owner) a replacement developer for the Core and Shell (“Replacement Developer”) which Replacement Developer shall be selected by NYTC Member in NYTC Member’s sole and absolute determination, provided that such Replacement Developer shall, in NYTC Member’s reasonable discretion, have constructed or developed (or have as a principal or principals one or more persons who have, as principal(s) of other companies, constructed or developed) at least 5,000,000 square feet of space at least 2,000,000 square feet of which consists of Class A high-rise office building space in New York City. The Replacement Developer shall not be NYTC Member or an Affiliate (as defined in the Operating Agreement) of NYTC. In addition to the other requirements and limitations set forth in this Paragraph 3(a), (A) if such replacement occurs prior to commencement of construction of the Core and Shell and a commitment for construction financing for the Project has been executed by Property Owner and a construction lender, such Replacement Developer shall be an entity which is approved by such construction lender and such Replacement Developer shall agree and shall be required to provide the construction completion guarantee to such construction lender required pursuant to Section 5.09 of the Operating Agreement, and (B) if such replacement occurs prior to commencement of construction of the Core and Shell and a commitment for construction financing for the Project

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has not then been executed by Property Owner and a construction lender, such Replacement Developer shall be an entity which has previously been approved by one or more construction lenders as a developer of Class A high rise office buildings in New York City (“Comparable Projects”) and as the guarantor of completion of Comparable Projects and such Replacement Developer shall agree and shall be required to provide the construction completion guarantee to such construction lender required pursuant to Section 5.09 of the Operating Agreement. The Replacement Developer shall be required to perform the remaining obligations of Developer under the Development Agreement, subject to such modifications thereto as NYTC Member may agree to in its commercially reasonable discretion. Notwithstanding the foregoing, NYTC, NYTC Member and Property Owner shall not have the right to appoint a replacement of the Developer if such appointment shall result in a default under Project Documents or the documents governing the Construction Loan (as defined in the Operating Agreement).

(b)Nothing contained in Paragraph 3(a) of this Agreement shall be deemed to prohibit ING from terminating any separate agreement (i.e., other than the Development Agreement) between ING and Developer or from engaging a replacement developer for ING and FC Member (“FC Unit Replacement Developer”), provided that the appointment of any such FC Unit Replacement Developer shall not result in a default by Property Owner, NYTC or NYTC Member under the Project Documents or any default under the documents governing the Construction Loan and that no such FC Unit Replacement Developer shall (A) have any rights to participate in the development or construction of the Core and Shell other than to act in an advisory capacity to FC Member in connection therewith, or (B) interfere with, impede or delay the development and construction of the Project in any manner whatsoever.

4.Transfer of Interests. (a) NYTC Member hereby consents to the transfer of interests in FC Member by ING to FC, provided and on condition that any such transfer shall not result in a default by Property Owner, NYTC or NYTC Member under the Project Documents or any default under the documents governing the Construction Loan.

(b)NYTC Member hereby consents to the transfer of interests in FC Member by FC to ING, provided and on condition that:

(i)such transfers are made either (A) after the FC Lockout Period, or (B) pursuant to Section 8.04 of the FC Member Agreement (transfers in this clause (B) being hereinafter called “Default Transfers”), (C) pursuant to Section 5.13 of the FC Member Agreement, or (D) after the ING Lockout Period pursuant to Section 8.05 of the FC Member Agreement as a result of a buy-sell procedure initiated thereunder by ING (it being acknowledged that FC shall not have the right to initiate a buy-sell procedure prior to the end of the FC Lockout Period), and

(ii)such transfers shall be subject to the right of first offer provisions of Section 8.03 of the FC Member Agreement or the buy-sell provisions of Section 8.05 of the FC Member Agreement, as applicable, and NYTC Member’s right to participate in such right of first-offer and buy-sell procedures as set forth in the FC Member Agreement (the “NYTC Participation Rights”), and

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(iii)such transfers shall not result in a default by Property Owner, NYTC or NYTC Member under the Project Documents or any default under the documents governing the Construction Loan.

(c)ING shall have the right to transfer up to fifty (50%) percent of the interests in ING to not more than three (3) Institutional Investors (as such term is defined in the FC Member Agreement), and such transfers shall not be subject to NYTC Participation Rights, provided and on condition that, (i) such transfers will not result in a default by Property Owner, NYTC Member or NYTC under the Project Documents or any default under the documents governing the Construction Loan, (ii) ING shall notify NYTC Member not later than ten (10) business days prior to the effective date of any transfer pursuant to this Paragraph (c) setting forth the name and address of each such Institutional Investor and reasonable evidence of their qualification as an Institutional Investor, and (iii) no such Institutional Investor shall have any right to participate other than through the rights of ING in the development, construction, management or operation of the Project and no such Institutional Investor shall have any rights or obligations other than through the rights of ING with respect to Property Owner or NYTC Member by reason of such Institutional Investor’s investment in the Project through ING. ING Indemnitor hereby agrees to indemnify, defend and hold harmless the Indemnitees, from and against all claims, actions, causes of action, losses, damages and expenses (including, without limitation, reasonable attorneys fees and expenses) arising out of or related to any claim by any such Institutional Investor or anyone acting under or through any such Institutional Investor if such claim is in any manner related to such Institutional Investor’s investment in the Project through ING.

(d)ING shall have the right at any time from and after the expiration of the ING Lockout Period to transfer ING’s interest in FC Member to any person or entity, subject only to the NYTC Participation Rights, provided that such transfers will not result in a default by Property Owner, NYTC Member or NYTC under the Project Documents or any default under the documents governing the Construction Loan.

(e)In the event ING acquires directly or indirectly one-hundred percent of the interests of FC Member in the Project by way of transfers permitted under this Agreement and no interests in ING or the Project are owned directly or indirectly by (i) Forest City Enterprises, Inc. (“FCE”); and or (ii) Developer, and/or (iii) Bruce C. Ratner, and/or (iv) “Family Members” (i.e., any parent, spouse, sibling, child, grandchild, aunt, uncle, niece, nephew or cousin, or any step-child or step-grandchild) of Bruce C. Ratner; or (v) any trust or trusts established for the benefit of Bruce C. Ratner or his Family Members, then, notwithstanding anything to the contrary contained in the Declaration, the “Lockout Period” (as such term is defined and used in the Declaration) shall end on the seventh (7th) anniversary of the date of the Operating Agreement or such earlier date as NYTC (as defined in the Declaration) shall cease to own and occupy Units (as defined in the Declaration) within the Building (as defined in the Declaration), the Common Interest (as defined in the Declaration) attributable to which, in the aggregate, constitutes at least twenty (20%) percent. The provisions of the preceding sentence shall not be deemed to modify any other provision of the Declaration applicable to the sale of any FC Individual Unit(s) or the sale of all or substantially all of the ownership interests therein, including without limitation, NYTC’s right of first refusal and right of first offer pursuant to Article XX of the Declaration (it being understood and agreed that sales or other transfers of

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interests in any Unit Owner between FC and ING and by ING to any other Person shall not be subject to such right of first refusal or right of first offer but shall be governed by the provisions of Section 4 hereof, including the NYTC Participation Rights).

(f)NYTC Member consents to the conversion of ING’s interest in FC Member to a mezzanine loan in accordance with Section 5.06(d)(iii) of the FC Member Agreement.

(g)Nothing contained in this Agreement, including without limitation the permission granted hereunder to transfer interests in FC Member, shall be deemed to limit the obligations and liability of FCE under that certain Minimum Equity Agreement and Guaranty of even date herewith by and among FC, FCE, NYTC and NYTC Member in the event such transfers result in a breach of said Minimum Equity Agreement and Guaranty.

5.Amendments of Operating Agreement, Declaration and Project Documents. Property Owner, FC, NYTC and NYTC Member agree that they shall not enter into any amendment of the Operating Agreement, the Declaration or any Project Document without the consent of ING, provided, however, (i) no such consent of ING shall be required to any amendment of the NYTC Unit Lease (as defined in the Declaration) which is permitted without the consent of any other Unit Owner (as defined in the Declaration) under Article 23, Section 4 of the Declaration, and (ii) the execution or purported execution of any amendment of the Operating Agreement, the Declaration, any Project Document or any exhibits to the foregoing documents by ING on behalf of or as a signatory for FC Member shall be conclusive evidence of its consent.

6.Rights Limited to this Agreement. Except as expressly set forth in this Agreement, neither ING nor anyone claiming under or through ING shall have any rights against or with respect to Property Owner, NYTC, or NYTC Member in connection with (i) the Project or (ii) the Operating Agreement and/or the Development Agreement or the transactions contemplated thereby.

7.Notices. All notices, demands and requests hereunder shall be in writing and sent by (i) United States registered or certified mail, postage prepaid, return receipt requested, or (ii) hand, or (iii) reputable overnight courier delivery for next business-day delivery, addressed in each instance to the parties at the respective addresses set forth below, or at such other address as any of the parties may from time to time designate by written notice given as herein required. Notices, demands and requests given in such manner shall be deemed sufficiently served or given at the time such notice, demand or request shall have been delivered, except that notices, demands and requests given by mail shall be deemed sufficiently served or given three (3) business days after such notice, demand or request shall have been deposited in any post office or branch post office regularly maintained by the United States Postal Service.

The notice addresses are as follows:

if to ING:	INGREDUS Site 8 South LLC
	c/o Clarion Partners
	335 Madison Avenue
	New York, New York  10017

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	Attn: Mr. Charles Grossman
	Telephone (212) 883-2500
with a copy to:	INGREDUS Site 8 South LLC,
	c/o Clarion Partners
	601 13th Street, N.W
	Suite 450 North
	Washington DC 20005
	Attn: Mr. Martin Standiford
	Telephone (202) 879-9495
and to:	Skadden, Arps, Slate, Meagher & Flom LLP
	Four Time Square
	New York, New York 10036
	Attn: Benjamin F. Needell, Esq.
	Telephone: (212) 735-2600
if to ING Indemnitor:	ING VASTGOED B B.V.
	c/o Clarion Partners
	355 Madison Avenue
	New York, New York 10017
	Attn: Mr. Charles Grossman
	Telephone (212) 883-2500
with a copy to:	INGREDUS SITE 8 SOUTH LLC,
	c/o Clarion Partners
	601 13th Street, N.W.
	Suite 450 North
	Washington DC 20005
	Attn: Mr. Martin Standiford
	Telephone (202) 879-9495
and to:	Skadden, Arps, Slate, Meagher & Flom LLP
	Four Times Square
	New York, New York 10036
	Attn: Benjamin F. Needell, Esq.
	Telephone: (212) 735-2600
if to FC:	FC 41st STREET ASSOCIATES, LLC,
	Forest City Ratner Companies
	One Metro Tech Center North
	New York, New York 11201
	Attn: General Counsel
	Telephone: (718) 722-3500
with a copy to:	Kelley Drye & Warren LLP

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	101 Park Avenue
	New York, New York 10178
	Attn: James J. Kirk, Esq.
	Telephone: (212) 808-7800
if to FC Member:	FC Lion LLC
	c/o Forest City Ratner Companies
	One Metro Tech Center North
	Brooklyn, New York 11201
	Attn: General Counsel
	Telephone: (718) 722-3500
with a copy to:	FC Lion LLC
	c/o Clarion Partners
	335 Madison Avenue
	New York, New York 10017
	Attn: Mr. Charles Grossman
	Telephone: (212) 883-2500
and to:	FC Lion LLC
	c/o Clarion Partners
	601 13th Street, N.W.
	Suite 450 North
	Washington, DC 20005
	Attn: Mr. Martin Standiford
	Telephone: (202) 879-9495
and to:	Skadden, Arps, Slate, Meagher & Flom LLP
	Four Time Square
	New York, New York 10017
	Attn: Benjamin F. Needell, Esq.
	Telephone: (212) 735-2600
and to:	Kelley Drye & Warren LLP
	101 Park Avenue
	New York, New York 10017
	Attn: James J. Kirk, Esq.
	Telephone: (212) 808-7800
if to NYTC	NYT Real Estate Company LLC
Member:	c/o The New York Times Company
	229 West 43rd Street
	New York, New York 10036
	Attn: General Counsel
	Telephone: (212) 556-1234

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with a copy to:	The New York Times Company
	229 West 43rd Street
	New York, New York 10036
	Attn: Vice President for Real Estate Development
	Telephone: (212) 556-1234
and to:	Swidler Berlin Shereff Friedman LLP
	The Chrysler Building
	405 Lexington Avenue
	New York, New York 10174
	Attn: Martin D. Polevoy, Esq.
	Telephone: (212) 973-0111
if to Property Owner:	The New York Times Building LLC
	c/o The New York Times
	229 West 43rd Street
	New York, New York 10036
	Attn: General Counsel
	Telephone: (212) 353-8700
with a copy to:	The New York Times Company
	229 West 43rd Street
	New York, New York 10036
	Attn: Director of Real Estate Development
	Telephone: (212) 556-1234
and to:	The New York Times Building LLC
	c/o Forest City Ratner Companies
	One MetroTech Center North
	Brooklyn, New York 11201
	Attn: General Counsel
	Telephone: (718) 722-3500
and to:	The New York Times Building LLC
	c/o Clarion Partners
	335 Madison Avenue
	New York, New York 10017
	Attn: Mr. Charles Grossman
	Telephone: (212) 883-2500

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and to:	Swidler Berlin Shereff Friedman, LLP
	The Chrysler Building
	405 Lexington Avenue
	New York, New York  10174
	Attn: Martin D. Polevoy, Esq.
	Telephone: (212) 973-0111
and to:	Skadden, Arps, Slate, Meagher & Flom LLP
	Four Times Square
	New York, New York  10036
	Attn: Benjamin F. Needell, Esq.
	Telephone: (212) 735-2600
and to:	Kelley Drye & Warren LLP
	101 Park Avenue
	New York, New York  10178
	Attn: James J. Kirk, Esq.
	Telephone: (212) 808-7800
if to Developer:	Forest City Ratner Companies
	One MetroTech Center North
	Brooklyn, New York 11201
	Attn: General Counsel
	Telephone: (718) 722-3500
with a copy to:	Kelley Drye & Warren LLP
	101 Park Avenue
	New York, New York 10178
	Attn: James J. Kirk, Esq.
	Telephone: (212) 808-7800
if to NYTC:	The New York Times Company
	229 West 43rd Street
	New York, New York 10036
	Attn: General Counsel
	Telephone: (212) 556-7531
with a copy to:	The New York Times Building LLC
	c/o The New York Times
	229 West 43rd Street
	New York, New York 10036
	Attn: Director of Real Estate
	Telephone: (212) 556-1234

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and to:	Swidler Berlin Shereff Friedman, LLP
	The Chrysler Building
	405 Lexington Avenue
	New York, New York 10174
	Attn: Martin D. Polevoy, Esq.
	Telephone: (212) 973-0111

8.Miscellaneous.

(a)This Agreement shall be governed by the internal laws of the State of New York, without regard to choice of law rules. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) CONSENT AND SUBMIT TO THE JURISDICTION OF (i) ANY COMPETENT STATE COURT WITHIN THE STATE OF NEW YORK; AND (ii) THE UNITED STATES FEDERAL COURT SITTING IN NEW YORK; OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND (B) WAIVE ANY RIGHT TO A TRIAL BY JURY.

(b)The section headings provided in this Agreement are for convenience of reference only and shall not be deemed or construed to limit, expand or modify any provision of this Agreement.

(c)This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one binding Agreement. The transmission by telecopier of a copy of the signature page from this Agreement executed by the transmitting party, together with instructions that same may be attached to a copy of this Agreement being held by the recipient of such transmission, shall constitute execution and delivery of this Agreement by the transmitting party.

(d)This Agreement may be changed, terminated or modified only by agreement in writing signed by each of the parties hereto.

(e)The covenants, agreements, rights and options contained in this Agreement shall be binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties hereto and all persons claiming by, through or under any of them.

(f)In case any one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall be in no way affected, prejudiced or disturbed thereby.

(g)Each person executing this Agreement in a representative capacity acknowledges, represents and warrants that he or she is an official representative of the entity in whose name he or she is executing this Agreement and that he or she possesses full and complete authority to bind such entity to the full and faithful performance of all conditions, terms, provisions, covenants, warranties and representations as contained in this Agreement.

(h)The words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Agreement as a whole and not to any particular article, section or other

11

subdivision of this Agreement unless specifically noted otherwise in this Agreement. All references to sections are references to sections of this Agreement, unless otherwise indicated.

(i)Without limiting the generality of Paragraph 8(a) hereof, ING Indemnitor hereby expressly waives any rights of ING Indemnitor pursuant to the laws of The Netherlands or any other jurisdiction by virtue of which exclusive jurisdiction of the courts of or any other jurisdiction might be claimed.

(j)The parties hereto (i) irrevocably waive personal service of any summons and complaint and consent to the service of process in any action or proceeding arising out of or relating to this Agreement by the delivery of such process by certified or registered mail to the addresses and attention parties provided hereunder for the delivery of notices and hereby agree that such service shall be deemed sufficient; (ii) irrevocably waive all objections as to venue and any and all rights any of them may have to seek a change of venue with respect to any such action or proceeding; (iii) agree that the laws of the State of New York shall govern in any such action or proceeding and waive any and all defenses granted by the laws of any other jurisdiction unless such defense is also allowed by the laws of the State of New York; and (iv) agree that any final judgment rendered against any of them in any such action or proceeding shall be conclusive and may be enforced in any other jurisdiction pursuant to applicable law (including, without limitation, The Netherlands) and expressly consent to the affirmation of the validity of any such judgment by the courts of any other jurisdiction (including, without limitation, The Netherlands) so as to permit execution thereon.

(k)Nothing herein shall affect the right of any party hereto to commence legal proceedings or otherwise proceed against ING Indemnitor in The Netherlands or in any other jurisdiction in which assets of ING Indemnitor are located or to serve process in any other manner permitted by applicable law. ING Indemnitor further agrees that any action or proceeding by ING Indemnitor against any party to this Agreement in respect to any matters arising out of or in any way relating to this Agreement shall be brought only in the State of New York, County of New York.

[REMAINDER OF PAGE INTENTIONALLY BLANK]

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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first set forth above.

INGREDUS SITE 8 SOUTH LLC,
a Delaware limited liability company
By:			/s/ Charles Grossman
	Name:			Charles Grossman
	Title:
ING VASTGOED B B.V.,
a Netherlands private limited liability company
By:		ING Vastgoed B.V., its director
By:		/s/ Jan Doet Doets
		Name: Jan Doet Doets
		Title:  Director
FC LION LLC,
a New York limited liability company
By:			FC 41st STREET ASSOCIATES, LLC,
			a New York limited liability company, its Managing Member
			By:		RRG 8 SOUTH, INC., its Managing Member
					By:	/s/ Bruce C. Ratner
						Name:	Bruce C. Ratner
						Title:	President

13

NYT REAL ESTATE COMPANY LLC,
a New York limited liability company
By:	/s/ Michael Golden
	Name:  Michael Golden
	Title:
THE NEW YORK TIMES BUILDING LLC,
a New York limited liability company
By:	FC LION LLC,
	a New York limited liability company a Member
	By:	FC 41st Street Associates, LLC, its Managing Member
		By:	RRG 8 SOUTH, INC., its Managing Member
			By:	/s/ Bruce C. Ratner
				Name:	Bruce C. Ratner
				Title:	President
By:	NYT Real Estate Company LLC,
	a New York limited liability company, a Member
	By:	/s/ Michael Golden
		Name: Michael Golden
		Title: Manager
FOREST CITY RATNER COMPANIES,
a New York general partnership
By:	/s/ Bruce C. Ratner
	Name: Bruce C. Ratner
	Title:   General Partner

14

THE NEW YORK TIMES COMPANY,
a New York corporation
By:	/s/ Michael Golden
	Name: Michael Golden
	Title:

15

EX-10.2

Exhibit 10.2

Execution Counterpart

FIRST AMENDMENT TO
OPERATING AGREEMENT OF
THE NEW YORK TIMES BUILDING LLC

(a New York limited liability company)

FIRST AMENDMENT TO OPERATING AGREEMENT OF THE NEW YORK TIMES BUILDING LLC (this “Amendment”) dated this 25^th day of June, 2004 by and between FC LION LLC, a New York 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 have formed a limited liability company under the name of The New York Times Building LLC (the “Company”) and in connection therewith executed the Operating Agreement of the Company dated December 12, 2001 (the “Operating Agreement”); and

B.Simultaneously with the execution of this Amendment, the Company is obtaining a construction loan from GMAC Commercial Mortgage Corporation, as agent (the “Construction Lender”) in the maximum principal amount of $320,000,000.00(the “Construction Loan”) to finance a portion of the Total Costs of the Project (as defined in the Operating Agreement) pursuant to a Building Loan Agreement (the “Building Loan Agreement”) and a Project Loan Agreement (the “Project Loan Agreement”), each between the Construction Lender and the Company and each dated as of the date hereof (collectively, the “Loan Agreements”); and

C.The Construction Lender has required, as a condition to making the Construction Loan, that the Company shall have funded, prior to and as a condition of Construction Lender disbursing any proceeds of the Construction Loan, $207,046,237.00(the “Upfront Equity”), which amount represents $87,547,843.00with respect to FC Member (the “FC Upfront Equity”) and $119,498,394.00with respect to NYTC Member (the “NYTC Upfront Equity”); and

D.NYTC Member has elected not to borrow any portion of NYTC Member’s Share of the Total Costs of the Project through the Construction Loan and, in lieu of such borrowing, NYTC Member has agreed, subject to the terms and conditions of this Amendment in addition to making Capital Contributions to the Company in respect of the NYTC Upfront Equity, to make Capital Contributions to the Company in an amount not to exceed $222,258,152.00(the “NYTC Construction Equity”) subject to the last sentence of the final paragraph of paragraph 2(a) of

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this Amendment in order to fund NYTC Member’s Share of the Total Costs of the Project; and

E.The NYTC Construction Equity includes an amount equal to $11,649,593.00that will be reimbursed to NYTC Member by the Company when FC Member makes a cash Capital Contribution to the Company in such amount in satisfaction of its obligation to make the True-Up Payment, such Capital Contribution on account of the True-Up Payment to be made by FC Member as and when required by Section 3.01(c) of the Operating Agreement, it being hereby agreed that the amount of the True-Up Payment required by Section 3.01(c) of the Operating Agreement is $11,649,593.00.  After such True-Up Payment is made, the amount of the NYTC Construction Equity shall be deemed reduced by the amount of the True-Up Payment; and

F.The Construction Lender has further required, as a condition to making the Construction Loan, that (in addition to funding the NYTC Upfront Equity) NYTC Member fund 100% of the NYTC Construction Equity prior to, and as a condition of, Construction Lender disbursing any proceeds of the Construction Loan and that the NYTC Construction Equity be applied to pay the Total Costs of the Project (i.e. both FC Member’s and NYTC Member’s respective Shares of the Total Costs of the Project) required to be paid from and after the date hereof until the Construction Loan proceeds are disbursed in accordance with the terms of the Loan Agreements; and

G.By reason of such funding by NYTC Member of the NYTC Construction Equity, NYTC Member will in effect fund for the benefit of FC Member a portion of FC Member’s Share of the Total Costs of the Project (the total amount of the NYTC Construction Equity which is so funded for the benefit of FC Member in accordance with paragraph 2(b) below hereinafter being called the “FC Funded Amount”); and

H.At such time as FC Member has funded 100% of the FC Upfront Equity, the NYTC Member shall be obligated to commence to fund the FC Funded Amount in accordance with the terms and conditions of this Amendment, whether or not the NYTC Upfront Equity has been fully funded at such time.

I.The Members have agreed that the FC Funded Amount and interest thereon as hereinafter provided shall be repaid to NYTC Member as more particularly set forth in this Amendment; and

J.The Members desire to modify the Operating Agreement to provide for the funding of the NYTC Construction Equity, the repayment of the FC Funded Amount, and certain other matters, all upon the terms and conditions hereinafter set forth.

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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:

1.Defined Terms.  All capitalized terms used herein shall have the same meaning ascribed to them in the Operating Agreement unless otherwise defined herein.

2.NYTC Construction Equity.

(a)  NYTC Member shall be obligated to make Capital Contributions to the Company in the amount of the NYTC Construction Equity.  The obligation to fund the NYTC Construction Equity shall not limit the obligation of NYTC Member or FC Member to make Capital Contributions otherwise required under the Operating Agreement.  The NYTC Construction Equity shall be contributed by NTYC Member in installments (with the same frequency provided for disbursements of the Construction Loan in the Loan Agreements) only to pay costs included in Total Costs of the Project and approved by the Construction Lender.  Notwithstanding anything to the contrary contained in this Amendment, the obligation of NYTC Member to contribute any installment of the NYTC Construction Equity shall be conditioned upon the receipt and review by the Construction Lender of the applicable Draw Request (as defined in the applicable Loan Agreement) and the delivery by the Construction Lender to the Company of the notification required to be delivered by the Construction Lender pursuant to Section 4.04(b) of the applicable Loan Agreement (a “Section 4.04(b) Notice”).

Without limiting the generality of the foregoing conditions, NYTC Member shall not be obligated to make any disbursement of the NYTC Construction Equity at any time that a loan balancing payment is due by FC Member pursuant to Section 3.06 of either of the Loan Agreements (or would be due by FC Member under Section 3.06 of either of the Loan Agreements in the event the Construction Loan was in an amount equal to the Construction Financing and a comparable Construction Loan Draw were requested of the Construction Lender).  Upon demand of the Construction Lender or either Member after giving effect to the amounts represented by the applicable Draw Request and the allocation of such amounts, the Members, to the extent applicable, shall each make Capital Contributions to the Company as necessary to place the Construction Loan “in balance” in accordance with Section 3.06 of the applicable Loan Agreement and Section 3.01(g) of the Operating Agreement.

(b)  The entire amount of each disbursement of the NYTC Construction Equity shall be allocated between NYTC Member’s and FC Member’s respective Share of the Total Costs of the Project based upon the costs to which such disbursement shall apply in accordance with Article XII of the Operating Agreement as supplemented by the chart attached as Exhibit A hereto (the “Allocation Provisions”).  The aggregate amount of all disbursements of the NYTC Construction Equity which from time to time represent payment of FC Member’s Share of Total Costs of the Project shall constitute the FC Funded Amount.

(c)  The NYTC Construction Equity, the Construction Loan and any amounts funded by NYTC Member under paragraph 6 of this Amendment are hereinafter collectively referred to as the “Construction Financing”.

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3.FC Funded Amount.

(a)  The balance of the FC Funded Amount not yet repaid to NYTC Member from time to time (the “FC Funded Balance”) shall bear interest at the Interest Rate (as defined in the Loan Agreements) that would be (or would have been) in effect from time to time under the Loan Agreements (whether or not the same is in full force and effect) (the “Construction Loan Interest Rate”) from the date funded by NYTC Member until repaid to NYTC Member, subject to paragraph 5(d) hereof.  Interest on the FC Funded Balance shall be calculated in the manner provided for the calculation of interest in the Loan Agreements.  All interest on the FC Funded Balance shall be deemed allocated 100% to FC Member for purposes of determining each Member’s allocated Share of the Total Costs of the Project.

(b)  Subject to the provisions of paragraph 5 hereof, the FC Funded Balance, together with interest thereon as set forth in this Amendment, shall be repaid to NYTC Member as follows: The portion of each disbursement of the Construction Loan which is allocated (pursuant to the Allocation Provisions) to NYTC Member’s Share of the Total Costs of the Project shall be credited against the FC Funded Balance as of the date such disbursement is made by the Construction Lender, applied first to interest on the FC Funded Balance, then to reduce the FC Funded Balance.  To the extent the total amount credited against NYTC Member’s Share of the Total Costs of the Project following the final disbursement of the Construction Loan is less than the total FC Funded Balance and all accrued interest thereon, then FC Member shall within five (5) business days after written demand of NYTC Member make a Capital Contribution in the amount of the FC Funded Balance, together with all accrued interest thereon, and such Capital Contribution shall be immediately distributed to NYTC Member in payment of the FC Funded Balance and interest thereon.

(c)  The parties hereto (i) acknowledge and agree that the amounts designated as “interest” on the FC Funded Balance pursuant to paragraphs 3 and 5 hereof shall be treated as “guaranteed payments” to NYTC Member in accordance with Section 707(c) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.707-l(c), and (ii) agree to take no position inconsistent with such treatment described in clause (i) of this sentence for U.S. federal income tax purposes (including without limitation on any Company tax return).

4.Other Capital Contributions.  Except as modified hereby, the Members shall continue to make all Capital Contributions as and when required pursuant to the Operating Agreement.

5.Non-Funding Event.

(a)  A “Non-Funding Event” shall be deemed to have occurred if:

(i)the Construction Lender refuses or fails to make any requested disbursement of the Construction Loan within the “Applicable Cure Period” (as defined in paragraph 5(i) hereof) after the Requested Advance Date (as defined in the Loan Agreements), whether or not such refusal or failure is permitted in accordance with the Loan Agreement (unless such

4

failure or refusal is solely the result of a default by NYTC Member of its obligations under the Operating Agreement or the Loan Agreements); or

(ii)the Construction Lender fails or refuses to deliver a Section 4.04(b) Notice (unless the failure of such condition is solely the result of a default by NYTC Member of its obligations under the Operating Agreement or the Loan Agreements) and the failure or refusal continues after the date the Construction Lender is required to deliver a Section 4.04(b) Notice in accordance with the Loan Agreements (the “Lender Confirmation Date”) for a period in excess of the Applicable Cure Period.

A Non-Funding Event shall be deemed to have ended when (A) in the case of clause (i) of the preceding sentence, funding of the Construction Loan (or replacement financing for the Construction Loan obtained by the Company) recommences; (B) in the case of clause (ii) of the preceding sentence, the Construction Lender confirms that a proposed disbursement by NYTC Member shall be credited against the NYTC Construction Equity; or (C) the Company, or either Member on behalf of the Company, has obtained replacement construction financing with respect to the Project, it being understood that, prior to the Conversion Date, such replacement construction financing shall encumber the entire Project.  In addition, a Non-Funding Event shall not be deemed to be continuing if and for so long as FC Member makes Capital Contributions to the Company as and when required to pay its Share of Total Costs of the Project which would otherwise have been funded through the Construction Financing but for the occurrence of the Non-Funding Event or such costs are funded by FCE or INGVastgoed.

(b)  In the event a Non-Funding Event occurs which is not solely the result of a default by FC Member under the Operating Agreement, the Development Agreement or the Loan Agreements (a “No-Fault Non-Funding Event”), then the occurrence of such No-Fault Non-Funding Event shall not constitute a default by either party under the Operating Agreement or, except as provided in paragraph 5(f) hereof, entitle either Member to require the other Member to make a Capital Contribution to the Company not otherwise required under the Operating Agreement.  Notwithstanding the foregoing, upon the occurrence of such No-Fault Non-Funding Event and while such No-Fault Non-Funding Event continues, for period not to exceed thirty (30) days following the occurrence of such No-Fault Non-Funding Event (the “Reassessment Period”), the Members shall, in accordance with the Operating Agreement, determine what measures to take in response to the No-Fault Non-Funding Event, including, without limitation, whether to exercise the Company’s contractual and equitable remedies against the Construction Lender.

(c)  At any time following the Reassessment Period during which a No-Fault Non-Funding Event is continuing, NYTC Member shall have the right, in its sole and absolute discretion, to elect to continue the construction of the Project in accordance with paragraph 6 hereof, which right shall be exercised by written notice given by NYTC Member to FC Member at any time or from time to time while such No-Fault Non-Funding Event is continuing (each, a “Continuation Notice”).  NYTC Member shall have the right at any time and from time to time in its absolute and sole discretion during the continuance of a Non-Funding Event, to stop the construction of the Project after it has given a Continuation Notice.

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(d)  If a Non-Funding Event occurs and continues for a period (the “Interest Grace Period”) of 180 days (in the case of a No-Fault Non-Funding Event) or 5 days (in the case of any Non-Funding Event other than an a No-Fault Non Funding Event), then for the period beginning on the day following the Interest Grace Period and for so long as such Non-Funding Event continues, the FC Funded Balance shall bear interest at (i) in the case of a No-Fault Non-Funding Event, one percent (1%) per annum in excess of the Construction Loan Interest Rate, and (ii) in the case of any Non-Funding Event other than a No-Fault Non Funding Event, the Default Rate (as defined in the Loan Agreements).

(e)  From and after the occurrence of a Non-Funding Event and until the FC Funded Balance and all interest thereon is paid in full, all income, revenue, and proceeds, derived from the ownership, operation, leasing, financing, sale or other disposition of the Project or FC Member Space, including, without limitation, all Net Cash Flow, Net Refinancing Proceeds and Net Sales Proceeds, which would otherwise be distributed or paid to FC Member shall be paid to NYTC Member and applied first against interest on the FC Funded Balance and then to reduce the FC Balance.

(f)  Notwithstanding anything to the contrary contained in this Amendment, in the event (i) a Non-Funding Event has occurred and is continuing, and (ii) the FC Funded Balance, together with interest thereon, has not been repaid to NYTC Member on or before the date (the “Repayment Deadline”) which is the earlier to occur of (x) three (3) months after the Original Maturity Date (as defined in the Loan Agreements), or (y) such earlier date as the Construction Lender either accelerates the Construction Loan on account of a default by the Company thereunder (other than solely as a result of a default by NYTC Member of its obligations under the Operating Agreement or the Loan Agreements) or commences any action or proceeding to obtain repayment of the Construction Loan or foreclose the mortgage securing the same, FC Member shall make a Capital Contribution on the Repayment Deadline in the amount of the FC Funded Balance, together with all accrued interest thereon, and such Capital Contribution shall be immediately distributed to NYTC Member in payment of the FC Funded Balance.

(g)  In the event a Non-Funding Event occurs which is solely the result of a default by FC Member under the Operating Agreement, the Development Agreement or the Loan Agreements, then NYTC Member shall be entitled, subject to applicable notice and grace provisions, to exercise all rights and remedies available to NYTC Member under the Operating Agreement or otherwise in respect of such default.

(h)  Notwithstanding anything to the contrary contained in this Amendment or the Operating Agreement, at any time following the occurrence of a Non-Funding Event (and regardless of whether a Continuation Notice has been given) and prior to the Conversion Date, FC Member and/or NYT Member shall have the right and authority to obtain replacement construction financing with respect to the Project on behalf of the Company and to cause the Company to enter into all documents and agreements required in connection with such replacement construction financing, including, without limitation, mortgages and other security instruments encumbering the entire Project, and NYTC Member (or FC Member, as the case may be) shall deliver, and shall cause NYTC (or FCE, as the case may be) to deliver, any documents required to be delivered in connection with such replacement construction financing,

6

provided that such replacement construction financing shall be on terms that are not less favorable, in any material respect, to the Company, NYTC Member, NYTC, FCE, or ING Vastgoed than the Construction Loan, unless approved by any such party as to whom the terms are materially less favorable.

(i)  As used herein the, term “Applicable Cure Period” shall mean five (5) Business Days; provided, however, that:

(x)in the event the Construction Lender advises the Company that the reason for its failure or refusal to comply with its obligations set forth in clauses (i) or (ii) of paragraph 5(a) hereof, as the case may be, is the existence of one or more mechanic’s liens against the Project, the Applicable Cure Period shall be extended, subject to the last sentence of this paragraph, until the last date on which such mechanic’s lien(s) must be removed or bonded under the Loan Agreements before the Construction Lender may declare a default under the Loan Agreements on account thereof, and

(y)in the event the Construction Lender advises the Company that the reason for its failure or refusal to comply with its obligations set forth in clauses (i) or (ii) of paragraph 5(a) hereof, as the case may be, is a request for an additional submission of information or documentation with respect to the draw request in question which cannot reasonably be obtained and furnished within such five (5) Business Day Period, then, subject to the last sentence of this paragraph 5(i), the Applicable Cure Period shall be extended for the period of time (but not later than 30 days after the Requested Draw Date or Lender Confirmation Date in question) that the Company is diligently pursuing obtaining such additional information or documentation.

Notwithstanding anything to the contrary contained in this Amendment, the Applicable Cure Period shall in all events immediately terminate (and a Non-Funding Event shall be deemed to exist) in the event that, as a result of the failure or refusal of the Construction Lender to fund any portion of the Construction Loan or approve the disbursement of NYT Construction Equity, the construction of the Project or the performance of any material element of the work involved in the construction of the Project shall cease or NYTC Member reasonably believes that such a cessation is imminent.

6.NYTC Member Election to Continue Construction of the Project.

(a)  In the event NYTC Member gives a Continuation Notice and until the Non-Funding Event in question ceases as provided in paragraph 5(a) hereof, NYTC Member may take such steps (including with respect to the phasing of the work) as NYTC Member elects in its sole discretion to continue the construction of all or any portion of the Project, including making Capital Contributions to pay such costs related to the Project as NYTC Member shall, in its sole and absolute discretion, elect to pay, provided, however, the exercise by NYTC Member of its rights under this paragraph shall not (i) reduce the size of the Building or the number of floors,

7

and must otherwise comply with the requirements of the Ground Lease, or (ii) permanently eliminate any common area work and finishes or involve a permanent change to the floor plates, core fire stairs, building MEP or vertical transportation systems in the FC Member Units; and provided further that any such steps permitted pursuant to this paragraph must be of such a nature that FC Member can reinstate any modified items to their original design if, in the future, a replacement loan is secured, the Non-Funding Event ceases, or if FC Member elects to fund equity to continue to fund its share of Total Costs of the Project, it being acknowledged and agreed that all costs associated with reinstating any such modified items to their original design shall be borne solely by FC Member.  Even though NYTC Member has sole discretion, it will consult with FC Member in pursuing work under this paragraph.  In no event shall NYTC Member be required to fund any Capital Contributions to make any payments other than those so elected by NYTC Member, and in no event shall NYTC Member be required to make any payments to FC Member or its affiliates.  To the extent any such Capital Contributions made by NYTC Member represent FC Member’s Share of the Total Costs of the Project, such Contributions shall be added to the FC Funded Balance, and shall bear interest as provided in this Amendment and shall be repaid by FC Member as provided in this Amendment.

(b) During the period following the giving of a Continuation Notice and until the Non-Funding Event in question ceases or such earlier date as the FC Funded Balance and all interest accrued thereon is refunded to NYTC Member, NYTC shall have the following rights and authority, which may be exercised by NYTC Member on behalf of the Company without the consent or approval of FC Member, but subject to paragraph 6(a) hereof:

(i)to modify the plans and specifications for the Project as may be necessary to complete the work which NYTC Member has elected to perform;

(ii)to modify the GMP Contract, the Architect’s Agreement and any other contract or agreement with respect to the Project to the extent necessary or appropriate to complete the work which NYTC Member has elected to perform;

(iii)to delay or defer converting the Project to the condominium regime contemplated in the Operating Agreement;

(iv)to amend the Ground Lease to extend the time period to complete the Project; and

(v)to take all other actions reasonably necessary or reasonably appropriate in connection with the completion of the Project and the management and operation of the Project, including enforcing the rights of the Company under any contractual arrangements with third parties.

Notwithstanding the foregoing, NYTC Member shall not, without the consent of FC Member, take any of the following actions: (i) admit new members, (ii) reduce FC Member’s interest in

8

the Project, (iii) make any capital calls pursuant to Section 3.01(g) under the Operating Agreement (provided that the foregoing shall not limit NYTC Member’s right to make a capital call pursuant to paragraph 5(f) of this Amendment), (iv) incur any indebtedness on behalf of the Company, or (v) interfere with or prevent the use and occupancy of the Project by tenants with whom NYTC Member has entered into non-disturbance agreements in accordance with Section 5.15 of the Operating Agreement.

(c)  The exercise by NYTC Member of the foregoing rights shall not relieve FC Member from any of its obligations with respect to the Project under the Operating Agreement.

(d)  If either Member obtains a replacement loan secured by the Project, which contemplates funding of the FC Funded Balance in accordance with the terms of the Loan Agreements, then FC Member and NYTC Member shall cooperate (at no additional cost to NYTC Member) to modify the GMP Contract and other relevant agreements to provide for the completion of the Building as set forth in the Loan Agreements.  If such replacement loan is obtained prior to the date on which the Building Loan would otherwise have matured, NYTC Member shall continue to be obligated to provide the Extension Loan on the terms and conditions as set forth in the Operating Agreement, as amended by this Agreement.

7.NYTC Extension Loan; True- Up Payment.  The amount of the NYTC Extension Loan required to be made by NYTC Member shall be $119,498,000.00.  To the extent NYTC Member realizes savings (“NYTC Cost Savings”), as determined on the date the Extension Loan is made and from time to time thereafter in accordance with the provisions of the Loan Agreements governing the calculation and apportionment of such cost savings and the resolution of disputes regarding same, in NYTC Member’s Share of the Total Costs of the Project (which is projected to be $341,756,546.00 as of the closing of the Construction Loan and to be $330,106,953.00 after the NYTC Member is reimbursed for the True-Up Payment), the Construction Lender shall (and the construction loan documents shall provide) disburse to NYTC Member an amount equal to the amount of such savings, which amount, when paid, shall reduce the amount of the FC Funded Balance dollar-for-dollar, as and when provided under the Loan Agreements.  Notwithstanding anything to the contrary provided in Section 6.03(ii) and Exhibit R of the Operating Agreement, the NYTC Extension Loan shall be subordinated to the mortgages which secure the Construction Loan pursuant to the subordination and intercreditor agreement attached as Exhibit R to the Loan Agreements.  The amount of the True-Up Payment required by Section 3.01(c) of the Operating Agreement shall be $11,649,593.00.  Without limiting the applicable provision of the Operating Agreement and any conditions set forth therein, the FC Member and the NYTC Member each confirm that the NYTC Member’s obligation to make the NYTC Extension Loan shall be conditioned upon the FC Member making the True-Up Payment in the amount aforesaid as and when required pursuant to Section 3.01(c) of the Operating Agreement.

8.Security Agreement.Concurrently with the execution of this Amendment, FC Member is amending the existing Security Agreement in favor of NYTC Member to grant NYTC Member a pledge of its interest in the Company to secure the repayment of the FC Funded Amount in accordance with this Amendment.

9

9.Guarantees.  Concurrently with the execution of this Amendment,

(a)  FCE is executing (i) a completion guaranty in favor of NYTC Member in the form provided to the Construction Lender pursuant to which FCE agrees to complete the Project in the event NYTC Member funds the NYTC Construction Equity, any amounts it is required to fund under the Development Agreement and Operating Agreement, and any additional funds (not to exceed the Construction Loan amount) required to pay project costs, and (ii) a non-recourse guaranty in favor of NYTC Member in the form provided to the Construction Lender guarantying losses resulting from standard recourse carve-outs which recourse carve outs shall be modified to include the carve-outs in the guaranty that is to be given by FCE with respect to the Extension Loan; and

(b)  NYTC is executing an amendment to that certain Guaranty dated as of December 12, 2001 with respect to NYTC Member’s Capital Contributions to guaranty the obligation of NYTC Member to make the Capital Contributions which constitute the NYTC Construction Equity in accordance with the terms and conditions of this Amendment.

10.Loan Fees and Expenses.  All fees and expenses with respect to the Construction Loan shall be allocated to FC Member, except as shown in Exhibit B attached, which fees shall be allocated between FC Member and NYTC Member in the proportions identified therein.  Notwithstanding the foregoing, each of NYTC Member and FC Member shall be solely responsible for its separate legal fees and expenses.  Concurrently with the execution of this Amendment, FCE is delivering to NYTC a guaranty of the obligation of FC Member to make a Capital Contribution to pay the exit fee payable to the Construction Lender.

11.Section 5.12 (Adjustment to NYTC Member Space and FC Member Space).  The parties hereby confirm that NYTC Member did not elect to purchase or lease additional space pursuant to Section 5.12 of the Operating Agreement, and that the option to so elect has lapsed and is of no further force or effect.

12.Arbitration of Disputes with respect to Draw Requests during the Term of the Construction Loan.  Notwithstanding anything to the contrary contained in the Operating Agreement, including without limitation Article XI thereof, so long as the Construction Loan is outstanding, any dispute between the Members with respect to any Draw Request (as defined in the Loan Agreements) under the Construction Loan which is permitted under paragraph 13 hereof shall be determined and resolved solely by arbitration (and not by litigation) which is commenced not later than twenty (20) days after the date of such Draw Request and conducted in the County, City and State of New York in accordance with the then applicable commercial arbitration rules of the American Arbitration Association.  Other than as permitted under paragraph 13 hereof and this paragraph 12, the Members shall not be entitled to dispute any Draw Request.  If the terms of this paragraph 12 differ from or conflict with the then applicable commercial arbitration rules, the arbitrators shall be chosen and the arbitration shall be governed in accordance with and pursuant to the terms and provisions of this paragraph 12.

(a)  The arbitration procedures shall commence when either Member submits the matter to arbitration by notice to the other Member and to the arbitrator.  The Members have as

10

of the date hereof appointed the following individual as the arbitrator: Mr. Steven Charney.  If such arbitrator (or any successor arbitrator) resigns or cannot fulfill the arbitrator’s obligations, the Members shall appoint another independent and unaffiliated individual who has not less than (10) years experience with respect to the subject matter at hand.

(b)  Not later than six (6) Business Days after the arbitration procedure has commenced, the arbitrator shall finalize its decision regarding the resolution of the dispute or matter and shall promptly provide a copy of such submissions to the Members.  The arbitrator’s decision shall be conclusive, final and binding upon the Members, shall constitute an “award” by the arbitrator within the meaning of the American Arbitration Association rules and applicable law and judgment may be entered thereon in any court of competent jurisdiction.

(c)  The fees of the arbitrator as well as expenses incident to the proceedings, shall be assessed as the arbitrator determines, it being the intention of the Members that the non-prevailing Member pay such fees and expenses.  The fees of respective counsel engaged by the parties, and the fees of expert witnesses and other witnesses called or engaged by the Members, shall be paid by the non-prevailing Member.

11

13.Draw Requests under the Construction Loan.  FC Member shall have the sole right and authority on behalf of the Company to sign and submit all Draw Requests (as defined in the Loan Agreements) under the Loan Agreements.  It is acknowledged, however, that the NYTC Member shall have the right, after the submission of any Draw Request, to review such Draw Request and, in accordance with the provisions of paragraph 12 hereof, to dispute (a) any allocation of costs between the FC Member Space and the NYTC Member Space in such Draw Request as contemplated by the last paragraph of Section 12.01 of the Operating Agreement, or (b) whether any costs in such Draw Request were authorized by the Operating Agreement.  However, in no event shall the NYTC Member have the right to delay (or request the delay of) the making of any Advances (as defined in the Loan Agreements), even if the NYTC Member is disputing a Draw Request in accordance with the previous sentence; provided, that the foregoing shall not be deemed to limit NYTC Member’s right, as between NYTC Member and FC Member, to dispute a Draw Request under paragraph 12 hereof in accordance with the previous sentence after such Draw Request is made so long as, if such dispute is not otherwise resolved, an arbitration relating to such dispute is commenced within twenty (20) days after the date of the applicable Draw Request.  The Construction Lender is an intended third-party beneficiary to the foregoing three sentences of this paragraph 13.  To the extent it is determined that the allocation of costs between the FC Member Space and the NYTC Member Space under any Draw Request was incorrect, then FC Member shall cause such costs to be reallocated in the next succeeding Draw Request pursuant to Section 3.20 of the Loan Agreements.  To the extent it is determined that any Draw Request was for costs not authorized by the Operating Agreement, FC Member shall, within ten (10) days after such determination becomes final, make a capital contribution to the Company to reimburse the Company for such unauthorized costs.

14.Additional Modifications.  The Operating Agreement is further modified as follows:

(a)  For purposes of computing each Member’s respective Share of the Total Costs of the Project not financed under Section 3.01(g), the reference to the principal amount of the Construction Loan shall be deemed to refer to the Construction Financing.

(b)  Section 3.01(h) of the Operating Agreement is hereby modified to delete all references to NYTC Member’s obligation to make a capital contribution to repay the Construction Loan, it being acknowledged that, subject to the funding of the NYTC Extension Loan if and to the extent provided in the Operating Agreement and paragraph 7 of this Amendment, FC Member shall be solely obligated to make all such Capital Contributions required to repay the Construction Loan.

(c)  All references to the NYTC Guaranteed Amount, Excess NYTC Guaranteed Amount and the requirement of a delivery of a New York Times Company payment guaranty of the Construction Loan are deleted and the following definition shall replace the existing definition of “NYTC Extension Loan” in Section 1.84 of the Operating Agreement:

1.84“NYTC Extension Loan” means a payment by or on behalf of NYTC Member to the Construction Lender in an amount equal to $119,498,000.00 in exchange for a release of the lien of the

12

Construction Loan from all NYTC Individual Units and the SPU Unit (as each is defined in the Condominium Declaration), which payment shall constitute a loan by NYTC Member to FC Member, all pursuant to Section 6.03 hereof.”

(d)  Notwithstanding anything to the contrary contained in Section 6.03, the Extension Loan, if made, shall be made by NYTC, NYTC Member or a direct or indirect wholly-owned subsidiary of NYTC, or any other party acceptable to Construction Lender.

(e)  The references to “Exhibit Q-l” and “Exhibit Q-2” in Section 6.03(ii) shall be references to “Exhibit Q”.

(f)  With respect to the giving of notices under Section 14.02, notices to be sent to Swidler Berlin Shereff Freidman, LLP shall hereafter instead be directed to:

Piper Rudnick LLP
1251 Avenue of the Americas
New York, New York 10020
Attention: Martin D. Polevoy, Esq.

15.Condominium Declaration.

(a)  Notwithstanding anything to the contrary contained in the form of Condominium Declaration attached as Exhibit E to the Operating Agreement, the right of first offer to lease in favor of NYTC under Section 5(d) of Article XX thereof, shall not become effective as to any of the First Offer Space (as defined in the form of Condominium Declaration attached as Exhibit E to the Operating Agreement) until the earlier of (i) the first anniversary of the Completion Date and (ii) the date on which such portion of the First Offer Space becomes available for leasing after the expiration of the term of the initial lease of such portion of the First Offer Space.

(b)  The Members further agree that the form of Condominium Declaration and By-laws attached as Exhibit E to the Operating Agreement shall be revised to incorporate the changes thereto which are indicated on Exhibit C attached hereto.

16.Pledged Accounts.  The FC Member and the NYTC Member agree to cause the Company to comply with its obligations under Section 7.57 of the Loan Agreements by no later than twelve (12) months of the date of this Amendment.  Similarly, FC Member shall comply with its individual obligations under Section 7.57 of the Loan Agreements by no later than twelve (12) months of the date of this Amendment.

17.Operating Agreement Ratified.  In all other respects, except as modified hereby, the Operating Agreement remains unmodified and in full force and effect.

18.Not Binding.  This Amendment shall not be binding upon the parties hereto unless and until executed and delivered by all parties hereto and the closing of the Construction Loan occurs.

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[the remainder of this page is intentionally blank]

14

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and date first above written.

FC LION LLC, a New York limited liability company
By:		FC 41st Street Associates, LLC, a New York limited liability company, its managing member
		By:	RRG 8 South, Inc., a New York corporation, its managing member
			By:	/s/ David L. Berliner
				Name: David L. Berliner
				Title:   Sr. Vice President
NYT REAL ESTATE COMPANY LLC, a New York limited liability company
By:	/s/ Ken Richieri
Name: Ken Richieri
Title:   Manager

15

For purposes of determining the Guaranteed Price under Section 5.1 of the Development Agreement, the Guaranteed Price shall be reduced dollar for dollar for each dollar of cost savings, if any, actually realized by the Company in the event NYTC Member exercises its right pursuant to paragraph 6 hereof to continue construction of the Project and in connection therewith eliminates any work previously included in the scope of the Project.  FCE and Developer are executing this Amendment to confirm their agreement to this provision and their consent to the terms and conditions of this Amendment.

FOREST CITY RATNER COMPANY, a New York general partnership
By:	BR FCRC, LLC, a New York limited liability company
			By:	Ratner Group, Inc.
			By:	/s/ David L. Berliner
				Name:  David L. Berliner
				Title:    Sr. Vice President
FOREST CITY ENTERPRISES, INC.
By:		/s/ James A. Ratner
		Name: James A. Ratner
		Title: Executive Vice President

16

The undersigned are executing this Amendment to confirm their consent to the terms and conditions of this Amendment.

INGREDUS SITE 8 SOUTH LLC, a Delaware limited liability company
By:			/s/ Martin L. Standiford
			Name: Martin L. Standiford
			Title: Vice President
ING REAL ESTATE (B) B.V., a Netherlands private limited liability company
By:		ING Real Estate B.V., its director
By:	/s/ F.P. Trip & J.G.F. Eijkemans
	Name: F.P. Trip & J.G.F. Eijkemans
	Title: director resp. proxyholder

17

EXHIBIT A

Chart re: Allocation Methodology

[attached]

A-1

TIMES TOWER

GMP ALLOCATION METHODOLOGY

Updated 3/29/04

CM instructions:

One of the below codes will be assigned to every detailed line item of the GMP.

Colored drawings produced by the owner will contain the allocation codes noted on this summary.

Show detailed takeoffs, not summary data.

A separate document defines whether the cost is adjusted based on A) the buyout of the specific item or B) the ratio of the trade buyout to the trade budget Process to calculating a deduct:

• Price out and allocate the higher cost option on the estimate

• Price out the lower cost option - do not show on the estimate

• Calculate the difference in the total costs and allocate the difference on the estimate to the member entitled to the benefit

Code structure:

100Percentage GSF allocation

200’sOther allocation method for general work

300’sNYTC office item

400’sFCRC office item

500’sTimes Center item

600’sRetail item

Code	Allocation Code Description	Allocation Methodology
100	Basic GSF Allocation	Percentage interest for each of the 4 units provided by the Owner to be applied to each detailed line item of the GMP that does not have an alternate allocation methodology: NYT Office - 55.0903% FCRC Office - 41.6431% FCRC Retail - 1.4555% TC - 1.8111%
200	Elevators	Service and tower elevators allocated based on buy.  Until then, allocate as follows: Service elevators 54.167% NYTC, 45.833% FCRC Tower passenger to users (NYTC and FCRC) F32 Freight @ east core GSF S31 Service@ east core 50% NYT, 50% GSF P29 Passenger @ east core 100% NYT C30 Times Center 100% Times Center Handicap lift @ lobby GSF
201	Elevator Pits	CM to allocate cost of each elevator bank pit per colored drawing S100C1-A.  Costs include: excavation, concrete, Waterproofing, cast in place suspended pits.
202	Exterior Wall Enclosure - Assigned Contract	Owner will provide the allocation of the Benson curtain wall.  See attached tab.
203	Exterior Wall Enclosure - storefront and east wall	CM provides costs and Owner provides façade allocation percentage. Items include: storefront (street and 1st floor garden), east block party wall w/ EIFS (all floors), and loading dock O/H door. Included in $[*] allocation pending CM buy. Refer to code 505 for Times Center entrance.
204	Not used

A-2

205	Not used
206	Increased Structural Loading	Cm to allocate costs in accordance with Kyle Krall’s e-mail dated 7/16/03, NYTC will be allocated 1.25 pounds per sf for the increased load of the 12th floor data center (15 tons) and the 15th floor conferecne room (7.5 tons).  CM to price at the rate for milled steel.  There is no special allocation for the high load on the office floor north and south bays since the spaces are approximately equal.
207	Integrity Enhancements	[*]
208	Finishes Division 9 and waterproofing and wainscoting	CM to allocate costs based on color coded plan to CM provided by Owner. Includes floor, wall and ceiling finishes per A0001, Division 9. Excludes Times Center.
209	Mirrors, Interior Doors, and Hardware (partial Division 8)	CM to allocate costs based on color coded plan to CM provided by Owner. Includes bathroom mirrors. Excludes Times Center.
210	Specialties (partial Division 10)	CM to allocate costs based on color coded plan to CM provided by Owner. Toilet and shower partitions, toilet accessories, lockers, and associated support steel, if applicable. Excludes Times Center
211	Millwork - (partial Division 6)	CM to allocate costs based on color coded plan to CM provided by Owner. Includes counter tops.
212	Entrance Doors	CM to allocate costs based on color coded plan to CM provided by Owner. Allocate entrance doors for non-common spaces to user (Times Center and Retail.) The main entrance doors are code 100. Included in $[*] allocation pending CM buy.
213	Interior Storefront (glass)	CM to allocate costs based on color coded plan to CM provided by Owner. Break out cost of laminated glass and upgraded aluminum alloy and allocate based on GSF. 1st floor Overhead Interior Fire Shutter and related steel support at Times Center split between Times Center and Common. Included in $[*] allocation pending CM buy.
214	Interior Partitions	CM to allocate costs based on color coded plan to provided by Owner. Verify quantities with F&F. Includes drywall ceilings, partitions and soffits, glass, etc Excludes FCRC elevator shaft enclosure on NYTC floors.
215	Grounding Wire	CM to allocate to beneficial user based on color coded plan: FCRC connection to backbone, NYTC sleeves for future ground and wire in basement (Times Center and mailroom).
216	Bond and insurance	CM to allocate by trade based on percentage of trade cost allocated to NYTC or FCRC.
217	Raised Floor/ No Raised Floor	Allocate to allocate costs based on owner direction: NYTC:  • raised slab at fire stair vestibule (A2101 P7, P13) • curbs at elevator lobby (A2101 J7) and curbs at telecom penetrations (A2101AP7, P13, A4) • grating and rails @ mechanical rooms (A2101B P10) • core service corridor duct work, lighting, etc • bathroom waterproofing on floors where there is no stack offset on the floor below FCRC: • machine room • core service corridor duct work, etc

A-3

218	Signage	(Category added 3/29/04.)  Signage referenced in Penatgram’s signage package dated 8/29/03 is allocated as follows:  Tenant identification signage (type 1.1, 1.2, and 2.3) is allocated to the user and is associated with the signage budget.  Other wayfinding signage (type 2.1 and 2.2) is allocated GSF and is associated with the signage budget.  Other exterior signage (type 1.3 and 1.4) is allocated GSF and is associated with the trade budget.  Room, door, and code signage (types 3 and 4) are allocated GSF and are associated with the trade budget.
300	NYTC Communicating Stairs	Allocated to NYTC.  CM to provide breakout pricing for core and shell portion of NYTC Communicating Stairs in Tower and Podium, including: steel stair stringers, pans, extension of standpipe from core to communication stairs @ 6 locations (2 floors) per color coded plan, and additional steel framing required for stair openings.
301	NYTC Podium Skylight	Allocated to NYTC.  CM to provide breakout cost of skylight and associated intumescent paint.  Provide NYTC with a deduct for the full cost of the concrete, metal deck, spray fireproofing, and roofing displaced by the skylight.
302	Not used
303	NYTC Kitchen Exhaust etc.	CM to breakout cost of ductwork, cal sill insulation Drywall included with interior partitions.
304	NYTC UPS	CM to break out costs, including: empty conduit, pits, grate and waterproofing drip pan
305	NYTC Steam Humidifiers	CM to break out costs, including: equipment and steam piping (incl branch piping from LP riser to humidifier)..
306	Cogen	CM to break out cost based on colored drawings, including all costs to fit out the interior space: Electrical, HVAC, Plumbing, Fire Protection. Concrete & metal deck, handrails and steel stair, fuel containment curbs, masonry walls, metal panels, screening, ladder to roof, acoustic doors, aluminum cladding, fireproofing, drywall duct enclosures, interior partitions. Structural Steel Vibration and sound isolation Waterproofing SS Flue (Ornamental Metals) Enclosure Insulation - thermal & acoustic Provide a $100,000 credit for the building back-up generator costs not incurred (housing, waterproofing, etc) and a $57,460 credit for co-gen switchboards 2 and 3. Also, allocate a share of total general conditions and fee based on the percenatge of total GCs to total trade costs.
307	NYTC Air cooled Chiller	CM to allocate costs based on color coded plan to CM provided by Owner.
308	NYT Telecom	CM to break out costs based on colored drawings, including: 2 telecom conduits (1 riser) form 12 to 51, 4 telecom conduit from the 12th floor to the basement pull box at the west garden wall and the two conduit from the pull box to the NYT mailroom.  Also, break out the cost of the telecom sleeves in the east and west risers going through the FCRC floors to 51st floor.  (Note - allocate the cost of the remaining telecom sleeves, conduit, main carrier entrance room ladder rack and slab openings GSF using Code 100.)
309	NYTC Kitchen Gas	CM to break out costs based on color coded plan, including gas piping and gas meters
310	NYTC Kitchen Power	CM to break out costs based on color coded plan for dedicated kitchen power (basement breaker at switchboard, riser w/ line, and disconnect on floor)
311	NYTC telecom chilled water	CM to break out costs based on color coded plan for the telecom closet chilled water riser (CHS/R-4),
312	NYTC filtered water system	CM to break out cost based on colored drawings for central filtered water system supply and drains
313	Not used
314	NYTC Tennant MEP	CM to allocate cost based on color coded drawing for tenant MEPS fitout not captured in other codes, such as drains, vents, conduit, etc.
315	NYTC Intumescent Paint	CM to allocate cost of intumescent paint, net of spray fireproofing, for newsroom skylight, Times cafeteria bridge, and Times Center bridge.

A-4

316	NYTC Podium AHU	CM to allocate the incremental cost of the podium AHU to NYTC based on the AMEC’s pricing study of the on floor unit alternative documented by F&K; and allocate a like amount (in total) as a credit to each of the four units
317	NYTC Podium Window Washing	CM to allocate the incremental cost to extend use of the of the podium garden window washing rig to the NYTC newsroom skylight.  The design called for in the GMP drawings will be allocated using the GSF rate.
401	FCRC Temporary Heat on Office Floors	CM to breakout cost based on color coded drawing for FPUs, starters, power, piping, controls, fan powered boxes, etc.
402	Fuel oil facility	CM to allocate tank, infill piping, vent piping, relief piping, waterproofing, 40% to common and 60% to FCRC.
403	FCRC elevator shafts on NYTC floors	CM to allocate costs based on color coded plan to CM provided by Owner.
404	FCRC fuel & gas riser	CM to break allocate cost per color coded drawings for fuel and gas riser.
405	FCRC Sprinkler	CM to allocate cost of heads and piping in retail and basement storage areas per color coded chart.
406	FCRC telecom	CM to allocate firestopping at telecom slots.
501	Times Center MEP Owner Fitout	CM to break out costs based on color coded drawing, including:  AHUs 6,7, & 8, SF, RF, Duct, controls, piping (including cost of under slab), and starters.
502	Times Center Structural Steel Provisions	CM to allocate lump sum for additional cost due to long spans and vibration isolation.
503	Times Center and Mailroom Toilets	CM to break out all costs including plumbing and finishes
504	Times Center Lower Function Room Elevation	CM to allocate cost of the depressed slab for the basement of the Times Center and the corridor railing at the basement corridor ramp adjacent to the Times Center.
505	Times Center canopy	CM to allocate cost of the Times Center canopy to NYT with a flat credit of $34,882 provided by FCRC

For clarity, the following items will be allocated using the GSF allocation (code 100).

• Steel supports for retail signage

• Bird protection

• Canopies and awnings, except Times Center canpoy

• Turnstiles, lobby reception desks, lobby elevator bank partition.

• Equipment to heat water using steam (basement for NYT and 28th floor for FCRC)

• Empty electrical conduit and chilled water to retail and Times Center

• General conditions and fees

• Allocate the trade insurance deduct, sales tax deduct, and bond premium based on the relative trade cost for each unit.  For example, if a particular trade’s insurance deduct is $1000 and FCRC Office unit’s share of costs for that trade is 45%, then FCRC would be allocated $450 of the deduct.  The cost of the OCIP insurance premium will be allocated based on each unit’s share of total trade costs and GCs.

Other

Co-gen and times center mez not included in square footage calculation

A-5

NYT New Headquarters Building

Area Calculation per attached F& F gsf worksheet “4700-65gross-r2”

Updated 2/3/04

100% CD through bulletin 4															Recon to F&F
	Unit		NYT		FCRC		NYT				FCRC				TC	Total
	Total		Member		Member		Office		TC		Office		Retail		Mez	per F&F
Unit space (excl TC Mez & east bul	1,433,563		827,393		606,170		801,921		25,472		585,699		20,471
GSF% (Pro Rata Share)	100.0000	%	57.7158	%	42.2842	%	55.9390	%	1.7768	%	40.8562	%	1.4280	%
Add common, rooftop & east buldk	105,603
Total building GSF	1,539,166		888,343		650,823		860,994		27,348		628,844		21,979		596	1,539,762
Deduct blind shaft:	27,092						27,092
Trade allocation GSF	1,406,471		800,301		606,170		774,829		25,472		585,699		20,471
Trade%	100.0000	%	56.9014	%	43.0986	%	55.0903	%	1.8111	%	41.6431	%	1.4555	%
Note — FCRC office includes rounding effect					0
ESDC GSF (incl TC Mez)	1,386,768		796,175		590,593		782,355		13,820		571,006		19,587
ESDC%	100.0000	%	57.4123	%	42.5877	%	56.4157	%	0.9966	%	41.1753	%	1.4124	%
Add common & mechanical	43,018
GSF vs ESDC cap of 1,430,000	1,429,786		820,873		608,913		806,624		14,249		588,719		20,195
Land Share (per above ESDC%)	100.0000	%	57.4123	%	42.5877	%
Interpolated NYT land funding share (Operating Agreement Exhibit K):
	NYT Share Between		Funding Value
Exhibit K Low value	57.29	%	43.58	%
Exhibit K high value	57.64	%	44.20	%
Land Funding Share	100.0000	%	43.7966	%	56.2034	%

A-6

Curtainwall Allocation Calculation

9/8/2003

Glass area calc:	Total	NYTC	FCRC	TC	Retail
Level 2 - Tower	8,508
Podium	10,055
Garden	4,331
Level 3 - Tower	8,508
Podium	10,055
Garden	4,331
Level 4 - Tower	9,124
Podium	9,052
Garden	3,360
Level 5	8,809
Level 6	10,334
Level 7 thru 27	202,713
Total 2-27	289,180	289,180
Level 28	19,306	10,387	8,578	191	150
Level 29 thru 50	212,366		212,366
Level 51	19,306	9,862	9,066	212	166
Rooftop Screens	39,290	21,636	16,355	728	572
East Masonry Partition - Floors 2 thru 4	8,145	8,145	—	—	—	180 LF X 45.25 Feet High
Total	587,593	339,210	246,365	1,131	888
Percent of Total		0.57729	0.41928	0.00192	0.00151

Cost allocation:

Curtainwall

[*]

[*]

[*]

[*]

[*]

Curtainwall Change at East Wall

[*]

[*]

[*]

[*]

[*]

Low Iron Glass Alternate

[*]

[*]

[*]

[*]

[*]

Subtotal Cost

[*]

[*]

[*]

[*]

[*]

Laminated Glass Upgrade

[*]

[*]

[*]

[*]

[*]

2-story Cafeteria Upgrade

[*]

[*]

[*]

[*]

[*]

Aluminum Clip Cover

[*]

[*]

[*]

[*]

[*]

FCRC

TC

Retail

Total

Credit for Drywall Allowance at Garden

[*]

[*]

[*]

[*]

[*]

[*]

[*]

[*]

[*]

[*]

[*]

[*]

Total Cost

[*]

[*]

[*]

[*]

[*]

Unit Allocation Percentages:

57.7250

%

41.9369

%

0.1894

%

0.1487

%

Member allocation percentages:

57.9144

%

42.0856

%

Allocate floors ground, 28, and 51 based F&F GSF Spreadsheet Dated 12/16/03 file 4700-65gross-r1

	GSF
NYTC (net of blind shaft)	774,829	55.0670	%	56.9196	%
FCRC	585,699	41.6255	%	43.0804	%
TC	26,068	1.8526	%
Retail	20,471	1.4549	%
	1,407,067	100.0000	%	100.0000	%

	NYTC	FCRC	TC	Retail	Common
Level 28	6,268	5,705
	7,562	5,716	254	200	13,732
Total	13,830	11,421	254	200
	0.5380	0.4443	0.0099	0.0078
Level 51	4,750	5,736
	8,381	6,335	282	221	15,219
Total	13,131	12,071	282	221
	0.5108	0.4696	0.0110	0.0086
Ground Floor	371	661	12960	19587
	15,480	11,702	521	409	28,112
Total	15,851	12,363	13,481	19,996	61691
	0.2569	0.2004	0.2185	0.3241

A-7

Life Safety Upgrade Allocation

9/24/2003

[*]

A-8

EXHIBIT B

Loan Cost Allocation between FC and NYTC

Estimated Shared Loan Fees and Expenses

FC Lion’s Pro Rata Share	42.2842	%
NYTC Pro Rata Share	57.7158	%
	100.0000	%

Estimated Fee	Shared Costs		NYTC Allocation%		NYTC Shared Amount		Paid
Appraisal	15,000		57.7158	%	8,657		At closing
Environmental	15,000		57.7158	%	8,657		At closing
Bank Engineer Fee	184,000		57.7158	%	106,197		$40K (estimated) at closing with the balance paid monthly over the construction period
Insurance	10,000		57.7158	%	5,772		At closing
Admin Fee	525,000		57.7158	%	303,008		Monthly over the loan term
Total	$	749,000			$	432,291

EXHIBIT C

Changes to Form of Condominium Declaration and By-laws.

DECLARATION OF LEASEHOLD CONDOMINIUM

ESTABLISHING A PLAN OF LEASEHOLD CONDOMINIUM
OWNERSHIP OF PREMISES LOCATED ON THE EASTERLY SIDE OF
EIGHTH AVENUE BETWEEN 40^th & 41^st STREETS,
NEW YORK, NEW YORK

Name of Condominium:		The New York Times Building Condominium
Declarant:		The New York Times Building LLC having an address c/o The New York Times Company 229 West 43rd Street New York, New York 10036
Dated:		,
Block:		1012
Lots:
		Record and Return to:
		James J. Kirk, Esq. Kelley Drye & Warren LLP 101 Park Avenue New York, New York 10178
	* MARKED CHANGES

34.  “Default Period” shall have the meaning ascribed to such term in Section 6 of Article XX hereof.

35.  “Depositary” shall mean any entity, agreeing for the benefit of the Unit Owners, to perform the obligations of depositary hereunder on substantially the terms of the Depositary Agreement, which (A) (1) is a Registered Mortgagee (provided that such Registered Mortgagee is designated as the Depositary and would qualify as an Lending Institution, but is other than a savings bank or savings and loan association), (2) if not a Registered Mortgagee, is a commercial bank or trust company qualifying as an Lending Institution designated by the Registered Mortgagee most senior in lien, or (3) if not the Registered Mortgagee or designated by the Registered Mortgagee pursuant to clause (2) above, is a commercial bank or trust company qualifying as an Lending Institution designated by the Board of Managers, (B) has an office in the City of New York, and (C) has a net worth of not less than One Hundred Million Dollars ($100,000,000) and net assets of not less than Two Hundred Fifty Million Dollars ($250,000,000) (as such sums shall be adjusted by the CPI Adjustment from the date hereof throughout the period during which it acts as the Depositary.  If, at any time, no Lending Institution is so acting, then the Board of Managers shall designate as the Depositary an unaffiliated third party that is ordinarily engaged in the business of acting as a depositary.  The Unit Owners agree that *GMAC Commercial Mortgage Corporation* shall be the initial Depositary.

36.  “Depositary Agreement” shall have the meaning ascribed to such term in Section 2 of Article VII of the By-Laws.

37.  “DUO” shall have the meaning ascribed to such term in the Unit Leases.

38.  “Excess Site Acquisition Costs” shall have the meaning ascribed to such term in the Site 8 South Land Acquisition and Development Agreement dated as of December      , 2001 by and among New York State Urban Development Corporation d/b/a Empire State Development Corporation, Ground Lessor and Declarant.

39.  “Event of Default” shall have the meaning ascribed to such term in Section 1 of Article XXI hereof.

40.  “Fair Market Rent” is defined in Section 8 of Article XX hereof.

41.  “Fair Market Value” is defined in Section 8 of Article XX hereof.

42.  “Family Member” shall mean, as to any individual, any parent, spouse, sibling, child, grandchild, aunt, uncle, niece, nephew or cousin, or any step-child or step-grandchild thereof (including, in any such case, relationships established by adoption).

43.  “FC Areas” shall mean those portions of the Premises designated as “FC —Tax Lot Nos.       ” on the Plans (exclusive of any Common Elements or FC Limited Common Elements contained therein).

44.  “FC Board of Managers” means the board of managers representing the FC Unit Owners, collectively, and elected in accordance with the By-Laws.

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was recorded in the Register’s Office on                  , 200   at Reel        , Page            .

62.  “Ground Lessee” shall mean the tenant under the Ground Lease from time to time.

63.  “Ground Lessor” shall mean the landlord under the Ground Lease from time to time.

64.  “Initial Occupancy Tenant” shall have the meaning ascribed to such term in Section 5(d)of Article XX hereof.

65.  “Insurance Requirements” shall mean all requirements of any insurance policy required to be carried pursuant to the By-Laws or any Unit Lease and covering or applicable to all or any part of the Premises or the use thereof, all requirements of the issuer of any such policy and all orders, rules, regulations and other requirements of the New York Board of Fire Underwriters or any other body exercising the same or similar functions and having jurisdiction of all or any portion of the Premises.

66.  “Interest Rate” shall mean a rate per annum equal to the lesser of (i) three (3) percentage points above the rate publicly announced from time to time by Citibank, N.A. (or its successor) in New York, New York as its “prime rate” or “base rate” or (ii) the maximum rate permitted by applicable law with respect to the applicable amount payable hereunder.

67.  “Interim NYTC Sublease” shall have the meaning ascribed to such term in Section 6 of Article XX hereof.

68.  “Interim Sublease Option” shall have the meaning ascribed to such term in Section 6 of Article XX hereof.

69.  “Land” shall have the meaning ascribed to such term in Article II hereof.

70.  “Laws” (or, if used individually, “Law”) shall mean all laws, statutes and ordinances (including building codes and zoning ordinances) and the orders, rules, regulations, directives and requirements of all federal, state, county, city and borough departments, bureaus, boards, agencies, offices, commissions and other subdivisions thereof, or of any official thereof, or of any other governmental, public or quasi-public body or authority (collectively, “Governmental Authorities”), whether in force as of the date hereof or hereafter, which are or become, or purport to be, applicable to the Premises or any part thereof or the sidewalks, curbs or areas adjacent thereto.

71. *TO BE CHANGED TO CONFORM TO GROUND LEASE DEFINITION, AS MODIFIED BY THE TRI-PARTY AGREEMENT* “Lending Institution” shall mean (A) a savings bank, savings and loan association, commercial bank or trust company (whether acting individually or in a fiduciary capacity), (B) an insurance company, (C) a real estate investment trust, a trustee or issuer of collateralized mortgage obligations, a loan conduit, or other similar investment entity which is listed on the New York Stock Exchange, American Stock Exchange or other regional exchange (or their respective successors), (D) a federal, state, municipal or secular employee’s welfare, benefit, pension or retirement fund, a religious, educational or eleemosynary institution, any

9

160.“Trigger Date” shall have the meaning ascribed to such term in Section 4(a) of Article XX.

161.“12-Month Period” shall have the meaning ascribed to such term in Section 3(a) of Article XX hereof.

162.“Unit” shall mean each FC Individual Unit, each NYTC Individual Unit, the Retail Unit and the SPU Unit.

163.“Unit Leases” shall mean, collectively, the FC Unit Lease, the NYTC Unit Lease and any other subleases hereafter entered into between Ground Lessee and any subtenant (including, without limitation, any Recognized Mortgagee), as each may be amended, supplemented and/or restated from time to time as permitted hereunder.  The term “Unit Lease”, when used in the singular, shall refer to either the FC Unit Lease, the NYTC Unit Lease or any other such sublease (as each may be amended, supplemented and/or restated from time to time as permitted hereunder), as appropriate.

164.“Unit Owner” shall mean, with respect to any Unit, (a) for so long as a Unit Lease for such Unit is in effect, the tenant (from time to time) under such Unit Lease, and (b) from and after the termination of a Unit Lease by Ground Lessee or otherwise, until a Unit Lease is again in effect for such Unit, the Ground Lessee.  All references to a Unit Owner shall be deemed to include such Unit Owner’s successors and permitted assigns.

165.“Unit Owner Decision(s)” shall have the meaning ascribed to such term in Section 8 of Article II of the By-Laws.

166.“Unit Owner Expense(s)” shall mean, as to each Unit Owner:

(i)            *subject to clause (ii) of this definition* an amountequal to such Unit Owner’s share (based upon its Common Interest) of all costs and expenses (including taxes) paid or incurred by or on behalf of the Board of Managers in connection with or arising from the operation and management of the Building (including, without limitation, any such costs and expenses assessed as Special Assessments), but excluding any amounts paid or incurred by or on behalf of the Board of Managers to cure any Event of Default by any Unit Owner, which amounts shall be allocated solely to the defaulting Unit Owner;

(ii)for each category of expense attributable to the Building as set forth on Exhibit D attached hereto (including, without limitation, any such expense assessed as a Special Assessment), the respective percentages set forth on said Exhibit D;

(iii)an amount equal to such Unit Owner’s share (based upon its Common Interest) of any reserves established by the Unit Owners in accordance with the provisions of Section 8 of Article II of the By-Laws; and

(iv)any FC Collective Unit Expenses or NYTC Collective Unit Expenses, as the case may be, payable by such Unit Owner.

167.“Work” shall have the meaning ascribed to such term in Article X hereof.

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if the FC Board of Managers were the Board of Managers, the FC Unit Owners were the Unit Owners and the FC Limited Common Elements were the Common Elements.

Section 6.  Failure to Deliver a Statement Not Prejudicial.  The failure to render any statement hereunder with respect to any period shall not prejudice the right of the Board of Managers, NYTC Board of Managers or FC Board of Managers, as the case may be, to thereafter render a statement with respect thereto or the right of any Unit Owner to require and be furnished with same.

Section 7.  Books and Records.  (a) Upon five (5) business days’ written notice by any Unit Owner, Ground Lessee or any Registered Mortgagee to the Board of Managers, such Unit Owner, Ground Lessee or Registered Mortgagee (or any agents acting on behalf of such Unit Owner, Ground Lessee or Registered Mortgagee) may inspect the applicable books and records of the Board of Managers in order to verify such Unit Owner’s Unit Owner Expenses.  Such notice shall specifically designate the year(s) for which the Unit Owner, Ground Lessee or Registered Mortgagee intends to inspect applicable books and records, which year(s) shall be limited to the three (3) full calendar years immediately preceding the date of such inspection and any then elapsed portion of the then current calendar year.

(b)  Each inspection shall be at the office of the Board of Managers or at the office of the Board of Manager’s managing agent, if any, and shall be made during normal business hours.  All costs of such inspection shall be borne by the party requesting the inspection.  Any Unit Owner, Ground Lessee or Registered Mortgagee making any inspection hereunder shall provide the Board of Managers with a copy of any written report on the results of such inspection within fifteen (15) days of the preparation thereof.  Each Unit Owner shall hold confidential all non-public information, reports or statements obtained pursuant to such inspection, provided however, that such Unit Owner may disclose such information (i) to its Affiliate, (ii) pursuant to the order of any court of competent jurisdiction or administrative agency, (iii) which had been publicly disclosed other than as a result of a disclosure by such Unit Owner, (iv) in connection with any litigation, (v) to the extent necessary in connection with the exercise of any remedy hereunder or under any other document relating to the Building, (vi) to such Unit Owner’s legal counsel, accountants and independent auditors and (vii) to any *actual or proposed* Registered Mortgagee or proposed subtenant or assignee of a Unit Owner.

(c)  The NYTC Unit Owners, Ground Lessee and any Registered Mortgagee of the NYTC Unit Owners shall have the same right to inspect the books and records kept by the NYTC Board of Managers, as provided for inspection of the books and records kept by the Board of Managers in subsections (a) and (b) above.

(d)  The FC Unit Owners, Ground Lessee and any Registered Mortgagee of an FC Unit Owner shall have the same right to inspect the books and records kept by the FC Board of Managers, as provided for inspection of the books and records kept by the Board of Managers in subsections (a) and (b) above.

Section 8.  Estoppel Certificates Delivered by Board of Managers.  Within fifteen (15) days of receipt of a written request therefor (whether from a Unit Owner or its prospective assignee or its Registered Mortgagee or a prospective Mortgagee or from Ground Lessee), the

28

(b)  Approval Rights of Registered Mortgagees.  Each Unit Owner shall submit a draft of any supplement, amendment or modification of this Declaration to its Registered Mortgagee(s) (if any) and such Registered Mortgagee(s) shall have the right to approve same. [text deleted: (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD)] Any supplement, amendment or modification which is entered into without notice to (and approval by) each Unit Owner’s Registered Mortgagees shall be void ab initio.  Any approval or disapproval of an amendment hereto shall be given by each Registered Mortgagee within ten (10) Business Days of each such Registered Mortgagee’s receipt of a written request therefor, and each such Registered Mortgagee’s failure to timely respond to any such request (i.e., within such ten (10) Business Day period) shall, subject to the provisions of Section 4 of Article XXIII hereof, constitute (and be deemed to constitute) each such Registered Mortgagee’s approval of the proposed amendment.

(c)  Recording of Amendments.  No amendment hereof shall be effective until recorded in the Register’s Office.

Section 2.  Execution and Delivery of Amendments.  Any amendment to this Declaration approved in accordance with Section 1 of this Article XVII shall be executed on behalf of each Unit Owner by its general partner, managing member, officer or other authorized person of such Unit Owner.

ARTICLE XVIII

TERMINATION OF CONDOMINIUM; PURCHASE OPTION UNDER GROUND LEASE

Section 1.  Withdrawal by Unit Owners.  The Condominium shall continue until such time as withdrawal of the Property from the provisions of the Condominium Act and termination of this Condominium is authorized by a unanimous vote of all of the Unit Owners and their Registered Mortgagees and approved in writing by the Ground Lessee if and to the extent such approval is required under the Unit Leases.  In the event of any such withdrawal and termination, the Unit Owners shall (i) (a) enter into (and record in the Register’s Office) a reciprocal easement agreement or (b) create a “common law condominium’’ modeled upon (and containing substantially the same provisions as) this Declaration and the By-Laws (and record the same in the Register’s Office), in either case providing for substantially the same administration of and level of maintenance and repair in respect of the “common areas”, the “NYTC limited areas” and the “FC limited areas” of the Premises as are provided in the Condominium created herein, and (ii) amend the Unit Leases so that the descriptions of the premises demised thereunder no longer refer to condominium Units (and appurtenant interests in Common Elements) but to the spaces and area demised thereunder (and appurtenant interests in the “common areas”, the “NYTC limited areas” and the “FC limited areas” of the Premises, as described in the reciprocal easement agreement (or condominium, as the case may be) referred to in the preceding subclause (i)).

Section 2.  Purchase Option Under Unit Leases.  Except as otherwise set forth in this Section 2, the decision to exercise the purchase option set forth in Article V of the Unit Leases shall be made solely by NYTC Unit Owner, and if NYTC Unit Owner exercises the purchase option set forth in Article V of the NYTC Unit Lease, then each FC Unit Owner and

45

the Retail Unit Owner shall simultaneously exercise the purchase option set forth in Article V of its respective Unit Lease, and thereupon each Unit Owner shall take all actions required under its respective Unit Lease in connection with the exercise of such purchase option.  If any FC Unit Owner or the Retail Unit Owner, by exercising such purchase option, will forfeit its right to reimbursement for Excess Site Acquisition Costs, then the NYTC Unit Owner shall, on the exercise of such purchase option, pay to each such FC Unit Owner and the Retail Unit Owner an amount equal to such FC Unit Owner’s and Retail Unit Owner’s forfeited Excess Site Acquisition Costs.  Notwithstanding the foregoing, if NYTC Unit Owner has not exercised the purchase option set forth in Article V of the NYTC Unit Lease on or before the date which is five (5) years prior to the date which is 99 years after the Commencement Date (as defined in the Ground Lease), then any FC Unit Owner or the Retail Unit Owner or both shall have the right to exercise the purchase option set forth in Article V of its respective Unit Lease and, in such event, NYTC Unit Owner and the remaining Unit Owners simultaneously shall exercise the corresponding purchase options under their respective Unit Leases, and thereupon such Unit Owners shall take all actions necessary or required under its respective Unit Lease in connection with the exercise of such purchase option.  In the event of the exercise of the aforesaid purchase options, the Unit Owners shall contemporaneously therewith enter into (and record in the Register’s Office) an amendment to this Declaration to convert the same to a fee condominium on substantially the terms, covenants and conditions herein contained.

ARTICLE XIX

COVENANT OF FURTHER ASSURANCES

Any Person who is subject to this Declaration (including any Unit Owner or any Person claiming by, through or under any Unit Owner, the Declarant, the Board of Managers, the NYTC Board of Managers, the FC Board of Managers and any Manager or officer) (the “Subject Party”) shall execute, acknowledge and deliver to any such other Person such documents and take such other action as such other Person may reasonably request in order to effectuate the provisions of this Declaration or the By-Laws and the realization of the benefits intended to be conferred thereby, provided, however, that such document or action does not decrease the rights or increase the obligations of the Subject Party, any Unit Owner under this Declaration or the By-Laws.  Except as otherwise provided in this Declaration or the By-Laws, all expense and liability thus incurred shall be borne by the requesting Person.  If any Subject Party fails or refuses within five (5) days after request therefor to execute, acknowledge or deliver any such document or to take any such action, then the Board of Managers is hereby authorized to act as attorney-in-fact for such Subject Party, coupled with an interest and granted for a valuable consideration, to execute, acknowledge and deliver such document and to take such action in the name of such Subject Party.

*ADD PROVISION REQUIRING AMENDMENTS TO DECLARATION WHICH ARE REASONABLY REQUESTED BY A RECOGNIZED MORTGAGEE, SO LONG AS SUCH AMENDMENTS DO NOT INCREASE ANY OBLIGATIONS (EXCEPT TO A DE MINIMUS EXTENT) AND DO NOT DECREASE ANY RIGHTS AND BENEFITS (EXCEPT TO A DE MINIMUS EXTENT)*

46

ARTICLE XX

SALES, SUBLEASES AND MORTGAGES

Section 1.  Unit Owners’ Rights to Sell, Sublease or Mortgage Units.  Subject to the provisions of this Declaration, the By-Laws and the applicable Unit Lease, any Unit Owner may, without prior consent of any Person, mortgage or sublease its leasehold interest in, or Sell, its Unit or transfer any interests in such Unit Owner, so long as (a) such Sale, sublease or mortgage of a Unit is permitted by, and complies with, the applicable provisions of its Unit Lease, and (b) the proposed subtenant or purchaser of a Unit (i) shall not be a prospective subtenant or assignee with whom another Unit Owner has negotiated a term sheet for a sublease or assignment within the prior three (3) months and is not then a subtenant of such Unit Owner, (ii) shall not be an entity described in item (1) on Exhibit I attached hereto (“NYTC Competing User”) as to the Retail Unit and any FC Individual Unit and (iii) shall not be permitted to use the Unit for the uses described in items (2)-(18) on Exhibit I attached hereto (“Prohibited Uses”).  The restrictions set forth in clause (b)(ii) of this Section 1 regarding the Sale or subleasing of the Retail Unit and the FC Individual Units to a NYTC Competing User shall not apply (x) unless NYTC occupies Units within the Building, the Common Interest attributable to which, in the aggregate, constitutes at least twenty percent (20%) and (y) as to any entity which is an NYTC Competing User at any time from and after the date the SPU Unit and/or any NYTC Individual Unit *or any portion thereof* is sold or subleased to such entity (but shall continue to apply to any other entity which would constitute an NYTC Competing User).  Each Unit Owner shall notify the Board of Managers of any proposed Sale, sublease or mortgage of a Unit at least twenty (20) days prior to the effective date of any such Sale, sublease or mortgage of a Unit. Each NYTC Unit Owner shall notify promptly the FC Unit Owners at any time NYTC occupies Units within the Building, the Common Interest attributable to which, in the aggregate, constitutes less than twenty percent (20%).  Each NYTC Unit Owner shall, from time to time within ten (10) days after request by an FC Unit Owner, certify in writing to such FC Unit Owner the amount of space within its NYTC Individual Unit that is owned pursuant to a Unit Lease by NYTC and its Affiliates and the amount of space within its Unit that is occupied by NYTC.  So long as NYTC occupies Units within the Building, the Common Interest attributable to which, in the aggregate, constitutes at least twenty percent (20%), each FC Unit Owner shall from time to time within ten (10) days after request by NYTC certify in writing to NYTC whether there are any subleases affecting its FC Individual Unit, and if so, the term of any such sublease and whether or not such sublease includes any expansion or extension options.  Each FC Unit Owner agrees to include in any sublease entered into by it for space within its Unit that is subject to an NYTC purchase or sublease option under Section 4 or Section 5 of this Article XX, a provision that the subtenant thereunder agree that upon the exercise by NYTC of such option, if any, to deliver to NYTC without cost to NYTC, copies of any drawings and/or CADD design files in such subtenant’s possession for all leasehold improvements made by or on behalf of such subtenant to such Unit on an “as-built basis.”

Section 2.  FC Unit Owners’ Lockout Period.  Notwithstanding Section 1 of this Article XX, so long as NYTC owns a leasehold interest in (including without limitation as the tenant under a sale-leaseback or similar structure), and occupies, Units within the Building, the Common Interest attributable to which, in the aggregate, constitutes at least twenty percent (20%), no FC Unit Owner shall Sell its FC Individual Unit or permit the sale of an interest in

47

said FC Unit Owner until the fifteenth (15^th) anniversary of the date of the Operating Agreement [i.e. December 12, 2001] (or such earlier date as NYTC shall cease to own a leasehold interest in and occupy Units within the Building, the Common Interest attributable to which, in the aggregate, constitutes at least twenty percent (20%), the “Lockout Period”) except (a) to NYTC, (b) to an Affiliate of Forest City Enterprises, Inc. or Bruce C. Ratner, (c) to a Family Member of Bruce C. Ratner, provided Bruce C. Ratner shall retain Management Control following such transfer (or, if Bruce C. Ratner shall be incompetent or deceased, then such Family Member or Family Members of Bruce C. Ratner shall retain such management control), or (d) to a trust established for the benefit of Bruce C. Ratner or his Family Members, or any further transfer to the beneficiaries of such trust, provided Bruce C. Ratner shall retain Management Control following such transfer (or, if Bruce C. Ratner shall be incompetent or deceased, then such Family Member or Family Members of Bruce C. Ratner shall retain such Management Control). Except as provided in the following sentence, any purchaser or transferee of a leasehold interest in any FC Individual Unit or any interest in FC Unit Owner shall be continue to be bound by the restrictions set forth in this Section 2. The restrictions set forth in this Section 2 shall not apply to transfers of any interest (x) in an FC Unit Owner or to a Sale of an FC Individual Unit permitted under the Recognition Agreement (which transfers and Sales shall be subject to the NYTC Participation Rights set forth in the Recognition Agreement), (y) to transfers of any FC Individual Unit in foreclosure or deed in lieu of foreclosure to any Registered Mortgagee or its *designee or* nominee or any transfer of such FC Individual Unit after title has been conveyed pursuant to such foreclosure or deed in lieu of foreclosure or (z) to Ground Lessee from and after the termination of the applicable Unit Lease, or to any transfers thereafter. Any Sale in violation of this Section 2 shall be null and void.

Section 3.  NYTC’s Right of First Refusal and Right of First Offer to Purchase FC Individual Unit(s).

(a)NYTC’s Right of First Refusal.  If an FC Unit Owner makes or receives a bona fide offer (or, in the case of an FC Unit Owner Interest Sale, a series of related offers) which is acceptable to such FC Unit Owner for either (i) the Sale of any FC Individual Unit(s) owned by such FC Unit Owner to an independent third party that is not an Affiliate of such FC Unit Owner or an Affiliate of any of the members of such FC Unit Owner (an “FC Individual Unit Sale”) or (ii) the sale, in a single transaction or a series of related transactions, of ninety five percent (95%) or more of the membership interests of such FC Unit Owner to an independent third party that is not an Affiliate of such FC Unit Owner or an Affiliate of any of the members of such FC Unit Owner (an “FC Unit Owner Interest Sale”), such FC Unit Owner shall notify NYTC and shall deliver to NYTC a term sheet (“Section 3(a) Term Sheet”) fully executed by such FC Unit Owner and the prospective purchaser or transferee containing all of the pertinent terms of such proposed FC Individual Unit Sale or FC Unit Owner Interest Sale, including without limitation, the name of the proposed purchaser, the purchase price, deposit, financing arrangements, contingencies, conditions, closing date and any other economic and material non-economic terms of such transaction. Except as expressly provided in the immediately preceding sentence, the right of first refusal provided in this Section 3(a) shall not apply to a sale of any direct or indirect beneficial interest in any FC Unit Owner.

Within the thirty (30) day period after receipt of both the notice and the Section 3(a) Term Sheet from such FC Unit Owner and delivery to NYTC of complete copies of all

48

If the FC Individual Unit Sale or FC Unit Owner Interest Sale pursuant to this Section 3(a) is not consummated within twelve (12) months after the expiration of the earlier of the date NYTC fails to exercise its right of first refusal as hereinabove required and the date NYTC waives such right in writing (the “12-Month Period”), the FC Unit Owner shall be required to comply again with the provisions of this Section 3(a) and re-offer the Unit in question to NYTC prior to any FC Individual Unit Sale or FC Unit Owner Interest Sale, whether such proposed FC Individual Unit Sale or FC Unit Owner Interest Sale is on the same or different terms (or to the same or different prospective purchaser) as set forth in the original notice and Section 3(a) Term Sheet sent to NYTC, and the 30-day period for NYTC to accept such offer hereinabove provided for shall again apply to such re-offer.  In addition, in the event the FC Unit Owner modifies the terms set forth in the original Section 3(a) Term Sheet at any time (i.e., whether or not during the 12-Month Period), FC Unit Owner shall be required to comply again with the provisions of this Section 3(a) and re-offer the Unit in question to NYTC on such modified terms prior to the FC Individual Unit Sale or FC Unit Owner Interest Sale, and the 30-day period for NYTC to accept such offer hereinabove provided for shall again apply with respect to such re-offer; provided, however, that (i) if the sole change in terms is a reduction of the purchase price and/or other consideration for the FC Individual Unit Sale or FC Unit Owner Interest Sale such that the total amount of the purchase price and other consideration is not less than 95% of the total purchase price and other consideration contained in the original Section 3(a) Term Sheet, and (ii) such re-offer to NYTC is made during the sixty (60) day period following the date NYTC waives or is deemed to have waived the offer contained in the original Section 3(a) Term Sheet pursuant to this Section 3(a), the obligation to re-offer the Unit or interests to NYTC shall nevertheless apply, but the time period for NYTC to accept such re-offer of the Unit or interests shall be limited to (i) five (5) Business Days following receipt of the revised Section 3(a) Term Sheet if such reduction is being made in connection with a proposed FC Individual Unit Sale or FC Unit Owner Interest Sale to the purchaser set forth in the original Section 3(a) Term Sheet, and (ii) ten (10) Business Days following receipt of the revised Section 3(a) Term Sheet if such reduction is being made in connection with a proposed FC Individual Unit Sale or FC Unit Owner Interest Sale to a purchaser other than the purchaser set forth in the original Section 3(a) Term Sheet.  NYTC agrees to execute and deliver to the FC Unit Owner and the proposed purchaser at the earlier of (x) the end of said five (5) Business Day or ten (10) Business Day period (as the case may be) and (y) the date it waives this right of first refusal in writing, an NYTC Waiver and Estoppel Letter with the appropriate section reference and dates, names and addresses completed as appropriate.  The failure of NYTC to execute and deliver an NYTC Waiver and Estoppel Letter shall in no event invalidate its failure to exercise its right of first refusal under this Section 3(a) and the consequent waiver of such right.

The restrictions on an FC Unit Owner and the rights of NYTC under this Section 3(a) shall not apply (i) in the event of a FC Individual Unit Sale or FC Unit Owner Interest Sale in foreclosure or deed in lieu of foreclosure or any transfer of such FC Individual Unit or membership interest, partnership interest or stock thereafter by a Registered Mortgagee or its nominee *or designee* (ii) to any transfer of an FC Individual Unit pursuant to clause (a), (b), (c) or (d) of Section 2 of this Article XX (iii) any transfers of an FC Individual Unit or interest in an FC Unit Owner otherwise permitted under the Recognition Agreement, subject to the terms thereof (iv) unless NYTC occupies Units within the Building, the Common Interest attributable to which, in the aggregate, constitutes at least twenty percent (20%), (v) to transfers to Ground

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who subleases at least two (2) floors in the FC Collective Unit (excluding space within the Retail Unit) for an initial term of not less than ten (10) years.

Section 6.  NYTC’s Option to Sublease v, Purchase.  Notwithstanding anything to the contrary contained in Sections 4 and 5 of this Article XX, if (a) NYTC desires to exercise any of its purchase options under Section 4. and (b) (i) such Sale to NYTC of any FC Individual Unit *and the repayment of debt with the net proceeds thereof* would result in such FC Unit Owner incurring any prepayment penalties, breakage costs or other similar fees (collectively, “Breakage Costs”) under any financing of such FC Individual Unit (other than immaterial penalties, costs or fees) *OR THE TRANSFER OF SUCH FC INDIVIDUAL UNIT WOULD CAUSE A DEFAULT UNDER ANY FINANCING OF SUCH FC INDIVIDUAL UNIT*, or (ii) the date upon which the closing on the Sale of such Unit would occur falls within a lock-out period under such financing, then the applicable FC Unit Owner(s) must notify NYTC of such fact (the “Section 6 Notice”) within fifteen (15) days after NYTC gives notice under Section 4 of this Article XX.  NYTC shall have fifteen (15) days from the delivery of the Section 6 Notice to withdraw its notice under Section 4 of this Article XX to exercise such option.  If NYTC does not withdraw its notice under Section 4 of this Article XX to exercise such option, then NYTC shall not be permitted to exercise such purchase option, but may instead exercise its corresponding sublease option under Section 5 of this Article XX by delivering within fifteen (15) days thereafter to the applicable FC Unit Owner(s) an NYTC Sublease for the applicable FC Individual Unit(s) together with either (A) the Security or (B) so long as NYTC shall have a rating of A- or better as determined by the Rating Agency, an NYTC Lease Guaranty in lieu of the Security.  The annual rental under such NYTC Sublease shall be equal to ten percent (10%) of what would have been the purchase price for such FC Individual Unit(s) had NYTC been permitted to exercise its purchase option under Section 4 of this Article XX.  Promptly upon receipt of such NYTC Sublease together with the Security or NYTC Lease Guaranty, as applicable, such FC Unit Owner shall execute a counterpart of such NYTC Sublease and deliver it to NYTC, provided however, that the failure of such FC Unit Owner to execute and/or deliver the NYTC Sublease shall not in any way affect the exercise of this option by NYTC.  If the terms of any such financing permit such prepayment only upon the payment of Breakage Costs, then NYTC may nonetheless exercise its purchase option, provided, however, that (x) if such exercise is within the first ten (10) years after such financing, NYTC shall pay all such Breakage Costs and (y) if such exercise is after the tenth (10^th) year of such financing, the applicable FC Unit Owner shall pay all such Breakage Costs.  In no event may the terms of any financing of any FC Individual Unit provide for a lock-out period beyond ten (10) years from the date of such financing, and, in no event shall the applicable FC Unit Owner, after receipt of a Section 6 Notice, enter into any financing encumbering the applicable FC Individual Unit which precludes the transfer of such FC Individual Unit.  Upon request by NYTC from time to time, the applicable FC Unit Owner shall provide to NYTC information regarding the terms of any lock-out periods under any such financing.

Any Section 6 Notice given by an FC Unit Owner shall set forth the first date (the “Lockout Expiration Date”) on which, pursuant to the terms of the FC Unit Owner’s mortgage then encumbering the Unit in question, such FC Unit Owner is permitted to obtain a release of such mortgage from such Unit without the payment of Breakage Costs, which date shall in no event be longer than ten (10) years following the date such mortgage was first granted with respect to such Unit.  In the event NYTC exercises its option under this Section 6 to sublease such Unit following the giving of such Section 6 Notice (the “Interim Sublease Option”; the NYTC Sublease executed with respect to such Unit following the exercise of such Interim

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(E)the Unit Owner will not incur any advertising or promotional expenditures in renting the subject Unit(s) to a prospective tenant.

(vii)the net worth of The New York Times Company in relation to a hypothetical prospective tenant or its guarantor;

(viii)that the tenant will pay its share of real estate taxes, PILOT and condominium common charges without base years or base amounts; and

(ix)the term of the NYTC Sublease and the other terms and conditions of the NYTC Sublease for the subject Unit(s).

In no event, however, shall the arbitrators consider, or make any increase or decrease in the Fair Market Rent for the subject Unit(s) by reason of the fact that The New York Times Company (and/or its Affiliates) is a current occupant of the Building or that the Building is the headquarters for The New York Times Company, the arbitrators to consider the Fair Market Rent on the basis of a new transaction with an unrelated third party.

Section 9.  Registered Mortgagee Requirements; Rights of Registered Mortgagees.  (a) The term “Registered Mortgage” as used herein shall mean a mortgage, as the same may be amended, modified, [TEXT DELETED: OR] restated, *increased, split, severed and/or assigned* from time to time, given to secure the repayment of money or other obligation owed by a Unit Owner and held by a Lending Institution or NYTC  (i) which shall comply with the provisions of this Section 9 and the affected Unit Owner’s Unit Lease, (ii) *[ADD LANGUAGE CONFIRMING THAT GMAC'S SUBORDINATION AGREEMENT FORM SATISIFIES (ii)]* which shall include express provisions *(which provisions may be set forth in a separate subordinate document)* acknowledging (y) that the lien of such mortgage is subordinate to this Declaration and the By-Laws (and the provisions thereof and hereof) and to the Board of Managers’ Liens, the NYTC Board of Managers’ Liens and the FC Board of Managers’ Liens and (z) that the mortgagee (and its successors and assigns) will take title subject to this Declaration and the By-Laws, and (iii) a photostatic copy of which has been delivered to the other Unit Owners, the Board of Managers, the NYTC Board of Managers, the FC Board of Managers and the Ground Lessee, together with a certification by the affected Unit Owner and the mortgagee confirming that the photostatic copy is a true copy of the mortgage in question.  In the event of any assignment of a Registered Mortgage or in the event of a change of address of a Registered Mortgagee or of an assignee of such Registered Mortgage, notice of the new name and address shall be provided to the other Unit Owner, the Board of Managers and the Ground Lessee.  The term “Registered Mortgagee” as used herein shall mean the holder of a Registered Mortgage from time to time.

*[ADD LANGUAGE EQUIVALENT TO ATTACHED RIDER 65—The term “Registered Mortgage” shall also include the mortgages held by GMAC Commercial Mortgage Corporation as agent encumbering the Property as of the date of recording of the Declaration, as each mortgage may be increased, amended, restated, modified, split,severed and assigned (except for any assignment in connection with a refinancing) from time to time (each, a “Construction Loan Mortgage”).  For purposes of this Section 14.3(b), GMAC Commercial Mortgage Corporation shall be deemed to have given an RM Notice with respect to each Construction Loan Mortgage specifying the same addresses that are set forth in the documents governing such mortgages.]*

(b)  If a Unit Owner and its Registered Mortgagee shall have served on the other Unit Owners, the Board of Managers, the NYTC Board of Managers, the FC Board of Managers and Ground Lessee, in the manner required in the preceding subparagraph, a notice specifying the name and address of such Registered Mortgagee, such Registered Mortgagee shall be given a copy of each and every notice, bill and statement and other information, correspondence and material provided for or required to be given hereunder or under the By-Laws (including if given by the Board of Managers, the NYTC Board of Managers or the FC Board of Managers) at the same time as and whenever such notice shall thereafter be given thereunder or hereunder, at the address last furnished by such Registered Mortgagee.  Any Registered Mortgagee as of the date of recording of this Declaration shall be deemed to have properly delivered to the Unit Owners a notice specifying its name and address.  After receipt of

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such notice from a Registered Mortgagee, no notice, bill, statement and other correspondence and material thereafter given hereunder or under the By-Laws (whether by any Unit Owner to any other Unit Owner, or by any Unit Owner to the Board of Managers, the NYTC Board of Managers or the FC Board of Managers or by the Board of Managers, the NYTC Board of Managers or the FC Board of Managers to any Unit Owner) shall be deemed to have been given hereunder or under the By-Laws unless and until a copy thereof shall have been so given to the Registered Mortgagee(s).  If a Registered Mortgage so provides or otherwise requires:

(1)  Any insurance proceeds or condemnation award payable to a Unit Owner (and not the Depositary) pursuant to its Unit Lease or hereunder shall [TEXT DELETED: UPON NOTICE FROM A REGISTERED MORTGAGE OF SUCH UNIT OWNER,] be delivered instead to the Unit Owner’s *most senior* Registered Mortgagee.

(2)  If a Unit Owner fails to appoint an arbitrator or otherwise take any action as may be required or permitted hereunder or under the By-Laws with respect to arbitration, such appointment or action as otherwise would have been permitted by that Unit Owner may be taken within the relevant time period applicable to such Unit Owner *PLUS TEN (10) ADDITIONAL DAYS* by its Registered Mortgagee and such appointment and action shall be recognized in all respects by the other Unit Owners, the Board of Managers, the NYTC Board of Managers and the FC Board of Managers.

(b)  If more than one Registered Mortgagee having a lien on any Unit has exercised any of the rights afforded by this Section 9, only that Registered Mortgagee, to the exclusion of all other Registered Mortgagees, whose Registered Mortgage is most senior in lien with respect to the applicable Unit, shall be recognized by the other Unit Owners as having exercised such right, for so long as such Registered Mortgagee shall be diligently exercising its rights hereunder with respect thereto, and thereafter only the Registered Mortgagee whose Registered Mortgage is next most senior in lien with respect to the applicable Unit, shall be recognized by the other Unit Owners *(WITH RESPECT TO SUCH SPECIFIC EXERCISE ONLY)*.

(c)  Each Unit Owner shall give its Registered Mortgagee(s) prompt notice of any arbitration or legal proceedings involving obligations hereunder or under the By-Laws.  Subject to the provisions of the previous subparagraph, each Registered Mortgagee shall have the right to intervene in any such proceedings and to be made a party to such proceedings, and the parties hereto do hereby consent to such intervention.  In the event that any Registered Mortgagee does not elect to intervene or become a party to any such proceedings, each Unit Owner shall give its Registered Mortgagee notice and a copy of any award or decision made in any such proceedings, which decision shall be binding on such Registered Mortgagee.

(d)  Subject to the provisions of subsection 9(c) of this Article XX, and upon receipt by any Registered Mortgagee of any notice that its mortgagor is in default hereunder, each such Registered Mortgagee (i) shall thereupon have a period of fifteen (15) Business Days *AFTER THE SAME BECOMES AN EVENT OF DEFAULT* [TEXT DELETED: MORE THAN GIVEN TO SUCH UNIT OWNER IN EACH INSTANCE IN THE CASE OF A DEFAULT IN THE PAYMENT OF UNIT OWNER EXPENSES OR IN THE PAYMENT OF ANY SUM DUE HEREUNDER OR UNDER THE BY-LAWS AND THIRTY (30) DAYS MORE THAN GIVEN TO SUCH UNIT OWNER IN EACH INSTANCE IN THE CASE OF ANY OTHER DEFAULT,] for remedying the default, or causing the same to be remedied, or causing action to remedy the default to be commenced, and (ii) shall, within such periods and otherwise as herein

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provided, have the right to remedy such default, cause the same to be remedied or cause action to remedy such a default to be commenced.  The Board of Managers, the NYTC Board of Managers and the FC Board of Managers, as applicable, shall accept performance by a Registered Mortgagee (or its designee or nominee) of any covenant, condition or agreement on a Unit Owner’s part to be performed hereunder and the exercise by a Registered Mortgagee (or its designee or nominee) of Unit Owner’s self-help remedies with the same force and effect as though performed or exercised by the defaulting Unit Owner.

Notwithstanding any other provision of this Declaration or the By-Laws to the contrary (including, without limitation, the provisions of Section 1 of Article XXI hereof), no default or Event of Default by a Unit Owner shall be deemed to exist as long as a Registered Mortgagee within fifteen (15) Business Days after the [TEXT DELETED: EXPIRATION OF THE TIME GIVEN TO SUCH UNIT OWNER PURSUANT HERETO OR TO THE BY-LAWS TO REMEDY THE EVENT OR CONDITION WHICH WOULD OTHERWISE CONSTITUTE A DEFAULT OR] *SAME BECOMES AN* Event of Default hereunder, (A) shall have cured such default or Event of Default to the extent capable of cure by the payment of money, or (B) to the extent the same is not capable of cure by the payment of money, shall have delivered to the Board of Managers, the NYTC Board of Managers, the FC Board of Managers and Ground Lessee [TEXT DELETED: ITS WRITTEN AGREEMENT] *A WRITTEN NOTICE STATING THAT IT INTENDS* to (y) take the action necessary to cure the default and to prosecute the same to completion, or (z) if possession of the Unit is required in order to cure the default, to institute foreclosure proceedings and obtain possession directly or through a receiver, and to prosecute such proceedings with diligence and, upon obtaining such possession, commence promptly to cure the default or Event of Default and to prosecute the same to completion with diligence, provided that during the period in which such action is being taken (and any foreclosure proceedings are pending), all of the other obligations of the Unit Owner hereunder or under the By-Laws, to the extent they are reasonably susceptible of being performed by the Registered Mortgagee, are being performed.  However, at any time after the delivery of the aforementioned [TEXT DELETED: AGREEMENT] *NOTICE*, the Registered Mortgagee may notify the Board of Managers, the NYTC Board of Managers and the FC Board of Managers in writing, that it has relinquished possession of the Unit or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued *DILIGENTLY PROSECUTING* them, and [TEXT DELETED: IN SUCH EVENT, THE REGISTERED MORTGAGEE SHALL HAVE NO FURTHER LIABILITY UNDER SUCH AGREEMENT FROM AND AFTER THE DATE IT DELIVERS SUCH NOTICE TO THE BOARD OF MANAGERS, THE NYTC BOARD OF MANAGERS AND THE FC BOARD OF MANAGERS (EXCEPT FOR ANY OBLIGATIONS ACCRUING PRIOR TO THE DATE IT DELIVERS SUCH NOTICE), AND], thereupon, the Board of Managers, the NYTC Board of Managers and the FC Board of Managers shall have the unrestricted right to take any other action they deem appropriate by reason of any default.

(e) In addition, notwithstanding any provision hereof or of the By-Laws to the contrary, if a Unit Owner fails to pay its Unit Owner Expenses or any other amounts due hereunder or is otherwise in default hereunder or under the By-Laws, and if the defaulting Unit Owner’s Registered Mortgagee takes the actions described in subclauses (y) or (z) of the preceding subsection 9(d) (as and when provided therein), then, following the taking of any such action by the defaulting Unit Owner’s Registered Mortgagee and provided that, as set forth in the last sentence of this subsection 9(e), the Registered Mortgagee taking such action shall then be current in the payment of all amounts due in respect of (or on behalf of) such defaulting Unit Owner (i) the Registered Mortgagee shall be entitled to vote in lieu of such defaulting Unit Owner on all matters or actions to be decided upon by the Unit Owners (as if the Registered Mortgagee were the defaulting Unit Owner), (ii)  the Registered Mortgagee shall be entitled to

*[ADD PROVISION TO THE EFFECT THAT (i), (ii) AND (iii) SHALL ALSO APPLY IF REGISTERED MORTGAGEE INFORMS THE UNIT OWNERS THAT THERE IS AN OUTSTANDING EVENT OF DEFAULT UNDER ITS MORTGAGE]*

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immediately name substitute Managers to act on the Board of Managers, the NYTC Board of Managers and the FC Board of Managers, as the case may be, (in lieu of any Managers elected by the defaulting Unit Owner and without regard to the unexpired term of such Manager’s tenure) and (iii) the Board of Managers, the NYTC Board of Managers and the FC Board of Managers, as applicable, shall rely (and be entitled to rely) on the votes of or actions taken by the Registered Mortgagee (or by any Manager elected by the Registered Mortgagee) in determining the appropriateness of any action to be taken.  The right of the Registered Mortgagee (or of any Manager elected by the Registered Mortgagee) to vote on any matter to be decided upon (or any action to be taken) by the Unit Owners, as described in the preceding sentence, shall cease immediately upon the Registered Mortgagee’s failure to timely pay any of the Unit Owner Expenses or other amounts due or payable by the defaulting Unit Owner for a period of more than fifteen (15) days after notice by the Board of Managers, the NYTC Board of Managers or the FC Board of Managers, as applicable, to such Registered Mortgagee.  Payment or performance of any obligation of a Unit Owner by a Registered Mortgagee (prior to the date on which such Registered Mortgagee or its assignee or designee or nominee shall take title to the defaulting Unit Owner’s Unit) shall not give rise to any obligation on the part of the Registered Mortgagee to pay or perform in the future.

In the event of a conflict between the terms of this Section 9 and any applicable terms of a Unit Lease with respect to the rights or obligations of Ground Lessee, then the terms of the Unit Lease shall prevail.

Section 10.  Binding Effect.  The easements, covenants and restrictions created herein and in the By-Laws shall be binding upon and inure to the benefit of all parties having or acquiring any right, title or interest in or to any portion of, or interest or estate in, any Unit.

Section 11.  No Severance of Ownership.  No Unit Owner shall execute any mortgage or other instrument conveying or mortgaging title to its Unit without including therein such Unit’s Common Interest.  Any such mortgage or other instrument purporting to affect one or more of such interests without including all such interests shall be deemed and taken to include the interest or interests so omitted even though the latter shall not be expressly mentioned or described therein.

Section 12.  Compliance With Unit Leases; Conveyance of Unit Lease is Conveyance of Unit.  (a) Notwithstanding any provision of this Declaration to the contrary, no Unit Owner shall be permitted to voluntarily convey, sell, mortgage, pledge, hypothecate, lease or otherwise transfer its interest in any Unit (x) unless such transaction complies with the terms of its Unit Lease, (y) unless and until such Unit Owner shall have paid in full to the Board of Managers (and to the NYTC Board of Managers or the FC Board of Managers, as applicable) all unpaid Unit Owner Expenses and assessments theretofore assessed by the Board of Managers, the NYTC Board of Managers or the FC Board of Managers, as the case may be, against all of such Unit Owner’s Units and (z) until such Unit Owner shall have satisfied all unpaid liens against all of its Units (and leasehold estate under its Unit Lease), other than any mortgages.  This Section 12(a) shall not apply to a transfer in foreclosure, *DEED-IN-LIEU OF FORECLOSURE* or a transfer in connection with the termination of a Unit Lease by Ground Lessee due to a default thereunder.

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(b)  A Unit Owner shall convey its leasehold interest under its Unit Lease in the event that such Unit Owner conveys or sells its Unit (i.e., a Unit cannot be conveyed separately from the Unit Lease for such Unit).

ARTICLE XXI

DEFAULTS; REMEDIES

Section 1.  Events of Default.  Each of the following events shall be deemed an “Event of Default” hereunder:

(a)  if a Unit Owner shall fail to pay when due any of its Unit Owner Expenses or any other amounts due hereunder or under the By-Laws, and such default shall continue for a period of fifteen (15) days after written notice, by the Board of Managers to such delinquent Unit Owner; or

(b)  if a Unit Owner shall fail to pay any monies expended by the Board of Managers in curing any default by such Unit Owner hereunder or under the By-Laws, and such default shall continue for a period of fifteen (15) days after written notice by the Board of Managers to such delinquent Unit Owner; or

(c)  if a Unit Owner defaults in the performance of any non-monetary obligation set forth in this Declaration or the By-Laws, and such default continues for a period of thirty (30) days following receipt by the defaulting Unit Owner from the Board of Managers of a notice of default, or, if the default is of a nature that it cannot reasonably be cured within such thirty (30) day period, if the Unit Owner fails to (i) commence such cure within such thirty (30) day period and (ii) thereafter proceed with diligence and continuity to complete such cure; or

(d)  if a Unit Owner shall fail to pay any sum owed to Ground Lessee under its Unit Lease beyond any applicable notice or grace period set forth therein; or

(e)  if a Unit Owner shall default in the performance of any other obligation of such Unit Owner under its Unit Lease beyond any applicable notice or grace period set forth therein.

Section 2.  Board of Managers’ Rights to Cure.  The Board of Managers shall have the right, but not the obligation, to cure any Event of Default by any Unit Owner (which continues following the expiration of applicable notice and grace periods, as hereinabove provided).  If the Board of Managers does not cure an Event of Default within fifteen (15) days after any applicable grace period, then the non-defaulting Unit Owners shall have the right, but not the obligation, to cure such Event of Default. The Board of Managers (or the non-defaulting Unit Owner(s), as the case may be) shall notify Ground Lessee, the other Unit Owners, the defaulting Unit Owner, and each Unit Owner’s Registered Mortgagee(s), of its intention to cure the defaulting Unit Owner’s Event(s) of Default. Any funds expended by the Board of Managers (or the non-defaulting Unit Owner(s), as the case may be), together with interest at the Interest Rate from the date of expenditure to the date of repayment, shall be reimbursed by the defaulting

*ADD SELF HELP RIGHT OF THE UNIT OWNERS TO CURE ANY FAILURE BY THE BOARD OF MANAGERS TO PERFORM ITS OBLIGATIONS HEREUNDER TO THE EXTENT SUCH FAILURE WOULD GIVE RISE TO A DEFAULT UNDER A UNIT OWNER'S SEVERANCE LEASE.*

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by the defaulting Unit Owner (i) attempting to invalidate such termination of the Unit Lease or (ii) ascerting any claim to possession of the Unit, is finally resolved) (such date, the “Public Party Possession Date”), to pay all Unit Owner Expenses relating to such Unit and to perform all other obligations of the Unit Owner under this Declaration and the By-Laws accruing from and after the date of such termination.  The Board of Managers shall accept performance by Ground Lessee of any covenant, condition or agreement on Unit Owner’s part to be performed hereunder with the same force and effect as though performed by such Unit Owner.

(b)In addition, notwithstanding any provision of this Declaration or the By-Laws to the contrary, if (x) a Unit Owner fails to pay its Unit Owner Expenses or any other amounts due hereunder, (y) the defaulting Unit Owner’s Registered Mortgagee does not cure the defaulting Unit Owner’s default(s) (as and when provided in Article XX hereof), and (z) an Event of Default exists under the applicable Unit Lease, (i) the Ground Lessee shall be entitled to vote on all matters or actions to be decided upon by the Unit Owners (as if the Ground Lessee were the defaulting Unit Owner), (ii) the Ground Lessee shall be entitled to name substitute Managers to act on the Board of Managers (in lieu of any Managers elected by the defaulting Unit Owner) and (iii) the Board of Managers shall rely (and be entitled to rely) on the votes of or actions taken by the Ground Lessee (or by any Manager elected by the Ground Lessee) in determining the appropriateness of any action to be taken.  The right of Ground Lessee (or of any Manager elected by the Ground Lessee) to vote on any matter to be decided upon (or any action to be taken) by the Unit Owners, as described in the preceding sentence, shall cease immediately upon Ground Lessee’s failure to timely pay any of the Unit Owner Expenses or other amounts due or payable by the defaulting Unit Owner.

Section 6.  Board of Managers’ Lien.  Notwithstanding any provision of this Declaration to the contrary, any Board of Managers’ Lien shall be prior to all mortgages, liens or encumbrances affecting any Unit, except liens for real estate taxes, all “Charges” (as defined in the Unit Leases) past due and unpaid on the Unit and the Ground Lessee’s interest under the Unit Lease.  Upon a Registered Mortgagee’s payment (on behalf of a defaulting Unit Owner) to the Board of Managers at any time and from time to time of monies due to the Board of Managers (or other Unit Owner(s), as the case may be) and in satisfaction of the Board of Managers’ Lien, the amount of the Board of Managers’ Lien to which the lien of Registered Mortgages are subject and subordinate shall be reduced by the amount of any such payment(s) made by the Registered Mortgagee to the Board of Managers in satisfaction of the Board of Managers’ Lien.

Section 7.  Title of Board of Managers on Foreclosure.  In the event of the Board of Managers’ assumption of any Unit Lease at a foreclosure sale, or in the event that any Unit Owner shall convey its Unit to the Board of Managers in accordance with Section 339-x of the Real Property Law, leasehold title to such Unit shall be held by the Board of Managers or its designee on behalf of all of the other Unit Owners and the Board of Managers shall have the power to hold, lease, mortgage, vote, sell or otherwise deal with such Unit.  In the event that the leasehold interest in any Unit shall be so acquired by the Board of Managers, or its designee on behalf of all Unit Owners as tenants-in-common, all such Unit Owners shall be deemed to have waived all rights of partition with respect to such Unit.

Section 8.  Rights, Remedies and Obligations of the NYTC Board of Managers and FC Board of Managers.  All of the rights, remedies and obligations of the Board of

*BOARD OF MANAGERS WILL GIVE A REASONABLE SNDA TO TENANTS WHICH ARE ENTITLED TO AN SNDA UNDER THE GMAC LOAN DOCUMENTS.*

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* MARKED CHANGES

EXHIBIT B

BY-LAWS

OF
THE NEW YORK TIMES BUILDING ASSOCIATION, INC.

A New York not-for-profit corporation

ARTICLE I

PLAN OF LEASEHOLD CONDOMINIUM OWNERSHIP

Section 1.  Name.  These are the By-Laws of The New York Times Building Association, Inc.

Section 2.  Purpose.  The Association is formed to serve as a means through which the Unit Owners may take action with regard to the administration, management, maintenance, repair and operation of the Premises in accordance with the Declaration, to which these By-Laws are appended as an exhibit.

Section 3.  By-Laws Applicability.  The provisions of these By-Laws are applicable to the Association.  Unless otherwise defined herein, all capitalized terms used herein shall have the meanings ascribed to such terms in the Declaration.

Section 4.  Office.  The Office of the Association and of the Board of Managers shall be located at the Building

Section 5.  Fiscal Year.  The fiscal year of the Association shall be the calendar year unless otherwise determined by the Board of Managers.

ARTICLE II

UNIT OWNER MEETINGS AND VOTES

Section 1.  Annual Meetings.  Within thirty (30) days after the date on which the Declaration shall be recorded in the Register’s Office, Declarant shall call the first annual Unit Owners’ meeting.  Thereafter, annual meetings shall be held on the anniversary of such date in each succeeding year, or on such other date as shall be selected by the Unit Owners.  A representative of Ground Lessee and of each Registered Mortgagee may attend any such meeting.

Section 2.  Special Meetings.  Special meetings of the Unit Owners may be called at any time by any Unit Owner, by the President or by any Vice President. A representative of Ground Lessee and of each Registered Mortgagee may attend any such meeting.

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Section 3.  Notice of Meetings.  The President or the Secretary shall mail a notice of each annual or special meeting, stating the purpose thereof as well as the time and place where it is to be held, to each Unit Owner of record, to Ground Lessee and to each Registered Mortgagee, at least ten (10) but not more than thirty (30) days prior to such meeting.  Notice of any meeting need not be given to a Unit Owner who submits a waiver of notice, in person or by proxy, whether before or after the meeting, or who attends such meeting, in person or by proxy.  Notice of any meeting need not be given to Ground Lessee or a Registered Mortgagee if Ground Lessee or such Registered Mortgagee submits a waiver of notice, whether before or after the meeting, or if a representative of Ground Lessee or of such Registered Mortgagee attends such meeting.

Section 4.  Place of Meetings.  Meetings shall be held at the Condominium Office in the Building, or at such other place (in New York County) as shall be selected by the Board of Managers.

Section 5.  Quorum.  (a) A quorum shall be present if a Majority in Interest of the Unit Owners (and/or their respective Registered Mortgagees and/or Ground Lessee) entitled to vote shall be present (in person or by proxy) at a meeting of the Unit Owners.

(b) If a quorum (as described in the preceding paragraph) shall not be present or represented at any meeting of the Unit Owners, the Unit Owner(s) or person(s) entitled to vote thereat (as described in the preceding paragraph), present in person or represented by written proxy, shall have the power to adjourn the meeting from time to time, without notice other than (i) announcement of such adjournment at the meeting and (ii) notice of such adjournment to each Unit Owner not in attendance at the adjourned meeting.  Any business which might have been transacted at the meeting originally noticed may be transacted at any adjourned meeting.

Section 6.  Voting.  (a) Each Unit Owner shall be entitled to one (1) vote and all decisions must be approved by a Majority in Interest of the Unit Owners, unless otherwise provided in the Declaration or these By-Laws.

(b)  Each Unit Owner may empower any Person to vote as the proxy of such Unit Owner at any meeting of Unit Owners by written proxy or authorization filed with the Secretary.  Such written proxy or authorization, unless specially limited by its terms, shall remain effective until there shall be filed with the Secretary a written revocation of the same or a written proxy or authorization of later date.

(c)  As provided in Section 4 of Article XXI of the Declaration, at any time following and during the continuance of an Event of Default, the defaulting Unit Owner shall not be entitled to vote on any matter before (or action or decision to be taken by) the Unit Owners.  In addition (i) as provided in *[WRONG CROSS REFERENCE; FIX]* Section 2(f) of Article XX of the Declaration, a Registered Mortgagee may, under the circumstances described in such section of the Declaration, vote on matters before (or actions or decisions to be taken by) the Unit Owners, and (ii) as provided in Section 5(b) of Article XXI of the Declaration, Ground Lessee may, under the circumstances described in such section of the Declaration, vote on matters before (or actions or decisions to be taken by) the Unit Owners.

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hundred five percent (105%) of the last Budget approved by the Unit Owners, except (i) [TEXT DELETED: OR OTHER ITEMS AND/OR IN SUCH OTHER AMOUNTS (REGARDLESS OF THE AMOUNT FOR SUCH ITEM SET FORTH IN THE LAST APPROVED BUDGET) FOR THOSE ITEMS THE COST OF WHICH ARE] *THAT LINE ITEMS IN A NEW BUDGET MAY EXCEED SUCH 105% CAP TO THE EXTENT A HIGHER COST IS* reasonably established (such as utilities, insurance and real estate taxes or PILOT), (ii) to replace or repair broken or worn out items (regardless of the amount thereof) as necessary to maintain the Building as a high-rise premium first-class office building, (iii) to comply with DUO as the same pertains to the Common Elements and (iv) to comply with the Site 8 South Subway Agreement.

Section 11.  Rights, Privileges and Obligations of the NYTC Unit Owners.  All of the rights, privileges and obligations of the Unit Owners and the Board of Managers set forth in Sections 1 through 10 of this Article II shall apply equally to the NYTC Unit Owners and NYTC Board of Managers, respectively, with respect to the NYTC Limited Common Elements as if the NYTC Unit Owners were the Unit Owners, the NYTC Board of Managers were the Board of Managers, the NYTC Limited Common Elements were the Common Elements and a Majority in Interest of the NYTC Unit Owners were a Majority in Interest of the Unit Owners.

Section 12.  Rights, Privileges and Obligations of the FC Unit Owners.  All of the rights, privileges and obligations of the Unit Owners and the Board of Managers set forth in Sections 1 through 10 of this Article II shall apply equally to the FC Unit Owners and FC Board of Managers, respectively, with respect to the FC Limited Common Elements as if the FC Unit Owners were the Unit Owners, the FC Board of Managers were the Board of Managers, the FC Limited Common Elements were the Common Elements and a Majority in Interest of the FC Unit Owners were a Majority in Interest of the Unit Owners.

ARTICLE III

BOARD OF MANAGERS; NYTC BOARD OF MANAGERS; FC BOARD OF MANAGERS

Section 1.  A.  Number – Qualifications.

(i)  Board of Managers.  There shall be a Board of Managers of the Association consisting of nine (9) Managers, which Managers shall be appointed pursuant to the following formula, and notice of such appointments shall be delivered promptly to the Unit Owners:

(a)The Retail Unit Owner shall appoint one (1) Manager;

(b)The NYTC Board of Managers (on behalf of the NYTC Unit Owners) shall appoint five (5) Managers; and

(c)The FC Board of Managers (on behalf of the FC Unit Owners) shall appoint three (3) Managers.

The initial Board of Managers shall be:

(a)                                 , appointed by the Retail Unit Owner;

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Section 9.  The Treasurer.  The Treasurer shall have custody of the funds of the Association and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Association.  The Treasurer of the Association shall cause all monies and other valuable effects to be deposited in the name and to the credit of the Association in such depositories as may be designated by the Board of Managers.  The Treasurer shall cause the funds of the Association to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements, and shall render to the President and the Board of Managers, whenever requested, (a) an account of all transactions as Treasurer and of the financial condition of the Association, and (b) true copies of all financial statements and/or reports prepared by the Association’s accountants.  The Treasurer shall, in general, have all powers and perform all duties incident to the office of Treasurer and shall exercise and perform such other powers and duties as may from time to time be assigned by the Board of Managers or the President or prescribed by these By-Laws.  The Treasurer of the NYTC Board of Managers shall have the same rights and obligations with respect to the NYTC Limited Common Elements as the Treasurer of the Board of Managers has in respect of the Common Elements.  The Treasurer of the FC Board of Managers shall have the same rights and obligations with respect to the FC Limited Common Elements as the Treasurer of the Board of Managers has in respect of the Common Elements.

Section 10.  Agreements.  All agreements and other instruments shall be executed by the President or such other person as may be designated by the Board of Managers.

Section 11.  Checks.  All checks or demands for money and notes of the Association shall be signed by both the President and Treasurer, or by such other officer or officers or such other person or persons as the Board of Managers may from time to time unanimously designate.

Section 12.  Compensation.  Officers shall receive no compensation for their services.

ARTICLE V

NOTICES

*INCORPORATE REGISTERED MORTGAGEES INTO NOTICE PROVISION*

Section 1.  Definition.  Whenever under the provisions of the Declaration or these By-Laws, any notice, demand, request or other communication required or permitted hereunder (including any bill, demand or statement) is required to be given to the Board of Managers, the Ground Lessee or any Unit Owner, any such notice shall be in writing and shall be deemed to have been duly given and received (a) if personally delivered with proof of delivery thereof (any notice or communication so delivered being deemed to have been received at the time delivered on a Business Day or, if not a Business Day, the next succeeding Business Day), or (b) by nationally recognized overnight courier (any notice or communication so sent being deemed to have been received on the first succeeding Business Day subsequent to the day so sent), in each case addressed to the Board of Managers or such Unit Owner at such address as appears on the books of the Association or to the Ground Lessee, at the address set forth in Section 20.01 of the Unit Leases or at such other address given to the Board of Managers by notice in accordance with

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the provisions of this Article V.  No notice, demand, request or other communication required or permitted hereunder shall be effective unless given as aforesaid.

Section 2.  Waiver of Notice.  Whenever any notice is required to be given under the provisions of the Declaration, or of these By-Laws, a waiver thereof, in writing, signed by the person or persons entitled to such notice, whether before or after the time stated herein, shall be deemed the equivalent thereof.

ARTICLE VI

INSURANCE

*WILL BE SUBSTITUTED WITH PROVISIONS FROM GMAC’S MORTGAGE CONCERNING INSURANCE, SUBJECT TO ADAPTATION OF DEFINED TERMS, SECTION REFERENCES AND OTHER APPROPRIATE ADAPTATION TO REFLECT THE CONDOMINIUM RATES OF THE BUILDING*

Section 1.  Insurance Requirements.  (a) The Board of Managers shall obtain and maintain the insurance required in this Section 1, and the premiums for all such insurance shall be a Unit Owner Expense to be shared by the Unit Owners in proportion to their respective Common Interests: (1) fire insurance with all risk coverage, vandalism and malicious mischief endorsements, insuring the Common Elements and covering the interests of the Association, the Board of Managers and all Unit Owners and their Registered Mortgagees, as their respective interests in the Common Elements may appear, in an amount equal to 100% of the full replacement value of the portions of the Building required to be insured against loss or damage pursuant to this clause (1) (exclusive of foundations and footings), without deduction for depreciation; (2) workers’ compensation insurance, New York State disability benefits insurance and employer’s liability coverage covering any employees of the Association; (3) boiler and machinery insurance on equipment constituting part of the Common Elements; (4) commercial general liability coverage, or equivalent liability coverage, with respect to ownership, operation, maintenance, use and control against liability for injury or damage to persons or property in or upon the Common Elements, including the sidewalks; (5) water damage insurance; (6) combination crime insurance, including blanket employee dishonesty, forgery or alteration, covering the Board of Managers, officers of the Association, any employees of the Board of Managers and the Association and also covering the managing agent, if any; (7) directors’ and officers’ liability insurance for members of the Board of Managers and officers of the Association; and (8) any other insurance deemed advisable or necessary by the Board of Managers or usually maintained by owners of property similar to the Premises (to the extent same relates to the Common Elements or matters affecting the Board of Managers, as opposed to matters relating to the Units exclusively).  To the extent not specified above, all such insurance shall be in such amounts as the Board of Managers shall from time to time determine to be reasonable (it being understood, however, that the liability insurance policy to be maintained by the Board of Managers as described in clause (4) hereof shall not in any event be in an amount less than                Dollars ($             )(4) in the aggregate and per occurrence).

(b) All policies of property insurance shall contain, if obtainable at reasonable rates, an “Agreed Amount” endorsement.  Duplicate originals of all policies of property insurance and of all renewals thereof, together with proof of payment of premiums, shall be

(4) To be completed at time of execution

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EX-10.3

Exhibit 10.3

EXECUTION COPY

BUILDING LOAN AGREEMENT

By and Among

THE NEW YORK TIMES BUILDING LLC
having an address at
One MetroTech Center North
Brooklyn, New York  11201

(Borrower)

NEW YORK STATE URBAN DEVELOPMENT CORPORATION
d/b/a EMPIRE STATE DEVELOPMENT CORPORATION
having an address at
633 Third Avenue
New York, New York  10017
as initial agent
(Initial Agent)

and

GMAC COMMERCIAL MORTGAGE CORPORATION
having an address at
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606,
as agent
(Agent)

Dated as of  June 25, 2004

Amount: $170,529,479

Property Location:	Eighth Avenue between 40th and 41st Street, New York, New York
Lots:	1, 5, 8, 14, 53 , 59, 61, 62, 63 and part of 15
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.

TABLE OF CONTENTS

ARTICLE 1 TERMS AND DEFINITIONS
ARTICLE 2 BUILDING LOAN DOCUMENTS
SECTION 2.01	Building Loan Notes
SECTION 2.02	Building Loan Mortgage
SECTION 2.03	Construction Loan Disbursement Agreement
SECTION 2.04	Assignments of Contracts
SECTION 2.05	Assignment of Leases
SECTION 2.06	Guaranties
SECTION 2.07	Fee Side Letter
SECTION 2.08	Disclosure Side Letter
ARTICLE 3 AGREEMENT TO LEND AND PAYMENT OF BUILDING LOAN
SECTION 3.01	Advances
SECTION 3.02	Cost Overruns
SECTION 3.03	Contingency Reserves
SECTION 3.04	Stored Materials
SECTION 3.05	Amount of Each Advance
SECTION 3.06	Insufficiency of Loan Proceeds
SECTION 3.07	Quality of Work
SECTION 3.08	Initial Required Equity Funds; Net Proceeds; Net Award or Proceeds
SECTION 3.09	Payment of Indebtedness
SECTION 3.10	Payment of Interest
SECTION 3.11	Late Charge
SECTION 3.12	Prepayment
SECTION 3.13	Increased Costs
SECTION 3.14	Illegality and Inability to Determine
SECTION 3.15	Payments and Computations
SECTION 3.16	Net Payment; Taxes
SECTION 3.17	Distribution to Lenders
SECTION 3.18	Balloon Payment
SECTION 3.19	Extensions
SECTION 3.20	Reallocations
ARTICLE 4 CONDITIONS PRECEDENT TO BUILDING LOAN CLOSING AND DISBURSEMENT OF LOAN PROCEEDS
SECTION 4.01	Conditions of Building Loan Closing
SECTION 4.02	Conditions of Advances
SECTION 4.03	Conditions of Final Construction Advance
SECTION 4.04	Contributions of Initial Required Equity Funds
SECTION 4.05	Interest Advances

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ARTICLE 5 METHOD OF DISBURSEMENT OF LOAN PROCEEDS
SECTION 5.01	Administration
SECTION 5.02	Procedure for Advances
SECTION 5.03	Funds Advanced; Capitalized Interest
SECTION 5.04	Advances Do Not Constitute a Waiver
SECTION 5.05	Trust Fund Provisions
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 6.01	Validity of Building Loan Documents
SECTION 6.02	Title
SECTION 6.03	Absence of Conflicts
SECTION 6.04	Pending Litigation
SECTION 6.05	Legal Requirements
SECTION 6.06	Compliance with All Legal Requirements
SECTION 6.07	Organization Status and Authority
SECTION 6.08	Availability of Utilities
SECTION 6.09	Condition of Property
SECTION 6.10	Accuracy of Documents
SECTION 6.11	Encroachments
SECTION 6.12	Brokerage Commissions
SECTION 6.13	Financial Statements and Other Information
SECTION 6.14	Tax Returns
SECTION 6.15	Material Contracts
SECTION 6.16	Guaranteed Maximum Price Contract
SECTION 6.17	Access
SECTION 6.18	No Default
SECTION 6.19	Architect’s Contract
SECTION 6.20	Plans and Specifications
SECTION 6.21	Budgets
SECTION 6.22	Feasibility
SECTION 6.23	Lien Law Affidavit
SECTION 6.24	Governmental Approvals and Third Party Approvals
SECTION 6.25	No Liens
SECTION 6.26	Separate Tax Lot(s)
SECTION 6.27	Margin Stock
SECTION 6.28	Foreign Person
SECTION 6.29	ERISA
SECTION 6.30	Employees
SECTION 6.31	Flood Zone
SECTION 6.32	Investment Company Act
SECTION 6.33	Assessments
SECTION 6.34	Property Taxes and Other Charges

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SECTION 6.35	No Bankruptcy Filing
SECTION 6.36	Filing and Recording Taxes
SECTION 6.37	Fraudulent Transfer
SECTION 6.38	Insurance Compliance
SECTION 6.39	Name; Taxpayer Identification Number
SECTION 6.40	Leases
SECTION 6.41	Interest Rate Protection Agreements
SECTION 6.42	Prior Construction
SECTION 6.43	Equity Contribution
SECTION 6.44	Borrower LCs
ARTICLE 7 COVENANTS OF BORROWER
SECTION 7.01	Guaranteed Maximum Price Contract; GMP Guaranty
SECTION 7.02	Architect’s Contract
SECTION 7.03	Insurance
SECTION 7.04	Application of Funds
SECTION 7.05	Property Taxes
SECTION 7.06	Reimbursable Costs, Transaction Costs and Other Fees and Costs
SECTION 7.07	Completion of Construction
SECTION 7.08	Right of Agent to Inspect Property; Publicity
SECTION 7.09	Construction Consultant
SECTION 7.10	Correction of Defects
SECTION 7.11	Plans and Specifications; Approval of Change Orders; Cost Savings
SECTION 7.12	Appraisal
SECTION 7.13	Material Contracts; Approval of Activities
SECTION 7.14	Leases
SECTION 7.15	Books and Records
SECTION 7.16	Financial Statements and Other Information
SECTION 7.17	Compliance with Legal Requirements
SECTION 7.18	Title
SECTION 7.19	Maintain Existence
SECTION 7.20	Interest Rate Caps
SECTION 7.21	Further Assurance
SECTION 7.22	Budgets, Etc.
SECTION 7.23	Zoning, Easements and Restrictions; Use; Alterations
SECTION 7.24	Laborers, Subcontractors and Materialmen
SECTION 7.25	Ownership of Personalty
SECTION 7.26	Comply with Other Building Loan Documents
SECTION 7.27	Purchase of Material Under Conditional Sale Contract
SECTION 7.28	Illegal Activities

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SECTION 7.29	Indemnification
SECTION 7.30	Condominium
SECTION 7.31	Developer
SECTION 7.32	No Transfers or Encumbrances
SECTION 7.33	No Distributions
SECTION 7.34	Estoppels
SECTION 7.35	Extension Loan Documents
SECTION 7.36	Single Purpose Entity
SECTION 7.37	Labor Harmony
SECTION 7.38	Required Notices
SECTION 7.39	Protection Against Liens
SECTION 7.40	Concrete, Soil and Other Tests
SECTION 7.41	ERISA
SECTION 7.42	Name; Chief Executive Office
SECTION 7.43	No Joint Assessment
SECTION 7.44	Permitted Affiliate Contracts
SECTION 7.45	Payment and Performance Bonds
SECTION 7.46	NYTC Units Release Provisions
SECTION 7.47	Security Personnel
SECTION 7.48	Section 22 Affidavit
SECTION 7.49	Compliance with Condominium Documents
SECTION 7.50	Redemption of FC Units
SECTION 7.51	Title Insurance Proceeds
SECTION 7.52	No Indebtedness
SECTION 7.53	Equity Contribution
SECTION 7.54	Borrower LCs
SECTION 7.55	Additional Covenants Relating to Ground Lease
SECTION 7.56	Deliveries
SECTION 7.57	Pledged Accounts
ARTICLE 8 THE AGENT
SECTION 8.01	Actions
SECTION 8.02	Non-Liability of Agent and Lenders
SECTION 8.03	Authorization and Action
SECTION 8.04	Agent’s Reliance, Etc
SECTION 8.05	Payments to Lenders
SECTION 8.06	Construction Consultant
SECTION 8.07	Actions of Agent Binding Upon Lenders
SECTION 8.08	Initial Agent
ARTICLE 9 EVENTS OF DEFAULT
SECTION 9.01	Events of Default

iv

ARTICLE 10 RIGHTS AND REMEDIES OF LENDERS
SECTION 10.01	Remedies
SECTION 10.02	Power of Attorney
SECTION 10.03	Remedies Cumulative
SECTION 10.04	Annulment of Defaults
SECTION 10.05	Waivers
SECTION 10.06	Course of Dealing, Etc.
SECTION 10.07	Bankruptcy
ARTICLE 11 GENERAL CONDITIONS
SECTION 11.01	Rights of Third Parties
SECTION 11.02	Relationship
SECTION 11.03	Evidence of Satisfaction of Conditions; Approval Standard
SECTION 11.04	Notices
SECTION 11.05	Assignment
SECTION 11.06	Successors and Assigns Included in Parties
SECTION 11.07	Headings
SECTION 11.08	Invalid Provisions to Affect No Others
SECTION 11.09	Interpretation
SECTION 11.10	Computation of Time Periods
SECTION 11.11	Governing Law
SECTION 11.12	Consent to Jurisdiction
SECTION 11.13	Amendments
SECTION 11.14	Counterparts
SECTION 11.15	Entire Agreement
SECTION 11.16	Recourse
SECTION 11.17	Statute of Limitations
SECTION 11.18	Remedies of Borrower Entities
SECTION 11.19	Time of the Essence
SECTION 11.20	Survival
SECTION 11.21	Usury
SECTION 11.22	Successive Actions
SECTION 11.23	Confidentiality
SECTION 11.24	Reinstatement of Obligations
SECTION 11.25	Facsimile Signatures

v

EXHIBITS AND SCHEDULES

Exhibit A	The Land
Exhibit B	Permitted Exceptions
Exhibit C	Certificate of Non-Bank Status
Exhibit D	Form of Condominium Subordination Agreement
Exhibit E	Draw Request
Exhibit F	Description of Improvements
Exhibit G	Lien Law Affidavit
Exhibit H	Form of Non-Disturbance Agreement
Exhibit I	Architect’s Certificate
Exhibit J	General Contractor’s Certificate
Exhibit K	Form of Estoppel Certificate
Exhibit L	Form of Lien Waiver
Exhibit M	Form of Assignment of Interest Rate Cap
Exhibit N	Condominium Title Endorsement
Exhibit O	Title Company Assurance Letter
Exhibit P	Conditional Assignment of Declarant’s Rights
Exhibit Q	Conditional Resignation of Managers
Exhibit R	Form of Extension Loan Intercreditor Agreement
Exhibit S	Form of Security Deposit Accounts Agreement
Exhibit T	Form of Collection Accounts Agreement
Schedule 1	Required Equity Funds Allocation Schedule
Schedule 2	Interest Rate Cap Schedules
Schedule 3	Availability of Utilities
Schedule 4	Governmental Approvals and Third Party Approvals
Schedule 5	Leases

vi

BUILDING LOAN AGREEMENT

THIS BUILDING LOAN AGREEMENT (as the same may be revised, restated, amended or modified from time to time, this “Agreement”) is made and entered into as of this 25th day of June, 2004 by and among THE NEW YORK TIMES BUILDING LLC (including any successors and assigns permitted in accordance with the terms hereof, “Borrower”), a New York limited liability company, with an address at One MetroTech Center North, Brooklyn, New York 11201, NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an address at 633 Third Avenue, New York, New York 10017, as initial agent (“Initial Agent”) for itself and for the benefit of the lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders” and each individually a “Lender”) and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation, with an office at 100 South Wacker Drive, Suite 400, Chicago, Illinois 60606 or any successor thereto, as agent (including as successor to Initial Agent) (including any of its successors and assigns as agent, “Agent”) for itself and on behalf of Lenders.

W I T N E S S E T H:

In consideration of the mutual covenants and agreements hereinafter set forth, each Lender severally agrees to lend its ratable (as hereinafter defined) share of the Building Loan (as hereinafter defined), and Borrower agrees to accept the Building Loan in accordance with and subject to the terms and conditions hereinafter set forth.

ARTICLE 1

TERMS AND DEFINITIONS

In addition to the other terms hereinafter defined, the following terms shall have the meanings set forth in this Article.  References to documents, exhibits, schedules and other materials shall include those documents, exhibits, schedules and materials as they may be revised, restated, amended, replaced and modified from time to time in accordance with the terms of this Agreement or the other Building Loan Documents.

“Acceleration Date” means a date (other than the Maturity Date) on which the entire principal amount of the Building Loan and all accrued and unpaid interest thereon shall be paid or be required to be paid in full, whether by prepayment, acceleration or otherwise in accordance with the terms of this Agreement or any of the other Building Loan Documents or by operation of law.

“Acceptable Developer” means a Person whose principals have developed or built (either for such Person, any Affiliate thereof or any other Person), in the aggregate and without including the Project at least 5,000,000 rentable square feet of space, of which at least 2,000,000 rentable square feet was “Class A” high-rise office

space in New York City.  From and after the date that Substantial Completion has been achieved, the reference in the preceding sentence to “developed or built” shall be deemed to be a reference to “operated and leased.”

“Acceptable Rating” means a long-term debt rating of not less than BBB+ (without a negative outlook) by S&P.

“Additional Interest Line Items” has the meaning given to such term in Section 7.11 hereof.

“Administration Fee” has the meaning given to such term in the Side Letter re:  Fees.

“Advance” or “Advances” means any disbursement of the proceeds of the Building Loan by Lenders pursuant to the terms of this Agreement and any other amounts that constitute an Advance in accordance with Section 3.05(e) hereof.

“Affiliate” means, as to any Person, any other Person which directly or indirectly Controls, is Under Common Control With, or is Controlled by, such Person and, if such Person is an individual, any Immediate Family Members of such individual, any trust whose principal beneficiary is such individual or one or more Immediate Family Members of such individual, and any Person who is controlled directly or indirectly by any such Immediate Family Member or trust.

“Agent” has the meaning given to such term in the opening paragraph of this Agreement.

“Agent Decisions” has the meaning given to such term in Section 8.03(a) hereof.

“Agent’s Register” has the meaning given to such term in Section 11.05(a) hereof.

“Appraisal” shall have the meaning set forth in Section 4.01(m) hereof.

“Appraised Value” means the fair-market value, assuming stabilization has been achieved, of the FC Units or the Mortgaged Property, as applicable, as set forth in the Appraisal, any update thereto or any new appraisal thereof.

“Approved Lease”means an executed Permitted Lease which is in full force and effect as of the relevant date and under which no material default, default of which notice has been given, or event of default by either party exists as of the relevant date.

“Architect’s Certificate” has the meaning given to such term in Section 4.01(i)(12) hereof.

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“Architect’s Contract” means that certain Contract for Architectural Services, dated as of October 3, 2001 among FC 41st Street Associates, LLC (“FC 41st Street”), NYTC Member, Fox & Fowle Architects, PC (“Lead Architect”) and Renzo Piano Building Workshops, S.E.L.A.F.A., as deemed to have been assigned by FC 41st Street and NYTC Member to Borrower pursuant to Section 14.3 thereof.

“Assignment” has the meaning given to such term in Section 11.05(a) hereof.

“Assignment and Acceptance Agreement”has the meaning given to such term in Section 11.05(a) hereof.

“Assignment of Contracts - Borrower” has the meaning given to such term in Section 2.04(a) hereof.

“Assignment of Contracts - FC” has the meaning given to such term in Section 2.04(b) hereof.

“Assignment of Contracts - NYTC” has the meaning given to such term in Section 2.04(c) hereof.

“Assignment of Interest Rate Cap” has the meaning given to such term in Section 4.02(e)(7) hereof.

“Assignments of Contracts” means, collectively, the Assignment of Contracts - Borrower, the Assignment of Contracts - FC and the Assignment of Contracts - NYTC.

“Bankruptcy Assignee” has the meaning given to such term in Section 9.01(g)(i) hereof.

“Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time.

“Bankruptcy Law” has the meaning given to such term in Section 9.01(g)(i) hereof.

“Base Rate” means a fluctuating interest rate per annum in effect from time to time as announced in The Wall Street Journal as the “prime rate.”  In the event that (i) more than one such “prime rate” is published, the average of such rates shall apply or (ii) no such “prime rate” is published, then the Base Rate shall be determined from such comparable financial reporting company as Agent shall reasonably determine.

“Borrower” has the meaning given to such term in the opening paragraph of this Agreement.

 “Borrower Entities” means Borrower, the Members, FC Guarantor and NYTC Guarantor, collectively.

3

“Borrower LC Deposit” has the meaning given to such term in Section 7.54 hereof.

“Borrower LCs” means the letters of credit posted from time to time by Borrower or any of its direct or indirect members in connection with the Land Acquisition Agreement, as the same may be increased or decreased in accordance with the Land Acquisition Agreement.

“Borrower’s Architects” means the architects under the Architect’s Contract and any successor or assign thereof approved in accordance with Section 7.13 hereof.

“Borrower’s Bank” means a bank selected by Borrower and approved by Agent, such approval not to be unreasonably withheld.

“Breakage Costs” has the meaning given to such term in Section 3.12(a) hereof.

“Breakeven Leasing” means a Pro Forma Debt Service Coverage Ratio equal or greater than 1.00:1.00, provided that for purposes of calculating Pro Forma Debt Service for purposes of this definition, (x) subclause (a) of clause (z) of the definition of Pro Forma Debt Service shall always be used and (y) all references in the definitions of Pro Forma Operating Expenses and Pro Forma Operating Income to the Mortgaged Property shall be deemed to be references to the Mortgaged Property other than the NYTC Units.

“Brokerage Commissions” has the meaning given to such term in Section 6.12 hereof.

“Budget” means either the FC Units Budget or the NYTC Units Budget, each of which has been approved by Agent in the Disclosure Side Letter and “Budgets”means both of the foregoing Budgets, collectively, as any of the same may be adjusted in accordance with this Agreement.  The Budgets contain both Building Loan Costs and Project Loan Costs.

“Building Loan” means the loan which is the subject of this Agreement.

“Building Loan Amount” means $170,529,479.

“Building Loan Assignment of Leases” has the meaning given to such term in Section 2.05 hereof.

“Building Loan Contingency” means, collectively, the Building Loan Contingency (Hard Costs) and the Building Loan Contingency (Soft Costs) as set forth in the applicable Budget.

“Building Loan Contingency (Hard Costs)” means the respective amounts set forth in each Budget as a contingency reserve for Hard Costs, which amounts

4

shall, in the aggregate, be no less than 4.205% of the Hard Costs (subject to reduction in accordance with the terms hereof).

“Building Loan Contingency (Soft Costs)” means the respective amounts set forth in each Budget as a contingency reserve for “soft costs” of construction which are Costs of the Improvement, which amounts shall, in the aggregate, together with the Project Loan Contingency (as defined in the Project Loan Agreement) be no less than three percent (3%) of the sum of (a) the “soft costs” of construction under the Building Loan that are Costs of the Improvement and (b) the “soft costs” of construction under the Project Loan (subject to reduction in accordance with the terms hereof).

“Building Loan Costs” means, without duplication, (i) all costs and expenses of (a) achieving Final Completion of the Project and Stabilized Occupancy, (b) satisfying the obligations of the Borrower Entities to Agent and Lenders under the Loan Documents, (c) the payment of interest on the Equity Contribution, to the extent the Extension Loan is made, and the payment of interest on the Extension Loan, and (d) Assignments of the Loans (to the extent Borrower is liable therefor pursuant to Section 7.06 hereof) and (ii) all other actual or anticipated non-construction costs payable through the maturity of the Building Loan and necessary to achieve Final Completion of the Project and Stabilized Occupancy (including, without limitation, from and after the date, if any, that either option described in Section 3.19(a) hereof is exercised, that portion of the Extension Fee relating to such option attributable to the Building Loan), but only to the extent, in each of the foregoing clauses (i) and (ii), such costs and expenses are Costs of the Improvement.

“Building Loan Documents” means, collectively, this Agreement, all documents referred to in Article 2 hereof and all other agreements and documents executed and delivered or in the future executed and delivered by any Borrower Entity to or for the benefit of Agent and Lenders in connection with the Building Loan or in connection with the Building Loan and the Project Loan (including each Draw Request and the Sworn Owner’s Statement that is a part thereof and any Interest Rate Cap and Assignment of Interest Rate Cap).  Notwithstanding the foregoing, the NYTC Completion Guaranty, Extension Loan Intercreditor Agreement, Extension Loan Documents and Equity Contribution Documents are not Building Loan Documents.  A Building Loan Document may, or may not, also be a Project Loan Document.

“Building Loan Indebtedness” means, “Indebtedness” as defined in the Building Loan Mortgage.

“Building Loan Mortgage” has the meaning given to such term in Section 2.02 hereof.

“Building Loan Notes” has the meaning given to such term in Section 2.01 hereof.

“Building Loan Obligations” means “Obligations” as defined in the Building Loan Mortgage.

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“Business Day” means a day other than (i) Saturday, (ii) Sunday, or (iii) a day on which commercial banks in the State of New York are authorized or required by law to close.

“Certificate of Non-Bank Status” means a certificate substantially in the form of Exhibit C attached hereto.

“Change in Control” shall mean the occurrence of any one of the following events, voluntarily or involuntarily, singly or in conjunction with another event, and whether in one or more transactions: (a) with respect to a Person which is a corporation, (i) a single Person (or a group of Persons acting in concert) directly or indirectly becomes the legal or beneficial owner of 50% or more of the voting stock of such corporation, (ii) a single Person (or a group of Persons acting in concert) through a merger, consolidation or otherwise, directly or indirectly acquires the power to direct (or cause the direction of) or approve the management or policies of such corporation or (iii) unless the common stock of such corporation is publicly traded on a recognized exchange, a majority of the members of the board of directors of such corporation are no longer members of the board of directors of such corporation; (b) with respect to a Person which is a general or limited partnership or a limited liability company, (i) the change, removal or resignation of a general partner, manager or managing member, or joint venturer (other than a joint venturer which is solely a limited partner or a non-managing member) or the transfer or pledge of all or any portion of the direct or indirect ownership or economic interest of any general partner, manager or managing member, or joint venturer (other than a joint venturer which is solely a limited partner or a non-managing member), (ii) a single Person (or a group of Persons acting in concert) directly or indirectly becomes the legal or beneficial owner of 50% or more of the equity interests in such partnership or limited liability company, as the case may be, or a general partner, manager or managing member, or joint venturer thereof which is a general partner, manager or managing member, or (iii) a single Person (or a group of Persons acting in concert) through a merger, consolidation or otherwise, directly or indirectly acquires the power to direct (or cause the direction of) or approve the management or policies of such partnership or company; (c) with respect to any other type of Person, (i) a single Person (or a group of Persons acting in concert) directly or indirectly becomes the legal or beneficial owner of 50% or more of the equity interests in such Person or (ii) a single Person (or a group of Persons acting in concert) directly or indirectly acquires the power to direct (or cause the direction of) or approve the management or policies of such Person; or (d) with respect to any Person, any transfer of legal or beneficial ownership of 50% or more of the direct or indirect equity interests in such Person.

“Change Order” has the meaning given to such term in Section 7.11 hereof.

“Claim” has the meaning given to such term in Section 7.29(a) hereof.

“Closing Date” means the date upon which this Agreement is executed and delivered by Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.

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“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“Collection Accounts” has the meaning given to such term in the Collection Accounts Agreement.

“Collection Accounts Agreement” has the meaning given to such term in Section 7.57 hereof.

“Commitment Letter” means that certain letter issued by Agent dated May 7, 2004 and accepted by Borrower as of such date.

“Common Elements Leasable Space” has the meaning given to such term in the Condominium Documents.

“Completion Date” has the meaning given to such term in the Operating Agreement.

“Completion Deposit” has the meaning given to such term in Section 3.06 hereof.

“Condominium Act” means Article 9-B of the New York Real Property Law (339-d et seq.) of the State of New York and all modifications, supplements and replacements thereof and all regulations with respect thereto, now or hereafter enacted or promulgated.

“Condominium By-Laws” means the By-Laws substantially in the form attached as part of Exhibit E to the Operating Agreement, as the same is to be modified and finalized in accordance with the First Amendment and this Agreement.  From and after the execution of the Condominium Declaration, “Condominium By-Laws” shall refer to the By-Laws attached to such executed Condominium Declaration.

“Condominium Declaration” means that certain Declaration of Leasehold Condominium (and all exhibits thereto) with respect to the condominium regime governing the entire Premises in substantially the form attached as Exhibit E to the Operating Agreement, as the same is to be modified and finalized in accordance with the First Amendment and this Agreement.  From and after the date on which such form has been executed, “Condominium Declaration” shall refer to such executed document.

“Condominium Documents” means the Condominium Declaration, the Condominium By-Laws and the Condominium Floor Plans.

“Condominium Floor Plans” means the floor plans of the Project certified by Borrower’s Architects and intended to be filed with the Real Property Assessment Department and recorded in the Office of the City Register of New York County simultaneously with the recordation of the Condominium Declaration.  From and

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after the date on which such floor plans are so filed and recorded, “Condominium Floor Plans” shall refer to such recorded floor plans.

“Condominium Subordination Agreement” means a subordination agreement executed by Agent, for itself and on behalf of Lenders, substantially in the form of Exhibit D hereto.

“Construction Consultant” means Inspection & Valuation International, Inc. or, with the prior consent of Borrower, such consent not to be unreasonably withheld or delayed, such other replacement consulting architect(s), engineer(s) or inspector(s) selected by Agent (with the consent of the Majority Lenders).

“Construction Loan Disbursement Agreement” has the meaning given to such term in Section 2.03 hereof.

“Construction Schedule” means the schedule, approved by Agent in the Disclosure Side Letter, broken down by trade, showing the estimated dates of commencement and completion of the Project as well as various interim milestones.

“Control,” “Controlled by” and “Under Common Control With” means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of the Person in question (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise), provided that, in any event, any Person (i) which owns directly or indirectly twenty percent (20%) or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation or twenty percent (20%) or more of the partnership or other ownership interests of any other Person or (ii) which is a general partner, manager or managing member, director, officer or trustee of a corporation or any other Person, shall be deemed to control such corporation or other Person.

“Core and Shell” has the meaning given to such term in the Architect’s Contract.

“Core and Shell Completion” means the substantial completion of the core and shell (including, without limitation, all of the elements that comprise Core and Shell) of the Project in substantial accordance with the Plans and Specifications, as reasonably determined by Agent and Construction Consultant.

“Cost Allocation Methodology”means, with respect to allocating costs, Project Loan Costs and Building Loan Costs as between the FC Units and the FC Units Budget, on the one hand, and the NYTC Units and the NYTC Units Budget, on the other hand, the “Allocation Methodology” as defined in the Operating Agreement.

“Costs of the Improvement” means those items defined as cost of improvement under Section 2(5) of the Lien Law.

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“Default” means any event which but for the passage of time or giving of notice or both, would constitute an Event of Default.

“Default Rate” means a rate per annum equal to the lesser of (i) the Interest Rate plus five hundred basis points (5.00%) per annum, and (ii) the Maximum Rate.

“Defaulting Lender” has the meaning given to such term in Section 5.02(c) hereof.

“Deficiencies” has the meaning given to such term in Section 5.02(c) hereof.

“Developer” means Forest City Ratner Companies.

“Development Agreement-ING” means that certain Development Agreement, dated as of December 12, 2001 among FC Member, Developer and ING Member.

“Development Agreement-NYTC” means that certain Development Agreement, dated as of December 12, 2001, among Borrower, NYTC Member, FC Member and Developer.

“Development Agreements” means, collectively, Development Agreement-NYTC and Development Agreement-ING.

“Development Cost” means the $1.6 million Development Distribution (as defined in the Development Agreement ING), which Development Distribution is shown in the FC Units Budget as the $1.6 million “Development Costs” line item.

“Development Cost Line Item” means the line item in the FC Units Budget containing the Development Cost.

“Disbursement Agent” has the meaning given to such term in the Construction Loan Disbursement Agreement.

“Disbursement Schedule” means the schedule approved by Agent in the Disclosure Side Letter of the amounts of Advances anticipated to be requisitioned by Borrower each month during the term of the Building Loan, indicating the timing of disbursements anticipated with respect to each Budget.

“Disclosure Side Letter” has the meaning given to such term in Section 2.08 hereof.

“Draw Request” means, with respect to each Advance and each “Advance” (as defined in the Project Loan Agreement), Borrower’s request for such Advance and such “Advance” substantially in the form attached hereto as Exhibit E, fully completed and certified by Borrower.

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“DUO Declaration” means the Site 8 South Declaration of Design, Use and Operation by ESDC and Ground Lessor, dated as of December 12, 2001 and recorded in the Office of the City Register of New York County on October 24, 2003 as CRFN# 2003000433121.

“Eligible Assignee” means any of the following entities which has, as of the later to occur of (x) the day that Agent makes a firm proposal on or after the date hereof to such entity for such entity to become a Lender hereunder and (y) ninety (90) days prior to the date that such entity makes a binding acceptance of such offer, (i) an Issuer Financial Strength Rating from S&P of A - or better or, if not rated by S&P, a Senior Unsecured Debt Rating or Issuer Rating from Moody’s of A3 or better or (in the case of clauses (a), (b) and (c) of this definition) (ii) at least $10,000,000,000.00 in assets and at least $1,000,000,000.00 in capital surplus:  (a) a commercial bank or trust company organized under the laws of the United States or any state thereof; (b) a savings and loan association or savings bank organized under the laws of the United States or any state thereof; (c) a commercial bank organized under the laws of any other country or a political subdivision thereof (a “Non-US Lender”); provided that in the case of clause (c) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country; (d) any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act) which extends credit or buys loans as one of its businesses, including, without limitation, insurance companies, mutual funds, real estate investment trusts and pension funds; and (e) any Lender, any Affiliate of any Lender and any First Offer Lender (as defined in the Side Letter re: Fees).  Notwithstanding the foregoing, (1) no real estate “opportunity funds”, hedge funds or lease financing companies shall be Eligible Assignees and (2) any Person that qualifies as an Eligible Assignee but for clauses (i) and (ii) in this definition shall (subject to the foregoing clause (1)) nevertheless be an Eligible Assignee if such Person takes by assignment a fully-funded interest in the Loans.

“Employee Benefit Plan” means any pension plan defined in Section 3(3) of ERISA or any “plan” described in Section 4975(e) of the Code, other than a plan exempt from coverage under ERISA and the provisions of Section 4975 of the Code.

“Equity Contribution” means the equity contributions to be made by NYTC Member to Borrower pursuant to the First Amendment to the Operating Agreement of Borrower dated as of even date herewith and secured by FC Member’s interest in Borrower pursuant to the Equity Contribution Pledge Agreement and bearing interest at the rate set forth therein.

“Equity Contribution Documents”means the Operating Agreement, the Equity Contribution Pledge Agreement and the other documents evidencing or securing the Equity Contribution.

“Equity Contribution Pledge Agreement” means the Pledge and Assignment Agreement entered into by FC Member, pledging its membership interest in Borrower to NYTC Member, dated as of December 12, 2001, as amended by that certain

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First Amendment to Pledge and Assignment Agreement by FC Member in favor of NYTC Member, dated as of even date herewith, as the same may be further amended, modified or supplemented in accordance with both the terms hereof and the terms thereof.

“Equity Infusion” has the meaning given to such term in Section 4.04 hereof.

“Equity Infusion Date” has the meaning given to such term in Section 4.04 hereof.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations and rulings issued thereunder.

“ERISA Affiliate” means each “person” (as defined in Section 3(9) of ERISA) which together with a Borrower Entity would be considered a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“ESDC” means the New York State Urban Development Corporation, doing business as the Empire State Development Corporation.

“Event of Default” has the meaning given to such term in Section 9.01 hereof.

“Exchange Act” means the Securities and Exchange Act of 1934, as amended from time to time, and any successor statute.

“Extension Fee” shall mean a fee equal to three-eighths of one percent (0.375%) of the Remaining Loan Amount.  Lenders shall be entitled to participate in the Extension Fee to the extent set forth in the applicable Assignment and Acceptance Agreement.

“Extension Loan” means the loan contemplated under the Operating Agreement to be made by Extension Loan Lender to FC Member and evidenced by the Extension Loan Documents.

“Extension Loan Documents” means the documents evidencing or securing the Extension Loan and attached as Exhibits Q and S to the Operating Agreement.

“Extension Loan Conditions” means the following five (5) conditions:  (a) FC Member shall have complied with its obligations under the first two sentences of Section 6.03 of the Operating Agreement, as reasonably determined by Agent, (b) Core and Shell Completion shall have been achieved, (c) the Condominium Declaration and Condominium By-Laws shall have been finalized in accordance with the Loan Documents and approved by Agent and each of the Members, (d) the conditions set forth in clauses (1), (3) and (5) of Section 7.46(a) hereof shall have been satisfied and (e) FC

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Member shall have made the “True-Up Payment” described in Section 3.01(c) of the Operating Agreement.

“Extension Loan Intercreditor Agreement” has the meaning given to such term in Section 7.46(a)(11) hereof.

“Extension Loan Lender” means NYTC Guarantor, any direct or indirect wholly-owned subsidiary thereof or, with the consent of the Majority Lenders, any other Person.

“Extension Option Exercise Date” has the meaning given to such term in Section 3.19(a).

“FC 41st Street” has the meaning given to such term in the definition of Architect’s Contract.

“FC Completion Guaranty” has the meaning set forth in Section 2.06(b) hereof.

“FC Guarantor” means Forest City Enterprises, Inc., an Ohio corporation and its permitted successors in accordance with the terms hereof.

“FC Member” means FC Lion LLC, a New York limited liability company and its permitted successors in accordance with the terms hereof.

“FC Non-Recourse Carveouts Guaranty” has the meaning set forth in Section 2.06(a) hereof.

“FC Office Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “FC Office” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “FC Collective Unit” (as defined in the Condominium Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“FC Operating Agreement” means that certain Operating Agreement of FC Member dated as of December 12, 2001 by ING Member and FC 41st Street, as modified by that certain side letter between ING Member and FC 41st Street, dated April 8, 2004.

“FC Retail Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “FC Retail” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “Retail Unit” (as defined in the Condominium

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Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“FC Units” means the FC Office Unit and the FC Retail Unit collectively.

“FC Units Budget” means the budget setting forth the total estimated Building Loan Costs and Project Loan Costs allocable to the FC Units and approved by Agent in the Disclosure Side Letter.  For all purposes hereunder, interest on the Equity Contribution is allocable to the FC Units.

“Final Completion”shall mean, with respect to any Unit or the Project, as the case may be, the occurrence of all of the following applicable events to the satisfaction of Agent:  (a) with respect to any of the Units, Substantial Completion of such Unit, and with respect to the Project, Substantial Completion of the Project; (b) the construction, furnishing and development of such Unit (or the Project) substantially in accordance with the Plans and Specifications and in accordance with the Loan Agreements and the Public Project Agreements, free and clear of any and all liens and claims of any Persons furnishing material, labor or services in connection with the design, furnishing, construction or development of such Unit (or the Project); (c) the payment in full of any and all fees, charges, costs and expenses payable by Borrower to contractors, consultants, materialmen, laborers, suppliers and any other Person engaged in connection with the design, furnishing, construction or development of such Unit (or the Project) so as to complete such Unit (or the Project) in accordance with clause (b) above, and the payment of all permitting fees, licensing fees and other governmental charges payable in connection therewith; (d) with respect to each Unit, the issuance of those certificates of occupancy referred to in clauses (c) and (d) of the definition of Substantial Completion below and the issuance of all other governmental licenses, permits, sign-offs and approvals required to have been obtained for the lawful construction of such Unit substantially in accordance with the Plans and Specifications and necessary for its lawful use; (e) with respect to any Unit, the furnishing of such Unit with all necessary furniture, fixtures and equipment (including “tenant improvement” work) to the extent provided for in the Plans and Specifications or as contemplated by any Budget; (f) with respect to any Unit or the Project, the delivery of final, unconditional lien waivers from all Lien Waiver Parties in form reasonably acceptable to Agent; and (g) with respect to the Project, delivery to Agent of two (2) sets of final “as-built” Plans and Specifications signed and sealed by Borrower’s Architects.

“First Amendment” has the meaning given to such term in the definition of “Operating Agreement.”

“First Extended Maturity Date” has the meaning given to such term in Section 3.19(a) hereof.

“Fiscal Year” shall mean the period commencing on the Closing Date and ending on and including December 31 of the calendar year in which the Closing Date

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occurs and thereafter each twelve-month period commencing on January 1 and ending on December 31 during each year of the term of the Building Loan.

“Fixed Substantial Completion Date” has the meaning given to such term in the Ground Lease.

“Force Majeure Event” means any of the following events, but only to the extent beyond Borrower’s and the General Contractor’s reasonable control:  casualty (including, without limitation, fire); war; invasion; rebellion; revolution; insurrection; riots; an act of government or a quasi-governmental authority; changes in Legal Requirements enacted after the date hereof; earthquakes; hurricanes; tidal waves; inclement weather or any act of God or operation of forces of nature which reasonable foresight and ability on the part of Borrower or the General Contractor could not reasonably prevent or provide against; strikes, lockouts or other employee disturbances or labor disputes (except to the extent such strikes, lockouts or other employee disturbances or labor disputes take place at the Premises only or at the Premises and other projects or properties being developed or constructed by Affiliates of FC Guarantor or General Contractor only); and all other events beyond Borrower’s and the General Contractor’s reasonable control.  Notwithstanding the foregoing, the following events shall in all circumstances not be Force Majeure Events:  economic conditions; recessions; the effects of competition; breaches and all other acts or omissions of the General Contractor, any contractor or subcontractor of any tier or any architect, consultant or other party engaged by Borrower, any other Borrower Entity or the General Contractor; any event with respect to which the General Contractor is not entitled to a time extension under the Guaranteed Maximum Price Contract; and shortages in, the unavailability of, or unusual delays in the delivery of, materials, supplies, labor, equipment or systems (except to the extent caused by another Force Majeure Event).

“Force Majeure Extension Option Exercise Date” has the meaning given to such term in Section 3.19(b) hereof.

“Force Majeure Extension Period” has the meaning given to such term in Section 3.19(b) hereof.

“Future Advance Interest Rate Caps” has the meaning given to such term in Section 7.20 hereof.

“General Contractor” means AMEC Construction Management Inc., a Delaware corporation, and any successor thereto approved in accordance with Section 7.01 hereof.

“General Contractor’s Certificate” has the meaning given to such term in Section 4.01(i)(12) hereof.

“GMACCM” has the meaning given to such term in the definition of “Syndication Condition”.

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“GMP Guarantor” means AMEC p.l.c., a public limited company organized under the laws of England and any successor thereto approved in accordance with Section 7.01 hereof.

“GMP Guaranty” has the meaning given to such term in Section 4.01(d) hereof.

“Governmental Approvals” means all approvals, consents, waivers, orders, acknowledgments, authorizations, permits and licenses required under applicable Legal Requirements to be obtained from any Governmental Authority.

“Governmental Authority” means any government (or any political subdivisions thereof), court, agency, authority, board (including, without limitation, any environmental protection, planning or zoning board), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit having jurisdiction over any Borrower Entity, the Mortgaged Property or any part thereof (or the construction, development, use, occupancy, management, ownership or operation of the Mortgaged Property or any part thereof) or Agent or any Lender, as applicable.

“Ground Lease” means the Agreement of Lease between Borrower and Ground Lessor, dated as of December 12, 2001, a memorandum of which was recorded in the office of the City Register of New York County on October 24, 2003 as CRFN # 20030004 33122, as modified by (a) that certain letter agreement between Borrower and Ground Lessor, dated as of April 8, 2004 and (b) regarding which Borrower and Ground Lessor, in accordance with the Tri-Party Agreement, have agreed to modify their agreements and rights.

“Ground Lessor” means 42nd St. Development Project, Inc.

“Guaranteed Maximum Price Contract” means that certain Construction Management Agreement, dated the 22nd day of January, 2004 between Borrower and General Contractor, as modified by that certain General Contractor’s Consent to Assignment of Contractor’s Agreement among Borrower, General Contractor and Agent of even date herewith.

“Guaranties” means, collectively, the documents referred to in Section 2.06 hereof.

“Guarantors” means FC Guarantor and NYTC Guarantor, collectively.

“Hard Cost Contracts” means the Guaranteed Maximum Price Contract and all other contracts and subcontracts (whether direct or indirect) that cover Hard Costs.

“Hard Costs” means the direct costs and expenses of goods, materials or labor incurred in connection with the construction of the Project substantially in

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accordance with the Plans and Specifications, including, without limitation, all amounts payable under the Guaranteed Maximum Price Contract, including fees.  To avoid confusion, the Budgets show which categories of Building Loan Costs are Hard Costs and which are soft costs.  No Project Loan Cost is a Hard Cost.

“Immediate Family Members” of a Person means the spouse, parents and any direct lineal descendants (including adoptees) of such Person.

“Improvements” means all the buildings, structures, fixtures and improvements described in Exhibit F attached hereto and more particularly set forth in the Plans and Specifications, and all other buildings, structures, fixtures and improvements now or hereafter located or placed on the Land.

“In Balance” has the meaning given to such term in Section 3.06 hereof.

“Indebtedness” means, collectively, the Building Loan Indebtedness and the Project Loan Indebtedness.

“Indemnified Parties” means Initial Agent, Agent, any Lender, any Person who is or will have been involved in the servicing of the Building Loan, any Person in whose name the encumbrances created by the Building Loan Mortgage is or will have been recorded, any Person who may hold or acquire or has held a full or partial interest in the Building Loan (including, but not limited to any participants in the Building Loan and any investors in a Securitization, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Building Loan for the benefit of third parties), as well as the respective directors, officers, shareholders, members, partners, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including, but not limited to, any other Person who holds or acquires or has held a participation or other full or partial interest in the Building Loan or the Mortgaged Property, and any successors by merger, consolidation or acquisition of all or a substantial portion of Agent’s or any Lender’s assets and business).

“Information” has the meaning given to such term in Section 11.23 hereof.

“ING” means ING Real Estate Development Holding U.S. Inc.

“ING Member” means Ingredus Site 8 South LLC, a Delaware limited liability company.

“Initial Advance Interest Rate Cap” has the meaning given to such term in Section 4.02(e)(7) hereof.

“Initial Agent” has the meaning given to such term in the opening paragraph of this Agreement.

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“Initial Construction Advance” has the meaning given to such term in Section 4.02 hereof.

“Initial Interest Period” has the meaning given to such term in the definition of Interest Period.

“Initial Required Equity Funds” means, subject to Section 3.08(b) hereof, $417,654,796, which amount represents the sum of (a) $87,547,843 contributed by Borrower on behalf of FC Member, (b) $119,498,394 contributed by Borrower on behalf of NYTC Member, and (c) the Equity Contribution of $210,608,559 which sum represents the initial estimate of the amount by which (i) the amount needed to cover all Building Loan Costs and Project Loan Costs reasonably anticipated to be incurred with respect to the Project, as shown by the Budgets approved by Agent as of the Closing Date, exceeds (ii) the Loan Amount.

“Intended Advance Date” means the Requested Advance Date or, if not all of the conditions precedent to such Advance have been satisfied prior to the Requested Advance Date, the first Business Day following the date on which all conditions to such Advance hereunder have been satisfied.

“Interest Period” means, during any period of time in which the LIBOR Rate is in effect, the period commencing, in the case of the first Interest Period, on the date hereof and ending on the last day of June, 2004 (the “Initial Interest Period”), and with respect to subsequent Interest Periods, commencing, in each case, on the first day (such date, the “Start Day”) of the immediately succeeding calendar month, and ending, in each case, on the last day of the month in which the Start Day occurs.

“Interest Rate” means, subject to Section 3.14 hereof, the LIBOR Rate plus the Spread.

“Interest Rate Caps” means the Initial Advance Interest Rate Cap and the Future Advance Interest Rate Caps, and “Interest Rate Cap” means any of the foregoing.

“Involuntary Bankruptcy” has the meaning given to such term in Section 9.01(g)(i).

“Knowledge” or “Knowledge of Borrower” means the actual knowledge of any of the following persons (unless and until any such Person has no involvement with the Project) or any person replacing any such person:  Bruce Ratner, Andrew Silberfein, David Berliner, Chris Clayton and Susan Elman.

“Land” means the land more particularly described on Exhibit A attached hereto and includes all rights appurtenant thereto, including, without limitation, any air or development rights acquired by Borrower.

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“Land Acquisition Agreement” means the Site 8 South Land Acquisition and Development Agreement among Borrower, Ground Lessor and ESDC, dated as of December 12, 2001.

“Late Charge” has the meaning given to such term in Section 3.11 hereof.

“Lead Architect” has the meaning given to such term in the definition of Architect’s Contract and any successor Borrower’s Architect in accordance with Section 7.13 hereof.

“Leases” means “Leases” as defined in the Building Loan Mortgage, provided that in no event shall “Leases” as used in this Agreement include the Ground Lease or the Severance Subleases.

“Leasing Agent Agreement” means any one or more agreements entered into by Borrower, any Member or any Affiliate of Borrower wherein Borrower, such Member or such Affiliate engages any Person to assist in the leasing of any of the Units and which is in effect on or after the date hereof.

“Legal Requirements” shall mean all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities, whether now or hereafter enacted and in force (including, without limitation, any environmental laws and building, use, zoning and land use laws and regulations), and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments with Governmental Authorities (other than those contained in the Ground Lease or the Land Acquisition Agreement), either of record or known to the applicable Person, at any time in force applicable to Agent, any Lender, any Borrower Entity, the Mortgaged Property or any part thereof (including any which may (i) require repairs, modifications or alterations in or to the Mortgaged Property or any part thereof, or (ii) in any way limit the use and enjoyment thereof).

“Lender” has the meaning given to such term in the opening paragraph of this Agreement, subject to Sections 3.16(c) and 11.05(a) hereof.

“LIBOR Rate” means, as determined by Agent, the average of London Interbank Offered Rates (in U.S. dollar deposits), rounded up to the nearest 1/10,000th of one percent, for a term equal to the applicable calendar month; provided, however, that if such month has 28, 29 or 31 days, the Libor Rate shall be calculated assuming such month has thirty (30) days.  Agent will obtain the LIBOR Rate from Bloomberg (British Banker’s Association Rate) as of the close of business announced on the second immediately preceding Business Day prior to the Start Day.  If Bloomberg ceases publication or ceases to publish such LIBOR Rate, Agent shall select a comparable publication to determine the LIBOR Rate.  The LIBOR Rate may or may not be the lowest rate based upon the market for U.S. dollar deposits in the London Interbank Eurodollar Market at which Agent or any Lender prices loans on the date on which the LIBOR Rate is determined by Agent as set forth in this definition.  The rules set forth in

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Section 4.12 (entitled “Business Day Convention”) of the 2000 International Swap Dealers Association, Inc.  Definitions shall apply with respect to the calculation of the LIBOR Rate.  Agent and Borrower acknowledge and confirm that Bloomberg shows thirty (30) day LIBOR Rates as one-month LIBOR Rates.

“Lien” means any mortgage, deed of trust, pledge, assignment of leases and rents, security interest, encumbrance, restriction, lien or charge of any kind including, without limitation, any conditional sale or other title retention agreement or any lease in the nature thereof, or the filing of, or any agreement to give, any financing statement under the Uniform Commercial Code of any jurisdiction.

“Lien Law” means the Lien Law of the State of New York.

“Lien Law Affidavit” means the affidavit attached hereto as Exhibit G, made in compliance with Section 22 of the Lien Law.

“Lien Waiver Parties”means, collectively, (a) General Contractor; (b) all other Major Contractors; (c) all Major Subcontractors and all other Trade Contractors (as defined in the Guaranteed Maximum Price Contract) required by Borrower to deliver lien waivers under the Guaranteed Maximum Price Contract; (d) Borrower’s Architects; and (e) any Person not covered by the foregoing clauses who has performed services pursuant to a direct contract with Borrower or the General Contractor for the Project and who is reasonably expected to receive payments for such services in excess of $100,000, other than any expediter, any consultant preparing environmental reports with respect to the Mortgaged Property, and any Person providing (or providing services relating to) insurance on the Mortgaged Property.

“Loan Agreements” means, collectively, this Agreement and the Project Loan Agreement.

“Loan Amount”means the sum of the Building Loan Amount and the Project Loan Amount.

“Loan Documents” means, collectively, the Building Loan Documents and the Project Loan Documents.

“Loans” means the Building Loan and the Project Loan.

“Losses” has the meaning given to such term in Section 7.29(a) hereof.

“Major Contractor” means the General Contractor and any other contractor hired by any Borrower Entity (and any Affiliates thereof) to supply labor, goods, materials or services which are Building Loan Costs in connection with the Project, where, at the time of determination, the aggregate contract price for such labor, goods, materials or services (including fees) equals or exceeds $1,000,000, whether pursuant to one contract or agreement or multiple contracts or agreements, after taking into account all Change Orders.

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“Major Decision” shall mean any decision by the Majority Lenders (other than any Super-Major Decision) pertaining to (a) a material modification or amendment of the Building Loan Documents; (b) the exercise of any material remedies by Agent under the Building Loan Documents during the continuance of an Event of Default; (c) the approval of any Lease or any matter with respect to any Lease as to which Agent’s approval is required hereunder, but only if such Lease covers more than three full floors (or more than 75,000 rentable square feet) of the Project (a “Major Lease”); (d) the approval of any Managing Agent Agreement where the managing agent is not an Affiliate of FC Guarantor; (e) the disposition of the Mortgaged Property after it is acquired by Agent on behalf of Lenders; and (f) any other decision in the Building Loan Documents requiring the approval of Majority Lenders.

“Major Lease” has the meaning given to such term in the definition of Major Decision.

“Major Subcontractor” means any subcontractor (or any direct or indirect subcontractor thereof) who is supplying labor, goods, materials or services which are Building Loan Costs in connection with the Project, where, at the time of determination, the aggregate contract price for such labor, goods, materials or services (including fees) equals or exceeds $500,000, whether pursuant to one contract or agreement or multiple contracts or agreements, after taking into account all Change Orders.

“Major Subcontracts” has the meaning given to such term in the definition of Material Contracts.

“Majority Lenders” means, at any time, Lenders whose commitments total more than fifty percent (50%) of the Loan Amount; provided, however, that if at any time a single Lender has a commitment of more than fifty percent (50%) of the Loan Amount and there shall be more than one Lender, “Majority Lenders” shall mean any two (2) Lenders (who are not Affiliates of each other) whose commitments exceed fifty percent (50%) of the Loan Amount.  At any time that a Lender is a Defaulting Lender, then (x) such Lender shall not be deemed a Lender for purposes of this definition and (y) such Lender’s ratable share of the Loan Amount shall, for purposes of this definition, be subtracted from the Loan Amount.

“Managing Agent Agreement” means any agreement entered into by Borrower or any Member where Borrower or such Member engages any Person to assist in the management of the Property or any portion thereof.

“Material Adverse Effect” means any event or condition that has a material adverse effect upon (i) the ability of (as of the Closing Date) any Borrower Entity and (after the Closing Date) Borrower and each Member to pay all of its liabilities or to perform all of its obligations in the manner and within the time periods provided under the Building Loan Documents, (ii) the enforceability of any provision of any Building Loan Document against any Borrower Entity, (iii) the perfection or priority of any Lien created under any Building Loan Document, (iv) the value of any collateral granted by any Borrower Entity to Agent for the benefit of Agent and Lenders in

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connection with the Building Loan or (v) the rights and remedies of Agent under the Building Loan Documents.

“Material Contracts” means (a) the GMP Guaranty, (b) all contracts with Major Contractors and all contracts with Major Subcontractors (“Major Subcontracts”), (c) any Leasing Agent Agreement, (d) any Managing Agent Agreement, (e) the Architect’s Contract and any other material agreement entered into by any one or more of Borrower and the Members with any architect or engineer relating to the Project, (f) any Interest Rate Cap, (g) the Ground Lease and each of the Severance Subleases, (h) the Land Acquisition Agreement, (i) the Subway Agreement, (j) the Site 8 Project Agreement, and (k) any other contract of any kind or type whatsoever (whether oral or written, formal or informal) entered into by any Borrower Entity affecting in any material respect the construction or value of the Project other than any Lease and the Development Agreements.

“Maturity Date” means the earlier to occur of (i) the Original Maturity Date or, subject to the penultimate sentence of Section 3.19(a) and the last sentence of Section 3.19(b) hereof, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable) and (ii) the Acceleration Date.

“Maximum Amount” means the Maximum Amount – NYTC or the Maximum Amount – FC, as applicable.

“Maximum Amount–FC” means, as of the date of the Initial Construction Advance (and without giving effect to such Advance or the “Initial Construction Advance” as defined in the Project Loan Agreement), the Loan Amount minus the Maximum Amount – NYTC, and thereafter such amount less all Advances hereunder and all “Advances” (as defined in the Project Loan Agreement) under the Project Loan Agreement made on or prior to the date in question for costs shown in the FC Units Budget.

“Maximum Amount–NYTC” means, subject to Section 3.08(b), as of the date of the Initial Construction Advance (and without giving effect to such Advance or the “Initial Construction Advance” as defined in the Project Loan Agreement), the principal amount of the Equity Contribution (taking into account any Equity Contribution made on such date), and thereafter such amount less all Advances made hereunder and all “Advances” (as defined in the Project Loan Agreement) under the Project Loan Agreement on or prior to the date in question for costs shown in the NYTC Units Budget.

“Maximum Rate” means the maximum interest rate allowed by applicable law in effect with respect to the Building Loan on the date for which a determination of interest accrued hereunder is made and after taking into account all fees, payments and other charges which are, under applicable law, characterized as interest.

“Measuring Date” has the meaning given to such term in Section 3.19(a) hereof.

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“Members” means FC Member and NYTC Member.

“Moody’s” means Moody’s Investors Services, Inc., or any successor thereof (or if Moody’s is no longer in the business of rating public companies, any other nationally recognized rating agency selected by Agent).

“Mortgaged Property” has the meaning given to such term in the Building Loan Mortgage.

“Net Award or Proceeds” has the collective meaning given to such term in the Building Loan Mortgage.

“Net Proceeds” has the collective meaning given to such term in the Building Loan Mortgage.

“News Outlets” has the meaning given to such term in Section 11.23 hereof.

“No Strikes Agreement”has the meaning given to such term in Section 4.01(i)(6) hereof.

“Non-Disturbance Agreement” means a non-disturbance, subordination and attornment agreement substantially in the form of Exhibit Hhereto.

“Non-US Lender” has the meaning given to such term in the definition of “Eligible Assignee.”

“Notice of Assignment” means the notice by Borrower made in compliance with Section 15 of the Lien Law.

“Notice of Lending” means the notice by Borrower made in compliance with Section 73 of the Lien Law.

“Noticed Default” means (a) a Default with respect to which Agent has given Borrower notice that such Default has occurred or (b) the occurrence of an event listed in Section 9.01 hereof which does not require a notice from Lender to become an Event of Default.

“NYTC Completion Guaranty” has the meaning set forth in Section 2.06(d) hereof.

“NYTC Form Sublease” has the meaning given to such term in Section 7.14(b) hereof.

“NYTC Guarantor” means the New York Times Company, a New York corporation, and its permitted successors in accordance with the terms hereof.

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“NYTC Member” means NYTC Real Estate Company LLC, a New York limited liability company and its permitted successors in accordance with the terms hereof.

“NYTC Non-Recourse Carveouts Guaranty” has the meaning set forth in Section 2.06(c) hereof.

“NYTC Office Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “NYTC Office” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “NYTC Collective Unit” (excluding the “SPU Unit”) (as such terms are defined in the Condominium Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“NYTC Performing Arts Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “SPU” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “SPU Unit” (as defined in the Condominium Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“NYTC Units” means the NYTC Office Unit and the NYTC Performing Arts Unit collectively.

“NYTC Units Budget” means the budget setting forth the total estimated Building Loan Costs and Project Loan Costs allocable to the NYTC Units and approved by Agent in the Disclosure Side Letter.

“NYTC Units Redemption” means the conveyance of the NYTC Units to NYTC Member in redemption of NYTC Member’s interest in Borrower in accordance with Section 7.46(a) hereof.

“Obligations” means, collectively, the Building Loan Obligations and the Project Loan Obligations.

“OFAC List” means the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any legal requirements, including, without limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States.  As of the date hereof, the OFAC List is accessible through the internet website www.treas.gov/ofac/t11sdn.pdf.

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“Operating Agreement” means that certain Operating Agreement of Borrower dated as of December 12, 2001, as amended by that certain First Amendment to Operating Agreement of even date herewith (the “First Amendment”).

“Original Maturity Date” means July 1, 2008.

“Other Funds” means any Completion Deposits, any Borrower LC Deposit, and any amounts in the Collection Accounts.

“Outstanding Principal” means the principal amount of the Building Loan outstanding under the Building Loan Notes from time to time.

“Overfunding Unit” has the meaning given to such term in Section 3.20 hereof.

“Participant”means any Person who acquires a participation interest in the Building Loan or the Project Loan.

“Payment and Performance Bond Contracts” has the meaning given to such term in Section 4.02(e)(6) hereof.

“Payment and Performance Bonds” means triple-obligee payment and performance bonds in favor of Borrower, General Contractor and Agent in form reasonably satisfactory to Agent, and in each case issued by a surety company or companies reasonably acceptable to Agent or, at Borrower’s election, a subguard insurance policy in form and substance satisfactory to Agent.

“Pending Litigations” has the meaning given to such term in Section 6.04(a) hereof.

“Period” has the meaning given to such term in Section 7.20 hereof.

“Permitted Affiliate Contract” has the meaning given to such term in Section 7.36(f) hereof.

“Permitted Exceptions” means those matters listed in Exhibit B attached hereto and made a part hereof, to which the interest of Borrower in the Premises is permitted to be subject, and, after the NYTC Units Redemption shall have occurred, the Extension Loan Documents.

“Permitted Lease” means any Lease entered into in accordance with Section 7.14 hereof.

“Permitted Transfers” have the meaning given to such term in Section 7.32(b) hereto.

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“Person” means an individual, partnership, limited partnership, limited liability company, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, or other entity of any kind.

“Personal Property”has the meaning given to such term in the Building Loan Mortgage.

“Plan Assets” means the assets of any Employee Benefit Plan.

“Plans and Specifications” means the plans, specifications, schematic design documents (to the extent not superseded by design development documents or final construction drawings), design development documents (to the extent not superseded by final construction drawings), final construction drawings and related items for the design and construction of the Project including, without limitation, the “Drawings” and “Specifications” (as such terms are defined in the Guaranteed Maximum Price Contract) that have been approved by Agent in the Disclosure Side Letter, as the same may be amended by Change Orders made in accordance with this Agreement.

“Policies” has the meaning given to such term in the Building Loan Mortgage.

“Premises” means, prior to the NYTC Units Redemption, the premises demised to Borrower pursuant to the Ground Lease and the Improvements thereon, and, after the NYTC Units Redemption, the premises demised to FC Member pursuant to the Severance Subleases to which FC Member is a party and the Improvements thereon.

“Pro Forma Debt Service” means the monthly interest and principal payment for a loan in the principal amount of the Remaining Loan Amount, assuming that such loan (x) is made on the first day of the Pro Forma Testing Period, (y) amortizes on a thirty year schedule, and (z) has an annual interest rate equal to the greatest of (a) 8.0%, (b) the Interest Rate in effect as of the date Pro Forma Debt Service is measured and (c) the yield of the ten (10) year United States Treasury Note, as published in The Wall Street Journal as of the date Pro Forma Debt Service is measured, plus two percent (2.0%).  In the event that, in the case of clause (c), (i) more than one such yield is published, then the average of such yields shall apply or (ii) no such yield is published, such yield shall be determined from such comparable financial reporting company as Agent shall reasonably select.

“Pro Forma Debt Service Coverage Ratio” means the ratio of Pro Forma Net Operating Income to Pro Forma Debt Service for the twelve (12) month period starting from the first day of the first calendar month following the date in question and ending on the day immediately preceding the one-year anniversary of such first day (such period, the “Pro Forma Testing Period”).

“Pro Forma Net Operating Income” means the excess, if any, of Pro Forma Operating Income over Pro Forma Operating Expenses.

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“Pro Forma Operating Expenses”means the sum of all expenses reasonably projected by Borrower and reasonably approved by Agent to be paid or required to be paid for during the Pro Forma Testing Period by or on behalf of Borrower and the Members in connection with the operation of the Mortgaged Property, determined using an accrual method of accounting in accordance with generally accepted accounting principles consistently applied, including, without limitation, (a) Property Taxes, (b) premiums on the Policies, (c) wages, salaries, and fringe benefits of Borrower’s employees (including overhead expenses) engaged in the operation or management of the Mortgaged Property or Borrower’s business (to the extent properly charged or chargeable to the Property), (d) fees and other amounts paid in respect of utilities serving the Mortgaged Property, (e) fees, costs and expenses for cleaning, janitorial and security services with respect to the Mortgaged Property, (f) professional fees incurred in connection with the operation and management of the Mortgaged Property, provided that if the property manager is an Affiliate of FC Guarantor, then for purposes of this clause (f), the total fees payable to such property manager shall be assumed to be not less than 50 cents per square foot of rentable space in the FC Units and Common Elements (as defined in the Condominium Documents), (g)  repair and maintenance costs with respect to the Mortgaged Property, (h) amounts payable under any equipment leases relating to the Mortgaged Property, and (i) amounts payable by Borrower to any counterparty to an Interest Rate Cap.  Pro Forma Operating Expenses shall not include (1) depreciation or amortization or other non-cash items, (2) the principal of and any interest on the Building Loan Notes or the Project Loan Notes or other indebtedness of any Borrower Entity for borrowed money (including, without limitation, interest on the Equity Contribution and the Extension Loan but excluding from this exclusion equipment leases), (3) income taxes, or franchise taxes, or taxes in the nature of income taxes payable by Borrower or either Member, (4) any actual capital expenditures (except to the extent includable, under generally accepted accounting principles consistently applied, in Borrower’s or the Members’ operating expenses for the Pro Forma Testing Period) and (5) internal corporate overhead expenses.

“Pro Forma Operating Income” means the sum of all payments (other than security deposits and any “percentage rent” or other revenue or profit sharing arrangements) reasonably projected by Borrower and reasonably approved by Agent to be received by Borrower or either Member during the Pro Forma Testing Period from all Tenants under Approved Leases covering any portion of the Mortgaged Property that are in existence as of the date that Pro Forma Operating Income is calculated.

“Pro Forma Testing Period” has the meaning given to such term in the definition of Pro Forma Debt Service Coverage Ratio.

“Project” means the Units, the “common elements” as described in the Condominium Floor Plans and the work and items described in the Plans and Specifications or covered by the Guaranteed Maximum Price Contract (including all allowances thereunder) or any other Hard Cost Contract, plus all other structures, fixtures, improvements and personal property that are either (x) required to be constructed or installed by Borrower or any Member (or which Borrower or any Member

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may elect to construct) under any Permitted Lease or any of the Public Project Agreements, or (y) intended to be constructed or installed by any Borrower Entity, as indicated by the Budgets and all back-ups thereto.

“Project Loan” means the loan which is the subject of the Project Loan Agreement.

“Project Loan Agreement” means that certain Project Loan Agreement dated as of even date herewith by and among Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.

“Project Loan Amount” means $149,470,521.

“Project Loan Assignment of Leases” has the meaning given to such term in the Project Loan Agreement.

“Project Loan Costs” means, without duplication, (i) all costs and expenses of (a) achieving Final Completion of the Project and Stabilized Occupancy, (b) satisfying the obligations of the Borrower Entities to Agent and Lenders under the Loan Documents, (c) the payment of interest on the Equity Contribution, to the extent the Extension Loan is made, and the payment of interest on the Extension Loan, and (d) Assignments of the Loans (to the extent Borrower is liable therefor pursuant to Section 7.06 of the Project Loan Agreement) and (ii) all other actual or anticipated non-construction costs payable through the maturity of the Project Loan and necessary to achieve Final Completion of the Project and Stabilized Occupancy (including, without limitation, (1) the Leasing Incentive Fee (as defined in the FC Operating Agreement) and (2) from and after the date, if any, that either option described in Section 3.19(a) of the Project Loan Agreement is exercised, that portion of the Extension Fee relating to such option attributable to the Project Loan), but only to the extent, in each of the foregoing clauses (i) and (ii), such costs and expenses do not constitute Building Loan Costs.  Subject to Section 7.35(b) of the Project Loan Agreement, with respect to the NYTC Units, Project Loan Costs shall also include amounts Advanced under the last sentence of Section 3.05(d) of the Project Loan Agreement.

“Project Loan Documents” has the meaning given to such term in the Project Loan Agreement.

“Project Loan Indebtedness” means “Indebtedness” as defined in the Project Loan Mortgage.

“Project Loan Mortgage”has the meaning given to such term in the Project Loan Agreement.

“Project Loan Notes” has the meaning given to such term in the Project Loan Agreement.

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“Project Loan Obligations” means “Obligations” as defined in the Project Loan Mortgage.

“Property” means the Premises and the Personal Property.

“Property Taxes” has the meaning given to such term in Section 6.34 hereof.

“Providing Party” means any Borrower Entity, Agent or any Lender (as applicable) providing Information to the other for purposes of Section 11.23 hereof.

“Public Project Agreements” means, collectively, the Ground Lease, the Severance Subleases, the Land Acquisition Agreement, the DUO Declaration, the Subway Agreement, and the Site 8 Project Agreement.

“Public Project Agreements Estoppel Letter” has the meaning given to such term in Section 4.01(w) hereof.

“Punch List Items” applies to the FC Units only and means minor or insubstantial details of construction or mechanical adjustment, (a) which are, in Agent’s reasonable judgment, expected to be completed within five (5) months of Substantial Completion, (b) the non-completion of which, when all such items are taken together, will not interfere in any material respect with the use or occupancy of any portion of such Units for their intended uses or the ability of Borrower or any tenant under a Lease with respect to the FC Units to perform work that is necessary or desirable to prepare such portion of the Improvements or the Project for such use or occupancy and (c) which would not, as reasonably determined by Agent, cost more than $2,500,000 in the aggregate to complete if new contractors were hired in connection therewith.

“ratable share” or “ratably” means, with respect to any Lender, (i) its share of the Loan Amount, an Advance or a repayment, as the context requires, based on the proportion of the sum of the face principal amount of the Building Loan Note(s) and the Project Loan Note(s) held by such Lender to the Loan Amount or (ii) in the case of an Advance or repayment only, such other share of an Advance as may be agreed to by Agent and such Lender, provided that such other share, together with the shares of all other Lenders, equals the amount of such Advance or such repayment.

“Real Estate Professional” has the meaning given to such term in Section 7.14(b) hereof.

“Receiving Party” means any Borrower Entity, Agent or any Lender or any potential assignee or participant of any Lender (as applicable) who is the recipient of any Information from any Providing Party.

“Recognition Agreements” means, collectively, that certain Recognition Agreement dated as of December 12, 2001 by ING Member, ING Vartgoed B B.V., FC 41st Street, the Members, Borrower, Developer and NYTC Guarantor and that certain

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Recognition Agreement (Public Parties), dated as of December 13, 2001 by the foregoing parties, ESDC and Ground Lessor.

“Reimbursable Costs” mean all reasonable, third-party out-of-pocket costs and expenses incurred by Agent or (in the case of clauses (g) and (h) of this definition only) Lenders in connection with the administration of the Building Loan, including, without limitation, and without duplication, (a) responses to requests for consents, approvals or waivers under the Building Loan Documents, (b) the exercise of any enforcement right or remedy under any Building Loan Document or the collection of the Building Loan unless there has been a non-appealable judicial determination that the exercise of such right for remedy was not proper, (c) review of any Lease or proposed Lease or review of any Material Contract or proposed Material Contract, (d) review of any Change Order, construction contract, Plans and Specifications or other documents related to the construction of the Project, (e) all costs pursuant to paragraph 8 of each Draw Request, (f) the costs of any Interest Rate Cap, to the extent incurred by Agent in accordance with Section 7.20(b) hereof, (g) any amounts owed to Agent or any Lender pursuant to Sections 3.13, 3.16, 7.09(b), 7.17, 7.20(b), 7.30(c), 7.46(a)(7), 7.50(d) and 8.01 hereof and (h) any such other costs and expenses incurred by Agent and, to the extent expressly provided for, any Lender under any Loan Document expressly identified as a Reimbursable Cost.  In no event shall syndication costs covered by Section 7.06(a)(ii) hereof be included in the term “Reimbursable Costs.”

“Remaining Loan Amount” means, as of the date in question, the sum of (i) the Outstanding Principal, (ii) the “Outstanding Principal” (as defined in the Project Loan Agreement), and (iii) any Loan Amounts that have not been advanced.

“Rents” has the meaning given to such term in the Building Loan Mortgage.

“Requested Advance Date” has the meaning given to such term in Section 4.02(e)(1) hereof.

“Retainage” has the meaning given to such term in Section 3.05(c) hereof.

“S&P” means Standard and Poor’s Rating Group, a division of the McGraw-Hall Companies, Inc., or any successor thereto (or if S&P is no longer in the business of rating public companies, any other nationally recognized rating agency selected by Agent).

“Scope Change” has the meaning given to such term in Section 7.01 hereof.

“Second Extended Maturity Date” has the meaning given to such term in Section 3.19(a) hereof.

“Section 291-f Notice” has the meaning given to such term in Section 4.01(i)(13) hereof.

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“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“Security Deposit Accounts” has the meaning given to such term in the Security Deposit Accounts Agreement.

“Security Deposit Accounts Agreement” has the meaning given to such term in Section 7.57 hereof.

“Security Documents” means, collectively, this Agreement, the Building Loan Mortgage, the Building Loan Assignment of Leases, the Assignments of Contracts, from and after their execution, the Security Deposit Accounts Agreement, the Collection Accounts Agreement and any Assignment of Interest Rate Cap, and all other Building Loan Documents which grant Agent, for the benefit of Lenders, a security interest in any collateral in connection with the Building Loan.

“Severance Subleases” has the meaning given to such term in the Ground Lease, as each has been amended by the Tri-Party Agreement.

“Side Letter re: Fees” has the meaning given to such term in Section 2.07 hereof.

“Site 8 Project Agreement” means that certain Site 8 South Project Agreement among ESDC, Ground Lessor, the City of New York, Borrower, NYTC Member and FC Member, dated as of December 12, 2001.

“Spread” means two hundred and sixty-five (265) basis points per annum, provided, however, that upon satisfaction of the Syndication Condition and the achievement of Substantial Completion, the Spread shall be reduced to (x) two hundred and fifty-five (255) basis points per annum as of the Start Day immediately following the date on which Breakeven Leasing occurs and (y) two hundred and forty-five (245) basis points per annum as of the Start Day immediately following the date on which the Pro Forma Debt Service Coverage Ratio equals or exceeds 1.25:1.00 (provided that clause (b) of the definition of Pro Forma Debt Service shall not apply for purposes of this clause (y)).

“Stabilized Occupancy” means the point in time at which (x) ninety-five percent (95%) of the net rentable square footage of the FC Retail Unit has been leased to tenants pursuant to Approved Leases and said tenants are in possession of such space and have been paying rent for a period of three (3) months, and (y) ninety-five percent (95%) of the net rentable square footage of the FC Office Unit has been leased to tenants pursuant to Approved Leases and said tenants are in possession of such space and have been paying rent for a period of three (3) months.

“Start Day” has the meaning given to such term in the definition of “Interest Period.”

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“Stored Materials” has the meaning given to such term in Section 3.04 hereof.

“Subordinate Lease” has the meaning given to such term in Section 7.14(a) hereof.

“Substantial Completion” means, with respect to any Unit or the Project, as the case may be, the occurrence of all of the following applicable events to the reasonable satisfaction of Agent: (a) the construction of the Unit (or the Project) (other than Punch List Items) substantially in accordance with the Plans and Specifications and in accordance with the Loan Agreements, and the Public Project Agreements, free and clear of any and all Liens; (b) the payment in full of any and all Building Loan Costs and Project Loan Costs in respect of the work contemplated by clauses (a), (c), (d) and (e) of this definition (other than costs consisting of (i) Retainage, and other amounts that, as of the date of Substantial Completion, are being withheld from, or are not yet due and payable to, the General Contractor or any contractor or direct or indirect subcontractor or any other Person and (ii) amounts payable in respect of Punch List Items to the extent not covered by the foregoing clause (i)); (c) with respect to the FC Retail Unit, the issuance of a “zero occupancy temporary certificate of occupancy” or a temporary certificate of occupancy; (d) with respect to the FC Office Unit and any of the NYTC Units, the issuance of a temporary certificate of occupancy; (e) with respect to any Unit, the furnishing of such Unit with all necessary furniture, fixtures and equipment (including “tenant improvement” work, other than Punch List Items) to the extent provided for in the Plans and Specifications or required under any Approved Lease and (f) with respect to any Unit or the Project, Borrower’s Architects shall have delivered the certificate referred to in Section 11.5.3 of the Guaranteed Maximum Price Contract.

“Subway Agreement” means that certain Agreement by and among Borrower, the New York City Transit Authority, Ground Lessor and the City of New York, dated December 12, 2001, and recorded in the office of the Register of the City of New York on October 24, 2003 as CRFN #2003000433126.

“Subway Agreement Estoppel Letter” has the meaning given to such term in Section 4.01(w) hereof.

“Super-Major Decision” means any decision by the Super-Majority Lenders pertaining to (a) the release of any collateral granted by any Borrower Entity to Lenders in connection with the Building Loan other than as expressly permitted by the Building Loan Documents (including, without limitation, Section 7.46 hereof); (b) the release of any Person from liability in connection with the Building Loan, under any guaranty or otherwise, other than as expressly permitted by the Building Loan Documents (including, without limitation, Section 7.46 hereof); (c) a modification or amendment to the Building Loan Documents which would alter or amend the payment terms (including, without limitation, the interest rate of, or the security for, the Building Loan) in any material respect, other than as expressly contemplated and permitted by the Building Loan Documents; (d) any change to the definition of “ratably” or “ratable,” “Major Decision,” “Super-Major Decision,” “Majority Lenders” or “Super-Majority

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Lenders”; (e) any modifications or amendments to Sections 8.03 or 8.05 hereof; (f) whether Advances should be made hereunder when Borrower is not entitled to receive such an Advance because a Default or an Event of Default has occurred and is continuing; and (g) any other decision under the Building Loan Documents requiring the approval of the Super-Majority Lenders.

“Super-Majority Lenders” means all of the Lenders other than any Defaulting Lender.

“Survey” means a current survey of the Premises (as-built, to the extent applicable) prepared by a surveyor licensed by the State in which the Premises is located and certified to Agent and the Title Companies and prepared in accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointly established in 1999 and employing methods and personnel comparable to those outlined in the “Minimum Angle, Distance and Closure Requirements for Survey Measurements Which Control Land Boundaries for ALTA/ACSM Land Title Surveys,” showing the legal description and street address of the Premises; all visible or recorded easements, curb cuts, and party walls; all sewage, water, electricity, gas and other utility facilities, together with recording information concerning the documents creating any such easements; stating the net, after deduction of land dedicated or used or subject to easements for roads, highways, fire lanes, utilities, storm drains or any other public purpose, and gross area of the Land; and including the following Table A items: 2, 3, 4, 6, 7, 8, 10, 11, 14 and 15; and showing such other matters as may be reasonably requested by Agent; provided, however, that such survey does not need to show the Existing Improvements (as defined in the Ground Lease).

“Syndication Condition” means the Assignment (other than a pledge or other hypothecation) by GMAC Commercial Mortgage Corporation, as a Lender (including any successors, “GMACCM”) to any Eligible Assignee that is not an Affiliate of GMACCM which, together with all such previous Assignments by GMACCM, aggregate at least fifty percent (50%) of the Loan Amount.

“Tax Proceeding” has the meaning given to such term in Section 7.05 hereof.

“Tax Refund” has the meaning given to such term in Section 7.05 hereof.

“Taxes” has the meaning given to such term in Section 3.16(a) hereof.

“Tenants” has the meaning given to such term in the Building Loan Assignment of Leases.

“Title Companies” means the title companies insuring the liens of the Building Loan Mortgage and the Project Loan Mortgage, which title companies shall be acceptable to Agent (and Agent hereby acknowledges that Fidelity National Title Insurance Company, Title Associates Inc., as agent for Stewart Title Insurance, and Commonwealth Land Title Insurance Company are acceptable to Agent).

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“Title Company Side Letter” means the letter from the Title Insurance Companies to Agent, dated as of even date herewith, pursuant to which the Title Companies have agreed to issue paid mortgagee title insurance policies in the name of Agent or its designee.

“Title Insurance Policy” has the meaning given to such term in Section 4.01(i)(2) hereof.

“Transaction Costs” means all reasonable, third-party out-of-pocket costs and expenses incurred by Agent in connection with the negotiation, preparation and execution of the Building Loan Documents (including, without limitation, reasonable attorneys’ fees and disbursements) and all out-of-pocket underwriting costs, credit reports fees, appraisal fees, reasonable travel costs, engineering costs, site inspection costs, mortgage recording taxes, recording fees and charges, survey fees, abstract fees, title policy premiums and charges, escrow fees and environmental consultants’ fees and expenses incurred by Agent.  In no event shall syndication costs covered by Section 7.06(a)(ii) hereof be included in the term “Transaction Costs.”

“Transfer” has the meaning given to such term in Section 7.32(a) hereof.

“Tri-Party Agreement” has the meaning given to such term in Section 4.01(w) hereof.

“UCC” means the Uniform Commercial Code of the State of New York in effect from time to time.

“Unavoidable Delay” has the meaning given to such term in the Ground Lease.

“Underfunding Unit” has the meaning given to such term in Section 3.20 hereof.

“Units” means, collectively, the FC Units and the NYTC Units, and “Unit” means any one of the FC Units or the NYTC Units.

“Voluntary Bankruptcy” has the meaning given to such term in Section 9.01(g)(ii) hereof.

ARTICLE 2

BUILDING LOAN DOCUMENTS

The following documents (other than the NYTC Completion Guaranty) constitute a portion of the Building Loan Documents:

SECTION 2.01       Building Loan Notes.  One or more Building Loan Notes (the “Building Loan Notes”) from Borrower in favor of each Lender in the aggregate amount of the Building Loan Amount.  The obligation of Borrower to pay each

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Lender’s ratable share of the Building Loan Amount and any other sums advanced by each Lender to Borrower under the Building Loan Documents, plus all interest accrued thereon, shall be evidenced by the Building Loan Notes.

SECTION 2.02       Building Loan Mortgage.  That certain Ground Leasehold Building Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement (the “Building Loan Mortgage”), securing the maximum principal amount of the Building Loan Amount, from Borrower in favor of Initial Agent, for the benefit of Initial Agent and Lenders, and Agent, for the benefit of Agent and Lenders and subordinating the Severance Subleases to the Building Loan Mortgage and the Ground Lease, dated as of even date herewith.

SECTION 2.03       Construction Loan Disbursement Agreement.  The Construction Loan Disbursement Agreement (the “Construction Loan Disbursement Agreement”) among Borrower, Disbursement Agent, and Agent, for itself and on behalf of Lenders, dated as of even date herewith.

SECTION 2.04       Assignments of Contracts.  (a)  The Assignment of Contracts - Borrower (the “Assignment of Contracts - Borrower”) from Borrower in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(b)           The Assignment of Contracts – FC Member (the “Assignment of Contracts – FC”) from FC Member in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(c)           The Assignment of Contracts – NYTC Member (the “Assignment of Contracts – NYTC”) from NYTC Member in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

SECTION 2.05       Assignment of Leases.  (a) That certain Building Loan Assignment of Leases and Rents from Borrower and the Members in favor of Initial Agent, for the benefit of Initial Agent and Lenders, and Agent, for the benefit of Agent and Lenders, dated as of even date herewith (the “Building Loan Assignment of Leases”).

SECTION 2.06       Guaranties.  (a)  The Non-Recourse Carveouts Guaranty (FC Guarantor) (the “FC Non-Recourse Carveouts Guaranty”) from FC Guarantor in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(b)           The Completion Guaranty (FC Guarantor) (the “FC Completion Guaranty”) from FC Guarantor in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(c)           The Non-Recourse Carveouts Guaranty (NYTC Guarantor) (the “NYTC Non-Recourse Carveouts Guaranty”) from NYTC Guarantor in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

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(d)           The Completion Guaranty (NYTC Guarantor) (the “NYTC Completion Guaranty”) in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

SECTION 2.07       Fee Side Letter.  The side letter from Agent to Borrower dated as of even date herewith pursuant to which Borrower has agreed to make certain payments to Agent (the “Side Letter re: Fees”).

SECTION 2.08       Disclosure Side Letter.  The side letter from Borrower to Agent dated as of even date herewith pursuant to which Borrower has disclosed or submitted to Agent, and Agent has approved, certain matters, schedules, forms and documents referred to herein (the “Disclosure Side Letter”).

ARTICLE 3

AGREEMENT TO LEND AND
PAYMENT OF BUILDING LOAN

Subject to the terms and conditions set forth in this Agreement and each Borrower Entity’s compliance with all of the provisions hereof and in the other Loan Documents, and relying on each Borrower Entity’s representations, warranties and covenants set forth herein and the other Loan Documents, Lenders severally and not jointly agree to make Advances of the Building Loan to Borrower from time to time and Borrower agrees to borrow from Lenders up to the Building Loan Amount, in accordance with the provisions hereof, during the period from the date hereof to the Maturity Date in an aggregate principal amount of up to the Building Loan Amount, to be used by Borrower to pay Building Loan Costs actually incurred in connection with the construction of the Project.

SECTION 3.01       Advances.  Each Budget reflects, by category and line items, the purposes and the amounts for which funds to be advanced by Lenders under this Agreement are to be used.  Lenders shall not be required to disburse for any category or line item of Building Loan Costs with respect to the FC Units or the NYTC Units more than the amount specified therefor in the applicable Budget, subject to changes approved by Agent in accordance with Sections 3.02, 3.03, 3.20 and 7.11 hereof (or other reallocations approved by Agent).  No Lender is obligated to fund amounts in excess of its ratable share of the Building Loan Amount and not more than its ratable share of any category or line item set forth in any Budget.

SECTION 3.02       Cost Overruns.  Each Budget shall, with respect to each Draw Request, be revised to address any change or anticipated change in Building Loan Costs that Borrower is aware of which will increase a category or line item of Building Loan Costs reflected in any Budget (including all anticipated costs of all Change Orders, regardless of whether the amount of such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced).  Lenders shall have no obligation to make any further Advances with respect to the Units which are the subject of such revised Budget unless and until

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such revised Budget is approved by Agent, such approval not to be unreasonably withheld or delayed.

SECTION 3.03       Contingency Reserves.  At any time and from time to time, the amounts allocated in each Budget as Building Loan Contingency (Hard Costs) and the amounts allocated in each Budget as Building Loan Contingency (Soft Costs) shall be disbursed or moved to another line item upon request by Borrower and upon approval by Agent, which approval shall not be unreasonably withheld, and may be used only for Building Loan Costs set forth in the applicable Budget for which such contingency has been reserved.

SECTION 3.04       Stored Materials.  Lenders shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project (the “Stored Materials”), unless Agent receives reasonably satisfactory evidence that:

(a)           the Stored Materials are, or will be, upon payment with disbursed funds, owned by Borrower, as evidenced, to the extent required by Agent, by bills of sale, certificates of title or other reasonably satisfactory evidence;

(b)           the Stored Materials are fabricated or unfabricated components conforming to the Plans and Specifications and ready for incorporation into the Project;

(c)           the Stored Materials are properly identified and adequately protected, as evidenced by a letter from Borrower, the General Contractor, the appropriate Major Contractor or Major Subcontractor or another Person reasonably acceptable to Agent;

(d)           the Stored Materials are stored at the Premises or at such other site as Agent shall reasonably approve, which site has been specifically identified to Agent, and are protected against theft and damage;

(e)           the Stored Materials will be paid for in full (less the Retainage, if any) with the funds to be disbursed, and all lien rights or claims of the supplier will be released simultaneously with full payment of all amounts required to be paid for such Stored Materials and all amounts, if any, required to be paid to the supplier thereof with respect to the installation thereof (including any Retainage, if any);

(f)            Agent has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials (and with respect to Stored Materials not stored at the Premises, Borrower shall execute and deliver to Agent any and all Uniform Commercial Code financing statements or similar filings required by the laws of any jurisdiction necessary to grant Agent such security interest in such Stored Materials);

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(g)           the Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 2.05 of the Building Loan Mortgage;

(h)           the cost of Stored Materials not stored at the Premises in the aggregate at any time is not more than $25,000,000.00, or such greater amount as may be reasonably approved by Agent; and

(i)            the Construction Consultant shall have confirmed the accuracy of the letter required in subparagraph (c) above, and in connection therewith the Construction Consultant may, but shall not be required to, visit the site of and inspect the Stored Materials at Borrower’s expense.

SECTION 3.05       Amount of Each Advance.  (a)  The proceeds of the Building Loan and Project Loan shall, assuming satisfaction of all applicable conditions precedent, be advanced (x) in accordance with the Cost Allocation Methodology (subject to Section 3.20 hereof) and (y) in amounts which shall be equal to the aggregate of the Building Loan Costs and Project Loan Costs incurred by Borrower with respect to each of the FC Units and the NYTC Units (measured individually) and already paid, or due and payable through the end of the period covered by the Draw Request in question, on the basis of the documented cost of Stored Materials and of the work and items in place or completed, less the following amounts with respect to each of the FC Units and the NYTC Units, measured individually (without duplication):  (i) the aggregate amount of any Advances previously made hereunder and under the Project Loan Agreement by Lenders with respect to such Units, measured individually, allocable to such Units as of the date of the applicable Building Loan Advance and Project Loan advance); (ii) any Building Loan Costs and Project Loan Costs with respect to such Units covered by such Draw Request that are not approved by Agent; and (iii) the Initial Required Equity Funds, and all other amounts contributed, directly or indirectly, by Borrower or any Borrower Entity (whether pursuant to a Completion Deposit that has not been released pursuant to Section 3.06 below or otherwise) for Building Loan Costs and Project Loan Costs with respect to such Units, but only to the extent theretofore advanced and used to pay Building Loan Costs or Project Loan Costs or expected to be advanced and so used prior to or simultaneously with the Advance in question.

(b)           The excess, if any, of the Building Loan Costs and Project Loan Costs for each of the FC Units and NYTC Units (measured individually) incurred to the end of the period covered by the Draw Request in question, and already paid, or due and payable through the end of the period covered by the Draw Request in question, over the aggregate Advances by Lenders for Building Loan Costs and Project Loan Costs with respect to such Units (including the Advance and “Advance” under the Project Loan with respect to the Draw Request in question) shall be payable by Borrower pursuant to, and from the sources (other than Initial Required Equity Funds) described in, clause (iii) of Section 3.05(a) above (and not out of the proceeds of the applicable Loan).

(c)           The following amounts (“Retainage”) shall be retained from the proceeds of any Advance relating to any Hard Cost Contract: (i) until such time as, in the reasonable judgment of Agent, the work performed by the contractor or the

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direct or indirect subcontractor supplying goods, services, materials or labor for the Project under such Hard Cost Contract is fifty percent (50%) complete, the greater of (a) ten percent (10%) of the contract value of the work performed by such contractor or direct or indirect subcontractor through the last day covered by the applicable Advance and (b) the amount actually retained by Borrower (or any contractor or direct or indirect subcontractor, as applicable) from payments made or to be made to the applicable contractor or subcontractor and (ii) thereafter, zero.  Any amount “retained” under clause (i) of this Section 3.05(c) shall be paid to the applicable contractor or direct or indirect subcontractor upon final completion of the work to be performed thereunder and receipt by Agent of final lien waiver(s) for said contract or subcontract or upon approval of such release by Agent.  Notwithstanding the foregoing, Retainage is not required with respect to any Advance for a Hard Cost Contract which is limited to the acquisition of supplies or materials without the installation thereof.

(d)           Advances for fees of the General Contractor, Borrower’s Architects and any payment under a Permitted Affiliate Contract will be paid only to the extent that they bear a proportionate relationship to the percentage of completion of the Project (or the applicable portion thereof), as determined by the Construction Consultant and only after taking into account the Retainage, provided that amounts for “general conditions” specified in the Guaranteed Maximum Price Contract shall be funded as provided in the Guaranteed Maximum Price Contract.  Advances for developer “overhead” costs not covered by the further provisions of this Section 3.05(d) shall only be made for such costs that have actually been incurred.  No Advance shall be made for the Development Cost until (i) Core and Shell Completion shall have been achieved, (ii) the NYTC Units Redemption has occurred and (iii) the Pro Forma Debt Service Coverage Ratio shall be equal to or greater than 1.30:1.0, and any such Advance shall only be made with respect to the portion of the Development Cost then payable under the Development Agreement-ING.  Advances for the “Development Costs” line item in the NYTC Units Budget shall only be made when, and to the extent that, Developer is entitled to receive payments pursuant to, and in accordance with, Exhibit K of the Development Agreement-NYTC.

(e)           All sums advanced by Lenders pursuant to any provision of any Building Loan Document, except so-called “protective advances” pursuant to any remedial provision of any Building Loan Document, insurance or condemnation proceeds, funds in the Completion Deposit or other funds (other than funds from Lenders) on deposit or escrowed with Agent pursuant to the provisions hereof, shall be deemed Advances of the Building Loan.

(f)            Notwithstanding anything to the contrary contained herein or in any other Loan Document, no Advance shall be made hereunder or under the Project Loan Agreement for costs shown in the FC Units Budget or for costs shown in the NYTC Units Budget (i) if such Advance would cause the aggregate amounts of all Advances hereunder and under the Project Loan Agreement with respect to such Budget to exceed the applicable Maximum Amount or (ii) if such Advance would cause the aggregate amount of all Advances hereunder to exceed the Building Loan Amount or the

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aggregate amount of Advances under the Project Loan Agreement to exceed the Project Loan Amount.

SECTION 3.06       Insufficiency of Loan Proceeds.  Notwithstanding anything contained herein to the contrary, if at any time or from time to time during the term of this Agreement, in Agent’s reasonable judgment (a) the amount of any line item in either Budget will be insufficient to cover the costs of such line item (after giving effect to any cost savings realized under Section 7.11, any Completion Deposit or portion thereof or any “Completion Deposit” under and as defined in the Project Loan Agreement or portion thereof not being credited for purposes of this clause (a) to another line item, or any other Other Funds) and/or (b) either of the Budgets is not In Balance (as defined below), then no further Advances or “Advances” (as defined in the Project Loan Agreement) shall be made until Borrower either (i) deposits the amount of such deficiency (the “Completion Deposit”) with Agent, in cash, or by means of other security in form, substance and amount reasonably satisfactory to Agent, (ii) to the extent permitted under Section 3.03 hereof and Section 3.03 of the Project Loan Agreement, allocates a portion of an applicable Building Loan Contingency or “Project Loan Contingency” (as defined in the Project Loan Agreement) to such insufficiency, and/or (iii) to the extent permitted under Section 7.11 hereof and Section 7.11 of the Project Loan Agreement, reallocates cost savings within the applicable Budget to offset such deficiency in accordance with the terms of this Agreement and the Project Loan Agreement.  “In Balance” shall mean that the sum of (1) the applicable Maximum Amount plus (2) all amounts in the Collection Accounts attributable to a Permitted Lease whose demised premises are in the applicable Units, and (3) the balance of any monies in any Completion Deposit, Borrower LC Deposit or “Completion Deposit” or “Borrower LC Deposit” (as such terms are defined in the Project Loan Agreement), previously made with respect to the applicable Budget, is sufficient to meet all remaining Building Loan Costs and Project Loan Costs shown in the applicable Budget (subject to Section 4.02(e)(9) hereof).  Portions of any Completion Deposit or any “Completion Deposit” (as defined in the Project Loan Agreement) (including, in each case, any interest earned thereon) held by Agent with respect to either Budget shall be applied to Building Loan Costs or Project Loan Costs simultaneously with the making of the immediately succeeding Advance as Other Funds, but only upon satisfaction of the terms applicable to the making of Advances set forth in this Agreement and in the other Building Loan Documents (if such Advance relates to Building Loan Costs) or the terms applicable to the making of advances set forth in the Project Loan Agreement and the other Project Loan Documents (if such advance relates to Project Loan Costs) (but no such release or application shall be deemed to be an Advance of Building Loan proceeds hereunder or Project Loan proceeds under the Project Loan Agreement).  Any Completion Deposit shall (A) be held by Agent in an interest-bearing account pursuant to a pledge and assignment agreement in form and substance reasonably satisfactory to Agent, which agreement Borrower shall execute and deliver to Agent simultaneously with the delivery of the first monies constituting a part of such deposit and (B) constitute (together with the interest earned thereon) additional collateral for the Building Loan and Project Loan.  Notwithstanding any of the foregoing, during the continuance of an Event of Default, Agent may apply Completion Deposits in such manner as Agent shall determine.

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SECTION 3.07       Quality of Work.  (a)  No Advance or any portion thereof shall be made with respect to defective work, work that is not in substantial compliance with the Plans and Specifications or in compliance with the Public Project Agreements or work which does not comply with all Legal Requirements applicable to the construction of the Project, each as reasonably determined by the Construction Consultant and Agent.  Lenders shall, subject to compliance by Borrower with all other applicable requirements of this Agreement, advance on the date of the next Advance the remainder of any such Advance or portion thereof previously not disbursed under this Section after Construction Consultant notifies Agent that the unsatisfactory work has been corrected.

(b)           The making of an Advance by Lenders shall not constitute any Lender’s or Agent’s approval or acceptance of the construction theretofore completed or a waiver of any of the conditions to Lenders’ obligation to make future Advances, nor in the event that Borrower is unable to satisfy any such condition, shall any such failure to require that such condition be satisfied have the effect of precluding Agent from thereafter requiring that such condition be satisfied and refusing to make an Advance.  Agent’s or Construction Consultant’s inspection and approval of the Plans and Specifications, the construction of the Project, or the workmanship and materials used therein, shall impose no liability of any kind on Lenders, Agent or Construction Consultant, the sole obligation of Lenders as the result of such inspection and approval being to make the Advances if, and to the extent, required by this Agreement.

SECTION 3.08       Initial Required Equity Funds; Net Proceeds; Net Award or Proceeds.  (a) All Initial Required Equity Funds shall have been expended before any Advances of the Building Loan shall be made.  All Net Proceeds and Net Award or Proceeds, if any, that are held by Agent and made available to Borrower pursuant to Section 2.05(m) or Section 2.06, as applicable, of the Building Loan Mortgage, shall have been expended before any additional Advances of the Building Loan shall be made.

(b)           Notwithstanding anything to the contrary in Section 3.08(a), if there is an “overbudgeted” line item in the NYTC Units Budget pursuant to clause (A), (B) or (C) of the first sentence of Section 7.11(d) prior to the contribution of all of the Initial Required Equity Funds, the Initial Required Equity Funds and the Maximum Amount-NYTC shall each be reduced by the amount of such cost savings.

SECTION 3.09       Payment of Indebtedness.  On the Maturity Date the entire Indebtedness shall be due and payable.

SECTION 3.10       Payment of Interest.  (a) Subject to paragraph (b) of this Section 3.10, the Outstanding Principal shall bear interest at the Interest Rate until the Maturity Date.  Interest on the Outstanding Principal shall (subject to Section 3.15 hereof) be due and payable in arrears on the first Business Day of each calendar month.

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(b)           The Outstanding Principal, and any interest (but not any interest not paid when due because Agent and/or Lenders do not comply with Section 5.03(b) hereof), fee or other amount payable hereunder or under any other Building Loan Document that is not paid when due (after giving effect to any applicable grace period expressly referred to herein or therein), shall bear interest from the due date thereof (without giving effect to any such grace period) until paid at the Default Rate.  During the continuance of an Event of Default, the Outstanding Principal and any interest, fee or other amount payable hereunder or under any other Building Loan Document shall bear interest at the Default Rate.

SECTION 3.11       Late Charge.  Any and all amounts due hereunder or under the other Building Loan Documents (other than the Outstanding Principal due on the Maturity Date) which remain unpaid more than five (5) days after the date said amount was due and payable shall incur a fee (the “Late Charge”) of five percent (5.00%) of said amount, payable on demand, which shall be in addition to all of Agent’s other rights and remedies under the Building Loan Documents.

SECTION 3.12       Prepayment.  (a)  In addition to prepayments made in accordance with the Building Loan Mortgage or Sections 7.05, 7.46 and 7.51 hereof, the then Outstanding Principal may be prepaid at any time, in whole or in part, 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) on any Business Day (other than the day immediately following Thanksgiving Day or Good Friday); provided, however, that Borrower shall pay at the time of any such prepayment (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, 7.46 and 7.51 hereof shall, at Borrower’s (or the applicable Member’s) option, (i) be immediately used to prepay the Loans or (ii) pursuant to an agreement between Borrower (or the applicable Member) and Agent reasonably satisfactory to Agent, be held by Agent in an interest bearing account as additional collateral for the Building Loan and the Project Loan until a date selected by Borrower (or the applicable Member) that is not later than the first Business Day of the next succeeding calendar month (and Borrower (or the applicable Member) 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 proviso clause of the first sentence of Section 3.12(a) above shall apply to all prepayments pursuant to the preceding sentence.

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(c)           Borrower shall have no right to receive Advances of amounts repaid under this Agreement.

SECTION 3.13       Increased Costs.  (a)  If, during the term of the Building Loan, there shall be any increase in the cost to any Lender of maintaining the LIBOR Rate (including, but not limited to, a reserve requirement), or a reduction on the amounts received or receivable under the Building Loan Notes, due to either (i) the introduction of or any change in the judicial or regulatory interpretation of any law or regulation or (ii) the compliance with any new guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), and provided that such change or new guideline or request generally affects similarly situated banks, financial institutions or any other applicable type of entity, then Borrower shall from time to time pay to Agent additional amounts sufficient to compensate such Lender for such increased cost.  A certificate as to the amount of such increased cost, explaining the reason for and showing the calculation of such increased cost, all in reasonable detail, submitted to Borrower by Agent or any Lender, shall be conclusive and binding for all purposes, absent manifest error.

(b)           If Agent reasonably determines that compliance with any new law or regulation or any new guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Person controlling any Lender and that the amount of such capital is increased by or based upon the existence of the Building Loan Notes, and provided that such change or new guideline or request generally affects similarly situated banks, financial institutions or any other applicable type of entity, then Borrower shall pay to Agent or any such Lender, from time to time as specified by Agent or any such Lender, additional actual amounts sufficient to compensate each Lender or such Person in the light of such circumstances.  A certificate as to such amounts, explaining the reason for and showing the calculation of such amounts, all in reasonable detail, submitted to Borrower by Agent or any Lender, shall be conclusive and binding for all purposes, absent manifest error.

(c)           Agent shall endeavor to give Borrower notice of any event giving rise to a payment under this Section reasonably promptly upon it being made aware of such event.

(d)           If a Lender incurs increased costs pursuant to Section 3.13(a) hereof, such Lender shall use reasonable efforts to designate a different lending office for funding or booking its interest in the Loan or to assign its interest in the Loan to another of its offices, branches or affiliates if, in such Lender’s judgment, such designation or assignment (i) would eliminate or reduce such increased costs or any future increased costs and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any respect.

(e)           The provisions of this Section 3.13 shall survive the termination of this Agreement and the payment of all amounts payable under the Building Loan Notes or the other Building Loan Documents.

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SECTION 3.14       Illegality and Inability to Determine.  (a)  Notwithstanding any other provision of this Agreement or the Building Loan Notes, if at any time after the date hereof Agent shall notify Borrower that (i) Agent is unable to determine the LIBOR Rate, (ii) the making or continuance of a LIBOR Rate loan has been made (x) unlawful by law or governmental rule, regulation or order, (y) impossible by compliance by any Lender with any new governmental request (whether or not having the force of law) or any change in the judicial or regulatory interpretation of any law or regulation, or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the interbank Eurodollar market, or (iii) due to circumstances affecting the LIBOR Rate market generally, the LIBOR Rate will not adequately reflect the cost to Lenders of maintaining such LIBOR Rate in effect, then the Interest Rate in effect for the Outstanding Principal shall automatically convert to the Base Rate plus one percent (1%) and the Default Rate in effect on the Outstanding Principal shall automatically convert to the Base Rate plus six percent (6%); unless, in the case of clause (iii), within five (5) Business Days of notice from Agent thereof, Borrower pays the difference in cost to Lenders of maintaining such LIBOR Rate in effect.

(b)           If the circumstance described in subparagraph (a) is eliminated, the Interest Rate shall automatically convert back to the LIBOR Rate.

SECTION 3.15       Payments and Computations.  (a)  All payments due under the Building Loan Documents shall be received by Agent not later than 2:00 P.M. (New York City time) on the day when due in U.S. dollars to Agent to the account specified in the Building Loan Notes.  Any payment received by Agent after 2:00 P.M. (New York City time) shall be deemed to have been made on the next succeeding Business Day.  Any payment due under any Building Loan Document which is timely paid to Agent shall be deemed, as between the Person making such payment and Lenders, to have been timely paid.

(b)           All computations of interest shall be made by Agent on the basis of a year of 360 days, in each case for the actual number of days occurring in the period for which such interest is payable.  Each determination by Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(c)           Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the immediately succeeding Business Day.

SECTION 3.16       Net Payment; Taxes.  (a)  All payments to Lenders under any Building Loan Document shall be made without any set-off, defense or counterclaim, and free and clear of, and without deduction for any withholdings or on account of, any present or future income, excise and other taxes of whatever nature (other than taxes generally assessed on income or receipts of any Lender or any franchise taxes imposed upon any Lender), or any levies, imposts, duties, charges or fees of any nature now or hereafter imposed by any Governmental Authority, and all interest, penalties or other liabilities with respect thereto (collectively, “Taxes”).  If any Borrower Entity is

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compelled by law to make any such deductions or withholdings, Borrower shall (or shall cause such other Borrower Entity to) pay such additional amounts as may be necessary in order that the net amount received by Lenders after such deductions or withholdings (including any required deduction or withholding on such additional amounts) shall equal the amount each Lender would have received had no such deductions or withholdings been made, and Borrower shall (or shall cause such other Borrower Entity to) promptly provide Agent with evidence satisfactory to Agent that it has paid such deductions or withholdings.  Moreover, if any Taxes are directly assessed against any Lender, such Lender may pay such Taxes and Borrower shall pay such additional amount as may be necessary in order that the net amount received by such Lender after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount such Lender would have received had no such Taxes been assessed.

(b)           Borrower will indemnify Lenders for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts paid or payable under this Section 3.16 paid by Lenders and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto).  Payments pursuant to this Section 3.16 shall be made within ten (10) days after the date Agent makes written demand therefor.

(c)           For purposes of this Section 3.16, the term “Lender” shall include any Person who, for purposes of the relevant laws imposing any Taxes, is treated as a successor or assign in interest of all or any portion of an interest in any Building Loan Document, whether such Person is an assignee or a Participant and whether or not such Person is a registered assignee and shall also include Agent and GMACCM in their respective capacities hereunder; provided, however, that if such Person is a Participant, such Person shall only be entitled to receive payments under this Section 3.16, and Borrower shall only be obligated to make payments under this Section 3.16 with respect to such Participant, to the extent that the Taxes assessed against, or paid by, such Participant do not exceed the Taxes that would have been assessed against, or paid by, the Lender from whom such Participant acquired (whether directly or indirectly) such interest.

(d)           The agreements and obligations contained in this Section 3.16 shall survive the termination of this Agreement and the payment of all amounts payable under the Building Loan Notes or the other Building Loan Documents.

(e)           (i)            Each Non-US Lender shall deliver to Borrower and Agent, on or prior to the date of the applicable Assignment and Acceptance Agreement pursuant to which it becomes a Lender, (A) two original copies of Internal Revenue Service Form W8-ECI or Form W-8BEN (or any successor forms), properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required under the Code to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payment to such Lender of principal, interest, fees or other amounts payable under any of the Building Loan Documents or (B) if such Lender is not a “bank” or other Person described in

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Section 881(c)(3) of the Code and cannot deliver either Internal Revenue Service Form W8-ECI or Form W-8BEN pursuant to clause (A) above, a Certificate of Non-Bank Status, together with two original copies of Internal Revenue Service Form W-8 (or any successor form), all properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required under the Code to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payment to such Lender of interest payable under any of the Building Loan Documents.

(ii)           Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to clause (i) of subsection 3.16(e) above hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly (A) deliver to Borrower two new original copies of Internal Revenue Service Form W8-ECI or Form W-8BEN (or any successor forms) or a Certificate of Non-Bank Status and two original copies of Internal Revenue Service Form W-8 (or any successor form), as the case may be, properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required in order to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Building Loan Documents or (B) notify Borrower of its inability to deliver any such forms, certificates or other evidence.

(iii)          No Borrower Entity shall be required to pay any additional amount to any Non-US Lender under Section 3.16(a) hereof if such Lender shall have failed to satisfy the requirements of subsection (i) or (ii)(A) of Section 3.16(e) above; provided that if such Lender shall have satisfied the requirements of subsection (i) of Section 3.16(e) on the date of the Assignment and Acceptance Agreement pursuant to which it became a Lender, nothing in this Section 3.16(e)(iii) shall relieve any Borrower Entity of its obligation to pay any additional amounts pursuant to Section 3.16(a) in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described in Section 3.16(e)(i).

SECTION 3.17       Distribution to Lenders.  (a)  In the event Agent receives current funds, in payment of principal, interest or any other sums due hereunder of which Lenders are entitled to a share, on or prior to 2:00 P.M. (New York City time) on any Business Day, then, on such date, Agent will notify Lenders of the same and will distribute like funds by wire transfer of immediately available funds to each Lender ratably to such accounts at such places as have been designated by the respective Lenders in writing from time to time.  If such funds are received after 2:00 P.M. (New York City

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time) on any Business Day, then Agent shall distribute such funds no later than the next succeeding Business Day.  Upon Agent’s receipt of any other amounts payable by Borrower or any other Person for items other than principal, interest or any other sums due under the Building Loan Documents of which Lenders are entitled to a share pursuant to the terms of any Building Loan Document or any Assignment and Acceptance Agreement, Agent shall cause the payment to be applied in accordance with this Agreement, the other Building Loan Documents and such Assignment and Acceptance Agreement.

(b)           If any Lender shall obtain any payment (whether voluntary or involuntary, through the exercise of any right of set-off, or otherwise) on account of the amounts owing to it in excess of its ratable share of payments on account of amounts obtained by all Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the amounts owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.  Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 3.17(b) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation.

SECTION 3.18       Balloon Payment.  Borrower understands and acknowledges that this Agreement and the other Building Loan Documents do not provide for any required amortization of the Building Loan and therefore, at the Maturity Date, a balloon payment of the Outstanding Principal will be required, along with payment in full of other sums due hereunder and under the other Building Loan Documents.

SECTION 3.19       Extensions.  (a)  Borrower shall have two (2) options to extend the term of the Loans (but not the term of only the Building Loan or only the Project Loan) for six (6) months each upon the satisfaction of the following terms and conditions:

(i)            not less than sixty (60) days before the Maturity Date, Borrower shall have given Agent notice of its election to extend the term of the Loans pursuant to this Section 3.19(a) and Section 3.19(a) of the Project Loan Agreement (the date on which such notice shall be given being hereinafter referred to as the “Extension Option Exercise Date”);

(ii)           on the Extension Option Exercise Date and through and including the Maturity Date, no monetary Event of Default shall exist;

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(iii)          Borrower shall pay the Extension Fee on or before the Maturity Date;

(iv)          Core and Shell Completion shall have been achieved by the date which is fifteen (15) days prior to the Maturity Date (the “Measuring Date”) and a temporary certificate of occupancy (which may be a zero occupancy or core and shell certificate of occupancy) shall have been issued for the Project on or before the Measuring Date;

(v)           as of the Measuring Date, the Pro Forma Debt Service Coverage Ratio (calculated after giving effect to the payment made pursuant to clause (6) of Section 7.46(a) hereof) shall be equal to or greater than 1.30:1.0, provided that, for purposes of this clause (vi), only Approved Leases with respect to which Rents are being paid as of the Measuring Date shall be included for purposes of calculating Pro Forma Operating Income;

(vi)          the NYTC Units Redemption shall have occurred on or before the Measuring Date; and

(vii)         the ratio, expressed as a percentage, of the Remaining Loan Amount as of the Maturity Date to the Appraised Value (as shown in 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 Measuring Date) shall be equal to or less than fifty-five percent (55%).

If the conditions under this Section 3.19(a) are met, then the reference to the Original Maturity Date in the definition of Maturity Date (or such later date that has replaced the Original Maturity Date in said definition as a result of the application of the last sentence of Section 3.19(b) hereof) shall be deemed deleted and replaced with a reference to a date that is the six-month anniversary of the Original Maturity Date (or such later date) (in the case of the first option) (such date, the “First Extended Maturity Date”) or the date that is the six-month anniversary of the First Extended Maturity Date (or such later date that has replaced the First Extended Maturity Date in said definition as a result of the application of the last sentence of Section 3.19(b) hereof)(in the case of the second option) (the “Second Extended Maturity Date”).  Such extension shall be on the same terms and conditions contained in this Agreement except (x) to the extent expressly provided to the contrary herein, and (y) if the first extension has occurred, Borrower shall only have the right to one (1) remaining six-month extension pursuant to this Section 3.19(a) and if the second extension has occurred, Borrower shall have no further right to extend the term of the Loans pursuant to this Section 3.19(a).

(b)           Force Majeure Extension.  Borrower shall have one or more options to extend the term of the Loans (but not the term of only the Building Loan or only the Project Loan) if a Force Majeure Event shall have occurred and if the following terms and conditions are satisfied:  (i) not more than five (5) Business Days after Borrower becomes aware of the occurrence of a Force Majeure Event, Borrower

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shall have given Agent notice of the occurrence of such Force Majeure Event and a notice of its election to extend the term of the Loans pursuant to this Section 3.19(b) and Section 3.19(b) of the Project Loan Agreement (the date on which such notice shall be given being hereinafter referred to as the “Force Majeure Extension Option Exercise Date”); (ii) in the reasonable judgment of Agent, such Force Majeure Event will delay Final Completion of the Project beyond the Maturity Date; (iii) in the reasonable judgment of Agent, Borrower shall have taken all steps commercially reasonable to mitigate the effects of such Force Majeure Event; (iv) on the Force Majeure Extension Option Date, no Noticed Default or Event of Default shall exist under any Loan Document; (v) Borrower shall have provided to Agent evidence of the continuation of the Policies and the payment of any premiums then due therefor; (vi) appropriate extensions, to the extent required to keep such document in full force and effect and free from any default, shall have been granted under the Public Project Agreements and for a period of time at least equal to the Force Majeure Extension Period; (vii) Borrower shall have provided to Agent evidence of the continuation of the Initial Advance Interest Rate Cap through the extended Maturity Date on terms and conditions reasonably satisfactory to Agent, to the extent Borrower was required to purchase the Initial Advance Interest Rate Cap in accordance with the terms hereof, or, if no Initial Advance Interest Rate Cap was so required, Borrower and Agent shall have entered into a written agreement reasonably satisfactory to Agent with respect to interest rate protection during the Force Majeure Extension Period (provided that if, in Agent’s discretion, the cost of any interest rate protection required by this clause (vii) is prohibitive, Borrower may deposit with or deliver to Agent other security in lieu thereof satisfactory to Agent); and (viii) each Guarantor shall acknowledge and confirm to Agent, on or prior to the Maturity Date, the exercise of the extension period by Borrower.  The period of the extension option under this Section 3.19(b) shall be determined by Agent in its reasonable judgment and shall be equal to the number of days by which Substantial Completion has been or is reasonably expected to be delayed due to such Force Majeure Event, assuming that Borrower and the General Contractor take all steps commercially reasonable to mitigate the effects of such Force Majeure Event; provided, however, that (x) in no event shall all extensions pursuant to this Section 3.19(b) be more than 180 days in the aggregate (the period of such extensions being hereinafter collectively referred to as the “Force Majeure Extension Period”) and (y) any such extension shall in all events end if, and as of the date that, Borrower is not in compliance with the immediately succeeding sentence.  If a Force Majeure Event shall have occurred, Borrower shall (1) periodically (at least once every two weeks) advise Agent of the status of such Force Majeure Event and its effect on completion of the Project and (2) take all steps, and cause the General Contractor to take all steps, commercially reasonable to mitigate the effects of such Force Majeure Event.  If the Maturity Date is extended in accordance with this Section 3.19(b), all references to the Original Maturity Date, the First Extended Maturity Date, or the Second Extended Maturity Date shall be interpreted so that such references are to such date, as extended by the applicable Force Majeure Extension Period.

(c)           Borrower shall pay at the time of and as a condition to the extension of the term of the Building Loan described in Sections 3.19(a) and (b) above, (i) all reasonable, third-party out-of-pocket fees and expenses of Agent in preparing, executing, delivering, or recording any documents or instruments related to such

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extension, and (ii) all reasonable, third-party out-of-pocket fees and expenses of Agent in connection with any title company searches and insurance which Agent may reasonably then require.

(d)           Without Agent’s prior reasonable consent, Borrower shall not consent to an extension for an “Excusable Delay” under Section 11.7 of the Guaranteed Maximum Price Contract unless (i) such “Excusable Delay” is a Force Majeure Event and (ii) the conditions set forth in clauses (i)-(viii) of Section 3.19(b) hereof have been satisfied.

SECTION 3.20       Reallocations.  Agent and Borrower acknowledge and confirm that NYTC Member has the right to dispute any Draw Request (including if made after the NYTC Units Redemption) and the allocation of costs to the Units shown in any Draw Request, as and to the extent set forth in the Operating Agreement.  (Notwithstanding the foregoing or the further provisions of this Section 3.20, no such dispute shall abrogate, nullify or modify any Draw Request or any portion thereof.)  Agent and Borrower further acknowledge that, following the resolution by agreement between the Members of any such dispute (which agreement or determination Borrower, the Members, and Agent shall accept as final and binding), Borrower shall reallocate Building Loan Costs and Project Loan Costs between the FC Units and the NYTC Units as necessary to reflect the resolution or arbitration of the issues in dispute, and the next Draw Request shall reflect such re-allocations.  More particularly, Borrower and Agent agree that if any costs were (or are) initially allocated to the FC Units or the NYTC Units (such Units, the “Overfunding Unit”) and then are re-allocated to the other Units (such Units, the “Underfunding Unit”), the Building Loan Costs and Project Loan Costs allocated to the Overfunding Unit shall be decreased by all such amounts which are so re-allocated, together with interest thereon as provided herein from the date on which such cost was (or is) paid by an Advance, until the date on which each such cost is re-allocated to the Underfunding Units, and the Building Loan Costs and Project Loan Costs of the Underfunding Units shall be likewise increased.  In such event, at the next Draw Request, the Maximum Amount covering the Overfunding Unit shall be retroactively increased to reflect the reallocated items of Building Loan Costs and Project Loan Costs, together with interest at the Interest Rate from the date of the Advance for such item, and the outstanding balance of the Maximum Amount covering the Underfunding Units shall be retroactively decreased to reflect such reallocated items of Building Loan Costs and Project Loan Costs, together with interest at the Interest Rate.  Corresponding adjustments shall be made in the applicable Budgets.  In addition, if the Overfunding Unit had funded such amount not through an Advance but through a capital contribution or out of other funds, then a reallocation shall be made to reflect such amount in the applicable Budgets.

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ARTICLE 4

CONDITIONS PRECEDENT TO BUILDING LOAN
CLOSING AND DISBURSEMENT OF LOAN PROCEEDS

SECTION 4.01       Conditions of Building Loan Closing.  The obligation of Agent to execute and deliver on the Closing Date the Loan Documents to which it is a party shall be subject to the following conditions precedent, unless any such condition precedent is waived by Agent in its sole discretion (and Agent hereby agrees that its execution and delivery of this Agreement constitutes an acknowledgment that all such conditions precedent have been satisfied or waived as a condition precedent to the closing hereunder):

(a)           Payment of Fees.  Borrower shall have paid all fees described in the Commitment Letter as being payable on or before the closing of the Building Loan and all other fees and expenses required by this Agreement, the Side Letter re: Fees or any other Building Loan Document to be paid on the Closing Date including, without limitation, the Administration Fee allocable to the period of time from the Closing Date through the end of the calendar month on which the Closing Date occurs.

(b)           Required Equity Funds.  Borrower shall have furnished Agent with evidence in form and content satisfactory to Agent of the Initial Required Equity Funds contributed as of the date immediately preceding the date hereof, which Initial Required Equity Funds are set forth on Schedule 1 hereto, and that the Loan Amount plus all Initial Required Equity Funds will be sufficient to cover all Building Loan Costs and Project Loan Costs reasonably anticipated to be incurred, as set forth in the Budgets.

(c)           Building Loan Documents.  The Building Loan Documents listed in Article 2 hereof, in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto and shall be in full force and effect, and Agent shall have received the originals thereof.

(d)           Guaranteed Maximum Price Contract.  The Guaranteed Maximum Price Contract, together with that Guarantee of Performance dated as of February 5, 2004 by the GMP Guarantor in favor of Borrower (the “GMP Guaranty”), each of which shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto, shall be in full force and effect and Agent shall have received a certified copy thereof.  The General Contractor shall have duly executed and delivered to Agent a consent to the collateral assignment of the Guaranteed Maximum Price Contract and the GMP Guarantor shall have duly executed and delivered to Agent a consent to the collateral assignment of the GMP Guaranty, in form and substance satisfactory to Agent.

(e)           Architect’s Contract.  The Architect’s Contract, in form and substance satisfactory to Agent, shall have been duly executed and delivered by the

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parties thereto, shall be in full force and effect and Agent shall have received a certified copy thereof.  Borrower’s Architects shall have duly executed and delivered to Agent a consent to the collateral assignment of the Architect’s Contract, in form and substance satisfactory to Agent.

(f)            Leasing Agent Agreement.  If any Leasing Agent Agreement shall have been executed, (a) such Leasing Agent Agreement shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto and shall be in full force and effect, (b) Agent shall have received a certified copy thereof and (c) if requested by Agent, the leasing agent thereunder shall have duly executed and delivered to Agent a consent to the collateral assignment of such Leasing Agent Agreement, in form and substance satisfactory to Agent.

(g)           Managing Agent Agreement.  If any Managing Agent Agreement shall have been executed by Borrower or any Member, (a) such Managing Agent Agreement shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto and shall be in full force and effect, (b) Agent shall have received a certified copy thereof and (c) the managing agent thereunder shall have duly executed and delivered to Agent a consent to the collateral assignment of such Managing Agent Agreement, in form and substance satisfactory to Agent.

(h)           Other Material Contracts.  Borrower shall have delivered to Agent true, correct and complete photocopies of all other Material Contracts in effect as of the date hereof, certified by Borrower or such other Borrower Entity which is a party thereto, and at Agent’s option, a consent to the collateral assignment of such contracts.

(i)            Deliveries.  The following items or documents shall have been delivered to Agent, each of which shall be in form and substance satisfactory to Agent:

(1)           Plans and Specifications.  Two (2) complete sets of the Plans and Specifications, including each Change Order (regardless of whether the amount of such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced), certified by Borrower;

(2)           Title Insurance Policy.  A marked commitment to issue a paid mortgagee title insurance policy (the “Title Insurance Policy”) from the Title Insurance Companies, which marked commitment shall be subject only to the Permitted Exceptions, shall insure the Building Loan Mortgage as a valid first lien on the applicable Mortgaged Property and shall be in the amount of the Building Loan Amount (subject to any pending disbursements clause) and shall contain such coverages, endorsements, re-insurance and co-insurance as the Agent may require;

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(3)           Other Insurance.  The original of all Policies which shall be in form and content acceptable to Agent and an insurance consultant acceptable to Agent and evidence from insurance companies acceptable to Agent indicating that Borrower’s Architects, General Contractor and all other Major Contractors and Major Subcontractors are covered by professional liability insurance or other liability insurance, as applicable, as required by the applicable contract;

(4)           Equity Contribution.  All of the Equity Contribution Documents, certified by FC Member and NYTC Member;

(5)           Extension Loan.  If NYTC Guarantor does not have an Acceptable Rating as of the Closing Date, cash or a letter of credit in an amount and (in the case of a letter of credit) in the form and containing such provisions as are acceptable to Agent, as security for the Extension Loan;

(6)           Labor Agreement.  An executed and delivered “no strikes” agreement between Borrower and the Building & Construction Trade Council of Greater New York (the “No Strikes Agreement”) in form and substance satisfactory to Agent;

(7)           Environmental Report.  A Phase I environmental site assessment prepared by an environmental consulting or engineering firm acceptable to Agent upon which Agent is expressly entitled to rely, a “close-out” letter relating to asbestos abatement upon which Agent is expressly entitled to rely, and if requested by Agent, a Phase II environmental site assessment, indicating in each case a condition of the Premises in all respects satisfactory to Agent, and upon which Agent is expressly entitled to rely;

(8)           Survey.  The Survey;

(9)           Submarket Analysis.  A submarket analysis, including, without limitation, potential new construction, rents, expenses and absorption underwritten by Agent in form and substance satisfactory to Agent;

(10)         Geotechnical Updates.  A geotechnical report from an engineering company satisfactory to Agent, which report shall indicate a condition of the Premises in all respects satisfactory to Agent, and upon which report Agent is expressly entitled to rely;

(11)         Governmental Approvals and Third Party Approvals.  All Governmental Approvals and all other third party consents and approvals necessary for the valid execution, delivery and performance by any Borrower Entity of this Agreement or the other Building Loan Documents and for the construction of the Project as contemplated by the

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Plans and Specifications, including, without limitation, a building permit to the extent then required by applicable law;

(12)         Architect’s Statement and General Contractor’s Certificate.  A statement from Lead Architect (the “Architect’s Certificate”) and a certificate from the General Contractor (the “General Contractor’s Certificate”) in the forms attached hereto as Exhibits I and J, respectively or in such other forms as may be acceptable to Agent;

(13)         Leases.  Copies of all Leases, if any, each certified by Borrower or the applicable Member, as applicable, and each satisfactory to Agent; Non-Disturbance Agreements between Agent and the tenants under such Leases to the extent required by Section 7.14(b) hereof (with such changes thereto as may be reasonably approved by Agent) or in such other form as may be reasonably approved by Agent; estoppel certificates from the tenants under such Leases, in the form attached hereto as Exhibit K; a New York Real Property Law Section 291-f notice (a “Section 291-f Notice”) with respect to each Lease; and an executed acknowledgment from each tenant under such Leases relating to the payment of rent and security deposits to the applicable Collection Accounts and Security Deposits Account and the use of an expedited check clearing process;

(14)         Organizational Documents.  Copies of all organizational documentation related to the Borrower Entities and such other entities as Agent shall request and/or their formation, structure, existence, good standing and/or qualification to do business, as Agent may request, including such resolutions and/or consents and incumbency certificates as may be requested by Agent, certified in each case by the applicable Borrower Entity;

(15)         Ownership Structure Chart.  A chart showing all direct and indirect ownership interests in Borrower and the Members (but not including any direct or indirect ownership interests in either Guarantor provided that the shares of such Guarantor are listed on a nationally recognized exchange), to the extent required by Agent, in form and substance acceptable to Agent and certified by Borrower or the applicable Member, as true, complete and correct in all respects as of the Closing Date;

(16)         Budgets.  The Budgets, certified by Borrower;

(17)         Searches.  To the extent required by Agent, current tax lien, pending litigation, bankruptcy, judgment lien and Uniform Commercial Code searches against each Borrower Entity and such other entities as Agent shall request, in such jurisdictions and offices as Agent shall designate, dated not earlier than 30 days before the Closing Date.

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Such searches shall not have revealed any lien, litigation, bankruptcy or filing against any such entities other than those acceptable to Agent; and

(18)         Plan and Cost Review.  A plan and cost review prepared by Construction Consultant and acceptable to Agent.

(j)            Legal Opinions.  Agent shall have received opinions addressed to Agent in form and substance satisfactory to Agent and Agent’s counsel from counsel satisfactory to Agent as to such matters (including, without limitation, zoning matters, the Guaranteed Maximum Price Contract and the GMP Guaranty) as Agent shall request.

(k)           Union Labor.  Agent shall have received evidence satisfactory to it (and Agent acknowledges that the execution by General Contractor of the General Contractor’s Certificate shall be satisfactory evidence) that all work performed in connection with the construction of the Project has been performed in accordance with the provisions of Section 7.37 hereof.

(l)            Notices.  All notices required by any Governmental Authority or by any applicable Legal Requirements to be filed prior to the date of this Agreement in connection with the Project or the Building Loan shall have been filed.

(m)          Appraisal.  An appraisal satisfactory to Agent prepared by an appraiser satisfactory to Agent (an “Appraisal”).

(n)           Performance; No Default.  Each Borrower Entity shall have performed and complied with all terms and conditions of the Building Loan Documents to which each is a party required to be performed or complied with by it at or prior to the Closing Date, and on the Closing Date, there shall exist no Default or Event of Default hereunder.

(o)           Representations and Warranties.  The representations and warranties made by the Borrower Entities in the Building Loan Documents or otherwise made by or on behalf of such Borrower Entities in connection therewith shall be true and correct in all material respects on the Closing Date.

(p)           Proceedings.  All proceedings in connection with the transactions contemplated by this Agreement and the other Building Loan Documents shall be satisfactory to Agent and Agent’s counsel, and Agent shall have received all information and such counterpart originals or certified copies of such documents and such other certificates, opinions or documents as Agent and Agent’s counsel may require.

(q)           Lien Waivers.  Agent and Construction Consultant shall have received duly executed lien waivers in substantially the form set forth in Exhibit L hereto (or such other form as may be approved by Agent) from all Lien Waiver Parties to the extent payment thereto has been made prior to, or is being made on, the Closing Date.  Notwithstanding the foregoing, in the event that there shall exist any dispute with any such Lien Waiver Party as to payment for all or any portion of the work performed or

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labor, materials or goods supplied prior to the Closing Date by such Lien Waiver Party, and provided that in the reasonable opinion of Agent and Construction Consultant, Borrower has a reasonable, good-faith position in such dispute and is diligently working to resolve such dispute, Agent shall accept a partial lien waiver from such Lien Waiver Party covering the portion of such payment not in dispute, provided that (x) such disputes with all Lien Waiver Parties shall not, without Agent’s consent, exceed $2,000,000 in the aggregate and (y) either (1) Borrower shall demonstrate, to Agent’s reasonable satisfaction, that each applicable Lien Waiver Party does not have a material likelihood of prevailing, in whole or in part (including pursuant to a settlement), in its dispute or (2) to the extent the foregoing clause (1) does not apply, the Loans must remain In Balance after assuming that such Lien Waiver Parties will prevail in such disputes.

(r)            Project Loan.  All entities (other than Agent) required to execute or deliver any document in connection with the Project Loan shall have simultaneously executed and/or delivered such documents and all conditions precedent to the Project Loan set forth in Section 4.01 of the Project Loan Agreement shall have been fulfilled (or waived by Agent in its sole discretion).

(s)           ADA Compliance.  Borrower shall have furnished evidence satisfactory to Agent that the Improvements, when constructed, will comply in all respects with the Americans with Disabilities Act of 1990, all state and local laws and ordinances relating to handicapped access and all rules, regulations and orders issued pursuant thereto, including, without limitation, a report on the Americans with Disabilities Accessibility Guidelines for Buildings and Facilities (and Agent acknowledges that the execution by the Lead Architect of the Architect’s Certificate shall be satisfactory evidence thereof).

(t)            Construction Consultant’s Report.  Agent shall have received a written report from the Construction Consultant, in form and substance satisfactory to Agent, relating to the construction of the Project performed prior to the Closing Date, including, without limitation, a report on the percentage of completion which has been achieved as of the Closing Date for each of the Units.

(u)           Schedules.  Borrower shall have delivered to Agent the Construction Schedule and the Disbursement Schedule, each certified by Borrower, and each such schedule shall be satisfactory to Agent and Construction Consultant.

(v)           Lien Law.  Borrower shall have executed, acknowledged and delivered the Lien Law Affidavit, the Notice of Lending and the Notice of Assignment, in each case in form and substance satisfactory to Agent.

(w)          Tri-Party Agreement and Estoppel Letters.  (i) Borrower shall have delivered that certain Tri-Party Agreement by and among Ground Lessor, Borrower, the Members and Agent, for itself and on behalf of Lenders (“Tri-Party Agreement”) with respect to the Ground Lease and the Severance Subleases, in form and substance acceptable to Agent, and (ii) an estoppel letter in form and substance acceptable to Agent from (1) the New York City Transit Authority with respect to the

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Subway Agreement (the “Subway Agreement Estoppel Letter”), and (2) from ESDC, Ground Lessor and the City of New York with respect to the Site 8 Project Agreement, the Land Acquisition Agreement and the Subway Agreement (the “Public Project Agreements Estoppel Letter”), each in form and substance acceptable to Agent.

(x)            Closing Statement.  Borrower and Agent shall have executed and delivered a closing statement setting forth, in reasonable detail, the sources and uses of funds as of the Closing Date.

(y)           Zoning; Transfer Tax Rulings, etc.  Borrower shall have delivered to Agent evidence satisfactory to Agent that (i) all zoning approvals required for the construction of the Project have been obtained and (ii) Borrower has complied with all requirements of the Subway Agreement to the extent required as of such date.  Borrower shall have delivered to Agent rulings, in form and substance satisfactory to Agent, from the City and State of New York, with respect to the future exemption from transfer taxes of the redemption by each Member of its Units.

(z)            Approvals.  Borrower shall have delivered a letter or other acknowledgment in form and substance satisfactory to Agent (i) from ING Member and FC 41st Street that the Loans are an “Acceptable Construction Loan” for purposes of the FC Operating Agreement and (ii) from ING Member approving the Equity Contribution and waiving its right to contest any Draw Request.

(aa)         Other Documents.  Borrower shall have delivered such other documents and certificates as Agent or its counsel may reasonably require.

SECTION 4.02       Conditions of Advances.  The obligation of the Lenders to make the initial Advance (the “Initial Construction Advance”) or any subsequent Advances (unless any such condition precedent is waived by Agent in its sole discretion (subject to Section 8.03 hereof)) of the Building Loan shall be subject to the following conditions precedent:

(a)           Prior Conditions Satisfied.  All conditions precedent set forth in Section 4.01 shall continue to be satisfied as of the date of each Advance, provided that all such conditions precedent shall be deemed to be continued to be satisfied and Borrower shall have no obligation to deliver or satisfy any such conditions except that Borrower shall be obligated to deliver the documents referred to in Sections 4.01(f) and (g) hereof (if not previously delivered) and any amendments, modifications, substitutions, replacements or supplements to the documents referred to in Sections 4.01(c)-(h) and (k)-(l) hereof.

(b)           Performance; No Default.  On the date of such Advance there shall exist no Noticed Default or Event of Default hereunder and no Noticed Default or Event of Default under and as defined in the Project Loan Agreement.

(c)           Representations and Warranties.  The representations and warranties made by Borrower Entities in the Building Loan Documents, or otherwise

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made by or on behalf of Borrower Entities in connection therewith after the date thereof, shall have been true and correct in all material respects on the date on which made and shall also be true and correct in all material respects on the date of such Advance, except (a) in each case to the extent that the failure of any such representation or warranty to be true and correct in all material respects on the date of such Advance does not have, and is not reasonably likely to have, a Material Adverse Effect (it being agreed, however, that if the facts causing such failure of any representation or warranty to be untrue or incorrect shall constitute a Default or Event of Default, nothing herein shall be construed to constitute a waiver by Agent of such Default or Event of Default) and (b) that the representations made in Section 6.04(b) and the second sentence of Section 6.05(a) and the representations made in Section 6.10 and Section 6.13 with respect to the Guarantors need not be true and correct on the date of each Advance.

(d)           No Damage.  The Project shall not have been injured or damaged by fire, explosion, accident, flood or other casualty, or been subject to any condemnation, governmental taking or eminent domain proceeding (other than the “Condemnation” as defined in the Ground Lease and the Severance Subleases) unless Agent shall have received (or shall have received evidence reasonably satisfactory to Agent that Agent will receive in a timely manner) Net Proceeds, Net Awards or Proceeds and/or a Completion Deposit sufficient in the reasonable judgment of Agent to effect the satisfactory restoration of the Project, “Substantial Completion” (as defined in the Ground Lease) to be achieved by no later than the Fixed Substantial Completion Date (subject to Unavoidable Delay) and Final Completion to be achieved no later than the Maturity Date, which restoration shall be governed by the terms of the Building Loan Mortgage.

(e)           Receipt by Agent and Construction Consultant.  Agent and Construction Consultant shall have received the following at least 10 Business Days prior to (or, in the case of clause (3), on) the Requested Advance Date:

(1)           Draw Request.  A Draw Request (which shall also be submitted to the Disbursement Agent, but only to the extent Agent has informed Borrower that the Advance in question will be advanced by Disbursement Agent pursuant to Section 5.02(b) hereof) specifying the date proposed for such Advance, which date must be a Business Day (the “Requested Advance Date”);

(2)           Schedule of Other Funding Sources.  If applicable, a statement as to the amount of Building Loan Costs and Project Loan Costs intended to be paid or funded on the Requested Advance Date with Other Funds;

(3)           Title Continuation Letter.  A continuation letter with respect to the Title Insurance Policy theretofore delivered, which continuation letter shall be substantially in the form required by the Construction Loan Disbursement Agreement and shall show no exceptions to title other than Permitted Exceptions;

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(4)           Lien Waivers.  Duly executed lien waivers in substantially the form set forth in Exhibit L hereto (or such other form as may be reasonably approved by Agent) from all Lien Waiver Parties for work performed, and for goods, labor, materials and/or services supplied, through the last day of the period covered by the Draw Request, except (A) that in the case of work performed and goods, labor, materials and/or services supplied for which payment thereof is requested, such duly executed lien waivers may be conditioned on such payment, (B) for any Retainage which is allowed to be deducted in accordance with the terms hereof and (C) to the extent that Agent has agreed to accept partial lien waivers in accordance with the standards set forth in the second sentence of Section 4.01(q);

(5)           Architect’s and General Contractor’s Certificates.  A General Contractor’s Certificate from the General Contractor and an Architect’s Certificate from the Lead Architect;

(6)           Payment and Performance Bonds.  Payment and Performance Bonds covering (i) all Hard Cost Contracts with contract prices equal to or in excess of $500,000.00, after taking into account all amendments thereto and Change Orders and (ii) to the extent not covered by the foregoing clause (i), at least 70% of the Hard Costs (clauses (i) and (ii) collectively, “Payment and Performance Bond Contracts”).  Notwithstanding anything to the contrary contained herein, (x) in no event shall the Guaranteed Maximum Price Contract be a Payment and Performance Bond Contract for purposes of clause (i) of the preceding sentence and (y) to the extent that the work to be performed under a Payment and Performance Bond Contract has been completed in full (and the applicable contractor has delivered a final, unconditional lien waiver with respect thereto) prior to the Initial Advance, then for all purposes hereunder a Payment and Performance Bond shall be deemed to have been obtained with respect to such contract;

(7)           Interest Rate Caps.  As a condition to the Initial Advance only, and only if Breakeven Leasing has not been achieved by the Requested Advance Date for the Initial Advance, Borrower shall have delivered to Agent an interest rate cap in form and substance acceptable to Agent (the “Initial Advance Interest Rate Cap”) between Borrower and a counterparty acceptable to Agent which shall cap the LIBOR Rate for the Building Loan and Project Loan until the Maturity Date (without giving effect to any extensions under Section 3.19(a) hereof) at the rates, and for the corresponding periods set forth in, Schedule 2 hereto, together with (i) a collateral assignment of the Initial Advance Interest Rate Cap in the form of Exhibit M hereto (an “Assignment of Interest Rate Cap”), (ii) a consent by the counterparty thereto to such collateral assignment and (iii) an opinion, in form and substance and from counsel reasonably acceptable to Agent, as to the due authorization, execution and delivery by

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Borrower and enforceability of, and other customary matters with respect to, the Initial Advance Interest Rate Cap and the Assignment of Interest Rate Cap, but in no event as to any matters with respect to such counterparty (other than enforceability of the Initial Advance Interest Rate Cap against such counterparty).  If Breakeven Leasing has been achieved by the Requested Advance Date with respect to the Initial Advance (and therefore Borrower shall not have been required to deliver the Initial Advance Interest Rate Cap), Borrower shall have delivered to Agent the Future Advance Interest Rate Caps and other items as and to the extent required by Section 7.20 hereof as of the Requested Advance Date as a condition to any subsequent Advance;

(8)           Application for Payment.  From each Major Contractor (including the General Contractor), a completed and itemized Application and Certificate for Payment in the form of AIA Document No. G702 (including AIA Form G703 as an attachment thereto), or similar form reasonably approved by Agent, containing the required certification of such Major Contractor and Borrower’s Architects, together with all invoices relating to all items of Building Loan Costs covered thereby and further accompanied by a cost breakdown showing the cost of work on, and the cost of materials incorporated into, the Project to the date of the requisition.  The cost breakdown shall also show the percentage of completion of each line item in the Budgets.  All such applications for payment shall also show all contractors and subcontractors, including Major Subcontractors, by name and trade, the total amount of each contract and/or subcontract, the amount theretofore paid to each contractor and/or subcontractor as of the date of such application, and the amount to be paid from the proceeds of the Advance to each contractor and/or subcontractor;

(9)           Changes to Budgets.  An update of the Budgets reflecting all actual and anticipated costs and in compliance with Section 3.02 hereof, which update must be approved by Agent, such approval not to be unreasonably withheld or delayed; provided that nothing in this Section 4.02(e)(9) shall entitle Agent to request, or shall permit Agent to condition its consent to any change(s) in the Budgets on (x) an increase in any line item in the Budgets for tenant improvements or leasing commission costs and/or (y) an increase in any interest line item on account of any delay in achieving Stabilized Occupancy.  The proviso clause of the preceding sentence shall not apply with respect to any Advance made on or after the Original Maturity Date (after giving effect to any extensions under Section 3.19(b) hereof) if, as of the Original Maturity Date, the ratio (expressed as a percentage) of the Remaining Loan Amount to the Appraised Value of the FC Units is more than 70%.  Nothing in this Section 4.02(e)(9) shall prohibit Agent from reasonably withholding its consent to any line item decrease in any of the line items referred to in clauses (x) and (y) above;

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(10)         Change Orders.  Copies of all Change Orders, regardless of whether the amount of such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced) to the extent not previously delivered to Agent, and, to the extent reasonably requested by Agent, copies of all inspection or test reports and other documents relating to the construction of the Project not previously delivered to Agent or Construction Consultant;

(11)         Disbursement Schedule and Construction Schedule.  An update of the Disbursement Schedule (but only if requested by Agent) and Construction Schedule, which updates must be approved by Agent, which approval shall not be unreasonably withheld or delayed (provided that with respect to the Disbursement Schedule only, Agent shall be deemed to have approved any best estimate update made in good faith by Borrower).  Each such update must reflect all Change Orders, regardless of whether the amount of any such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced.  If any such update includes changes to the Disbursement Schedule, such update must be accompanied by evidence reasonably satisfactory to Agent that the Interest Rate Cap(s) (but only to the extent required by the terms hereof) will be modified, to the extent necessary, to conform with such changes, and if any such update includes changes to the Construction Schedule, such update must be accompanied by evidence reasonably satisfactory to Agent that such change does not make it likely that Borrower will fail to achieve “Substantial Completion” (as defined in the Ground Lease) by the Fixed Substantial Completion Date (subject to Unavoidable Delay) and Final Completion by the Maturity Date;

(12)         Governmental and Third Party Approvals.  To the extent not previously delivered, all Governmental Approvals and all other third party consents and approvals necessary for the Project as contemplated by the Plans and Specifications, including, without limitation, a building permit; and

(13)         Stored Materials.  The letter referred to in Section 3.04(c) hereof, to the extent that such Advance includes Loan proceeds for Stored Materials, but only if Borrower shall have acquired Stored Materials that are not subject to any previous letter delivered to Agent pursuant to said Section.

(f)            Material Contracts; Leases.  Agent shall have received true, correct and complete photocopies of all Material Contracts and Leases in effect on the date of the Draw Request, to the extent not previously delivered to Agent, certified by Borrower or the Borrower Entity which is a party thereto.  Each such Material Contract shall have been approved by Agent in accordance with Section 7.13 hereof; and a consent

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to the collateral assignment of any Material Contract, if requested by Agent, in form and substance reasonably satisfactory to Agent, shall be delivered to Agent, to the extent not previously delivered to Agent.

(g)           Evidence of Sufficiency of Funds; Construction Consultant Approval.  Each Budget shall be In Balance.  Agent shall have received written certification from the Construction Consultant to the effect that in its reasonable opinion the condition set forth in the immediately preceding sentence has been satisfied; that the work theretofore completed was completed to its satisfaction substantially in accordance with the Plans and Specifications and in accordance with all Legal Requirements; that “Substantial Completion” (as defined in the Ground Lease) shall be achievable by the Fixed Substantial Completion Date (subject to Unavoidable Delay) and Final Completion shall be achievable by the Maturity Date; as a condition to the Initial Advance only, that Borrower shall be able to Commence Initial Construction (as defined in the Ground Lease) of Tenant’s Construction Work (as defined in the Ground Lease) by the Fixed Construction Commencement Date (as defined in the Ground Lease) (subject to Unavoidable Delay); and that each Budget and each line item thereof is the best reasonable projection of all remaining Building Loan Costs and Project Loan Costs and all remaining costs covered by each line item, as applicable.  Such certification shall also cover such other information as Agent may from time to time reasonably request.

(h)           Other Funding Sources.  No later than 11:00 A.M. (New York City time) on the Requested Advance Date, all Other Funds covered by the statement described in Section 4.02(e)(2) hereof shall have been received by Agent (in the case of Advances disbursed in accordance with Section 5.02(b)(i) hereof) or received by Disbursement Agent (in the case of Advances disbursed in accordance with Section 5.02(b)(ii) hereof).

(i)            Lien Law.  To the extent required by the Lien Law, Borrower shall have delivered an update to the Lien Law Affidavit, a new Notice of Lending and a new Notice of Assignment.

(j)            Borrower LCs.  (i) the Borrower LCs shall be in full force and effect or shall have been fully drawn upon or (ii) to the extent clause (i) is not the case, the appropriate Borrower LC Deposit shall have been made in accordance with Section 7.54 hereof, and, if requested by Agent, reasonable evidence of clause (i) or clause (ii), as applicable.

(k)           Deliveries to Third Parties.  To the extent not previously delivered, evidence reasonably satisfactory to Agent that Borrower has complied with its delivery obligations set forth in Section 7.56 hereof.

(l)            Accounts.  Borrower shall have complied with its obligations under Section 7.57 hereof.

(m)          Property Taxes.  Either (i) Lot 15 shall have been subdivided in accordance with the last sentence of Section 7.43 hereof, (ii) all Property

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Taxes assessed against Lot 15 that are then due and payable shall have been paid in full or (iii) the title continuation letter referred to in Section 4.02(e) shall not contain any exceptions to title insurance coverage for Property Taxes assessed against Lot 15.

(n)           Other Documents.  Borrower shall have delivered such other information, documents and certificates as Agent or its counsel may reasonably require.

SECTION 4.03       Conditions of Final Construction Advance.  In addition to the conditions set forth in Section 4.02 above, each Lender’s obligation to make the final Advance for NYTC Units Budget costs or for FC Units Budget costs, or for the Loans, pursuant to this Agreement shall be subject to satisfaction of the following additional conditions (unless waived by Agent in its sole discretion (subject to Section 8.03) or unless all of the Indebtedness is being paid in full at the time of the making of the final Advance):

(a)           Completion.  With respect to the final Advance for either Budget, Final Completion of the applicable Units(s) shall have occurred or will occur upon the making of such Advance.

(b)           Final Survey.  With respect to the final Advance of the Loans, if then prepared and available, receipt by Agent of a final Survey reasonably acceptable to Agent showing the as built location of the Project (and if not so prepared and available Borrower hereby covenants to deliver such Survey to Agent within one hundred and twenty (120) days after the date of the final Advance).

(c)           Payment of Costs.  With respect to the final Advance for either Budget, evidence reasonably satisfactory to Agent that all Project Loan Costs and Building Loan Costs allocable to the applicable Units have been paid in full (or will be paid out of the funds requested to be advanced) and that no party claims or has a right to claim any statutory or common law lien arising out of the construction of such Units or the supplying of labor, goods, material and/or services in connection therewith.

(d)           Other Documents.  Such documents, letters, affidavits, reports and assurances, as Agent or Agent’s counsel may reasonably require.

SECTION 4.04       Contributions of Initial Required Equity Funds.

(a)           Until such time as all Initial Required Equity Funds have been contributed and the Initial Construction Advance is made, Borrower shall, at least one (1) time per calendar month (and, in any event, at least ten (10) Business Days prior to any date (an “Equity Infusion Date”) on which Borrower desires to (i) obtain proceeds of the Equity Contribution for purposes of contributing Initial Required Equity Funds and/or (ii) contribute other Initial Required Equity Funds (the amount that Borrower so desires, the “Equity Infusion”)), provide to Agent (y) the documents required pursuant to Sections 4.02(e)(1), (2), (4), (5), (8), (9), (10) and (11), provided that all references to the

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making of an Advance in such provisions shall instead be deemed to be references to the making of an Equity Infusion, mutatis mutandis and (z) a current title continuation search for the Property.

(b)           No later than the Business Day immediately preceding each Equity Infusion Date, Agent shall notify Borrower and NYTC Member whether the deliveries required by Section 4.04(a) have been made and whether, to the best of Agent’s knowledge, the conditions set forth in Sections 4.02(a), (b), (c), (d), (e) (but only to the extent the deliveries required pursuant thereto are subject to Agent’s approval), (f), (g), (i), (j), (k), (l), (m) and (n) have been satisfied (with all references in said Sections to an Advance being deemed references to the Equity Infusion, mutatis mutandis).  To the extent that Borrower and/or NYTC Member shall desire to make any Equity Infusion (regardless of whether or not such deliveries shall have been made and/or conditions shall have been satisfied), Borrower and/or NYTC Member shall expend (or cause to be expended) the Equity Infusion on Building Loan Costs or Project Loan Costs.  Agent shall suffer no penalty or liability to any Borrower Entity under this Section 4.04(b) (including for failure to give any notice provided for under this Section 4.04(b)).

(c)           All Equity Infusions actually used to pay for Building Loan Costs or Project Loan Costs pursuant to this Section 4.04 shall be deemed to be, and shall be, Initial Required Equity Funds that have been contributed, regardless of whether, as of the date such contribution is made, (i) the conditions referred to in Section 4.04(b) hereof have been satisfied or (ii) Agent shall have notified Borrower and the NYTC Member in accordance with the first sentence of Section 4.04(b) hereof.

SECTION 4.05       Interest Advances.  Notwithstanding the provisions of Sections 4.01, 4.02 and 4.03, Advances for the payment of interest due under the Building Loan Notes shall be made in accordance with Section 5.03(b) hereof.

ARTICLE 5

METHOD OF DISBURSEMENT OF LOAN PROCEEDS

SECTION 5.01       Administration.  As compensation for serving as Agent, Borrower shall pay Agent the Administration Fee.

SECTION 5.02       Procedure for Advances.

(a)           Submission of Draw Requests; Notification of LIBOR Rate.  Draw Requests may be submitted to Agent no more frequently than once every fifteen (15) days and not more than once per calendar month.  Not less than three (3) Business Days prior to the Intended Advance Date, Agent shall deliver written notice to each Lender at the address specified by each Lender from time to time, which notice shall include the Intended Advance Date and such Lender’s ratable share of such Advance.  On the Business Day immediately prior to the Start Day, Agent shall deliver written notice to each Lender and Borrower informing each Lender and Borrower of the LIBOR Rate for the upcoming calendar month Interest Period for all Outstanding Principal and any Advance made during such Interest Period.  However, Agent shall

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suffer no penalty or liability to Borrower for failure to give any such notice to Borrower.  Unless otherwise notified by Agent, each Lender may assume that all conditions to such Advance are satisfied on the Intended Advance Date.

(b)           Disbursement Procedures.

(i)            Provided that Agent has not elected, in accordance with Section 5.02(b)(ii) hereof, to disburse Advances through the Disbursement Agent in accordance with the procedures set forth in paragraph 2 of the Construction Loan Disbursement Agreement, not later than 11:00 A.M. New York City time on the Intended Advance Date, each Lender shall make available to Agent such Lender’s ratable portion of such Advance in same-day funds and, if applicable, Agent shall make available, in same day funds to the extent in its possession, the Other Funds and Borrower shall make available to Agent all other Other Funds in same-day funds, in each case to the extent shown in the delivery referred to in Section 4.02(e)(2) hereof, and upon fulfillment of the applicable conditions in this Agreement and paragraph 1 of the Construction Loan Disbursement Agreement, Agent shall disburse such Advance to Borrower.

(ii)           Agent may elect to disburse Advances through the Disbursement Agent pursuant to paragraph 2 of the Construction Loan Disbursement Agreement (A) during the continuance of a Default or Event of Default, (B) subject to Section 4.01(q) hereof, upon its receipt of reasonable evidence that Borrower failed to promptly pay the applicable amounts out of any Advance to the General Contractor or any other contractor or subcontractor whose costs were the basis of the applicable Draw Request or that any contractor or subcontractor whose costs were the basis of the applicable Draw Request have not been paid, or (C) if Borrower has taken any actions, or failed to take any actions, which have resulted, or would reasonably be expected to result, in the filing or assertion of any Lien on the Premises (other than any Permitted Exception), provided that nothing contained in this sentence shall be construed to require Agent or any Lender to make an Advance upon the occurrence of any of the events described in the foregoing clauses (A), (B) and (C).  If Agent makes such an election in accordance with the immediately preceding sentence, Agent shall notify Borrower and each Lender and from and after such date until Agent notifies Borrower and each Lender that it has decided to no longer make the election described in this Section 5.02(b)(ii), (A) each Lender shall, not later than 11:00 A.M. New York City time, on each Intended Advance Date following Agent’s delivery of such notice, make available to Disbursement Agent such Lender’s ratable portion of such Advance in same-day funds, and, if applicable, Agent shall make available to Disbursement Agent in same day funds, to the extent in its possession, the Other Funds, and Borrower shall make available to Disbursement Agent in same day funds, all other Other Funds, in each case to the extent shown in the delivery referred to in Section 4.02(e)(2) hereof, and upon fulfillment of the applicable conditions in this Agreement and paragraph 2 of the Construction Loan Disbursement Agreement, Agent will request the Disbursement Agent to disburse such funds in accordance with the further terms

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and conditions contained in said paragraph of the Construction Loan Disbursement Agreement.

(c)           Defaulting Lenders.

(i)            If any Lender does not comply with its obligations under Section 5.02(b) above (any such Lender, a “Defaulting Lender”), the other Lenders (including GMACCM), or any of them, may, in their sole discretion, elect to deliver to Disbursement Agent on the Requested Advance Date all or any portion of the Defaulting Lender’s ratable portion of the applicable Advance not made available by the Defaulting Lender (such portion not made available, a “Deficiency”), in which event Defaulting Lender agrees to repay upon demand to each of the Lenders who has advanced a portion of the Deficiency the amount advanced on behalf of the Defaulting Lender, together with interest thereon at the Default Rate.  If more than one Lender elects to advance a portion of the Deficiency, such Lenders’ advances shall be made based on the relative ratable shares of each advancing Lender or as otherwise agreed to by such Lenders.  Each of the Lenders agrees that any of the other Lenders and Borrower shall have the right to proceed directly against any Defaulting Lender in respect of any right or claim arising out of such Defaulting Lender’s Deficiency, provided that Borrower shall not have such right if one or more of the other Lenders advances the entire Deficiency as described above.  In the event the Defaulting Lender fails to advance or repay the Deficiency (with interest at the Default Rate, if applicable), on or prior to the date of the next succeeding Advance, the entire interest of said Defaulting Lender in the Loans shall be subordinate to the interests of the other Lenders and all payments otherwise payable to the Defaulting Lender shall be used to advance or repay the Deficiency, as applicable, until such time such Defaulting Lender advances or repays all Deficiencies (including interest at the Default Rate, if applicable).

(ii)           The failure of any Lender to pay any Deficiency shall not relieve any other Lender of its obligation, if any, hereunder to make its ratable or other agreed upon portion of the Advance on the date of such Advance, but no Lender shall be responsible for the failure of any Lender to make its ratable or other agreed upon portion of the Advance to be made by such other Lender on the date of any Advance, provided, however, that Lenders shall be obligated to fund the balance of the then current Advance (i.e., excluding the Deficiency) in the manner required hereunder.

SECTION 5.03       Funds Advanced; Capitalized Interest.  (a)  All proceeds of all Advances shall be used by Borrower only for the purposes for which such Advances were made.  Borrower shall not commingle such funds with other funds of Borrower.

(b)           Unless agreed to otherwise by Agent and a Lender, each Lender is hereby irrevocably authorized and agrees to subtract from the unadvanced Building Loan proceeds, on each interest payment date, without the further approval of

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Borrower, the interest due and payable to itself on each such date.  Any amounts so subtracted shall be deemed to be Advances hereunder.

SECTION 5.04       Advances Do Not Constitute a Waiver.  No Advance shall constitute a waiver of any of the conditions of Lenders’ obligation to make further Advances nor, in the event Borrower is unable to satisfy any such condition, shall any Advance have the effect of precluding Agent from thereafter declaring a Default or Event of Default hereunder.

SECTION 5.05       Trust Fund Provisions.  All proceeds advanced hereunder shall be subject to the trust fund provisions of Section 13 of the Lien Law.  The Lien Law Affidavit is made pursuant to and in compliance with Section 22 of the Lien Law, and, if so indicated in said Affidavit, Building Loan proceeds will be used, in part, for reimbursement for payments made by the Borrower prior to the date hereof and prior to the Initial Construction Advance hereunder but subsequent to the commencement of the construction and equipping of the Project for items constituting Costs of the Improvement.

ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF BORROWER

To induce Lenders to make the Building Loan and to induce Agent to enter into this Agreement and the other Building Loan Documents, for itself and on behalf of Lenders, and to perform Agent’s and Lenders’ obligations hereunder and thereunder, Borrower hereby represents and warrants to Agent for the benefit of Lenders that:

SECTION 6.01       Validity of Building Loan Documents.  The Building Loan Documents are in all respects valid and legally binding obligations, enforceable against each Borrower Entity which is a party thereto in accordance with their respective terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  The Building Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by any Borrower Entity, including the defense of usury.  No Borrower Entity has asserted any right of rescission, set-off, counterclaim or defense with respect to the Building Loan Documents.

SECTION 6.02       Title.  Borrower has good and marketable title to a ground leasehold estate in the premises demised under the Ground Lease and the Members collectively have good marketable title to the premises demised under the Severance Subleases, in each case subject to no Liens other than the Permitted Exceptions.  Borrower has, or will have at the time of payment therefor, good and marketable title to the Personal Property and no Lien has been or will be executed in favor of any Person other than Agent with respect to any of the Personal Property other than the Permitted Exceptions.  Borrower has no knowledge of any claims for payment for work, labor or materials affecting the Mortgaged Property which are or may become a

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Lien prior to, or of equal priority with, the lien created by any Security Document.  The provisions of each Security Document are effective to create, in favor of Agent for the benefit of Lenders, a legal, valid and enforceable lien, subject only to the Permitted Exceptions, on or security interest in all of the collateral described therein (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally), and when the appropriate recordings and filings have been effected in public offices, each of the Security Documents will constitute a perfected lien on and security interest in all right, title, estate and interest in the collateral described therein, prior and superior to all other Liens, except as permitted under the Building Loan Documents and the Permitted Exceptions.

SECTION 6.03       Absence of Conflicts.  The execution and delivery of the Building Loan Documents by Borrower Entities to the extent each is a party thereto do not, and the performance and observance by Borrower Entities of their respective obligations thereunder will not, contravene or result in a breach of or default under (a) any provision of any Borrower Entity’s organizational documents, (b) any Legal Requirements applicable to any Borrower Entity, or to the Mortgaged Property or the use or operation thereof, (c) any decree or judgment binding on any Borrower Entity, or its assets, or (d) any agreement or instrument binding on any Borrower Entity, or its assets.  The execution and delivery of the Building Loan Documents by Borrower Entities to the extent each is a party thereto, and the performance and observance by each Borrower Entity of its obligations thereunder will not result in the creation or imposition of any Lien (other than pursuant to the Building Loan Documents or the Permitted Exceptions) upon any of its assets, subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally.

SECTION 6.04       Pending Litigation.  (a)  Except for matters disclosed to Agent in the Disclosure Side Letter (the “Pending Litigations”), there are no litigations, writs, injunctions, orders, judgments, actions, suits or proceedings existing or pending or threatened in writing against the Mortgaged Property, Borrower or any Member.  Borrower hereby represents and warrants that except as disclosed to Agent in the Disclosure Side Letter, all such disclosed items are fully insured by its Policies (except for the deductibles applicable thereto).

(b)           Other than as disclosed in filings made by each Guarantor with the Securities and Exchange Commission, there are no litigations, writs, injunctions, orders, judgments, actions, suits or proceedings existing or pending or threatened against such Guarantor which have a material likelihood of success and would, if determined adversely, result in a Material Adverse Effect.

SECTION 6.05       Legal Requirements.

(a)           None of Borrower, any Member or the Mortgaged Property is in violation of any Legal Requirement relating to such entity or the Mortgaged Property.  No Guarantor is in violation of any Legal Requirement which would result in a Material Adverse Effect.

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(b)           Each Borrower Entity and their Affiliates and, to the Knowledge of Borrower after having made reasonable inquiry, each Tenant at the Property and each managing agent and leasing agent of any portion of the Property (i) is not currently identified on the OFAC List, and (ii) is not a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.

SECTION 6.06       Compliance with All Legal Requirements.  The current zoning law and/or restrictive covenants and declarations covering the Premises and each Public Project Agreement permit, as of right, the construction of the Project in accordance with the Plans and Specifications and each other Public Project Agreement and, upon completion of such construction, the operation, use and occupancy thereof contemplated by the Public Project Agreements and the Plans and Specifications.  The Mortgaged Property currently is and upon completion of such contemplated construction, the use thereof will be, in all respects in compliance with all Material Contracts, all Public Project Documents and all Legal Requirements, and such compliance is not dependent on any land, improvements or facilities not a part of the Mortgaged Property.  Borrower has all Governmental Approvals required to have been obtained to date and all third party consents and approvals necessary for the construction of the Project or any part thereof or the commencement or continuance of construction thereon, as the case may be, including but not limited to, where appropriate, all required environmental permits, all of which have been issued, are in full force and effect and are not subject to any revocation, amendment, release, suspension, forfeiture or the like.  Except for the Pending Litigations, there are no pending, or to the Knowledge of Borrower, threatened in writing, litigations, writs, injunctions, orders, judgments, actions, suits or proceedings (a) to revoke, attach, invalidate, rescind or modify any such Governmental Approval or third party consent or approval, or the zoning and/or restrictive covenants applicable to the Premises or any part thereof, as currently existing and as intended to exist upon completion of such contemplated construction or (b) which have any chance (other than an immaterial chance) of being determined adversely to Borrower, and if so determined adversely, would materially delay, interfere with or otherwise have any material adverse effect on such contemplated construction or the Construction Schedule.

SECTION 6.07       Organization Status and Authority.  (a)  (i)  Each of Borrower and the Members is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York; (ii) Each of Borrower and the Members has the power, authority and legal right (w) to own and operate its properties and assets, (x) to carry on the business now being conducted and proposed to be conducted by it, (y) to execute, deliver and perform its obligations under the Building Loan Documents to which it is a party, and (z) to engage in the transactions contemplated by the Building Loan Documents to which it is a party; (iii) all Building Loan Documents have been duly authorized, executed and delivered by all necessary parties on behalf of Borrower and each Member, to the extent a party thereto; and (iv) each of Borrower and the Members possesses all rights, licenses, permits and authorizations, governmental or otherwise, presently necessary to entitle it to own its property and to transact the

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businesses in which it is now engaged, and its sole business has been and is the ownership of the Mortgaged Property (in the case of Borrower) or a membership interest in Borrower (in the case of each Member).

(b)           Subject to Section 7.32(b) hereof, (i) FC Member, which is 100% jointly owned, directly or indirectly by FC Guarantor, Bruce Ratner, trusts for the benefit of family members of Bruce Ratner and ING, is, and for the term of the Building Loan (subject to Section 7.50 hereof) shall be, a member of Borrower, (ii) NYTC Member, which is 100% owned, directly or indirectly by NYTC Guarantor, is, and for the term of the Building Loan (subject to Section 7.46 hereof) shall be, a member of Borrower, and (iii) the Members own in the aggregate 100% of the membership interests in Borrower.

SECTION 6.08       Availability of Utilities.  Except as set forth on Schedule 3, all utility services and facilities necessary and sufficient for the contemplated construction and development of the Premises in accordance with the Public Project Agreements and the Plans and Specifications and, upon completion of construction, the operation, use and occupancy of the Premises for its intended purposes, including, but not limited to, water supply, storm and sanitary sewer facilities, gas, electric and telephone facilities, and drainage, are presently available to the boundaries of the Premises through dedicated public rights of way or through perpetual private easements, approved by Agent, with respect to which the Building Loan Mortgage creates a valid, binding and enforceable first priority lien and security interest.

SECTION 6.09       Condition of Property.  Since the execution and delivery of the Ground Lease, there has not, to the Knowledge of Borrower, been any bodily injury or property damage occurring in or upon the Premises as a result of any fire, explosion, accident, flood or other casualty.  With respect to the accidents previously disclosed to Agent, Borrower hereby represents and warrants that all such accidents are fully insured by its Policies (except for the deductibles applicable thereto).  Except for matters disclosed to Agent in the Disclosure Side Letter, there are no proceedings pending, or, to the Knowledge of Borrower, threatened or contemplated, to acquire by power of condemnation or eminent domain, the Mortgaged Property, or any interest therein, or to enjoin or similarly prevent the contemplated construction or use of the Mortgaged Property.

SECTION 6.10       Accuracy of Documents.  To the Knowledge of Borrower, (a) all documents furnished to Agent by or on behalf of any Borrower Entity, General Contractor, Borrower’s Architects, any other Major Contractor and any Major Subcontractor, as part of or in support of the Building Loan application or pursuant to this Agreement or any of the other Building Loan Documents, are true, correct and complete in all material respects as of the date of delivery of each such document and (b) as of the Closing Date, there have been no material adverse changes with respect to such matters since such date, unless the same have been superseded by more recent dated material(s) delivered to Agent.

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SECTION 6.11       Encroachments.  There are no material encroachments on the Premises, and the Premises do not encroach upon any adjoining land or adjoining street, other than as set forth in the Permitted Exceptions.

SECTION 6.12       Brokerage Commissions.  Any brokerage commissions, finder’s fees or similar payments owed by any Borrower Entity (collectively, the “Brokerage Commissions”) due in connection with the transactions contemplated hereby have been paid to the extent due and payable and any such Brokerage Commissions coming due in the future will be promptly paid by such Borrower Entity.  Agent represents and warrants to Borrower that it has not dealt with any broker in connection with the transactions contemplated hereby.

SECTION 6.13       Financial Statements and Other Information.  The financial statements and supporting materials thereto (other than projections) of each Borrower Entity previously delivered to Agent, if any, are true and correct as of the date of each such statement, have been prepared as of the date of each such statement in accordance with generally acceptable accounting principles consistently applied, and fairly present the respective financial conditions of such Borrower Entity as of the respective dates thereof and the results of their respective operations for the periods covered thereby; no change has occurred in the assets, liabilities, or financial conditions reflected therein since the respective dates thereof so as to cause a Material Adverse Effect; and no additional material borrowings have been made by Borrower, any Member or FC Guarantor since the date thereof (other than the borrowing contemplated hereby, the Extension Loan, if then made, and, in the case of FC Guarantor, amounts previously disclosed in filings with the Securities and Exchange Commission and amounts that will be disclosed in the next filing with the Securities and Exchange Commission but which are prohibited from being disclosed at the current time under applicable securities laws).  With respect to each Borrower Entity, there exist no contingent liabilities, liabilities for taxes, unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected in said financial statements and supporting materials and except to the extent any of the foregoing would not cause a Material Adverse Effect.  To the knowledge of the applicable Borrower Entity, neither the aforesaid financial statements or supporting materials furnished to Agent in connection with or related to the transactions contemplated hereby, nor any representation or warranty in any Building Loan Document, contains any untrue statement of a material fact or omits to state a material fact or circumstance necessary in order to make the statements contained therein or herein not materially misleading.

SECTION 6.14       Tax Returns.  All federal, state and other tax returns of all Borrower Entities (other than the Guarantors) required by law to be filed have been filed (or lawful extensions of such filing deadlines have been obtained), and all applicable federal, state and other taxes, assessments and other governmental charges upon Borrower Entities (other than the Guarantors) or their respective properties which are due and payable have been paid.

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SECTION 6.15       Material Contracts.  (a)  Except for the Permitted Exceptions and the Material Contracts which have been delivered to Agent, there are no contracts of any kind or type whatsoever (whether oral or written, formal or informal) relating to the Mortgaged Property or any part thereof which would constitute Material Contracts.  Neither Borrower nor any Member is in default under any Material Contract to which Borrower or either Member is a party or Permitted Exception, and to the Knowledge of Borrower, no third party is in default in any material respect thereunder.  True, correct and complete copies of all Material Contracts have been delivered to Agent.  Each Material Contract that is a Major Subcontract is, to the knowledge of Borrower, in full force and effect and each other Material Contract is in full force and effect and is valid and enforceable in all respects (subject, in each case, to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  As of the Closing Date, there are no Material Contracts under clause (k) of the definition of Material Contracts.

(b)           Borrower delivered to Ground Lessor a copy of the Commitment Letter within seven (7) Business Days after the execution thereof in accordance with the notice provisions of the Ground Lease.

SECTION 6.16       Guaranteed Maximum Price Contract.  (i)  A true, correct and complete copy of the Guaranteed Maximum Price Contract and the GMP Guaranty have been delivered to Agent; (ii) the Guaranteed Maximum Price Contract and the GMP Guaranty are in full force and effect and enforceable in all respects (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally); (iii) Borrower is in full compliance with its obligations under the Guaranteed Maximum Price Contract and, to the Knowledge of Borrower, General Contractor is in full compliance with its obligations under the Guaranteed Maximum Price Contract and the GMP Guarantor is in full compliance with its obligations under the GMP Guaranty; and (iv) the work to be performed by General Contractor under the Guaranteed Maximum Price Contract is in all respects the construction work called for by the Public Project Agreements and the Plans and Specifications.

SECTION 6.17       Access.  All curb cuts and driveway permits shown on the Plans and Specifications or otherwise necessary for access to the Mortgaged Property are existing or will exist at the time necessary for the construction and operation of the Mortgaged Property.

SECTION 6.18       No Default.  No Noticed Default or Event of Default exists.

SECTION 6.19       Architect’s Contract.  (i)  A true, correct and complete copy of the Architect’s Contract has been delivered to Agent; (ii) the Architect’s Contract is in full force and effect and enforceable in all respects (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally); (iii) all of FC 41st Street’s and NYTC Member’s rights under the Architect’s Contract have been assigned to Borrower and

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Borrower has assumed all of FC 41st Street’s and NYTC Member’s obligations thereunder and Borrower’s Architects have consented thereto, to the extent such consent is required under the Architect’s Contract; (iv) Borrower is in full compliance with its obligations under the Architect’s Contract and, to the Knowledge of Borrower, Borrower’s Architects are in full compliance with their respective obligations under the Architect’s Contract; and (v) the architectural services to be performed by Borrower’s Architects are the architectural services required to design the Project in accordance with the Plans and Specifications and the Public Project Agreements and all architectural services required to complete the Project in accordance with the Plans and Specifications and the Public Project Agreements provided for under the Architect’s Contract.

SECTION 6.20       Plans and Specifications.  Borrower has furnished Agent true, correct and complete sets of the Plans and Specifications in existence to date, which Plans and Specifications comply with all Material Contracts, Legal Requirements, Governmental Approvals, Public Project Agreements and Permitted Exceptions, and which have been approved, to the extent required, by the Members, General Contractor, Ground Lessor, ESDC, ING Member, the City of New York, the New York City Transit Authority, Borrower’s Architects (to the extent applicable) and NYTC Guarantor and by each Governmental Authority to the extent required for construction of the Project.

SECTION 6.21       Budgets.  Each Budget accurately reflects Borrower’s best and reasonable projection of all Building Loan Costs and Project Loan Costs attributable to the applicable Unit or Units (and Agent hereby acknowledges that for so long as the proviso clause of the first sentence of Section 4.02(e)(9) hereof applies, any amounts in each of the Budgets on account of tenant improvement costs and leasing commission costs, and interest on account of any delay in achieving Stabilized Occupancy shall be deemed to be Borrower’s best and reasonable projections of such costs).  The Initial Required Equity Funds plus the Loan Amount accurately reflect Borrower’s best and reasonable projection (and Agent hereby acknowledges that, for so long as the proviso clause of the first sentence of subject to the last Section 4.02(e)(9) hereof applies, Borrower’s projection of tenant improvement costs, leasing commissions and interest on account of any delay in achieving Substantial Completion as set forth in each of the Budgets shall be deemed to be Borrower’s best and reasonable projections) of the funds necessary to achieve payment of all Building Loan Costs and Project Loan Costs allocable to the Project.

SECTION 6.22       Feasibility.  Each of the Construction Schedule and the Disbursement Schedule is a good faith best estimate as to the matters contained therein as of the date thereof.

SECTION 6.23       Lien Law Affidavit.  The Lien Law Affidavit, the Notice of Lending and the Notice of Assignment are each a true and complete affidavit made in conformity with Section 22, Section 73 and Section 15, respectively, of the Lien Law.

SECTION 6.24       Governmental Approvals and Third Party Approvals.  Except as noted on Schedule 4, all Governmental Approvals and all third party consents

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and approvals which are required to have been obtained to date in connection with the valid execution, delivery and performance by any Borrower Entity of this Agreement or the other Building Loan Documents have been obtained and are in full force and effect.

SECTION 6.25       No Liens.  Except for the Permitted Exceptions, no Borrower Entity has made, assumed or been assigned any contract of any kind or type which would give rise to a Lien against all or any portion of the Mortgaged Property except contracts which contain the obligation of the other party to supply such Borrower Entity with lien waivers from such other party and all of such party’s subcontractors and materialmen covering all work done and materials delivered in connection with the construction and design of the Project, and all such lien waivers have been obtained for work and materials heretofore performed or delivered.

SECTION 6.26       Separate Tax Lot(s).  Other than the portion of the Premises located in Lot 15, the Premises are taxed separately without regard to any other property and for all purposes the Premises may be mortgaged, conveyed and otherwise dealt with as an independent parcel or parcels.

SECTION 6.27       Margin Stock.  None of the proceeds of the Building Loan will be used for the purpose of purchasing or carrying “margin stock” within the meaning of Regulation T, U or X issued by the Board of Governors of the Federal Reserve System, as at any time amended, and Borrower agrees to execute all instruments necessary to comply with all the requirements of Regulation U of the Federal Reserve System, as at any time amended.

SECTION 6.28       Foreign Person.  Borrower is not a “foreign person” within the meaning of Section 1445 or 7701 of the Code.

SECTION 6.29       ERISA.  Neither the Borrower nor any of the Members is an Employee Benefit Plan and none of their assets constitute Plan Assets.

SECTION 6.30       Employees.  Neither the Borrower nor the Members employs any natural persons as employees and neither the Borrower nor the Members shall maintain or contribute to (or become obligated to contribute to) any Employee Benefit Plan which is subject to Title IV of ERISA.  The execution, delivery and performance of the Building Loan Documents by the Borrower Entities will not result in, constitute or involve a nonexempt prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any of the Borrower Entities, any ERISA Affiliate or any Employee Benefit Plan.

SECTION 6.31       Flood Zone.  The Improvements are not located in an area as identified by the Federal Emergency Management Agency or the Federal Insurance Administration as an area having special flood hazards.

SECTION 6.32       Investment Company Act.  Borrower is not (i) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; or (ii) a “holding

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company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended.

SECTION 6.33       Assessments.  Other than the theater surcharge referenced in the Ground Lease, to the Knowledge of Borrower, there are no pending or proposed special or other assessments for public improvements or other similar matters affecting the Mortgaged Property.

SECTION 6.34       Property Taxes and Other Charges.  To the extent any are due, all taxes of every kind and nature, including, without limitation, all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, all payments in lieu of real estate taxes, payments in lieu of sales taxes, and payments in lieu of mortgage recording taxes due under the Ground Lease or the Severance Subleases and all other public charges whether of a like or different nature, imposed upon or assessed against Borrower, the Members, the Mortgaged Property or any part thereof, or upon the revenue, rents, issues, income and profits of Borrower, the Members, the Mortgaged Property, or any part thereof, or arising in respect of the occupancy, use or possession thereof (collectively, “Property Taxes”), and all utility fees and charges in connection with the Mortgaged Property have been paid.

SECTION 6.35       No Bankruptcy Filing.  (i) As of the Closing Date, no Guarantor is contemplating a Voluntary Bankruptcy and, no Person has notified any Guarantor in writing that it is contemplating the filing of any Involuntary Bankruptcy against any Guarantor and (ii) neither Borrower nor any Member is contemplating a Voluntary Bankruptcy, and no Person has notified Borrower or any Member in writing that it is contemplating the filing of any Involuntary Bankruptcy against Borrower or any Member.

SECTION 6.36       Filing and Recording Taxes.  All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under any Legal Requirement in connection with the execution and delivery of the Public Project Agreements have been paid in full.  All mortgage, mortgage recording, stamp, intangible or other similar taxes required to be paid by any Person under any Legal Requirement in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of the Security Documents and the Liens intended to be created thereby have been paid or deposited with one of the Title Companies for payment, or, if not yet due and payable, will be paid when due and payable.

SECTION 6.37       Fraudulent Transfer.  No Borrower Entity (a) has entered into any Building Loan Document with the actual intent to hinder, delay, or defraud any creditor or (b) has not received reasonably equivalent value in exchange for its obligations under the Building Loan Documents.  After giving effect to the transactions contemplated by the Building Loan Documents, the fair saleable value of Borrower’s and each Member’s assets exceed, and will immediately following the execution and delivery of the Building Loan Documents exceed, such Borrower Entity’s,

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total liabilities, including subordinated, unliquidated, disputed or contingent liabilities (including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured).  Borrower’s and each Member’s assets do not, and immediately following the execution and delivery of the Building Loan Documents will not, constitute unreasonably small capital to carry out their respective businesses as conducted or as proposed to be conducted.  Borrower does not intend to, and does not believe that it will (or that its Members will), incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of its obligations).

SECTION 6.38       Insurance Compliance.  The Mortgaged Property is in compliance with all insurance requirements set forth in the Building Loan Documents.

SECTION 6.39       Name; Taxpayer Identification Number.  Neither Borrower nor any Member has used any trade name or done business under any name other than its actual name set forth herein.  The taxpayer identification number of (i) Borrower is 52-2361085; (ii) FC Member is 31-1813969; and (iii) NYTC Member is 13-1102020.  The exact legal name and the state of formation of Borrower as set forth in the Articles of Organization of Borrower are as set forth on the first page of this Agreement.  Borrower’s mailing address, place of business and its chief executive office is the address set forth as the Borrower’s address on the first page of this Agreement.

SECTION 6.40       Leases.  As of the date hereof, except as set forth on Schedule 5, neither Borrower nor any Member has entered into any Leases on or prior to the date hereof.  True, correct and complete copies of all Leases have been delivered to Agent.  Such Leases are in full force and effect and are in all respects the valid and legally binding obligations of the parties thereto, enforceable against such parties in accordance with their respective terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  Neither Borrower nor any Member is in default under any such Lease.

SECTION 6.41       Interest Rate Protection Agreements.  Except for any Interest Rate Caps and any other interest rate caps, interest rate management contracts or “hedge agreements” which have been collaterally assigned to Agent for the benefit of Lenders in accordance with the terms hereof, if any, or which relate only to the Equity Contribution and/or the Extension Loan, no Borrower Entity has entered into any Interest Rate Cap, interest rate cap, interest rate management contracts or “hedge agreements” in connection with the Building Loan.  All Interest Rate Caps, if any, purchased by Borrower  are in full force and effect and are in all respects the valid and binding obligation of Borrower, enforceable against it in accordance with its terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  Neither Borrower nor, to Borrower’s Knowledge, the counterparty to any Interest Rate Cap, is in default thereunder.

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SECTION 6.42       Prior Construction.  All construction heretofore performed relating to the Project has been performed in accordance with all Material Contracts, the Permitted Exceptions and all Legal Requirements, and substantially in accordance with the Plans and Specifications, and such construction has been fully paid for to the extent due and payable (except for (a) any applicable Retainage, (b) construction to be paid for out of the upcoming Advance hereunder (or from the Other Funds described in the applicable statement pursuant to Section 4.02(e)(2) hereof) or under the Project Loan Agreement and (c) work performed after the time period covered by the upcoming Advance hereunder).

SECTION 6.43       Equity Contribution.  True, correct and complete copies of the Equity Contribution Documents have been delivered to Agent.  The Equity Contribution Documents are in full force and effect and are in all respects the valid and binding obligation of the NYTC Member enforceable against it in accordance with their terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  Neither FC Member nor the NYTC Member is in default under the Equity Contribution Documents.

SECTION 6.44       Borrower LCs.  True, correct and complete copies of the Borrower LCs have been delivered to Agent.  Each Borrower LC is in full force and effect and is valid and enforceable in all respects (subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws effecting the enforcement of creditors’ rights generally).

ARTICLE 7

COVENANTS OF BORROWER

Borrower hereby covenants and agrees, from the date of this Agreement, and as long as Borrower remains indebted to Lenders hereunder:

SECTION 7.01       Guaranteed Maximum Price Contract; GMP Guaranty.  (a)  To enforce the Guaranteed Maximum Price Contract and the GMP Guaranty in a diligent and commercially reasonable manner, (b) to observe and perform in all material respects each and every term to be observed or performed by Borrower thereunder, (c) to do no act which would relieve General Contractor or GMP Guarantor from its obligations thereunder, (d) to not amend or make any “Change Orders” or “Field Directives” (as such terms are defined in the Guaranteed Maximum Price Contract; hereinafter, “Scope Changes”) under the Guaranteed Maximum Price Contract except as permitted under Section 7.11 hereof; (e) except to Agent for the benefit of Agent and Lenders, not to sell, convey, transfer, assign, alienate, mortgage, encumber, pledge, hypothecate, or transfer the Guaranteed Maximum Price Contract, the GMP Guaranty or any interest thereon (or, without the prior approval of Agent, permit the sale, conveyance, transfer, assignment, alienation, mortgaging, encumbrance, pledging, hypothecation, or transfer of the Guaranteed Maximum Price Contract by General Contractor or of the GMP Guaranty by the GMP Guarantor, or any interest in either), (f) not to terminate, suspend or cancel the Guaranteed Maximum Price Contract or the GMP Guaranty or waive any material

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provision thereof without the prior reasonable consent of Agent, provided that, Borrower may terminate or cancel the Guaranteed Maximum Price Contract if prior to or simultaneously with such termination or cancellation, Borrower shall have entered into a new construction management agreement with a construction manager with a guaranteed maximum price, which construction manager, agreement and price shall each be reasonably acceptable to Agent (and if reasonably requested by Agent, Borrower shall also obtain a guaranty of such agreement in form and substance, and from an entity, reasonably satisfactory to Agent) and (g) to notify Agent of any default thereunder promptly after obtaining Knowledge thereof and provide Agent with copies of all material notices delivered in connection therewith.  Borrower shall from time to time, upon request by Agent, use diligent efforts to cause General Contractor to provide Agent and Construction Consultant with reports in regard to the status of construction of the Project, in such form and detail as reasonably requested by Agent.  Promptly after Borrower’s receipt thereof, Borrower shall deliver to Agent copies of all trade contracts entered into by the General Contractor.

SECTION 7.02       Architect’s Contract.  To use diligent efforts, upon Agent’s request, to cause Borrower’s Architects to provide Agent and Construction Consultant with reports in regard to the status of construction of the Project, in such form and detail as reasonably requested by Agent.

SECTION 7.03       Insurance.  To maintain the Policies in full force and effect and to diligently prosecute all claims, and comply with all procedures and requirements thereunder.  The proceeds of any insurance shall be applied in accordance with the terms of the Building Loan Mortgage.

SECTION 7.04       Application of Funds.  To use the proceeds of the Building Loan solely and exclusively for the purposes set forth herein.  Borrower will receive the Advances to be made hereunder and will hold the right to receive the same as a trust fund for the purpose of paying the Costs of the Improvement and achieving Final Completion and it will apply the same first to such payment before using any part thereof for any other purpose.

SECTION 7.05       Property Taxes.  To promptly pay when due (or to cause each Member to pay when due), and to provide (or cause to be provided to) Agent with receipted bills therefor if requested by Agent as soon as said receipted bills are available, all Property Taxes and, upon the failure of the owner(s) of the portion of lot 15 not owned by Borrower to pay all real estate taxes and other impositions on lot 15 prior to the due date thereof, to promptly pay all such taxes and impositions.  Notwithstanding the foregoing or anything herein to the contrary, Borrower or the applicable Member shall have the right to contest the validity or application of any Property Taxes by appropriate legal proceedings, so long as:  (1) such legal proceedings shall be prosecuted with diligence by Borrower (or such Member), shall operate to prevent any taking or closing or shutting down of the Premises or any portion thereof by any Governmental Authority, and shall have the effect of staying any type of sale or forfeiture of the Premises or any part thereof for failure to comply, (2) Borrower (or such Member) shall

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have deposited with or delivered to Agent, as applicable, cash collateral, a bond or such other security reasonably satisfactory to Agent, on such terms as may be reasonably satisfactory to Agent and (if applicable) in an amount as may be deemed reasonably necessary by Agent (taking into account amounts provided for in the applicable Budget for such Property Taxes and amounts remaining to be funded from the applicable Loan with respect thereto) to pay for such contest and to pay any such Property Taxes to the extent Borrower (or such Member) has not paid such Property Taxes to the applicable Governmental Authority), and any fines, penalties, charges and interest thereon which may be awarded or assessed (which amount shall be increased at the request of Agent when Agent determines (in its reasonable judgment) that a greater amount may be required to make such payments), (3) such proceeding shall not subject Agent, any Lender, Borrower or any Member to the risk of any criminal liability, (4) no Noticed Default or Event of Default shall then exist under any Building Loan Document, (5) Borrower (or such Member) gives Agent (x) reasonably continuous notice upon the commencement and during the continuation of any such proceeding of the status thereof, and (y) confirmation on such periodic basis as Agent may request of the continuing satisfaction of the conditions set forth in clauses (1) through (4) above, and (6) Borrower (or such Member) shall have furnished to Agent all other items reasonably requested by Agent.  If Borrower (or such Member) shall fail at any time to comply with the above conditions to contest or the Premises or any part thereof is, in the judgment of Agent, in any imminent danger of being forfeited or lost, Agent may require Borrower (or such Member) to, and Borrower (or such Member) will, thereupon make the payment which is the subject of the contest.  During the continuance of an Event of Default, Agent may, at its option, credit all or any part of any cash, bond or other security then held by it to the Indebtedness in such order as Agent may elect.  Upon final determination of such contest, Borrower (or such Member) will take all steps necessary to comply with any requirements arising therefrom.  Borrower (on behalf of itself and each Member) hereby absolutely and unconditionally collaterally assigns to Agent for the benefit of Lenders all of its right, title and interest in and to any refund of Property Taxes  or other assessments (net of all reasonable collection expenses and any portions thereof payable to tenants and, after the NYTC Units Redemption, to NYTC Member) (such net refund amount, a “Tax Refund”) now or hereafter payable to Borrower or any Member as a result of any tax contest, protest, tax certiorari proceeding (“Tax Proceeding”) or otherwise.  If Borrower or any Member shall receive any Tax Refund applicable to the Project or any Unit, such Tax Refund shall be deposited with Agent by Borrower or such Member, within three (3) Business Days of receipt thereof, to be applied or deposited, at the option of Borrower (a) if the Collection Accounts Agreement has been executed as of such date and Borrower and each Member have complied with their other obligations under Section 7.57 hereof, to a Collection Account, (b) to the prepayment of the Loans on the next interest payment date or (c) on the next Advance Date, to pay Building Loan Costs and/or Project Loan Costs allocable to the applicable Units.  During the continuance of an Event of Default, Agent may, at its option, credit all or any part of the Tax Refund to the Indebtedness in such order as Agent may elect.  Copies of all Property Tax bills received by Borrower shall be promptly sent by Borrower to Agent.

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SECTION 7.06       Reimbursable Costs, Transaction Costs and Other Fees and Costs.  (a)  (i) To reimburse Agent for all reasonable, third-party out-of-pocket costs and expenses which may hereafter be incurred by Agent in connection with, or coincidental to, the Building Loan, including, (1) all Transaction Costs and (2) all Reimbursable Costs, and (ii) to reimburse Agent and each Lender for all reasonable, third-party out-of-pocket costs and expenses (including, without limitation, attorneys’ fees) which may hereafter be incurred by Agent or any Lender in connection with Assignments (other than any pledge or hypothecation) of the Building Loan and Project Loan up to a maximum of $90,000.00 in connection with all Assignments of the Loan.  All such costs and expenses shall be paid by Borrower within ten (10) Business Days after demand is given to Borrower, together with reasonable back-up information substantiating such costs and expenses.  Notwithstanding the foregoing, Borrower shall reimburse Agent on the date hereof for all Transaction Costs incurred by Agent to the date hereof.

(b)           All amounts incurred or paid by Agent or any Lender under Section 7.06(a) hereof, together with interest thereon at the Default Rate from the due date until paid by Borrower, shall be added to and be deemed for all purposes a part of the Indebtedness and shall be secured by the Security Documents.

SECTION 7.07       Completion of Construction.  To pursue with diligence the construction of the Project, the achievement of Core and Shell Completion, the achievement of “Substantial Completion” (as defined in the Ground Lease) no later than the Fixed Substantial Completion Date and the achievement of Final Completion with respect to the Project in accordance with this Agreement and all Public Project Agreements, the Material Contracts (to the extent applicable), and in substantial compliance with the Plans and Specifications, in a good workmanlike manner and free of defects, and in compliance with all restrictions, covenants and easements affecting the Mortgaged Property, all Legal Requirements, all Governmental Approvals, and all terms and conditions of the Building Loan Documents and to achieve “Substantial Completion” (as defined in the Ground Lease) by the Fixed Substantial Completion Date and Final Completion of the Project by the Maturity Date.  Borrower shall pay all sums and perform all duties as may be necessary to complete such construction and activities, all of which shall be accomplished in a manner such that the Mortgaged Property remains free from any Liens, claims or assessments (actual or contingent) for any material, labor or other item furnished in connection therewith.  Borrower shall deliver to Agent and Construction Consultant copies of all Governmental Approvals relating to such construction and development related activities as and when received by Borrower or any Member.  Borrower shall not commit or permit waste of the Mortgaged Property.  After Final Completion, Borrower (i) shall maintain or cause to be maintained the Mortgaged Property in good working order and shall comply with all Legal Requirements affecting the Mortgaged Property, (ii) maintain or cause to be maintained the NYTC Office Unit and the FC Office Unit as “Class A” office space, and (iii) maintain or cause to be maintained the FC Retail Unit as first-class retail space.

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SECTION 7.08       Right of Agent to Inspect Property; Publicity.  To permit Agent and its representatives (including without limitation, the Construction Consultant) to enter and inspect the Project and all materials to be used in the construction thereof (such inspections to be performed, at the option of Borrower, with a representative or representatives of Borrower present thereat) and to examine the Plans and Specifications (a copy of which shall be kept at the Property) at all reasonable times and with reasonable advance notice; to cooperate and use reasonable efforts to cause the General Contractor, all contractors and subcontractors to cooperate with the Construction Consultant to enable it to perform its functions hereunder; and to permit Agent to maintain one sign on the Premises (at the expense of Borrower) in a location clearly visible to the public and otherwise publicize Agent’s role as Agent and/or a Lender; provided, however, that the text and circumstances of such sign shall be subject to the prior approval of Borrower, which consent shall not be unreasonably withheld or delayed and, to the extent required by the DUO Declaration, shall be in accordance with the terms and conditions set forth in the DUO Declaration.

SECTION 7.09       Construction Consultant.  (a)  To permit Agent to retain the Construction Consultant at the cost of Borrower for the purposes of (i) reviewing all construction contracts contemplated to be entered into by or on behalf of any Borrower Entity and which are required to be approved by Agent pursuant to this Agreement, (ii) reviewing the Plans and Specifications and all Draw Requests, (iii) reviewing all proposed changes to such construction contracts and Plans and Specifications, (iv) making periodic inspections of the Project, (v) reviewing all payment requisitions submitted by all Persons, (vi) reviewing all field reports, (vii) reviewing the Disbursement Schedule, Construction Schedule and the Budgets, and all proposed changes thereto and (viii) advising Agent generally concerning construction and construction and development related activities at the Project, including whether Core and Shell Completion has been achieved, and whether Substantial Completion and Final Completion have been achieved with respect to any Unit or the Project.  Borrower shall deliver (and shall cause each other Borrower Entity to deliver) to Agent and Construction Consultant copies of all documents referred to in this Section promptly upon receipt of same.

(b)           To pay the reasonable fees and reasonable out-of-pocket expenses of the Construction Consultant.

SECTION 7.10       Correction of Defects.  To promptly correct, regardless of whether demand has been made by Agent or Construction Consultant, all defects in the Project or any departure from the Plans and Specifications not previously approved by Agent (to the extent such approval was required pursuant to the terms hereof).  Borrower agrees that any Advance, whether before or after such defects or departures from the Plans and Specifications are discovered by or brought to the attention of Agent, shall not constitute a waiver of Agent’s right to require compliance with this covenant.

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SECTION 7.11       Plans and Specifications; Approval of Change Orders; Cost Savings.

(a)           To permit no (i) Scope Changes or (ii) deviations or amendments to the Plans and Specifications or to the work to be performed under any contract or subcontract relating to construction of the Project (including any field orders) (each of the items in clauses (i) and (ii) of this Section 7.11(a), a “Change Order”) without the prior approval of Agent, such approval not to be unreasonably withheld, provided, however, that subject to the further provisions of this Section 7.11, Borrower may make or permit to be made any Change Order without Agent’s prior written approval so long as (A) (1) the cost of such Change Order does not exceed, as reasonably estimated by the Construction Consultant, $500,000 and such Change Order does not, in Agent’s reasonable judgment, materially change the design of the Project, (2) the cost of all such Change Orders made pursuant to this clause (A) do not exceed, as reasonably estimated by the Construction Consultant, $3,000,000 in the aggregate, (3) such Change Order does not cause any line item in any Budget to be exceeded (after taking into account, without duplication, any revisions or reallocations permitted under Sections 3.02, 3.03 and 3.20, reallocations under this Section 7.11 and revisions or reallocations under Sections 3.02, 3.03, 3.20 and 7.11 of the Project Loan Agreement, other reallocations approved by Agent, and any Completion Deposit or portion thereof (or any “Completion Deposit” (or portion thereof) under and as defined in the Project Loan Agreement) applicable to such line item, (4) such Change Order shall not increase the likelihood that “Substantial Completion” (as defined in the Ground Lease) will not be achieved by the Fixed Substantial Completion Date and Final Completion will not be achieved by the Maturity Date and (5) Borrower delivers to Agent prior notice of such Change Order or (B) such Change Order is required by a new Legal Requirement or is mandated by health, life or safety reasons which were not reasonably foreseeable by Borrower, provided that Borrower shall, if practicable, provide prior notice of such Change Order to Agent, and if not practicable, shall give notice to Agent immediately thereafter.

(b)           Notwithstanding the provisions of Section 7.11(a) above, no Change Order shall be submitted to Agent or implemented (and Borrower shall not instruct the General Contractor or any other contractor or direct or indirect subcontractor to perform or implement any such Change Order) which requires (or is alleged by the applicable party to require) the approval of the Extension Loan Lender, FC Member, Ground Lessor, ESDC, the City of New York, the New York City Transit Authority, NYTC Member or ING Member (or with respect to which it is claimed, by any such entity, that its approval is required) unless such approval has been previously obtained.

(c)           Each notice to Agent of, and each request to Agent for approval of, a Change Order shall specify the amount of such Change Order, the aggregate amount of all previous Change Orders and the aggregate amount of Change Orders then counting towards the aggregate limit referred to in clause (A)(2) of Section 7.11(a).  Borrower shall maintain adequate records to substantiate all costs incurred in constructing the Project, including drawings marked to reflect all approved changes to the Plans and Specifications.

(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

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the expenditure of all amounts in the applicable Budget allocated to such line item, (B) Borrower shall demonstrate to Agent’s reasonable satisfaction that a cost savings has been or will be realized with respect to any uncompleted line item (other than the “Construction Interest—GMAC Loan/NYTC Funding Amount,” the “Rent-Up Deficit” and the “Additional Interest Reserve” line items in the Budgets (collectively, “Additional Interest Line Items”)), or (C) in the case of the Additional Interest Line Items if (x) Breakeven Leasing has been achieved (provided that for purposes of this Section 7.11(d) only, Breakeven Leasing shall be calculated assuming the Extension Loan has been made), and (y) Borrower shall demonstrate to Agent’s satisfaction (in Agent’s sole discretion) that if the requested portion of any of the Additional Interest Line Items is reallocated, the remaining aggregate amount of the Additional Interest Line Items constitute an adequate interest reserve including an adequate reserve (if the Initial Advance Interest Rate Cap was not purchased), for all anticipated purchases of Future Advance Interest Rate Caps (excluding, however, interest payable on the Extension Loan), 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 (but only, in the case of clause (C), to the Building Loan Contingency only to the extent that all reallocations under said clause (C), together with any reallocations under Section 7.11(d)(C) of the Project Loan Agreement, do not exceed $15,000,000.00), 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 Borrower’s Lien Law Affidavit.  Notwithstanding the foregoing, no reallocation with respect to the Development Cost 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).

(e)           Agent and Borrower acknowledge and confirm that notwithstanding any other provision hereof, (i) the implementation of Section 7.11(d) may result in an increase in Loan proceeds used to pay Building Loan Costs and a corresponding decrease in Loan proceeds used to pay Project Loan Costs, but under no circumstances can result in a decrease in Loan proceeds used to pay Building Loan Costs or an increase in Loan proceeds used to pay Project Loan Costs and (ii) the implementation of the procedures set forth in Section 7.11(d) of the Project Loan

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Agreement may result in an increase in the Building Loan Amount and a decrease in the Project Loan Amount.  Any such increase in proceeds used to pay for Building Loan Costs shall be subject to the last sentence of 7.11(e) of the Project Loan Agreement.

SECTION 7.12       Appraisal.  To permit Agent to conduct or have conducted, at Agent’s sole option and at Borrower’s expense, additional appraisals of the Mortgaged Property, or updates to the Appraisal, in form and substance satisfactory to Agent, provided, however, that Borrower shall not be required to pay for such additional appraisals if:  (i) no Noticed Default or Event of Default exists under this Agreement or any other Building Loan Document; (ii) such appraisal or update is not required by any Legal Requirement applicable to any Lender or the interpretation or administration thereof by any Governmental Authority or comparable agency charged with the interpretation or administration thereof; (iii) such additional appraisal or update is not required by the express terms of this Agreement or any other Loan Document; and (iv) Borrower shall have previously paid for an additional appraisal or an update to the Appraisal during the calendar year in which such additional appraisal or update is dated.

SECTION 7.13       Material Contracts; Approval of Activities.  (a) Without the prior approval of Agent, which approval shall not be unreasonably withheld or delayed, not to (and not to permit any Member to and, in the case of Major Subcontracts, not to permit (to the extent that Borrower’s approval is required under the Guaranteed Maximum Price Contract) General Contractor to) (i) except to Agent for the benefit of Agent and Lenders, sell, convey, transfer, assign, alienate, mortgage, encumber, pledge, hypothecate or transfer any Material Contract (which for purposes of this Section 7.13 (other than subsection (c) of this Section 7.13) shall not include the Guaranteed Maximum Price Contract, the GMP Guaranty, the Ground Lease or the Severance Subleases), or any interest therein, or permit the sale, conveyance, transfer, assignment, alienation, mortgaging, encumbrance, pledging, hypothecation or transfer by the third party thereto, except in accordance with the terms hereof, (ii) enter into, amend, modify, suspend, surrender, terminate, cancel, waive or release any material provision of any (or, in the case of Major Subcontracts, permit (to the extent that Borrower’s approval is required under the Guaranteed Maximum Price Contract) General Contractor to enter into, amend, modify, suspend, surrender, terminate, cancel, waive or release any material provision of such) Material Contract (including, without limitation, the definition of Core and Shell in the Architect’s Agreement) of the Project, except to the extent permitted or approved under Section 7.11 or, in the case of the termination or cancellation of the Architect’s Contract, Borrower may so terminate or cancel if, prior to or simultaneously with such termination or cancellation, Borrower shall have entered into a new agreement or agreements with one or more architects which agreement or agreements and architect or architects shall be reasonably acceptable to Agent, and in any event such agreement or agreements shall use the same definition of Core and Shell as that used in the Architect’s Agreement.  Simultaneously with the entering into of any Managing Agent Agreement or, to the extent requested by Agent, any Leasing Agent Agreement or any other Material Contract (other than any Major Subcontract), Borrower shall (or shall cause the Member which is a party thereto to) cause the other party thereunder to execute and deliver to

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Agent a consent to the collateral assignment thereof in form and substance reasonably satisfactory to Agent.

(b)           To observe and perform in all material respects each and every term to be observed or performed by Borrower (and to cause each other Borrower Entity to do the same) pursuant to the terms of any Material Contract (other than any Major Subcontract) and to: (i) promptly notify Agent of any material default under any Material Contract (other than any Major Subcontract, in which case Borrower shall promptly notify Agent of any material defaults thereunder promptly after Borrower acquires Knowledge thereof) and provide Agent with copies of any notices delivered in connection with any default under any Material Contract; and (ii) enforce (or, in the case of Major Subcontracts, cause, to the extent permitted under the Guaranteed Maximum Price Contract, the enforcement of) the provisions thereof in a diligent and commercially reasonable manner.

(c)           Agent’s right hereunder to approve any Material Contract shall create no responsibility or liability on behalf of Agent or Lenders for their completeness, design, sufficiency or compliance with Legal Requirements.

SECTION 7.14       Leases.  (a)  To (and to cause each Member to, as applicable):

(i)            perform or cause to be performed in all material respects the lessor’s obligations under each Lease where there is not at the time an outstanding “Event of Default” by tenant thereunder,

(ii)           promptly notify Agent in writing of any material default under any Lease and provide Agent with copies of any notices delivered or received in connection with any default under any Lease,

(iii)          enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the other party or parties under any Lease, to the extent it is commercially reasonable to do so,

(iv)          during the continuance of an Event of Default, grant Agent the right, but Agent shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of any Lease on the part of the Borrower or such Member (as applicable) to be performed or observed to be promptly performed or observed in all material respects on behalf of Borrower or such Member (as applicable), to the end that the rights of Borrower or such Member (as applicable) in, to and under said Leases shall be kept unimpaired and free from default,

(v)           provide, simultaneously with the execution of each Lease (or on or prior to the date hereof with respect to Leases executed on or prior to the date hereof), to (1) each lessee, a Section 291-f Notice in form and

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substance reasonably satisfactory to Agent, and (2) Agent, an executed acknowledgment from each such tenant relating to the payment of rent and security deposits to a Security Deposit Account and a Collection Account and the use of an expedited check clearing process, which acknowledgment shall be in the form required by each of the Security Deposit Accounts Agreement and the Collection Accounts Agreement, and

(vi)          not, without the prior approval of Agent, which approval shall not be unreasonably withheld or delayed (except in the case of subclauses (3) and (4) of this clause (vi) or any matter relating to a Lease with (or proposed to be with) an Affiliate of any Borrower Entity, in which case Agent’s approval may be withheld in Agent’s sole and reasonable discretion),

(1)           except as expressly permitted thereunder (but subject to the provisions of clause (7) below), amend, modify, extend or otherwise alter, in any material respect, any Lease;

(2)           enter into (subject to the further provisions of this Section 7.14) any Lease;

(3)           assign, mortgage, pledge or otherwise transfer, dispose of or encumber, whether by operation of law or otherwise, any Lease or the Rents thereunder or therefrom except in connection with the Extension Loan;

(4)           accept or permit the acceptance of a prepayment of any of the Rents (excluding security deposits) in respect of any Lease for more than one (1) month in advance of the due date therefor;

(5)           waive or release any of its material rights under any Lease or any guaranty thereof;

(6)           consent to the assignment of all or any portion of any Lease, or a sublease of all or any portion of a Lease by the lessee thereunder (to the extent Lessor’s consent is required for such assignment);

(7)           materially relocate any portion of any space subject to a Lease; or

(8)           terminate, cancel or accept a surrender of any Lease unless a monetary default exists thereunder or the applicable tenant has filed for bankruptcy or has had an involuntary bankruptcy filed against it;

provided, however, that any Lease that is by its express terms subordinate to the Building Loan Mortgage (and all amendments and refinancings thereof and increases thereto) without the delivery of a non-disturbance agreement by Agent shall not be subject to subclauses (1), (2), (5), (6) and (7) of this clause (viii) of this Section 7.14 if such Lease

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(together with all other Leases with the applicable Tenant and Affiliates thereof) is (taking into account all expansion options) for (x) office space only comprising not more than one full floor or not more than 25,000 rentable square feet or (y) retail space only comprising not more than 10,000 rentable square feet (any Lease covered by this proviso clause, a “Subordinate Lease”).

(b)           All Leases shall be subordinate to the Building Loan Mortgage and provide that the lessee thereunder agrees to attorn to Agent at Agent’s request.  Notwithstanding the foregoing, so long as Borrower is not then in monetary or material non-monetary Default hereunder, at the request of Borrower or the applicable Member, Agent, for itself and on behalf of Lenders, shall enter into a Non-Disturbance Agreement with each proposed Tenant under a Permitted Lease which meets the conditions set forth in clauses (i) or (ii) below, as applicable, and each of clauses (iii) through (vii) below.

(i)            As to proposed Tenants of space in the FC Retail Unit or the Common Elements Leasable Space (as defined in the Ground Lease), as applicable:  (x) the proposed Tenant is of sufficient financial condition to perform the obligations under the applicable Permitted Lease, taking into account any security deposit posted by the proposed Tenant, and Agent shall have been furnished with evidence reasonably satisfactory to Agent of such financial condition, and (y) the rentable square feet demised by such Permitted Lease is:

(A)          10,000 or more, or

(B)           (1)  5,000 or more, but less than 10,000, and (2) the Tenant has expended or is obligated to expend at least $100.00 (subject to adjustment as provided in Section 13.2(b)(i)(B) of the Ground Lease) per square foot (exclusive of any allowance provided by Borrower or the applicable Member with respect to such improvements) on such Tenant’s initial tenant improvement work, or

(C)           (1) 2,500 or more, but less than 5,000, and (2) the Tenant has expended or is obligated to expend at least $200.00 (subject to adjustment as provided in Section 13.2(b)(i)(B) of the Ground Lease) per square foot (exclusive of any allowance provided by Borrower or the applicable Member with respect to such improvements) on such Tenant’s initial tenant improvement work.

(ii)           As to proposed Tenants of the FC Office Unit or the NYTC Office Unit:

(A)          If NYTC Guarantor or its Affiliates occupy the NYTC Office Unit, and the leased space is in the FC Office Unit and the proposed Tenant is NYTC Guarantor pursuant to the form of NYTC Sublease substantially as set forth in Exhibit Q attached to the Ground Lease (the “NYTC Form Sublease”) in the form of the Non-Disturbance Agreement, provided that

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such Non-Disturbance Agreement shall provide that it is not effective unless and until the NYTC Units are not subject to the lien of the Building Loan Mortgage and the Project Loan Mortgage and NYTC Guarantor has no direct or indirect ownership interest in FC Member or Borrower; or

(B)           in all circumstances not covered by clause (ii)(A) of this Section 7.14(b), (1) the space demised by such Permitted Lease is one-half of one full floor or more (provided, however, that, with respect to a Permitted Lease of less than a full floor Agent’s obligation to enter into a Non-Disturbance Agreement pursuant to this Section 7.14(b)(ii)(B) shall apply only if Borrower shall supply to Agent, together with Borrower’s Lease Request Form, evidence reasonably satisfactory to Agent that the space to be leased shall be regular in shape, reasonably accessible in a customary manner, rented at not less than fair market value and otherwise on terms that are commercially reasonable and customary in respect of similarly situated tenants of space of the size and quality to be demised under the Permitted Lease), and (2) the proposed Tenant is of sufficient financial condition to perform the obligations under the proposed Permitted Lease, taking into account any security deposit posted by the proposed Tenant, and Agent shall have been furnished with evidence reasonably satisfactory to Agent of such financial condition.  For the purposes of this clause (ii)(B), evidence of “fair market value” and “commercially reasonable and customary” terms may be provided by the opinion of two (2) or more disinterested real estate professionals, each having at least ten (10) years of experience in valuing or leasing commercial real estate in midtown Manhattan (each, a “Real Estate Professional”).

(iii)          The proposed Tenant is not an Affiliate of Borrower or any Member (except as Permitted in clause (ii)(A) of this Section 7.14(b)).

(iv)          The proposed Tenant (and its direct and indirect owners if such proposed Tenant is not publicly held) is not a Prohibited Person (as defined in the Ground Lease).

(v)           The Permitted Lease satisfying the conditions set forth in Section 7.14 (b)(ii)(A) shall provide for no decrease in the amount of rent payable thereunder over the term of such Permitted Lease except for customary abatements and offsets of rent.

(vi)          Except in respect of a Permitted Lease satisfying the conditions set forth in Section 7.14(b)(ii)(A), none of (A) the demised premises (including any expansion space) under such Permitted Lease, nor (B) the exclusive or prohibited use provisions of such Permitted Lease, conflict with (1) the demise under or (2) the exclusive or prohibited provisions of, any other Permitted Lease, and Borrower shall deliver to Agent a certification to such effect signed by Borrower.

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(vii)         Except in respect of a Permitted Lease satisfying the conditions set forth in Section 7.14(b)(ii)(A), and subject to clauses (b)(i) and (b)(ii) above, as applicable, the Permitted Lease contains terms that are commercially reasonable and customary in respect of similarly situated tenants of space of the size and quality to be demised under the proposed Permitted Lease, and the rent and other amounts owed thereunder constitute not less than fair rental value for the space to be demised thereunder.  For purposes of this clause (vii), evidence of “commercially reasonable and customary” terms and “fair market value” may be provided by the opinion of two (2) or more Real Estate Professionals.

(c)           All Leases of space in the Units and Common Elements (other than Subordinate Leases) must be in a form as may be reasonably acceptable to Agent.  In the event that Agent shall fail to approve or disapprove of any proposal with respect to a Lease (other than a Subordinate Lease) made under this Section 7.14 within ten (10) Business Days after receipt by Agent of a notice from Borrower specifying that if Agent fails to approve or disapprove such proposal, such approval shall be deemed given, and provided that Agent shall have been provided with all material information necessary in the reasonable opinion of Agent to make such determination including, without limitation, the final form of the proposed Lease (and if the approval relates to a new lease, a summary of the material terms thereof), and all other material and/or necessary financial data on the potential tenant, as reasonably determined by Agent, Agent shall be deemed to have approved such proposal.  Any new Lease, and any modification, amendment, extension or alteration to any Lease, shall be delivered to Agent promptly after execution by Borrower or the applicable Member and the Tenant thereunder.  Borrower shall pay all reasonable attorneys’ fees and disbursements incurred by Agent in connection with the review of proposed Leases by Agent’s counsel.  No Subordinate Lease, or any amendment thereto, shall be entered into unless Agent is given not less than five (5) Business Days’ notice thereof.

(d)           All information in all requests for Lease approvals shall be true and correct in all material respects.

SECTION 7.15       Books and Records.  To keep and maintain detailed, complete and accurate books, records and accounts, on a Fiscal Year basis, reflecting all of its financial affairs and all items of income and expense of Borrower in connection with the Property and the construction of the Project in accordance with generally accepted accounting principles consistently applied and the results of the operation thereof.

SECTION 7.16       Financial Statements and Other Information.  (a)  To furnish Agent the following:

(i)            Quarterly Statements.  (A) From and after the Fiscal Year quarter following the Fiscal Year quarter in which Substantial Completion occurs, within forty-five (45) days after the close of each Fiscal Year quarter, an unaudited (1) operating statement of the Property detailing the total revenues

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received and the total expenses incurred and (2) to the extent not covered by the foregoing, a balance sheet and profit and loss statement of Borrower and FC Member, in each case prepared in accordance with generally accepted accounting principles, consistently applied, and certified by Borrower or FC Member, as applicable, and (B) within forty-five (45) days after the date of filing or submission thereof, copies of the 10-Q statements of each of the Guarantors; provided, however, that from and after a Fiscal Year in which the shares of a Guarantor are no longer being traded on a nationally-recognized exchange, within forty-five (45) days after the close of each Fiscal Year quarter, unaudited financial statements prepared in accordance with generally accepted accounting principles, consistently applied, and otherwise in form and substance reasonably satisfactory to Agent, and certified by such Guarantor.

(ii)           Annual Statements.  (A)  From and after the Fiscal Year in which Substantial Completion occurs, within one hundred twenty (120) days after the close of each Fiscal Year, an audited (1) operating statement of the Property detailing the total revenues received and the total expenses incurred and (2) to the extent not covered by the foregoing, a balance sheet and profit and loss statement of Borrower and FC Member, in each case prepared in accordance with generally accepted accounting principles, consistently applied, and certified by Borrower or FC Member, as applicable, and (B) within one hundred twenty (120) days after the date of filing or submission thereof, copies of the 10-K statements of each of the Guarantors; provided, however, that from and after a Fiscal Year in which the shares of a Guarantor are no longer being traded on a nationally-recognized exchange, within one hundred twenty (120) days after the close of each Fiscal year, audited financial statements prepared in accordance with generally accepted accounting principles, consistently applied, and otherwise in form and substance reasonably satisfactory to Agent and certified by such Guarantor.

(iii)          a certificate from Borrower certifying that there is no Default or Event of Default under the Loan Documents, which certificate shall be delivered to Agent no later than forty-five (45) days after the close of each Fiscal Year of the Borrower;

(iv)          such other reports and information (including, without limitation, bank statements, but only as to Borrower and the Members) as Agent shall reasonably require, which reports and information shall be delivered to Agent as soon as practicable but in no event later than twenty (20) days after Agent’s request therefor, provided that, if such information cannot reasonably be delivered within such twenty (20) day period, within such longer period as may be required so long as such entity is diligently pursuing the delivery thereof;

(v)           monthly leasing status reports for the FC Units, and, from and after Substantial Completion of any Unit, retail tenant sales reports with respect to any tenants who are currently paying percentage rent, tenant receivables reports and a current rent roll for each such Unit, each certified to fairly represent the status of such Unit by the owner of such Unit, which reports shall be delivered

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to Agent no later than twenty (20) days after the last day of each calendar month; and

(vi)          (1) monthly statements showing any revisions since the preceding monthly statement to the Plans and Specifications (including all Change Orders since the preceding monthly statement (regardless of whether the work on such Change Order has commenced or the price therefor or any applicable time extension with respect thereto has been agreed to) and (2) quarterly statements showing the contracts entered into by any Borrower Entity, or by General Contractor with subcontractors, subsequent to the Closing Date, which statements shall be certified by Borrower (as to contracts entered into by Borrower) or the applicable Member (as to contracts entered into by such Member) and delivered to Agent and Construction Consultant no later than twenty (20) days after the last day of each calendar month or calendar quarter, as applicable.

(b)           To grant (and to cause each Member to grant) Agent the right to conduct an independent audit of any of the above financial information at its own expense at any time; provided, however, that if any such audit shall reveal an error in excess of three and one-half percent (3¹/₂%), such audit expense shall be borne solely by the Borrower or Member which is being audited.

(c)           To grant (and to cause each Member to grant) Agent and its advisors the right upon reasonable prior notice during reasonable business hours at the Premises or at Borrower’s or such Member’s office to examine the records, books, management and other papers of Borrower or such Member, as applicable, which reflect upon such entity’s financial condition, and Agent and its advisors shall have the right to make copies and extracts from the foregoing records and other papers.

SECTION 7.17       Compliance with Legal Requirements.  (a)  To comply, and cause the Mortgaged Property to comply at all times with all Legal Requirements applicable thereto, including, without limitation, obtaining and complying with all conditions and requirements of all Governmental Approvals then necessary for the construction, use, occupancy and operation of the Mortgaged Property or any portion of the Mortgaged Property or the business thereon, and to preserve and maintain the same in full force and effect; and to provide Agent with evidence reasonably satisfactory to Agent that the Mortgaged Property complies with all Legal Requirements applicable thereto.  Without limiting the foregoing, Borrower shall strictly comply (and shall cause each Member to comply) to the extent applicable with the requirements of the Americans with Disabilities Act of 1990, all state and local laws and ordinances related to handicapped access and all rules, regulations, and orders issued pursuant thereto including, without limitation, the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities.

(b)           Borrower or the applicable Member will have the right to contest the validity or application of any of the Legal Requirements affecting the Mortgaged Property by appropriate legal proceedings, so long as:  (1) such legal

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proceedings shall be prosecuted with diligence by Borrower (or such Member) and shall operate to prevent any taking or closing or shutting down of the Premises or any portion thereof by any Governmental Authority, and shall have the effect of staying any type of sale or forfeiture of the Premises, (2) Borrower (or such Member) shall have deposited with or delivered to Agent, as applicable, cash collateral, a bond or such other security reasonably satisfactory to Agent on such terms as may be reasonably satisfactory to Agent and (if applicable) in an amount as may be deemed reasonably necessary by Agent to pay for such contest and to pay for the cost of compliance (if not yet paid) with such Legal Requirements, and any fines, penalties, charges and interest thereon which may be awarded or assessed (which amount may be increased at the request of Agent when Agent determines (in its reasonable judgment) that a greater amount may be required to make such payments), (3) such proceeding shall not subject Agent, any Lender or any Borrower Entity to the risk of any criminal liability, (4) no Noticed Default or Event of Default shall then exist under any Building Loan Document, (5) Borrower (or such Member) gives Agent (x) reasonably continuous notice upon the commencement and during the continuation of any such proceeding of the status thereof, and (y) confirmation on such periodic basis as Agent may request of the continuing satisfaction of the conditions set forth in clauses (1) through (4) above, and (6) Borrower (or such Member) shall have furnished to Agent all other items reasonably requested by Agent.  If Borrower (or such Member) shall fail at any time to comply with the above conditions to contest or if the Premises or any part thereof is, in the judgment of Agent, in any imminent danger of being forfeited or lost, Agent may require Borrower (or such Member) to, and Borrower (or such Member) will thereupon, comply with the Legal Requirement which is the subject of the contest.  During the continuance of an Event of Default, Agent may, at its option, credit all or any part of any such cash, bond or other security then held by it to the Indebtedness in such order as Agent may elect.  Upon final determination of such contest, Borrower (or such Member) will take all steps necessary to comply with any requirements arising therefrom and, after final payment of all costs of such contest and any costs of compliance, Agent shall return to Borrower (or such Member) any remaining security held by Agent pursuant to the foregoing clause (2).

(c)           Without limiting any other provision of this Section 7.17, each Borrower Entity shall comply with all legal requirements relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect.  Without limiting anything in the foregoing sentence, no Borrower Entity shall take any action, or permit any action to be taken, that would cause the representations and warranties in Section 6.05(b) of this Agreement to become untrue or inaccurate at any time during the term of the Loans.  Each Borrower Entity shall notify Agent promptly after obtaining knowledge that the representations and warranties in Section 6.05(b) of this Agreement may no longer be accurate or that any other violation of the foregoing legal requirements has occurred or is being investigated by any Governmental Authority.  In connection with such an event, each Borrower Entity shall comply with all legal requirements and directives of Governmental Authorities and, at Agent’s request, provide to Agent copies of all notices, reports and other communications exchanged with, or received from, Governmental Authorities relating to such event.  Borrower shall also reimburse Agent and Lenders for all actual reasonable expenses incurred by Agent in evaluating the effect of such an event on the Loans and the collateral for the Loans, in

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obtaining any necessary license from Governmental Authorities as may be necessary for Agent to enforce its rights under the Loan Documents, and in complying with all legal requirements applicable to Agent or any Lender as the result of the existence of such an event and for any penalties or fines imposed upon Agent or any Lender as a result thereof.  All such expenses shall constitute Reimbursable Costs.  Borrower agrees to confirm the representation and warranty set forth in Section 6.05(b) hereof in writing on an annual basis if requested by Agent to do so.

SECTION 7.18       Title.  Except to the extent permitted by Section 7.39 hereof, to keep the Mortgaged Property free and clear of all Liens, other than the Permitted Exceptions and the liens in favor of Agent, for the benefit of Lenders, and to warrant and defend against the claims of all Persons (a) the title to the Mortgaged Property and every part thereof and (b) the validity and first priority (subject only to the Permitted Exceptions) of any Lien under the Security Documents.

SECTION 7.19       Maintain Existence.  (a)  To maintain its existence in good standing and make no changes in its organization or in any of its organizational documents (except that (i) Borrower shall be permitted to dissolve after all Units have been redeemed by the Members in accordance with the provisions of this Agreement and the Project Loan Agreement and (ii) Borrower shall be permitted to amend its organizational documents to the extent necessary to reflect the withdrawal of NYTC Member from Borrower in connection with the NYTC Units Redemption and the withdrawal of FC Member in connection with the transaction described in Section 7.50 hereof, provided that Borrower delivers (or causes to be delivered) documentation reflecting such changes certified in such manner as Agent may reasonably request), and to cause the same to be true with respect to the Members and, to the extent that a failure to observe the foregoing covenant would constitute a Material Adverse Effect, to cause the same to be true with respect to the Guarantors.

(b)           Except as permitted by, and in accordance with, Sections 7.32, 7.46 and 7.50, to not, without the Agent’s prior approval, convey or transfer any part of its property, assets, or business to any other Person (and to cause the same to be true with respect to the Members).

(c)           To maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business (and to cause the same to be true with respect to the Members).

SECTION 7.20       Interest Rate Caps.  (a)  Either (i) to the extent required by the first sentence of Section 4.02(e)(7), to purchase, deliver to Agent and maintain the Initial Advance Interest Rate Cap or (ii) if the Initial Interest Rate Cap is not required to be purchased, to purchase, deliver to Agent and maintain an interest rate cap (a “Future Advance Interest Rate Cap”) if the LIBOR Rate equals or exceeds, at any time during the applicable six (6) month period (the “Period”) set forth on Schedule 2 hereto, the “trigger rate” for such period set forth on said Schedule 2, which Future Advance Interest Rate Cap shall be in form and substance reasonably acceptable to Agent, shall be with a counterparty reasonably acceptable to Agent, shall cap the LIBOR Rate at the applicable

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rate set forth on said Schedule 2, and shall have a term of the Period or the balance thereof remaining.  At any time that Borrower shall be required to deliver to Agent a Future Advance Interest Rate Cap, Borrower shall also deliver to Agent (1) an Assignment of Interest Rate Cap with respect thereto, (2) a consent by the counterparty thereto to such Assignment of Interest Rate Cap and (3) an opinion, in form and substance, and from counsel, reasonably acceptable to Agent, as to the due authorization, execution and delivery by Borrower and enforceability of, and other customary matters with respect to, the Future Advance Interest Rate Cap and such Assignment of Interest Rate Cap (but not as to any matter with respect to such counterparty (other than the enforceability of such Future Advance Interest Rate Cap against such counterparty)).  If Borrower purchases any other interest rate caps, any interest rate management contracts or any “hedge agreements”, Borrower shall make the deliveries referred to in clauses (1), (2) and (3) of the preceding sentence with respect thereto.  Notwithstanding anything to the contrary in this Section 7.20, Borrower shall have the right, subject to Agent’s prior reasonable consent to increase the “trigger rates” set forth on said Schedule 2.

(b)           If Borrower fails to perform its obligations under the first and second sentences Section 7.20(a) within two (2) Business Days after it is required to do so, Agent may, in its sole discretion and in addition to any other rights and remedies it may have hereunder and under the other Loan Documents in connection with such failure, purchase the required Future Advance Interest Rate Cap, in which event Borrower shall be obligated to reimburse Agent for the cost therefor.

SECTION 7.21       Further Assurance.  To execute and deliver promptly (and to cause each other Borrower Entity to execute and deliver promptly) such additional agreements and instruments and to take promptly such additional actions as Agent may at any time and from time to time reasonably request in order for Agent and Lenders to obtain the full benefits and rights granted or intended or purported to be granted by this Agreement and the other Building Loan Documents to which it (or such Borrower Entity) is a party, provided the same do not change any such Borrower Entity’s liabilities, or decrease such Borrower Entity’s rights, under the Building Loan Documents (other than, in each case, to a de minimis extent).  In furtherance of the foregoing, if at any time Agent has reason to believe that the Building Loan is not secured or will or may not be secured by the Security Documents as a first priority lien (subject only to the Permitted Exceptions) or security interest on the collateral intended to be granted under such Security Documents, then Borrower shall, within five (5) Business Days after notice from Agent, do and shall cause each other Borrower Entity to do, all things and matters reasonably necessary (including execution and delivery to Agent of all further documents and performance of all other acts which Agent deems reasonably necessary or appropriate) to assure to the satisfaction of Agent that the Building Loan is secured with first priority liens or security interests (subject only to the Permitted Exceptions) on the collateral intended to be granted under such Security Documents.

SECTION 7.22       Budgets, Etc.  Not to change any line item in any Budget, or the Construction Schedule without Agent’s prior reasonable consent except to the extent expressly permitted hereunder.  Notwithstanding anything to the contrary

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contained in this Agreement, no request for Agent’s approval for any change in any Budget or in the Construction Schedule shall be made if such change would also require the approval of either Member or any third party (or if any such Member or third party claims that such change requires its approval), unless such other approval has previously been granted or a request for such other approval is made concurrently with the request to Agent.

SECTION 7.23       Zoning, Easements and Restrictions; Use; Alterations.  (a)  Not to (and to cause each other Borrower Entity not to), without Agent’s prior approval, (i) initiate or support any limiting change in the permitted uses of the Mortgaged Property (or to the extent applicable, the zoning reclassification of the Mortgaged Property or modification to the DUO Declaration) or any portion thereof, or seek any variance under existing land use restrictions, laws, rules or regulations (or, to the extent applicable, the zoning ordinances) applicable to the Mortgaged Property, (ii) use or permit the use of the Mortgaged Property in a manner that would cause a default under the terms of any Building Loan Documents to which it is a party, or any Material Contracts (to the extent applicable), Leases, Legal Requirements, Governmental Approvals or any Permitted Exceptions, or the Equity Contribution Documents, (iii) modify, amend or supplement any Permitted Exception in a manner adverse in any material respect to the interests of Agent or Lenders, (iv) impose or permit or suffer the imposition of any material restrictions, covenants or easements upon the Mortgaged Property (other than the Permitted Exceptions), (v) execute or file any subdivision plat affecting the Mortgaged Property, (vi) institute, or permit the institution of, proceedings to alter any tax lot comprising the Mortgaged Property except as contemplated by Section 7.43 hereof with respect to Lot 15 and in connection with the Condominium Documents, (vii) permit or suffer the Mortgaged Property to be used by the public or any Person in such manner as might make possible a claim of adverse usage or possession or of any implied dedication or implied easement, or (viii) enter into any zoning lot merger agreement or similar agreement affecting the Mortgaged Property.

(b)           Except for the construction of the Premises in accordance with the terms of the Building Loan Documents, not cause, suffer or permit, without Agent’s prior approval (i) any material alteration of the Improvements except as permitted by the terms of any Permitted Leases or (ii) any demolition or removal of any portion of the Improvements or the Personal Property, except for the removal in the ordinary course of business of items which are obsolete or the removal of which was made for good-faith business reasons and shall not adversely affect the use, operation or value of the Mortgaged Property.

SECTION 7.24       Laborers, Subcontractors and Materialmen.  To notify Agent immediately if Borrower receives any written default notice, notice of lien or demand for past due payment from any laborer, subcontractor or materialmen.  In addition, at any time that any material dispute with any third party to a Material Contract shall commence, Borrower shall advise Agent of the same in reasonable detail and keep Agent reasonably informed as of the status thereof.

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SECTION 7.25       Ownership of Personalty.  To furnish to Agent photocopies of the fully executed contracts, bills of sale, receipted vouchers and agreements, or any of them, under which Borrower or any Member claims title to the materials, articles, fixtures and other personal property used or to be used in the construction or operation of the Premises.  Until Final Completion, the furnishing by Borrower to Agent of a Draw Request together with all supporting documents shall be sufficient to satisfy the foregoing covenant.

SECTION 7.26       Comply with Other Building Loan Documents.  To perform (and to cause each Member to perform) all of its obligations under this Agreement and the other Building Loan Documents and all other documents evidencing or securing the Building Loan (to the extent each is a party thereto).

SECTION 7.27       Purchase of Material Under Conditional Sale Contract.  Except for tenant fixtures or material or equipment installed by a tenant pursuant to a Permitted Lease, not to permit any materials, equipment, fixtures or any other part of the Mortgaged Property to be purchased or installed under any security agreement or other arrangements wherein the seller reserves or purports to reserve the right to remove or to repossess any such items or to consider them personal property after their incorporation in the Mortgaged Property, unless authorized by Agent in advance.

SECTION 7.28       Illegal Activities.  Not to knowingly permit any portion of the Mortgaged Property to be purchased, improved, constructed, fixtured, equipped or furnished with proceeds of any criminal or other illegal activity.

SECTION 7.29       Indemnification.  (a)  To defend, indemnify and hold harmless each Indemnified Party from and against, and to reimburse the affected Indemnified Party for, any and all losses, claims, damages, judgments, costs, expenses (including reasonable attorney’s fees and disbursements), liabilities, fines, penalties and charges (collectively, the “Losses”), which are or may be imposed, or sustained by, such Indemnified Party by reason of any matter arising from any Building Loan Document or the Building Loan (including, without limitation, by reason of (w) the occurrence of any Default or Event of Default, (x) any brokerage commissions, (y) any bodily injury or property damage occurring in or upon or in the vicinity of the Mortgaged Property or the Project or (z) any act performed or omitted to be performed hereunder), except (i) costs and expenses of the type described in Section 7.06 for which Borrower is not liable under said Section 7.06 and (ii) to the extent that such Losses resulted from a violation of law by any Indemnified Party or from the gross negligence or willful misconduct of any Indemnified Party.  In case any claim, action or proceeding (a “Claim”) is brought against an Indemnified Party in respect of which indemnification may be sought by such Indemnified Party pursuant hereto, Agent shall give notice thereof to Borrower, provided, however, that the failure of Agent to so notify Borrower shall not limit or affect such Indemnified Party’s rights to be indemnified pursuant to this Section 7.29 except to the extent Borrower is materially prejudiced by such failure.  Upon receipt of such notice of a Claim, Borrower shall, at its sole cost and expense, in good faith investigate, prosecute, negotiate or defend any such Claim with counsel and consultants selected by Borrower

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and reasonably satisfactory to such Indemnified Party (provided, however, that if the counsel is required to be selected by Borrower’s insurance provider pursuant to the express terms of the applicable insurance policy, such counsel shall be deemed satisfactory to such Indemnified Party), which counsel may, without limiting the rights of such Indemnified Party pursuant to the following sentences of this Section 7.29, also represent Borrower in such investigation, action or proceeding.  Borrower shall cause its counsel to promptly keep Agent fully apprised of all matters relating to such Claim including, without limitation, copying Agent on all material written materials generated or received by such counsel, promptly responding to any questions from Agent as to the status of such Claim, and causing such counsel to agree that each Indemnified Party shall be entitled to rely upon the work product of such counsel to the same extent that Borrower is entitled to rely thereon; provided, however, that Borrower shall not be required to cause such counsel, and such counsel shall not be required, to take any action that, in the reasonable opinion of such counsel, could impair the attorney-client privilege between Borrower and such counsel.  In the alternative, such Indemnified Party may elect to conduct its own defense through counsel and consultants of its own choosing and at the sole expense of Borrower, but only if (A) such Indemnified Party determines that the conduct of its defense by Borrower would be in conflict with its interests or is reasonably likely to result in greater liability than would result if such Indemnified Party were directly defending or prosecuting such Claim, (B) Borrower refuses to investigate, prosecute, negotiate or defend, (C) Borrower shall have failed, in such Indemnified Party’s judgment, to investigate, prosecute, negotiate or defend the Claim diligently and in good faith or (D) Borrower shall fail to keep Agent fully apprised of the status of any Claim.  Borrower may settle any Claim against such Indemnified Party without such Indemnified Party’s approval, if (i) such settlement is without any liability, cost or expense whatsoever to such Indemnified Party, (ii) the settlement does not include or require any admission of liability or culpability by such Indemnified Party under any federal, state or local statute or regulation, whether criminal or civil in nature and (iii) Borrower obtains an effective written release of liability for such Indemnified Party from the party to the Claim with whom such settlement is being made, which release must be reasonably acceptable to such Indemnified Party, and a dismissal with prejudice with respect to all claims made by the party against such Indemnified Party in connection with such Claim; provided, however, that if, pursuant to the immediately preceding sentence, any Indemnified Party shall elect to conduct its defense through counsel of its own choosing, such Indemnified Party shall have the right (with the reasonable consent of Borrower if clause (A) only of the immediately preceding sentence applies), to settle such Claim in good faith and Borrower shall be responsible for any such settlement.  Nothing contained herein shall be construed as requiring Agent or any Indemnified Party to expend funds or incur costs to defend any Claim in connection with the matters for which Agent or any Indemnified Party is entitled to indemnification pursuant to this Section 7.29.  The obligations of Borrower hereunder shall specifically include the obligation to expend its own funds, to incur costs in its own name and to perform all actions as may be necessary to protect any Indemnified Party from the necessity of expending its own funds, incurring costs or performing any actions in connection with the matters for which such Indemnified Party is entitled to indemnification hereunder.  If, notwithstanding the foregoing, any Indemnified Party shall incur any expenses hereunder,

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Borrower shall reimburse such Indemnified Party for all such amounts within ten (10) days after demand therefor, and any amounts not so reimbursed shall bear interest at the Default Rate from the date such amount was due until so paid.

(b)           The obligations and liabilities of Borrower under this Section shall survive the termination of this Agreement and the payment of all amounts payable under the Building Loan Notes or the other Building Loan Documents.

SECTION 7.30       Condominium.  (a)  To (i) not amend or supplement the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.

(b)           Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership.

(c)           Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Building Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:

(i)            the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;

(ii)           the Title Insurance Policy insuring the Building Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Building Loan Mortgage and the

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Project Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;

(iii)          Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;

(iv)          Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Building Loan Mortgage and Project Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;

(v)           the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Building Loan Mortgage;

(vi)          the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent 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;

(vii)         the Building Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;

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(viii)        the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;

(ix)           Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and

(x)            Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).

(d)           Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting.  Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).

SECTION 7.31       Developer.  To retain Developer or an Acceptable Developer as the developer (or, from and after Substantial Completion, the operator or manager and Person with principal responsibility and authority (subject to veto rights over major decisions held by Persons with equity interests in the Project) for leasing decisions) of the Project.

SECTION 7.32       No Transfers or Encumbrances.  (a)  Not to, without the prior approval of, (1) in the case of Transfers contemplated by clause (i) of this subsection, the Super-Majority Lenders, (2) in the case of Transfers contemplated by clauses (ii) and (iii) of this subsection, but only if such Transfers result in a Change in Control of any Member, the Majority Lenders, and (3) in the case of all other Transfers, Agent:

(i)            cause or permit any sale, conveyance, transfer, alienation, mortgage, encumbrance, pledge, hypothecation or transfer of the Mortgaged Property or any portion thereof or interest therein, other than (w) as provided under the Project Loan Documents, (x) as permitted under Section 7.46 hereof, (y) as permitted under Sections 7.32(b) and 7.50 hereof or (z) as referred to in Section 7.27 hereof with respect to tenant fixtures;

(ii)           cause or permit any direct or indirect sale, conveyance, transfer, alienation, mortgage, encumbrance, pledge or hypothecation of, or granting of any security interest by any of the direct or indirect members of Borrower (or other legal or beneficial holders of direct or indirect equity interests in Borrower) in, all or any portion of such member’s (or such other holder’s) interest in Borrower or the right to receive distributions (directly or indirectly) from Borrower, other than as provided under the Equity Contribution Documents;

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(iii)          cause or permit any Person not now a Member of Borrower to become a member in or manager of Borrower, and the ultimate beneficial ownership of any Borrower Entity shall not be changed or altered, by sale, conveyance, transfer, alienation, mortgage, encumbrance, pledge, hypothecation, foreclosure, issuance of additional ownership or beneficial interests or otherwise, from the ultimate beneficial ownership on the date hereof; or

(iv)          cause or permit a declaration of easements and/or condominium to be filed with respect to or recorded against the Mortgaged Property (other than in accordance with Section 7.30 hereof).

Any transaction covered by the foregoing clauses (i) – (iv) shall hereinafter be referred to as a “Transfer”; provided, however, that a Permitted Lease shall not be deemed to constitute a “Transfer.”  A Transfer shall be deemed to include, without limitation:  (i) an installment sales agreement wherein the applicable Person agrees to sell the applicable property or interest or any part thereof for a price to be paid in installments, and (ii) an agreement by any Borrower Entity leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a tenant or a sale, assignment or other transfer of, or the grant of a security interest in, any Borrower Entity’s right, title and interest in and to any Lease or any rent, revenues, issues, earnings, profits or income thereof.

(b)           Notwithstanding the foregoing but, subject to subsections (c) and (d) below, the following transactions (collectively, “Permitted Transfers”) will be permitted:

(i)            any transfers of equity interests in any entity that is a direct or indirect equity interest holder in Borrower, so long as the equity interests in such entity are traded on a nationally recognized exchange.  If such entity’s equity interests are no longer listed on a nationally recognized exchange (it being understood that any transaction or series of transactions that result in the delisting of the shares of such entity shall not be a Permitted Transfer) any Transfer of direct or indirect equity interests in such entity shall be a Permitted Transfer if such Transfer does not, individually or in the aggregate with other such prior Transfers, result in a Change of Control of Borrower or either Member;

(ii)           any Transfer permitted by Section 8.01(b) of the Operating Agreement, Section 5.06(d)(3), Section 8.02(a) and Section 8.02(b)(ii) of the FC Operating Agreement, and any Transfer occurring as a result of the exercise of any remedies by the Extension Loan Lender under the Extension Loan Documents.  Notwithstanding the immediately preceding sentence, (A) Transfers permitted by the Recognition Agreements which are not otherwise Permitted Transfers hereunder shall not be Permitted Transfers, and (B) Transfers permitted by Section 5.06(d)(3) of the FC Operating Agreement shall only be a Permitted Transfer as long as ING Member is the owner of the Mezzanine Loan (as defined in the FC Operating Agreement) and ING Member is controlled by ING.

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Borrower acknowledges and confirms that Transfers permitted by the Condominium Documents which are not otherwise Permitted Transfers hereunder shall not be Permitted Transfers;

(iii)          any Transfer (including, without limitation, a Transfer that results from the foreclosure by a Member of another Member’s membership interests in Borrower) of interests between the Members;

(iv)          simultaneously with the release of any Unit pursuant to Section 7.46 hereof or the redemption of the FC Units in accordance with Section 7.50 hereof, the redemption of the interest in Borrower held by the applicable Member; and

(v)           any transfer of interests in FC Member by ING Member to FC 41st Street.

Notwithstanding the foregoing, a Permitted Transfer may occur only if (y) Agent shall be provided with at least ten (10) Business Days prior notice of such Transfer, together with all information reasonably requested by Agent with respect to such Transfer, and a diagram showing the structure of the affected entities after the contemplated Transfer and a list of the names, types of interests and percentages of ownership of all owners of interests in the applicable entities after the contemplated Transfer; and (z) all reasonable, third-party out-of-pocket fees and costs incurred by Agent in connection with the review of such Transfer to determine whether it is a Permitted Transfer or to obtain the consent of Agent if required, including, without limitation, attorneys’ fees and disbursements, shall be paid by Borrower.

(c)           Borrower acknowledges that Agent and Lenders (i) have examined and relied on the creditworthiness and experience of the Borrower Entities in owning and operating properties such as the Mortgaged Property in agreeing to make the Building Loan, (ii) subject to the foregoing provisions of this Section 7.32, will continue to rely on such Borrower Entities’ direct and indirect ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Building Loan, (iii) have a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Borrower default in the repayment of the Building Loan, Lenders can recover the Building Loan by a sale of the Mortgaged Property, and (iv) shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Building Loan immediately due and payable upon the occurrence of any Transfer which violates this Section 7.32.

(d)           Notwithstanding anything to the contrary in this Section 7.32 or any other provision hereof, if (1) a Permitted Transfer (or any other Transfer approved in accordance with Section 7.32(a) hereof) results in FC Guarantor not owning any direct or indirect interest in the Mortgaged Property, (2) no Noticed Default or Event of Default shall then exist and (3) Borrower causes another Person (with liquidity, net worth and, if rated by S&P (or by Moody’s, if not rated by S&P), a long-

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term debt rating equal to or greater than the net worth, liquidity and, if applicable, the long-term debt rating by S&P or Moody’s (as applicable) of FC Guarantor at the time of such Permitted Transfer or Transfer) to execute and deliver a non-recourse carveouts guaranty substantially in the form of the FC Non-Recourse Carveouts Guaranty, mutatis mutandis, and (unless Final Completion has already been achieved), a completion guaranty substantially in the form of the FC Completion Guaranty, mutatis mutandis, and such guarantees are accompanied by an opinion of counsel reasonably acceptable to Agent covering due authorization, execution and delivery, enforceability and other customary matters with respect to such guarantees, then Agent shall release the FC Guarantor from liability under the Non-Recourse Carveouts Guaranty and (if applicable) the FC Completion Guaranty and, from and after such date, all references to the FC Non-Recourse Carveouts Guaranty, the FC Completion Guaranty and FC Guarantor shall instead be references to such non-recourse carveouts guaranty, such completion guaranty and such Person.

(e)           Notwithstanding anything to the contrary in this Agreement, if an Event of Default caused by FC Guarantor under Section 9.01(e), (f)(x) or (q) hereof occurs or if an Event of Default occurs as a result of a breach by FC Guarantor of paragraph 8 of the FC Completion Guaranty or Section 4 of the FC Non-Recourse Carveouts Guaranty, and Borrower shall cause another Person (with liquidity, net worth and, if rated by S&P (or by Moody’s, if not rated by S&P), a long-term debt rating equal to or greater than the net worth, liquidity and, if applicable, the long-term debt rating by S&P or Moody’s (as applicable) of FC Guarantor at the time of such Event of Default) to execute and deliver, within ten (10) Business Days of such Event of Default, a non-recourse carveouts guaranty substantially in the form of the FC Non-Recourse Carveouts Guaranty, mutatis mutandis, and (unless Final Completion has already been achieved), a completion guaranty substantially in the form of the FC Completion Guaranty, mutatis mutandis, and such guaranties are accompanied by an opinion of counsel reasonably acceptable to Agent covering due authorization, execution and delivery, enforceability and other customary matters with respect to such guaranties and, in the case of an Event of Default that occurs as a result of a breach of said paragraph 8 of the FC Completion Guaranty or said Section 4 of the FC Non-Recourse Carveouts Guaranty only, a reimbursement to Agent for any losses or expenses already suffered by Agent as a result of any such breach and an indemnity agreement in form and substance reasonably satisfactory to Agent and such Person (which indemnity agreement may be included in such non-recourse carveouts guaranty, but which shall in any event be covered in the opinion of counsel referenced above) pursuant to which such Person shall agree to indemnify Agent for any subsequent losses or expenses Agent suffers as a result of such a breach, then such Event of Default shall be deemed to have been cured, and, from and after such date, all references to the FC Non-Recourse Carveouts Guaranty and (if applicable) the FC Completion Guaranty, and FC Guarantor shall instead be references to such non-recourse carveouts guaranty, such completion guaranty (if applicable) and such Person.

(f)            Agent’s approval rights under this Section shall apply to every future Transfer, whether voluntary or not, and whether or not Agent has approved

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any prior Transfer.  Any Transfer made in contravention of this Section shall be null and void and of no force and effect.

SECTION 7.33       No Distributions.  To not make any distributions or other payments or disbursements to any Borrower Entity or Affiliates of any Borrower Entity until the Building Loan has been repaid in full, other than (a) distributions of the payments permitted under Section 3.05(d) hereof and Section 3.05(d) of the Project Loan Agreement, (b) payments provided for under the Collection Accounts Agreement and the Security Deposit Accounts Agreement, (c) the payment to FC 41st Street, with Initial Required Equity Funds, of a $545,000 construction financing fee that is part of the “Financing Fees and Out-of-Pocket” line item in the FC Units Budget, (d) payments (through FC Member) to FC 41st Street and ING Member of the $14 million site management fee covered by the $14 million “Site Management” line item on the FC Units Budget, but only (x) prior to the first Advance hereunder, to the extent of actual out-of-pocket costs incurred, in connection with site management activities undertaken by FC 41st Street and ING Member, and reasonably approved by Agent and (y) from and after the first Advance hereunder, in accordance with Section 3.05(d) of the Project Loan Agreement, (e) distributions to FC Member under Section 3.01(b) of the Operating Agreement, distributions and reimbursements to NYTC Member under Sections 3.01(c) and 3.01(e) of the Operating Agreement, distributions to ING Member under Sections 3.02(a)(2) and 3.02(d)(2) of the FC Operating Agreement and distributions pursuant to Section 3.02(c) of the FC Operating Agreement, and (f) repayments of the Equity Contribution (including interest thereon).

SECTION 7.34       Estoppels.  (a) To execute (and to cause each other Borrower Entity to execute) and deliver to Agent, within ten (10) days after request therefor is made by Agent, an estoppel certificate to Agent for the benefit of Lenders containing the following information:

(i)            Each estoppel certificate from Borrower shall be duly acknowledged and certified by Borrower, and shall set forth:  (1) the original maximum principal amount of the Building Loan; (2) the aggregate amount of all Advances therefore made with respect to the Building Loan and the then Outstanding Principal amount; (3) the maturity date of the Building Loan; (4) the date through which installments of interest and/or principal (if any) have been paid; (5) that the Loan Documents are in full force and effect with no Default or Event of Default by Borrower under any of the Loan Documents (or, if any such Default or Event of Default by Borrower shall exist, specifying the nature thereof); (6) that there are no offsets or defenses or counterclaims against the payment of the Loans (or if any such offset, defense or counterclaim shall exist, specifying the nature thereof); (7) that the Loan Documents to which Borrower is a party are the valid, legal and binding obligations of Borrower, and have not been modified or amended (or if any such modification has occurred, specifying the nature thereof); (8) that the Guaranteed Maximum Price Contract, each other Material Contract, and Lease to which Borrower is a party is in full force and effect, and has not been modified or amended (except with the approval of Agent, if required under the Loan Documents), and that there are no defaults or events

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with which the passage of time or the giving of notice or both would constitute an event of default by Borrower under such Guaranteed Maximum Price Contract, Material Contract, or Lease by Borrower, and to Borrower’s Knowledge, by the third party or parties thereto (or, if any such default or event shall exist, specifying the nature thereof); (9) that the Guaranteed Maximum Price Contract, Material Contracts, and Leases to which Borrower is a party are valid, legal and binding obligations of Borrower; and (10) and any other matters reasonably requested by Agent.

(ii)           Each estoppel certificate from any other Borrower Entity shall be duly acknowledged and certified by such Borrower Entity and shall set forth (1) a statement reaffirming all representations and warranties of such Borrower Entity provided herein and in the other Loan Documents (or, to the extent of any changes to any such representations and warranties, specifying such changes); (2) that the Loan Documents to which the applicable Borrower Entity is a party are in full force and effect and that no Default or Event of Default by such Borrower Entity exists under any such Loan Documents (or if any such Default or Event of Default shall exist, specifying the nature thereof); (3) that there are no offsets or defenses or counterclaims against such Borrower Entity’s obligations under the Loan Documents to which it is a party (and if any such offset, defense or counterclaim shall exist, specifying the nature thereof); (4) that the Loan Documents to which such Borrower Entity is a party are the valid, legal and binding obligations of such Borrower Entity, and have not been modified or amended (or if any such modification has occurred, specifying the nature thereof); (5) that each Material Contract and Lease to which such Borrower Entity is a party is in full force and effect, and has not been modified or amended (except with the approval of Agent, if required under the Loan Documents), and that there are no defaults or events with which the passage of time or the giving of notice or both would constitute an event of default under such Material Contract or Lease by such Borrower Entity, and to such Borrower Entity’s knowledge, by the third party or parties thereto (or, if any such default or event shall exist, specifying the nature thereof); (6) that the Material Contracts and Leases to which such Borrower Entity is a party are valid, legal and binding obligations of such Borrower Entity; and (7) any other matters reasonably requested by Agent.

(b)           To request that (i) the New York City Transit Authority (and to use commercially reasonable efforts (without expenditure of any money, other than to a de minimis extent) to cause the New York City Transit Authority) to execute and deliver to Agent an estoppel certificate substantially in the form of the Subway Agreement Estoppel delivered pursuant to Section 4.01(w)(iii)(1) hereof, (ii) ESDC, Ground Lessor and the City of New York (and to use commercially reasonably efforts (without expenditure of any money, other than to a de minimis extent) to cause ESDC, Ground Lessor and the City of New York) to execute and deliver to Agent an estoppel substantially in the form of the Public Project Agreements Estoppel delivered pursuant to Section 4.01(w)(iii)(2) hereof, in each case within ten (10) days after the request therefor is made and (iii) Ground Lessor execute and deliver an estoppel with respect to the Ground Lease.

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(c)           Upon the request of Agent (which shall not be made more than quarterly) to cause the Tenant under any Major Lease to deliver an estoppel certificate substantially in the form attached hereto as Exhibit K.

SECTION 7.35       Extension Loan Documents.  (i) To cause FC Member to timely comply with its obligations under the first two sentences of Section 6.03 of the Operating Agreement, (ii) to use diligent efforts to satisfy, or cause to be satisfied, as promptly as practical, the Extension Loan Conditions described in clauses (b) and (d) of the definition thereto and to use diligent efforts to cause the achievement of the Completion Date, (iii) to not amend, and to cause any Borrower Entity which is a party thereto not to amend, the Extension Loan Documents, or assign, or permit any other Borrower Entity which is a party thereto or the Extension Loan Lender to assign, its rights or obligations under the executed Extension Loan Documents without the prior approval of Agent (and the Majority Lenders, if such assignment relates to the interest of the Extension Loan Lender), (iv) to cause to be provided to Agent copies of any communications given to or received from Extension Loan Lender under the Extension Loan Documents, (v) to notify Agent promptly of the occurrence of any default under the Extension Loan Documents, (vi) to not permit FC Member to enter into any documents in connection with the Extension Loan unless Agent shall have given its prior approval of such documents (Agent hereby acknowledging that Extension Loan Documents substantially in the forms of Exhibits Q and S to the FC Operating Agreement are satisfactory to it), (vii) to cause the Extension Loan Condition described in clause (c) of the definition of Extension Loan Conditions to be satisfied no later than the date that Core and Shell Completion is achieved and to cause the Extension Loan Condition described in clause (e) of the definition of Extension Loan Conditions to be satisfied no later than the Completion Date, and (viii) to cause the Extension Loan to be made within one hundred and twenty (120) days following satisfaction of the Extension Loan Conditions.

SECTION 7.36       Single Purpose Entity.  Until such time as the Building Loan is paid in full, Borrower:

(a)           except as referred to in Section 7.19(a)(ii) hereof, has not and will not amend, modify or otherwise change its operating agreement or formation agreement or certificate of formation without the approval of Agent, which approval shall not be unreasonably withheld or delayed;

(b)           except as referred to in Section 7.19(a)(i) hereof, has not and will not enter into any transaction of merger or consolidation, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or acquire by purchase or otherwise all or substantially all the business or assets of, or any stock or other evidence of beneficial ownership of, any Person;

(c)           has not and will not guarantee, pledge its assets for the benefit of, or otherwise become liable for or in connection with, any obligation of any Person;

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(d)           has not owned and will not own any asset other than (i) the Mortgaged Property and (ii) incidental personal property in connection with the construction or operation of the Mortgaged Property;

(e)           has not engaged and will not engage, directly or indirectly, in any business other than the acquisition, development, construction, ownership, management and operation of the Mortgaged Property;

(f)            has not entered into and will not enter into any contract or agreement (excluding the Development Agreements) with any of its officers, principals, employees, Members or Affiliates or any Affiliate of any Borrower Entity except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with third parties (each, a “Permitted Affiliate Contract”);

(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 and (iv) 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 Extension Loan) will be secured (senior, subordinate or pari passu) by the Mortgaged Property;

(h)           has not made and will not make any loans or advances to any third party (including any Affiliate);

(i)            is and will be, solvent and pay its debts from its assets as the same shall become due, except for those being contested in good faith by appropriate proceedings;

(j)            has done or caused to be done and will do all things necessary to preserve its existence;

(k)           will conduct and operate its business as presently, and as presently contemplated to be, conducted and operated;

(l)            will maintain financial statements, books and records and bank accounts separate from those of its Affiliates;

(m)          will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate thereof);

(n)           will file its own tax returns;

(o)           will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

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(p)           will not seek the dissolution or winding up, in whole or in part, of itself or the Members, except as contemplated by Section 7.19(a) hereof;

(q)           will not commingle its funds and other assets with those of any Affiliate or any other Person;

(r)            has maintained, and will maintain, its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify such assets from those of any Affiliate or any other Person;

(s)           has not, and will not, hold itself out to be responsible for the debts or obligations of any other Person (including any Affiliate);

(t)            will not do any act which would make it impossible to carry on its ordinary business or the business of the Members;

(u)           will not possess the Mortgaged Property or incidental personal property necessary for the operation of the Mortgaged Property for other than a business or company purpose;

(v)           will not sell, encumber or otherwise dispose of any part of the Mortgaged Property or incidental personal property necessary for the operation of the Mortgaged Property, except for the transfers referred to in Section 7.32(a)(i) hereof;

(w)          will not hold title to its assets other than in its name;

(x)            will not institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or consent to, reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any applicable federal or state law relating to bankruptcy or insolvency; or consent to the appointment of a Bankruptcy Assignee of itself or the Members or a substantial part of its or the Members’ property, or of all or any part of the rents, revenues, issues, earnings, profits or income thereof; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any action in furtherance of any such action; and

(y)           will not acquire any stock or assets of, or form a partnership, joint venture or other entity with, any Person without Agent’s prior approval.

The foregoing provisions of this Section 7.36 shall be incorporated into, and be maintained in, Borrower’s Articles of Organization for as long as any Borrower Entity is indebted to Agent or the Lenders under any Building Loan Document.

SECTION 7.37       Labor Harmony.  Borrower will not terminate or amend the No-Strikes Agreement, will diligently enforce the provisions thereof binding on the other party thereto, and will use diligent efforts to cause the General Contractor to (x) undertake to contract with only subcontractors and, if applicable, suppliers who utilize

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labor having compatible affiliations with those currently available in the New York City geographical area, and (y) take all appropriate and lawful steps so that all union and bargaining agreements are honored by the General Contractor and its subcontractors and, if applicable, the General Contractor’s suppliers and that no job site disruption or unrest ensues.

SECTION 7.38       Required Notices.  To give (or to cause to be given) notice to Agent promptly of:

(a)           any material notice, pleading or other information pertaining to the Pending Litigations received by Borrower or either Member and any other material actual or threatened (in writing) litigation, investigation or proceeding affecting Borrower, either Member or the Mortgaged Property;

(b)           any material notice received by any Borrower or any Member from any Governmental Authority relating to the Property;

(c)           any event or occurrence which could reasonably be expected to (i) delay “Substantial Completion” (as defined in the Ground Lease) beyond the Fixed Substantial Completion Date or cause the Project not to achieve Final Completion by the Maturity Date or (ii) otherwise cause a Material Adverse Effect; and

(d)           any material notice given or received in connection with the Operating Agreement.

Each notice pursuant to this Section 7.38 shall be accompanied by a statement of Borrower setting forth details of the occurrence referred to therein and stating what action Borrower or the applicable Borrower Entity proposes to take with respect thereto.

SECTION 7.39       Protection Against Liens.  Within sixty (60) days of obtaining knowledge thereof, to (i) pay and discharge, (ii) bond over or (iii) cause the Title Companies to insure over, all liens for labor, materials and services furnished to the Mortgaged Property and all liens in favor of the condominium against any portion of the Mortgaged Property for common charges that are past due and to take all actions reasonably required to prevent the assertion of claims of Liens against the Mortgaged Property.  Borrower irrevocably appoints, designates and authorizes Agent (such agency being coupled with an interest) with the authority (but no obligation) to file any notice relating to claims of Liens that Agent deems advisable to protect its interests under the Building Loan Documents.  In the event that any stop notice or claim is asserted by any Person furnishing labor, services, equipment or materials to the Mortgaged Property, upon demand by Agent, Borrower shall take such action as Agent may require to release Agent and/or Lenders from any obligation or liability with respect to such stop notice or claim, including (i) obtaining a bond or other security, in form, substance and amount satisfactory to Agent, or (ii) paying such claim.

SECTION 7.40       Concrete, Soil and Other Tests.  To perform such soil, compaction, concrete and other tests (from time to time) as Agent or Construction

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Consultant may reasonably require, in form and substance reasonably satisfactory to Construction Consultant and Agent.

SECTION 7.41       ERISA.  (a)  Not to (and to cause each Member not to) engage in a nonexempt prohibited transaction as described in Section 406 of ERISA or Section 4975 of the Code, or that would cause any obligation or action taken or to be taken pursuant to the Building Loan Documents (including, but not limited to, the exercise by Agent of any of its rights under the Building Loan Documents) to constitute a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or (b) not to (and to cause each Member not to) qualify as an Employee Benefit Plan or acquire any assets that constitute Plan Assets.

SECTION 7.42       Name; Chief Executive Office.  To not (i) change its legal name, (ii) use any trade name or do business under any name other than its actual legal name set forth herein on the first page of this Agreement, and (iii) without the prior consent of Agent, change the mailing address, place of business or location of its chief executive office.

SECTION 7.43       No Joint Assessment.  Not to suffer, permit or initiate the joint assessment of the Premises (i) with any other real property constituting a tax lot separate from the Premises (other than Lot 15), and (ii) unless required by applicable law, with anything which may be deemed to constitute personal property, and not to cause or permit any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Premises.  Borrower or the Members shall use its or their diligent efforts to subdivide Lot 15 into separate tax lots as soon as practicable such that the portion of Lot 15 that is subject to the Building Loan Mortgage is a separate tax lot.

SECTION 7.44       Permitted Affiliate Contracts.  To provide Agent with (a) notice of any Permitted Affiliate Contract at least ten (10) days prior to execution thereof and (b) a copy of such Permitted Affiliate Contract promptly after the execution thereof with no changes or modifications from the draft previously submitted to Agent.  No Permitted Affiliate Contract shall be amended or extended without the prior approval of Agent, such approval not to be unreasonably withheld or delayed.

SECTION 7.45       Payment and Performance Bonds.  To obtain, promptly deliver to Agent and maintain Payment and Performance Bonds for all Payment and Performance Bond Contracts.

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, the NYTC Units may be transferred to NYTC Member in redemption of NYTC Member’s interest in Borrower, and upon such conveyance and redemption and the satisfaction of the following conditions, (x) the releases and terminations referred to in Section 7.46(d) hereof shall be effectuated, (y) Agent shall modify the liens of the Building Loan Mortgage and Project Loan Mortgage so that there shall exist a second priority mortgage encumbering solely the FC Units, which mortgage shall be in the

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amount of the Extension Loan (and the Building Loan Notes and Project Loan Notes shall also be appropriately severed to reflect the same) and (z) Agent and Lenders shall assign such mortgages (and such severed notes) applicable to the FC Units to Extension Loan Lender:

(1)           the Condominium Documents shall have been filed in the appropriate public offices and the condominium thereunder validly created under the Condominium Act, all of the conditions set forth in Section 7.30(c) shall have been met (other than the condition set forth in Section 7.30(c)(i)) and there shall be no remaining legal restrictions under the Condominium Documents or under applicable law to such conveyance and redemption;

(2)           Core and Shell Completion shall have been achieved;

(3)           A temporary certificate of occupancy for each of the Units (which may be a zero occupancy or core and shell temporary certificate of occupancy) shall have been issued;

(4)           Agent shall have received not less than thirty (30) days’ prior notice of the proposed conveyance and redemption;

(5)           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;

(6)           Agent shall have received by wire transfer of immediately available funds (A) an amount sufficient (after application of such amount in accordance with Section 7.46(b) below) to reduce the Remaining Loan Amount to $200,500,000.00 (less any prior principal prepayments pursuant to Section 2.06 of the Building Loan Mortgage and Section 2.06 of the Project Loan Mortgage); and (B) all amounts required by clauses (x) and (y) of the first sentence of Section 3.12 hereof, which amounts shall be applied as provided in Section 7.46(b) below;

(7)           Borrower shall have paid all reasonable, third-party out of pocket costs and expenses incurred by Agent in connection with such severance, assignment and release (including reasonable attorneys’ fees and disbursements);

(8)           Agent shall have received an endorsement to the existing title policy to the effect that the applicable modifications of the Building Loan Mortgage and the Project Loan Mortgage and the assignments and releases 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;

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(9)           Borrower shall have paid any mortgage tax or transfer taxes due, and properly completed and submitted any required tax forms, in connection with the entering into of the Extension Loan and the NYTC Units Redemption;

(10)         the redemption of the FC Units in accordance with Section 7.50 hereof shall have occurred (or shall be occurring simultaneously with the NYTC Units Redemption);

(11)         Borrower shall have delivered to Agent all of the documents executed in connection with Extension Loan which shall be in form and substance satisfactory to Agent, and an intercreditor agreement between Extension Loan Lender and Agent, for itself and on behalf of Lenders, with respect to the Extension Loan (the “Extension Loan Intercreditor Agreement”), substantially in the form attached hereto as Exhibit R; and

(12)         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)           At the option of NYTC Member, amounts received by Agent under clause (6) of Section 7.46(a), shall, at NYTC Member’s option, (i) be immediately used to prepay the Outstanding Principal and all accrued and unpaid interest thereon in accordance with Section 3.12 hereof, or (ii) pursuant to an agreement between NYTC Member and Agent reasonably satisfactory to Agent, be held by Agent as additional collateral for the Building Loan and Project Loan until a date selected by NYTC Member that is not later than the first Business Day of the next succeeding month (and Borrower or NYTC Member shall also deposit with Agent interest on such amount that will accrue through such date), on which date such amounts (plus any interest earned thereon) shall be applied to prepay the Outstanding Principal and accrued and unpaid interest in accordance with Section 3.12 hereof.  Notwithstanding the foregoing, any amounts paid pursuant to clause (6) of this Section 7.46(b) in excess of the then Maximum Amount-NYTC shall be disbursed to NYTC Member.

(c)           Upon the release of the NYTC Units in accordance with the provisions of this Section 7.46, (i) the NYTC Units shall be released from the liens of the remaining Building Loan Mortgage and Project Loan Mortgage and from the Building Loan Assignment of Leases and Project Loan Assignment of Leases and (ii) the Assignment of Contracts – NYTC Member and the NYTC Non-Recourse Carveouts 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 and (iii) the Ground Lease and the Severance Sublease to which NYTC Member is a party shall be released from the lien of the Building Loan Mortgage and Project Loan Mortgage.

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(d)           The assignments of mortgages and endorsements of notes made pursuant to this Section 7.46 shall be made without representations or warranties from, or recourse to, Agent or the respective holders thereof; provided, however, that Agent or such holder shall represent and warrant (x) that it owns each note and mortgage being assigned free and clear of all liens and encumbrances and (y) the outstanding principal amount of each note.

(e)           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.

SECTION 7.47       Security Personnel.  To employ security personnel or other means reasonably satisfactory to Agent to protect from theft or vandalism all portions of the Project and all tools and building materials stored at the Premises.

SECTION 7.48       Section 22 Affidavit.  To update the Lien Law Affidavit to the extent necessary to comply with the Lien Law.

SECTION 7.49       Compliance with Condominium Documents.  Upon recording of the Condominium Declaration, Borrower will (or shall cause each Member to) do the following:

(a)           (i)            Pay on or before the expiration of any applicable grace or cure period all charges due with respect to the Units remaining part of the Mortgaged Property (including, without limitation, common charges and assessments) for which Borrower or such Member is responsible under the Condominium Documents, and will not, without the prior consent of Agent, vote at any meeting of such Unit owners, or permit its representatives on the board of directors or other governing board for such Unit to vote or take any action whatsoever respecting (1) any partition of all or a part of the property subject to the Condominium Declaration; (2) the nature and amount of any insurance covering all or a part of such Unit and the disposition of any proceeds thereof or the manner in which any condemnation or threat of condemnation of all or a part of such Unit shall be defended or settled and the disposition of any award or settlement in connection therewith; (3) the disposition of any excess insurance or condemnation proceeds; (4) the acquisition of any interest pursuant to any purchase option or right of first refusal in the Condominium Documents; and (5) any amendment to said Condominium Documents and any removal of such Unit from the provisions of the Condominium Act; and

(ii)           otherwise timely comply before the lapse of any applicable notice and cure period with each of its obligations under the Condominium Documents.

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(b)           Promptly send to Agent copies of any written notice received by Borrower or any Member alleging any default by Borrower or any Member under, or noncompliance with, any of the Condominium Documents and all modifications and amendments to the Condominium Documents, and do all such acts and undertake all reasonable such steps and institute all such proceedings as shall be reasonably necessary to cure or avert such default and to forward to Agent any notices Borrower or any Member receives in regard to any of the foregoing matters.

SECTION 7.50       Redemption of FC Units.  Provided that no Noticed Default or Event of Default exists under any Building Loan Document or Project Loan Document, Agent shall permit each of the FC Units to be transferred to the FC Member in redemption (or partial redemption) of FC Member’s interest in Borrower, upon satisfaction of the following conditions with respect to each applicable FC Unit:

(a)           the Condominium Documents shall have been filed in the appropriate offices and the condominium thereunder validly created under the Condominium Act, all of the conditions set forth in Section 7.30(c) shall have been met and there shall be no remaining legal restrictions under the Condominium Documents or under applicable law to the conveyance and redemption of such Unit;

(b)           Agent shall have received not less than ten (10) Business Days’ prior notice of the proposed conveyance and redemption;

(c)           the applicable Unit will constitute one or more tax lots separate and distinct from the tax lot or lots applicable to the other portions of the Premises;

(d)           Borrower or the FC Member shall have paid all out-of-pocket costs and expenses of Agent in connection with such conveyance and redemption and the other activities described in this Section 7.50;

(e)           the FC Member shall have executed such documents of assumption with respect to the Building Loan as Agent may reasonably require (including, without limitation, an assumption of recourse liability to FC Member as successor to Borrower);

(f)            FC Member shall have delivered evidence satisfactory to Agent that its articles of organization shall contain the covenants set forth in Section 7.36 hereof, mutatis mutandis;

(g)           Borrower shall have paid all transfer taxes applicable to such conveyance and redemption;

(h)           Agent shall have received such assurances as Agent shall reasonably require to the effect that the conveyance and redemption shall not affect the validity or priority of the Building Loan Mortgage or Project Loan Mortgage; and

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(i)            Agent shall have received such opinions (but not a non-consolidation opinion), documents, certificates, instruments or assurances as Agent may reasonably request.

SECTION 7.51       Title Insurance Proceeds.  To direct to be paid over to Agent any and all payments payable to Borrower or any Member under any title insurance policy covering the Property with respect to any Unit which then remains subject to the lien of a Building Loan Mortgage or Project Loan Mortgage.  Such payments shall be applied in accordance with the second- and third-to-last sentences of Section 7.05 hereof (as if such payments were a Tax Refund); provided that if Agent has a corresponding claim under its title insurance policy but has not received payment, all references in said sentences to Borrower’s option, shall be deemed to be references to Agent’s option.

SECTION 7.52       No Indebtedness.  Not to permit any Member to incur any indebtedness other than the Extension Loan and the Mezzanine Loan (as defined in the FC Operating Agreement), and to not permit its (or any Member’s) managers on any of the board of managers under the Condominium Documents to vote to have the condominium incur indebtedness of more than five hundred thousand dollars ($500,000.00) in the aggregate.

SECTION 7.53       Equity Contribution.  (a) To enforce (and to cause all other Borrower Entities parties thereto to enforce) the provisions of the Equity Contribution Documents against NYTC Member and not to waive or permit the waiver of any of the obligations of NYTC Member under the Equity Contribution Documents, (b) to comply (and to cause all other Borrower Entities parties thereto to comply) with the provisions of the Equity Contribution Documents and to do no act which would relieve NYTC Member of its obligations under the Equity Contribution Documents or cancel or terminate any Equity Contribution Documents, (c) to cause to be taken all actions necessary or appropriate in order to consummate the funding of the Equity Contribution, (d) to make no amendments to, or assign rights or obligations under, the Equity Contribution Documents without the prior approval of Agent and (e) to cause to be provided to Agent copies of any communications given to or received from NYTC Member under the Equity Contribution Documents.

SECTION 7.54       Borrower LCs.  To maintain the Borrower LCs in full force and effect for so long as required under the Land Acquisition Agreement.  Agent acknowledges that the aggregate amount of the Borrower LCs shall be deemed to be Initial Required Equity Funds that have been contributed unless any of the Borrower LCs or any portion thereof (i) are permitted to be released to any Borrower Entity or reduced or (ii) are no longer in full force or effect (unless, in each case, such Borrower LCs shall have been fully-drawn upon).  Upon the occurrence of either of the events described in the foregoing clauses (i) and (ii), then (a) Borrower shall deposit with Agent the aggregate undrawn amount of such Borrower LCs or the applicable portion thereof (any such deposit, a “Borrower LC Deposit”) (provided that Agent and Borrower acknowledge that a Borrower LC Deposit shall constitute Initial Required Equity Funds

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when deposited), (b) Agent shall hold such amount in an interest bearing account, (c) such deposited amount shall be treated in accordance with (and Borrower shall comply with the requirements with respect thereto set forth in) Section 3.06 hereof as if the Borrower LC Deposit were a Completion Deposit and (d) the Borrower LC Deposit shall be applied to Building Loan Costs or Project Loan Costs simultaneously with the immediately succeeding Advance as Other Funds.  Notwithstanding the immediately preceding sentence, if (A) a Borrower LC posted by NYTC Member or any of its direct or indirect equity owners is permitted to be released or reduced, no Person shall have any obligation to make a Borrower LC Deposit with respect to such Borrower LC and (B) after all Initial Required Equity Funds have been contributed, the aggregate face amount of any of the Borrower LCs are required to be, and are, increased pursuant to the terms of the Land Acquisition Agreement and thereafter any of such Borrower LCs (or any portion thereof) are released to any Borrower Entity, the amount of such increase shall not be required to be deposited as a Borrower LC Deposit.

SECTION 7.55       Additional Covenants Relating to Ground Lease.

(a)           Without the prior approval of Agent, which approval shall not be unreasonably withheld or delayed, not to (i) amend, modify, surrender, terminate, cancel or waive any material provision of the Ground Lease and (ii) to cause each Member not to amend, modify, surrender, terminate, cancel or waive any material provision of the Severance Subleases.

(b)           To do, or cause to be done, all things necessary to preserve and keep unimpaired the rights of Borrower as ground lessee under the Ground Lease, and the rights of the NYTC Member and FC Member as ground sublessee under the applicable Severance Sublease(s) and to prevent (and cause each Member to prevent) any default under the Ground Lease, or the applicable Severance Sublease(s), as applicable, within the applicable notice and grace periods or any termination, surrender, cancellation, forfeiture, waiver or impairment thereof, as applicable.  In the event of the failure of Borrower or a Member to make any payment required to be made by it pursuant to the provisions of the Ground Lease or the applicable Severance Sublease(s), as applicable, or to keep, observe or perform, or cause to be kept, observed or performed, any of the terms, covenants, provisions or agreements of the Ground Lease, or the applicable Severance Sublease(s), as applicable, beyond any applicable notice and grace periods, Borrower agrees (and shall cause each Member to agree) that Agent may (but shall not be obligated to), without notice, take any action on behalf of Borrower or such Member, as applicable, make or cause to be kept, observed or performed any such terms, covenants, provisions or agreements and to enter upon the Mortgaged Property and take all such action thereof as may be necessary therefor, to the end that the rights of Borrower in and to the leasehold estate created by the Ground Lease or to the subleasehold estate created by the applicable Severance Sublease(s), as applicable, shall be kept unimpaired and free from default and shall have, in addition to any other remedy of Agent, the same rights and remedies in the event of non-payment of any such sum by Borrower or such Member, as applicable, within the applicable notice and grace periods as in the case of a default by Borrower in the payment of any sums due under the Building Loan Notes or any other Building Loan Documents.

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(c)           To enforce, or cause the enforcement of, the Ground Lease and the Severance Subleases in a diligent and commercially reasonable manner and to promptly notify Agent of the giving of any notice by any party to the Ground Lease or the Severance Subleases to the other party thereto of any default by such other party in the performance or observance of any of the terms, covenants or conditions of the Ground Lease or the applicable Severance Sublease(s), as applicable, to be performed or observed, and deliver to Agent a true copy of each such notice and copies of all other notices, communications, plans, specifications and other similar instruments received by or delivered to Borrower or the applicable Member in connection therewith.  If, pursuant to the Ground Lease or any Severance Sublease, the other party thereto shall deliver to Agent a copy of any notice of default given to Borrower or the applicable Member, as applicable, such notice shall constitute full authority and protection to Agent for any action taken or omitted to be taken by Agent in good faith in reliance thereon to cure such default.

(d)           If any action or proceeding shall be instituted to evict Borrower or a Member or to recover possession of the Mortgaged Property or for any other purpose affecting the Ground Lease or any Severance Sublease, to, immediately upon service thereof on or to Borrower or the applicable Member, as applicable, deliver to Agent a true copy of each petition, summons, complaint, notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding.

(e)           No release or forbearance of any of Borrower’s obligations under the Ground Lease or any Member’s obligations under the applicable Severance Sublease(s), pursuant to the Ground Lease, a Severance Sublease or otherwise, shall release Borrower, or such Member from any of its obligations under this Agreement or any other Building Loan Document.  If the Ground Lease or other Severance Sublease is canceled or terminated, and if Agent or its nominee or any Lender shall acquire an interest in any new ground lease or sublease of the property demised thereby, Borrower shall have no right, title or interest in or to such new lease or sublease or to the leasehold estate created by such new ground lease or sublease.  Agent shall be liable for the obligations of Borrower arising under the Ground Lease and the Members arising under the Severance Subleases for only that period of time which Agent is in possession of the Mortgaged Property or has acquired, by foreclosure or otherwise, the Mortgaged Property and is holding all of the Borrower’s (or such Member’s) right, title and interest therein.

(f)            Borrower shall (and shall cause the applicable Member to) give Agent prompt written notice of the commencement of any arbitration or appraisal proceeding under and pursuant to the provisions of the Ground Lease or any Severance Sublease.  Agent shall have the right to intervene and participate in any such proceeding and Borrower shall confer (or cause the applicable Member to confer) with Agent to the extent which Agent deems necessary for the protection of Agent.  Upon the written request of Agent, if an Event of Default exists, Borrower will (or will cause the applicable Member to) exercise all rights of arbitration conferred upon it by the Ground Lease or such Severance Sublease.  Borrower or such Member shall select an arbitrator who is reasonably approved in writing by Agent, provided, however, that if at the time

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any such proceeding shall be commenced, an Event of Default shall exist, Agent shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Borrower (or the applicable Member) the arbitrator or arbitrators, or appraiser, in such proceeding.

(g)           If any action, proceeding, motion or notice shall be commenced or filed in respect of the Ground Lessor or any other fee owner of the Mortgaged Property in connection with any case under the Bankruptcy Code or under any other Bankruptcy Law, Borrower (or the applicable Member) shall, after obtaining knowledge thereof, promptly notify Agent.  Borrower (or the applicable Member) shall promptly deliver to Agent, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Borrower (or the applicable Member) in connection with any such action, proceeding, motion or notice and any proceedings relating thereto.  Borrower shall not commence any action, suit, proceeding or case, or file any application or make any motion (unless such motion is for the purpose of protecting the Ground Lease or the Severance Subleases and its value as security for the Indebtedness and the Obligations).  Agent shall have the option, exercisable upon notice from Agent to Borrower (or the applicable Member) and at Borrower’s (or the applicable Member’s) expense, to conduct and control any such litigation with counsel of Agent’s choice.  Agent may proceed in its own name or in the name of Borrower (or the applicable Member), and Borrower hereby assigns (and shall cause the Members to assign) to Agent, and hereby agrees to execute (or caused to be executed) any and all powers, authorizations, consents or other documents reasonably required by Agent in connection with all of its (or their) rights in respect of, any claim, suit, action or proceeding relating to the rejection of the Ground Lease or the Severance Subleases by Ground Lessor, including, without limitation, the right to file and prosecute, either in its own name or in the name of Borrower (or the Members), any proofs of claim, complaints, motions, applications, notices and other documents, in any such action, proceeding, motion or notice.  The assignments contained in the immediately preceding sentence constitute a present, irrevocable and unconditional assignment of the foregoing in such claims, suits, actions and proceedings, and shall continue in effect until all of the Indebtedness shall have been satisfied and discharged in full.

SECTION 7.56       Deliveries

(a)           To deliver to Ground Lessor, in accordance with the notice provisions of the Ground Lease, (i) on the date hereof, copies of the Building Loan Mortgage and Building Loan Assignment of Leases, (ii) copies of all amendments thereto within the time period set forth in Section 31.1(a)(i) of the Ground Lease, and (iii) recorded copies of said mortgage, assignment and amendments; and

(b)           to deliver to the City of New York (i) within two (2) Business Days after the date hereof, copies of the Building Loan Mortgage and Building Loan Assignment of Leases and (ii) copies of all amendments thereto.

SECTION 7.57       Pledged Accounts.  (a)  (i) Prior to the earlier to occur of (A) execution of the first Lease covering any space in the FC Units or any Common

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Elements Leasable Space and (B) the date of the Initial Construction Advance, (1) to execute and deliver (and cause FC Member to execute and deliver) either (x) a pledge and security agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank, substantially in the form of Exhibit S hereto, subject to any modifications required by Borrower’s Bank that are reasonably acceptable to Agent or (y) (I) a pledge and security agreement by and among Borrower, FC Member and Agent, for itself and on behalf of Lenders substantially in the form of Exhibit S as to matters contained therein that govern the relationship between Agent, on the one hand, and Borrower and FC Member, on the other hand, and the respective rights of each and (II) a control agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank, in form and substance reasonably acceptable to Agent and Borrower’s Bank (the document listed under clause (x) or the documents listed under clause (y) collectively, the “Security Deposit Accounts Agreement”), and  (2)  to deliver an opinion reasonably acceptable to Agent covering due authorization, execution and delivery by Borrower and FC Member, security interest perfection, enforceability and other customary matters with respect to the Security Deposit Accounts Agreement (but in no event as to matters with respect to Borrower’s Bank (other than enforceability of the Security Deposit Accounts Agreement against Borrower’s Bank)).

(b)           (i) Prior to the earlier to occur of (A) the receipt of the first Rents under any Lease covered by Section 7.57(a) or any other amounts required under the Loan Documents to be deposited into one of the Collection Accounts (as hereinafter defined) and (B) the date of the Initial Construction Advance, (1) to execute and deliver (and cause FC Member to execute and deliver) either (x) a pledge and security agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank substantially in the form of Exhibit T hereto, subject to any modifications requested by Borrower’s Bank that are reasonably acceptable to Agent or (y) (I) a pledge and security agreement by and among Borrower, FC Member and Agent, for itself and on behalf of Lenders substantially in the form of Exhibit T as to matters contained therein that govern the relationship between Agent, on the one hand, and Borrower and FC Member, on the other hand, and the respective rights of each and (II) a control agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank, in form and substance reasonably acceptable to Agent and Borrower’s Bank (the document listed under clause (x) or the documents listed under clause (y) collectively, the “Collection Accounts Agreement”)  and (2) to deliver an opinion reasonably acceptable to Agent covering due authorization, execution and delivery by Borrower and FC Member, security interest perfection, enforceability and other customary matters with respect to the Collection Accounts Agreement (but in no event with respect to matters as to Borrower’s Bank (other than enforceability of the Collection Accounts Agreement against Borrower’s Bank)).

ARTICLE 8

THE AGENT

SECTION 8.01       Actions.  If Agent shall have reasonable cause to believe that any action or proceeding related to the Mortgaged Property could, if

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adversely determined, have an adverse effect upon the rights or interests of Agent and/or Lenders under this Agreement or any of the other Building Loan Documents, Agent shall have the right to commence, appear in and defend such action or proceeding, and in connection therewith Agent may incur costs and expenses, employ counsel, and pay attorneys’ fees and disbursements.  Borrower agrees to pay to Agent all reasonable costs and expenses incurred by Agent in connection therewith, including without limitation reasonable attorneys’ fees and disbursements, together with interest from the due date thereof unless there has been a non-appealable judicial determination that Agent’s commencement, appearance and defense was not proper.  Borrower’s obligation to pay such costs and expenses shall be secured by the Security Documents.

SECTION 8.02       Non-Liability of Agent and Lenders.  Borrower acknowledges and agrees that:

(a)           any inspections of the construction of the Project made by or through Agent, Lenders or Construction Consultant are for purposes of administration of the Building Loan and for the protection of Agent and/or Lenders only and neither any Borrower Entity, nor any other Person is entitled to rely upon the same with respect to the quality, adequacy or suitability of materials or workmanship, conformity to the Plans and Specifications, state of completion or otherwise; each Borrower Entity shall make its own inspections and judgments of such construction to determine that the quality of the Project and all other requirements of such construction are being performed in a manner satisfactory to such Borrower Entity and Agent and in conformity with the Plans and Specifications and all other requirements; and Borrower shall immediately notify Agent should the same not be in conformity with any Plans and Specifications and all other requirements;

(b)           by accepting or approving anything required to be observed, performed, fulfilled or given to Agent or Lenders pursuant to the Building Loan Documents, including any certificate, statement of profit and loss or other financial statement, survey, appraisal, lease, contract or insurance policy, neither Agent nor Lenders shall be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not constitute a warranty or representation to anyone with respect thereto by Agent or Lenders;

(c)           neither Agent nor Lenders undertake nor assume any responsibility or duty to any Borrower Entity to select, review, inspect, supervise, pass judgment upon or inform any Borrower Entity of any matter in connection with the Mortgaged Property or the Project, including without limitation matters relating to the quality, adequacy or suitability of (i) the Plans and Specifications, (ii) the architects, contractors, subcontractors and materialmen employed or utilized in connection with the construction of the Project, or the workmanship of or the materials used by any of them, or (iii) the progress or course of construction and its conformity or nonconformity with the Plans or Specifications;

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(d)           neither Agent nor any Lender owes any duty of care to protect any Borrower Entity against negligent, faulty, inadequate or defective building or constructions; and

(e)           neither Agent nor any Lender shall be directly or indirectly liable or responsible for any loss, claim, cause of action, liability, indebtedness, damage or injury of any kind or character to any Person or property arising from any construction on, or occupancy or use of, any of the Mortgaged Property or the Project, including without limitation any loss, claim, cause of action, liability, indebtedness, damage or injury caused by, or arising from:  (i) any defect in any building, structure, grading, fill, landscaping or other improvements thereon or in any on-site or off-site improvement or other facility therein or thereon; (ii) any act or omission of any Borrower Entity, the parties comprising any such entity or any such entities’ agents, employees, independent contractors, licensees or invitees (including, without limitation, the General Contractor); (iii) any accident in or on the Premises or any fire, flood or other casualty or hazard thereon; (iv) the failure of any Borrower Entity or any of such entity’s licensees, employees, invitees, agents, independent contractors or other representatives to maintain the Mortgaged Property in a safe condition; and (v) any nuisance made or suffered on any part of the Mortgaged Property.  Notwithstanding the foregoing, Borrower shall not be liable for any loss, claim, cause of action, liability, indebtedness, damage or injury which (x) is directly attributable to any gross negligence or willful misconduct of, or violation of law by, Agent, any Lender or any employee or agent of such Agent or Lender or (y) is attributable to the period of time during which Agent or any Lender is a “mortgagee in possession” or after the Mortgaged Property has been foreclosed upon or has been transferred by deed-in-lieu thereof to any third party purchaser.

SECTION 8.03       Authorization and Action.

(a)           By its acceptance of an interest in the Building Loan, each Lender: (i) agrees to the terms and conditions of this Agreement and all other Building Loan Documents; (ii) authorizes and directs Agent to act on its behalf in all respects under the Building Loan in connection with the Building Loan Documents and the making of the Building Loan and to exercise all powers under the Building Loan Documents and all powers reasonably incidental thereto, except with respect to matters, items and decisions as to which a Major Decision or Super-Major Decision is required (matters which are not Major Decisions or Super-Major Decisions being hereinafter referred to as “Agent Decisions”) and (iii) agrees to be bound by any acts of Agent in accordance with the foregoing.  Without limiting the generality of the foregoing and, notwithstanding any provision hereof to the contrary, any and all actions relating to the construction and development of the Project, including, without limitation, approval of changes to the Budgets, Disbursement Schedule, Construction Schedule, the Plans and Specifications, contracts and subcontracts and Payment and Performance Bonds; all decisions with respect to releases of Units under Section 7.46; at any time there is no outstanding Noticed Default or Event of Default, all decisions with respect to the making of Advances; and all power to determine, declare, and send notices of Defaults and Events of Default and to approve Leases (except to the extent approval of a Lease is a Major Decision) and Material Contracts, shall be Agent Decisions exclusively and shall

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not constitute a Major Decision or Super-Major Decision requiring the approval of any other Lender.  Any provision of this Agreement which grants to Agent the right to make a decision at its sole discretion or in its reasonable judgment or at its option or any other similar provision is intended, unless the context shall clearly require otherwise, to apply only to relations between Borrower, the other Borrower Entities and Agent and the respective rights and obligations of Borrower, the other Borrower Entities and Agent hereunder and shall not apply to the relations between Agent and the Lenders or the respective rights and obligations of Agent and the Lenders hereunder.

(b)           As to any Major Decision or Super-Major Decision, Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Lenders (in the case of any Major Decision) or the Super-Majority Lenders (in the case of Super-Major Decision), provided, however, that Agent shall not be required to take any action which exposes Agent to personal liability or which is contrary to this Agreement or applicable law.

(c)           All losses, expenses, liabilities and obligations incurred by Agent in connection with the Building Loan, the enforcement thereof or the realization of the security therefor and not paid for by a Borrower Entity shall be borne by the Lenders in accordance with their ratable interest in the Building Loan, and Lenders will, upon request, reimburse Agent for their ratable shares of any expenses incurred by Agent in connection therewith, including any advances made to pay Property Taxes or insurance or otherwise to preserve the lien of the Building Loan Mortgage or to preserve and protect the Mortgaged Property, or made to effect the completion of the Project to be constructed pursuant to this Agreement and/or the achievement of Final Completion of the Project, any other expense incurred in connection with the enforcement of the Security Documents, and any expenses incurred by Agent in connection with the consummation of the Building Loan not paid or provided by Borrower.

(d)           Promptly after Agent acquires actual knowledge thereof, Agent will give notice to each Lender of any Lien on the Mortgaged Property or material Default under this Agreement or any of the other Building Loan Documents which in Agent’s judgment materially adversely affects any Lender’s interest in the Building Loan.  Agent shall promptly advise Lenders from time to time of any material remedial action which Agent shall have taken.

(e)           In no event shall any or all Lenders have the right to remove Agent without cause and in no event shall Agent resign as agent.

(f)            The provisions of this Section 8.03 are for the sole benefit of Agent and Lenders and therefore may be modified, amended or deleted as Agent and Lenders shall mutually agree without the consent of any Borrower Entity.

SECTION 8.04       Agent’s Reliance, Etc.  (a)  Agent shall administer this Agreement and the other Building Loan Documents and service the Building Loan in accordance with the terms and conditions of this Agreement and with the same degree of

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care as Agent would use in servicing a loan of similar size and type held for its own account, provided, however, that none of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Building Loan Documents, except for its or their own gross negligence or willful misconduct.  Without limitation of the generality of the foregoing, Agent:  (i) may consult with legal counsel, independent public accountants and other experts selected and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Building Loan Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Building Loan Document on the part of any Borrower Entity to inspect the Mortgaged Property (except that prior to Substantial Completion, Agent shall (or shall direct Construction Consultant to) periodically inspect the Mortgaged Property as necessary to comply with the standard of care described in the first sentence of this Section 8.04) or the books and records of any Borrower Entity; (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of any Building Loan Document or any other instrument or document furnished pursuant hereto; and (v) shall incur no liability under or in respect of this Agreement or any other Building Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.

(b)           The provisions of this Section 8.04 are for the sole benefit of Agent and Lenders and therefore may be modified, amended or deleted as Agent and Lenders shall mutually agree without the consent of any Borrower Entity.

SECTION 8.05       Payments to Lenders.  Agent shall remit to Lenders their ratable shares of any payment received from Borrower or from another source on account of sums payable by Borrower.  The provisions of this Section are for the sole benefit of Agent and Lenders and therefore may be modified, amended or deleted as Agent and Lenders shall mutually agree without the consent of any Borrower Entity.

SECTION 8.06       Construction Consultant.  (a)  Borrower acknowledges that (i) the Construction Consultant has been retained by Agent to act as a consultant and only as a consultant to Agent in connection with the construction of the Project and has no duty to any Borrower Entity, (ii) the Construction Consultant shall in no event have any power or authority to give any approval or consent or to do any other act or thing which is binding upon Agent and/or Lenders, (iii) Agent reserves the right to make any and all decisions required to be made by Agent under the Building Loan Documents and to give or refrain from giving any and all consents or approvals required to be given by Agent under the Building Loan Documents and to accept or not accept any matter or thing required to be accepted by Agent under the Building Loan Documents, and without being bound or limited in any manner or under any circumstance whatsoever by any

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opinion expressed or not expressed, or advice given or not given, or information, certificate or report provided or not provided, by the Construction Consultant with respect thereto, and (iv) Agent reserves the right in its sole and absolute discretion to disregard or disagree, in whole or in part, with any opinion expressed, advice given or information, certificate or report furnished or provided by the Construction Consultant to Agent or any other Person.

(b)           Neither Agent nor the Construction Consultant shall have any liability to any Borrower Entity on account of (i) the services performed by the Construction Consultant, (ii) any neglect or failure on the part of the Construction Consultant to properly perform its services or (iii) any approval by the Construction Consultant of construction of the Project.  Neither Agent nor the Construction Consultant assumes any obligation to any Borrower Entity or any other Person concerning the quality of construction of the Project or the absence therefrom of defects.

SECTION 8.07       Actions of Agent Binding Upon Lenders.  Any Borrower Entity shall be entitled to rely upon any notice from or action taken by Agent, and no Borrower Entity shall be under any duty to inquire as to whether such notice or action has been duly authorized by the Lenders.  Each Borrower Entity shall only be required to deal with Agent.

SECTION 8.08       Initial Agent

(a)           Initial Agent is acting as initial agent under this Agreement, the Building Loan Mortgage and the Building Loan Assignment of Leases solely for the purpose of making available to Borrower an exemption from mortgage recording tax so that the Project may be financially feasible for Borrower.  In order to accomplish the foregoing, Initial Agent hereby agrees to file this Agreement with the New York County Clerk’s Office and to submit the Building Loan Mortgage and the Building Loan Assignment of Leases to the Office of the City Register of New York County for recordation.  Upon such filing of this Agreement and such submission for recording of the Building Loan Mortgage and the Building Loan Assignment of Leases, effective immediately, automatically and without any further action whatsoever, Initial Agent shall be deemed to have (i) resigned as the initial agent (and the parties hereto consent to and accept such resignation), and (ii) assigned unto Agent all of Initial Agent’s right, title and interest as initial agent under this Agreement, the Building Loan Mortgage and the Building Loan Assignment of Leases (and Agent shall be deemed to have consented to and accepted such assignments).  The foregoing assignments are made without recourse, representation or warranty by Initial Agent, in any case or event or for any purpose whatsoever.  In confirmation of (and simultaneously with) the foregoing assignments, Initial Agent and Agent shall execute an assignment and assumption agreement evidencing such assignment which shall be filed in the New York County Clerk’s Office immediately after the filing of the Building Loan Agreement in such office and submitted for recording in the Office of the City Register of New York County immediately after the submission of the Building Loan Mortgage and the Building Loan Assignment of Leases.

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(b)           Except as set forth in Section 8.08(a), Initial Agent has no beneficial interest in or discretionary authority, and has no obligations, responsibilities or liabilities, as initial agent under this Agreement, the Building Loan Mortgage, the Building Loan Assignment of Leases and such Building Loan Notes.  Initial Agent has no beneficial interest in or discretionary authority, and has no obligations, responsibilities or liabilities, under any other Building Loan Document.

(c)           Borrower acknowledges that Initial Agent is entering into this Agreement solely as an accommodation to Borrower and that Initial Agent shall have absolutely no obligations, responsibilities or liabilities under this Agreement or any other Loan Document except to the extent set forth in Section 8.08(a).  The parties hereto acknowledge that the Initial Agent is executing this Agreement solely to bind itself with respect to this Section 8.08 and that Initial Agent’s execution does not amount to or evidence Initial Agent’s agreement with or endorsement of any other provisions of this Agreement.

(d)           Initial Agent shall not be entitled to any compensation whatsoever for acting as initial agent under this Agreement, the Building Loan Mortgage, the Building Loan Assignment of Leases and such Building Loan Notes.

ARTICLE 9

EVENTS OF DEFAULT

SECTION 9.01       Events of Default.  The occurrence of any one or more of the following conditions or events shall constitute an “Event of Default” under this Agreement:

(a)           (i)            failure by Borrower to pay (w) (subject to Agent’s obligations under Section 5.03(b) hereof) any installment of interest under the Building Loan Notes within five (5) days of when the same shall become due and payable, (x) the Indebtedness on the Maturity Date, (y) Property Taxes (unless the same are being contested in compliance with Section 7.05 hereof) within five (5) Business Days after notice of failure to pay the same when due and payable is given by Agent or (z) any amount required to be paid in connection with any prepayment under Section 3.12 or 7.46 hereof within five (5) Business Days after notice of failure to pay the same is given by Agent; (ii) failure by any Borrower Entity to pay any other sums (including any portion of a Completion Deposit) to be paid by it hereunder or under any other Building Loan Document after written demand for payment has been given and such sum has not been paid within the time period provided for in the applicable Building Loan Document (or, if there is no such time period, the time period provided for in such demand, which time period shall not be less than ten (10) Business Days); or (iii) failure by Borrower or any Member to deposit within two (2) business days after notice any amount required to be deposited under the Collection Accounts Agreement or Security Deposit Accounts Agreement.

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(b)           failure by any Borrower Entity to duly keep, perform and observe (i) the covenants contained in Sections 7.33, 7.52, 7.56 or 7.57 hereof within five (5) Business Days from the date upon which Agent gives notice of such failure or (ii) any covenant applicable to it under any Building Loan Document to which it is a party (other than those covenants referred to in the other clauses (including subclause (i) of this clause (b)) of this Section 9.01), within thirty (30) days from the date upon which Agent gives notice of such failure; provided that, in the case of clause (ii) of this Section 9.01(b) only, in the event such failure is curable but is not susceptible of cure within such thirty (30) day period it shall not be a default hereunder in the event such Borrower Entity commences cure within such thirty (30) day period and diligently prosecutes such cure to completion within one hundred and twenty (120) days of the expiration of such thirty (30) day period.  All determinations of whether any failure is curable or is susceptible to cure within thirty (30) days shall be made by Agent;

(c)           a breach of or failure (i) by Borrower to duly keep, perform and observe the covenants and obligations contained in Section 7.35(i), Section 7.35(ii), Section 7.35(vii), Section 7.35 (viii) or in Section 7.30(a)(iii) or (ii) by any Borrower Entity to duly keep, perform and observe any provision of Section 7.32, provided that, with respect to any such breach or failure of said Section 7.32 which (1) in the opinion of Agent, is unintentional, (2) does not affect in any material respect the value of the Mortgaged Property or the security intended to be granted to Agent, or (3) is not a breach or failure relating to the transfer of the Land or Improvements or the voluntary placement of a Lien on the Property, such breach or failure shall not constitute an Event of Default unless and until it continues uncured for five (5) Business Days after notice from Agent of such breach or failure;

(d)           (i)  if Borrower or any other party thereto (other than Agent, any Lender, Ground Lessor, ESDC, the New York City Transit Authority or the City of New York) shall be in default beyond any applicable notice and cure period under any of the Condominium Documents (other than a default by NYTC Member after its Unit has been released pursuant to Section 7.46 hereof), or under any of the Public Project Agreements, or (ii) if the Equity Contribution Documents, the Ground Lease, the Severance Subleases or the Land Acquisition Agreement shall cease to be in full force or effect or shall not be enforceable against any party thereto, other than Agent (to the extent Agent is a party thereto);

(e)           if any material inaccuracy shall exist in any of the financial statements and supporting materials thereto (other than projections) delivered to Agent in connection with the making of the Building Loan or delivered under this Agreement or any other Building Loan Document or any certificate furnished by or on behalf of any Borrower Entity to Agent pursuant to the provisions of any Building Loan Document provided that in the case of the Guarantors, such financial statements, supporting materials or certificates shall be limited to those delivered at or prior to the Closing Date;

(f)            if (x) at any time any representation or warranty (other than any representation or warranty re-made pursuant to Section 4.02(c) hereof) made by any Borrower Entity in any of the Building Loan Documents or in any certificate furnished by

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or on behalf of any Borrower Entity or any officer thereof, shall be untrue or incorrect in any material respect when made, or (y) at any time any representation or warranty re-made by Borrower or any Member under Section 4.02(c) hereof shall be untrue or incorrect in any material respect and such untruth or incorrectness has, or is reasonably likely to have, a Material Adverse Effect;

(g)           (i)            if (A) a petition is filed against Borrower or any Member, seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any law relating to bankruptcy or insolvency, including, without limitation, the Bankruptcy Code (each, a “Bankruptcy Law”) or any Person other than Borrower or any Member shall apply for the appointment of any trustee, receiver, master, liquidator, assignee, sequestrator (or other similar official) (any of the foregoing, a “Bankruptcy Assignee”) of Borrower or such Member or of all or any part of the Mortgaged Property or of all of any part of the Rents (either, an “Involuntary Bankruptcy”) and (B) such application or appointment is (y) not opposed or (z) is opposed, but not discharged, stayed or dismissed prior to the earlier of (1) ninety (90) days after the filing thereof and (2) the entry of an order for relief in any such case or proceeding;

(ii)           if (A) a petition is filed by Borrower or any Member seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any Bankruptcy Law, (B) Borrower or any Member shall apply for the appointment of any Bankruptcy Assignee of itself or of all or any part of the Mortgaged Property or of all or any part of the rents, revenues, issues, earnings, profits or income thereof, (C) Borrower or any Member acquiesces or colludes in any Involuntary Bankruptcy, (D) Borrower or any Member makes any assignment for the benefit of creditors, or (E) Borrower or any Member is or becomes insolvent (each of the foregoing, a “Voluntary Bankruptcy”);

(h)           if any Draw Request is fraudulently submitted by Borrower in connection with any advance for services performed or for materials used in or furnished for the Property or if any proceeds of the Building Loan are misappropriated by any Borrower Entity;

(i)            if Borrower confesses in writing its inability to continue or complete construction of the Project in substantial accordance with the Plans and Specifications and in accordance with the Public Project Agreements and this Agreement;

(j)            failure by Borrower to purchase and maintain any Interest Rate Cap, to the extent such cap is required to be purchased by the terms of this Agreement, within five (5) Business Days from the date upon which Agent gives notice of such failure.

(k)           If, on a repeated basis, Agent, the Construction Consultant or their respective representatives are not (subject to appropriate safety requirements) permitted at all reasonable times and upon reasonable notice to enter upon the Property,

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and inspect the Project and the construction thereof and to examine and make copies of (at Borrower’s expense) the Plans and Specifications (and provided Agent shall have notified Borrower each time it or the Construction Consultant or their respective representatives have not been permitted to so enter upon the Property and inspect the Project);

(l)            if Borrower or any Member executes any conditional bill of sale, chattel mortgage or other security instrument covering any furniture, furnishings, fixtures and equipment intended to be incorporated and made a part of the Improvements, or covering articles of personal property that are part of the Project, or files a financing statement publishing notice of such security instrument, or purchases any of such furniture, furnishings, fixtures and equipment so that ownership of the same will not vest unconditionally in Borrower or a Member, free from encumbrances, on delivery to the Premises and payment therefor; or if Borrower does not produce to Agent, upon demand, the contracts, bills of sale, statements, receipted vouchers or agreements, or any of them, under which Borrower claims title to such materials, fixtures and articles and in either such case such failure shall continue for ten (10) days after notice from Agent with respect thereto;

(m)          if Borrower does not disclose to Agent and Construction Consultant the names of all persons with whom Borrower contracted for the construction of the Project or for the furnishing of labor or materials therefor, or when so required by Agent pursuant to the Building Loan Documents, fails to obtain the acceptance by Agent of such persons and in either case such failure shall continue for ten (10) Business Days after notice of such failure from Agent;

(n)           if a lien for the performance of work or supply of materials is filed against the Premises or any part thereof and is not paid and discharged, bonded or insured over in accordance with Section 7.39 hereof, or if a judgment in excess of $500,000.00 is filed against any Borrower or either Member or the Property and remains unsatisfied or unbonded for a period of sixty (60) days after such filing;

(o)           if the Policies are not kept in full force and effect in accordance with the terms and provisions of the Building Loan Mortgage or if the Payment and Performance Bonds are not kept in full force and effect and in either case the same is not cured within one (1) Business Day after any Borrower Entity has knowledge of same;

(p)           if any provision of Section 7.36 is breached and any such breach is not cured within ten (10) Business Days after notice thereof from Agent; provided, that, in addition to curing such breach, Borrower delivers to Agent within twenty (20) Business Days a non-consolidation opinion in form and substance and from counsel reasonably satisfactory to Agent, which opinion takes into account such breach and cure;

(q)           if any Borrower Entity shall fail to maintain its existence, except as otherwise permitted in any Building Loan Document;

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(r)            if Borrower is in default (beyond any notice or grace period expressly provided therein) under the Guaranteed Maximum Price Contract or if the third party to any Material Contract (other than the Material Contracts listed in clauses (c), (d) and, from and after the date on which the Plans and Specifications (other than any Change Orders) are in final form, (e) of the definition thereof) is in default thereunder and, in either case, such default, if not cured within any applicable notice and/or cure periods, could reasonably be expected to result in a Material Adverse Effect;

(s)           if Borrower fails to cause the Title Insurance Companies to comply with their obligations under the Title Company Side Letter within five (5) Business Days from the date on which Agent gives notice to Borrower of such non-compliance; or

(t)            if an Event of Default under and as defined in the Project Loan Agreement shall have occurred and be continuing.

ARTICLE 10

RIGHTS AND REMEDIES OF LENDERS

SECTION 10.01     Remedies.  Upon the occurrence and during the continuance of any Event of Default (or, to the extent provided in Section 10.01(f), a Default), Agent may, at any time thereafter, at its option, exercise any or all of the following rights and remedies:

(a)           Declare Lenders’ obligations to make Advances hereunder to be terminated, whereupon the same shall terminate, and/or declare all Indebtedness (including the Exit Fee (as defined in the Side Letter re:  Fees)) to be immediately due and payable, whereupon same shall become and be immediately due and payable, anything in the Building Loan Documents to the contrary notwithstanding, and without presentation, protest or further demand or notice of any kind (all of which are expressly hereby waived by Borrower); provided, however, that Lenders may make Advances or parts of Advances thereafter without thereby waiving the right to demand payment of the Building Loan Notes, without becoming liable to make any other or further Advances, and without affecting the validity of or enforceability of the Building Loan Documents; provided further, however, with respect to an Event of Default described in Section 9.01(g) hereof, all Indebtedness (including the Exit Fee) shall immediately and automatically become due and payable, without notice or demand, anything contained herein or in any other Building Loan Document to the contrary notwithstanding), and Agent may enforce or avail itself of any or all rights or remedies provided in the Building Loan Documents against any Borrower Entity and/or the Mortgaged Property, including all rights or remedies available at law or in equity.

(b)           Agent may cause the Project to be constructed and developed until achievement of Final Completion and Stabilized Occupancy and may enter upon the Premises and construct, equip and complete the Project substantially in accordance with the Plans and Specifications (with such changes or modifications thereto

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that Agent may, in its sole discretion, deem necessary or advisable).  In connection with any construction of the Project undertaken by Agent pursuant to the provisions of this subsection, Agent may:

(1)           use any funds of any Borrower Entity pledged to Agent under or pursuant to any Loan Document, and any funds remaining unadvanced under the Building Loan and/or the Project Loan;

(2)           employ existing contractors and subcontractors, including the General Contractor, any other Major Contractors, any Major Subcontractors, and the like, or terminate the same and employ others;

(3)           employ security personnel to protect the Property;

(4)           take over and use any and all Personal Property contracted for or purchased by Borrower or the Members, or dispose of the same as Agent sees fit;

(5)           execute all applications and certificates on behalf of Borrower or the Members which may be required by any Governmental Authority or Legal Requirements or contracts or agreements;

(6)           pay, settle or compromise all existing or future bills and claims which are or may be liens against the Mortgaged Property, or may be necessary for the completion of the Project or the clearance of title to the Mortgaged Property, including, without limitation, all Property Taxes;

(7)           complete the marketing and leasing of leasable space in the Improvements, enter into new leases and occupancy or operating agreements of the Units or portions thereof, and modify or amend existing leases and occupancy or operating agreements, all as Agent shall deem to be necessary or desirable;

(8)           prosecute and defend all actions and proceedings in connection with the construction of the Project or in any other way affecting the Mortgaged Property and take such action and require such performance as Agent deems necessary under the GMP Guaranty or the Payment and Performance Bonds; and

(9)           take such other action hereunder, or refrain from acting hereunder, as Agent may, in its sole and absolute discretion, from time to time determine, and without any limitation whatsoever, to carry out the intent of this Section 10.01(b).  Borrower shall be liable to Agent for all costs paid or incurred for the construction, completion and

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equipping of the Project, whether the same shall be paid or incurred pursuant to the provisions of this Section or otherwise, and all payments made or liabilities incurred by Agent hereunder of any kind whatsoever shall be deemed Advances made to Borrower under this Agreement and shall be secured by the Security Documents.  Any sums so expended by Agent shall be paid by Borrower to Agent on demand, with interest thereon at the Default Rate until paid; and Borrower shall execute such notes or amendments to the Building Loan Notes as may be requested by Agent to evidence Borrower’s obligation to pay such excess costs and until such notes or amendments are so executed by Borrower, Borrower’s obligation to pay such excess costs shall be deemed to be evidenced by this Agreement.  In the event Agent takes possession of the Premises and assumes control of such construction as aforesaid, Agent shall not be obligated to continue such construction longer than Agent shall see fit and may thereafter, at any time, change any course of action undertaken by it or abandon such construction and decline to make further payments for the account of Borrower and the Members whether or not the Project shall have been completed.  For the purpose of this Section, the construction, equipping and completion of the Project shall be deemed to include any action necessary to cure any Event of Default under any of the terms and provisions of any of the Building Loan Documents.

(c)           Appoint or seek appointment of a receiver, without notice and without regard to the solvency of Borrower or the adequacy of the security, for the purpose of preserving the Mortgaged Property, preventing waste, and to protect all rights accruing to Lenders by virtue of this Agreement and the other Building Loan Documents, and expressly to do any further acts as Agent may determine to be necessary to complete the development and construction of the Project (including achieving Final Completion and Stabilized Occupancy).  All expenses incurred in connection with the appointment of such receiver, or in protecting, preserving, or improving the Mortgaged Property, shall be charged against Borrower with interest thereon from the date of such expenditure to the date repaid at the Default Rate and shall be secured by the Building Loan Mortgage and enforceable as a lien against the Mortgaged Property.

(d)           Accelerate maturity of the Building Loan Notes and any other indebtedness of Borrower to Lenders, and demand payment of the principal sum due thereunder, with interest, advances, costs and reasonable attorneys’ fees and disbursements (including those for appellate proceedings), and enforce collection of such payment by foreclosure of the Building Loan Mortgage or the enforcement of any guaranty or the collection of any other collateral, or other appropriate action.

(e)           Notwithstanding any other provision of this Agreement or any other Loan Document, and to the extent permitted by applicable law, at any time and from time to time, without notice (any such notice being expressly waived), and without regard to the adequacy of any collateral, set-off and apply (x) any and all deposits and other amounts (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where the deposits are held) at any time held by Agent,

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Borrower’s Bank or any other escrow bank pursuant to the provisions hereof and of all other Loan Documents and (y) all other sums credited by or due from Agent or any Lender to the extent permitted by Section 3.15(b) hereof.

(f)            If an Event of Default (or a Default, if such Default is that an insurance policy required to be maintained under the Building Loan Documents is no longer in effect) shall have occurred and be continuing, Agent shall have the right, but not the duty, without limitation upon any of Agent’s rights pursuant hereto, to perform the obligations of or cure any breaches by any Borrower Entity which are the subject of the Event of Default (or the Default), in which event Borrower agrees to pay to Agent, within five (5) Business Days after demand therefor, all actual costs and expenses incurred by Agent in connection therewith, including without limitation reasonable attorneys’ fees and disbursements, together with interest from the date of expenditure at the Default Rate.  Upon demand by Agent, each of the Lenders shall promptly advance to Agent in immediately available funds its ratable portion of the funds expended by Agent in curing such Event of Default (or Default), together with interest thereon at the Default Rate from the date of Agent’s payment through the date prior to the date on which such advance is received by Agent.

(g)           Agent may terminate or rescind any proceeding or other action brought in connection with its exercise of the remedies provided in this Section at any time before the conclusion thereof, as determined in Agent’s sole discretion and without prejudice to Lenders.

SECTION 10.02     Power of Attorney.  During the continuance of an Event of Default (or effective at any time with respect to the right of Agent to execute and file any Uniform Commercial Code financing statements reasonably necessary or advisable to accomplish the purposes of any Building Loan Document), Borrower hereby irrevocably constitutes and appoints (and hereby causes the Members to hereby irrevocably constitute and appoint) Agent its (or their) true and lawful attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver any instruments and do and perform any acts which are referred to in this Agreement or in the Ground Lease or any Severance Sublease (including, without limitation, those referred to in Section 10.01(b) hereof), in the name and on behalf of Borrower (and/or the Members).  The power vested in such attorney-in-fact is, and shall be deemed to be, coupled with an interest and irrevocable.

SECTION 10.03     Remedies Cumulative.  During the continuance of any Event of Default, the rights, powers and privileges provided in this Article 10 and all other remedies available to Agent under this Agreement or under any of the other Building Loan Documents or at law or in equity may be exercised by Agent at any time and from time to time and shall not constitute a waiver of Agent’s other rights or remedies thereunder, whether or not the Building Loan shall be due and payable, and whether or not Agent shall have instituted any foreclosure proceedings or other action for the enforcement of its rights under the Building Loan Documents.  The exercise or beginning of the exercise by Agent of any one or more of the rights, powers or remedies provided for in this Agreement or the other Building Loan Documents or now or

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hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Agent of all such other rights, powers or remedies, and no failure or delay on the part of Agent to exercise any such right, power or remedy shall operate as a waiver thereof.  Agent may, at its option, exercise any right or remedy with respect to less than all of the collateral pledged by the Security Documents, leaving unexercised its rights with respect to the remainder thereof, and such partial exercise shall in no way restrict or jeopardize Agent’s right to exercise rights with respect to all or another portion of the collateral at a later time or times.

SECTION 10.04     Annulment of Defaults.  An Event of Default shall not be deemed to be in existence for any purpose of this Agreement or any other Building Loan Document if Agent shall have waived such Event of Default in writing or stated that the same has been cured to its satisfaction, but no such waiver shall extend to or affect any subsequent Event of Default or impair any of the rights of Agent or Lenders upon the occurrence thereof.

SECTION 10.05     Waivers.  Borrower hereby waives (and shall cause each other Borrower Entity to waive) to the extent not prohibited by applicable law (a) all presentments, demands for payment or performance, notices of nonperformance (except to the extent required by the provisions hereof or of any other Building Loan Documents), protests and notices of dishonor, (b) any requirement of diligence or promptness on Agent’s part in the enforcement of its rights under the provisions of this Agreement or any other Building Loan Document, (c) any and all notices of every kind and description which may be required to be given by any statute or rule of law and (d) all rights to have any security marshaled upon the exercise of any remedies hereunder or under any other Building Loan Document.

SECTION 10.06     Course of Dealing, Etc.  No course of dealing and no delay or omission by Agent in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy.  A waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion.  No waiver or consent shall be binding upon Agent unless it is in writing and signed by Agent.  Agent’s exercise of any right to remedy any default shall not constitute a waiver of the default remedied, a waiver of any other prior or subsequent default or a waiver of the right to be reimbursed for any and all of its expenses in so remedying such default.  No Advance of Building Loan proceeds hereunder, no increase or decrease in the amount of any Advance, and no making of all or any part of an Advance prior to the due date thereof shall constitute an approval or acceptance by Agent or Lenders of the work theretofore done or a waiver of any of the conditions of Lenders’ obligation to make further Advances, nor in the event Borrower is unable to satisfy any such condition, shall any such failure to insist upon strict compliance have the effect of precluding Lenders from thereafter refusing to make an Advance and/or declaring such inability to be an Event of Default as hereinabove provided.  Any Advances hereunder during the existence of a Default or an Event of Default shall not constitute a waiver thereof.  All Advances shall be deemed to have been

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made pursuant hereto and not in contravention of the terms of this Agreement.  All rights and remedies of Agent hereunder are cumulative.

SECTION 10.07     Bankruptcy.

(a)           In the event of any Event of Default under Section 9.01(g), if Borrower or a Member seeks to reject the Ground Lease or a Severance Sublease pursuant to Section 365(a) of the Bankruptcy Code or any analogous provision of any other Bankruptcy Law, Borrower or such Member shall give Agent not less than thirty (30) days’ prior notice of the date on which Borrower or such Member shall apply to the applicable Governmental Authority for authority to reject the Ground Lease or such Severance Sublease.  Agent shall have the right, but not the obligation, to serve upon Borrower or such Member within such thirty (30) day period a notice stating that Agent demands that Borrower or such Member assume and assign the Ground Lease or such Severance Sublease to Agent pursuant to Section 365 of the Bankruptcy Code.  If Agent shall serve upon Borrower or such Member the notice described in the preceding sentence, Borrower or such Member shall not seek to reject the Ground Lease or such Severance Sublease and shall comply with the demand provided for in the preceding sentence within thirty (30) days after the notice shall have been given or such shorter time as may be necessary to assume such Ground Lease or Severance Sublease in such proceeding.

(b)           Borrower shall not (and shall not permit any Member to), without Agent’s prior written consent, elect to treat the Ground Lease or a Severance Sublease as terminated under subsection 365(h)(1)(A)(i) of the Bankruptcy Code or any analogous provision of any other Bankruptcy Law.  Any such election made without Agent’s consent shall be void.

(c)           If pursuant to subsection 365(h)(1)(B) of the Bankruptcy Code or any analogous provision of any other Bankruptcy Law, Borrower or a Member shall seek to offset against the rent reserved in the Ground Lease or a Severance Sublease the amount of any damages caused by the nonperformance by the Ground Lessor or any other fee owner of its or their obligations under the Ground Lease or by the sublessor of its obligations under a Severance Sublease after the rejection by Ground Lessor or such sublessor under the Bankruptcy Code or such other applicable Bankruptcy Law, Borrower or such Member shall, prior to effecting such offset, notify Agent of its intent to do so, setting forth the amounts proposed to be so offset and the basis therefor.  Agent shall have the right to object to all or any part of such offset that, in the reasonable judgment of Agent, would constitute a breach of the Ground Lease or such Severance Sublease, and in the event of such objection, Borrower or such Member shall not effect any offset of the amounts so objected to by Agent.  Neither Agent’s failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Agent.

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ARTICLE 11

GENERAL CONDITIONS

SECTION 11.01     Rights of Third Parties.  (a)  All conditions of the obligations of Agent and Lenders hereunder, including the conditions precedent to the obligation to make Advances, are imposed solely and exclusively for the benefit of Agent and Lenders and no other Person (including, without limitation, the Construction Consultant, General Contractor, any other Major Contractor, any Major Subcontractor, or any other contractors, subcontractors and materialmen engaged in the construction of the Project) shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lenders will make Advances in the absence of strict compliance with any or all thereof and no other Person shall, under any circumstances, be deemed to be a beneficiary of such conditions, any and all of which may be freely waived in whole or in part by Agent or any Lender any time if in its sole discretion it deems it desirable to do so.  In particular, Agent and Lenders make no representations and assume no obligations as to third parties concerning the quality of the construction by Borrower of the Project or the absence therefrom of defects.

(b)           ALL POTENTIAL LIENORS ARE HEREBY CAUTIONED TO EXERCISE SOUND BUSINESS JUDGMENT IN THE EXTENSION OF CREDIT TO ANY BORROWER ENTITY.  NO POTENTIAL LIENOR SHOULD EXPECT LENDERS OR AGENT TO MAKE ADVANCES OF THE BUILDING LOAN IN AMOUNTS AND AT TIMES SUCH THAT IT WILL NOT BE NECESSARY FOR EACH SUCH POTENTIAL LIENOR TO EXERCISE SOUND BUSINESS JUDGMENT IN THE EXTENSION OF CREDIT TO BORROWER.  MOREOVER, ALL POTENTIAL LIENORS ARE REMINDED THAT SUBDIVISION (3) OF SECTION 13 OF THE NEW YORK LIEN LAW PROVIDES THAT “NOTHING IN THIS SUBDIVISION SHALL BE CONSIDERED AS IMPOSING UPON THE LENDERS ANY OBLIGATION TO SEE TO THE PROPER APPLICATION OF SUCH ADVANCES BY THE OWNER,” AND LENDERS AND AGENT DO NOT IMPOSE SUCH AN OBLIGATION ON THEMSELVES.

SECTION 11.02     Relationship.  The relationship between Agent and Lenders on the one hand, and Borrower Entities, on the other hand, is solely that of a lender and borrower, and nothing contained herein or in any of the other Building Loan Documents or the NYTC Completion Guaranty shall in any manner be construed as making the parties hereto partners, joint venturers or any other relationship other than lender and borrower.  In addition, neither Agent nor any Lender is the agent or representative of any Borrower Entity and neither this Agreement, any other Building Loan Document or the NYTC Completion Guaranty shall make Agent or any Lender liable to materialmen, contractors, craftsmen, laborers or others for goods delivered to or services performed by them upon the Mortgaged Property, or for debts or claims accruing to such parties against any Borrower Entity and there is no contractual relationship, either express or implied, between Agent or any Lender and any materialmen, subcontractors,

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craftsmen, laborers, or any other person supplying any work, labor or materials to the Mortgaged Property.

SECTION 11.03     Evidence of Satisfaction of Conditions; Approval Standard.  If any condition of this Agreement requires the submission of evidence of the existence or non-existence of a specified fact or facts or implies as a condition the existence or non-existence, as the case may be, of such fact or facts, Agent shall, at all times, be free independently to establish to its satisfaction and in its absolute discretion such existence or non-existence, except where Agent expressly agrees hereunder to be reasonable.  In any circumstance where any Building Loan Document or the NYTC Completion Guaranty specifies that the approval or consent of Agent, Construction Consultant or any Indemnified Party must be given, or that any matter or circumstance must be satisfactory or acceptable to, or determined by, Agent, Construction Consultant or any Indemnified Party, then unless expressly set forth to the contrary, such approval or consent or such determination of satisfaction or acceptability or other determination, shall be within the sole and absolute discretion of Agent, Construction Consultant or such Indemnified Party.

SECTION 11.04     Notices.  (a)  Any request, notice, report, demand, approval or other communication permitted or required by this Agreement to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same, if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

Lenders or Agent:

GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606
Attention:   Vacys R. Garbonkus
Telecopier: (312) 917-6131

with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York  10019
Attention:   Harris B. Freidus, Esq.
Telecopier: (212) 492-0064

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and (but only if such notice relates to a default by Agent)

GMAC Commercial Mortgage Corporation
200 Witmer Road
Horsham, Pennsylvania  19044
Attention:   General Counsel
Telecopier: (215) 328-3620

Borrower:

The New York Times Building LLC
c/o FC Lion LLC
One MetroTech Center North
Brooklyn, New York 11201
Attention:   General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley, Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention:   James J. Kirk, Esq.
Telecopier: (212) 808-7897

and

The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention:   Anthony Benten

David Thurm

and Kenneth A. Richieri, Esq.

Telecopier   (212) 556-1646 (Mr. Benten) and

(212) 556-4634 (Mr. Thurm and Mr. Richieri)

and

INGREDUS Site 8 South LLC
c/o Clarion Partners
335 Madison Avenue
New York, New York  10017
Attention:  Charles Grossman
Telecopier:  (212) 883-2700

and

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INGREDUS Site 8 South LLC
c/o Clarion Partners
601 13th Street, NW, Suite 450
Washington, D.C.  20005
Attention:  Martin Sandiford
Telecopier:  (917) 777-2600

(b)           Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without the prior consent of Agent, Borrower may not add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address when no notice of changed address was given, shall be deemed to be receipt of any such notice.  As between Agent and any Borrower Entities only, a notice given by a party under any Building Loan Document of a change of entity, address or attention party shall be deemed to be a notice of such change to Agent or any such party, as applicable, for purposes of all Building Loan Documents to which such party is a party.

(c)           Unless notified to the contrary pursuant to this Section 11.04(c), any notice or communication to be made to any Lender shall be made only to Agent and its counsel as provided for in this Section.

SECTION 11.05     Assignment.  (a) Subject to Section 7.50 hereof, Borrower may not assign this Agreement, any other Loan Document or any of its rights or obligations hereunder or thereunder without the prior approval of Agent.  Subject to the further provisions of this Section 11.05, Borrower acknowledges and agrees that GMACCM and any other Lender may assign, transfer, sell, pledge or grant participation interests in or otherwise hypothecate its rights in, to and under the Loans, the Loan Documents and the NYTC Completion Guaranty, or any portion thereof (any such transaction, an “Assignment”) (i) without Borrower’s consent, to any Eligible Assignee, (ii) subject to clause (iii) of this sentence, with the prior consent of Borrower to any other Person, which consent may not be unreasonably withheld or (iii) without Borrower’s consent, to those entities approved by Borrower in the Disclosure Side Letter.  Upon any such Assignment by GMACCM or any Lender (excluding any such pledge or other hypothecation or any such granting of a participation interest), GMACCM or such Lender shall be relieved of any liability hereunder and under any Loan Document, but only to the extent such liability is assumed by the assignee.  Notwithstanding anything to the contrary in the foregoing, (1) no consent of Borrower shall be required for any Assignment by GMACCM during the continuance of an Event of Default and no consent of Borrower, GMACCM or Agent shall be required for any Assignment by any other Lender during the continuance of an Event of Default, (2) Agent agrees that prior to the occurrence of an Event of Default, GMACCM and its Affiliates shall collectively retain at least $50,000,000.00 of the Loans (including undrawn portions thereof) in the aggregate (or, in the event that there has been any prepayment of any principal amount owing under the Loans, GMACCM and its Affiliates shall collectively retain such portion of the Loans (including undrawn portions thereof) as shall, in the aggregate, bear the

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same proportion as $50,000,000.00 shall bear to $320,000,000.00), (3) each Lender shall have the right, without the consent of Borrower, Agent or any Lender, to grant participation interests in the Loans to any Person (and any such participations shall not count toward or be violative of clause (2) of this Section 11.05(a)), (4) without Agent’s consent, which may be withheld in Agent’s sole discretion, no Lender shall have the right to consummate an Assignment (other than a participation) with respect to a portion of the Loans not equal to any whole number multiple of $10,000,000, and (5) subject to the foregoing clauses (1), (3) and (4), each Lender’s right to consummate an Assignment shall be subject to Agent’s prior reasonable consent.  Clause (2) of the immediately preceding sentence shall not be construed so as to prohibit GMACCM from entering into any so-called “off-balance sheet” or “repurchase” facility arrangement wherein GMACCM shall retain effective control over any portion of the Loans which is subject to such arrangement and shall be responsible for the funding of that portion of the Building Loan.  The parties to any Assignment (other than any grantee of a participation interest or any grantee of a pledge or other hypothecation (but not any Person who has foreclosed upon such pledge or hypothecation)) by a Lender shall execute and deliver to Agent, for its acceptance and recording in the Agent’s Register, Agent’s form of assignment and acceptance agreement (the “Assignment and Acceptance Agreement”) together with a processing and recordation fee of $2,500, which fee shall cover Agent’s administrative cost in connection with such assignment.  The parties to such Assignment shall also pay all of Agent’s reasonable attorneys’ fees and disbursements in connection with such Assignment except, with respect to Agent’s reasonable attorneys’ fees and disbursements, to the extent paid by Borrower pursuant to Section 7.06(a)(ii) hereof.  Each Borrower Entity shall promptly execute and file any amendments to any Building Loan Document or the NYTC Completion Guaranty necessary or desirable to reflect any such Assignment (including, without limitation, multiple notes reflecting such assignee’s interest in the Building Loan) provided the same do not increase any such Borrower Entity’s liabilities (other than to a de minimis extent) or decrease any such Borrower Entity’s rights (other than to a de minimis extent) with respect to the Building Loan.  Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance Agreement, (x) such assignee shall be a Lender and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it, or assumed by the assignee thereunder, pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations under this Agreement and the other Building Loan Documents (and, in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assignor’s rights and obligations under this Agreement, such assignor shall cease to be a Lender).  The Agent shall maintain a register (the “Agent’s Register”) showing the identity of the Lenders from time to time, and upon request from Borrower from time to time, shall supply Borrower with a copy of the Agent’s Register.  Agent acknowledges and confirms that as of the date hereof, GMACCM is the only Lender.  Supplementing the foregoing, no entity whose only interest in the Loans is a participation interest or a pledge or other hypothecation (except to the extent such entity has foreclosed on such pledge or other hypothecation) shall be considered, for any purpose hereunder, a Lender.

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(b)           Subject to Section 11.23 hereof, Borrower acknowledges and agrees that Agent or any Lender may provide to any potential assignee or participant originals or copies of this Agreement, any other Building Loan Documents and any other documents, instruments, certificates, opinions, insurance policies, letters of credit, reports, requisitions and other materials and information at any time submitted by or on behalf of any Borrower Entity or received by Agent and/or Lenders in connection with the Building Loan.  Agent and each Lender agree that as a condition to such disclosure to any such assignee or participant, Agent or such Lender shall use reasonable efforts to cause such assignee or participant to agree to keep such information confidential in a manner substantially similar to Section 11.23 hereof.  In addition, Borrower agrees to cooperate in all reasonable respects with Agent and/or Lenders in the exercise of their respective rights pursuant to this Section 11.05, including, without limitation, providing such information and documentation regarding Borrower Entities, or any other Person and their businesses and finances as Agent and/or Lenders or any potential assignee or participant may reasonably request and meeting with potential assignees and participants upon reasonable notice.

SECTION 11.06     Successors and Assigns Included in Parties.  Whenever in this Agreement one of the parties hereto is named or referred to, the heirs, legal representatives, successors and assigns of such party shall be included (including, without limitation, any Member succeeding Borrower to title to any Unit pursuant to Section 7.50 hereof) and all covenants and agreements contained in this Agreement by or on behalf of Borrower or by or on behalf of Agent or any Lender shall bind and inure to the benefit of their respective heirs, legal representatives, successors and assigns (including such Members), whether so expressed or not.  Notwithstanding the foregoing, to the extent any Member is released from liability under the Building Loan Documents pursuant to Section 7.46 hereof, the heirs, legal representatives, successors and assigns of such Member shall also be deemed to have been released to such extent.

SECTION 11.07     Headings.  The headings of the Articles, Sections and subsections of this Agreement are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Agreement to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Agreement unless otherwise stated.

SECTION 11.08     Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect.

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SECTION 11.09     Interpretation.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

SECTION 11.10     Computation of Time Periods.  In this Agreement, with respect to the computation of periods of time from a specified date to a later specified date, the word “from” means both “from and including” and the words “to” and “until” both mean “to but excluding.”

SECTION 11.11     Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed solely within such State.

SECTION 11.12     Consent to Jurisdiction.  Borrower hereby irrevocably and unconditionally (a) agrees that any suit, action or other legal proceeding arising out of or relating to the Building Loan Documents may be brought in the courts of record of the State of New York in New York County or the courts of the United States, Southern District of New York; (b) consents to, and waives any and all personal rights under the laws of any state to object to, the jurisdiction of each such court in any such suit, action or proceeding; and (c) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts.  In furtherance of such agreement, Borrower agrees, upon request of Agent, to discontinue (or consent to the discontinuance of) any such suit, action or proceeding pending in any other jurisdiction or court.  Nothing contained herein, however, shall prevent Agent from bringing any suit, action or proceeding or exercising any rights against any security and against Borrower, and against any property of Borrower, in any other state or court.  Initiating such suit, action or proceeding or taking such action in any state shall in no event constitute a waiver of the agreement contained herein that the laws of the State of New York shall govern the rights and obligations of Borrower and any Lender and Agent hereunder or the submission herein by Borrower to personal jurisdiction within the State of New York.  Borrower irrevocably consents to the service of any and all process in any such suit, action or proceeding by service of copies of such process to Borrower at its address provided herein.  Nothing in this Section 11.12, however, shall affect the right of Agent to serve legal process in any other manner permitted by law.  TO THE FULL EXTENT PERMITTED BY LAW, BORROWER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF BORROWER, OR ANY OF ITS DIRECTORS, OFFICERS, PARTNERS, PRINCIPALS, MEMBERS, EMPLOYEES OR ANY OTHER AFFILIATES, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.  The waivers in this Section are given knowingly and voluntarily by Borrower and, with respect to the waiver of jury trial, is

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intended to encompass individually each instance and each issue as to which the right to a trial by jury would otherwise accrue.  Agent is hereby authorized to file a copy of this Section in any proceeding as conclusive evidence of these waivers by Borrower.

SECTION 11.13     Amendments.  Except as provided in Article 8 and Section 11.05 hereof, neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, but only by instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought.

SECTION 11.14     Counterparts.  This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument.

SECTION 11.15     Entire Agreement.  This Agreement and the other Building Loan Documents embody the entire agreement and understanding between the parties with respect to the Building Loan and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

SECTION 11.16     Recourse.  Agent and Lenders shall have full recourse against Borrower for any liability or obligation of Borrower under this Agreement and the other Building Loan Documents.  Neither Lenders nor Agent nor any of them shall have any recourse against, or the right to enforce the liability and obligation of, the other Borrower Entities to perform and observe the obligations contained in this Agreement or any other Building Loan Documents by any action or proceeding brought against any such other Borrower Entity other than (1) as expressly provided in the Guaranties, or any other agreement hereafter executed and delivered to Agent by such other Borrower Entity in connection with the Building Loan or (2) against the collateral granted under the Security Documents or any other Building Loan Document.  The provisions of this Section 11.16 shall not (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Building Loan Documents or the NYTC Completion Guaranty; (ii) affect the validity or enforceability of any Building Loan Document or the NYTC Completion Guaranty or any of the rights and remedies of Agent thereunder; or (iii) impair the right of Agent to obtain the appointment of a receiver.  No officer, director, member, shareholder, limited partner, employee, agent, representative, beneficiary or trustee of, or any person executing this Agreement or any other Building Loan Document or the NYTC Completion Guaranty in a representative capacity on behalf of (solely by virtue of such execution) a Borrower Entity shall ever be personally liable hereunder for the obligations of such Borrower Entity, all liability of each Borrower Party being expressly limited to such Borrower Entity (or any general partner, joint venturer, or other person having liability for the obligations of such Borrower Entity as a matter of law) and its assets, and all persons dealing with a Borrower Entity must look solely to such Borrower Entity (or any general partner, joint venturer, or other person having liability for the obligations of such Borrower Entity as a matter of law) and its assets for the enforcement of any claim against such Borrower Entity and in no event

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shall any recourse be had to the private property of any officer, director, member, shareholder, limited partner, employee, agent, representative, beneficiary or trustee of, or any person executing this agreement on behalf of (solely by virtue of such execution), a Borrower Entity.

SECTION 11.17     Statute of Limitations.  Borrower hereby expressly waives and releases to the fullest extent permitted by law the pleading of any statute of limitations as a defense to payment of the Building Loan or performance of its obligations under any of the Building Loan Documents.

SECTION 11.18     Remedies of Borrower Entities.  In the event that a claim or adjudication is made that Agent or any Lender has acted unreasonably or has unreasonably delayed acting with respect to any consent or approval requested under any Building Loan Document in any case where by law or under the Building Loan Document, it has an obligation to act reasonably or promptly, Agent or such Lender shall not be liable for any monetary damages, and the sole remedies of Borrower Entities shall be limited to injunctive relief or declaratory judgment.

SECTION 11.19     Time of the Essence.  Time is of the essence of this Agreement and of each and every term, covenant and condition herein.

SECTION 11.20     Survival.  This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lenders of the Building Loan and the execution and delivery to Lenders of the Building Loan Notes (regardless of any investigation made by Lenders or on their behalf), and shall continue in full force and effect so long as all or any part of the Building Loan is outstanding and unpaid.

SECTION 11.21     Usury.  This Agreement and the other Building Loan Documents are subject to the express condition that at no time shall Borrower Entities be obligated or required to pay interest on the Building Loan or loan charges at a rate which could subject the holder of the Building Loan Notes to either civil or criminal liability as a result of being in excess of the Maximum Rate permitted by applicable law.  If by the terms of any Building Loan Document, any Borrower Entity is at any time required or obligated to pay interest on the Building Loan or loan charges at a rate in excess of such Maximum Rate, the rate of interest or loan charges under the Building Loan Notes shall be deemed to be immediately reduced to such Maximum Rate and the interest payable shall be computed at such Maximum Rate and all prior interest payments or loan charges in excess of such Maximum Rate shall be applied and shall be deemed to have been payment in reduction of the Outstanding Principal.  All sums paid or agreed to be paid to Lenders for the use, forbearance, or detention of the Building Loan or for loan charges shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Building Loan Notes until payment in full so that the rate or amount of interest on account of the Building Loan does not exceed the Maximum Rate from time to time in effect and applicable to the Building Loan for so long as the Building Loan is outstanding.

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SECTION 11.22     Successive Actions.  A separate right of action hereunder shall arise in favor of (a) Agent or (b) any other Indemnified Party, as the case may be, each time Agent or such Indemnified Party acquires knowledge of any matter indemnified by Borrower hereunder.  Separate and successive actions by Agent or any Indemnified Party may be brought hereunder to enforce any of the provisions hereof at any time and from time to time.  To the extent permitted by law, no action hereunder shall preclude any subsequent action, and Borrower hereby warrants and covenants not to assert any defense in the nature of splitting of causes of action or merger of judgments.

SECTION 11.23     Confidentiality.  Borrower and Agent, for itself and on behalf of Lenders, acknowledge that in connection with the Building Loan, certain information shall be provided which the Providing Party deems proprietary and confidential (such information, the “Information”).  Provided that the Providing Party specifies in writing, at the time of its submission to the Receiving Party, that such information is confidential, Borrower agrees and Agent, for itself and on behalf of Lenders, agrees, that the Information shall be kept confidential and shall not be disclosed to any third party except (a) as may be required by any applicable court order or decree, or legal or administrative process; (b) as necessary in connection with the enforcement by Agent of its rights under the Building Loan Documents and the NYTC Completion Guaranty; (c) as may be required by any Governmental Authority, bank regulatory body or representative of any thereof arising out of or in connection with an examination of Agent, any Lender or any Borrower Entity (as applicable); (d) to any of the Receiving Party’s officers, directors, employees, attorneys, accountants, agents, advisors or other representatives who require access to Information to participate in the administration of the Building Loan; or (e) in connection with any actual or proposed Assignment of all or any part of Agent’s or any Lender’s interests in the Building Loan.  Without limiting the foregoing, Borrower and Agent, for itself and on behalf of Lenders, acknowledge and agree that if any report concerning the Loans or the Project appears in any media outlet (including, without limitation, The New York Times, The Boston Globe, The Worcester Telegram & Gazette and related web sites) owned by NYTC Guarantor (the “News Outlets”), Borrower shall not be in violation of this Section 11.23 as long as Borrower has not disclosed Information to the News Outlets and keeps such Information confidential from the News Outlets in accordance with its standard policies and procedures.  For purposes of this Section, “Information” shall include the economic terms and provisions of the Building Loan and shall not include (i) any information, product or structure internally developed by any Receiving Party provided the same does not identify any economic terms of the Building Loan; (ii) any information in any Receiving Party’s possession or otherwise known to any Receiving Party prior to the commencement of negotiations in connection with the consummation of the Building Loan; (iii) any information which is, or becomes, public or part of the public domain; and (iv) any information which was previously, or is subsequent to the date hereof, made available to any Receiving Party by a source not known to such Receiving Party to be bound by a confidentiality agreement with any Borrower Entity, Agent or any Lender (as applicable).  Supplementing the foregoing, all publicity statements and press releases issued by any Borrower Entity which refer to Agent, any Lender or the Building Loan must be approved in advance by Agent.

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SECTION 11.24Reinstatement of Obligations.  If at any time all or any part of any payment made by on behalf of Borrower or received by Agent, any Lender or any Indemnified Party under or with respect to this Agreement is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of Borrower), then the obligations of Borrower hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment, or receipt of payment by Agent, such Lender or such Indemnified Party, and the obligations of Borrower hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment had never been made.

SECTION 11.25Facsimile Signatures.  Building Loan Documents (other than any Building Loan Notes) and the NYTC Completion Guaranty may be signed by facsimile.  The effectiveness of any such signatures shall, subject to applicable Legal Requirements, have the same force and effect as manually-signed originals and shall be binding on all parties to the Building Loan Documents and the NYTC Completion Guaranty.  Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof, provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile signature.

[signature page follows]

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IN WITNESS WHEREOF, Borrower, Initial Agent and Agent have executed this Agreement on the date first above written.

BORROWER:
THE NEW YORK TIMES BUILDING LLC
By:		FC Lion LLC, member
		By:	FC 41st Street Associates, LLC, its managing member
			By:		RRG 8 South, Inc., its managing member
					By:		/s/ David L. Berliner
							Name:	David L. Berliner
							Title:	Sr. Vice President
By:		NYT Real Estate Company LLC, member
		By:	/s/ R Anthony Benten
			Name:			R Anthony Benten
			Title:			Manager
INITIAL AGENT:
NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, as Initial Agent
By:	/s/ Anita W. Laremont
	Name:			Anita W. Laremont
	Title:			SVP, Legal and General Counsel

145

							AGENT:
							GMAC COMMERCIAL MORTGAGE CORPORATION, as Agent
							By:	/s/ Vacys R. Garbonkus
								Name:	Vacys R. Garbonkus
								Title:	Executive Vice President
THE UNDERSIGNED ARE EXECUTING THIS AGREEMENT AS THE BENEFICIAL OWNERS OF THE NYTC UNIT AND FC UNITS, RESPECTIVELY:
FC MEMBER:
FC LION LLC
By:	FPC 41st Street Associates, LLC, its managing member
	By:		RRG 8 South, Inc., its managing member
			By:		/s/ David L. Berliner
					Name:	David L. Berliner
					Title:	Sr. Vice President
NYTC MEMBER:
NYT REAL ESTATE COMPANY LLC
By:		/s/ R Anthony Benten
		Name:		R Anthony Benten
		Title:		Manager

147

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF NEW YORK

On the 23 day of June in the year 2004 before me, the undersigned, personally appeared Vacys R. Garbonkus 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.

/s/ Brooke Spiegel

Notary Public

BROOKE SPIEGEL
Notary Public, State of New York
No. 01SP4954267
Qualified in New York County
Commission Expires Aug. 7, 2005

STATE OF NEW YORK

COUNTY OF NEW YORK
)  ss.:
)

On the 10 day of June in the year 2004 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.

/s/ Jeanne Mucci

Notary Public

JEANNE MUCCI
Notary Public, State of New York
No. 30-4834577
Qualified in Nassau County
Commission Expires March 30, 2007

STATE OF NEW YORK

COUNTY OF NEW YORK )
)  ss.:
)

On the 23 day of June in the year 2004 before me, the undersigned, personally appeared R. Anthony Benten 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.

/s/ Brooke Spiegel

Notary Public

BROOKE SPIEGEL
Notary Public, State of New York
No. 01SP4954267
Qualified in New York County
Commission Expires Aug. 7, 2005

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF NEW YORK	)

On the 10 day of June in the year 2004 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.

/s/ Jeanne Mucci

Notary Public

JEANNE MUCCI
Notary Public, State of New York,
No. 30-4834577
Qualified in Nassau County
Commission Expires March 30, 2007

STATE OF NEW YORK

COUNTY OF NEW YORK
)  ss.

COUNTY OF NEW YORK

On the 23 day of June in the year 2004 before me, the undersigned, personally appeared R. Anthony Benten 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.

/s/ Brooke Spiegel

Notary Public

BROOKE SPIEGEL
Notary Public, State of New York
No. 01SP4954267
Qualified in New York County
Commission Expires Aug. 7, 2005

STATE OF NEW YORK

COUNTY OF NEW YORK
)  ss.
)

On the         day of      in the year 2004 before me, the undersigned, personally appeared                      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.

Notary Public

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF NEW YORK

On the         day of        in the year 2004 before me, the undersigned, personally appeared             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.

Notary Public

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF NEW YORK	)

On the       day of         in the year 2004 before me, the undersigned, personally appeared        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.

Notary Public

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF NEW YORK	)

On the 23 day of June in the year 2004 before me, the undersigned, personally appeared Anita W. Laremont 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.

/s/ Carmen Doris Brana

Notary Public

CARMEN DORIS BRANA
Notary Public, State of New York
No. 41-4706133
Qualified in New York County
Commission Expires March 30, 2007

Exhibit A

The Land

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

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

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

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

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

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

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

A - 1

Exhibit B

Permitted Exceptions

1.Railroad Consent recorded in Liber 3192 Cp. 302. (Affects Lot 14).

2.Terms, covenants, conditions, restrictions, provisions and easements contained in the deed made by New York State Urban Development Corporation d/b/a Empire State Development Corporation to 42nd St. Development Project, Inc. dated as of September 8, 2003 and recorded October 24, 2003 as CRFN2003000433117.

3.Terms, covenants, conditions, restrictions, provisions, easements and right of reversion contained in the deed made by New York State Urban Development Corporation d/b/a Empire State Development Corporation to The City of New York, dated as of September 8, 2003 and recorded October 24, 2003 as CRFN2003000433118.

4.Agreement (Easement) among The New York Times Building LLC, The New York City Transit Authority, 42^nd St. Development Project, Inc. and The City of New York, dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433126.

5.Site 8 South Land Acquisition and Development Agreement among New York State Urban Development Corporation d/b/a Empire State Development Corporation, 42^nd St. Development Project, Inc. and The New York Times Building LLC, dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433119.

6.First Amendment to Site 8 South Land Acquisition and Development Agreement among New York State Urban Development Corporation d/b/a Empire State Development Corporation, 42^nd St. Development Project, Inc. and The New York Times Building LLC, dated as of December 14, 2003 and recorded October 24, 2003 as CRFN2003000433120.

7.Site 8 South Project Agreement among New York State Urban Development Corporation d/b/a Empire State Development Corporation, 42^nd St. Development Project, Inc., The City of New York, The New York Times Building LLC, NYT Real Estate Company LLC and FC Lion LLC, dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433116.

8.Site 8 South Declaration of Design, Use and Operation made by New York State Urban Development Corporation d/b/a Empire State Development Corporation and 42^nd St. Development Project, Inc., dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433121.

B - 1

9.Terms, covenants, provisions and option to purchase contained in the Agreement of Ground Lease made between 42^nd St. Development Project, Inc., as Landlord, and The New York Times Building LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433122.

10.Terms, covenants, provisions and option to purchase contained in the Agreement of Sublease made between The New York Times Building LLC, as Landlord, and FC Lion LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433123.

11.Terms, covenants, provisions and option to purchase contained in the Agreement of Sublease made between The New York Times Building LLC, as Landlord, and FC Lion LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433124.

12.Terms, covenants, provisions and option to purchase contained in the Agreement of Sublease made between The New York Times Building LLC, as Landlord, and NYT Real Estate Company LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433125.

13.Permitted Leases.

14.Liens created by the Loan Documents.

B - 2

Exhibit C

Certificate of Non-Bank Status

To:The New York Times Building LLC

From:[Name of Bank and Lending Office]

Date:

Re:  Building Loan and Project Loan Agreement

Ladies and Gentlemen:

Reference is hereby made to the Building Loan Agreement and that certain Project Loan Agreement, each dated as of [          ], 2004, among THE NEW YORK TIMES BUILDING LLC, NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, as initial agent (“Initial Agent”), for itself and for the benefit of any co-lenders as may exist from time to time(such lenders collectively, including any successors and assigns, “Lenders”), and GMAC COMMERCIAL MORTGAGE CORPORATION and any successor thereto, as agent (including as successor to Initial Agent), for itself and any other co-lenders as may exist from time to time.  Pursuant to the provisions of Sections 3.16(e) of such Building Loan Agreement and such Project Loan Agreement, the undersigned hereby certifies that it is not a “bank” within the meaning of Section 881(c)(3) of the Internal Revenue Code of 1986, as amended.

Yours faithfully,
[NAME OF BANK]
By:
	Name:
	Title:

C - 1

Exhibit D

Form of Condominium Subordination Agreement

D - 1

County of New York	After recording, please return to:
Section: 4	Paul, Weiss, Rifkind, Wharton & Garrison LLP
Block: 1012	1285 Avenue of the Americas
Lots:  [              ] (f/k/a Lots 1, 5, 8,	New York, NY 10019
14, 53, 59, 61, 62, 63 [and part of 15])	Attention: Harris B. Freidus, Esq.

SUBORDINATION AGREEMENT

THIS SUBORDINATION AGREEMENT (this “Agreement”) is entered into as of                               , 200    by 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 its successors and assigns as agent, “Agent”) for itself and on behalf of the lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders” and each individually a “Lender”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Building Loan Agreement and that certain Project Loan Agreement (collectively, as the same have been and may be revised, restated, amended or modified from time to time, the “Loan Agreement”), each dated as of June    , 2004 among The New York Times Building LLC (“Borrower”), New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, the Lenders have agreed to advance to Borrower loans in the maximum aggregate principal amount of $320,000,000 (collectively, the “Loan”);

WHEREAS, the proceeds of the Loan are being used to construct certain improvements (the “Improvements”) on land (the “Land”) demised to Borrower pursuant to that certain Agreement of Lease by and between 42nd St. Development Project, Inc. (“Ground Lessor”) and Borrower, dated as of December 12, 2001 (the “Ground Lease”) which Land is more particularly described on Exhibit A hereto;

WHEREAS, as security for the Loan, Borrower has executed that certain Ground Leasehold Building Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement dated as of  June    , 2004 and recorded at the Office of the City Register of New York County on                               , 200   as CRFN#                               and that certain Ground Leasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement dated as of June   , 2004 and recorded at the Office of the City Register of New York County on                               , 200   as CRFN#                               (collectively, as the same may be extended, renewed, revised, restated, replaced, spread, amended, consolidated, supplemented, assigned or modified from time to time, the “Mortgages”);

WHEREAS, (a) Borrower has assigned to Ground Lessor all of Borrower’s right, title and interest in the Ground Lease and the Severance Subleases (as defined in the Ground Lease) pursuant to that certain Assignment and Assumption Agreement, dated as of                               , 200  , which has been submitted to the Office of the City Register of New York County for recordation immediately prior to the submission of this Agreement for recording and (b) Agent has released the Ground Lease and the Severance Sublease to which NYT Real Estate Company LLC (“NYTC Member”) is a party from the lien of the Mortgages;

WHEREAS, the Land and the Improvements have been submitted 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 of the Premises known as The New York Times Building, New York, New York 10019, dated as of                               , 200   (together with the Condominium By-Laws attached as Exhibit A thereto, the “Declaration”; all capitalized terms used herein but left undefined shall have the meanings assigned to such terms in the Declaration) and recorded on                               , 200   at the Office of the City Register of New York County as CRFN #                              ;

WHEREAS, as a result of the recording of the Declaration and the release referred to above, the Mortgages now encumber solely the FC Collective Unit and the Retail Unit, together with their respective undivided percentage interest in the Common Elements; and

WHEREAS, Agent has agreed to evidence certain lien priority agreements as between the Mortgages and the Declaration pursuant to this Agreement.

NOW THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, Agent hereby agrees as follows:

1.Lien Priority.  Agent, for itself and on behalf of Lenders, does acknowledge and agree that in the event of any foreclosure (or acceptance of a deed in lieu of foreclosure) of any Unit subject to the lien of the Mortgages by Agent, any designee of Agent or any third party purchaser, it, such designee or such third party purchaser shall take title to such Unit in connection with such foreclosure (or acceptance of a deed in lieu thereof) subject to the Declaration and the Board of Managers’ Lien.  Neither the immediately preceding sentence, nor any conflict or inconsistency between the terms and provisions of the Mortgages, on the one hand, and the terms and provisions of the Declaration, on the other hand, shall be construed to limit, nullify, prevent or restrict Agent from enforcing any provision in, or from exercising any rights or remedies of Agent or the Lenders under, the Mortgages.

2.Successors and Assigns.  Whenever in this Agreement any party is named or referred to, the successors and assigns of such party or parties shall be included, whether so expressed or not.  All obligations, covenants and agreements contained in this Agreement shall be binding on, and inure to the benefit of, the respective successors and assigns of the parties hereto whether so expressed or not.

2

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

4.Counterparts.  This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument.

[SIGNATURE ON NEXT PAGE]

3

IN WITNESS WHEREOF, Agent, for itself and on behalf of Lenders, has executed this Agreement as of the date first set forth above.

AGENT:
GMAC COMMERCIAL MORTGAGE CORPORATION, as Agent
By:
	Name:
	Title:

STATE OF	)
	)  ss.:
COUNTY OF	)

On the          day of         in the year 200   before me, the undersigned, personally appeared                                  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.

Notary Public

EXHIBIT A

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

SAID LAND AND IMPROVEMENTS NOW KNOWN AS Lots [                            ] as more particularly described in the Declaration and on the floor plans certified by                                                      on                             , 200   and filed with the Real Property Assessment Department on                        , 200   as Condominium Plan No.          and also filed in the Office of the City Register of New York County on                        , 200    as CFRN #                                                       .

Exhibit E

Draw Request

E - 1

DRAW REQUEST

                            , 200  

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606
Attn:  Phillip J. Keel, Vice President

[                                                
                                                
                                                
Attn:                                        ](1)

Re:Building Loan Agreement dated as of                        , 2004 (as revised, restated, amended or modified from time to time, the “Building Loan Agreement”) and Project Loan Agreement dated as of                      , 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 by and among The New York Times Building LLC (“Borrower”), New York State Urban Development Corporation, d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”) for itself and for the benefit of any lenders as may exist from time to time (such lenders, collectively, including any successors and assigns, “Lenders”), and GMAC Commercial Mortgage Corporation and any successor thereto, as agent (including as successor to Initial Agent) (including any successors and assigns as agent, “Agent”) for itself and on behalf of 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

(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.

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 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 Owner’s 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:

1.The period covered by this Draw Request is                                                 .

2.The Improvements have not been injured or damaged by fire, explosion, accident, flood or other casualty except:                                                        .

3.All Building Loan Costs and Project Loan Costs for the payment of which Lenders have previously advanced funds have in fact been paid and all such prior Advances have been used for the purposes requested therefor except as follows:                                  .

4.The subject Advances shall be used for the purposes set forth in the Sworn Owner’s Statement attached hereto.

5.No Borrower Entity has any defenses to or offsets against the payment of any amounts due to Agent and/or any Lender under or in connection with the Loan Documents, or defenses, claims or counterclaims against the payment and performance of any of their respective obligations under the Loan Documents.  Borrower is authorized to make this representation on behalf of all of the other Borrower Entities.

6.The amount of each Advance (except if such advance is the final Advance) equals at least Fifty Thousand and No/100 Dollars ($50,000.00).  No other Draw Request has been submitted in this calendar month and the most recent Draw Request was submitted at least fifteen (15) days prior to the date hereof.  The total of all previous Advances made under the Building Loan and the Project Loan, together with the subject Advances, is shown on the attachments hereto.  The total of all previous Advances under the Building Loan Agreement and under the Project Loan Agreement allocable to the Maximum Amount—FC, together with that portion of the subject Advance allocable to the Maximum Amount—FC, does not exceed the Maximum Amount—FC.  The total of all previously requested Advances under the Building Loan Agreement and under the Project Loan Agreement allocable to the Maximum Amount—NYTC, together with that portion of the subject Advance allocable to the Maximum Amount—NYTC, does not exceed the Maximum Amount—NYTC.  No item of expense specified in the Sworn Owner’s Affidavit attached hereto has previously been made the basis of any prior Advance.

7.The purpose of the Advances is to pay the Building Loan Costs and Project Loan costs detailed in the Sworn Owner’s Statement and accompanying invoices attached hereto and made a part hereof.

2

Initials of

Borrower

8.The costs of any additional documentation, legal fees or title insurance required by Agent to evidence the Advances and preserve the priority of the lien of the Building Loan Mortgage and Project Loan Mortgage and the other Security Documents is a Reimburseable Cost.

9.All conditions precedent to the Advances set forth in Section 4.02 and (if applicable) 4.03 of the Building Loan Agreement and the Project Loan Agreement have been fulfilled.

10.The information set forth herein is true, correct and complete as of the date hereof and will be true, correct and complete as of the Requested Advance Date.

This letter shall constitute a Borrower’s instruction to Lenders to pay to Agent [the Disbursement Agent] the Advances in the total amount indicated on the attachments in the Sworn Owner’s Statement, and (b) Borrower’s 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

Borrower:
THE NEW YORK TIMES BUILDING LLC
By:	FC LION LLC, member
	By:		FC 41st Street Associates, LLC, its managing member
				By:	RRG 8 South, Inc., its managing member
						By:
							Name:
							Title:
By:	NYT Real Estate Company LLC, member
	By:
		Name:
		Title:

Sworn Owner’s Statement

State of New York	)
	)	ss:
County of New York	)	Escrow No.

The affiant,                                             , being duly sworn on oath deposes and says the following in his/her capacity as the                              of RRG 8 South, Inc., which is the managing member of FC 41st Street Associates, LLC, which is the managing member of FC Lion LLC, which is a member of The New York Times Building LLC (“Borrower”), which is the owner of the premises known as The New York Times Building, New York, New York:

                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 Owner’s 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 affiant’s knowledge, the facts set forth in this statement and the attachments are true and complete.

Notwithstanding anything to the contrary contained in this Sworn Owner’s 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.

Signed:

Name:

Subscribed and sworn to before me this        day of                       , 200  .

Notary Public

Exhibit F

Description of Improvements

F - 1

Borrower intends to construct upon the Land a 52 story office building (with ground floor retail) located at 820 Eighth Avenue, (block 1012, lots 1, 5, 8 and 14, part of 15, 53, 59, 61, 62 and 63) New York, New York, consisting of approximately 1,539,000 square feet of total gross building area of above grade space, additional below grade space and additional roof top and mechanical space.

Exhibit G

Lien Law Affidavit

G - 1

AFFIDAVIT PURSUANT TO SECTION 22

OF THE LIEN LAW OF THE STATE OF NEW YORK

STATE OF NEW YORK
	SS
COUNTY OF KINGS

Joanne Minieri, being duly sworn, deposes and says:

I am the Senior Vice President and Treasurer of RRG 8 South, Inc., the managing member of FC 41st Street Associates, LLC, the managing member of FC Lion LLC, member of The New York Times Building LLC (the “Borrower”), the borrower under that certain Building Loan Agreement, dated as of June       , 2004 by and among GMAC Commercial Mortgage Corporation, as agent, the Borrower, and the New York State urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (the “Building Loan Agreement”) to which this affidavit is attached.

The consideration paid, or to be paid, by the Borrower for the Building Loan described therein from the proceeds of the Building Loan is zero. Other expenses; constituting cost of the improvements incurred, or to be incurred, in connection with the Building Loan and advanced or to be advanced pursuant to the Building Loan Agreement are as follows:

(a)	Interest on the Building Loan during construction	$	14,066,462.00
(b)	Insurance during construction	$	72,197.00
(c)	Architect’s Fees, Engineer’s Fees and Prints	$	2,814,234.00
(d)	Premium on Contractor’s Payment and or Performance Bonds	$	897,443.00

The amounts allocated to the items specified above may be reallocated among such items or to the other expenses constituting cost of the improvements.

The net sum available to the Borrower for the improvements is $ 152,679,143.00

This statement is made pursuant to Section 22 of the Lien Law of the State of New York and is hereby made a part of the Building Loan Agreement.

The facts herein stated are true to the knowledge of the deponent. The deponent is authorized to sign this affidavit on behalf of the Borrower.

	/s/ Joanne Minieri
Sworn to before me this 23rd
day of June, 2004
/s/ Brooke Spiegel
Notary Public
BROOKE SPIEGEL
Notary Public, State of New York
No. 01SP4954267
Qualified in New York County
Commission Expires Aug. 7, 2005

G - 2

Exhibit H

Form of Non-Disturbance Agreement

H - 1

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

This Subordination, Non-Disturbance and Attornment Agreement (this “Agreement”) is made as of                            , 200    , between GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation and 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 co-lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders”), [Tenant] (“Tenant”) and [Landlord] (“Landlord”).

RECITALS

A.Tenant is the tenant under a certain lease (the “Lease”), dated as of                                   ,             , with Landlord, of premises described in the Lease (the “Premises”) as more particularly described in Exhibit A hereto.

B.This Agreement is being entered into in connection with (i) those certain loans (collectively, the “Construction Loan”) which Lenders have agreed to make to The New York Times Building LLC (“Owner”) pursuant to that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of June     , 2004 and each by and among The New York Times Building LLC, New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, which Loans are secured, in part, by that certain Ground Leasehold Building Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement, dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Building Loan Mortgage”); that certain Ground Leasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement, dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Project Loan Mortgage”); that certain Assignment of Leases and Rents (Building Loan Mortgage) dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Building Loan Assignment”); and that certain Assignment of Leases and Rents (Project Loan Mortgage), dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Project Loan Assignment”).

C.The Building Loan Assignment and Project Loan Assignment are collectively referred to herein as the “Assignments.”  The Building Loan Mortgage and Project Loan Mortgage are collectively referred to herein as the “Mortgages”.  The Assignments and Mortgages, together with all other documents executed and delivered or to be executed and delivered in connection with the Construction Loan, are collectively referred to herein as the “Loan Documents”.

D.Landlord is a member of Owner and has consented to the Mortgages and the Assignments and has executed and delivered the Mortgages and the Assignments.  Each Mortgage covers, among other things, the Premises, and each Assignment covers, among other things, the Lease.

AGREEMENT

For mutual consideration, including the mutual covenants and agreements set forth below, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.Tenant agrees that the Lease and all terms and conditions contained therein and all rights, options, liens and charges created thereby is and shall be subject and subordinate in all respects to the Loan Documents, the liens created thereby, all present or future advances thereunder and all renewals, amendments, spreaders, modifications, consolidations, replacements, increases and extensions thereof, to the full extent of all amounts secured by the Loan Documents from time to time.

2.Agent agrees that, if Agent exercises any of its rights under the Loan Documents such that it becomes the owner of the Premises, including but not limited to an entry by Agent pursuant to any Mortgage, a foreclosure under any Mortgage, a power of sale under any Mortgage or otherwise:  (a) the Lease shall continue in full force and effect as a direct lease between Agent and Tenant, and subject to all the terms, covenants and conditions of the Lease, and (b) Agent shall not disturb Tenant’s right of quiet possession of the Premises under the terms of the Lease so long as Tenant is not in default beyond any applicable grace period of any term, covenant or condition of the Lease.

3.Tenant agrees that, in the event of an exercise of the power of sale or foreclosure of any Mortgage by Agent or the acceptance of a deed in lieu of foreclosure by Agent or any other succession of Agent to ownership of the Premises, Tenant will attorn to and recognize Agent as its landlord under the Lease for the remainder of the term of the Lease (including all extension periods which have been or are hereafter exercised) upon the same terms and conditions as are set forth in the Lease, and Tenant hereby agrees to pay and perform all of the obligations of Tenant pursuant to the Lease.

4.Tenant agrees that, in the event Agent succeeds to the interest of Landlord under the Lease, neither Agent nor Lenders shall be:

(a)liable in any way for any act, omission, neglect or default of any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent such act, omission, neglect or default accrues from and after Agent succeeds to the interest of Landlord; or

(b)subject to any claim, defense, counterclaim or offsets which Tenant may have against any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent such claim, defense, counterclaim or offset accrues  from and after the date that Agent succeeds to the interest of Landlord under the Lease; or

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(c)bound by any payment of rent or additional rent which Tenant might have paid for more than one month in advance of the due date under the Lease to any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent received by Agent or required under the Lease to be so paid in Advance; or

(d)bound by any obligation to make any payment to Tenant which was required to be made prior to the time Agent succeeded to any prior Landlord’s interest, except for any work allowance, work credit or any other similar payments to be made to Tenant under the Lease; or

(e)accountable for any monies deposited with any prior Landlord (including security deposits), except to the extent such monies are actually received by Agent; or

(f)bound by any amendment or modification of the Lease made without the written consent of Agent, which consent shall not be unreasonably withheld or delayed.

Subject to paragraph 2 above, nothing contained herein shall prevent Agent from naming Tenant in any foreclosure or other action or proceeding initiated in order for Agent to avail itself of and complete any such foreclosure or other remedy if such joinder shall be required by law.

5.Tenant hereby agrees to give to Agent copies of all notices of Landlord default(s) under the Lease in the same manner as, and whenever, Tenant shall give any such notice of default to Landlord and no such notice of default shall be deemed given to Landlord unless and until a copy of such notice shall have been so delivered to Agent.  Agent shall have the right but no obligation to remedy any Landlord default under the Lease, or to cause any default of Landlord under the Lease to be remedied, and for such purpose Tenant hereby grants Agent, in addition to the period given to Landlord for remedying defaults, an additional twenty (20) days in the case of a monetary default and an additional sixty (60) days in the case of a non-monetary default to remedy, or cause to be remedied, any such default.  Tenant shall accept performance by Agent of any term, covenant, condition or agreement to be performed by Landlord under the Lease with the same force and effect as though performed by Landlord.  No Landlord default under the Lease shall exist or shall be deemed to exist (i) as long as Agent, in good faith, shall have commenced to cure such default and shall be prosecuting the same to completion with reasonable diligence, within the above-referenced time period subject to any force majeure that exists at or during Agent’s cure periods, or (ii) if possession of the Premises is required in order to cure such default, or if such default is not susceptible of being cured by Agent, as long as Agent, in good faith, shall have notified Tenant within ten (10) business days of receiving Tenant’s notice to Agent of Landlord’s default that Agent intends to institute proceedings under the Loan Documents, and, thereafter, as long as such proceedings shall have been promptly instituted and shall be prosecuted with all reasonable diligence.  In the event of the termination of the Lease by reason of any bankruptcy by Landlord, upon Agent’s written request, given within thirty (30) days after

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any such termination, Tenant, within fifteen (15) days after receipt of such request, shall execute and deliver to Agent or its designee or nominee a new lease of the Premises for the remainder of the term of the Lease upon all of the terms, covenants and conditions of the Lease.  Neither Agent nor its designee or nominee shall become liable under the Lease unless and until Agent or its designee or nominee becomes, and then only with respect to periods in which Agent or its designee or nominee remains, the owner of the Premises.  In no event shall Agent or Lenders have any personal liability as successor to Landlord and Tenant shall look only to the estate and property of Agent or Lenders in the Premises and the proceeds of any sale of the Premises or any part thereof for the satisfaction of Tenant’s remedies for the collection of a judgment (or other judicial process) requiring the payment of money in the event of any default by Agent as Landlord under the Lease, and no other property or assets of Agent or Lenders shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under or with respect to the Lease.  Agent shall, subject to the last grammatical paragraph of paragraph 4 hereof, have the right, without Tenant’s consent, to foreclose the Mortgages or to accept a deed in lieu of foreclosure or to exercise any other remedies under the Loan Documents.

6.Tenant agrees that, following delivery of written notice from Agent to Tenant designating an account into which all payments of rent are thereafter to be made (which notice shall include appropriate wire and mailing instructions), Tenant shall thereafter make all payments of rent due under the Lease (including, without limitation, base rent, amounts due for operating expenses and real estate taxes and, where applicable, rent due as a percentage of sales receipts) and all other charges and sums payable by Tenant under the Lease in accordance with such notice, unless and until Tenant receives written instructions from Agent to do otherwise.  Agent shall apply such rents and other payments it receives in accordance with the Loan Documents and, upon the repayment of the indebtedness evidenced by the Loan Documents, shall instruct Tenant to make future payments of rent as directed by Landlord.  Any payments due under the Lease which are made by Tenant to Agent hereunder shall be deemed to satisfy Tenant’s obligations to Landlord under the Lease.  In the event of any conflict between the provisions of this paragraph 6 and the terms and provisions of the Lease, the provisions of this paragraph 6 shall govern and control.

7.Tenant has no knowledge of any prior assignment or pledge of the rents accruing under the Lease by Landlord.  Tenant hereby acknowledges the making of the Assignments from Landlord to Agent in connection with the Loans.  Tenant acknowledges that the interest of the Landlord under the Lease is to be assigned to Agent solely as security for the purposes specified in the Assignments, and Agent shall have no duty, liability or obligation whatsoever under the Lease or any extension or renewal thereof, either by virtue of the Assignments or by any subsequent receipt or collection of rents thereunder, unless Agent shall specifically undertake such liability in writing.

8.If Tenant is a corporation, each individual executing this Agreement on behalf of said corporation represents and warrants that s/he is duly authorized to execute and deliver this Agreement on behalf of said corporation, in accordance with a duly adopted resolution of the Board of Directors of said corporation

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or in accordance with the by-laws of said corporation, and that this Agreement is binding upon said corporation in accordance with its terms.  If Tenant is a partnership or limited liability company, each individual executing this Agreement on behalf of said partnership or limited liability company represents and warrants that s/he is duly authorized to execute and deliver this Agreement on behalf of said partnership or limited liability company in accordance with the partnership agreement for the partnership or operating agreement for the limited liability company.

9.Any notice, election, communication, request or other document or demand required or permitted under this Agreement shall be in writing and shall be deemed delivered on the earlier to occur of (a) receipt or (b) the date of delivery, refusal or nondelivery indicated on the return receipt, if deposited in a United States Postal Service Depository, postage prepaid, sent certified or registered mail, return receipt requested, or if sent via recognized commercial courier service providing for a receipt, addressed to Tenant or Agent, as the case may be, at the following addresses:

If to Tenant:

[To be added]

Attention:

with a copy to:

Attention:

If to Agent:

GMAC Commercial Mortgage Corporation

100 South Wacker Drive, Suite 400

Chicago, Illinois 60606

Attention: Vacys R. Garbonkus

with copies to:

GMAC Commercial Mortgage Corporation

200 Witmer Road

Horsham, Pennsylvania 19044

Attention: General Counsel

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and

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attention: Harris B. Freidus, Esq.

If to Landlord:

[to be added]

10.The term “Agent” or “Lenders” as used herein includes any successors or assigns thereof, including without limitation, any co-lender at the time of or after the making of the Loans, any purchaser at a foreclosure sale and any transferee pursuant to a deed in lieu of foreclosure, and their successors and assigns, and the term “Landlord” or  “Tenant” as used herein includes any successor and assign of the named Landlord or Tenant, as applicable, herein.

11.If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to be enforceable, or if such modification is not practicable such provision shall be deemed deleted from this Agreement, and the other provisions of this Agreement shall remain in full force and effect.

12.Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing executed by the party against which enforcement of the termination, amendment, supplement, waiver or modification is sought.

13.This Agreement shall be construed in accordance with the laws of the State where the Premises is located without regard to conflict of law principles.

14.As between Landlord and Tenant, nothing herein expands Landlord’s or Tenant’s respective obligations or limits Landlord’s or Tenant’s respective rights under the Lease.

[signature page follows]

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WITNESS the execution hereof as of the date first above written.

GMAC COMMERCIAL MORTGAGE CORPORATION,
a California corporation, as Agent
By:
	Name:
	Title:
[TENANT]
By:
	Name:
	Title:

The undersigned Landlord hereby consents to the foregoing Agreement and confirms the facts stated in the foregoing Agreement.

[		]
By:
	Name:
	Title:

ACKNOWLEDGMENT FOR AGENT

STATE OF	)
	)  ss.:
COUNTY OF	)

On the      day of                     ,         , before me, the undersigned, personally appeared                                          , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Signature and Office of individual taking acknowledgment

ACKNOWLEDGMENT FOR TENANT

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF	)

On the      day of                     ,         , before me, the undersigned, personally appeared                                          , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Signature and Office of individual taking acknowledgment

ACKNOWLEDGMENT FOR LANDLORD

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF	)

On the      day of                     ,       , before me, the undersigned, personally appeared                                          , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Signature and Office of individual taking acknowledgment

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EXHIBIT A

The Premises

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Exhibit A

The Land

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

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

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

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

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

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

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

A - 1

Exhibit I

Architect’s Certificate

I - 1

ARCHITECTS’ STATEMENT

[Architect’s Letterhead]

                               , 200

Application for Payment

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606

Ladies and Gentlemen:

The undersigned (“Architect”) understands that GMAC Commercial Mortgage Corporation, as agent (including any successor thereto, “Agent”) for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) has made or will make loans (the “Loans”) to The New York Times Building LLC (“Borrower”), which Loans will be used to finance construction by Borrower of the improvements (the “Improvements”) on and adjacent to the premises more particularly described in Exhibit A hereto (the “Land”; and together with the Improvements, the “Project”).  The Loans will be advanced pursuant to that certain Building Loan Agreement dated as of  June    , 2004 (the “Building Loan Agreement”) by and between Borrower, New York State Development Corporation d/b/a Empire State Corporation, as initial agent (“Initial Agent”) for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, and that certain Project Loan Agreement dated as of June     , 2004 (the “Project Loan Agreement”; collectively with the Building Loan Agreement, the “Loan Agreements”) by and between Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.  Capitalized terms not defined herein shall have the meanings ascribed to them in the Architect’s Agreement (as defined below).

Knowing that Agent and Lenders will rely on this Architect’s Statement in advancing proceeds of the Loans, Architect, for itself and on behalf of RPBW (as hereinafter defined), based upon its knowledge, information and belief, and upon its performance and services (including RPBW and Architect’s respective periodic on site observations of construction) all in accordance with the Architect’s Agreement (as hereinafter defined) and subject to generally accepted standards of practice, hereby states to Agent and Lenders as follows as of the date hereof:

1.Architects have been engaged to act as architects for the Project and such engagement is evidenced by that certain Contract for Architectural Services dated as of October 3, 2001 among FC 41st Street Associates, LLC (“FC 41st Street”),

NYT Real Estate Company LLC (“NYTC Member”), RPBW Piano Building Workshops, S.E.L.A.F.A. (“RPBW”; together with Architect, “Architects”)) and Architect, as assigned by FC 41^st Street and NYTC Member to Borrower in accordance with Section 14.3 of the Architect’s Agreement (the “Architect’s Agreement”).  No amendments or supplements to the Architect’s Agreement have been made except as set forth on Exhibit B attached hereto.

2.Architects last observed the Project on               , 200    and                               , 200  , respectively, and each found the status of the Project on such date and the progress made on the Project [since their last Certificate dated                , 200  ] to be in substantial accordance with the Project Schedule.

3.Architects have been advised that, pursuant to that certain memorandum of the New York State Urban Development Corporation d/b/a Empire State Development Corporation (“ESDC”) concerning the 42nd Street Development Project, dated November 14, 2001 (the “Override Resolution”), ESDC confirmed that the Project is not required to comply with the requirements of the New York City Zoning Resolution.  Architects have been further advised that the Project is required to comply with the Site 8 South Declaration of Design, Use and Operation by ESDC, 42nd St. Development Project, Inc., dated as of December 12, 2001 (the “DUO Declaration”) and is required to comply with all other “Legal Requirements” as defined in the ground lease for the site of the Project (the “Lease”).  In addition, Architects have been informed that Design Development Plans and Final Plans and Specifications, as defined in the Lease, are required to be approved by the ESDC before construction of the Project may begin and that such approvals have been received.

4.The Construction Documents in effect as of the date hereof have been approved by all applicable governmental authorities having jurisdiction over the Project and comply with building codes and other similar legal requirements.  Supplementing the foregoing, the Construction Documents comply with the “Design Development Plans” and “Final Plans and Specifications” that have been approved by ESDC.  Architects have made no amendments, modifications, or changes to the Construction Documents other than those with Agent’s prior written approval or with respect to which Borrower has informed Architects that Agent’s approval is not required since the last Architect’s Certificate dated                       , 200  , other than as described on Exhibit C attached hereto.

5.All work observed to date has been done generally in accordance with the Construction Documents.

6.Upon completion of the Project in accordance with the Construction Documents, the Project will be in compliance in all material respects with currently applicable building codes and other similar legal requirements (including, without limitation, the Americans with Disabilities Act) and the Project shall be entitled to certificates of occupancy by all applicable governmental authorities and may be lawfully occupied and used for the purposes for which it was designed.

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7.All material permits, licenses, and other approvals from governmental authorities required to complete construction of the Project have been validly issued by the appropriate governmental authorities (or are capable of being obtained within time periods consistent with the projected completion dates set forth on the Project Schedule) and are in full force and effect, and subject to the limited scope of services provided for in the Architect’s Agreement, to Architects’ knowledge there is no violation of any of the provisions thereof or of any legal requirements.

8.The Architects have no knowledge of any petitions, actions or proceedings pending or threatened to revoke, rescind, alter or declare invalid any legal requirements, permits, licenses or approvals of any governmental authorities for or relating to the Project.

9.The DUO Declaration permits, as of right, the construction of the Project in accordance with the Construction Documents and, upon completion of construction, the operation, use and occupancy thereof contemplated by the Construction Documents.

10.Architects have received a survey from the Borrower and, to the extent shown on such survey, are familiar with the locations of all easements, restrictions, rights-of-way, subsurface rights and the like in force relating to the Project, and the Construction Documents have been so prepared that the improvements will not encroach over, across or upon any such easements, restrictions, rights-of-way or subsurface rights and the like to the extent shown on such survey, except as expressly permitted by the holders of title to such easements, rights-of-way or subsurface rights pursuant to written instruments, agreements and permits.

11.The Architect’s Agreement is in full force and effect, Architects  are not in default thereunder and to Architects’ knowledge, Borrower is not in default of any of Borrower’s obligations thereunder.

12.The Project has not been suspended, abandoned or terminated.

13.As of the date hereof, the Fee has not been subject to any increase and there are no approved Additional Services for the Architects other than, in each case, those referenced on Exhibit B attached hereto or heretofore disclosed on a prior Architects’ Certificate to Agent.

14.As the date hereof, Architect acknowledges that Architects have been paid  $                                     for Basic Services, $                              for Additional Services and $                        for Reimbursable Expenses.

15.The provisions set forth in this Certificate shall be binding upon Architects and Architects’ successors and shall inure to the benefit of Agent and Lenders but not to any other Person and accordingly no other Person shall be entitled to rely thereon.

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Very truly yours,
FOX & FOWLE ARCHITECTS, PC, for itself and on behalf of RPBW
By:
	Name:
	Title:

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Exhibit A

Description of Premises

Exhibit A

The Land

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

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

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

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

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

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

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

A - 1

Exhibit B

Amendments to the Architect’s Agreement and Fees for Services

Exhibit C

Amendments to the Construction Documents

Exhibit J

General Contractor’s Certificate

J – 1

GENERAL CONTRACTOR’S CERTIFICATE

[General Contractor’s Letterhead]

                                      , 200  

Application for Payment No.             

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606

Ladies and Gentlemen:

The undersigned (“General Contractor”) understands that GMAC Commercial Mortgage Corporation, as agent (“Agent”) for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) has made or will make loans (the “Loans”) to The New York Times Building LLC (“Borrower”), which Loans will be used to finance construction by Borrower of the improvements (the “Improvements”) on and adjacent to the premises more particularly described in Exhibit A hereto (the “Land”; and together with the Improvements, the “Project”).  The Loans will be advanced pursuant to that certain Building Loan Agreement dated as of June     , 2004 (the “Building Loan Agreement”) by and between Borrower, New York State Development Corporation d/b/a Empire State Corporation as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, and that certain Project Loan Agreement dated as of June     , 2004 (the “Project Loan Agreement”; collectively with the Building Loan Agreement, the “Loan Agreements”) by and between Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.  Capitalized terms not defined herein shall have the meanings ascribed to them in the Guaranteed Maximum Price Contract defined below.

General Contractor certifies to Agent and Lenders as follows:

1.General Contractor has been engaged to act as the construction manager for the Project and such engagement is evidenced by that certain Construction Management Agreement between Borrower and General Contractor dated as of January 22, 2004 (the “Guaranteed Maximum Price Contract”).  Except for Change

Orders, Field Directives and Emergency Change Orders (collectively, “Scope Changes”) no amendments or supplements to the Guaranteed Maximum Price Contract have been made without the prior written approval of Agent.  The Guaranteed Maximum Price Contract constitutes the only agreement (other than Scope Changes) between General Contractor and Borrower with respect to the matters and interests described therein.

2.General Contractor has reviewed the Drawings and Specifications prepared for the Project and specified in the Guaranteed Maximum Price Contract.  There have been no Scope Changes since the date of the last General Contractor’s Certificate dated               , 200  , except as set forth in the Potential Change Order Log attached as Schedule 1 hereto.

3.The Application and Certificate of Payment (AIA Document No. G702), dated                                   , 200   (the “Current Application for Payment”) which General Contractor understands is to be included as an item in Borrower’s requisition to Agent, is in full compliance with the terms of the Guaranteed Maximum Price Contract.

4.Schedule 2 hereto is a list of each Major Subcontractor (as defined in Exhibit B).

5.The Work performed to date has been performed in accordance with the Guaranteed Maximum Price Contract and the other Contract Documents in effect on the date hereof.  To the best of General Contractor’s knowledge, except as set forth in paragraph 2 above, no event has occurred and there are no conditions (including without limitation, any concealed conditions, design defects or deficiencies), or changes in the Construction Documents that would entitle General Contractor to an increase in the GMP, other than (a) as set forth on Schedule 1 hereto and (b) increases that General Contractor is not yet obligated to make a claim for as of the date hereof in accordance with the terms of the Guaranteed Maximum Price Contract.  As of the date hereof, the Guaranteed Maximum Price is set forth in the Current Application for Payment.

6.As of the date hereof, the required dates under the Guaranteed Maximum Price Contract for Substantial Completion and Final Completion for each portion of the Project are set forth in the most recent schedule attached as Schedule 3 hereto.  The General Contractor does not know of any facts or circumstances which would entitle General Contractor to an extension of any such dates; and General Contractor has not made any claim for any such extension, other than (a) as set forth on Schedule 1 hereto and (b) claims that General Contractor is not yet obligated to make as of the date hereof in accordance with the terms of the Guaranteed Maximum Price Contract.

7.Except as shown on Schedule 4, all Governmental Approvals (as defined in Exhibit B) required to have been obtained by General Contractor, and, to the best of General Contractor’s knowledge, all other Governmental Approvals from the City of New York, including its Department of Transportation, required to have been obtained by Borrower, with respect to the construction of the Project have been issued, are in full

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force and effect and are not subject to any legal proceedings or unsatisfied conditions.  With respect to any such Governmental Approvals not yet required to be obtained, (i) each such Governmental Approval is of a type that is routinely granted upon application therefor and (ii) General Contractor knows of no facts or circumstances which indicate that any such Governmental Approval will not be timely obtainable without material difficulty, expense or delay prior to the time that it is required.

8.All insurance required from the General Contractor (if any) under the Guaranteed Maximum Price Contract (i) has been obtained and (ii) is in full force and effect.

9.Except for funds remaining in the Trust Account established pursuant to Article 18.6.1 of the Guaranteed Maximum Price Contract, General Contractor has paid to its direct subcontractors and suppliers in full all of its obligations with respect to all labor and/or materials and rented equipment, appliances or tools related to the construction of the Project supplied through and including the period covered by the Application and Certificate of Payment (AIA Document No. G702) included in Borrower’s second most recent requisition (the “Prior Application for Payment”) and all such subcontractors have paid their direct subcontractors and suppliers in full for and with respect to all labor and/or materials and rented equipment, appliances or tools related to the construction of the Project supplied through and including the period covered by the Prior Application for Payment properly due to subcontractors and suppliers in accordance with the Guaranteed Maximum Price Contract.

10.There are no unbonded liens in favor of General Contractor and/or any subcontractor hired by General Contractor who has performed work, for the work so performed, and/or who has supplied labor, goods and/or materials, for the labor, goods and/or materials so supplied, except for such work or labor, goods and/or materials for which payment is requested.

11.The Guaranteed Maximum Price Contract is in full force and effect.  Neither General Contractor nor Borrower is in default of any of its respective obligations to the other as of the date hereof.  There is no existing circumstance or event which, but for the lapse of time and/or the giving of notice, would constitute a default by either General Contractor or Borrower or would give either such party the right to terminate the Guaranteed Maximum Price Contract.  General Contractor has not sent or received any notice of default or any notice for the purpose of terminating the Guaranteed Maximum Price Contract.

12.There are no changes in the condition of the General Contractor which would be likely to materially adversely affect its ability to perform its obligations under the Guaranteed Maximum Price Contract.

13.The Project has not been suspended, abandoned or terminated.

14.All Work performed to date has been performed only by subcontractors (not including suppliers) subject to collective bargaining agreements with

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unions affiliated with the Building and Construction Trades Council of Greater New York.

15.General Contractor is in compliance with all of its obligations under Section 2.4 of the Guaranteed Maximum Price Contract.

16.The provisions set forth in this Certificate shall be binding upon General Contractor and General Contractor’s successors and assigns and shall inure to the benefit of Agent and Lenders and their successors and assigns.

Very truly yours,
AMEC CONSTRUCTION MANAGEMENT, INC.
By:
	Name:
	Title:

4

Exhibit A

The Land

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

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

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

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

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

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

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

Exhibit B

Definitions

“Governmental Approvals” means all approvals, consents, waivers, orders, acknowledgments, authorizations, permits and licenses required under applicable Legal Requirements to be obtained from any government (or any political subdivisions thereof), court, agency, authority, board (including, without limitation, any environmental protection, planning or zoning board), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit having jurisdiction over Borrower, the Project or any part thereof (or the construction, development, use, occupancy, management, ownership or operation of the Project or any part thereof) or Agent or any Lender, as applicable.

“Major Subcontractor” means any subcontractor (vis-a-vis Owner) under the Guaranteed Maximum Price Contract (or any direct or indirect subcontractor thereof) who is supplying labor, goods, materials or services in connection with the Project, where, at the time of determination, the aggregate contract price for such labor, goods, materials or services (including fees) equals or exceeds $500,000, whether pursuant to one contract or agreement or multiple contracts or agreements, after taking into account all change orders.

Schedule 1

Potential Change Order Log

Schedule 2

Major Subcontractors

Schedule 3

Current Schedule

Schedule 4

Governmental Approvals

Exhibit K

Form of Estoppel Certificate

K-1

Estoppel Certificate

                              , 200  

GMAC Commercial Mortgage Corporation, as Agent

100 South Wacker Drive, Suite 400

Chicago, Illinois 60606

Re:New York Times Building, New York, New York

The undersigned understands that THE NEW YORK TIMES BUILDING LLC (“Borrower”), NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A EMPIRE STATE DEVELOPMENT CORPORATION, as initial agent (“Initial Agent”) for itself and for the benefit of the lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders” and each individually a “Lender”) and GMAC COMMERCIAL MORTGAGE CORPORATION, as agent (including as successor to Initial Agent) (including any of its successors and assigns as agent, “Agent”) for itself and on behalf of Lenders, have entered into that certain Building Loan Agreement dated as of June         , 2004 and that certain Project Loan Agreement dated as of June         , 2004, and that Agent is requiring, and will rely upon, this certificate from the undersigned.  The undersigned hereby certifies as follows:

1.The undersigned is the tenant under the lease described in Exhibit A annexed hereto, covering the space in the building known as the New York Times Building, New York, New York (the “Property”) described on Exhibit A (the “Premises”), which lease has not been amended or supplemented (orally or in writing) except as set forth on Exhibit A (as so amended or supplemented, the “Lease”). [The Lease is guarantied by the guaranty set forth on Exhibit A (the “Guaranty”)].  The Lease [and the Guaranty] contain[s] all of the understandings and agreements between the landlord thereunder (“Landlord”) and the undersigned with respect to the Premises.

2.Except as indicated on Exhibit A, the undersigned has not assigned the Lease, sublet all or any portion of the Premises or pledged its interest thereunder.  All conditions to the Lease to be performed by Landlord as of the date hereof and necessary to the enforceability of the Lease have been satisfied.

3.The Lease [and the Guaranty] [is][are] in full force and effect.  As of the date hereof (i) the undersigned has neither sent nor received any notice of default under the Lease and, to the best of the undersigned’s knowledge, there are no defaults under the Lease by either Landlord or the undersigned [or under the Guaranty by the guarantor thereunder], nor are there any conditions or events existing which, with or without notice or the lapse of time, or both, could constitute a default under the Lease [or the Guaranty], and (ii) to the best of the undersigned’s knowledge, the undersigned has no charge, lien, claim or offsets under the Lease against Landlord or the rent or other amounts payable thereunder.  The undersigned has not advanced any funds for or on behalf of Landlord for which the undersigned has a right to deduct from or offset against future rent payments.

4.The amount of the security deposit to be held under the Lease is set forth on Exhibit A.

5.No notice to terminate the Lease [or the Guaranty] has been given or received by the undersigned.

6.[Neither] [T]he undersigned [nor the guarantor under the Guaranty] is [not] the subject, whether voluntary or otherwise, of any bankruptcy, insolvency or similar proceeding in any federal, state or other court or jurisdiction.

7.Attached hereto as Exhibit B is a true and correct copy of the Lease [and the Guaranty] and all the amendments, modifications and supplements thereto.

8.The undersigned hereby certifies to Agent the truth and accuracy hereof and acknowledges that Agent is relying on the terms hereof in consummating the transactions described above.

9.This certificate shall be binding upon the undersigned and its successors and assigns and shall inure to the benefit of and be enforceable by Agent and its successors and assigns, including any purchaser at a foreclosure sale or any person receiving a deed in lieu of foreclosure.

Very truly yours,
[		]
By:
	Name:
	Title:

EXHIBIT A

1.Description of Lease and of each amendment thereto [and any Guaranty thereof] by title, date and parties:

2.Subleases, assignments or pledges:

3.Security deposit:

EXHIBIT B

[attached behind]

If the Lease is guaranteed, the following must be completed by all lease guarantors:

JOINDER

The undersigned Guarantor of the Lease hereby joins in this tenant estoppel certificate to confirm that the undersigned’s Guaranty of the Lease remains in full force and effect, and is hereby reaffirmed and ratified.  The undersigned Guarantor represents and warrants that all representations and warranties made in such Guaranty are true and correct in all material respects as of the date hereof.  The undersigned further confirms that the undersigned has no claim of offset, defense or counterclaim to the obligations of the undersigned under such Guaranty and have no defenses to enforcement of the Guaranty or the Lease in accordance with its terms.

[Date]
	GUARANTOR:
	By:
		Name:
		Title:

Exhibit L

Form of Lien Waiver

L-1

MECHANICS LIEN WAIVER

Contractor:	Date:
Trade:
Date of Trade Contract:
Project:       New York Times	Contract Price:  $
	Net Extras and Deductions:  $
Construction Manager:	Adjusted Contract Price:  $
AMEC Construction Management, Inc.	Amount Previously Paid:  $
	Balance Due:  $
Owner:   The New York Times Building, LLC
Date of Construction Management Agreement: January 22, 2004
Requisition No.           , dated             , 200

THE UNDERSIGNED (1) acknowledges receipt of the amount set forth above as Amount Previously Paid as payments received to date, (2) conditioned upon the receipt of the above Balance Due, waives and releases any lien or claim of lien which it may now or hereafter have upon the land and improvements described above in the project description for all work labor, services, materials and equipment supplied by the Contractor for which amounts have been requisitioned pursuant to the above-referenced Requisition, (3) that the amount of payments received to the date of this waiver represents the current amount due in accordance with our contract and work completed, and (4) warrants that it has not and will not assign any claims for payment or right to perfect a lien against such land and improvements and warrants that it has the right to execute this waiver and release.

THE UNDERSIGNED further warrants that (1) all workmen employed by it or its subcontractors upon this Project have been fully paid to the date hereof, (2) all materialmen from whom the undersigned or its subcontractors have purchased materials used in the Project have been paid for materials delivered on or prior to the date hereof, (3) none of such workmen and materialmen has any claim or demand or right of lien against the land and improvements described above, and (4) stipulates that he is an authorized officer with full power to execute this waiver of lien.

THE UNDERSIGNED agrees that the owner of the Project,                                              , and any other lender and any title insurer may rely upon this waiver.

WITNESS the signature and seal of the undersigned as of this            day of                                   , 200   .

STATE OF	By:
COUNTY OF	Name:
	Title:
Sworn to before me this
day of                         , 200    .
Notary Public

Exhibit M

Form of Assignment of Interest Rate Cap

M-1

FORM OF

ASSIGNMENT OF INTEREST RATE CAP

between

THE NEW YORK TIMES BUILDING LLC
having an address at
One MetroTech Center North,
Brooklyn, New York 11201
(Assignor)

and

GMAC COMMERCIAL MORTGAGE CORPORATION
having an address at
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606,
as agent
(Agent)

Dated as of                         , 200  

TABLE OF CONTENTS

SECTION 1.	Assignment
SECTION 2.	Representations and Warranties
SECTION 3.	Covenants
SECTION 4.	Performance of Assignor’s Obligations.
SECTION 5.	Notice and Instruction to Counterparty
SECTION 6.	Remedies
SECTION 7.	Indemnification
SECTION 8.	Notices.
SECTION 9.	Filing of Financing Statements; Appointment of Attorney-in-Fact
SECTION 10.	Successors and Assigns Included in Parties
SECTION 11.	Headings
SECTION 12.	Invalid Provisions to Affect No Others
SECTION 13.	Number and Gender
SECTION 14.	Computation of Time Periods
SECTION 15.	Governing Law
SECTION 16.	Amendments
SECTION 17.	Counterparts
SECTION 18.	Time of the Essence
SECTION 19.	Survival
SECTION 20.	Exculpation
SECTION 21.	Further Assurances
SECTION 22.	Assignment
SECTION 23.	Entire Agreement
SECTION 24.	Statute of Limitations
SECTION 25.	Remedies of Assignor
SECTION 26.	Obligations Not Impaired
SECTION 27.	No Waiver
SECTION 28.	Reinstatement of Obligations
SECTION 29.	Successive Actions

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PWRW&G

3/31/04

FORM OF

ASSIGNMENT OF INTEREST RATE CAP

THIS ASSIGNMENT OF INTEREST RATE CAP (this “Assignment”), dated as of                          , 200  , is made by THE NEW YORK TIMES BUILDING LLC, a New York limited liability company with an address at One MetroTech Center North, Brooklyn, New York 11201 (“Assignor”), in favor of GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation with an office at 100 South Wacker Drive, Suite 400, Chicago, Illinois 60606, as agent (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”).

W I T N E S S E T H:

WHEREAS, Assignor, Initial Agent (as defined in the Loan Agreements (as hereinafter defined)), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, entered into that certain Building Loan Agreement, dated as of                              , 200   (as the same may be revised, restated, amended or modified from time to time, the “Building Loan Agreement”) and that certain Project Loan Agreement dated as of                             , 200    (as the same may be revised, restated, amended or modified from time to time, the “Project Loan Agreement”; the Building Loan Agreement and the Project Loan Agreement collectively, the “Loan Agreements”; capitalized terms used herein but not defined herein shall have the respective meanings specified in the Loan Agreements), pursuant to which the Lenders are advancing loans in the original maximum aggregate amount of $320,000,000.00 (the “Loan”) to Assignor;

WHEREAS, Initial Agent has satisfied all of its obligations under the Building Loan Documents and the Project Loan Documents and has resigned as initial agent under the Building Loan Documents and the Project Loan Documents and in confirmation of the foregoing, has, among other things, assigned all of its rights as initial agent to Agent, and Agent has assumed all of Initial Agent’s Obligations as initial agent;

WHEREAS, the Loan Agreements require that, under certain circumstances, Assignor purchase an interest rate cap and execute and deliver this Assignment as further security for the payment of the Indebtedness and the performance of the Obligations; and

WHEREAS, that certain ISDA Confirmation (the “Confirmation”), dated                                , 200   between Assignor and                                              (“Counterparty”), together with that certain ISDA Master Master Agreement (Multicurrency Cross Border) governing the Confirmation (the “Master Agreement”; the Confirmation, together with the Master Agreement, the “Interest Rate Cap”), which Interest Rate Cap is attached hereto as Exhibit A, is [the Initial Interest Rate Cap][a Future Interest Rate Cap] referred to in the Loan Agreement.

NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor and Agent, for itself and on behalf of Lenders, hereby agree as follows:

SECTION 1.Assignment.  As security for the due and punctual payment in full of the Indebtedness and the performance of the Obligations, Assignor hereby assigns, grants, delivers and transfers to Agent, and grants to Agent a security interest in, all of Assignor’s right, title and interest, whether now owned or hereafter acquired, now existing or hereafter arising, wherever located, in, to and under (i) the Interest Rate Cap; (ii) all rights to receive payments under, and any payment intangibles due or to become due to Assignor in respect of, the Interest Rate Cap or arising thereunder whether as contractual Obligations or otherwise (“Payments”); (iii) all of Assignor’s claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under or arising out of the Interest Rate Cap; and (iv) any and all accessions and additions to, substitutions for and replacements of products and proceeds (including non-cash proceeds) of any of the foregoing (the property and interests described in the foregoing clauses (i) through (iv) being referred to herein collectively as the “Collateral”).

SECTION 2.Representations and Warranties.  Assignor represents and warrants that (i) it is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York; (ii) it has the power, authority and legal right to purchase and own the Interest Rate Cap and to execute, deliver and perform its obligations under this Assignment including, without limitation, to assign and grant a security interest in the Collateral; (iii) this Assignment and the Interest Rate Cap have been duly authorized, executed and delivered by all necessary parties on behalf of Assignor; (iv) the copy of the Interest Rate Cap attached as Exhibit A hereto is a true and complete copy thereof, (v) it owns the Collateral free and clear of all liens and claims of others, (vi) it has not transferred, assigned, granted a security interest in or otherwise encumbered its interest in and to the Collateral other than in favor of Agent and Lenders pursuant to this Assignment, (vii) no security agreement, financing statement or other document is on file or of record in any public office with respect to the Collateral, other than in favor of Agent and Lenders pursuant to this Assignment, (viii) the obligation of the Counterparty under the Interest Rate Cap to make Payments is not subject to any defense or counterclaim arising from any act or omission of Assignor, any other Borrower Entity or any Affiliate thereof, (ix) the Interest Rate Cap is in full force and effect and there exists no default or event of default thereunder and (x) the exact name and the state of formation of Assignor as set forth in the Articles of Organization of Assignor are set forth on page 1 hereof and the place of business (as used in Article 9 of the UCC) and chief executive office of Assignor is located at the address set forth on page one.

SECTION 3.Covenants.  Assignor covenants and agrees that (i) it shall comply with all terms of the Interest Rate Cap, (ii) it shall not waive any material provision of, or make any material change to, the Interest Rate Cap and it shall not consent or agree to any act or omission to act on the part of Counterparty which would

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constitute a default under the Interest Rate Cap, (iii) it shall not tender or accept a surrender or cancellation of the Interest Rate Cap, (iv) it shall not assign, pledge, encumber or grant a security interest in any of the Collateral to anyone other than Agent for the benefit of itself and Lenders, (v) it shall exercise promptly and diligently each and every right which it may have under the Interest Rate Cap, (vi) it shall not take or omit to take any action or suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Cap, or any defense by Counterparty, to payment, (vii) it shall promptly deliver a copy of any notice received from Counterparty to Agent and (viii) it shall deliver to Agent copies of any replacement or substitution of, and any amendment to, the Interest Rate Cap.

SECTION 4.Performance of Assignor’s Obligations.  Subject to Section 6 hereof, nothing contained herein and no act taken by Agent hereunder shall obligate or be construed to obligate Agent, vis-à-vis Assignor, to perform any of the terms, covenants or conditions contained in the Interest Rate Cap or otherwise to impose any obligation upon Agent with respect to the Collateral.  This Assignment shall not operate to place upon Agent any responsibility for the operation, control, care, management or repair of the Mortgaged Property or for the payment, performance or observance of any Obligations or any requirement or condition under the Interest Rate Cap.

SECTION 5.Notice and Instruction to Counterparty.  The Counterparty has executed this Assignment for the purpose of evidencing its consent hereto.  This Assignment shall constitute a direction to the Counterparty to make all payments to be made under or pursuant to the terms of the Interest Rate Cap, without set-off, defense or counterclaim, to Agent (a) directly to the account designated on Schedule B hereto, and (b) upon Agent’s written notice to Counterparty that an Event of Default has occurred, in accordance with Agent’s written instruction.  Assignor agrees that payments made by Counterparty pursuant to these directions shall, to the extent of such payment, satisfy Counterparty’s obligations to Assignor in respect of the Confirmation and that Counterparty may rely upon Agent’s written notice without any inquiry into the factual basis for such notice or any prior notice to or consent from Assignor. Assignor further acknowledges that its consent is not needed to any termination and liquidation of the Collateral upon which Agent and Counterparty may agree and that all proceeds paid in respect thereof are to be paid to Agent. Assignor releases Counterparty from all liability in connection with Counterparty’s compliance with Agent’s written instructions or performance in accordance with this Assignment.

SECTION 6.Remedies.  Notwithstanding anything to the contrary contained herein, prior to the occurrence of an Event of Default, neither Agent nor Lenders shall have the right to assume the Interest Rate Cap.  During the continuance of an Event of Default, Agent shall be entitled to all of the rights, remedies, powers and privileges available to a secured party under the UCC.  Agent may, but shall not be obligated to, assume all of the obligations of Assignor under the Interest Rate Cap and/or exercise the rights, benefits and privileges of Assignor with respect to any of the other

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Collateral and, in such event, Agent shall be entitled to utilize the Collateral in Assignor’s place and stead, in the name of Assignor or otherwise and/or to take in its name or in the name of Assignor, or otherwise, such action as Agent may at any time or from time to time determine to be necessary to cure any default under the Collateral or to protect the rights of Assignor or Agent or Lenders thereunder.  In connection with the foregoing, Agent shall be entitled to take possession of and use all books of account and financial records of Assignor relating to the Collateral.  The assumption by Agent of the Interest Rate Cap pursuant to this Section 6 shall be evidenced by a written notice from Agent to the Counterparty upon which the Counterparty shall be entitled to rely.  Under no circumstances shall Agent or any Lender be deemed by any party to have assumed Assignor’s rights and obligations under the Interest Rate Cap unless and until such written notice is delivered to the Counterparty in accordance with the foregoing provision.  Assignor hereby agrees to pay all sums expended by Agent under the authority hereof.  Such amounts shall constitute Reimbursable Costs.

SECTION 7.Indemnification.  Assignor agrees to indemnify and hold Agent and/or Lenders harmless from and against any and all losses which Agent and/or Lenders incur by reason of this Assignment, or by reason of any action permitted to be taken by Agent hereunder, and against and from any and all claims and demands whatsoever which may be asserted against Agent and/or Lenders by reason of any alleged obligation or undertaking on its part to perform or discharge any of the terms, covenants and conditions contained in the Interest Rate Cap except to the extent that such Loss resulted from the gross negligence or willful misconduct of Agent.  The foregoing indemnity shall be subject to the provisions of Section 7.29 of the Loan Agreements.

SECTION 8.Notices.

Any request, notice, report, demand, approval or other communication permitted or required by this Assignment to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

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Lenders or Agent:

GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606
Attention:    Vacys R. Garbonkus
Telecopier:  (312) 917-6131

with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York  10019
Attention:  Harris B. Freidus, Esq.
Telecopier:  (212) 492-0064

Assignor

The New York Times Building LLC
One MetroTech Center North
Brooklyn, New York 11201
Attention:

Telecopier:

with a copy to:

[Assignor to provide]

Counterparty:

Telecopier:  (    )

(b)Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without limiting the foregoing, Assignor may not add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address or because no notice of changed address was given, shall be deemed to be receipt of any such notice.  A notice given by a party under any Loan Document of a change of entity, address or attention party shall be deemed to be a notice of such change for purpose of all Loan Documents to which such party is a party.

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(c)Unless notified to the contrary pursuant to this Section, any notice or communication to be made to any Lender shall be made only to Agent and its counsel as provided for in this Section.

SECTION 9.Filing of Financing Statements; Appointment of Attorney-in-Fact.  (a) Assignor hereby authorizes Agent to file Uniform Commercial Code financing statements describing the Collateral and evidencing and perfecting the security interests in the Collateral granted to Agent pursuant to this Assignment and to file any Uniform Commercial Code financing statements reasonably necessary or advisable too accomplish the purposes of this Assignment and (b) effective upon the occurrence of an Event of Default, Assignor hereby appoints Agent the attorney-in-fact for Assignor, with full authority in its place and stead and in the name of Assignor or otherwise, from time to time in Agent’s discretion, to take any action and to execute any instrument which Agent may deem reasonably necessary or advisable to accomplish the purposes of this Assignment.  Assignor agrees that the foregoing power constitutes a power coupled with an interest which may not be revoked and which shall survive until all of the Indebtedness shall have been indefeasibly paid in full and satisfied.

SECTION 10.Successors and Assigns Included in Parties.  Whenever in this Assignment Assignor, Agent or Lender(s) is named or referred to, the heirs, legal representatives, successors and assigns of such party or parties shall be included, whether so expressed or not.  All obligations, covenants and agreements contained in this Assignment shall be binding on, and inure to the benefit of, the respective heirs, legal representatives, successors and assigns of Assignor, Agent or such Lender(s), whether so expressed or not.

SECTION 11.Headings.  The headings of the Sections and subsections of this Assignment are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Assignment to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Assignment unless otherwise stated.

SECTION 12.Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Assignment in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Assignment shall remain operative and in full force and effect.

SECTION 13.Number and Gender.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar

6

import when used in this Assignment shall refer to this Assignment as a whole and not to any particular provision of this Assignment.

SECTION 14.Computation of Time Periods.  In this Assignment, with respect to the computation of periods of time from a specified date to a later specified date, the word “from” means both “from and including” and the words “to” and “until” both mean “to but excluding”.

SECTION 15.Governing Law.  This Assignment shall be governed by and construed in accordance with laws of the State of New York applicable to contracts made and performed solely within such State.

SECTION 16.Amendments.  Neither this Assignment nor any provision hereof may be changed, waived, discharged or terminated orally, but only by instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought.

SECTION 17.Counterparts.  This Assignment may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument.

SECTION 18.Time of the Essence.  Time is of the essence of this Assignment and of each and every term, covenant and condition herein.

SECTION 19.Survival.  This Assignment and all covenants, agreements, representations and warranties herein made shall survive the making by Lenders of the Loans and the execution and delivery to Lenders of the Building Loan Notes and the Project Loan Notes (regardless of any investigation made by Lenders or on their behalf), and shall continue in full force and effect so long as all or any part of the Loans is outstanding and unpaid.

SECTION 20.Exculpation.  This Assignment shall be subject to the provisions of Sections 11.16 of the Loan Agreements.

SECTION 21.Further Assurances.  Assignor agrees that at any time and from time to time Assignor will promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary or desirable, or that Agent may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereunder or to enable Agent to exercise and enforce its rights and remedies hereunder.

SECTION 22.Assignment.  The assignment of this Assignment shall be governed by Sections 7.50 and 11.05 of the Loan Agreements.

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SECTION 23.Entire Agreement.  This Assignment and the other Loan Documents embody the entire agreement and understanding between the parties with respect to the Loans and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

SECTION 24.Statute of Limitations.  Assignor hereby expressly waives and releases to the fullest extent permitted by law the pleading of any statute of limitations as a defense to the performance of its obligations hereunder.

SECTION 25.Remedies of Assignor.  In the event that a claim or adjudication is made that Agent or any Lender has acted unreasonably or has unreasonably delayed acting with respect to any consent or approval requested under this Assignment in any case whereby law or under this Agreement it has an obligation to act reasonably or promptly, Agent or such Lender shall not be liable for any monetary damages, and the sole remedies of Assignor shall be limited to injunctive relief or declaratory judgment.

SECTION 26.Obligations Not Impaired.  Assignor hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever in respect of this Assignment (but not any notice of Default or Event of Default provided for in the Loan Agreements), as well as any requirement that Agent exhaust any right or remedy or take any action in connection with this Assignment or any other Loan Document.  Assignor further waives all rights to have any security marshalled upon the exercise of any remedies permitted hereunder.  Assignor agrees that Agent may take or release other security for the Indebtedness, release any party liable for any such Indebtedness, grant extensions, renewals or indulgences with respect to said Indebtedness, and may apply any other security therefor held by it without prejudice to any of its rights hereunder.

SECTION 27.No Waiver.  No failure or delay on the part of Agent to exercise any power, right or privilege under this Assignment shall impair any such power, right or privilege, or be construed to be a waiver of any default or an acquiescence therein, nor shall any single or partial exercise of such power, right or privilege preclude any other or further exercise thereof or of any other right, power or privilege.  To the extent permitted by law, Assignor hereby waives any requirement that Agent commence any foreclosure proceeding with respect to the Mortgaged Property or to any of the other collateral securing payment of the Loan prior to enforcement of any remedies pursuant to this Assignment.  Further, nothing contained in this Assignment and no act or action taken or done, or omitted to be taken or done, by Agent pursuant to the powers and rights granted to Agent hereunder shall be deemed to (i) be a waiver of or to cure any Default or Event of Default or (ii) be a waiver by Agent of any of its respective rights and remedies against any Borrower Entity or Member in connection with, or in respect of, the Indebtedness.

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SECTION 28.Reinstatement of Obligations.  If at any time all or any part of any payment made by or on behalf of Assignor or received by Agent or any Lender from Assignor under or with respect to this Assignment is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of Assignor), then the obligations of Assignor hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment, or receipt of payment by Agent or such Lender, and the obligations of Assignor hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment had never been made.

SECTION 29.Successive Actions.  A separate right of action hereunder shall arise in favor of Agent or any Lender each time Agent or such Lender acquires knowledge of any matter indemnified by Assignor under this Assignment.  Separate and successive actions by Agent may be brought hereunder to enforce any of the provisions hereof at any time and from time to time.  No action hereunder shall preclude any subsequent action, and, to the extent permitted by applicable law, Assignor hereby waives and covenants not to assert any defense in the nature of splitting of causes of action or merger of judgments.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date first written above.

ASSIGNOR:
THE NEW YORK TIMES BUILDING LLC
By:	FC LION LLC, member
	By:	FC 41st Street Associates, LLC, its managing member
		By:	RRG 8 South, Inc., its managing member
			By:
				Name:
				Title:
By:	NYT REAL ESTATE COMPANY LLC, member
	By:
		Name:
		Title:

By countersigning this Assignment Counterparty hereby:  (a) acknowledges and consents to the assignment and security interest granted by Assignor to Agent; (b) acknowledges Agent’s rights as described herein; and (c) confirms that it has not previously received notice of any other assignment of, or security interest in, Assignor’s rights in, to and under the Confirmation.  Until Agent notifies Counterparty in writing that Agent has released its interest in the Confirmation, Counterparty agrees that it will:  (a) make payments in respect of the Counterparty in accordance with this Assignment; (b) not accept changes to the account designated for payments due to Assignor without Agent’s prior written consent to each new account designation; (c) obtain Agent’s written consent prior to assigning its interest or obligations under the Confirmation; and (d) not modify or terminate the Confirmation, nor be relieved of its obligations under the Confirmation, pursuant to any waiver given by Assignor unless, in each case, made with Agent’s prior written consent.  Except as expressly provided herein in respect of the Confirmation, Counterparty shall have no obligation or liability to Agent in respect of the Confirmation, the assignment referenced herein or the Loan.

COUNTERPARTY:
[		]
By:
	Name:
	Title:

Exhibit A

Interest Rate Cap

[attached behind]

Exhibit B

Wiring Instructions

Bank:	Wachovia Bank, National Association 5th and Market Streets Philadelphia, Pennsylvania 19106 ABA#: 031-201-467
Beneficiary:	GMAC Commercial Mortgage Corporation
Account Number:
Reference:

Exhibit N

Condominium Title Endorsement

N-1

	Fidelity National Title
	INSURANCE COMPANY OF NEW YORK

AFFIRMATIVE INSURANCE ENDORSEMENT

ATTACHED to and forming a part of POLICY NO.:

The Company insures the insured against loss or damage sustained by reason of:

1.The failure of the unit identified in Schedule A and its common elements to be part of a condominium within the meaning of the condominium statutes of the State of New York.

2.The failure of the documents required by the condominium statutes to comply with the requirements of the statutes to the extent that such failure affects the title to the unit and its common elements.

3.Present violations of any restrictive covenants which restrict the use of the unit and its common elements and which are created by the condominium documents. Said restrictive covenants do not contain any provisions which will cause a forfeiture or reversion of title.

4.The priority of any lien for charges and assessments at Date of Policy provided for in the condominium statutes and condominium documents over the lien of any insured first mortgage identified in Schedule A.

5.The failure of the unit and its common elements to be entitled by law to be assessed for real property taxes as a separate parcel.

6.Any obligation to remove any improvements which exist at Date of Policy because of any present encroachments or because of any future unintentional encroachments of the common elements upon any unit or of any unit upon the common elements or another unit.

7.The failure of title by reason of a right of first refusal to purchase the unit and its common elements which was exercised or could have been exercised at Date of Policy.

THIS ENDORSEMENT is made a part of the policy and is subject to all of the terms and provisions thereof and of any prior endorsement thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy and any prior endorsements, nor does it extend the effective date of the Policy, nor does it increase the face amount thereof.

IN WITNESS WHEREOF, the Company has caused its corporate name and seal to be hereunto affixed by its duly authorized signatory and countersigned on the date hereinafter set forth.

Dated:

Countersigned:		Fidelity National Title Insurance Company of New York
BY:			BY	/s/ [ILLEGIBLE]
	Authorized Signatory			President
	(Please print name below)	[SEAL]
			ATTEST	/s/ Charles H. Wimer
				Secretary

Exhibit O

Title Assurance Letter

O-1

[LETTERHEAD OF ALL TITLE COMPANIES]

                             , 200  

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606

Re:  New York Times Building,
New York, New York (the “Property”)

Title No: [                                  ] [Title Company Name]

Title No: [                                  ] [Title Company Name]

Title No: [                                  ] [Title Company Name]

[Add more policies as needed]

Ladies and Gentlemen:

This letter will confirm that the above Title Companies have issued the policy or policies captioned above.  In connection with the same, you have advised the Title Companies of your intention to subordinate the insured mortgage to the Declaration of Condominium for the premises described in said policy(ies) (the “Mortgaged Premises”).  You have asked the Title Companies to inform you what effect the insureds voluntary act of subordinating the insured mortgage as aforesaid will have on the liability of the insurer(s) under the policy(ies).

The above policy(ies) is/are presently in full force and effect in accordance with the terms and conditions and insuring provisions thereof, including any endorsements annexed thereto, subject however, to the exclusions from coverage contained in the policy(ies) or in any endorsements affixed to the policy(ies) and to the exceptions to coverage contained on the Schedule B of the policy(ies).  As of the date hereof, the policy(ies) further insure that the subordination of the insured mortgage to the Declaration of Condominium affecting the Mortgaged Premises will not, except for the priority of the lien of condominium common charges for any unit or any express provision of the said Declaration of Condominium agreed to by you, affect the priority or enforceability of the lien of the insured mortgage nor will such subordination void the coverage provided under the policy(ies).

[Title Companies]

Exhibit P

Conditional Assignment of Declarant’s Rights

P-1

CONDITIONAL COLLATERAL ASSIGNMENT OF DECLARANT’S RIGHTS

FC LION LLC, a New York limited liability company (“Assignor”) for $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby grant, assign, transfer and set over unto GMAC COMMERCIAL MORTGAGE CORPORATION and its successors, as agent (including as successor to Initial Agent (as hereinafter defined)) (“Agent”) for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) under that certain Building Loan Agreement by and among The New York Times Building LLC (“Borrower”), New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders and Agent, for itself and on behalf of Lenders, dated as of June    , 2004 and that certain Project Loan Agreement by and among Borrower, Initial Agent, for itself and on behalf of Lenders, and Agent, for itself and on behalf of Lenders, dated as of June    , 2004 (collectively, as the same may be revised, restated, amended or modified from time to time, the “Loan Agreements”; capitalized terms used herein but left undefined shall have the meanings assigned to such terms in the Loan Agreements), all of Assignor’s rights and privileges including, without limitation, the right to take any actions and/or exercise any rights, remedies or easements available to Assignor as successor to Borrower (the “Declarant’s Rights”) arising under (i) the Declaration (as hereinafter defined), and (ii) the by-laws attached thereto (the “By-Laws”) relating to the condominium (the “Development”) created by the Declaration, but only to the extent the Declarant’s Rights relate to the Mortgaged Property other than the NYTC Units.

So long as no Event of Default shall have occurred and be continuing, Assignor may exercise the Declarant’s Rights, except that it may not (i) further transfer or encumber any of the Declarant’s Rights (except as permitted under the Loan Agreements), (ii) cause or allow any of the Condominium Documents to be modified in any material respect without Agent’s prior consent which consent may not be unreasonably withheld or (iii) allow any new Manager (as defined in the Declaration) to be elected or appointed unless Assignor shall have caused such new Manager to deliver to Agent a duly executed Conditional Resignation of Manager in the form attached to the Loan Agreements.

Upon the full payment of the Indebtedness secured by the Building Loan Mortgage and Project Loan Mortgage, the Declarant’s Rights shall automatically be reassigned to Assignor by the Agent and this Assignment shall terminate.

For the purposes of this Assignment, “Declaration” shall mean the Declaration of Leasehold Condominium establishing a plan of Leasehold condominium ownership of premises located on the easterly side of Eighth Avenue between 40^th and 41^st Streets, New York, New York pursuant to Article 9-B of the Real Property Law of the State of New York, dated                    ,       , and recorded on                        ,         , in the Office of the City Register, New York County as CRFN#                           .

This Assignment shall be governed by the laws of the State of New York applicable to contracts solely performed in said State.

The rights and privileges of the Agent and Lenders hereunder shall inure to the benefit of their respective successors and assigns.  This Assignment shall be binding upon, and inure to the benefit of, Assignor and its successors and assigns.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of this               day of               , 200  .

ASSIGNOR:
FC LION LLC
	By:	FC 41st Street Associates, LLC, its managing member
	By:		RRG 8 South, Inc., its managing member
			By:
				Name:
				Title:

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State of New York            )
	ss.:
County of New York        )

On the               day of                        ,                , before me, the undersigned, personally appeared                                        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.

Notary Public

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Exhibit Q

Conditional Resignation of Managers

Q-1

CONDITIONAL RESIGNATION OF
MANAGER

                        ,       , 200  .

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 606606

Re:  New York Times Building Condominium, New York, New York

Ladies and Gentleman:

The undersigned,                              , being a Manager on the [Board of Managers of the Association] [FC Board of Managers](1)  (as such term is defined in the Condominium Declaration (as defined in that certain Building Loan Agreement and that certain Project Loan Agreement by and between The New York Times Building LLC , New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of any co-lenders as may exist from time to time (such Lenders collectively, “Lenders”) and GMAC Commercial Mortgage Corporation and its successors, as agent (including as successor to Initial Agent), for itself and on behalf of Lenders, each dated as of June    , 2004 (collectively the “Loan Agreements”; capitalized terms not defined herein shall have the meanings ascribed to them in the Loan Agreements))), hereby tenders his or her resignation as a Manager thereof.  Said resignation may not be rescinded or revoked by the undersigned so long as you are the holder of any mortgage (securing the Building Loan or the Project Loan) encumbering any of the FC Units(as defined in the Loan Agreements).  Notwithstanding the foregoing sentence, said resignation shall only be effective upon your acceptance thereof, with notice to the undersigned, at any time during the existence and continuance of an Event of Default.

Signature Position, if any

This is to certify that this Conditional Resignation of Manager was executed in my presence on the date hereof by the party whose signature appears above in the capacity, if any, indicated.

(1)Delete as appropriate.

Notary Public

My commission expires:

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Exhibit R

Form of Extension Loan Intercreditor Agreement

R - 1

SUBORDINATION AND INTERCREDITOR AGREEMENT

THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Agreement”) is dated as of                 , 200   between GMAC COMMERCIAL MORTGAGE CORPORATION, as agent for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) (together with its successors and assigns, “Senior Lender”), a California corporation, having an office at 100 South Wacker Drive, Suite 400, Chicago, Illinois 60606, and THE NEW YORK TIMES COMPANY [or a wholly owned subsidiary thereof] (together with its successors and assigns, “Subordinate Lender”), a                 , having an office at 229 West 43rd Street, New York, NY  10036.

RECITALS:

A.The New York Times Building LLC (“Original Borrower”), New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, entered into that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of                           , 2004 (collectively, as the same may be revised, restated, amended or modified from time to time, the “Senior Loan Agreements”; capitalized terms used herein without definition shall have the meanings assigned to such terms in the Senior Loan Agreements), pursuant to which Lenders agreed to advance to Borrower loans in the original maximum aggregate principal amount of $320,000,000.00 (collectively, the “Senior Loan”).

B.Pursuant to the Senior Loan Agreements, Borrower executed that certain Ground Leasehold Building Loan Mortgage, Assignment of Leases and Security Agreement and Subordination Agreement and that certain Ground Leasehold Project Loan Mortgage, Assignment of Leases and Security Agreement and Subordination Agreement (collectively, the “Original Senior Loan Mortgages”) encumbering the Property more particularly described as Exhibit A hereto (the “Property”).

C.On the date hereof, the property encumbered by the Original Senior Loan Mortgages is being subjected to a condominium regime, and in connection therewith (a) the liens of the Original Senior Loan Mortgages are being spread to include the Severance Subleases and the Ground Lease is being released therefrom, (b) immediately thereafter, the Severance Sublease entered into by NYTC Member is being released from the lien of the Original Senior Loan Mortgages (so that thereafter the Original Senior Loan Mortgages will encumber only the Severance Subleases (the “FC Severance Subleases”) entered by FC Member (“Borrower”), (c) Borrower is assuming the obligations of Original Borrower under the Senior Loan Agreements and the other Loan Documents (collectively, the “Senior Loan Documents”) and (d) the Original Senior Loan Mortgages are being severed, so that four mortgages shall exist, and two of such

mortgages (the “Subordinate Mortgages”) are being assigned to Subordinate Lender to secure a loan (the “Subordinate Loan”) being made to Borrower in the principal amount of $                     .  The Original Senior Loan Mortgages, as so spread and released, are hereinafter referred to as the “Senior Mortgages”).

D.Subordinate Lender and Senior Lender desire to establish by this Agreement their respective rights and obligations between each other as well as the relative priorities of their rights and remedies with respect to the Senior Loan and the Subordinate Loan.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, Subordinate Lender and Senior Lender hereby agree as follows:

1.Consent and Estoppel of Senior Lender.  Senior Lender hereby acknowledges and consents to the making of the Subordinate Loan and to the encumbrance of the FC Severance Subleases by the Subordinate Mortgages and, subject to the terms and conditions of this Agreement, agrees that the Subordinate Loan and such encumbrances shall not be deemed to constitute a default under the Senior Loan Documents.

2.Subordination. (a)  Subordinate Lender hereby agrees that the Senior Obligations (as hereinafter defined), the rights, powers and privileges of the Senior Lender under the Senior Loan Documents and any lien or other security interest created in favor of Senior Lender (the real and personal property encumbered by such liens and security interests, the “Senior Loan Collateral”) shall be prior and superior to the Subordinated Obligations (as hereinafter defined), the rights, powers and privileges of the Subordinated Lender under the loan documents evidencing or securing the Subordinate Loan (collectively, the “Subordinate Loan Documents”) and any lien or other interests created in favor of Subordinated Lender, such priority, as between the Subordinate Lender and the Senior Lender, to give to the Senior Lender all of the rights, powers and privilege of a first priority secured creditor under the New York Uniform Commercial Code, New York real property law, other applicable law and otherwise in respect of the Senior Obligations, the Senior Loan Documents and the collateral on which Senior Lender has been granted a lien or security interest.  In furtherance of the foregoing, Subordinate Lender hereby covenants and agrees with Senior Lender that the lien of the Subordinate Mortgages are, and shall continue to be, subject and subordinate to the lien of the Senior Mortgages and to any extensions, renewals, consolidations, splitters and modifications thereof, and to all advances heretofore made or which hereafter may be made thereon; provided, that except for such advances as may be made pursuant to the terms of the Senior Loan Documents, the maximum aggregate amount of the Senior Loan shall not be increased.  Any assignment of rents or leases given in conjunction with the Subordinate Mortgages are and shall in all respects be subject and subordinate to the Senior Mortgages and to any assignment of rents or leases given in conjunction with the Senior Mortgages.  The foregoing shall apply notwithstanding the availability of other collateral to Senior Lender or the actual date and time of execution, delivery, recordation,

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filing or perfection of the Senior Mortgages or any assignment of leases related thereto or the Subordinate Mortgages or any assignment of leases related thereto, or the lien or priority of payment thereof, the perfection or non-perfection of any lien or security interest intended to be granted in favor of Senior Lender, and notwithstanding the fact that the Senior Loan or any claim for the Senior Loan is subordinated, avoided or disallowed, in whole or in part, under Title 11 of the United States Code (the “Bankruptcy Code”) or other applicable federal or state law.  In the event of a proceeding by or against Borrower or a member in Borrower for insolvency, liquidation, reorganization, dissolution, bankruptcy or other similar proceeding pursuant to the Bankruptcy Code or other applicable federal or state law (a “Reorganization Proceeding”), the Senior Loan shall include all interest accrued on the Senior Loan, in accordance with and at the rates specified in the Senior Loan Documents, both for periods before and for periods after the commencement of any of such Reorganization Proceeding, even if the claim for such interest is not allowed pursuant to applicable law.  “Senior Obligations” shall mean, collectively, the unpaid principal of and interest on the Senior Loan and all other obligations and liabilities of the Borrower Entities to the Senior Lender (including interest accruing at the then applicable rate after the maturity (including by acceleration) of the Senior Loan and interest accruing at the then applicable rate after the commencement of any Reorganization Proceeding, whether or not a claim for post-filing or post-petition interest is allowed in any such Proceeding), whether absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Senior Loan Documents, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to the Senior Lender that are required to be paid by the Borrower or any other party pursuant to the terms of the Senior Loan Documents).  In no event shall the term “Senior Obligations” include any of the Subordinated Obligations.  “Subordinated Obligations” shall mean, collectively, the unpaid principal of and interest on the Subordinated Loan and all other obligations and liabilities of the Borrower or any other party to the Subordinated Lender (including interest accruing at the then applicable rate after maturity (including by acceleration) of the Subordinated Loan and interest accruing at the then applicable rate after the commencement of any Reorganization Proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such Proceeding), whether absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Subordinated Loan Documents, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to the Subordinated Lender that are required to be paid by the Borrower or any other party pursuant to the terms of the Subordinated Loan Documents).  In no event shall the term “Subordinated Obligations” include any of the Senior Obligations.

(b)If any lien or security interest granted to Senior Lender under the Senior Loan Documents is or becomes, for any reason, unenforceable or unperfected, such unenforceability or lack of perfection shall not affect the relative rights, as between Senior Lender and Subordinate Lender, which are intended to be created by the Senior

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Loan Documents, the Subordinate Lender and this Agreement.  Subordinate Lender will not contest the enforceability or perfection of the Senior Loan Documents.

(c)Subordinate Lender will, at Subordinate Lender’s expense and at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further actions, that may be reasonably necessary, or that Senior Lender may reasonably request, to protect any right or interest granted by this Agreement or to enable Senior Lender to exercise and enforce its rights and remedies under this Agreement.

(d)To the extent that Borrower makes a payment or payments to Senior Lender or Senior Lender receives any payment or proceeds of any security for the Senior Loan, which payment(s) or proceed(s) (or any part) are subsequently voided, invalidated, declared to be fraudulent conveyances or preferential transfers, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then, to the extent of the payment(s) or proceeds received by Senior Lender, the Senior Loan (or part intended to be satisfied) will be revived for all purposes of this Agreement and will continue in full force and effect, as if such payment or proceeds had not been received by Senior Lender.

3.Subordinate Loan Defaults.  Subordinate Lender shall send to Senior Lender simultaneously with the delivery of any of the following notices to Borrower, in accordance with the notice provisions set forth in Section 8 hereof, a copy of each written notice or writing or other written communication given by or on behalf of Subordinate Lender with respect to:  (a) any default or event of default under or pursuant to the Subordinate Loan Documents; (b) any documents regarding any agreement or proposed agreement with respect to any foreclosure under the Subordinate Loan Documents, including, but not limited to, any deed in lieu of foreclosure, or regarding any other remedial action to be taken by Subordinate Lender or any so-called “workout,” “standstill” or other arrangement made in lieu of the exercise of remedies; and (c) the exercise by Subordinate Lender of any other rights or remedies under the Subordinate Loan Documents.

4.Senior Loan Defaults.  (a)  Senior Lender shall send to Subordinate Lender simultaneously with the delivery of any of the following notices to Borrower, in accordance with the notice provisions set forth in Section 8 hereof, a copy of each written notice or writing or other written communication given by or on behalf of such Senior Lender with respect to: (i) any default or event of default under or pursuant to the Senior Loan Documents; (ii) any documents regarding any agreement or proposed agreement with respect to any foreclosure or any other remedial action or work-outs, standstills, etc. with respect to the Senior Loan Collateral, including, but not limited to, any deed in lieu of foreclosure, or regarding any other remedial action to be taken by Senior Lender or any so-called “workout,” “standstill” or other arrangement made in lieu of the exercise of remedies; and (iii) the exercise by Senior Lender of any other rights or remedies under the Senior Loan Documents (collectively herein referred to as a “Senior Lender Notice”).

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(b)Notwithstanding anything to the contrary contained in the Senior Loan Documents, (i) Subordinate Lender shall have the right, but not the obligation, to cure any default under the terms of any of the Senior Loan Documents which can be cured with the payment of a sum of money (a “Monetary Default”) (which cure must include all default interest, late charges, protective advances and reimbursable sums (including reasonable attorneys’ fees and disbursements) then due and owing to Senior Lender (collectively, the “Cure Amount”)), on or before the tenth (10th) day after Senior Lender has given the first Senior Lender Notice of such Monetary Default; provided, however, that the cure rights of Subordinate Lender shall not apply to any Monetary Default (or series of Monetary Defaults) that have been (or continue to be) cured by Subordinate Lender more than three (3) consecutive times in any twelve (12) month period and, in the event that Subordinate Lender and/or Borrower successfully cures such default within such ten (10) days, Senior Lender shall not commence any acceleration, foreclosure action or other proceeding against the Senior Loan Collateral, and any amounts expended or paid by Subordinate Lender to cure such Monetary Default shall be deemed permitted advances under the Subordinate Loan Documents and under this Agreement without the further consent of Senior Lender; and (ii) in the event a Monetary Default becomes an Event of Default, and in lieu of the cure right set forth in clause (i) of this subparagraph (b), Subordinate Lender shall have the right, but not the obligation, on or before the forty-fifth (45th) day after Senior Lender has given a notice of the occurrence of such Event of Default, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the Cure Amount plus the Exit Fee (as defined in the Side Letter re: Fees) (which Exit Fee shall be, for purposes of this Agreement, deemed payable at the time of such assignment) (collectively, the “Owed Amount”) (but without any prepayment premium or penalty) together with any reasonable attorneys’ fees and disbursements incurred by the Senior Lender in connection with such assignment.

(c)Notwithstanding anything to the contrary set forth in the Senior Loan Documents, if the default so specified in a Senior Lender Notice is the failure of Borrower to observe or perform any covenant, promise or agreement in any Senior Loan Document, which default cannot be cured by the payment of money, Subordinate Lender shall have the right, but not the obligation, (i) to cure such default by observing or performing such covenant, promise or agreement on or before the twentieth (20th) day after Senior Lender has given the First Senior Loan Notice of such default, or (ii) in the event such default becomes an Event of Default, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the Owed Amount (but without any prepayment premium or penalty) together with any reasonable attorneys’ fees and disbursements incurred by the Senior Lender in connection with such assignment, on or before the forty-fifth (45th) day after the expiration of the Cure Period (as hereinafter defined).  If the default is not susceptible of cure within such twenty (20) day period, Subordinate Lender shall have such additional time as is necessary, but in no event more than ninety (90) days (such time period, the “Cure Period”), in order to effect such cure on the condition that Subordinate Lender promptly commences and diligently pursues such cure to completion. If the curing of such default is successfully completed within the Cure Period, Senior Lender shall not commence any acceleration, any foreclosure action

5

or proceeding against the Senior Loan Collateral; provided, however, that from and after the scheduled maturity date of the Senior Loan (without giving effect to any extension period if such extension right was not exercised) Senior Lender may initiate foreclosure or exercise any of its other remedies.

(d)If the default specified in a Senior Lender Notice is not cured in accordance with the provisions of either subparagraph 4(b) or (c) hereinabove, Senior Lender shall be entitled to exercise its acceleration and other rights and remedies under the Senior Loan Documents.

(e)Following the occurrence and during the continuation of a Noticed Default relating to a Monetary Default or any other Event of Default, Subordinate Lender shall not accept any payment (whether from Borrower or any other person or entity) with respect to the Subordinate Loan before the Senior Loan has been irrevocably paid in full in cash.  In the event that Subordinate Lender receives, directly or indirectly, any payment with respect to the Subordinate Loan in violation of the foregoing sentence, Subordinate Lender will receive and hold the same in trust, as trustee, for the benefit of Senior Lender and will promptly deliver the same to Senior Lender in precisely the form received (except for the endorsement or assignment without recourse and without representation or warranty by Subordinate Lender to Senior Lender or its order where necessary) for application to the Senior Loan.

(f)Without limiting Senior Lender’s rights, benefits, remedies and privileges under this Agreement or the Senior Loan Documents, Senior Lender may, at any time, in its sole discretion, take all or any of the following actions without releasing Subordinate Lender from its obligations hereunder or incurring any liability to Subordinate Lender: (i) renew, extend, accelerate (on the terms set forth in the Senior Loan Documents) or postpone the time of payment of all or any portion of the Senior Debt or grant any indulgence with respect to the Senior Loan; (ii) compromise or settle the Senior Loan; and (iii) waive, substitute, surrender, exchange or release any of the security provided by the Senior Loan Documents; provided, however, that the maximum aggregate amount of the Senior Loan shall not be increased.

5.Standstill.  Until the Senior Loan is paid in full:

(a)Subordinate Lender shall waive any rights it may have pursuant to any Subordinate Loan Document to approve or to consent to any action of Borrower if Senior Lender shall have approved or consented to such action, and in the event that Senior Lender has no approval or consent rights over an action by Borrower, Subordinate Lender hereby waives any approval or consent rights it may have over any such action;

(b)Subordinate Lender shall not, without the prior consent of Senior Lender, take any Enforcement Action (as hereinafter defined). For the purposes of this Agreement, the term “Enforcement Action” shall mean, with respect to the Subordinate Loan Documents, the acceleration of all or any part of the Subordinate Loan, any foreclosure proceedings, the exercise of any power of sale, the acceptance by the holder of the Subordinate Mortgages of a deed or assignment in lieu of foreclosure, the obtaining

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of a receiver, the seeking of default interest or late charges (provided, however, that nothing shall prevent the accrual of such default interest or late charges pursuant to the terms of the Subordinate Loan Documents), the taking of possession or control of the Property, the suing on any of the Subordinate Loan Documents or any guaranty or other obligation contained in the Subordinate Loan Documents, the exercising of any banker’s lien or rights of set-off or recoupment, the application of any security for the Subordinate Loan against the Subordinate Loan, the commencement of any bankruptcy, reorganization or insolvency proceedings against Borrower or any guarantor under any federal or state law, or the taking of any other enforcement action against any guarantor, the Borrower or the Property; provided, however, that if Senior Lender accelerates the maturity of Borrower’s indebtedness secured by the Senior Loan Documents, then Subordinate Lender may accelerate the indebtedness secured by the Subordinate Loan Documents (but may not take any further action without Senior Lender’s consent as aforesaid);

(c)In the event (i) the Senior Loan becomes due or is declared due and payable prior to its stated maturity, (ii) Subordinate Lender receives any payment with respect to the Subordinate Loan contrary to the terms of this Agreement or the Subordinate Loan Documents, (iii) an Event of Default under and as defined in the Senior Loan Agreements has occurred and is continuing, or (iv) of a Reorganization Proceeding, then, any payment or distribution of any kind or character, whether in cash, property or securities which, but for these subordination provisions, shall be payable or deliverable with respect to any or all of the Subordinate Loan, shall be paid forthwith or delivered directly to Senior Lender for application to the payment of the Senior Loan.  Any such payment or distribution received by Subordinate Lender (notwithstanding the preceding sentence of this paragraph) shall be segregated from the funds and property of Subordinate Lender and held in trust by Subordinate Lender for the benefit of, and shall be forthwith be paid over or delivered in the same form as so received (with any necessary endorsements) by Subordinate Lender to Senior Lender for application to the payment of the Senior Loan.  Senior Lender may, but shall not be obligated to, demand, claim and collect any such payment or distribution that would, but for these subordination provisions, be payable or deliverable with respect to the Subordinate Loan.  In the event of the occurrence of (i), (ii), (iii) or (iv) above and until the Senior Loan shall have been fully paid and satisfied and all of the obligations to Senior Lender have been performed in full, no payment shall be made to or accepted by Subordinate Lender in respect of the Subordinate Loan;

(d)Subordinate Lender retains any right it may have to request that a final judgment in a foreclosure of the Senior Mortgages direct payment to Subordinate Lender of all or any part of the indebtedness secured by the Subordinate Mortgages from the proceeds of the foreclosure sale of the Senior Mortgage to the extent that the proceeds of such foreclosure sale are in excess of any amounts necessary to satisfy the Senior Loan;

(e)Subordinate Lender shall not modify, waive or amend any of the terms or provisions of the Subordinate Loan Documents without the prior consent of Senior Lender.  In addition, Subordinate Lender shall not pledge, assign, hypothecate,

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transfer, convey, sell or grant participation rights in the Subordinate Loan or any interest in the Subordinate Loan (other than to an Affiliate) without the prior consent of Senior Lender;

(f)Subordinate Lender shall not collect payments for the purpose of escrowing taxes, assessments or other charges imposed on the Property or insurance premiums due on the insurance policies required under the Senior Mortgages or the Subordinate Mortgage if Senior Lender is collecting payments for such purposes, however, Subordinate Lender may collect payments for such purposes if Senior Lender is not collecting the same, provided such payments shall be held in trust by Subordinate Lender to be applied only for such purposes;

(g)Notwithstanding anything to the contrary contained in the Senior Loan Documents, during the continuance of a default by Borrower which can be cured by the payment of money under the Subordinate Loan Documents beyond any applicable notice or grace period, if the Senior Loan Documents are not then in default with respect to the payment of principal and interest, Subordinate Lender shall have the right, but not the obligation, at any time prior to the giving by Senior Lender of a Senior Lender Notice, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the Owed Amount together with any reasonable attorney’s fees and disbursements incurred by the Senior Lender in connection with such assignment; and

(h)To the extent that Subordinate Lender acquires any right under Section 361, 363 or 364 of the Bankruptcy Code, Subordinate Lender hereby agrees not to assert such rights without the prior consent of Senior Lender.  In the event of the occurrence of a Reorganization Proceeding, if proper proofs of claim and other pleadings and motions are not filed by Subordinate Lender at least thirty (30) days prior to the expiration date for such pleadings, Senior Lender shall have the right, upon at least ten (10) days prior notice to Subordinate Lender, to file appropriate proofs of claim and other pleadings or motions on behalf of Subordinate Lender.  The Subordinate Lender appoints Senior Lender as its attorney-in-fact for such purposes (which appointment, being coupled with an interest, is irrevocable until the termination of this Agreement).

6.Waiver of Rights of Subrogation.  Until such time as the Senior Loan is paid in full, the Subordinate Lender shall not exercise any right of subrogation that the Subordinate Lender may have or obtain pursuant to the exercise of any right or remedy in connection with the Subordinate Loan.  Without limiting the generality of the foregoing, the Subordinate Lender agrees not to acquire, directly or indirectly, by subrogation or otherwise, any lien, estate, right or other interest which is or may be prior in right to the Senior Mortgages, including, without limitation, advances for real estate taxes.

7.Insurance; Taking and Condemnation.  Subordinate Lender hereby assigns and transfers to Senior Lender:

(a)all of Subordinate Lender’s right, title, interest or claim, if any, in and to the proceeds of all policies of insurance covering the Property (or any portion

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thereof) with respect to damages arising from the occurrence of a fire or other casualty for application or disposition thereof in accordance with the terms, conditions and provisions of the Senior Loan Documents; and

(b)all of Subordinate Lender’s right, title, interest or claim, if any, in and to all awards or other compensation made for any taking or condemnation of any part of the Property (or any portion thereof) for application or disposition thereof in accordance with the terms, conditions, and provisions of the Senior Loan Documents.

8.Notices. All notices, requests, demands, consents and approvals under this Agreement shall be in writing, and shall be hand delivered, sent by registered U.S. Mail, return receipt requested, or sent by overnight courier service, designated for next-day delivery, as follows:

If to Senior Lender:

GMAC Commercial Mortgage Corporation

100 South Wacker Drive – Suite 400

Chicago, Illinois 60606

Attn:  Vacys R. Garbonkus

With a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attn:  Harris B. Freidus, Esq.

If to Subordinate Lender:

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036

Attn:  Mr. David A. Thurm

With a copy to:

c/o The New York Times Company

229 West 43rd Street

New York, New York  10036

Attn:Solomon B. Watson, IV, Esq.,
General Counsel

and to:

Piper Rudnick, LLP

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1251 Avenue of the Americas

New York, New York 10020

Attn:  Martin D. Polevoy, Esq.

Any party hereto may designate a different address to which or person to whom notices or demands shall be directed by written notice given in the same manner and directed to the other parties at the address hereinabove set forth.  Any notice given hereunder shall be deemed received one (1) Business Day after delivery to an overnight delivery service designated for next-day delivery, three (3) Business Days after mailing if sent by registered U.S. mail return receipt requested, or when actually received if received on a Business Day (and otherwise on the next Business Day) if sent by hand delivery.

9.Representations, Warranties and Covenants.

(a)Subordinate Lender represents and warrants to Senior Lender that: (i) this Agreement has been duly authorized, executed and delivered on behalf of Subordinate Lender; (ii) Subordinate Lender is the sole legal and equitable holder and owner of the Subordinate Loan Documents, (iii) the Subordinate Loan Documents are the only agreements or instruments creating or purporting to create in favor of Subordinate Lender a lien encumbering the Property (and Subordinate Lender agrees that, so long as any portion of the Senior Loan remains unpaid, Subordinate Lender shall not claim any rights under, or the benefit of, any other agreement or instrument creating or purporting to create in favor of Subordinate Lender a security interest in the Property prior in lien or right of payment to the Senior Loan), (iv) the Subordinate Lender owns the Subordinate Loan, and (v) the aggregate principal indebtedness secured by the Subordinate Loan Documents is $                   and the maturity date is                   .

(b)Subordinate Lender acknowledges that Senior Lender has made no warranties or representations with respect to the due execution, legality, validity,  completeness or enforceability of the Senior Loan Documents or the collectibility of the Senior Loan.  Senior Lender will be entitled to manage and supervise the Senior Loan in accordance with its usual practices, modified from time to time as Senior Lender deems appropriate under the circumstances, without regard to the existence of any rights that Subordinate Lender may now or in the future have in or to the Senior Loan Collateral.  Senior Lender will have no liability to Subordinate Lender for, and Subordinate Lender waives, any claim which it may now or in the future have against Senior Lender arising out of: (i) any and all actions which Senior Lender, in good faith, takes or omits to take with respect to the Senior Loan Documents or the collection of the Senior Loan or the valuation, use, protection or release of any collateral (including, without limitation, actions or inactions of Senior Lender with respect to the creation, perfection or continuation of liens or security interests in its collateral, the occurrence of an Event of Default, the foreclosure on, sale, release of, depreciation of, or failure to realize on, any of its collateral, and the collection of any claim for all or any part of the Senior Loan from any account debtor, guarantor or other party); (ii) Senior Lender’s election, in any Reorganization Proceeding, of the application of Section 1111 (b)(2) of the Bankruptcy Code; or (iii) any borrowing or grant of a security interest by Borrower or a member in Borrower in a Reorganization Proceeding under Section 364 of the Bankruptcy Code.

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Notwithstanding anything to the contrary contained herein, Subordinate Lender does not waive any claim it may have against Senior Lender arising out of Senior Lender’s alleged breach hereof.  Subordinate Lender hereby waives any rights it may have to require a marshalling of the assets of Borrower.

(c)Senior Lender shall have no duty to advise Subordinate Lender of information known to Senior Lender regarding Borrower’s business, financial or other condition or the risk of non-payment of the Senior Loan. Upon written request made by Subordinate Lender or Senior Lender from time to time, but not more often than once in any calendar year, Senior Lender or Subordinate Lender, as the case may be, will furnish certificates indicating the principal, interest and other sums, if any, due under the Senior Loan Documents or Subordinate Loan Documents, as the case may be, and whether or not, to the best of Senior Lender’s knowledge or Subordinate Lender’s knowledge, an event of default (or event which, with notice or the passage of time, would constitute an event of default) has occurred.

10.No Third Party Beneficiary.  The terms of this Agreement are for the sole and exclusive protection and use of Subordinate Lender and any holders of the Subordinate Loan Documents and the Senior Lender and any holders of the Senior Loan Documents.  Neither Borrower, nor any other person or party, shall be a third-party beneficiary hereunder, and no provision hereof shall operate or inure to the use and benefit of Borrower or any such other person or party.

11.Construction of this Agreement.  This Agreement is for the sole benefit of Subordinate Lender and Senior Lender and shall be binding upon Subordinate Lender and Senior Lender, and all of their respective affiliates, participants, trustees, receivers, successors and assigns.  Nothing herein shall be deemed to modify, limit or in any way affect (a) the obligations of Borrower to Senior Lender under Senior Loan Documents, or (b) the obligations of Borrower to Subordinate Lender under the Subordinate Loan Documents.

12.Headings; Severability.  The section headings herein are for convenience of reference only and shall not affect the construction hereof.  If any provision hereof is prohibited, invalid or unenforceable in any jurisdiction, or as to any fact or circumstance, the same shall not affect the remaining provision hereof nor affect the validity or enforceability of such provision in any other jurisdiction or as to other facts or circumstances.

13.Jurisdiction and Venue; Waiver of Jury Trial.  Each of the parties hereby irrevocably submits to the jurisdiction of any federal or state court sitting in State of New York over any suit, action or proceeding arising out of or relating to this Agreement and covenants and agrees that such courts shall have exclusive jurisdiction over any such suit, action or proceeding.  Each party irrevocably waives, to the fullest extent permitted under applicable law, any objections it may now or hereafter have to the venue of any suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum.

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14.Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

15.Modification.  This Agreement may not be amended or modified except by an agreement in writing executed by all parties to this Agreement, and no provision of this Agreement may be waived except by a waiver in writing signed by the party against whom the waiver is asserted.

16.Business Days.  The terms “Business Day” and “Business Days” as used in this Agreement shall mean any day other than a Saturday, a Sunday or a Federal holiday.

17.Counterparts.  This Agreement and the consent hereto may be executed in counterparts, all of which, taken together, shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart.

18.Attorneys’ Fees.  In the event of any lawsuit or other legal proceeding arising from or relating to this Agreement, the prevailing party shall be entitled to an award of its actual reasonable attorneys’ fees and related costs and expenses.

19.Specific Performance.  In addition to any other remedies available under any applicable law, each party hereto shall be entitled to specific performance of this Agreement, and each party hereby irrevocably waives any defense to such specific performance based on the adequacy of any remedy at law.

20.Waiver of Jury Trial. SUBORDINATE LENDER AND SENIOR LENDER WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, WITH RESPECT TO, IN CONNECTION WITH OR ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH.

21.Termination. The following events are referred to herein as “Termination Events”:  (a) complete payment and satisfaction in full of the Senior Loan; and (b) complete payment and satisfaction in full of the Subordinate Loan.  Upon the occurrence of a Termination Event, this Agreement shall automatically terminate, and the provisions herein shall automatically be of no further force and effect.  Promptly upon request by Subordinate Lender or Senior Lender, the other party hereto shall execute any reasonable documents and/or instruments confirming any such termination.

[signature page follows]

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WITNESS the execution hereof as of the day and date first above written.

SENIOR LENDER:
GMAC COMMERCIAL MORTGAGE CORPORATION, as agent
By:
	Name:
	Title:
SUBORDINATE LENDER:
By:
	Name:
	Title:

State of New York	)
:	SS.:
County of New York	)

On the       day of                  , 200    before me, the undersigned, a Notary Public in and for said State, personally appeared (Person Appearing), (Personally Proved) to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Notary Name)

Notary Public

My commission expires: (expiration)

State of New York	)
:	SS.:
County of New York	)

On the       day of                 , 200   before me, the undersigned, a Notary Public in and for said State, personally appeared (Person Appearing), (Personally Proved) to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Notary Name)

Notary Public

My commission expires: (expiration)

Exhibit A

The Property

Exhibit S

Security Deposit Accounts Agreement

S - 1

SECURITY DEPOSIT ACCOUNTS AGREEMENT

THIS SECURITY DEPOSIT ACCOUNTS AGREEMENT, dated as of                    , 200   (this “Agreement”), among [           ], a                                      having an address at                                        (“Bank”), THE NEW YORK TIMES BUILDING LLC, a New York limited liability company (“Borrower”) and FC LION LLC, a New York limited liability company (“FC Member”), each having an address at One MetroTech Center North, Brooklyn, New York 11201 (Borrower and FC Member collectively, the (“Pledgors”) and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation and any successors 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 (such lenders collectively, including any successors and assigns, “Lenders” and each individually, a “Lender”).

W I T N E S S E T H:

WHEREAS, Borrower, New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, are entering into that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of the date hereof (as the same may be revised, restated, amended or modified, the “Loan Agreements”; capitalized terms not otherwise defined herein shall have the respective meanings specified in the Loan Agreements), pursuant to which the Lenders are making the Loans to Borrower; and

WHEREAS, one of the conditions precedent to the obligations of the Lenders under the Loan Agreements is that the Pledgors provide for the payment of Tenant security deposits in respect of any Lease into one or more accounts established by Pledgors with Bank which account(s) will be maintained for the benefit of Agent and Lenders.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1.  Accounts.  (a) This Agreement applies to the accounts identified below that have been established at Bank by the applicable Pledgor for the benefit of Agent and Lenders:

Description of Accounts	Account Numbers
Account Name: The New York Times Building LLC Security Deposit Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:
Account Name: FC Lion LLC Security Deposit Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:

The accounts identified above shall be collectively referred to herein as the “Security Deposit Accounts”.  No Pledgor shall cancel or cause any of the Security Deposit Accounts to be canceled, nor shall any Pledgor establish any other account with Bank or any other bank, mutual fund, investment banking firm or similar institution into which any Rents (other than security deposits) shall be deposited.

(b)(i)  Each Pledgor shall deposit, or cause to be deposited, in the applicable Security Deposit Account, all security deposits received by such Pledgor (or any leasing or managing agent) under or in respect of any Lease within two (2) Business Days of receipt thereof.  All such deposits shall be made in the lawful currency of the United States of America.  If any such security deposit is in the form of a letter of credit, such letter of credit (or any replacement thereof) must be delivered to Bank within the same time period, must be an irrevocable, standby letter of credit in form and content and from an institution reasonably acceptable to Agent and must be payable to Agent, provided that any such letter of credit may be payable to the applicable Pledgor if such letter of credit is also freely assignable to Agent and is actually assigned to Agent prior to or simultaneously with its delivery to Bank.  To the extent required by the applicable Lease, each applicable Pledgor shall require each applicable Tenant to maintain in effect any such letter of credit (or any replacement thereof) during the term of the applicable Lease or replace such letter of credit with a cash deposit.  If any such letter of credit is not so maintained or replaced within fifteen (15) days prior to the expiration thereof, Agent shall have the right, in addition to any other remedies available to Agent, to require Bank to draw upon such letter of credit.  Upon receipt, Bank shall send copies of such letters of credit to Agent.

(ii)In the absence of instructions from a Pledgor as to which account any amounts shall be deposited to, Bank shall notify the Pledgors and request such instructions, and in the meantime, Bank may refuse to accept delivery of such amounts until such instructions are received from such payor or Pledgor.

(c)The applicable Pledgor shall provide the notice set forth on Exhibit A attached hereto to each party to a Lease as each Lease is executed (or, if such Lease has previously been executed, then immediately).  The applicable Pledgor shall obtain the acknowledgment of its Tenants to such notice. If the applicable Pledgor fails to provide any such notice or obtain such acknowledgement, or if any Event of Default has

2

occurred and is continuing, Agent shall have the right (and without prejudice to Agent’s rights with respect to such failures or Event of Default ) to direct such parties to remit all security deposits directly into the applicable Security Deposit Account by issuing a notice as Agent deems appropriate.  Each of the Pledgors hereby grants to Agent a power of attorney to sign and deliver the foregoing notices, which power of attorney shall be deemed coupled with an interest and irrevocable until the Indebtedness has been paid in full, and each Pledgor directs all applicable Tenants (and any successor to the interest of any such Tenant) under the applicable Leases to follow any such instructions given by Agent, notwithstanding any contrary instructions from any Pledgor and without any obligation or right on the Tenant’s part to determine the actual existence of an Event of Default or other event claimed by Agent as the basis for Agent’s right to send such notice.

(d)No modifications or revocations of any notice given by any Pledgor pursuant to clause (c) above are permitted without Agent’s prior written approval, which approval shall not be unreasonably withheld or delayed.  Upon Agent’s request from time to time, each Pledgor will certify in writing that it has sent a notice to all applicable Tenants or otherwise demonstrate to Agent’s satisfaction that notices have been issued to all applicable Tenants.

(e)Upon Agent’s request from time to time, each Pledgor shall provide a written statement to Agent itemizing the amounts deposited in its Security Deposit Account for the period covered by Agent’s request and such supporting documentation as Agent reasonably may require.

(f)Each of the Pledgors represents and warrants that (i) this Agreement creates a valid, first priority security interest in all of its rights in the Collateral (as defined below), (ii) as of the date hereof, except for the security interest created by this Agreement, the Security Deposit Accounts are free from any Lien, or other right, title and interest of any other person or party and (iii) the exact legal name and state of formation of each Pledgor are as set forth on page one hereof.  Except as permitted hereunder, no Pledgor shall sell, transfer, encumber, hypothecate or otherwise dispose of, or grant any option with respect to, the Collateral, or create or permit to exist any Lien upon the Collateral.

(g)The Security Deposit Accounts shall not be evidenced by a certificate of deposit, passbook or other instrument.

(h)Account balances shall accrue interest at a savings account rate (or a money market rate, but only to the extent that the Security Deposit Accounts can remain “deposit accounts” (as defined in the UCC) notwithstanding the giving of a money market rate) for accounts denominated in U.S. dollars and interest shall be credited by Bank to the applicable Security Deposit Account not later than the fifth (5th) Business Day of the month immediately following the month for which accrued interest is being credited.  Interest accruing on each of the Security Deposit Accounts shall be periodically added to the principal amount of the corresponding Security Deposit Account.

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(i)Each Pledgor acknowledges and agrees that neither it, nor any other party claiming on behalf of, or through, it, shall have any right, title or interest, whether express or implied, in the Security Deposit Accounts, or to withdraw or make use of any amounts from any Security Deposit Account except to the extent expressly permitted by Section 5 hereof.

2.  Pledge of the Collateral.

(a)To secure the full payment of the Indebtedness and the performance of the Obligations, each Pledgor hereby sells, conveys, assigns, transfers and grants a first priority continuing security interest in, pledges and sets over unto Agent, for Agent’s own benefit and the benefit of Lenders, all of its right, title and interest, whether now owned or hereafter acquired or arising,  in and to each Security Deposit Account, all interest, dividends, credits and proceeds relating thereto, all monies, checks and other similar instruments held or deposited therein and all of Borrower’s rights under any letters of credit, including all rights to proceeds of any letters of credit (collectively, the “Collateral”):

(b)Bank acknowledges that this Agreement constitutes notice of Agent’s security interest in the Collateral and hereby acknowledges and consents thereto.

(c)Pledgors hereby authorize Agent to file UCC financing statements describing the Collateral and evidencing and perfecting the security interest in the Collateral granted to Agent pursuant to this Agreement and to file any other UCC financing statements reasonably necessary or advisable to accomplish the purposes of this Agreement.

3.  Control of the Collateral.  If Agent delivers to Bank a Notice of Exclusive Control (as hereinafter defined) and until such time as such Notice of Exclusive Control is rescinded in writing by Agent, Bank will comply with any directions originated by Agent concerning the Security Deposit Accounts and the other Collateral without further consent by any Pledgor.  Agent may exercise any rights and powers under or in connection with this Agreement and the Collateral without further consent of any of the Pledgors.  Subject to the foregoing, Bank shall also comply with entitlement orders or other directions concerning the Security Deposit Accounts and the other Collateral originated by any of the Pledgors or their Authorized Representatives (as defined in Section 5(b) below), until such time as Agent delivers a written notice to Bank (with copies to Pledgors) that Agent is thereby exercising exclusive control over the Security Deposit Accounts and the other Collateral.  Such notice is referred to herein as the “Notice of Exclusive Control”.  After Bank receives a Notice of Exclusive Control (and so long as such Notice of Exclusive Control has not been rescinded in writing by Agent), it will cease complying with entitlement orders or other directions concerning the Security Deposit Accounts and the other Collateral originated by any Pledgor or any of its Authorized Representatives and will comply solely with entitlement orders or other directions concerning the Security Deposit Accounts and the other Collateral originated

4

by Agent.  As between Pledgors and Agent, Agent agrees to give a Notice of Exclusive Control only if a Noticed Default or an Event of Default has occurred and is continuing.

4.  Agency.  (a) Agent hereby appoints Bank as Agent’s agent, bailee and pledgee and pledgee-in-possession for the Collateral, and Bank, by its execution and delivery of this Agreement, hereby accepts such appointment and agrees to be bound by the terms of this Agreement.  Each of the Pledgors hereby agrees to such appointment of Bank.

(b)Bank agrees that all cash and other property held in the Security Deposit Accounts shall be segregated from all other cash and property held by Bank and shall be identified as being held in trust pursuant to this Agreement.  Segregation will be accomplished by appropriate identification of the cash or other property held in trust on the books and records of Bank.  Bank agrees not to commingle the amounts held in, or designated for deposit in, the Security Deposit Accounts with any other amounts held on behalf of Agent, Pledgors or any other party.  Agent agrees that Bank may commingle security deposits received with respect to different Tenants in a single account provided that Bank is able to separately track interest accruing to each Tenant.

5.  Withdrawals.  (a)  So long as a Notice of Exclusive Control is not in effect, and as between Pledgors and Agent, and without any right, duty or obligation on the part of Bank to verify compliance by Pledgors with this Section 5(a), Pledgors may utilize funds in the Security Deposit Accounts, upon not less than five (5) Business Days’ prior written confirmation from the applicable Pledgor to Agent specifying the amount of funds to be disbursed and certifying that such Pledgor is entitled, by the applicable Lease and by law, to the amounts so requested or the proceeds of the applicable letter of credit.  Upon receipt of such certification, Agent shall instruct Bank to deliver and apply such funds in accordance with the terms of such certification (or Agent shall draw upon the applicable letter of credit).  The applicable Pledgor shall provide evidence to Agent, on Agent’s request, of the proper application of such funds.  Upon the delivery of a Notice of Exclusive Control, the rights conferred upon the Pledgors pursuant to this Section shall immediately and automatically terminate without further action being required of Agent, Bank or any Pledgor.

(b)Each Pledgor agrees to designate a limited number of persons who have authority to issue or deliver withdrawal, transfer or disbursement instructions to Bank (each such person, an “Authorized Representative”).  The initial list of Authorized Representatives for each Pledgor and samples of their respective genuine signatures is attached hereto as Exhibit B (“Certificate of Authority”).  Each of the Pledgors may, from time to time, amend its then current list of Authorized Representatives by sending an amendment to, or replacement of, the Certificate of Authority, in each case to be substantially in the form of Exhibit B and signed by a Secretary, Assistant Secretary or other duly authorized officer of the applicable Pledgor.  Bank will be authorized to rely and act upon all instructions given or purported to be given by an Authorized Representative of a Pledgor, provided that (i) in the case of written instructions, such written instructions bear the original signature, facsimile

5

signature or electronic signature of an Authorized Representative which resembles the specimen signature for such Authorized Representative on file with Bank; and (ii) in the case of electronically transmitted instructions, the person providing the instruction uses a security code or other authentication procedure provided by Bank for such Pledgor’s use.  Unless an expiration date is expressly stated in the Certificate of Authority, all authorizations shall continue in full force and effect until canceled or superseded by a subsequent Certificate of Authority received by Bank with reasonable opportunity to act thereon.

6.  Bank’s Obligations with respect to the Collateral.

(a)The parties agree that items deposited in the Security Deposit Accounts shall be deemed to bear the valid and legally binding endorsement of the payee and to comply with all of Bank’s requirements for the supplying of missing endorsements, now or hereafter in effect.  As between Pledgors and Agent, any deposit made by or on behalf of any Pledgor into the applicable Security Deposit Account shall be deemed deposited into such Security Deposit Account when the funds in respect of such deposit shall become collected funds.

(b)Notwithstanding anything to the contrary herein, each of the Pledgors acknowledges that it is responsible for monitoring the sufficiency of funds deposited its respective Security Deposit Account and that each is liable for any deficiency in available funds necessary to cover disbursements and fees to Bank, irrespective of whether it has received any account statement, notice or demand from Agent or Bank. If on any day there are insufficient amounts in the applicable Security Deposit Account necessary to cover disbursements and fees to Bank, the applicable Pledgor shall immediately deposit into the applicable Security Deposit Account, without the need for any notice or demand from Agent or Bank, the amount of such deficiency in immediately available funds.

(c)Availability of cash credited to the applicable Security Deposit Account shall be subject to checks, drafts or other demand instruments having cleared deposit.  If withdrawal instructions for wire transfers are received (i) at or before 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the same Business Day, or (ii) after 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the next Business Day.

7.  No Other Assignments.  Bank represents and warrants to Agent that no other notices of control, assignment, grant of security interest or Lien of any kind in respect of the Collateral are reflected in Bank’s records concerning the Collateral.  Bank hereby agrees that any such notice of control, assignment, grant of security interest, or Lien of any kind in respect of the Collateral that it receives, including the notice conferred by this Agreement, will be recorded in Bank’s records concerning the Collateral and Bank will immediately notify Agent upon receipt thereof.  Bank agrees not to allow any person or entity other than Agent and Bank (to the extent permitted in

6

Section 12 below) to withdraw amounts from the Security Deposit Accounts (it being acknowledged, however, that Pledgors have the rights to utilize funds in the Collateral Accounts to the extent provided in Sections 3 and 5 hereof).

8.  Actions With Respect to the Collateral Following an Event of Default.

(a)At all times after Bank’s receipt of a Notice of Exclusive Control, and until Bank has received notice from Agent that such Notice of Exclusive Control has been rescinded, Bank shall solely follow the written instructions of Agent as to the Collateral, including amounts from time to time on deposit in the Security Deposit Accounts, without further consent of any of the Pledgors, and Agent shall be irrevocably entitled to exercise any and all rights and remedies in respect of or in connection with the Collateral provided to Agent under the Loan Agreements or any other Security Document or otherwise available in equity or under applicable law, without further consent or instructions from any of the Pledgors.  Each of the Pledgors agrees that Bank may act as the agent of Agent in exercising, as to any funds or other property from time to time consisting of Collateral, any rights of set-off provided by the Loan Agreements or any other Loan Document or otherwise available in equity or under applicable law, without further consent or instructions from any Pledgor.

(b)Upon the occurrence and during the continuance of an Event of Default, Agent may, without notice of any kind, except for notices required by law which may not be waived (in addition to any other rights or remedies under this Agreement, at law or in equity or otherwise, but subject to the provisions of applicable law) retain for its own account or otherwise sell or dispose of all or any portion of the Collateral in one or more public or private sales, and, in each case, apply such proceeds in accordance with the Loan Documents.  In addition to the rights, powers and remedies granted to it under this Agreement and in any other Loan Document, Agent shall have all the rights, powers and remedies available at law or in equity, including, without limitation, the rights and remedies of a secured party under the applicable Uniform Commercial Code.  To the extent permitted by law, each of the Pledgors waives presentment, demand, protest and all notices of any kind and all claims, damages and demands it may acquire against the Agent or any Lender arising out of the exercise by them of any rights hereunder, except for claims, damages or demands arising from the gross negligence or willful misconduct of Agent or any Lender.

(c)Effective during the continuance of an Event of Default, each Pledgor hereby irrevocably constitutes and appoints Agent and any officer or agent of Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of each Pledgor and in the name of each Pledgor or in Agent’s own name, from time to time in Agent’s discretion, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, including, without limitation, any financing statements, endorsements, assignments or other instruments of transfer.

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9.  Information.  (a)  Bank shall provide to the applicable Pledgor and Agent a periodic statement setting forth all deposits, withdrawals, and account service charges, if any, with respect to each Security Deposit Account.  Such periodic statements will be issued on a monthly or quarterly basis, depending on activity, but not more frequently than once per month.  Any Pledgor or Agent may request more frequent statements in which case Bank may assess such Pledgor for the applicable account service charge.

(b)Each Pledgor acknowledges its duty to promptly examine each periodic statement issued to it by Bank and to use reasonable care to discover any errors or unauthorized transactions charged to, or affecting, the Security Deposit Accounts.  Should such Pledgor fail to send written objections or exceptions to Bank with respect to a periodic statement within sixty (60) days of the date such statement is issued, such Pledgor shall be deemed to have approved such statement, and, as against such Pledgor, such statement shall be presumed to be correct for all purposes with respect to all information set forth therein.  The foregoing shall not be construed to limit, in any respect, Bank’s right to correct any error it discovers with respect to the Security Deposit Accounts or to withdraw from the Security Deposit Accounts cash or other property deposited therein by Bank in error.

10.  Certain Matters Affecting the Bank.  Pledgors and Agent agree that:

(a)Bank shall be entitled to rely upon, and shall be protected in acting or refraining from acting upon, any written notice, certificate or other document or communication (including, without limitation, facsimiles thereof) believed by it to be genuine and to have been signed, presented or delivered by the proper party or parties, and Bank may rely on statements contained therein without further inquiry or investigation.  Bank shall have no obligation to review or confirm that actions it is requested to take pursuant to any such notice comply with any agreement or document other than this Agreement.

(b)Bank shall be entitled to rely, and shall be protected in acting or refraining from acting, without independent investigation or any further consent or instructions from any Pledgor, upon any written notice received from Agent to the effect that an Event of Default has occurred or has ceased to exist or that any action requested by Agent to disburse funds from the Security Deposit Accounts or other Collateral or exercise Agent’s set-off rights against the Collateral is permitted under the Loan Agreements, any other Loan Document and/or in equity or under applicable law.

(c)The duties and obligations of Bank shall be determined solely by the express provisions of this Agreement, and, except as expressly set forth herein, Bank will not be charged with knowledge of any provisions of the Loan Agreements or any other Loan Documents.  Bank shall not be liable except for the performance of its duties and obligations as are specifically set forth in this Agreement, except to the extent any claims, losses, damages, expenses or other liabilities are caused by the gross negligence or willful or intentional misconduct of Bank, and no implied covenants or obligations, except those that may be implied by law, shall be read into this

8

Agreement against Bank.  Without limiting the foregoing: Bank shall have no investment responsibility with respect to the cash or other property held in the Collateral except as specifically set forth herein; shall not be accountable for the use or application by any Pledgor or any other identified party of any money paid over by Bank in accordance with this Agreement; and shall have no responsibility for taking any steps to preserve rights against any parties with respect to any property held hereunder.

(d)Bank shall have no liability for any loss occasioned by delay in the actual receipt of notice or other instructions to Bank of any payment, disbursement or any other transaction regarding the Collateral, nor shall Bank be liable for any claims, losses, damages, expenses or other liabilities, other than to the extent the same may be caused by the gross negligence or willful or intentional misconduct of Bank.  Under no circumstance whatsoever will Bank be liable for any lost profits or for any incidental, special, consequential or punitive damages whether or not Bank knew of the possibility or likelihood of such damages and regardless of the form of action in which any such loss or damage may be claimed.  Bank’s substantial compliance with its standard procedures for provision of the services required under this Agreement shall be deemed to constitute its exercise of reasonable care.

(e)If any Pledgor becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, or if Bank is otherwise served with legal process which Bank in good faith believes affects the Collateral, or if at any time Bank receives conflicting instructions with respect to any action it is requested to take under this Agreement, Bank shall have the right to place a hold on the Collateral until such time as Bank receives an appropriate court order or other assurances satisfactory to Bank establishing that the Collateral continue to be disbursed according to the instructions contained in this Agreement.

11.  Irrevocable Agreement.  Pledgors acknowledge that the agreements made by it and the conveyances and authorizations made and granted by it herein are irrevocable and that the conveyances and authorizations made and granted herein constitute powers coupled with an interest.

12.  Waiver of Set-off Rights by Bank.  Bank hereby waives, with respect to all existing and future claims it may have against Pledgors, all rights of set-off and banker’s liens which it may now or hereafter have against the Collateral and all items (and proceeds thereof) that come into the possession of Bank in connection with the Collateral, except, without further consent from Pledgors or Agent, to the extent Bank is unable to obtain payment from Pledgors and to the extent permitted by applicable law, rights of set-off and banker’s liens arising in connection with (i) items deposited in the Security Deposit Accounts that are subsequently returned to Bank unpaid for insufficient funds or if such amount is otherwise uncollectible by Bank, including without limitation by any “stop payment order” having been applied to such item, (ii) any fees due to Bank or charges incurred by Bank in connection with its deposit or collection attempts (provided such amounts are not in excess of the fees or charges Bank regularly and customarily charges its customers with respect thereto), (iii) the amount represented by such uncollectible item if such item has actually been paid by Bank to Pledgors prior to

9

Bank’s collection thereof, (iv) unpaid fees and expenses with respect to the Collateral that are charged to any of the Pledgors by Bank in the normal course of business for the Collateral and (v) any funds or items deposited in the Security Deposit Accounts in error or as necessary to correct processing errors (and Bank shall have the right to withdraw from the Security Deposit Accounts funds or other items deposited in error without further consent from Pledgors or Agent).

13.  Miscellaneous.  This Agreement shall supersede any other agreement (to the extent conflicting herewith) relating to the matters referred to herein, including any other account agreement between either Pledgor and Bank.  This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of either Pledgor appointed or elected in any action under the United States Bankruptcy Code) and shall inure to their benefit.  This Agreement may not be changed, amended, modified or waived orally, but only by an instrument in writing signed by each of the parties hereto, provided that such instrument need by signed only by Bank and Agent if it does not change any rights or obligations of Pledgors hereunder.  This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of New York applicable to contracts made and performed solely within such State, except with regard to payment of checks and other items and other issues relating to the operations of the Security Deposit Accounts or any other account to which funds from the Security Deposit Accounts are transferred, which issues shall be interpreted and enforced according to the laws of the state where the Security Deposit Accounts or such other account are located.  This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument.  Pledgors may not assign this Agreement without the prior approval of Agent.  Agent may assign this Agreement in conformance with Section 11.05 of the Loan Agreements.  Bank may assign this Agreement with the prior approval of Agent, and notice thereof shall be given to Pledgors.

14.  Taxes.  Each Pledgor shall deliver promptly to Bank a duly completed and executed copy of the proper United States Internal Revenue Service (a) Form W-9 or (b) if a Pledgor is not a United States citizen, Form 1001, Form 4224, Form W-8 or Form 8709 (as applicable), certifying such Pledgor’s status as a beneficial owner of its Security Deposit Account (within the meaning of Section 1.1441-1(c)(6) of the Treasury Regulations of the United States Internal Revenue Tax Code).  Each of the Pledgors further agrees to provide duly executed and completed updates of such forms (or applicable successor forms) promptly (but in any event no later than 10 Business Days) upon Bank’s request therefor, if Bank notifies such Pledgor that existing forms have expired or become obsolete.  Each Pledgor shall, on its own initiative, shall promptly provide (but in any event no later than 10 Business Days) duly executed and completed updates of such forms upon the occurrence of any event in respect of such Pledgor requiring a change in the most recent form previously delivered by such Pledgor to Bank.  Each Pledgor shall be responsible for the payment of all taxes relating to the assets in its Security Deposit Account (other than taxes with respect to investment earnings retained by Bank in accordance with this Agreement).

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15.  Termination.  Pledgors may not terminate this Agreement for any reason without Agent’s prior written consent; provided, however, that Pledgors may terminate this Agreement for the purpose of using a different depository bank if (i) Agent approves such replacement depository bank, such approval not to be unreasonably withheld or delayed and (ii) such replacement depository bank shall enter into an agreement with Pledgors and Agent substantially similar to this Agreement.  This Agreement shall remain in full force and effect until such time as (a) Agent shall deliver written notice to Bank as to the full and final payment of all Indebtedness under the Loan Documents and the termination of the Loan Documents, (b) Agent shall deliver written notice of termination to Pledgors and Bank at any time for any reason, (c) Bank shall deliver written notice of termination to Pledgors and Agent not less than thirty (30) days prior to the effective termination date or (d) Borrower shall have replaced Bank with a replacement depository bank in accordance with the immediately foregoing sentence.  If Bank so terminates this Agreement or if Agent so terminates this Agreement but requires that Security Deposit Accounts with a different depository be established, Agent and Pledgors shall jointly select a new depository to replace Bank, and thereupon Agent and the Pledgors shall enter into a new arrangement with such depository substantially similar to this Agreement.  Bank hereby agrees that it shall promptly take all reasonable action necessary to facilitate the transfer of the Collateral to any replacement depository.  All rights of Bank under Sections 10 and 12 hereof for the period prior to any such termination shall survive such termination.

16.  Further Assurances.  Each Pledgor hereby covenants and agrees that it shall (i) perform such acts and execute, acknowledge and deliver, from time to time, such financing statements and other instruments as may be reasonably required by Agent to perfect or better assure this Agreement and the security interests created hereby, and file or record the same in the public records specified by Agent and (ii) upon request of Agent, execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable in Agent’s reasonable opinion to protect any security interest granted or purported to be granted hereby, to enable Agent to exercise and enforce its rights and remedies hereunder with respect to the Collateral or to effectuate the purpose and intent of this Agreement, provided that the same do not increase such Pledgor’s liabilities, or decrease such Pledgor’s rights, under the Loan Documents (other than, in each case, to a de minimis extent).

17.  Notices.  (i) Any request, notice, report, demand, approval or other communication permitted or required by this Agreement to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring

11

Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

Agent:

GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Attention:  Vacys R. Garbonkus
Telecopier:  (312) 917-6131

with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention:  Harris B. Freidus, Esq.
Telecopier:  (212) 492-0064

Borrower:

The New York Times Building LLC
c/o FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

and

The New York Times Company
229 West 43rd Street
New York, New York 10036

Attention:Anthony Benten, David Thurm and
Kenneth A. Richieri, Esq.

Telecopier:(212) 556-1646 (Mr. Benten) and
(212) 556-4634 (Mr. Thurm and Mr. Richieri)

FC Member:

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FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

If to Bank:

[                                                     ]
[                                                     ]
[                                                     ]
[                                                     ]

(b)Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without the prior consent of Agent, none of the Pledgors may add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address when no notice of changed address was given shall be deemed to be receipt of any such notice.

(c)Unless notified to the contrary pursuant to this Section 17, any notice or communication made to any Lender shall be made only to Agent and its counsel as provided in this Section.

18.  Fees.  Bank agrees not to charge any fees in connection with the Security Deposit Accounts or its services hereunder.

19.  Headings.  The headings of the Articles, Sections and subsections of this Agreement are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Agreement to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Agreement unless otherwise stated.

20.  Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only shall be held for naught, as though

13

not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect.

21.  UCC Matters.  Pledgors acknowledge and Bank represents that each of the Security Deposit Accounts is a “deposit account” as defined in Section 9-102(29) of the UCC.  In connection therewith:

(a)Bank represents that it is an organization that is engaged in the business of banking and therefore is a “bank” within the meaning of Section 9-102(8) of the UCC.

(b)Except to the extent provided in Section 12 hereof, Bank subordinates any security interest in the Collateral which Bank has or may have to the security interest of Agent in the Collateral.

(c)Subject to the provisions of Sections 3 and 5 hereof, Bank agrees to follow the directions originated by Agent with respect to the Collateral without further consent of any Pledgor.

(d)Bank represents that the Bank’s “jurisdiction” (as determined by the rules set forth in Section 9-304(b) of the UCC) is New York.

22.  Interpretation.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

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

24.  Entire Agreement.  This Agreement and the other Loan Documents embody the entire agreement and understanding between the parties with respect to the Loans and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

[                              ], as Bank
By:
		Name:
		Title:
GMAC COMMERCIAL MORTGAGE
CORPORATION, as Agent
By:
		Name:
		Title:
THE NEW YORK TIMES BUILDING LLC,
as Borrower
By:			FC Lion LLC, member
	By:			FC 41st Street Associates, LLC, its managing member
				By:			RRG 8 South, Inc., its managing member
						By:
								Name:
								Title:
By:			NYT Real Estate Company LLC
			By:
					Name:
					Title:
FC LION LLC, as FC Member
		By:			FC 41st Street Associates, LLC, its managing member

By:	RRG 8 South, Inc., its managing member
	By:
		Name:
		Title:

EXHIBIT A

Payment Instruction Notice

Tenant Name:

Lease Agreement (“Lease”):

Leased Premises:

Please take notice that your landlord under the above-referenced Lease has selected                    (“Bank”) as the financial depository which will hold all security deposits under your Lease and to which such security deposits are to be sent.

You are hereby directed and instructed to send all security deposit payments due to your landlord under your Lease in accordance with the instructions set forth in this letter, notwithstanding any provision of your Lease to the contrary.

All security deposits (other than letters of credit) should be made payable to the account specified below:

Account Name: [The New York Times Building LLC] [FC Lion LLC] Security Deposit Account - GMAC Commercial Mortgage Corporation, as agent and secured party

Account Number: #

Bank has agreed to accept your payments by any of the following means, to the extent permitted by the Lease:

•U.S. Dollar denomination checks mailed to Bank

•U.S. Dollar denomination wire transfers to the landlord’s designated Bank account

•Automated Clearing House (ACH) credits to the landlord’s designated account at Bank

•Letters of Credit

If you elect to make payments by check, Bank will collect upon your check by using a check truncation process. This means that Bank will convert your paper check into an electronic debit which will be presented for payment at your bank the next business day.  Your physical check will not be presented to your bank nor returned to you by your bank with your bank account statement.  Your bank statement, however, will reflect the check number and the amount electronically presented by Bank to your bank, thereby indicating that the check has been presented and paid.

The address for mailing checks and letters of credit to Bank is:

[                  ]

[                  ]

[                  ]

[                  ]

Should you wish to arrange payment by wire transfer or ACH credit, please contact Bank at                                and ask for                                 .

A-1

These payment instructions have been implemented as part of a credit facility provided to your landlord by GMAC Commercial Mortgage Corporation (“GMACCM”).  You are to continue making all payments in accordance with these instructions until you receive further written instructions signed by landlord and GMACCM (or its successor as agent).

Neither GMACCM nor Bank have assumed any obligations of your landlord under the Lease.  Therefore, you should continue to send all communications regarding the Lease or landlord issues in the manner specified in your lease and not to GMACCM or Bank.   Any notices which you send to GMACCM or Bank and not to the parties specified in your lease will not be effective notice to your landlord under the Lease.

Very truly yours,

[Landlord signature]

Dated:

ACKNOWLEDGED BY:

Tenant’s Name:

Authorized Signature:

Name & Title of Person Signing:

A-2

EXHIBIT B

CERTIFICATE OF AUTHORITY
IDENTIFYING AUTHORIZED REPRESENTATIVES

I, the undersigned officer of The New York Times Building LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Security Deposit Accounts Agreement dated                      among The New York Times Building LLC, FC Lion LLC and GMAC Commercial Mortgage Corporation, as agent, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from The New York Times Building LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

C-1

I, the undersigned officer of FC Lion LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Security Deposit Accounts Agreement dated                      among The New York Times Building LLC, FC Lion LLC, GMAC Commercial Mortgage Corporation, as agent, and Bank, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from FC Lion LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

2

Exhibit T

Collection Accounts Agreement

T - 1

COLLECTION ACCOUNTS AND SECURITY AGREEMENT

THIS COLLECTION ACCOUNTS AND SECURITY AGREEMENT, dated as of                    , 200   (this “Agreement”), among [             ], a                                      having an address at                                        (“Bank”), THE NEW YORK TIMES BUILDING LLC, a New York limited liability company (“Borrower”) and FC LION LLC, a New York limited liability company (“FC Member”), each having an address at One MetroTech Center North, Brooklyn, New York 11201 (Borrower and FC Member collectively, the (“Pledgors”) and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation and any successors 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 (such lenders collectively, including any successors and assigns, “Lenders” and each individually, a “Lender”).

W I T N E S S E T H:

WHEREAS, Borrower, New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, are entering into that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of the date hereof (as the same may be revised, restated, amended or modified, the “Loan Agreements”; capitalized terms not otherwise defined herein shall have the respective meanings specified in the Loan Agreements), pursuant to which the Lenders are making the Loans to Borrower; and

WHEREAS, one of the conditions precedent to the obligations of the Lenders under the Loan Agreements is that the Pledgors provide for the payment of Rents into one or more accounts established by Pledgors with Bank which account(s) will be maintained for the benefit of Agent and Lenders.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1.Accounts.  (a) This Agreement applies to the accounts identified below that have been established at Bank by the applicable Pledgor for the benefit of Agent and Lenders:

Description of Accounts	Account Numbers
Account Name: The New York Times Building LLC Collection Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:
Account Name: FC Lion LLC Collection Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:

The accounts identified above shall be collectively referred to herein as the “Collection Accounts”.  No Pledgor shall cancel or cause any of the Collection Accounts to be canceled, nor shall any Pledgor establish any other account with Bank or any other bank, mutual fund, investment banking firm or similar institution into which any Rents (other than security deposits) shall be deposited.

(b)Each Pledgor shall deposit, or cause to be deposited, in the applicable Collection Account, all Rents (other than security deposits) paid to or for the benefit of such Pledgor.  Such Rents shall be made in the lawful currency of the United States of America, and shall be payable to the applicable Collection Account and shall be delivered directly by the payor to Bank.  If either of the Pledgors (or any leasing or managing agent) shall receive any Rents (other than a security deposit), that is not payable in the foregoing manner, such Pledgor(s) shall (and shall cause leasing and managing Agent to) deposit such Rents into the applicable Collection Account by the close of business on the second Business Day following the day on which the same is received by such Pledgor (or leasing or managing agent).  In the absence of instructions from the payor or a Pledgor as to which account any amounts shall be deposited to, Bank shall notify the Pledgors and request such instructions, and in the meantime, Bank may refuse to accept delivery of such amounts until such instructions are received from such payor or Pledgor.

(c)The applicable Pledgor shall provide the notice set forth on Exhibit A attached hereto to each party to a Lease as each Lease is executed (or, if such Lease has previously been executed, then immediately).  The applicable Pledgor shall obtain the acknowledgment of its Tenants to such notice. If the applicable Pledgor fails to provide any such notice or obtain such acknowledgement, or if any Event of Default has occurred and is continuing, Agent shall have the right (and without prejudice to Agent’s rights with respect to such failures or Event of Default ) to direct such parties to remit all Rents, other than security deposits, directly into the applicable Collection Account by issuing a notice as Agent deems appropriate.  Each of the Pledgors hereby grants to Agent a power of attorney to sign and deliver the foregoing notices, which power of attorney shall be deemed coupled with an interest and irrevocable until the Indebtedness has been paid in full, and each Pledgor directs all applicable Tenants (and any successor to the interest of any such Tenant) under the applicable Leases to follow any such instructions given by Agent, notwithstanding any contrary instructions from any Pledgor and without any obligation or right on the Tenant’s part to determine the actual existence

2

of an Event of Default or other event claimed by Agent as the basis for Agent’s right to send such notice.

(d)No modifications or revocations of any notice given by any Pledgor pursuant to clause (c) above are permitted without Agent’s prior written approval, which approval shall not be unreasonably withheld or delayed.  Upon Agent’s request from time to time, each Pledgor will certify in writing that it has sent a notice to all applicable Tenants or otherwise demonstrate to Agent’s satisfaction that notices have been issued to all applicable Tenants.

(e)Upon Agent’s request from time to time, each Pledgor shall provide a written statement to Agent itemizing the amounts deposited in its Collection Account for the period covered by Agent’s request and such supporting documentation as Agent reasonably may require.

(f)Each of the Pledgors represents and warrants that (i) this Agreement creates a valid, first priority security interest in all of its rights in the Collateral (as defined below), (ii) as of the date hereof, except for the security interest created by this Agreement, the Collection Accounts are free from any Lien, or other right, title and interest of any other person or party and (iii) the exact legal name and state of formation of each Pledgor are as set forth on page one hereof.  Except as permitted hereunder, no Pledgor shall sell, transfer, encumber, hypothecate or otherwise dispose of, or grant any option with respect to, the Collateral, or create or permit to exist any Lien upon the Collateral.

(g)The Collection Accounts shall not be evidenced by a certificate of deposit, passbook or other instrument.

(h)Account balances shall accrue interest at a savings account rate (or a money market rate, but only to the extent that the Collection Accounts can remain “deposit accounts” (as defined in the UCC) notwithstanding the giving of a money market rate) for accounts denominated in U.S. dollars and interest shall be credited by Bank to the applicable Collection Account not later than the fifth (5th) Business Day of the month immediately following the month for which accrued interest is being credited.  Interest accruing on each of the Collection Accounts shall be periodically added to the principal amount of the corresponding Collection Account.

(i)Each Pledgor acknowledges and agrees that neither it, nor any other party claiming on behalf of, or through, it, shall have any right, title or interest, whether express or implied, in the Collection Accounts, or to withdraw or make use of any amounts from any Collection Account except to the extent expressly permitted by Section 5 hereof.

2.Pledge of the Collateral.

(a)To secure the full payment of the Indebtedness and the performance of the Obligations, each Pledgor hereby sells, conveys, assigns, transfers and grants a first priority continuing security interest in, pledges and sets over unto

3

Agent, for Agent’s own benefit and the benefit of Lenders, all of its right, title and interest, whether now owned or hereafter acquired or arising,  in and to each Collection Account and all interest, dividends, credits and proceeds relating thereto and all monies, checks and other similar instruments held or deposited therein (collectively, the “Collateral”):

(b)Bank acknowledges that this Agreement constitutes notice of Agent’s security interest in the Collateral and hereby acknowledges and consents thereto.

(c)Pledgors hereby authorize Agent to file UCC financing statements describing the Collateral and evidencing and perfecting the security interest in the Collateral granted to Agent pursuant to this Agreement and to file any other UCC financing statements reasonably necessary or advisable to accomplish the purposes of this Agreement.

3.Control of the Collateral.  If Agent delivers to Bank a Notice of Exclusive Control (as hereinafter defined) and until such time as such Notice of Exclusive Control is rescinded in writing by Agent, Bank will comply with any directions originated by Agent concerning the Collection Accounts and the other Collateral without further consent by any Pledgor.  Agent may exercise any rights and powers under or in connection with this Agreement and the Collateral without further consent of any of the Pledgors.  Subject to the foregoing, Bank shall also comply with entitlement orders or other directions concerning the Collection Accounts and the other Collateral originated by any of the Pledgors or their Authorized Representatives (as defined in Section 5(b) below), until such time as Agent delivers a written notice to Bank (with copies to Pledgors) that Agent is thereby exercising exclusive control over the Collection Accounts and the other Collateral.  Such notice is referred to herein as the “Notice of Exclusive Control”.  After Bank receives a Notice of Exclusive Control (and so long as such Notice of Exclusive Control has not been rescinded in writing by Agent), it will cease complying with entitlement orders or other directions concerning the Collection Accounts and the other Collateral originated by any Pledgor or any of its Authorized Representatives and will comply solely with entitlement orders or other directions concerning the Collection Accounts and the other Collateral originated by Agent.  As between Pledgors and Agent, Agent agrees to give a Notice of Exclusive Control only if a Noticed Default or an Event of Default has occurred and is continuing.

4.Agency.  (a) Agent hereby appoints Bank as Agent’s agent, bailee and pledgee and pledgee-in-possession for the Collateral, and Bank, by its execution and delivery of this Agreement, hereby accepts such appointment and agrees to be bound by the terms of this Agreement.  Each of the Pledgors hereby agrees to such appointment of Bank.

(b)Bank agrees that all cash and other property held in the Collection Accounts shall be segregated from all other cash and property held by Bank and shall be identified as being held in trust pursuant to this Agreement.  Segregation will be accomplished by appropriate identification of the cash or other property held in trust

4

on the books and records of Bank.  Bank agrees not to commingle the amounts held in, or designated for deposit in, the Collection Accounts with any other amounts held on behalf of Agent, Pledgors or any other party.

5.Withdrawals.  (a)  So long as a Notice of Exclusive Control is not in effect, and as between Pledgors and Agent, and without any right, duty or obligation on the part of Bank to verify compliance by Pledgors with this Section 5(a), Pledgors may utilize funds in the Collection Accounts solely for the purposes of (i) paying Project Loan Costs, Building Loan Costs and operating expenses, and any and all costs, expenses, fees, taxes and other amounts from time to time incurred, or to be incurred within the next thirty (30) days thereafter, with respect to the Property or the Project or (ii) paying principal and interest payable with respect to the Loans or Extension Loan, whether or not due and payable; provided, however, that if Substantial Completion has been achieved, and at the time in question the Pro Forma Debt Service Coverage exceeds 1.30:1:00, the applicable Pledgor may withdraw amounts from its respective Collection Account and distribute such amounts to its respective members.  The applicable Pledgor shall provide evidence to Agent, on Agent’s request, of the proper application of such funds.  Upon the delivery of a Notice of Exclusive Control, the rights conferred upon the Pledgors pursuant to this Section shall immediately and automatically terminate without further action being required of Agent, Bank or any Pledgor; provided, however, that if a Notice of Exclusive Control is in effect (and no Event of Default exists), at the request of Borrower, Agent will apply amounts on deposit in the Collection Accounts to cure any Noticed Default or Defaults (to the extent the same can be cured with the payment of money) and to allow Borrower to comply with its obligations under the Loan Documents.

(b)Each Pledgor agrees to designate a limited number of persons who have authority to issue or deliver withdrawal, transfer or disbursement instructions to Bank (each such person, an “Authorized Representative”).  The initial list of Authorized Representatives for each Pledgor and samples of their respective genuine signatures is attached hereto as Exhibit B (“Certificate of Authority”).  Each of the Pledgors may, from time to time, amend its then current list of Authorized Representatives by sending an amendment to, or replacement of, the Certificate of Authority, in each case to be substantially in the form of Exhibit B and signed by a Secretary, Assistant Secretary or other duly authorized officer of the applicable Pledgor.  Bank will be authorized to rely and act upon all instructions given or purported to be given by an Authorized Representative of a Pledgor, provided that (i) in the case of written instructions, such written instructions bear the original signature, facsimile signature or electronic signature of an Authorized Representative which resembles the specimen signature for such Authorized Representative on file with Bank; and (ii) in the case of electronically transmitted instructions, the person providing the instruction uses a security code or other authentication procedure provided by Bank for such Pledgor’s use.  Unless an expiration date is expressly stated in the Certificate of Authority, all authorizations shall continue in full force and effect until canceled or superseded by a subsequent Certificate of Authority received by Bank with reasonable opportunity to act thereon.

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6.Bank’s Obligations with respect to the Collateral.

(a)The parties agree that items deposited in the Collection Accounts shall be deemed to bear the valid and legally binding endorsement of the payee and to comply with all of Bank’s requirements for the supplying of missing endorsements, now or hereafter in effect.  As between Pledgors and Agent, any deposit made by or on behalf of any Pledgor into the applicable Collection Account shall be deemed deposited into such Collection Account when the funds in respect of such deposit shall become collected funds.

(b)Notwithstanding anything to the contrary herein, each of the Pledgors acknowledges that it is responsible for monitoring the sufficiency of funds deposited its respective Collection Account and that each is liable for any deficiency in available funds necessary to cover disbursements and fees to Bank, irrespective of whether it has received any account statement, notice or demand from Agent or Bank. If on any day there are insufficient amounts in the applicable Collection Account necessary to cover disbursements and fees to Bank, the applicable Pledgor shall immediately deposit into the applicable Collection Account, without the need for any notice or demand from Agent or Bank, the amount of such deficiency in immediately available funds.

(c)Availability of cash credited to the applicable Collection Account shall be subject to checks, drafts or other demand instruments having cleared deposit.  If withdrawal instructions for wire transfers are received (i) at or before 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the same Business Day, or (ii) after 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the next Business Day.

7.No Other Assignments.  Bank represents and warrants to Agent that no other notices of control, assignment, grant of security interest or Lien of any kind in respect of the Collateral are reflected in Bank’s records concerning the Collateral.  Bank hereby agrees that any such notice of control, assignment, grant of security interest, or Lien of any kind in respect of the Collateral that it receives, including the notice conferred by this Agreement, will be recorded in Bank’s records concerning the Collateral and Bank will immediately notify Agent upon receipt thereof.  Bank agrees not to allow any person or entity other than Agent and Bank (to the extent permitted in Section 12 below) to withdraw amounts from the Collection Accounts (it being acknowledged, however, that Pledgors have the rights to utilize funds in the Collateral Accounts to the extent provided in Sections 3 and 5 hereof).

8.Actions With Respect to the Collateral Following an Event of Default.

(a)At all times after Bank’s receipt of a Notice of Exclusive Control, and until Bank has received notice from Agent that such Notice of Exclusive

6

Control has been rescinded, Bank shall solely follow the written instructions of Agent as to the Collateral, including amounts from time to time on deposit in the Collection Accounts, without further consent of any of the Pledgors, and Agent shall be irrevocably entitled to exercise any and all rights and remedies in respect of or in connection with the Collateral provided to Agent under the Loan Agreements or any other Security Document or otherwise available in equity or under applicable law, without further consent or instructions from any of the Pledgors.  Each of the Pledgors agrees that Bank may act as the agent of Agent in exercising, as to any funds or other property from time to time consisting of Collateral, any rights of set-off provided by the Loan Agreements or any other Loan Document or otherwise available in equity or under applicable law, without further consent or instructions from any Pledgor.

(b)Upon the occurrence and during the continuance of an Event of Default, Agent may, without notice of any kind, except for notices required by law which may not be waived (in addition to any other rights or remedies under this Agreement, at law or in equity or otherwise, but subject to the provisions of applicable law) retain for its own account or otherwise sell or dispose of all or any portion of the Collateral in one or more public or private sales, and, in each case, apply such proceeds in accordance with the Loan Documents.  In addition to the rights, powers and remedies granted to it under this Agreement and in any other Loan Document, Agent shall have all the rights, powers and remedies available at law or in equity, including, without limitation, the rights and remedies of a secured party under the applicable Uniform Commercial Code.  To the extent permitted by law, each of the Pledgors waives presentment, demand, protest and all notices of any kind and all claims, damages and demands it may acquire against the Agent or any Lender arising out of the exercise by them of any rights hereunder, except for claims, damages or demands arising from the gross negligence or willful misconduct of Agent or any Lender.

(c)Effective during the continuance of an Event of Default, each Pledgor hereby irrevocably constitutes and appoints Agent and any officer or agent of Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of each Pledgor and in the name of each Pledgor or in Agent’s own name, from time to time in Agent’s discretion, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, including, without limitation, any financing statements, endorsements, assignments or other instruments of transfer.

9.Information.  (a)  Bank shall provide to the applicable Pledgor and Agent a periodic statement setting forth all deposits, withdrawals, and account service charges, if any, with respect to each Collection Account.  Such periodic statements will be issued on a monthly or quarterly basis, depending on activity, but not more frequently than once per month.  Any Pledgor or Agent may request more frequent statements in which case Bank may assess such Pledgor for the applicable account service charge.

(b)Each Pledgor acknowledges its duty to promptly examine each periodic statement issued to it by Bank and to use reasonable care to discover any

7

errors or unauthorized transactions charged to, or affecting, the Collection Accounts.  Should such Pledgor fail to send written objections or exceptions to Bank with respect to a periodic statement within sixty (60) days of the date such statement is issued, such Pledgor shall be deemed to have approved such statement, and, as against such Pledgor, such statement shall be presumed to be correct for all purposes with respect to all information set forth therein.  The foregoing shall not be construed to limit, in any respect, Bank’s right to correct any error it discovers with respect to the Collection Accounts or to withdraw from the Collection Accounts cash or other property deposited therein by Bank in error.

10.Certain Matters Affecting the Bank.  Pledgors and Agent agree that:

(a)Bank shall be entitled to rely upon, and shall be protected in acting or refraining from acting upon, any written notice, certificate or other document or communication (including, without limitation, facsimiles thereof) believed by it to be genuine and to have been signed, presented or delivered by the proper party or parties, and Bank may rely on statements contained therein without further inquiry or investigation.  Bank shall have no obligation to review or confirm that actions it is requested to take pursuant to any such notice comply with any agreement or document other than this Agreement.

(b)Bank shall be entitled to rely, and shall be protected in acting or refraining from acting, without independent investigation or any further consent or instructions from any Pledgor, upon any written notice received from Agent to the effect that an Event of Default has occurred or has ceased to exist or that any action requested by Agent to disburse funds from the Collection Accounts or other Collateral or exercise Agent’s set-off rights against the Collateral is permitted under the Loan Agreements, any other Loan Document and/or in equity or under applicable law.

(c)The duties and obligations of Bank shall be determined solely by the express provisions of this Agreement, and, except as expressly set forth herein, Bank will not be charged with knowledge of any provisions of the Loan Agreements or any other Loan Documents.  Bank shall not be liable except for the performance of its duties and obligations as are specifically set forth in this Agreement, except to the extent any claims, losses, damages, expenses or other liabilities are caused by the gross negligence or willful or intentional misconduct of Bank, and no implied covenants or obligations, except those that may be implied by law, shall be read into this Agreement against Bank.  Without limiting the foregoing: Bank shall have no investment responsibility with respect to the cash or other property held in the Collateral except as specifically set forth herein; shall not be accountable for the use or application by any Pledgor or any other identified party of any money paid over by Bank in accordance with this Agreement; and shall have no responsibility for taking any steps to preserve rights against any parties with respect to any property held hereunder.

(d)Bank shall have no liability for any loss occasioned by delay in the actual receipt of notice or other instructions to Bank of any payment,

8

disbursement or any other transaction regarding the Collateral, nor shall Bank be liable for any claims, losses, damages, expenses or other liabilities, other than to the extent the same may be caused by the gross negligence or willful or intentional misconduct of Bank.  Under no circumstance whatsoever will Bank be liable for any lost profits or for any incidental, special, consequential or punitive damages whether or not Bank knew of the possibility or likelihood of such damages and regardless of the form of action in which any such loss or damage may be claimed.  Bank’s substantial compliance with its standard procedures for provision of the services required under this Agreement shall be deemed to constitute its exercise of reasonable care.

(e)If any Pledgor becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, or if Bank is otherwise served with legal process which Bank in good faith believes affects the Collateral, or if at any time Bank receives conflicting instructions with respect to any action it is requested to take under this Agreement, Bank shall have the right to place a hold on funds deposited in the Collection Accounts until such time as Bank receives an appropriate court order or other assurances satisfactory to Bank establishing that the funds may continue to be disbursed according to the instructions contained in this Agreement.

11.Irrevocable Agreement.  Pledgors acknowledge that the agreements made by it and the conveyances and authorizations made and granted by it herein are irrevocable and that the conveyances and authorizations made and granted herein constitute powers coupled with an interest.

12.Waiver of Set-off Rights by Bank.  Bank hereby waives, with respect to all existing and future claims it may have against Pledgors, all rights of set-off and banker’s liens which it may now or hereafter have against the Collateral and all items (and proceeds thereof) that come into the possession of Bank in connection with the Collateral, except, without further consent from Pledgors or Agent, to the extent Bank is unable to obtain payment from Pledgors and to the extent permitted by applicable law, rights of set-off and banker’s liens arising in connection with (i) items deposited in the Collection Accounts that are subsequently returned to Bank unpaid for insufficient funds or if such amount is otherwise uncollectible by Bank, including without limitation by any “stop payment order” having been applied to such item, (ii) any fees due to Bank or charges incurred by Bank in connection with its deposit or collection attempts (provided such amounts are not in excess of the fees or charges Bank regularly and customarily charges its customers with respect thereto), (iii) the amount represented by such uncollectible item if such item has actually been paid by Bank to Pledgors prior to Bank’s collection thereof, (iv) unpaid fees and expenses with respect to the Collateral that are charged to any of the Pledgors by Bank in the normal course of business for the Collateral and (v) any funds or items deposited in the Collection Accounts in error or as necessary to correct processing errors (and Bank shall have the right to withdraw from the Collection Accounts funds or other items deposited in error without further consent from Pledgors or Agent).

13.Miscellaneous.  This Agreement shall supersede any other agreement (to the extent conflicting herewith) relating to the matters referred to herein,

9

including any other account agreement between either Pledgor and Bank.  This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of either Pledgor appointed or elected in any action under the United States Bankruptcy Code) and shall inure to their benefit.  This Agreement may not be changed, amended, modified or waived orally, but only by an instrument in writing signed by each of the parties hereto, provided that such instrument need by signed only by Bank and Agent if it does not change any rights or obligations of Pledgors hereunder.  This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of New York applicable to contracts made and performed solely within such State, except with regard to payment of checks and other items and other issues relating to the operations of the Collection Accounts or any other account to which funds from the Collection Accounts are transferred, which issues shall be interpreted and enforced according to the laws of the state where the Collection Accounts or such other account are located.  This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument.  Pledgors may not assign this Agreement without the prior approval of Agent.  Agent may assign this Agreement in conformance with Section 11.05 of the Loan Agreements.  Bank may assign this Agreement with the prior approval of Agent, and notice thereof shall be given to Pledgors.

14.Taxes.  Each Pledgor shall deliver promptly to Bank a duly completed and executed copy of the proper United States Internal Revenue Service (a) Form W-9 or (b) if a Pledgor is not a United States citizen, Form 1001, Form 4224, Form W-8 or Form 8709 (as applicable), certifying such Pledgor’s status as a beneficial owner of its Collection Account (within the meaning of Section 1.1441-1(c)(6) of the Treasury Regulations of the United States Internal Revenue Tax Code).  Each of the Pledgors further agrees to provide duly executed and completed updates of such forms (or applicable successor forms) promptly (but in any event no later than 10 Business Days) upon Bank’s request therefor, if Bank notifies such Pledgor that existing forms have expired or become obsolete.  Each Pledgor shall, on its own initiative, shall promptly provide (but in any event no later than 10 Business Days) duly executed and completed updates of such forms upon the occurrence of any event in respect of such Pledgor requiring a change in the most recent form previously delivered by such Pledgor to Bank.  Each Pledgor shall be responsible for the payment of all taxes relating to the assets in its Collection Account (other than taxes with respect to investment earnings retained by Bank in accordance with this Agreement).

15.Termination.  Pledgors may not terminate this Agreement for any reason without Agent’s prior written consent; provided, however, that Pledgors may terminate this Agreement for the purpose of using a different depository bank if (i) Agent approves such replacement depository bank, such approval not to be unreasonably withheld or delayed and (ii) such replacement depository bank shall enter into an agreement with Pledgors and Agent substantially similar to this Agreement.  This Agreement shall remain in full force and effect until such time as (a) Agent shall deliver written notice to Bank as to the full and final payment of all Indebtedness under the Loan Documents and the termination of the Loan Documents, (b) Agent shall deliver written notice of termination to Pledgors and Bank at any time for any reason, (c) Bank shall

10

deliver written notice of termination to Pledgors and Agent not less than thirty (30) days prior to the effective termination date or (d) Borrower shall have replaced Bank with a replacement depository bank in accordance with the immediately foregoing sentence.  If Bank so terminates this Agreement or if Agent so terminates this Agreement but requires that Collection Accounts with a different depository be established, Agent and Pledgors shall jointly select a new depository to replace Bank, and thereupon Agent and the Pledgors shall enter into a new arrangement with such depository substantially similar to this Agreement.  Bank hereby agrees that it shall promptly take all reasonable action necessary to facilitate the transfer of any funds held in the Collection Accounts and items received to any replacement depository.  All rights of Bank under Sections 10 and 12 hereof for the period prior to any such termination shall survive such termination.

16.Further Assurances.  Each Pledgor hereby covenants and agrees that it shall (i) perform such acts and execute, acknowledge and deliver, from time to time, such financing statements and other instruments as may be reasonably required by Agent to perfect or better assure this Agreement and the security interests created hereby, and file or record the same in the public records specified by Agent and (ii) upon request of Agent, execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable in Agent’s reasonable opinion to protect any security interest granted or purported to be granted hereby, to enable Agent to exercise and enforce its rights and remedies hereunder with respect to the Collection Accounts and the proceeds thereof or to effectuate the purpose and intent of this Agreement, provided that the same do not increase such Pledgor’s liabilities, or decrease such Pledgor’s rights, under the Loan Documents (other than, in each case, to a de minimis extent).

17.Notices.  (i) Any request, notice, report, demand, approval or other communication permitted or required by this Agreement to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

Agent:

GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Attention:  Vacys R. Garbonkus
Telecopier:  (312) 917-6131

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with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention:  Harris B. Freidus, Esq.
Telecopier:  (212) 492-0064

Borrower:

The New York Times Building LLC
c/o FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

and

The New York Times Company
229 West 43rd Street
New York, New York 10036

Attention:Anthony Benten, David Thurm and
Kenneth A. Richieri, Esq.

Telecopier:(212) 556-1646 (Mr. Benten) and
(212) 556-4634 (Mr. Thurm and Mr. Richieri)

FC Member:

FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

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If to Bank:

[                                                     ]
[                                                     ]
[                                                     ]
[                                                     ]

(b)Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without the prior consent of Agent, none of the Pledgors may add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address when no notice of changed address was given shall be deemed to be receipt of any such notice.

(c)Unless notified to the contrary pursuant to this Section 17, any notice or communication made to any Lender shall be made only to Agent and its counsel as provided in this Section.

18.Fees.  Bank agrees not to charge any fees in connection with the Collection Accounts or its services hereunder.

19.Headings.  The headings of the Articles, Sections and subsections of this Agreement are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Agreement to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Agreement unless otherwise stated.

20.Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect.

21.UCC Matters.  Pledgors acknowledge and Bank represents that each of the Collection Accounts is a “deposit account” as defined in Section 9-102(29) of the UCC.  In connection therewith:

(a)Bank represents that it is an organization that is engaged in the business of banking and therefore is a “bank” within the meaning of Section 9-102(8) of the UCC.

13

(b)Except to the extent provided in Section 12 hereof, Bank subordinates any security interest in the Collateral which Bank has or may have to the security interest of Agent in the Collateral.

(c)Subject to the provisions of Sections 3 and 5 hereof, Bank agrees to follow the directions originated by Agent with respect to the Collateral without further consent of any Pledgor.

(d)Bank represents that the Bank’s “jurisdiction” (as determined by the rules set forth in Section 9-304(b) of the UCC) is New York.

22.Interpretation.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

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

24.Entire Agreement.  This Agreement and the other Loan Documents embody the entire agreement and understanding between the parties with respect to the Loans and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

[                             ], as Bank
By:
		Name:
		Title:
GMAC COMMERCIAL MORTGAGE
CORPORATION, as Agent
By:
		Name:
		Title:
THE NEW YORK TIMES BUILDING LLC,
	as Borrower
By:			FC Lion LLC, member
	By:			FC 41st Street Associates, LLC, its managing member
				By:			RRG 8 South, Inc., its managing member
						By:
								Name:
								Title:
By:	NYT Real Estate Company LLC
	By:
				Name:
				Title:
FC LION LLC, as FC Member
	By:				FC 41st Street Associates, LLC, its managing member

By:		RRG 8 South, Inc., its managing member
	By:
			Name:
			Title:

EXHIBIT A

Payment Instruction Notice

Tenant Name:

Lease Agreement (“Lease”):

Leased Premises:

Please take notice that your landlord under the above-referenced Lease has selected                      (“Bank”) as the financial depository to which all payments of rent under your Lease are to be sent.

You are hereby directed and instructed to send all rent payments due to your landlord under your Lease (including, without limitation, base rent and amounts due for operating or common area expenses) in accordance with the instructions set forth in this letter, notwithstanding any provision of your Lease to the contrary.

All payments under or with respect to your Lease, other than security deposits, should be made payable to and sent to:

Account Name: [The New York Times Building LLC] [FC Lion LLC] Collection Account - GMAC Commercial Mortgage Corporation, as agent and secured party

Account Number: #

Bank has agreed to accept your payments by any of the following means:

•U.S. Dollar denomination checks mailed to Bank

•U.S. Dollar denomination wire transfers to the landlord’s designated Bank account

•Automated Clearing House (ACH) credits to the landlord’s designated account at Bank

If you elect to make payments by check, Bank will collect upon your check by using a check truncation process. This means that Bank will convert your paper check into an electronic debit which will be presented for payment at your bank the next business day.  Your physical check will not be presented to your bank nor returned to you by your bank with your bank account statement.  Your bank statement, however, will reflect the check number and the amount electronically presented by Bank to your bank, thereby indicating that the check has been presented and paid.

The address for mailing checks to Bank is:

[                 ]

[                 ]

[                 ]

[                 ]

Should you wish to arrange payment by wire transfer or ACH credit, please contact Bank at                                and ask for                                 .

A-1

These payment instructions have been implemented as part of a credit facility provided to your landlord by GMAC Commercial Mortgage Corporation (“GMACCM”).  You are to continue making all payments in accordance with these instructions until you receive further written instructions signed by landlord and GMACCM (or its successor as agent).

Neither GMACCM nor Bank have assumed any obligations of your landlord under the Lease.  Therefore, you should continue to send all communications regarding the Lease or landlord issues in the manner specified in your lease and not to GMACCM or Bank.   Any notices which you send to GMACCM or Bank and not to the parties specified in your lease will not be effective notice to your landlord under the Lease.

Very truly yours,

[Landlord signature]

Dated:

ACKNOWLEDGED BY:

Tenant’s Name:

Authorized Signature:

Name & Title of Person Signing:

A-2

EXHIBIT B

CERTIFICATE OF AUTHORITY
IDENTIFYING AUTHORIZED REPRESENTATIVES

I, the undersigned officer of The New York Times Building LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Collection Accounts and Security Agreement dated                      among The New York Times Building LLC, FC Lion LLC and GMAC Commercial Mortgage Corporation, as agent, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from The New York Times Building LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

C-1

I, the undersigned officer of FC Lion LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Collection Accounts and Security Agreement dated                      among The New York Times Building LLC, FC Lion LLC, GMAC Commercial Mortgage Corporation, as agent, and Bank, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from FC Lion LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

2

Schedule 1

Initial Required Equity Funds Previously Contributed

$207,046,237

S1-1

Schedule 2

Initial Advance Interest Rate Cap

Period	Rate
Months 1-6	3.30	%
Months 7-12	3.80	%
Months 13-18	4.60	%
Months 19-24	5.75	%
Months 25-30	8.00	%
Months 31-36	8.25	%
Months 37-42	9.00	%
Months 43-48	9.50	%

Future Advance Interest Rate Cap

Period	Trigger Rate		Rate
Months 1-6	3.05	%	3.30	%
Months 7-12	3.55	%	3.80	%
Months 13-18	4.35	%	4.60	%
Months 19-24	5.50	%	5.75	%
Months 25-30	7.75	%	8.00	%
Months 31-36	8.00	%	8.25	%
Months 37-42	8.75	%	9.00	%
Months 43-48	9.25	%	9.50	%

S2-1

Schedule 3

Availability of Utilities

None.

S3-1

Schedule 4

Governmental Approvals and Third Party Approvals

None.

S4-1

Schedule 5

Leases

None.

S5-1

EX-10.4

Exhibit 10.4

PROJECT LOAN AGREEMENT

By and Among

THE NEW YORK TIMES BUILDING LLC
having an address at
One MetroTech Center North
Brooklyn, New York  11201

(Borrower)

NEW YORK STATE URBAN DEVELOPMENT CORPORATION
d/b/a EMPIRE STATE DEVELOPMENT CORPORATION
having an address at
633 Third Avenue
New York, New York  10017
as initial agent
(Initial Agent)

and

GMAC COMMERCIAL MORTGAGE CORPORATION
having an address at
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606,
as agent
(Agent)

Dated as of June 25, 2004

Amount: $149,470,521

Property Location:	Eighth Avenue between 40th and 41st Street, New York, New York
Lots:	1, 5, 8, 14, 53 , 59, 61, 62, 63 and part of 15
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.

TABLE OF CONTENTS

ARTICLE 1 TERMS AND DEFINITIONS
ARTICLE 2 PROJECT LOAN DOCUMENTS
SECTION 2.01	Project Loan Notes
SECTION 2.02	Project Loan Mortgage
SECTION 2.03	Construction Loan Disbursement Agreement
SECTION 2.04	Assignments of Contracts
SECTION 2.05	Assignment of Leases
SECTION 2.06	Guaranties
SECTION 2.07	Fee Side Letter
SECTION 2.08	Disclosure Side Letter
ARTICLE 3 AGREEMENT TO LEND AND PAYMENT OF PROJECT LOAN
SECTION 3.01	Advances
SECTION 3.02	Cost Overruns
SECTION 3.03	Contingency Reserves
SECTION 3.04	Stored Materials
SECTION 3.05	Amount of Each Advance
SECTION 3.06	Insufficiency of Loan Proceeds
SECTION 3.07	Quality of Work
SECTION 3.08	Initial Required Equity Funds; Net Proceeds; Net Award or Proceeds
SECTION 3.09	Payment of Indebtedness
SECTION 3.10	Payment of Interest
SECTION 3.11	Late Charge
SECTION 3.12	Prepayment
SECTION 3.13	Increased Costs
SECTION 3.14	Illegality and Inability to Determine
SECTION 3.15	Payments and Computations
SECTION 3.16	Net Payment; Taxes
SECTION 3.17	Distribution to Lenders
SECTION 3.18	Balloon Payment
SECTION 3.19	Extensions
SECTION 3.20	Reallocations
ARTICLE 4 CONDITIONS PRECEDENT TO PROJECT LOAN CLOSING AND DISBURSEMENT OF LOAN PROCEEDS
SECTION 4.01	Conditions of Project Loan Closing
SECTION 4.02	Conditions of Advances
SECTION 4.03	Conditions of Final Construction Advance
SECTION 4.04	Contributions of Initial Required Equity Funds
SECTION 4.05	Interest Advances

i

ARTICLE 5 METHOD OF DISBURSEMENT OF LOAN PROCEEDS
SECTION 5.01	Administration
SECTION 5.02	Procedure for Advances
SECTION 5.03	Funds Advanced; Capitalized Interest
SECTION 5.04	Advances Do Not Constitute a Waiver
SECTION 5.05	[INTENTIONALLY OMITTED]
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 6.01	Validity of Project Loan Documents
SECTION 6.02	Title
SECTION 6.03	Absence of Conflicts
SECTION 6.04	Pending Litigation
SECTION 6.05	Legal Requirements
SECTION 6.06	Compliance with All Legal Requirements
SECTION 6.07	Organization Status and Authority
SECTION 6.08	Availability of Utilities
SECTION 6.09	Condition of Property
SECTION 6.10	Accuracy of Documents
SECTION 6.11	Encroachments
SECTION 6.12	Brokerage Commissions
SECTION 6.13	Financial Statements and Other Information
SECTION 6.14	Tax Returns
SECTION 6.15	Material Contracts
SECTION 6.16	Guaranteed Maximum Price Contract
SECTION 6.17	Access
SECTION 6.18	No Default
SECTION 6.19	Architect’s Contract
SECTION 6.20	Plans and Specifications
SECTION 6.21	Budgets
SECTION 6.22	Feasibility
SECTION 6.23	[INTENTIONALLY OMITTED].
SECTION 6.24	Governmental Approvals and Third Party Approvals
SECTION 6.25	No Liens
SECTION 6.26	Separate Tax Lot(s)
SECTION 6.27	Margin Stock
SECTION 6.28	Foreign Person
SECTION 6.29	ERISA
SECTION 6.30	Employees
SECTION 6.31	Flood Zone
SECTION 6.32	Investment Company Act
SECTION 6.33	Assessments
SECTION 6.34	Property Taxes and Other Charges

ii

SECTION 6.35	No Bankruptcy Filing
SECTION 6.36	Filing and Recording Taxes
SECTION 6.37	Fraudulent Transfer
SECTION 6.38	Insurance Compliance
SECTION 6.39	Name; Taxpayer Identification Number
SECTION 6.40	Leases
SECTION 6.41	Interest Rate Protection Agreements
SECTION 6.42	Prior Construction
SECTION 6.43	Equity Contribution
SECTION 6.44	Borrower LCs
ARTICLE 7 COVENANTS OF BORROWER
SECTION 7.01	Guaranteed Maximum Price Contract; GMP Guaranty
SECTION 7.02	Architect’s Contract
SECTION 7.03	Insurance
SECTION 7.04	Application of Funds
SECTION 7.05	Property Taxes
SECTION 7.06	Reimbursable Costs, Transaction Costs and Other Fees and Costs
SECTION 7.07	Completion of Construction
SECTION 7.08	Right of Agent to Inspect Property; Publicity
SECTION 7.09	Construction Consultant
SECTION 7.10	Correction of Defects
SECTION 7.11	Plans and Specifications; Approval of Change Orders; Cost Savings
SECTION 7.12	Appraisal
SECTION 7.13	Material Contracts; Approval of Activities
SECTION 7.14	Leases
SECTION 7.15	Books and Records
SECTION 7.16	Financial Statements and Other Information
SECTION 7.17	Compliance with Legal Requirements
SECTION 7.18	Title
SECTION 7.19	Maintain Existence
SECTION 7.20	Interest Rate Caps
SECTION 7.21	Further Assurance
SECTION 7.22	Budgets, Etc.
SECTION 7.23	Zoning, Easements and Restrictions; Use; Alterations
SECTION 7.24	Laborers, Subcontractors and Materialmen
SECTION 7.25	[INTENTIONALLY OMITTED]
SECTION 7.26	Comply with Other Project Loan Documents
SECTION 7.27	[INTENTIONALLY OMITTED]
SECTION 7.28	Illegal Activities

iii

SECTION 7.29	Indemnification
SECTION 7.30	Condominium
SECTION 7.31	Developer
SECTION 7.32	No Transfers or Encumbrances
SECTION 7.33	No Distributions
SECTION 7.34	Estoppels
SECTION 7.35	Extension Loan Documents
SECTION 7.36	Single Purpose Entity
SECTION 7.37	Labor Harmony
SECTION 7.38	Required Notices
SECTION 7.39	Protection Against Liens
SECTION 7.40	Concrete, Soil and Other Tests
SECTION 7.41	ERISA
SECTION 7.42	Name; Chief Executive Office
SECTION 7.43	No Joint Assessment
SECTION 7.44	Permitted Affiliate Contracts
SECTION 7.45	Payment and Performance Bonds
SECTION 7.46	NYTC Units Release Provisions
SECTION 7.47	Security Personnel
SECTION 7.48	[INTENTIONALLY OMITTED].
SECTION 7.49	Compliance with Condominium Documents
SECTION 7.50	Redemption of FC Units
SECTION 7.51	Title Insurance Proceeds
SECTION 7.52	No Indebtedness
SECTION 7.53	Equity Contribution
SECTION 7.54	Borrower LCs
SECTION 7.55	Additional Covenants Relating to Ground Lease
SECTION 7.56	Deliveries
SECTION 7.57	Pledged Accounts
ARTICLE 8 THE AGENT
SECTION 8.01	Actions
SECTION 8.02	Non-Liability of Agent and Lenders
SECTION 8.03	Authorization and Action
SECTION 8.04	Agent’s Reliance, Etc
SECTION 8.05	Payments to Lenders
SECTION 8.06	Construction Consultant
SECTION 8.07	Actions of Agent Binding Upon Lenders
SECTION 8.08	Initial Agent
ARTICLE 9 EVENTS OF DEFAULT
SECTION 9.01	Events of Default

iv

ARTICLE 10 RIGHTS AND REMEDIES OF LENDERS
SECTION 10.01	Remedies
SECTION 10.02	Power of Attorney
SECTION 10.03	Remedies Cumulative
SECTION 10.04	Annulment of Defaults
SECTION 10.05	Waivers
SECTION 10.06	Course of Dealing, Etc.
SECTION 10.07	Bankruptcy
ARTICLE 11 GENERAL CONDITIONS
SECTION 11.01	Rights of Third Parties
SECTION 11.02	Relationship
SECTION 11.03	Evidence of Satisfaction of Conditions; Approval Standard
SECTION 11.04	Notices
SECTION 11.05	Assignment
SECTION 11.06	Successors and Assigns Included in Parties
SECTION 11.07	Headings
SECTION 11.08	Invalid Provisions to Affect No Others
SECTION 11.09	Interpretation
SECTION 11.10	Computation of Time Periods
SECTION 11.11	Governing Law
SECTION 11.12	Consent to Jurisdiction
SECTION 11.13	Amendments
SECTION 11.14	Counterparts
SECTION 11.15	Entire Agreement
SECTION 11.16	Recourse
SECTION 11.17	Statute of Limitations
SECTION 11.18	Remedies of Borrower Entities
SECTION 11.19	Time of the Essence
SECTION 11.20	Survival
SECTION 11.21	Usury
SECTION 11.22	Successive Actions
SECTION 11.23	Confidentiality
SECTION 11.24	Reinstatement of Obligations
SECTION 11.25	Facsimile Signatures

v

EXHIBITS AND SCHEDULES
Exhibit A	The Land
Exhibit B	Permitted Exceptions
Exhibit C	Certificate of Non-Bank Status
Exhibit D	Form of Condominium Subordination Agreement
Exhibit E	Draw Request
Exhibit F	Description of Improvements
Exhibit G	Intentionally Omitted
Exhibit H	Form of Non-Disturbance Agreement
Exhibit I	Architect’s Certificate
Exhibit J	General Contractor’s Certificate
Exhibit K	Form of Estoppel Certificate
Exhibit L	Intentionally Omitted
Exhibit M	Form of Assignment of Interest Rate Cap
Exhibit N	Condominium Title Endorsement
Exhibit O	Title Company Assurance Letter
Exhibit P	Conditional Assignment of Declarant’s Rights
Exhibit Q	Conditional Resignation of Managers
Exhibit R	Form of Extension Loan Intercreditor Agreement
Exhibit S	Form of Security Deposit Accounts Agreement
Exhibit T	Form of Collection Accounts Agreement
Schedule 1	Required Equity Funds Allocation Schedule
Schedule 2	Interest Rate Cap Schedules
Schedule 3	Availability of Utilities
Schedule 4	Governmental Approvals and Third Party Approvals
Schedule 5	Leases

vi

PROJECT LOAN AGREEMENT

THIS PROJECT LOAN AGREEMENT (as the same may be revised, restated, amended or modified from time to time, this “Agreement”) is made and entered into as of this 25th day of June, 2004 by and among THE NEW YORK TIMES BUILDING LLC (including any successors and assigns permitted in accordance with the terms hereof, “Borrower”), a New York limited liability company, with an address at One MetroTech Center North, Brooklyn, New York 11201, NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an address at 633 Third Avenue, New York, New York 10017, as initial agent (“Initial Agent”) for itself and for the benefit of the lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders” and each individually a “Lender”) and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation, with an office at 100 South Wacker Drive, Suite 400, Chicago, Illinois 60606 or any successor thereto, as agent (including as successor to Initial Agent) (including any of its successors and assigns as agent, “Agent”) for itself and on behalf of Lenders.

W I T N E S S E T H:

In consideration of the mutual covenants and agreements hereinafter set forth, each Lender severally agrees to lend its ratable (as hereinafter defined) share of the Project Loan (as hereinafter defined), and Borrower agrees to accept the Project Loan in accordance with and subject to the terms and conditions hereinafter set forth.

ARTICLE 1

TERMS AND DEFINITIONS

In addition to the other terms hereinafter defined, the following terms shall have the meanings set forth in this Article.  References to documents, exhibits, schedules and other materials shall include those documents, exhibits, schedules and materials as they may be revised, restated, amended, replaced and modified from time to time in accordance with the terms of this Agreement or the other Project Loan Documents.

“Acceleration Date” means a date (other than the Maturity Date) on which the entire principal amount of the Project Loan and all accrued and unpaid interest thereon shall be paid or be required to be paid in full, whether by prepayment, acceleration or otherwise in accordance with the terms of this Agreement or any of the other Project Loan Documents or by operation of law.

“Acceptable Developer” means a Person whose principals have developed or built (either for such Person, any Affiliate thereof or any other Person), in the aggregate and without including the Project at least 5,000,000 rentable square feet of space, of which at least 2,000,000 rentable square feet was “Class A” high-rise office

space in New York City.  From and after the date that Substantial Completion has been achieved, the reference in the preceding sentence to “developed or built” shall be deemed to be a reference to “operated and leased.”

“Acceptable Rating” means a long-term debt rating of not less than BBB+ (without a negative outlook) by S&P.

“Additional Interest Line Items” has the meaning given to such term in Section 7.11 hereof.

“Administration Fee” has the meaning given to such term in the Side Letter re:  Fees.

“Advance” or “Advances” means any disbursement of the proceeds of the Project Loan by Lenders pursuant to the terms of this Agreement and any other amounts that constitute an Advance in accordance with Section 3.05(e) hereof.

“Affiliate” means, as to any Person, any other Person which directly or indirectly Controls, is Under Common Control With, or is Controlled by, such Person and, if such Person is an individual, any Immediate Family Members of such individual, any trust whose principal beneficiary is such individual or one or more Immediate Family Members of such individual, and any Person who is controlled directly or indirectly by any such Immediate Family Member or trust.

“Agent” has the meaning given to such term in the opening paragraph of this Agreement.

“Agent Decisions” has the meaning given to such term in Section 8.03(a) hereof.

“Agent’s Register” has the meaning given to such term in Section 11.05(a) hereof.

“Appraisal” shall have the meaning set forth in Section 4.01(m) hereof.

“Appraised Value” means the fair-market value, assuming stabilization has been achieved, of the FC Units or the Mortgaged Property, as applicable, as set forth in the Appraisal, any update thereto or any new appraisal thereof.

“Approved Lease”means an executed Permitted Lease which is in full force and effect as of the relevant date and under which no material default, default of which notice has been given, or event of default by either party exists as of the relevant date.

“Architect’s Certificate” has the meaning given to such term in Section 4.01(i)(12) hereof.

2

“Architect’s Contract” means that certain Contract for Architectural Services, dated as of October 3, 2001 among FC 41st Street Associates, LLC (“FC 41st Street”), NYTC Member, Fox & Fowle Architects, PC (“Lead Architect”) and Renzo Piano Building Workshops, S.E.L.A.F.A., as deemed to have been assigned by FC 41st Street and NYTC Member to Borrower pursuant to Section 14.3 thereof.

“Assignment” has the meaning given to such term in Section 11.05(a) hereof.

“Assignment and Acceptance Agreement”has the meaning given to such term in Section 11.05(a) hereof.

“Assignment of Contracts - Borrower” has the meaning given to such term in Section 2.04(a) hereof.

“Assignment of Contracts - FC” has the meaning given to such term in Section 2.04(b) hereof.

“Assignment of Contracts - NYTC” has the meaning given to such term in Section 2.04(c) hereof.

“Assignment of Interest Rate Cap” has the meaning given to such term in Section 4.02(e)(7) hereof.

“Assignments of Contracts” means, collectively, the Assignment of Contracts - Borrower, the Assignment of Contracts - FC and the Assignment of Contracts - NYTC.

“Bankruptcy Assignee” has the meaning given to such term in Section 9.01(g)(i) hereof.

“Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time.

“Bankruptcy Law” has the meaning given to such term in Section 9.01(g)(i) hereof.

“Base Rate” means a fluctuating interest rate per annum in effect from time to time as announced in The Wall Street Journal as the “prime rate.”  In the event that (i) more than one such “prime rate” is published, the average of such rates shall apply or (ii) no such “prime rate” is published, then the Base Rate shall be determined from such comparable financial reporting company as Agent shall reasonably determine.

“Borrower” has the meaning given to such term in the opening paragraph of this Agreement.

“Borrower Entities” means Borrower, the Members, FC Guarantor and NYTC Guarantor, collectively.

3

“Borrower LC Deposit” has the meaning given to such term in Section 7.54 hereof.

“Borrower LCs” means the letters of credit posted from time to time by Borrower or any of its direct or indirect members in connection with the Land Acquisition Agreement, as the same may be increased or decreased in accordance with the Land Acquisition Agreement.

“Borrower’s Architects” means the architects under the Architect’s Contract and any successor or assign thereof approved in accordance with Section 7.13 hereof.

“Borrower’s Bank” means a bank selected by Borrower and approved by Agent, such approval not to be unreasonably withheld.

“Breakage Costs” has the meaning given to such term in Section 3.12(a) hereof.

“Breakeven Leasing” means a Pro Forma Debt Service Coverage Ratio equal or greater than 1.00:1.00, provided that for purposes of calculating Pro Forma Debt Service for purposes of this definition, (x) subclause (a) of clause (z) of the definition of Pro Forma Debt Service shall always be used and (y) all references in the definitions of Pro Forma Operating Expenses and Pro Forma Operating Income to the Mortgaged Property shall be deemed to be references to the Mortgaged Property other than the NYTC Units.

“Brokerage Commissions” has the meaning given to such term in Section 6.12 hereof.

“Budget” means either the FC Units Budget or the NYTC Units Budget, each of which has been approved by Agent in the Disclosure Side Letter and “Budgets”means both of the foregoing Budgets, collectively, as any of the same may be adjusted in accordance with this Agreement.  The Budgets contain both Building Loan Costs and Project Loan Costs.

“Building Loan” means the loan which is the subject of the Building Loan Agreement.

“Building Loan Agreement” means that certain Building Loan Agreement dated as of even date herewith by and among Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.

“Building Loan Amount” means $170,529,479.

“Building Loan Assignment of Leases” has the meaning given to such term in the Building Loan Agreement.

4

“Building Loan Costs” means, without duplication, (i) all costs and expenses of (a) achieving Final Completion of the Project and Stabilized Occupancy, (b) satisfying the obligations of the Borrower Entities to Agent and Lenders under the Loan Documents, (c) the payment of interest on the Equity Contribution, to the extent the Extension Loan is made, and the payment of interest on the Extension Loan, and (d) Assignments of the Loans (to the extent Borrower is liable therefor pursuant to Section 7.06 of the Building Loan Agreement) and (ii) all other actual or anticipated non-construction costs payable through the maturity of the Building Loan and necessary to achieve Final Completion of the Project and Stabilized Occupancy (including, without limitation, from and after the date, if any, that either option described in Section 3.19(a) of the Building Loan Agreement is exercised, that portion of the Extension Fee relating to such option attributable to the Building Loan), but only to the extent, in each of the foregoing clauses (i) and (ii), such costs and expenses are Costs of the Improvement.

“Building Loan Documents” has the meaning given to such term in the Building Loan Agreement.

“Building Loan Indebtedness” means, “Indebtedness” as defined in the Building Loan Mortgage.

“Building Loan Mortgage” has the meaning given to such term in the Building Loan Agreement.

“Building Loan Notes” has the meaning given to such term in the Building Loan Agreement.

“Building Loan Obligations” means “Obligations” as defined in the Building Loan Mortgage.

“Business Day” means a day other than (i) Saturday, (ii) Sunday, or (iii) a day on which commercial banks in the State of New York are authorized or required by law to close.

“Certificate of Non-Bank Status” means a certificate substantially in the form of Exhibit C attached hereto.

“Change in Control” shall mean the occurrence of any one of the following events, voluntarily or involuntarily, singly or in conjunction with another event, and whether in one or more transactions: (a) with respect to a Person which is a corporation, (i) a single Person (or a group of Persons acting in concert) directly or indirectly becomes the legal or beneficial owner of 50% or more of the voting stock of such corporation, (ii) a single Person (or a group of Persons acting in concert) through a merger, consolidation or otherwise, directly or indirectly acquires the power to direct (or cause the direction of) or approve the management or policies of such corporation or (iii) unless the common stock of such corporation is publicly traded on a recognized exchange, a majority of the members of the board of directors of such corporation are no longer members of the board of directors of such corporation; (b) with respect to a Person

5

which is a general or limited partnership or a limited liability company, (i) the change, removal or resignation of a general partner, manager or managing member, or joint venturer (other than a joint venturer which is solely a limited partner or a non-managing member) or the transfer or pledge of all or any portion of the direct or indirect ownership or economic interest of any general partner, manager or managing member, or joint venturer (other than a joint venturer which is solely a limited partner or a non-managing member), (ii) a single Person (or a group of Persons acting in concert) directly or indirectly becomes the legal or beneficial owner of 50% or more of the equity interests in such partnership or limited liability company, as the case may be, or a general partner, manager or managing member, or joint venturer thereof which is a general partner, manager or managing member, or (iii) a single Person (or a group of Persons acting in concert) through a merger, consolidation or otherwise, directly or indirectly acquires the power to direct (or cause the direction of) or approve the management or policies of such partnership or company; (c) with respect to any other type of Person, (i) a single Person (or a group of Persons acting in concert) directly or indirectly becomes the legal or beneficial owner of 50% or more of the equity interests in such Person or (ii) a single Person (or a group of Persons acting in concert) directly or indirectly acquires the power to direct (or cause the direction of) or approve the management or policies of such Person; or (d) with respect to any Person, any transfer of legal or beneficial ownership of 50% or more of the direct or indirect equity interests in such Person.

“Change Order” has the meaning given to such term in Section 7.11 hereof.

“Claim” has the meaning given to such term in Section 7.29(a) hereof.

“Closing Date” means the date upon which this Agreement is executed and delivered by Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“Collection Accounts” has the meaning given to such term in the Collection Accounts Agreement.

“Collection Accounts Agreement” has the meaning given to such term in Section 7.57 hereof.

“Commitment Letter” means that certain letter issued by Agent dated May 7, 2004 and accepted by Borrower as of such date.

“Common Elements Leasable Space” has the meaning given to such term in the Condominium Documents.

“Completion Date” has the meaning given to such term in the Operating Agreement.

6

“Completion Deposit” has the meaning given to such term in Section 3.06 hereof.

“Condominium Act” means Article 9-B of the New York Real Property Law (339-d et seq.) of the State of New York and all modifications, supplements and replacements thereof and all regulations with respect thereto, now or hereafter enacted or promulgated.

“Condominium By-Laws” means the By-Laws substantially in the form attached as part of Exhibit E to the Operating Agreement, as the same is to be modified and finalized in accordance with the First Amendment and this Agreement.  From and after the execution of the Condominium Declaration, “Condominium By-Laws” shall refer to the By-Laws attached to such executed Condominium Declaration.

“Condominium Declaration” means that certain Declaration of Leasehold Condominium (and all exhibits thereto) with respect to the condominium regime governing the entire Premises in substantially the form attached as Exhibit E to the Operating Agreement, as the same is to be modified and finalized in accordance with the First Amendment and this Agreement.  From and after the date on which such form has been executed, “Condominium Declaration” shall refer to such executed document.

“Condominium Documents” means the Condominium Declaration, the Condominium By-Laws and the Condominium Floor Plans.

“Condominium Floor Plans” means the floor plans of the Project certified by Borrower’s Architects and intended to be filed with the Real Property Assessment Department and recorded in the Office of the City Register of New York County simultaneously with the recordation of the Condominium Declaration.  From and after the date on which such floor plans are so filed and recorded, “Condominium Floor Plans” shall refer to such recorded floor plans.

“Condominium Subordination Agreement” means a subordination agreement executed by Agent, for itself and on behalf of Lenders, substantially in the form of Exhibit D hereto.

“Construction Consultant” means Inspection & Valuation International, Inc. or, with the prior consent of Borrower, such consent not to be unreasonably withheld or delayed, such other replacement consulting architect(s), engineer(s) or inspector(s) selected by Agent (with the consent of the Majority Lenders).

“Construction Loan Disbursement Agreement” has the meaning given to such term in Section 2.03 hereof.

“Construction Schedule” means the schedule, approved by Agent in the Disclosure Side Letter, broken down by trade, showing the estimated dates of commencement and completion of the Project as well as various interim milestones.

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“Control,” “Controlled by” and “Under Common Control With” means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of the Person in question (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise), provided that, in any event, any Person (i) which owns directly or indirectly twenty percent (20%) or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation or twenty percent (20%) or more of the partnership or other ownership interests of any other Person or (ii) which is a general partner, manager or managing member, director, officer or trustee of a corporation or any other Person, shall be deemed to control such corporation or other Person.

“Core and Shell” has the meaning given to such term in the Architect’s Contract.

“Core and Shell Completion” means the substantial completion of the core and shell (including, without limitation, all of the elements that comprise Core and Shell) of the Project in substantial accordance with the Plans and Specifications, as reasonably determined by Agent and Construction Consultant.

“Cost Allocation Methodology”means, with respect to allocating costs, Project Loan Costs and Building Loan Costs as between the FC Units and the FC Units Budget, on the one hand, and the NYTC Units and the NYTC Units Budget, on the other hand, the “Allocation Methodology” as defined in the Operating Agreement.

“Costs of the Improvement” means those items defined as cost of improvement under Section 2(5) of the Lien Law.

“Default” means any event which but for the passage of time or giving of notice or both, would constitute an Event of Default.

“Default Rate” means a rate per annum equal to the lesser of (i) the Interest Rate plus five hundred basis points (5.00%) per annum, and (ii) the Maximum Rate.

“Defaulting Lender” has the meaning given to such term in Section 5.02(c) hereof.

“Deficiencies” has the meaning given to such term in Section 5.02(c) hereof.

“Developer” means Forest City Ratner Companies.

“Development Agreement-ING” means that certain Development Agreement, dated as of December 12, 2001 among FC Member, Developer and ING Member.

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“Development Agreement-NYTC” means that certain Development Agreement, dated as of December 12, 2001, among Borrower, NYTC Member, FC Member and Developer.

“Development Agreements” means, collectively, Development Agreement-NYTC and Development Agreement-ING.

“Development Cost” means the $1.6 million Development Distribution (as defined in the Development Agreement ING), which Development Distribution is shown in the FC Units Budget as the $1.6 million “Development Costs” line item.

“Development Cost Line Item” means the line item in the FC Units Budget containing the Development Cost.

“Disbursement Agent” has the meaning given to such term in the Construction Loan Disbursement Agreement.

“Disbursement Schedule” means the schedule approved by Agent in the Disclosure Side Letter of the amounts of Advances anticipated to be requisitioned by Borrower each month during the term of the Project Loan, indicating the timing of disbursements anticipated with respect to each Budget.

“Disclosure Side Letter” has the meaning given to such term in Section 2.08 hereof.

“Draw Request” means, with respect to each Advance and each “Advance” (as defined in the Building Loan Agreement), Borrower’s request for such Advance and such “Advance” substantially in the form attached hereto as Exhibit E, fully completed and certified by Borrower.

“DUO Declaration” means the Site 8 South Declaration of Design, Use and Operation by ESDC and Ground Lessor, dated as of December 12, 2001 and recorded in the Office of the City Register of New York County on October 24, 2003 as CRFN# 2003000433121.

“Eligible Assignee” means any of the following entities which has, as of the later to occur of (x) the day that Agent makes a firm proposal on or after the date hereof to such entity for such entity to become a Lender hereunder and (y) ninety (90) days prior to the date that such entity makes a binding acceptance of such offer, (i) an Issuer Financial Strength Rating from S&P of A - or better or, if not rated by S&P, a Senior Unsecured Debt Rating or Issuer Rating from Moody’s of A3 or better or (in the case of clauses (a), (b) and (c) of this definition) (ii) at least $10,000,000,000.00 in assets and at least $1,000,000,000.00 in capital surplus:  (a) a commercial bank or trust company organized under the laws of the United States or any state thereof; (b) a savings and loan association or savings bank organized under the laws of the United States or any state thereof; (c) a commercial bank organized under the laws of any other country or a political subdivision thereof (a “Non-US Lender”); provided that in the case of clause

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(c) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country; (d) any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act) which extends credit or buys loans as one of its businesses, including, without limitation, insurance companies, mutual funds, real estate investment trusts and pension funds; and (e) any Lender, any Affiliate of any Lender and any First Offer Lender (as defined in the Side Letter re: Fees).  Notwithstanding the foregoing, (1) no real estate “opportunity funds”, hedge funds or lease financing companies shall be Eligible Assignees and (2) any Person that qualifies as an Eligible Assignee but for clauses (i) and (ii) in this definition shall (subject to the foregoing clause (1)) nevertheless be an Eligible Assignee if such Person takes by assignment a fully-funded interest in the Loans.

“Employee Benefit Plan” means any pension plan defined in Section 3(3) of ERISA or any “plan” described in Section 4975(e) of the Code, other than a plan exempt from coverage under ERISA and the provisions of Section 4975 of the Code.

“Equity Contribution” means the equity contributions to be made by NYTC Member to Borrower pursuant to the First Amendment to the Operating Agreement of Borrower dated as of even date herewith and secured by FC Member’s interest in Borrower pursuant to the Equity Contribution Pledge Agreement and bearing interest at the rate set forth therein.

“Equity Contribution Documents”means the Operating Agreement, the Equity Contribution Pledge Agreement and the other documents evidencing or securing the Equity Contribution.

“Equity Contribution Pledge Agreement” means the Pledge and Assignment Agreement entered into by FC Member, pledging its membership interest in Borrower to NYTC Member, dated as of December 12, 2001, as amended by that certain First Amendment to Pledge and Assignment Agreement by FC Member in favor of NYTC Member, dated as of even date herewith, as the same may be further amended, modified or supplemented in accordance with both the terms hereof and the terms thereof.

“Equity Infusion” has the meaning given to such term in Section 4.04 hereof.

“Equity Infusion Date” has the meaning given to such term in Section 4.04 hereof.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations and rulings issued thereunder.

“ERISA Affiliate” means each “person” (as defined in Section 3(9) of ERISA) which together with a Borrower Entity would be considered a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.

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“ESDC” means the New York State Urban Development Corporation, doing business as the Empire State Development Corporation.

“Event of Default” has the meaning given to such term in Section 9.01 hereof.

“Exchange Act” means the Securities and Exchange Act of 1934, as amended from time to time, and any successor statute.

“Extension Fee” shall mean a fee equal to three-eighths of one percent (0.375%) of the Remaining Loan Amount.  Lenders shall be entitled to participate in the Extension Fee to the extent set forth in the applicable Assignment and Acceptance Agreement.

“Extension Loan” means the loan contemplated under the Operating Agreement to be made by Extension Loan Lender to FC Member and evidenced by the Extension Loan Documents.

“Extension Loan Documents” means the documents evidencing or securing the Extension Loan and attached as Exhibits Q and S to the Operating Agreement.

“Extension Loan Conditions” means the following five (5) conditions:  (a) FC Member shall have complied with its obligations under the first two sentences of Section 6.03 of the Operating Agreement, as reasonably determined by Agent, (b) Core and Shell Completion shall have been achieved, (c) the Condominium Declaration and Condominium By-Laws shall have been finalized in accordance with the Loan Documents and approved by Agent and each of the Members, (d) the conditions set forth in clauses (1), (3) and (5) of Section 7.46(a) hereof shall have been satisfied and (e) FC Member shall have made the “True-Up Payment” described in Section 3.01(c) of the Operating Agreement.

“Extension Loan Intercreditor Agreement” has the meaning given to such term in Section 7.46(a)(11) hereof.

“Extension Loan Lender” means NYTC Guarantor, any direct or indirect wholly-owned subsidiary thereof or, with the consent of the Majority Lenders, any other Person.

“Extension Option Exercise Date” has the meaning given to such term in Section 3.19(a).

“FC 41st Street” has the meaning given to such term in the definition of Architect’s Contract.

“FC Completion Guaranty” has the meaning set forth in Section 2.06(b) hereof.

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“FC Guarantor” means Forest City Enterprises, Inc., an Ohio corporation and its permitted successors in accordance with the terms hereof.

“FC Member” means FC Lion LLC, a New York limited liability company and its permitted successors in accordance with the terms hereof.

“FC Non-Recourse Carveouts Guaranty” has the meaning set forth in Section 2.06(a) hereof.

“FC Office Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “FC Office” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “FC Collective Unit” (as defined in the Condominium Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“FC Operating Agreement” means that certain Operating Agreement of FC Member dated as of December 12, 2001 by ING Member and FC 41st Street, as modified by that certain side letter between ING Member and FC 41st Street, dated April 8, 2004.

“FC Retail Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “FC Retail” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “Retail Unit” (as defined in the Condominium Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“FC Units” means the FC Office Unit and the FC Retail Unit collectively.

“FC Units Budget” means the budget setting forth the total estimated Building Loan Costs and Project Loan Costs allocable to the FC Units and approved by Agent in the Disclosure Side Letter.  For all purposes hereunder, interest on the Equity Contribution is allocable to the FC Units.

“Final Completion”shall mean, with respect to any Unit or the Project, as the case may be, the occurrence of all of the following applicable events to the satisfaction of Agent:  (a) with respect to any of the Units, Substantial Completion of such Unit, and with respect to the Project, Substantial Completion of the Project; (b) the construction, furnishing and development of such Unit (or the Project) substantially in accordance with the Plans and Specifications and in accordance with the Loan Agreements and the Public Project Agreements, free and clear of any and all liens and claims of any Persons furnishing material, labor or services in connection with the

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design, furnishing, construction or development of such Unit (or the Project); (c) the payment in full of any and all fees, charges, costs and expenses payable by Borrower to contractors, consultants, materialmen, laborers, suppliers and any other Person engaged in connection with the design, furnishing, construction or development of such Unit (or the Project) so as to complete such Unit (or the Project) in accordance with clause (b) above, and the payment of all permitting fees, licensing fees and other governmental charges payable in connection therewith; (d) with respect to each Unit, the issuance of those certificates of occupancy referred to in clauses (c) and (d) of the definition of Substantial Completion below and the issuance of all other governmental licenses, permits, sign-offs and approvals required to have been obtained for the lawful construction of such Unit substantially in accordance with the Plans and Specifications and necessary for its lawful use; (e) with respect to any Unit, the furnishing of such Unit with all necessary furniture, fixtures and equipment (including “tenant improvement” work) to the extent provided for in the Plans and Specifications or as contemplated by any Budget; (f) with respect to any Unit or the Project, the delivery of final, unconditional lien waivers from all Lien Waiver Parties in form reasonably acceptable to Agent; and (g) with respect to the Project, delivery to Agent of two (2) sets of final “as-built” Plans and Specifications signed and sealed by Borrower’s Architects.

“First Amendment” has the meaning given to such term in the definition of “Operating Agreement.”

“First Extended Maturity Date” has the meaning given to such term in Section 3.19(a) hereof.

“Fiscal Year” shall mean the period commencing on the Closing Date and ending on and including December 31 of the calendar year in which the Closing Date occurs and thereafter each twelve-month period commencing on January 1 and ending on December 31 during each year of the term of the Project Loan.

“Fixed Substantial Completion Date” has the meaning given to such term in the Ground Lease.

“Force Majeure Event” means any of the following events, but only to the extent beyond Borrower’s and the General Contractor’s reasonable control:  casualty (including, without limitation, fire); war; invasion; rebellion; revolution; insurrection; riots; an act of government or a quasi-governmental authority; changes in Legal Requirements enacted after the date hereof; earthquakes; hurricanes; tidal waves; inclement weather or any act of God or operation of forces of nature which reasonable foresight and ability on the part of Borrower or the General Contractor could not reasonably prevent or provide against; strikes, lockouts or other employee disturbances or labor disputes (except to the extent such strikes, lockouts or other employee disturbances or labor disputes take place at the Premises only or at the Premises and other projects or properties being developed or constructed by Affiliates of FC Guarantor or General Contractor only); and all other events beyond Borrower’s and the General Contractor’s reasonable control.  Notwithstanding the foregoing, the following events shall in all circumstances not be Force Majeure Events:  economic conditions; recessions; the effects

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of competition; breaches and all other acts or omissions of the General Contractor, any contractor or subcontractor of any tier or any architect, consultant or other party engaged by Borrower, any other Borrower Entity or the General Contractor; any event with respect to which the General Contractor is not entitled to a time extension under the Guaranteed Maximum Price Contract; and shortages in, the unavailability of, or unusual delays in the delivery of, materials, supplies, labor, equipment or systems (except to the extent caused by another Force Majeure Event).

“Force Majeure Extension Option Exercise Date” has the meaning given to such term in Section 3.19(b) hereof.

“Force Majeure Extension Period” has the meaning given to such term in Section 3.19(b) hereof.

“Future Advance Interest Rate Caps” has the meaning given to such term in Section 7.20 hereof.

“General Contractor” means AMEC Construction Management Inc., a Delaware corporation, and any successor thereto approved in accordance with Section 7.01 hereof.

“General Contractor’s Certificate” has the meaning given to such term in Section 4.01(i)(12) hereof.

“GMACCM” has the meaning given to such term in the definition of “Syndication Condition”.

“GMP Guarantor” means AMEC p.l.c., a public limited company organized under the laws of England and any successor thereto approved in accordance with Section 7.01 hereof.

“GMP Guaranty” has the meaning given to such term in Section 4.01(d) hereof.

“Governmental Approvals” means all approvals, consents, waivers, orders, acknowledgments, authorizations, permits and licenses required under applicable Legal Requirements to be obtained from any Governmental Authority.

“Governmental Authority” means any government (or any political subdivisions thereof), court, agency, authority, board (including, without limitation, any environmental protection, planning or zoning board), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit having jurisdiction over any Borrower Entity, the Mortgaged Property or any part thereof (or the construction, development, use, occupancy, management, ownership or operation of the Mortgaged Property or any part thereof) or Agent or any Lender, as applicable.

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“Ground Lease” means the Agreement of Lease between Borrower and Ground Lessor, dated as of December 12, 2001, a memorandum of which was recorded in the office of the City Register of New York County on October 24, 2003 as CRFN # 20030004 33122, as modified by (a) that certain letter agreement between Borrower and Ground Lessor, dated as of April 8, 2004 and (b) regarding which Borrower and Ground Lessor, in accordance with the Tri-Party Agreement, have agreed to modify their agreements and rights.

“Ground Lessor” means 42nd St. Development Project, Inc.

“Guaranteed Maximum Price Contract” means that certain Construction Management Agreement, dated the 22nd day of January, 2004 between Borrower and General Contractor, as modified by that certain General Contractor’s Consent to Assignment of Contractor’s Agreement among Borrower, General Contractor and Agent of even date herewith.

“Guaranties” means, collectively, the documents referred to in Section 2.06 hereof.

“Guarantors” means FC Guarantor and NYTC Guarantor, collectively.

“Hard Cost Contracts” means the Guaranteed Maximum Price Contract and all other contracts and subcontracts (whether direct or indirect) that cover Hard Costs.

“Hard Costs” means the direct costs and expenses of goods, materials or labor incurred in connection with the construction of the Project substantially in accordance with the Plans and Specifications, including, without limitation, all amounts payable under the Guaranteed Maximum Price Contract, including fees.  To avoid confusion, the Budgets show which categories of Building Loan Costs are Hard Costs and which are soft costs.  No Project Loan Cost is a Hard Cost.

“Immediate Family Members” of a Person means the spouse, parents and any direct lineal descendants (including adoptees) of such Person.

“Improvements” means all the buildings, structures, fixtures and improvements described in Exhibit F attached hereto and more particularly set forth in the Plans and Specifications, and all other buildings, structures, fixtures and improvements now or hereafter located or placed on the Land.

“In Balance” has the meaning given to such term in Section 3.06 hereof.

“Indebtedness” means, collectively, the Building Loan Indebtedness and the Project Loan Indebtedness.

“Indemnified Parties” means Initial Agent, Agent, any Lender, any Person who is or will have been involved in the servicing of the Project Loan, any Person

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in whose name the encumbrances created by the Project Loan Mortgage is or will have been recorded, any Person who may hold or acquire or has held a full or partial interest in the Project Loan (including, but not limited to any participants in the Project Loan and any investors in a Securitization, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Project Loan for the benefit of third parties), as well as the respective directors, officers, shareholders, members, partners, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including, but not limited to, any other Person who holds or acquires or has held a participation or other full or partial interest in the Project Loan or the Mortgaged Property, and any successors by merger, consolidation or acquisition of all or a substantial portion of Agent’s or any Lender’s assets and business).

“Information” has the meaning given to such term in Section 11.23 hereof.

“ING” means ING Real Estate Development Holding U.S. Inc.

“ING Member” means Ingredus Site 8 South LLC, a Delaware limited liability company.

“Initial Advance Interest Rate Cap” has the meaning given to such term in Section 4.02(e)(7) hereof.

“Initial Agent” has the meaning given to such term in the opening paragraph of this Agreement.

“Initial Construction Advance” has the meaning given to such term in Section 4.02 hereof.

“Initial Interest Period” has the meaning given to such term in the definition of Interest Period.

“Initial Required Equity Funds” means, subject to Section 3.08(b) hereof, $417,654,796, which amount represents the sum of (a) $87,547,843 contributed by Borrower on behalf of FC Member, (b) $119,498,394 contributed by Borrower on behalf of NYTC Member, and (c) the Equity Contribution of $210,608,559 which sum represents the initial estimate of the amount by which (i) the amount needed to cover all Building Loan Costs and Project Loan Costs reasonably anticipated to be incurred with respect to the Project, as shown by the Budgets approved by Agent as of the Closing Date, exceeds (ii) the Loan Amount.

“Intended Advance Date” means the Requested Advance Date or, if not all of the conditions precedent to such Advance have been satisfied prior to the Requested Advance Date, the first Business Day following the date on which all conditions to such Advance hereunder have been satisfied.

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“Interest Period” means, during any period of time in which the LIBOR Rate is in effect, the period commencing, in the case of the first Interest Period, on the date hereof and ending on the last day of June, 2004 (the “Initial Interest Period”), and with respect to subsequent Interest Periods, commencing, in each case, on the first day (such date, the “Start Day”) of the immediately succeeding calendar month, and ending, in each case, on the last day of the month in which the Start Day occurs.

“Interest Rate” means, subject to Section 3.14 hereof, the LIBOR Rate plus the Spread.

“Interest Rate Caps” means the Initial Advance Interest Rate Cap and the Future Advance Interest Rate Caps, and “Interest Rate Cap” means any of the foregoing.

“Involuntary Bankruptcy” has the meaning given to such term in Section 9.01(g)(i).

“Knowledge” or “Knowledge of Borrower” means the actual knowledge of any of the following persons (unless and until any such Person has no involvement with the Project) or any person replacing any such person:  Bruce Ratner, Andrew Silberfein, David Berliner, Chris Clayton and Susan Elman.

“Land” means the land more particularly described on Exhibit A attached hereto and includes all rights appurtenant thereto, including, without limitation, any air or development rights acquired by Borrower.

“Land Acquisition Agreement” means the Site 8 South Land Acquisition and Development Agreement among Borrower, Ground Lessor and ESDC, dated as of December 12, 2001.

“Late Charge” has the meaning given to such term in Section 3.11 hereof.

“Lead Architect” has the meaning given to such term in the definition of Architect’s Contract and any successor Borrower’s Architect in accordance with Section 7.13 hereof.

“Leases” means “Leases” as defined in the Project Loan Mortgage, provided that in no event shall “Leases” as used in this Agreement include the Ground Lease or the Severance Subleases.

“Leasing Agent Agreement” means any one or more agreements entered into by Borrower, any Member or any Affiliate of Borrower wherein Borrower, such Member or such Affiliate engages any Person to assist in the leasing of any of the Units and which is in effect on or after the date hereof.

“Legal Requirements” shall mean all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities, whether now or hereafter enacted

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and in force (including, without limitation, any environmental laws and building, use, zoning and land use laws and regulations), and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments with Governmental Authorities (other than those contained in the Ground Lease or the Land Acquisition Agreement), either of record or known to the applicable Person, at any time in force applicable to Agent, any Lender, any Borrower Entity, the Mortgaged Property or any part thereof (including any which may (i) require repairs, modifications or alterations in or to the Mortgaged Property or any part thereof, or (ii) in any way limit the use and enjoyment thereof).

“Lender” has the meaning given to such term in the opening paragraph of this Agreement, subject to Sections 3.16(c) and 11.05(a) hereof.

“LIBOR Rate” means, as determined by Agent, the average of London Interbank Offered Rates (in U.S. dollar deposits), rounded up to the nearest 1/10,000th of one percent, for a term equal to the applicable calendar month; provided, however, that if such month has 28, 29 or 31 days, the Libor Rate shall be calculated assuming such month has thirty (30) days.  Agent will obtain the LIBOR Rate from Bloomberg (British Banker’s Association Rate) as of the close of business announced on the second immediately preceding Business Day prior to the Start Day.  If Bloomberg ceases publication or ceases to publish such LIBOR Rate, Agent shall select a comparable publication to determine the LIBOR Rate.  The LIBOR Rate may or may not be the lowest rate based upon the market for U.S. dollar deposits in the London Interbank Eurodollar Market at which Agent or any Lender prices loans on the date on which the LIBOR Rate is determined by Agent as set forth in this definition.  The rules set forth in Section 4.12 (entitled “Business Day Convention”) of the 2000 International Swap Dealers Association, Inc.  Definitions shall apply with respect to the calculation of the LIBOR Rate.  Agent and Borrower acknowledge and confirm that Bloomberg shows thirty (30) day LIBOR Rates as one-month LIBOR Rates.

“Lien” means any mortgage, deed of trust, pledge, assignment of leases and rents, security interest, encumbrance, restriction, lien or charge of any kind including, without limitation, any conditional sale or other title retention agreement or any lease in the nature thereof, or the filing of, or any agreement to give, any financing statement under the Uniform Commercial Code of any jurisdiction.

“Lien Law” means the Lien Law of the State of New York.

“Lien Law Affidavit” has the meaning given to such term in the Building Loan Agreement.

“Lien Waiver Parties”has the meaning given to such term in the Building Loan Agreement.

“Loan Agreements” means, collectively, this Agreement and the Building Loan Agreement.

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“Loan Amount”means the sum of the Building Loan Amount and the Project Loan Amount.

“Loan Documents” means, collectively, the Building Loan Documents and the Project Loan Documents.

“Loans” means the Building Loan and the Project Loan.

“Losses” has the meaning given to such term in Section 7.29(a) hereof.

“Major Contractor” means the General Contractor and any other contractor hired by any Borrower Entity (and any Affiliates thereof) to supply labor, goods, materials or services which are Building Loan Costs in connection with the Project, where, at the time of determination, the aggregate contract price for such labor, goods, materials or services (including fees) equals or exceeds $1,000,000, whether pursuant to one contract or agreement or multiple contracts or agreements, after taking into account all Change Orders.

“Major Decision” shall mean any decision by the Majority Lenders (other than any Super-Major Decision) pertaining to (a) a material modification or amendment of the Project Loan Documents; (b) the exercise of any material remedies by Agent under the Project Loan Documents during the continuance of an Event of Default; (c) the approval of any Lease or any matter with respect to any Lease as to which Agent’s approval is required hereunder, but only if such Lease covers more than three full floors (or more than 75,000 rentable square feet) of the Project (a “Major Lease”); (d) the approval of any Managing Agent Agreement where the managing agent is not an Affiliate of FC Guarantor; (e) the disposition of the Mortgaged Property after it is acquired by Agent on behalf of Lenders; and (f) any other decision in the Project Loan Documents requiring the approval of Majority Lenders.

“Major Lease” has the meaning given to such term in the definition of Major Decision.

“Major Subcontractor” means any subcontractor (or any direct or indirect subcontractor thereof) who is supplying labor, goods, materials or services which are Building Loan Costs in connection with the Project, where, at the time of determination, the aggregate contract price for such labor, goods, materials or services (including fees) equals or exceeds $500,000, whether pursuant to one contract or agreement or multiple contracts or agreements, after taking into account all Change Orders.

“Major Subcontracts” has the meaning given to such term in the definition of Material Contracts.

“Majority Lenders” means, at any time, Lenders whose commitments total more than fifty percent (50%) of the Loan Amount; provided, however, that if at any time a single Lender has a commitment of more than fifty percent (50%) of the Loan Amount and there shall be more than one Lender, “Majority Lenders” shall mean any

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two (2) Lenders (who are not Affiliates of each other) whose commitments exceed fifty percent (50%) of the Loan Amount.  At any time that a Lender is a Defaulting Lender, then (x) such Lender shall not be deemed a Lender for purposes of this definition and (y) such Lender’s ratable share of the Loan Amount shall, for purposes of this definition, be subtracted from the Loan Amount.

“Managing Agent Agreement” means any agreement entered into by Borrower or any Member where Borrower or such Member engages any Person to assist in the management of the Property or any portion thereof.

“Material Adverse Effect” means any event or condition that has a material adverse effect upon (i) the ability of (as of the Closing Date) any Borrower Entity and (after the Closing Date) Borrower and each Member to pay all of its liabilities or to perform all of its obligations in the manner and within the time periods provided under the Project Loan Documents, (ii) the enforceability of any provision of any Project Loan Document against any Borrower Entity, (iii) the perfection or priority of any Lien created under any Project Loan Document, (iv) the value of any collateral granted by any Borrower Entity to Agent for the benefit of Agent and Lenders in connection with the Project Loan or (v) the rights and remedies of Agent under the Project Loan Documents.

“Material Contracts” means (a) the GMP Guaranty, (b) all contracts with Major Contractors and all contracts with Major Subcontractors (“Major Subcontracts”), (c) any Leasing Agent Agreement, (d) any Managing Agent Agreement, (e) the Architect’s Contract and any other material agreement entered into by any one or more of Borrower and the Members with any architect or engineer relating to the Project, (f) any Interest Rate Cap, (g) the Ground Lease and each of the Severance Subleases, (h) the Land Acquisition Agreement, (i) the Subway Agreement, (j) the Site 8 Project Agreement, and (k) any other contract of any kind or type whatsoever (whether oral or written, formal or informal) entered into by any Borrower Entity affecting in any material respect the construction or value of the Project other than any Lease and the Development Agreements.

“Maturity Date” means the earlier to occur of (i) the Original Maturity Date or, subject to the penultimate sentence of Section 3.19(a) and the last sentence of Section 3.19(b) hereof, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable) and (ii) the Acceleration Date.

“Maximum Amount” means the Maximum Amount – NYTC or the Maximum Amount – FC, as applicable.

“Maximum Amount–FC” means, as of the date of the Initial Construction Advance (and without giving effect to such Advance or the “Initial Construction Advance” as defined in the Building Loan Agreement), the Loan Amount minus the Maximum Amount – NYTC, and thereafter such amount less all Advances hereunder and all “Advances” (as defined in the Building Loan Agreement) under the Building Loan Agreement made on or prior to the date in question for costs shown in the FC Units Budget.

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“Maximum Amount-NYTC” means, subject to Section 3.08(b), as of the date of the Initial Construction Advance (and without giving effect to such Advance or the “Initial Construction Advance” as defined in the Building Loan Agreement), the principal amount of the Equity Contribution (taking into account any Equity Contribution made on such date), and thereafter such amount less all Advances made hereunder and all “Advances” (as defined in the Building Loan Agreement) under the Building Loan Agreement on or prior to the date in question for costs shown in the NYTC Units Budget.

“Maximum Rate” means the maximum interest rate allowed by applicable law in effect with respect to the Project Loan on the date for which a determination of interest accrued hereunder is made and after taking into account all fees, payments and other charges which are, under applicable law, characterized as interest.

“Measuring Date” has the meaning given to such term in Section 3.19(a) hereof.

“Members” means FC Member and NYTC Member.

“Moody’s” means Moody’s Investors Services, Inc., or any successor thereof (or if Moody’s is no longer in the business of rating public companies, any other nationally recognized rating agency selected by Agent).

“Mortgaged Property” has the meaning given to such term in the Project Loan Mortgage.

“Net Award or Proceeds” has the collective meaning given to such term in the Project Loan Mortgage.

“Net Proceeds” has the collective meaning given to such term in the Project Loan Mortgage.

“News Outlets” has the meaning given to such term in Section 11.23 hereof.

“No Strikes Agreement”has the meaning given to such term in Section 4.01(i)(6) hereof.

“Non-Disturbance Agreement” means a non-disturbance, subordination and attornment agreement substantially in the form of Exhibit Hhereto.

“Non-US Lender” has the meaning given to such term in the definition of “Eligible Assignee.”

“Notice of Assignment” means the notice by Borrower made in compliance with Section 15 of the Lien Law.

“Notice of Lending” means the notice by Borrower made in compliance with Section 73 of the Lien Law.

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“Noticed Default” means (a) a Default with respect to which Agent has given Borrower notice that such Default has occurred or (b) the occurrence of an event listed in Section 9.01 hereof which does not require a notice from Lender to become an Event of Default.

“NYTC Completion Guaranty” has the meaning set forth in Section 2.06(d) hereof.

“NYTC Form Sublease” has the meaning given to such term in Section 7.14(b) hereof.

“NYTC Guarantor” means the New York Times Company, a New York corporation, and its permitted successors in accordance with the terms hereof.

“NYTC Member” means NYTC Real Estate Company LLC, a New York limited liability company and its permitted successors in accordance with the terms hereof.

“NYTC Non-Recourse Carveouts Guaranty” has the meaning set forth in Section 2.06(c) hereof.

“NYTC Office Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “NYTC Office” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “NYTC Collective Unit” (excluding the “SPU Unit”) (as such terms are defined in the Condominium Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“NYTC Performing Arts Unit” means, prior to the recordation of the Condominium Documents, the portion of the Project designated as “SPU” on the Plans and Specifications, together with its undivided proportionate share of the “Common Areas” appurtenant thereto as shown on the Plans and Specifications and, after the recordation of the Condominium Documents, the “SPU Unit” (as defined in the Condominium Documents), together with its proportionate share of the “Common Elements” (as defined in the Condominium Documents) as more particularly shown on the Condominium Floor Plans.

“NYTC Units” means the NYTC Office Unit and the NYTC Performing Arts Unit collectively.

“NYTC Units Budget” means the budget setting forth the total estimated Building Loan Costs and Project Loan Costs allocable to the NYTC Units and approved by Agent in the Disclosure Side Letter.

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“NYTC Units Redemption” means the conveyance of the NYTC Units to NYTC Member in redemption of NYTC Member’s interest in Borrower in accordance with Section 7.46(a) hereof.

“Obligations” means, collectively, the Building Loan Obligations and the Project Loan Obligations.

“OFAC List” means the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any legal requirements, including, without limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States.  As of the date hereof, the OFAC List is accessible through the internet website www.treas.gov/ofac/t11sdn.pdf.

“Operating Agreement” means that certain Operating Agreement of Borrower dated as of December 12, 2001, as amended by that certain First Amendment to Operating Agreement of even date herewith (the “First Amendment”).

“Original Maturity Date” means July 1, 2008.

“Other Funds” means any Completion Deposits, any Borrower LC Deposit, and any amounts in the Collection Accounts.

“Outstanding Principal” means the principal amount of the Project Loan outstanding under the Project Loan Notes from time to time.

“Overfunding Unit” has the meaning given to such term in Section 3.20 hereof.

“Participant”means any Person who acquires a participation interest in the Building Loan or the Project Loan.

“Payment and Performance Bond Contracts” has the meaning given to such term in Section 4.02(e)(6) hereof.

“Payment and Performance Bonds” means triple-obligee payment and performance bonds in favor of Borrower, General Contractor and Agent in form reasonably satisfactory to Agent, and in each case issued by a surety company or companies reasonably acceptable to Agent or, at Borrower’s election, a subguard insurance policy in form and substance satisfactory to Agent.

“Pending Litigations” has the meaning given to such term in Section 6.04(a) hereof.

“Period” has the meaning given to such term in Section 7.20 hereof.

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“Permitted Affiliate Contract” has the meaning given to such term in Section 7.36(f) hereof.

“Permitted Exceptions” means those matters listed in Exhibit B attached hereto and made a part hereof, to which the interest of Borrower in the Premises is permitted to be subject, and, after the NYTC Units Redemption shall have occurred, the Extension Loan Documents.

“Permitted Lease” means any Lease entered into in accordance with Section 7.14 hereof.

“Permitted Transfers” have the meaning given to such term in Section 7.32(b) hereto.

“Person” means an individual, partnership, limited partnership, limited liability company, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, or other entity of any kind.

“Personal Property”has the meaning given to such term in the Project Loan Mortgage.

“Plan Assets” means the assets of any Employee Benefit Plan.

“Plans and Specifications” means the plans, specifications, schematic design documents (to the extent not superseded by design development documents or final construction drawings), design development documents (to the extent not superseded by final construction drawings), final construction drawings and related items for the design and construction of the Project including, without limitation, the “Drawings” and “Specifications” (as such terms are defined in the Guaranteed Maximum Price Contract) that have been approved by Agent in the Disclosure Side Letter, as the same may be amended by Change Orders made in accordance with this Agreement.

“Policies” has the meaning given to such term in the Project Loan Mortgage.

“Premises” means, prior to the NYTC Units Redemption, the premises demised to Borrower pursuant to the Ground Lease and the Improvements thereon, and, after the NYTC Units Redemption, the premises demised to FC Member pursuant to the Severance Subleases to which FC Member is a party and the Improvements thereon.

“Pro Forma Debt Service” means the monthly interest and principal payment for a loan in the principal amount of the Remaining Loan Amount, assuming that such loan (x) is made on the first day of the Pro Forma Testing Period, (y) amortizes on a thirty year schedule, and (z) has an annual interest rate equal to the greatest of (a) 8.0%, (b) the Interest Rate in effect as of the date Pro Forma Debt Service is measured and (c) the yield of the ten (10) year United States Treasury Note, as published in The Wall Street Journal as of the date Pro Forma Debt Service is measured, plus two percent

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(2.0%).  In the event that, in the case of clause (c), (i) more than one such yield is published, then the average of such yields shall apply or (ii) no such yield is published, such yield shall be determined from such comparable financial reporting company as Agent shall reasonably select.

“Pro Forma Debt Service Coverage Ratio” means the ratio of Pro Forma Net Operating Income to Pro Forma Debt Service for the twelve (12) month period starting from the first day of the first calendar month following the date in question and ending on the day immediately preceding the one-year anniversary of such first day (such period, the “Pro Forma Testing Period”).

“Pro Forma Net Operating Income” means the excess, if any, of Pro Forma Operating Income over Pro Forma Operating Expenses.

“Pro Forma Operating Expenses”means the sum of all expenses reasonably projected by Borrower and reasonably approved by Agent to be paid or required to be paid for during the Pro Forma Testing Period by or on behalf of Borrower and the Members in connection with the operation of the Mortgaged Property, determined using an accrual method of accounting in accordance with generally accepted accounting principles consistently applied, including, without limitation, (a) Property Taxes, (b) premiums on the Policies, (c) wages, salaries, and fringe benefits of Borrower’s employees (including overhead expenses) engaged in the operation or management of the Mortgaged Property or Borrower’s business (to the extent properly charged or chargeable to the Property), (d) fees and other amounts paid in respect of utilities serving the Mortgaged Property, (e) fees, costs and expenses for cleaning, janitorial and security services with respect to the Mortgaged Property, (f) professional fees incurred in connection with the operation and management of the Mortgaged Property, provided that if the property manager is an Affiliate of FC Guarantor, then for purposes of this clause (f), the total fees payable to such property manager shall be assumed to be not less than 50 cents per square foot of rentable space in the FC Units and Common Elements (as defined in the Condominium Documents), (g)  repair and maintenance costs with respect to the Mortgaged Property, (h) amounts payable under any equipment leases relating to the Mortgaged Property, and (i) amounts payable by Borrower to any counterparty to an Interest Rate Cap.  Pro Forma Operating Expenses shall not include (1) depreciation or amortization or other non-cash items, (2) the principal of and any interest on the Building Loan Notes or the Project Loan Notes or other indebtedness of any Borrower Entity for borrowed money (including, without limitation, interest on the Equity Contribution and the Extension Loan but excluding from this exclusion equipment leases), (3) income taxes, or franchise taxes, or taxes in the nature of income taxes payable by Borrower or either Member, (4) any actual capital expenditures (except to the extent includable, under generally accepted accounting principles consistently applied, in Borrower’s or the Members’ operating expenses for the Pro Forma Testing Period) and (5) internal corporate overhead expenses.

“Pro Forma Operating Income” means the sum of all payments (other than security deposits and any “percentage rent” or other revenue or profit sharing

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arrangements) reasonably projected by Borrower and reasonably approved by Agent to be received by Borrower or either Member during the Pro Forma Testing Period from all Tenants under Approved Leases covering any portion of the Mortgaged Property that are in existence as of the date that Pro Forma Operating Income is calculated.

“Pro Forma Testing Period” has the meaning given to such term in the definition of Pro Forma Debt Service Coverage Ratio.

“Project” means the Units, the “common elements” as described in the Condominium Floor Plans and the work and items described in the Plans and Specifications or covered by the Guaranteed Maximum Price Contract (including all allowances thereunder) or any other Hard Cost Contract, plus all other structures, fixtures, improvements and personal property that are either (x) required to be constructed or installed by Borrower or any Member (or which Borrower or any Member may elect to construct) under any Permitted Lease or any of the Public Project Agreements, or (y) intended to be constructed or installed by any Borrower Entity, as indicated by the Budgets and all back-ups thereto.

“Project Loan” means the loan which is the subject of this Agreement.

“Project Loan Amount” means $149,470,521.

“Project Loan Assignment of Leases” has the meaning given to such term in Section 2.05 hereof.

“Project Loan Contingency” means the respective amounts allocated as a contingency reserve for “soft costs” of construction which are not Costs of the Improvement for each Unit.  The Project Loan Contingency for each Unit is set forth in the applicable Budget.

“Project Loan Costs” means, without duplication, (i) all costs and expenses of (a) achieving Final Completion of the Project and Stabilized Occupancy, [(b) satisfying the obligations of the Borrower Entities to Agent and Lenders under the Loan Documents, (c) the payment of interest on the Equity Contribution, to the extent the Extension Loan is made, and the payment of interest on the Extension Loan, and (d) Assignments of the Loans (to the extent Borrower is liable therefor pursuant to Section 7.06 of this Agreement) and (ii) all other actual or anticipated non-construction costs payable through the maturity of the Project Loan and necessary to achieve Final Completion of the Project and Stabilized Occupancy (including, without limitation, (1) the Leasing Incentive Fee (as defined in the FC Operating Agreement) and (2) from and after the date, if any, that either option described in Section 3.19(a) of this Agreement is exercised, that portion of the Extension Fee relating to such option attributable to the Project Loan), but only to the extent, in each of the foregoing clauses (i) and (ii), such costs and expenses do not constitute Building Loan Costs.  Subject to Section 7.35(b)  hereof, with respect to the NYTC Units, Project Loan Costs shall also include amounts Advanced under the last sentence of Section 3.05(d) of this Agreement.

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“Project Loan Documents” means, collectively, this Agreement, all documents referred to in Article 2 hereof and all other agreements and documents executed and delivered or in the future executed and delivered by any Borrower Entity to or for the benefit of Agent and Lenders in connection with the Project Loan or in connection with the Building Loan and the Project Loan (including each Draw Request and the Sworn Owner’s Statement that is a part thereof and any Interest Rate Cap and Assignment of Interest Rate Cap).  Notwithstanding the foregoing, the NYTC Completion Guaranty, Extension Loan Intercreditor Agreement, Extension Loan Documents and Equity Contribution Documents are not Project Loan Documents.  A Project Loan Document may, or may not, also be a Building Loan Document.

“Project Loan Indebtedness” means “Indebtedness” as defined in the Project Loan Mortgage.

“Project Loan Mortgage”has the meaning given to such term in Section 2.02 hereof.

“Project Loan Notes” has the meaning given to such term in Section 2.01 hereof.

“Project Loan Obligations” means “Obligations” as defined in the Project Loan Mortgage.

“Property” means the Premises and the Personal Property.

“Property Taxes” has the meaning given to such term in Section 6.34 hereof.

“Providing Party” means any Borrower Entity, Agent or any Lender (as applicable) providing Information to the other for purposes of Section 11.23 hereof.

“Public Project Agreements” means, collectively, the Ground Lease, the Severance Subleases, the Land Acquisition Agreement, the DUO Declaration, the Subway Agreement, and the Site 8 Project Agreement.

“Public Project Agreements Estoppel Letter” has the meaning given to such term in Section 4.01(w) hereof.

“Punch List Items” applies to the FC Units only and means minor or insubstantial details of construction or mechanical adjustment, (a) which are, in Agent’s reasonable judgment, expected to be completed within five (5) months of Substantial Completion, (b) the non-completion of which, when all such items are taken together, will not interfere in any material respect with the use or occupancy of any portion of such Units for their intended uses or the ability of Borrower or any tenant under a Lease with respect to the FC Units to perform work that is necessary or desirable to prepare such portion of the Improvements or the Project for such use or occupancy and (c) which

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would not, as reasonably determined by Agent, cost more than $2,500,000 in the aggregate to complete if new contractors were hired in connection therewith.

“ratable share” or “ratably” means, with respect to any Lender, (i) its share of the Loan Amount, an Advance or a repayment, as the context requires, based on the proportion of the sum of the face principal amount of the Building Loan Note(s) and the Project Loan Note(s) held by such Lender to the Loan Amount or (ii) in the case of an Advance or repayment only, such other share of an Advance as may be agreed to by Agent and such Lender, provided that such other share, together with the shares of all other Lenders, equals the amount of such Advance or such repayment.

“Real Estate Professional” has the meaning given to such term in Section 7.14(b) hereof.

“Receiving Party” means any Borrower Entity, Agent or any Lender or any potential assignee or participant of any Lender (as applicable) who is the recipient of any Information from any Providing Party.

“Recognition Agreements” means, collectively, that certain Recognition Agreement dated as of December 12, 2001 by ING Member, ING Vartgoed B B.V., FC 41st Street, the Members, Borrower, Developer and NYTC Guarantor and that certain Recognition Agreement (Public Parties), dated as of December 13, 2001 by the foregoing parties, ESDC and Ground Lessor.

“Reimbursable Costs” mean all reasonable, third-party out-of-pocket costs and expenses incurred by Agent or (in the case of clauses (g) and (h) of this definition only) Lenders in connection with the administration of the Project Loan, including, without limitation, and without duplication, (a) responses to requests for consents, approvals or waivers under the Project Loan Documents, (b) the exercise of any enforcement right or remedy under any Project Loan Document or the collection of the Project Loan unless there has been a non-appealable judicial determination that the exercise of such right for remedy was not proper, (c) review of any Lease or proposed Lease or review of any Material Contract or proposed Material Contract, (d) review of any Change Order, construction contract, Plans and Specifications or other documents related to the construction of the Project, (e) all costs pursuant to paragraph 8 of each Draw Request, (f) the costs of any Interest Rate Cap, to the extent incurred by Agent in accordance with Section 7.20(b) hereof, (g) any amounts owed to Agent or any Lender pursuant to Sections 3.13, 3.16, 7.09(b), 7.17, 7.20(b), 7.30(c), 7.46(a)(7), 7.50(d) and 8.01 hereof and (h) any such other costs and expenses incurred by Agent and, to the extent expressly provided for, any Lender under any Loan Document expressly identified as a Reimbursable Cost.  In no event shall syndication costs covered by Section 7.06(a)(ii) hereof be included in the term “Reimbursable Costs.”

“Remaining Loan Amount” means, as of the date in question, the sum of (i) the Outstanding Principal, (ii) the “Outstanding Principal” (as defined in the Building Loan Agreement), and (iii) any Loan Amounts that have not been advanced.

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“Rents” has the meaning given to such term in the Project Loan Mortgage.

“Requested Advance Date” has the meaning given to such term in Section 4.02(e)(1) hereof.

“Retainage” has the meaning given to such term in the Building Loan Agreement.

“S&P” means Standard and Poor’s Rating Group, a division of the McGraw-Hall Companies, Inc., or any successor thereto (or if S&P is no longer in the business of rating public companies, any other nationally recognized rating agency selected by Agent).

“Scope Change” has the meaning given to such term in Section 7.01 hereof.

“Second Extended Maturity Date” has the meaning given to such term in Section 3.19(a) hereof.

“Section 291-f Notice” has the meaning given to such term in Section 4.01(i)(13) hereof.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“Security Deposit Accounts” has the meaning given to such term in the Security Deposit Accounts Agreement.

“Security Deposit Accounts Agreement” has the meaning given to such term in Section 7.57 hereof.

“Security Documents” means, collectively, this Agreement, the Project Loan Mortgage, the Project Loan Assignment of Leases, the Assignments of Contracts, from and after their execution, the Security Deposit Accounts Agreement, the Collection Accounts Agreement and any Assignment of Interest Rate Cap, and all other Project Loan Documents which grant Agent, for the benefit of Lenders, a security interest in any collateral in connection with the Project Loan.

“Severance Subleases” has the meaning given to such term in the Ground Lease, as each has been amended by the Tri-Party Agreement.

“Side Letter re: Fees” has the meaning given to such term in Section 2.07 hereof.

“Site 8 Project Agreement” means that certain Site 8 South Project Agreement among ESDC, Ground Lessor, the City of New York, Borrower, NYTC Member and FC Member, dated as of December 12, 2001.

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“Spread” means two hundred and sixty-five (265) basis points per annum, provided, however, that upon satisfaction of the Syndication Condition and the achievement of Substantial Completion, the Spread shall be reduced to (x) two hundred and fifty-five (255) basis points per annum as of the Start Day immediately following the date on which Breakeven Leasing occurs and (y) two hundred and forty-five (245) basis points per annum as of the Start Day immediately following the date on which the Pro Forma Debt Service Coverage Ratio equals or exceeds 1.25:1.00 (provided that clause (b) of the definition of Pro Forma Debt Service shall not apply for purposes of this clause (y)).

“Stabilized Occupancy” means the point in time at which (x) ninety-five percent (95%) of the net rentable square footage of the FC Retail Unit has been leased to tenants pursuant to Approved Leases and said tenants are in possession of such space and have been paying rent for a period of three (3) months, and (y) ninety-five percent (95%) of the net rentable square footage of the FC Office Unit has been leased to tenants pursuant to Approved Leases and said tenants are in possession of such space and have been paying rent for a period of three (3) months.

“Start Day” has the meaning given to such term in the definition of “Interest Period.”

“Stored Materials” has the meaning given to such term in Section 3.04 hereof.

“Subordinate Lease” has the meaning given to such term in Section 7.14(a) hereof.

“Substantial Completion” means, with respect to any Unit or the Project, as the case may be, the occurrence of all of the following applicable events to the reasonable satisfaction of Agent: (a) the construction of the Unit (or the Project) (other than Punch List Items) substantially in accordance with the Plans and Specifications and in accordance with the Loan Agreements, and the Public Project Agreements, free and clear of any and all Liens; (b) the payment in full of any and all Building Loan Costs and Project Loan Costs in respect of the work contemplated by clauses (a), (c), (d) and (e) of this definition (other than costs consisting of (i) Retainage, and other amounts that, as of the date of Substantial Completion, are being withheld from, or are not yet due and payable to, the General Contractor or any contractor or direct or indirect subcontractor or any other Person and (ii) amounts payable in respect of Punch List Items to the extent not covered by the foregoing clause (i)); (c) with respect to the FC Retail Unit, the issuance of a “zero occupancy temporary certificate of occupancy” or a temporary certificate of occupancy; (d) with respect to the FC Office Unit and any of the NYTC Units, the issuance of a temporary certificate of occupancy; (e) with respect to any Unit, the furnishing of such Unit with all necessary furniture, fixtures and equipment (including “tenant improvement” work, other than Punch List Items) to the extent provided for in the Plans and Specifications or required under any Approved Lease and (f) with respect to any Unit or the Project, Borrower’s Architects shall have delivered the certificate referred to in Section 11.5.3 of the Guaranteed Maximum Price Contract.

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“Subway Agreement” means that certain Agreement by and among Borrower, the New York City Transit Authority, Ground Lessor and the City of New York, dated December 12, 2001, and recorded in the office of the Register of the City of New York on October 24, 2003 as CRFN #2003000433126.

“Subway Agreement Estoppel Letter” has the meaning given to such term in Section 4.01(w) hereof.

“Super-Major Decision” means any decision by the Super-Majority Lenders pertaining to (a) the release of any collateral granted by any Borrower Entity to Lenders in connection with the Project Loan other than as expressly permitted by the Project Loan Documents (including, without limitation, Section 7.46 hereof); (b) the release of any Person from liability in connection with the Project Loan, under any guaranty or otherwise, other than as expressly permitted by the Project Loan Documents (including, without limitation, Section 7.46 hereof); (c) a modification or amendment to the Project Loan Documents which would alter or amend the payment terms (including, without limitation, the interest rate of, or the security for, the Project Loan) in any material respect, other than as expressly contemplated and permitted by the Project Loan Documents; (d) any change to the definition of “ratably” or “ratable,” “Major Decision,” “Super-Major Decision,” “Majority Lenders” or “Super-Majority Lenders”; (e) any modifications or amendments to Sections 8.03 or 8.05 hereof; (f) whether Advances should be made hereunder when Borrower is not entitled to receive such an Advance because a Default or an Event of Default has occurred and is continuing; and (g) any other decision under the Project Loan Documents requiring the approval of the Super-Majority Lenders.

“Super-Majority Lenders” means all of the Lenders other than any Defaulting Lender.

“Survey” means a current survey of the Premises (as-built, to the extent applicable) prepared by a surveyor licensed by the State in which the Premises is located and certified to Agent and the Title Companies and prepared in accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointly established in 1999 and employing methods and personnel comparable to those outlined in the “Minimum Angle, Distance and Closure Requirements for Survey Measurements Which Control Land Boundaries for ALTA/ACSM Land Title Surveys,” showing the legal description and street address of the Premises; all visible or recorded easements, curb cuts, and party walls; all sewage, water, electricity, gas and other utility facilities, together with recording information concerning the documents creating any such easements; stating the net, after deduction of land dedicated or used or subject to easements for roads, highways, fire lanes, utilities, storm drains or any other public purpose, and gross area of the Land; and including the following Table A items: 2, 3, 4, 6, 7, 8, 10, 11, 14 and 15; and showing such other matters as may be reasonably requested by Agent; provided, however, that such survey does not need to show the Existing Improvements (as defined in the Ground Lease).

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“Syndication Condition” means the Assignment (other than a pledge or other hypothecation) by GMAC Commercial Mortgage Corporation, as a Lender (including any successors, “GMACCM”) to any Eligible Assignee that is not an Affiliate of GMACCM which, together with all such previous Assignments by GMACCM, aggregate at least fifty percent (50%) of the Loan Amount.

“Tax Proceeding” has the meaning given to such term in Section 7.05 hereof.

“Tax Refund” has the meaning given to such term in Section 7.05 hereof.

“Taxes” has the meaning given to such term in Section 3.16(a) hereof.

“Tenants” has the meaning given to such term in the Project Loan Assignment of Leases.

“Title Companies” means the title companies insuring the liens of the Building Loan Mortgage and the Project Loan Mortgage, which title companies shall be acceptable to Agent (and Agent hereby acknowledges that Fidelity National Title Insurance Company, Title Associates Inc., as agent for Stewart Title Insurance, and Commonwealth Land Title Insurance Company are acceptable to Agent).

“Title Company Side Letter” means the letter from the Title Insurance Companies to Agent, dated as of even date herewith, pursuant to which the Title Companies have agreed to issue paid mortgagee title insurance policies in the name of Agent or its designee.

“Title Insurance Policy” has the meaning given to such term in Section 4.01(i)(2) hereof.

“Transaction Costs” means all reasonable, third-party out-of-pocket costs and expenses incurred by Agent in connection with the negotiation, preparation and execution of the Project Loan Documents (including, without limitation, reasonable attorneys’ fees and disbursements) and all out-of-pocket underwriting costs, credit reports fees, appraisal fees, reasonable travel costs, engineering costs, site inspection costs, mortgage recording taxes, recording fees and charges, survey fees, abstract fees, title policy premiums and charges, escrow fees and environmental consultants’ fees and expenses incurred by Agent.  In no event shall syndication costs covered by Section 7.06(a)(ii) hereof be included in the term “Transaction Costs.”

“Transfer” has the meaning given to such term in Section 7.32(a) hereof.

“Tri-Party Agreement” has the meaning given to such term in Section 4.01(w) hereof.

“UCC” means the Uniform Commercial Code of the State of New York in effect from time to time.

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“Unavoidable Delay” has the meaning given to such term in the Ground Lease.

“Underfunding Unit” has the meaning given to such term in Section 3.20 hereof.

“Units” means, collectively, the FC Units and the NYTC Units, and “Unit” means any one of the FC Units or the NYTC Units.

“Voluntary Bankruptcy” has the meaning given to such term in Section 9.01(g)(ii) hereof.

ARTICLE 2

PROJECT LOAN DOCUMENTS

The following documents (other than the NYTC Completion Guaranty) constitute a portion of the Project Loan Documents:

SECTION 2.01Project Loan Notes.  One or more Project Loan Notes (the “Project Loan Notes”) from Borrower in favor of each Lender in the aggregate amount of the Project Loan Amount.  The obligation of Borrower to pay each Lender’s ratable share of the Project Loan Amount and any other sums advanced by each Lender to Borrower under the Project Loan Documents, plus all interest accrued thereon, shall be evidenced by the Project Loan Notes.

SECTION 2.02Project Loan Mortgage.  That certain Ground Leasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement (the “Project Loan Mortgage”), securing the maximum principal amount of the Project Loan Amount, from Borrower in favor of Initial Agent, for the benefit of Initial Agent and Lenders, and Agent, for the benefit of Agent and Lenders and subordinating the Severance Subleases to the Project Loan Mortgage and the Ground Lease, dated as of even date herewith.

SECTION 2.03Construction Loan Disbursement Agreement.  The Construction Loan Disbursement Agreement (the “Construction Loan Disbursement Agreement”) among Borrower, Disbursement Agent, and Agent, for itself and on behalf of Lenders, dated as of even date herewith.

SECTION 2.04Assignments of Contracts.  (a)  The Assignment of Contracts - Borrower (the “Assignment of Contracts - - Borrower”) from Borrower in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(b)The Assignment of Contracts - FC Member (the “Assignment of Contracts - FC”) from FC Member in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

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(c)The Assignment of Contracts - NYTC Member (the “Assignment of Contracts - NYTC”) from NYTC Member in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

SECTION 2.05Assignment of Leases.  (a) That certain Project Loan Assignment of Leases and Rents from Borrower and the Members in favor of Initial Agent, for the benefit of Initial Agent and Lenders, and Agent, for the benefit of Agent and Lenders, dated as of even date herewith (the “Project Loan Assignment of Leases”).

SECTION 2.06Guaranties.  (a)  The Non-Recourse Carveouts Guaranty (FC Guarantor) (the “FC Non-Recourse Carveouts Guaranty”) from FC Guarantor in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(b)The Completion Guaranty (FC Guarantor) (the “FC Completion Guaranty”) from FC Guarantor in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(c)The Non-Recourse Carveouts Guaranty (NYTC Guarantor) (the “NYTC Non-Recourse Carveouts Guaranty”) from NYTC Guarantor in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

(d)The Completion Guaranty (NYTC Guarantor) (the “NYTC Completion Guaranty”) in favor of Agent for the benefit of Agent and Lenders, dated as of even date herewith.

SECTION 2.07Fee Side Letter.  The side letter from Agent to Borrower dated as of even date herewith pursuant to which Borrower has agreed to make certain payments to Agent (the “Side Letter re: Fees”).

SECTION 2.08Disclosure Side Letter.  The side letter from Borrower to Agent dated as of even date herewith pursuant to which Borrower has disclosed or submitted to Agent, and Agent has approved, certain matters, schedules, forms and documents referred to herein (the “Disclosure Side Letter”).

ARTICLE 3

AGREEMENT TO LEND AND
PAYMENT OF PROJECT LOAN

Subject to the terms and conditions set forth in this Agreement and each Borrower Entity’s compliance with all of the provisions hereof and in the other Loan Documents, and relying on each Borrower Entity’s representations, warranties and covenants set forth herein and the other Loan Documents, Lenders severally and not jointly agree to make Advances of the Project Loan to Borrower from time to time and Borrower agrees to borrow from Lenders up to the Project Loan Amount, in accordance with the provisions hereof, during the period from the date hereof to the Maturity Date in

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an aggregate principal amount of up to the Project Loan Amount, to be used by Borrower to pay Project Loan Costs actually incurred in connection with the construction of the Project.

SECTION 3.01Advances.  Each Budget reflects, by category and line items, the purposes and the amounts for which funds to be advanced by Lenders under this Agreement are to be used.  Lenders shall not be required to disburse for any category or line item of Project Loan Costs with respect to the FC Units or the NYTC Units more than the amount specified therefor in the applicable Budget, subject to changes approved by Agent in accordance with Sections 3.02, 3.03, 3.20 and 7.11 hereof (or other reallocations approved by Agent).  No Lender is obligated to fund amounts in excess of its ratable share of the Project Loan Amount and not more than its ratable share of any category or line item set forth in any Budget.

SECTION 3.02Cost Overruns.  Each Budget shall, with respect to each Draw Request, be revised to address any change or anticipated change in Project Loan Costs that Borrower is aware of which will increase a category or line item of Project Loan Costs reflected in any Budget (including all anticipated costs of all Change Orders, regardless of whether the amount of such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced).  Lenders shall have no obligation to make any further Advances with respect to the Units which are the subject of such revised Budget unless and until such revised Budget is approved by Agent, such approval not to be unreasonably withheld or delayed.

SECTION 3.03Contingency Reserves.  At any time and from time to time, the amounts allocated in each Budget as Project Loan Contingency shall be disbursed or moved to another line item upon request by Borrower and upon approval by Agent, which approval shall not be unreasonably withheld, and may be used only for Project Loan Costs set forth in the applicable Budget for which such contingency has been reserved.

SECTION 3.04Stored Materials.  Lenders shall not be required to disburse any funds for any materials, machinery or other Personal Property not yet incorporated into the Project (the “Stored Materials”), unless Agent receives reasonably satisfactory evidence that:

(a)the Stored Materials are, or will be, upon payment with disbursed funds, owned by Borrower, as evidenced, to the extent required by Agent, by bills of sale, certificates of title or other reasonably satisfactory evidence;

(b)the Stored Materials are fabricated or unfabricated components conforming to the Plans and Specifications and ready for incorporation into the Project;

(c)the Stored Materials are properly identified and adequately protected, as evidenced by a letter from Borrower, the General Contractor, the

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appropriate Major Contractor or Major Subcontractor or another Person reasonably acceptable to Agent;

(d)the Stored Materials are stored at the Premises or at such other site as Agent shall reasonably approve, which site has been specifically identified to Agent, and are protected against theft and damage;

(e)the Stored Materials will be paid for in full (less the Retainage, if any) with the funds to be disbursed, and all lien rights or claims of the supplier will be released simultaneously with full payment of all amounts required to be paid for such Stored Materials and all amounts, if any, required to be paid to the supplier thereof with respect to the installation thereof (including any Retainage, if any);

(f)Agent has or will have upon payment with disbursed funds a perfected, first priority security interest in the Stored Materials (and with respect to Stored Materials not stored at the Premises, Borrower shall execute and deliver to Agent any and all Uniform Commercial Code financing statements or similar filings required by the laws of any jurisdiction necessary to grant Agent such security interest in such Stored Materials);

(g)the Stored Materials are insured for an amount equal to their replacement costs in accordance with Section 2.05 of the Project Loan Mortgage;

(h)the cost of Stored Materials not stored at the Premises in the aggregate at any time is not more than $25,000,000.00, or such greater amount as may be reasonably approved by Agent; and

(i)the Construction Consultant shall have confirmed the accuracy of the letter required in subparagraph (c) above, and in connection therewith the Construction Consultant may, but shall not be required to, visit the site of and inspect the Stored Materials at Borrower’s expense.

SECTION 3.05Amount of Each Advance.  (a)  The proceeds of the Building Loan and Project Loan shall, assuming satisfaction of all applicable conditions precedent, be advanced (x) in accordance with the Cost Allocation Methodology (subject to Section 3.20 hereof) and (y) in amounts which shall be equal to the aggregate of the Building Loan Costs and Project Loan Costs incurred by Borrower with respect to each of the FC Units and the NYTC Units (measured individually) and already paid, or due and payable through the end of the period covered by the Draw Request in question, on the basis of the documented cost of Stored Materials and of the work and items in place or completed, less the following amounts with respect to each of the FC Units and the NYTC Units, measured individually (without duplication):  (i) the aggregate amount of any Advances previously made hereunder and under the Building Loan Agreement by Lenders with respect to such Units, measured individually, allocable to such Units as of the date of the applicable Building Loan Advance and Project Loan advance); (ii) any Building Loan Costs and Project Loan Costs with respect to such Units covered by such Draw Request that are not approved by Agent; and (iii) the Initial Required Equity Funds,

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and all other amounts contributed, directly or indirectly, by Borrower or any Borrower Entity (whether pursuant to a Completion Deposit that has not been released pursuant to Section 3.06 below or otherwise) for Building Loan Costs and Project Loan Costs with respect to such Units, but only to the extent theretofore advanced and used to pay Building Loan Costs or Project Loan Costs or expected to be advanced and so used prior to or simultaneously with the Advance in question.

(b)The excess, if any, of the Building Loan Costs and Project Loan Costs for each of the FC Units and NYTC Units (measured individually) incurred to the end of the period covered by the Draw Request in question and already paid, or due and payable through the end of the period covered by the Draw Request in question, over the aggregate Advances by Lenders for Building Loan Costs and Project Loan Costs with respect to such Units (including the Advance and “Advance” under the Building Loan with respect to the Draw Request in question) shall be payable by Borrower pursuant to, and from the sources (other than Initial Required Equity Funds) described in, clause (iii) of Section 3.05(a) above (and not out of the proceeds of the applicable Loan).

(c)[INTENTIONALLY OMITTED]

(d)Advances for fees of the General Contractor, Borrower’s Architects and any payment under a Permitted Affiliate Contract will be paid only to the extent that they bear a proportionate relationship to the percentage of completion of the Project (or the applicable portion thereof), as determined by the Construction Consultant and only after taking into account the Retainage, provided that amounts for “general conditions” specified in the Guaranteed Maximum Price Contract shall be funded as provided in the Guaranteed Maximum Price Contract.  Advances for developer “overhead” costs not covered by the further provisions of this Section 3.05(d) shall only be made for such costs that have actually been incurred.  No Advance shall be made for the Development Cost until (i) Core and Shell Completion shall have been achieved, (ii) the NYTC Units Redemption has occurred and (iii) the Pro Forma Debt Service Coverage Ratio shall be equal to or greater than 1.30:1.0, and any such Advance shall only be made with respect to the portion of the Development Cost then payable under the Development Agreement-ING.  Advances for the “Development Costs” line item in the NYTC Units Budget shall only be made when, and to the extent that, Developer is entitled to receive payments pursuant to, and in accordance with, Exhibit K of the Development Agreement-NYTC.  Advances shall be made to pay FC 41st Street the Leasing Incentive Fee (as defined in the FC Operating Agreement) only when, and to the extent that, FC 41st is entitled to such fee under the terms and conditions of the FC Operating Agreement.  After giving effect to the distribution in the amount of $11,590,343 to be made on the date hereof, any Advances for the “Site Management” line item in the FC Units Budget shall only be made in an amount not more than the quotient of (x) the then-remaining amount of such line item, divided by (y) the then-number of months (rounded to the nearest whole number) remaining until Final Completion, based on the then-current Construction Schedule.  Subject to the fulfillment of all conditions precedent to the making of an Advance, and provided that NYTC Member shall have made an additional equity contribution in the amount of $11,649,593.00, from and after the Completion Date, Advances may be requested by FC

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Member for the amount of the True-Up Payment provided for in Section 3.01(c) of the Operating Agreement.  From and after the Initial Construction Advance, Advances may be requested in the amount of the “overbudgeted” portion of any line item in the NYTC Units Budget pursuant to clause (A), (B) or (C) of the first sentence of Section 7.11(d) (and the proceeds of all such Advances shall be disbursed to NYTC Member or its designee) subject, however, to fulfillment of all conditions precedent to the making of an Advance and Section 7.35(b) hereof.

(e)All sums advanced by Lenders pursuant to any provision of any Project Loan Document, except so-called “protective advances” pursuant to any remedial provision of any Project Loan Document, insurance or condemnation proceeds, funds in the Completion Deposit or other funds (other than funds from Lenders) on deposit or escrowed with Agent pursuant to the provisions hereof, shall be deemed Advances of the Project Loan.

(f)Notwithstanding anything to the contrary contained herein or in any other Loan Document, no Advance shall be made hereunder or under the Building Loan Agreement for costs shown in the FC Units Budget or for costs shown in the NYTC Units Budget (i) if such Advance would cause the aggregate amounts of all Advances hereunder and under the Building Loan Agreement with respect to such Budget to exceed the applicable Maximum Amount or (ii) if such Advance would cause the aggregate amount of all Advances hereunder to exceed the Project Loan Amount or the aggregate amount of Advances under the Building Loan Agreement to exceed the Building Loan Amount.

SECTION 3.06Insufficiency of Loan Proceeds.  Notwithstanding anything contained herein to the contrary, if at any time or from time to time during the term of this Agreement, in Agent’s reasonable judgment (a) the amount of any line item in either Budget will be insufficient to cover the costs of such line item (after giving effect to any cost savings realized under Section 7.11, any Completion Deposit or portion thereof or any “Completion Deposit” under and as defined in the Building Loan Agreement or portion thereof not being credited for purposes of this clause (a) to another line item, or any other Other Funds) and/or (b) either of the Budgets is not In Balance (as defined below), then no further Advances or “Advances” (as defined in the Building Loan Agreement) shall be made until Borrower either (i) deposits the amount of such deficiency (the “Completion Deposit”) with Agent, in cash, or by means of other security in form, substance and amount reasonably satisfactory to Agent, (ii) to the extent permitted under Section 3.03 hereof and Section 3.03 of the Building Loan Agreement, allocates a portion of an applicable Project Loan Contingency or “Building Loan Contingency” (as defined in the Building Loan Agreement) to such insufficiency, and/or (iii) to the extent permitted under Section 7.11 hereof and Section 7.11 of the Building Loan Agreement, reallocates cost savings within the applicable Budget to offset such deficiency in accordance with the terms of this Agreement and the Building Loan Agreement.  “In Balance” shall mean that the sum of (1) the applicable Maximum Amount plus (2) all amounts in the Collection Accounts attributable to a Permitted Lease whose demised premises are in the applicable Units, and (3) the balance of any monies in any Completion Deposit, Borrower LC Deposit or “Completion Deposit” or “Borrower

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LC Deposit” (as such terms are defined in the Building Loan Agreement), previously made with respect to the applicable Budget, is sufficient to meet all remaining Building Loan Costs and Project Loan Costs shown in the applicable Budget (subject to Section 4.02(e)(9) hereof).  Portions of any Completion Deposit or any “Completion Deposit” (as defined in the Building Loan Agreement) (including, in each case, any interest earned thereon) held by Agent with respect to either Budget shall be applied to Project Loan Costs or Building Loan Costs simultaneously with the making of the immediately succeeding Advance as Other Funds, but only upon satisfaction of the terms applicable to the making of Advances set forth in this Agreement and in the other Project Loan Documents (if such Advance relates to Project Loan Costs) or the terms applicable to the making of advances set forth in the Building Loan Agreement and the other Building Loan Documents (if such advance relates to Building Loan Costs) (but no such release or application shall be deemed to be an Advance of Project Loan proceeds hereunder or Building Loan proceeds under the Building Loan Agreement).  Any Completion Deposit shall (A) be held by Agent in an interest-bearing account pursuant to a pledge and assignment agreement in form and substance reasonably satisfactory to Agent, which agreement Borrower shall execute and deliver to Agent simultaneously with the delivery of the first monies constituting a part of such deposit and (B) constitute (together with the interest earned thereon) additional collateral for the Project Loan and Building Loan.  Notwithstanding any of the foregoing, during the continuance of an Event of Default, Agent may apply Completion Deposits in such manner as Agent shall determine.

SECTION 3.07Quality of Work.  (a)  No Advance or any portion thereof shall be made with respect to defective work, work that is not in substantial compliance with the Plans and Specifications or in compliance with the Public Project Agreements or work which does not comply with all Legal Requirements applicable to the construction of the Project, each as reasonably determined by the Construction Consultant and Agent.  Lenders shall, subject to compliance by Borrower with all other applicable requirements of this Agreement, advance on the date of the next Advance the remainder of any such Advance or portion thereof previously not disbursed under this Section after Construction Consultant notifies Agent that the unsatisfactory work has been corrected.

(b)The making of an Advance by Lenders shall not constitute any Lender’s or Agent’s approval or acceptance of the construction theretofore completed or a waiver of any of the conditions to Lenders’ obligation to make future Advances, nor in the event that Borrower is unable to satisfy any such condition, shall any such failure to require that such condition be satisfied have the effect of precluding Agent from thereafter requiring that such condition be satisfied and refusing to make an Advance.  Agent’s or Construction Consultant’s inspection and approval of the Plans and Specifications, the construction of the Project, or the workmanship and materials used therein, shall impose no liability of any kind on Lenders, Agent or Construction Consultant, the sole obligation of Lenders as the result of such inspection and approval being to make the Advances if, and to the extent, required by this Agreement.

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SECTION 3.08Initial Required Equity Funds; Net Proceeds; Net Award or Proceeds.  (a) All Initial Required Equity Funds shall have been expended before any Advances of the Project Loan shall be made.  All Net Proceeds and Net Award or Proceeds, if any, that are held by Agent and made available to Borrower pursuant to Section 2.05(m) or Section 2.06, as applicable, of the Project Loan Mortgage, shall have been expended before any additional Advances of the Project Loan shall be made.

(b)Notwithstanding anything to the contrary in Section 3.08(a), if there is an “overbudgeted” line item in the NYTC Units Budget pursuant to clause (A), (B) or (C) of the first sentence of Section 7.11(d) prior to the contribution of all of the Initial Required Equity Funds, the Initial Required Equity Funds and the Maximum Amount-NYTC shall each be reduced by the amount of such cost savings.

SECTION 3.09Payment of Indebtedness.  On the Maturity Date the entire Indebtedness shall be due and payable.

SECTION 3.10Payment of Interest.  (a) Subject to paragraph (b) of this Section 3.10, the Outstanding Principal shall bear interest at the Interest Rate until the Maturity Date.  Interest on the Outstanding Principal shall (subject to Section 3.15 hereof) be due and payable in arrears on the first Business Day of each calendar month.

(b)The Outstanding Principal, and any interest (but not any interest not paid when due because Agent and/or Lenders do not comply with Section 5.03(b) hereof), fee or other amount payable hereunder or under any other Project Loan Document that is not paid when due (after giving effect to any applicable grace period expressly referred to herein or therein), shall bear interest from the due date thereof (without giving effect to any such grace period) until paid at the Default Rate.  During the continuance of an Event of Default, the Outstanding Principal and any interest, fee or other amount payable hereunder or under any other Project Loan Document shall bear interest at the Default Rate.

SECTION 3.11Late Charge.  Any and all amounts due hereunder or under the other Project Loan Documents (other than the Outstanding Principal due on the Maturity Date) which remain unpaid more than five (5) days after the date said amount was due and payable shall incur a fee (the “Late Charge”) of five percent (5.00%) of said amount, payable on demand, which shall be in addition to all of Agent’s other rights and remedies under the Project Loan Documents.

SECTION 3.12Prepayment.  (a)  In addition to prepayments made in accordance with the Project Loan Mortgage or Sections 7.05, 7.46 and 7.51 hereof, the then Outstanding Principal may be prepaid at any time, in whole or in part, 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) on any Business Day (other than the day immediately following Thanksgiving Day or Good Friday); provided, however, that Borrower shall pay at the time of any such prepayment (x) all accrued and unpaid

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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, 7.46 and 7.51 hereof shall, at Borrower’s (or the applicable Member’s) option, (i) be immediately used to prepay the Loans or (ii) pursuant to an agreement between Borrower (or the applicable Member) and Agent reasonably satisfactory to Agent, be held by Agent in an interest bearing account as additional collateral for the Building Loan and the Project Loan until a date selected by Borrower (or the applicable Member) that is not later than the first Business Day of the next succeeding calendar month (and Borrower (or the applicable Member) 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 proviso clause of the first sentence of Section 3.12(a) above shall apply to all prepayments pursuant to the preceding sentence.

(c)Borrower shall have no right to receive Advances of amounts repaid under this Agreement.

SECTION 3.13Increased Costs.  (a)  If, during the term of the Project Loan, there shall be any increase in the cost to any Lender of maintaining the LIBOR Rate (including, but not limited to, a reserve requirement), or a reduction on the amounts received or receivable under the Project Loan Notes, due to either (i) the introduction of or any change in the judicial or regulatory interpretation of any law or regulation or (ii) the compliance with any new guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), and provided that such change or new guideline or request generally affects similarly situated banks, financial institutions or any other applicable type of entity, then Borrower shall from time to time pay to Agent additional amounts sufficient to compensate such Lender for such increased cost.  A certificate as to the amount of such increased cost, explaining the reason for and showing the calculation of such increased cost, all in reasonable detail, submitted to Borrower by Agent or any Lender, shall be conclusive and binding for all purposes, absent manifest error.

(b)If Agent reasonably determines that compliance with any new law or regulation or any new guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Person controlling any Lender and that the amount of such capital is increased by or based upon the existence of the Project Loan Notes, and provided that such change or new guideline or request generally affects similarly situated banks, financial institutions or any other

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applicable type of entity, then Borrower shall pay to Agent or any such Lender, from time to time as specified by Agent or any such Lender, additional actual amounts sufficient to compensate each Lender or such Person in the light of such circumstances.  A certificate as to such amounts, explaining the reason for and showing the calculation of such amounts, all in reasonable detail, submitted to Borrower by Agent or any Lender, shall be conclusive and binding for all purposes, absent manifest error.

(c)Agent shall endeavor to give Borrower notice of any event giving rise to a payment under this Section reasonably promptly upon it being made aware of such event.

(d)If a Lender incurs increased costs pursuant to Section 3.13(a) hereof, such Lender shall use reasonable efforts to designate a different lending office for funding or booking its interest in the Loan or to assign its interest in the Loan to another of its offices, branches or affiliates if, in such Lender’s judgment, such designation or assignment (i) would eliminate or reduce such increased costs or any future increased costs and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any respect.

(e)The provisions of this Section 3.13 shall survive the termination of this Agreement and the payment of all amounts payable under the Project Loan Notes or the other Project Loan Documents.

SECTION 3.14Illegality and Inability to Determine.  (a)  Notwithstanding any other provision of this Agreement or the Project Loan Notes, if at any time after the date hereof Agent shall notify Borrower that (i) Agent is unable to determine the LIBOR Rate, (ii) the making or continuance of a LIBOR Rate loan has been made (x) unlawful by law or governmental rule, regulation or order, (y) impossible by compliance by any Lender with any new governmental request (whether or not having the force of law) or any change in the judicial or regulatory interpretation of any law or regulation, or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the interbank Eurodollar market, or (iii) due to circumstances affecting the LIBOR Rate market generally, the LIBOR Rate will not adequately reflect the cost to Lenders of maintaining such LIBOR Rate in effect, then the Interest Rate in effect for the Outstanding Principal shall automatically convert to the Base Rate plus one percent (1%) and the Default Rate in effect on the Outstanding Principal shall automatically convert to the Base Rate plus six percent (6%); unless, in the case of clause (iii), within five (5) Business Days of notice from Agent thereof, Borrower pays the difference in cost to Lenders of maintaining such LIBOR Rate in effect.

(b)If the circumstance described in subparagraph (a) is eliminated, the Interest Rate shall automatically convert back to the LIBOR Rate.

SECTION 3.15Payments and Computations.  (a)  All payments due under the Project Loan Documents shall be received by Agent not later than 2:00 P.M. (New York City time) on the day when due in U.S. dollars to Agent to the account

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specified in the Project Loan Notes.  Any payment received by Agent after 2:00 P.M. (New York City time) shall be deemed to have been made on the next succeeding Business Day.  Any payment due under any Project Loan Document which is timely paid to Agent shall be deemed, as between the Person making such payment and Lenders, to have been timely paid.

(b)All computations of interest shall be made by Agent on the basis of a year of 360 days, in each case for the actual number of days occurring in the period for which such interest is payable.  Each determination by Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(c)Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the immediately succeeding Business Day.

SECTION 3.16Net Payment; Taxes.  (a)  All payments to Lenders under any Project Loan Document shall be made without any set-off, defense or counterclaim, and free and clear of, and without deduction for any withholdings or on account of, any present or future income, excise and other taxes of whatever nature (other than taxes generally assessed on income or receipts of any Lender or any franchise taxes imposed upon any Lender), or any levies, imposts, duties, charges or fees of any nature now or hereafter imposed by any Governmental Authority, and all interest, penalties or other liabilities with respect thereto (collectively, “Taxes”).  If any Borrower Entity is compelled by law to make any such deductions or withholdings, Borrower shall (or shall cause such other Borrower Entity to) pay such additional amounts as may be necessary in order that the net amount received by Lenders after such deductions or withholdings (including any required deduction or withholding on such additional amounts) shall equal the amount each Lender would have received had no such deductions or withholdings been made, and Borrower shall (or shall cause such other Borrower Entity to) promptly provide Agent with evidence satisfactory to Agent that it has paid such deductions or withholdings.  Moreover, if any Taxes are directly assessed against any Lender, such Lender may pay such Taxes and Borrower shall pay such additional amount as may be necessary in order that the net amount received by such Lender after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount such Lender would have received had no such Taxes been assessed.

(b)Borrower will indemnify Lenders for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts paid or payable under this Section 3.16 paid by Lenders and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto).  Payments pursuant to this Section 3.16 shall be made within ten (10) days after the date Agent makes written demand therefor.

(c)For purposes of this Section 3.16, the term “Lender” shall include any Person who, for purposes of the relevant laws imposing any Taxes, is treated as a successor or assign in interest of all or any portion of an interest in any Project Loan Document, whether such Person is an assignee or a Participant and whether or not such

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Person is a registered assignee and shall also include Agent and GMACCM in their respective capacities hereunder; provided, however, that if such Person is a Participant, such Person shall only be entitled to receive payments under this Section 3.16, and Borrower shall only be obligated to make payments under this Section 3.16 with respect to such Participant, to the extent that the Taxes assessed against, or paid by, such Participant do not exceed the Taxes that would have been assessed against, or paid by, the Lender from whom such Participant acquired (whether directly or indirectly) such interest.

(d)The agreements and obligations contained in this Section 3.16 shall survive the termination of this Agreement and the payment of all amounts payable under the Project Loan Notes or the other Project Loan Documents.

(e)(i)Each Non-US Lender shall deliver to Borrower and Agent, on or prior to the date of the applicable Assignment and Acceptance Agreement pursuant to which it becomes a Lender, (A) two original copies of Internal Revenue Service Form W8-ECI or Form W-8BEN (or any successor forms), properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required under the Code to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payment to such Lender of principal, interest, fees or other amounts payable under any of the Project Loan Documents or (B) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Code and cannot deliver either Internal Revenue Service Form W8-ECI or Form W-8BEN pursuant to clause (A) above, a Certificate of Non-Bank Status, together with two original copies of Internal Revenue Service Form W-8 (or any successor form), all properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required under the Code to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payment to such Lender of interest payable under any of the Project Loan Documents.

(ii)Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to clause (i) of subsection 3.16(e) above hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly (A) deliver to Borrower two new original copies of Internal Revenue Service Form W8-ECI or Form W-8BEN (or any successor forms) or a Certificate of Non-Bank Status and two original copies of Internal Revenue Service Form W-8 (or any successor form), as the case may be, properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required in order to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under

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the Project Loan Documents or (B) notify Borrower of its inability to deliver any such forms, certificates or other evidence.

(iii)No Borrower Entity shall be required to pay any additional amount to any Non-US Lender under Section 3.16(a) hereof if such Lender shall have failed to satisfy the requirements of subsection (i) or (ii)(A) of Section 3.16(e) above; provided that if such Lender shall have satisfied the requirements of subsection (i) of Section 3.16(e) on the date of the Assignment and Acceptance Agreement pursuant to which it became a Lender, nothing in this Section 3.16(e)(iii) shall relieve any Borrower Entity of its obligation to pay any additional amounts pursuant to Section 3.16(a) in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described in Section 3.16(e)(i).

SECTION 3.17Distribution to Lenders.  (a)  In the event Agent receives current funds, in payment of principal, interest or any other sums due hereunder of which Lenders are entitled to a share, on or prior to 2:00 P.M. (New York City time) on any Business Day, then, on such date, Agent will notify Lenders of the same and will distribute like funds by wire transfer of immediately available funds to each Lender ratably to such accounts at such places as have been designated by the respective Lenders in writing from time to time.  If such funds are received after 2:00 P.M. (New York City time) on any Business Day, then Agent shall distribute such funds no later than the next succeeding Business Day.  Upon Agent’s receipt of any other amounts payable by Borrower or any other Person for items other than principal, interest or any other sums due under the Project Loan Documents of which Lenders are entitled to a share pursuant to the terms of any Project Loan Document or any Assignment and Acceptance Agreement, Agent shall cause the payment to be applied in accordance with this Agreement, the other Project Loan Documents and such Assignment and Acceptance Agreement.

(b)If any Lender shall obtain any payment (whether voluntary or involuntary, through the exercise of any right of set-off, or otherwise) on account of the amounts owing to it in excess of its ratable share of payments on account of amounts obtained by all Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the amounts owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.  Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this

45

Section 3.17(b) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation.

SECTION 3.18Balloon Payment.  Borrower understands and acknowledges that this Agreement and the other Project Loan Documents do not provide for any required amortization of the Project Loan and therefore, at the Maturity Date, a balloon payment of the Outstanding Principal will be required, along with payment in full of other sums due hereunder and under the other Project Loan Documents.

SECTION 3.19Extensions.  (a)  Borrower shall have two (2) options to extend the term of the Loans (but not the term of only the Project Loan or only the Building Loan) for six (6) months each upon the satisfaction of the following terms and conditions:

(i)not less than sixty (60) days before the Maturity Date, Borrower shall have given Agent notice of its election to extend the term of the Loans pursuant to this Section 3.19(a) and Section 3.19(a) of the Building Loan Agreement (the date on which such notice shall be given being hereinafter referred to as the “Extension Option Exercise Date”);

(ii)on the Extension Option Exercise Date and through and including the Maturity Date, no monetary Event of Default shall exist;

(iii)Borrower shall pay the Extension Fee on or before the Maturity Date;

(iv)Core and Shell Completion shall have been achieved by the date which is fifteen (15) days prior to the Maturity Date (the “Measuring Date”) and a temporary certificate of occupancy (which may be a zero occupancy or core and shell certificate of occupancy) shall have been issued for the Project on or before the Measuring Date;

(v)as of the Measuring Date, the Pro Forma Debt Service Coverage Ratio (calculated after giving effect to the payment made pursuant to clause (6) of Section 7.46(a) hereof) shall be equal to or greater than 1.30:1.0, provided that, for purposes of this clause (vi), only Approved Leases with respect to which Rents are being paid as of the Measuring Date shall be included for purposes of calculating Pro Forma Operating Income;

(vi)the NYTC Units Redemption shall have occurred on or before the Measuring Date; and

(vii)the ratio, expressed as a percentage, of the Remaining Loan Amount as of the Maturity Date to the Appraised Value (as shown in 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

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case dated as of a date no earlier than sixty (60) days prior to the Measuring Date) shall be equal to or less than fifty-five percent (55%).

If the conditions under this Section 3.19(a) are met, then the reference to the Original Maturity Date in the definition of Maturity Date (or such later date that has replaced the Original Maturity Date in said definition as a result of the application of the last sentence of Section 3.19(b) hereof) shall be deemed deleted and replaced with a reference to a date that is the six-month anniversary of the Original Maturity Date (or such later date) (in the case of the first option) (such date, the “First Extended Maturity Date”) or the date that is the six-month anniversary of the First Extended Maturity Date (or such later date that has replaced the First Extended Maturity Date in said definition as a result of the application of the last sentence of Section 3.19(b) hereof)(in the case of the second option) (the “Second Extended Maturity Date”).  Such extension shall be on the same terms and conditions contained in this Agreement except (x) to the extent expressly provided to the contrary herein, and (y) if the first extension has occurred, Borrower shall only have the right to one (1) remaining six-month extension pursuant to this Section 3.19(a) and if the second extension has occurred, Borrower shall have no further right to extend the term of the Loans pursuant to this Section 3.19(a).

(b)Force Majeure Extension.  Borrower shall have one or more options to extend the term of the Loans (but not the term of only the Project Loan or only the Building Loan) if a Force Majeure Event shall have occurred and if the following terms and conditions are satisfied:  (i) not more than five (5) Business Days after Borrower becomes aware of the occurrence of a Force Majeure Event, Borrower shall have given Agent notice of the occurrence of such Force Majeure Event and a notice of its election to extend the term of the Loans pursuant to this Section 3.19(b) and Section 3.19(b) of the Building Loan Agreement (the date on which such notice shall be given being hereinafter referred to as the “Force Majeure Extension Option Exercise Date”); (ii) in the reasonable judgment of Agent, such Force Majeure Event will delay Final Completion of the Project beyond the Maturity Date; (iii) in the reasonable judgment of Agent, Borrower shall have taken all steps commercially reasonable to mitigate the effects of such Force Majeure Event; (iv) on the Force Majeure Extension Option Date, no Noticed Default or Event of Default shall exist under any Loan Document; (v) Borrower shall have provided to Agent evidence of the continuation of the Policies and the payment of any premiums then due therefor; (vi) appropriate extensions, to the extent required to keep such document in full force and effect and free from any default, shall have been granted under the Public Project Agreements and for a period of time at least equal to the Force Majeure Extension Period; (vii) Borrower shall have provided to Agent evidence of the continuation of the Initial Advance Interest Rate Cap through the extended Maturity Date on terms and conditions reasonably satisfactory to Agent, to the extent Borrower was required to purchase the Initial Advance Interest Rate Cap in accordance with the terms hereof, or, if no Initial Advance Interest Rate Cap was so required, Borrower and Agent shall have entered into a written agreement reasonably satisfactory to Agent with respect to interest rate protection during the Force Majeure Extension Period (provided that if, in Agent’s discretion, the cost of any interest rate protection required by this clause (vii) is prohibitive, Borrower may deposit with or deliver to Agent other security in lieu thereof satisfactory to Agent); and (viii) each

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Guarantor shall acknowledge and confirm to Agent, on or prior to the Maturity Date, the exercise of the extension period by Borrower.  The period of the extension option under this Section 3.19(b) shall be determined by Agent in its reasonable judgment and shall be equal to the number of days by which Substantial Completion has been or is reasonably expected to be delayed due to such Force Majeure Event, assuming that Borrower and the General Contractor take all steps commercially reasonable to mitigate the effects of such Force Majeure Event; provided, however, that (x) in no event shall all extensions pursuant to this Section 3.19(b) be more than 180 days in the aggregate (the period of such extensions being hereinafter collectively referred to as the “Force Majeure Extension Period”) and (y) any such extension shall in all events end if, and as of the date that, Borrower is not in compliance with the immediately succeeding sentence.  If a Force Majeure Event shall have occurred, Borrower shall (1) periodically (at least once every two weeks) advise Agent of the status of such Force Majeure Event and its effect on completion of the Project and (2) take all steps, and cause the General Contractor to take all steps, commercially reasonable to mitigate the effects of such Force Majeure Event.  If the Maturity Date is extended in accordance with this Section 3.19(b), all references to the Original Maturity Date, the First Extended Maturity Date, or the Second Extended Maturity Date shall be interpreted so that such references are to such date, as extended by the applicable Force Majeure Extension Period.

(c)Borrower shall pay at the time of and as a condition to the extension of the term of the Project Loan described in Sections 3.19(a) and (b) above, (i) all reasonable, third-party out-of-pocket fees and expenses of Agent in preparing, executing, delivering, or recording any documents or instruments related to such extension, and (ii) all reasonable, third-party out-of-pocket fees and expenses of Agent in connection with any title company searches and insurance which Agent may reasonably then require.

(d)Without Agent’s prior reasonable consent, Borrower shall not consent to an extension for an “Excusable Delay” under Section 11.7 of the Guaranteed Maximum Price Contract unless (i) such “Excusable Delay” is a Force Majeure Event and (ii) the conditions set forth in clauses (i)-(viii) of Section 3.19(b) hereof have been satisfied.

SECTION 3.20Reallocations.  Agent and Borrower acknowledge and confirm that NYTC Member has the right to dispute any Draw Request (including if made after the NYTC Units Redemption) and the allocation of costs to the Units shown in any Draw Request, as and to the extent set forth in the Operating Agreement.  (Notwithstanding the foregoing or the further provisions of this Section 3.20, no such dispute shall abrogate, nullify or modify any Draw Request or any portion thereof.)  Agent and Borrower further acknowledge that, following the resolution by agreement between the Members of any such dispute (which agreement or determination Borrower, the Members, and Agent shall accept as final and binding), Borrower shall reallocate Building Loan Costs and Project Loan Costs between the FC Units and the NYTC Units as necessary to reflect the resolution or arbitration of the issues in dispute, and the next Draw Request shall reflect such re-allocations.  More particularly, Borrower and Agent agree that if any costs were (or are) initially allocated to the FC Units or the NYTC Units

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(such Units, the “Overfunding Unit”) and then are re-allocated to the other Units (such Units, the “Underfunding Unit”), the Building Loan Costs and Project Loan Costs allocated to the Overfunding Unit shall be decreased by all such amounts which are so re-allocated, together with interest thereon as provided herein from the date on which such cost was (or is) paid by an Advance, until the date on which each such cost is re-allocated to the Underfunding Units, and the Building Loan Costs and Project Loan Costs of the Underfunding Units shall be likewise increased.  In such event, at the next Draw Request, the Maximum Amount covering the Overfunding Unit shall be retroactively increased to reflect the reallocated items of Building Loan Costs and Project Loan Costs, together with interest at the Interest Rate from the date of the Advance for such item, and the outstanding balance of the Maximum Amount covering the Underfunding Units shall be retroactively decreased to reflect such reallocated items of Building Loan Costs and Project Loan Costs, together with interest at the Interest Rate.  Corresponding adjustments shall be made in the applicable Budgets.  In addition, if the Overfunding Unit had funded such amount not through an Advance but through a capital contribution or out of other funds, then a reallocation shall be made to reflect such amount in the applicable Budgets.

ARTICLE 4

CONDITIONS PRECEDENT TO PROJECT LOAN
CLOSING AND DISBURSEMENT OF LOAN PROCEEDS

SECTION 4.01Conditions of Project Loan Closing.  The obligation of Agent to execute and deliver on the Closing Date the Loan Documents to which it is a party shall be subject to the following conditions precedent, unless any such condition precedent is waived by Agent in its sole discretion (and Agent hereby agrees that its execution and delivery of this Agreement constitutes an acknowledgment that all such conditions precedent have been satisfied or waived as a condition precedent to the closing hereunder):

(a)Payment of Fees.  Borrower shall have paid all fees described in the Commitment Letter as being payable on or before the closing of the Project Loan and all other fees and expenses required by this Agreement, the Side Letter re: Fees or any other Project Loan Document to be paid on the Closing Date including, without limitation, the Administration Fee allocable to the period of time from the Closing Date through the end of the calendar month on which the Closing Date occurs.

(b)Required Equity Funds.  Borrower shall have furnished Agent with evidence in form and content satisfactory to Agent of the Initial Required Equity Funds contributed as of the date immediately preceding the date hereof, which Initial Required Equity Funds are set forth on Schedule 1 hereto, and that the Loan Amount plus all Initial Required Equity Funds will be sufficient to cover all Building Loan Costs and Project Loan Costs reasonably anticipated to be incurred, as set forth in the Budgets.

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(c)Project Loan Documents.  The Project Loan Documents listed in Article 2 hereof, in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto and shall be in full force and effect, and Agent shall have received the originals thereof.

(d)Guaranteed Maximum Price Contract.  The Guaranteed Maximum Price Contract, together with that Guarantee of Performance dated as of February 5, 2004 by the GMP Guarantor in favor of Borrower (the “GMP Guaranty”), each of which shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto, shall be in full force and effect and Agent shall have received a certified copy thereof.  The General Contractor shall have duly executed and delivered to Agent a consent to the collateral assignment of the Guaranteed Maximum Price Contract and the GMP Guarantor shall have duly executed and delivered to Agent a consent to the collateral assignment of the GMP Guaranty, in form and substance satisfactory to Agent.

(e)Architect’s Contract.  The Architect’s Contract, in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto, shall be in full force and effect and Agent shall have received a certified copy thereof.  Borrower’s Architects shall have duly executed and delivered to Agent a consent to the collateral assignment of the Architect’s Contract, in form and substance satisfactory to Agent.

(f)Leasing Agent Agreement.  If any Leasing Agent Agreement shall have been executed, (a) such Leasing Agent Agreement shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto and shall be in full force and effect, (b) Agent shall have received a certified copy thereof and (c) if requested by Agent, the leasing agent thereunder shall have duly executed and delivered to Agent a consent to the collateral assignment of such Leasing Agent Agreement, in form and substance satisfactory to Agent.

(g)Managing Agent Agreement.  If any Managing Agent Agreement shall have been executed by Borrower or any Member, (a) such Managing Agent Agreement shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered by the parties thereto and shall be in full force and effect, (b) Agent shall have received a certified copy thereof and (c) the managing agent thereunder shall have duly executed and delivered to Agent a consent to the collateral assignment of such Managing Agent Agreement, in form and substance satisfactory to Agent.

(h)Other Material Contracts.  Borrower shall have delivered to Agent true, correct and complete photocopies of all other Material Contracts in effect as of the date hereof, certified by Borrower or such other Borrower Entity which is a party thereto, and at Agent’s option, a consent to the collateral assignment of such contracts.

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(i)Deliveries.  The following items or documents shall have been delivered to Agent, each of which shall be in form and substance satisfactory to Agent:

(1)Plans and Specifications.  Two (2) complete sets of the Plans and Specifications, including each Change Order (regardless of whether the amount of such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced), certified by Borrower;

(2)Title Insurance Policy.  A marked commitment to issue a paid mortgagee title insurance policy (the “Title Insurance Policy”) from the Title Insurance Companies, which marked commitment shall be subject only to the Permitted Exceptions, shall insure the Project Loan Mortgage as a valid first lien on the applicable Mortgaged Property and shall be in the amount of the Project Loan Amount (subject to any pending disbursements clause) and shall contain such coverages, endorsements, re-insurance and co-insurance as the Agent may require;

(3)Other Insurance.  The original of all Policies which shall be in form and content acceptable to Agent and an insurance consultant acceptable to Agent and evidence from insurance companies acceptable to Agent indicating that Borrower’s Architects, General Contractor and all other Major Contractors and Major Subcontractors are covered by professional liability insurance or other liability insurance, as applicable, as required by the applicable contract;

(4)Equity Contribution.  All of the Equity Contribution Documents, certified by FC Member and NYTC Member;

(5)Extension Loan.  If NYTC Guarantor does not have an Acceptable Rating as of the Closing Date, cash or a letter of credit in an amount and (in the case of a letter of credit) in the form and containing such provisions as are acceptable to Agent, as security for the Extension Loan;

(6)Labor Agreement.  An executed and delivered “no strikes” agreement between Borrower and the Building & Construction Trade Council of Greater New York (the “No Strikes Agreement”) in form and substance satisfactory to Agent;

(7)Environmental Report.  A Phase I environmental site assessment prepared by an environmental consulting or engineering firm acceptable to Agent upon which Agent is expressly entitled to rely, a “close-out” letter relating to asbestos abatement upon which Agent is expressly entitled to rely, and if requested by Agent, a Phase II environmental site assessment, indicating in each case a condition of the

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Premises in all respects satisfactory to Agent, and upon which Agent is expressly entitled to rely;

(8)Survey.  The Survey;

(9)Submarket Analysis.  A submarket analysis, including, without limitation, potential new construction, rents, expenses and absorption underwritten by Agent in form and substance satisfactory to Agent;

(10)Geotechnical Updates.  A geotechnical report from an engineering company satisfactory to Agent, which report shall indicate a condition of the Premises in all respects satisfactory to Agent, and upon which report Agent is expressly entitled to rely;

(11)Governmental Approvals and Third Party Approvals.  All Governmental Approvals and all other third party consents and approvals necessary for the valid execution, delivery and performance by any Borrower Entity of this Agreement or the other Project Loan Documents and for the construction of the Project as contemplated by the Plans and Specifications, including, without limitation, a building permit to the extent then required by applicable law;

(12)Architect’s Statement and General Contractor’s Certificate.  A statement from Lead Architect (the “Architect’s Certificate”) and a certificate from the General Contractor (the “General Contractor’s Certificate”) in the forms attached hereto as Exhibits I and J, respectively or in such other forms as may be acceptable to Agent;

(13)Leases.  Copies of all Leases, if any, each certified by Borrower or the applicable Member, as applicable, and each satisfactory to Agent; Non-Disturbance Agreements between Agent and the tenants under such Leases to the extent required by Section 7.14(b) hereof (with such changes thereto as may be reasonably approved by Agent) or in such other form as may be reasonably approved by Agent; estoppel certificates from the tenants under such Leases, in the form attached hereto as Exhibit K; a New York Real Property Law Section 291-f notice (a “Section 291-f Notice”) with respect to each Lease; and an executed acknowledgment from each tenant under such Leases relating to the payment of rent and security deposits to the applicable Collection Accounts and Security Deposits Account and the use of an expedited check clearing process;

(14)Organizational Documents.  Copies of all organizational documentation related to the Borrower Entities and such other entities as Agent shall request and/or their formation, structure, existence, good standing and/or qualification to do business, as Agent may

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request, including such resolutions and/or consents and incumbency certificates as may be requested by Agent, certified in each case by the applicable Borrower Entity;

(15)Ownership Structure Chart.  A chart showing all direct and indirect ownership interests in Borrower and the Members (but not including any direct or indirect ownership interests in either Guarantor provided that the shares of such Guarantor are listed on a nationally recognized exchange), to the extent required by Agent, in form and substance acceptable to Agent and certified by Borrower or the applicable Member, as true, complete and correct in all respects as of the Closing Date;

(16)Budgets.  The Budgets, certified by Borrower;

(17)Searches.  To the extent required by Agent, current tax lien, pending litigation, bankruptcy, judgment lien and Uniform Commercial Code searches against each Borrower Entity and such other entities as Agent shall request, in such jurisdictions and offices as Agent shall designate, dated not earlier than 30 days before the Closing Date.  Such searches shall not have revealed any lien, litigation, bankruptcy or filing against any such entities other than those acceptable to Agent; and

(18)Plan and Cost Review.  A plan and cost review prepared by Construction Consultant and acceptable to Agent.

(j)Legal Opinions.  Agent shall have received opinions addressed to Agent in form and substance satisfactory to Agent and Agent’s counsel from counsel satisfactory to Agent as to such matters (including, without limitation, zoning matters, the Guaranteed Maximum Price Contract and the GMP Guaranty) as Agent shall request.

(k)Union Labor.  Agent shall have received evidence satisfactory to it (and Agent acknowledges that the execution by General Contractor of the General Contractor’s Certificate shall be satisfactory evidence) that all work performed in connection with the construction of the Project has been performed in accordance with the provisions of Section 7.37 hereof.

(l)Notices.  All notices required by any Governmental Authority or by any applicable Legal Requirements to be filed prior to the date of this Agreement in connection with the Project or the Project Loan shall have been filed.

(m)Appraisal.  An appraisal satisfactory to Agent prepared by an appraiser satisfactory to Agent (an “Appraisal”).

(n)Performance; No Default.  Each Borrower Entity shall have performed and complied with all terms and conditions of the Project Loan Documents to which each is a party required to be performed or complied with by it at or prior to the

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Closing Date, and on the Closing Date, there shall exist no Default or Event of Default hereunder.

(o)Representations and Warranties.  The representations and warranties made by the Borrower Entities in the Project Loan Documents or otherwise made by or on behalf of such Borrower Entities in connection therewith shall be true and correct in all material respects on the Closing Date.

(p)Proceedings.  All proceedings in connection with the transactions contemplated by this Agreement and the other Project Loan Documents shall be satisfactory to Agent and Agent’s counsel, and Agent shall have received all information and such counterpart originals or certified copies of such documents and such other certificates, opinions or documents as Agent and Agent’s counsel may require.

(q)[INTENTIONALLY OMITTED]

(r)Building Loan.  All entities (other than Agent) required to execute or deliver any document in connection with the Building Loan shall have simultaneously executed and/or delivered such documents and all conditions precedent to the Project Loan set forth in Section 4.01 of the Building Loan Agreement shall have been fulfilled (or waived by Agent in its sole discretion).

(s)ADA Compliance.  Borrower shall have furnished evidence satisfactory to Agent that the Improvements, when constructed, will comply in all respects with the Americans with Disabilities Act of 1990, all state and local laws and ordinances relating to handicapped access and all rules, regulations and orders issued pursuant thereto, including, without limitation, a report on the Americans with Disabilities Accessibility Guidelines for Buildings and Facilities (and Agent acknowledges that the execution by the Lead Architect of the Architect’s Certificate shall be satisfactory evidence thereof).

(t)Construction Consultant’s Report.  Agent shall have received a written report from the Construction Consultant, in form and substance satisfactory to Agent, relating to the construction of the Project performed prior to the Closing Date, including, without limitation, a report on the percentage of completion which has been achieved as of the Closing Date for each of the Units.

(u)Schedules.  Borrower shall have delivered to Agent the Construction Schedule and the Disbursement Schedule, each certified by Borrower, and each such schedule shall be satisfactory to Agent and Construction Consultant.

(v)[INTENTIONALLY OMITTED]

(w)Tri-Party Agreement and Estoppel Letters.  (i) Borrower shall have delivered that certain Tri-Party Agreement by and among Ground Lessor, Borrower, the Members and Agent, for itself and on behalf of Lenders (“Tri-Party Agreement”) with respect to the Ground Lease and the Severance Subleases, in form and substance acceptable to Agent, and (ii) an estoppel letter in form and substance

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acceptable to Agent from (1) the New York City Transit Authority with respect to the Subway Agreement (the “Subway Agreement Estoppel Letter”), and (2) from ESDC, Ground Lessor and the City of New York with respect to the Site 8 Project Agreement, the Land Acquisition Agreement and the Subway Agreement (the “Public Project Agreements Estoppel Letter”), each in form and substance acceptable to Agent.

(x)Closing Statement.  Borrower and Agent shall have executed and delivered a closing statement setting forth, in reasonable detail, the sources and uses of funds as of the Closing Date.

(y)Zoning; Transfer Tax Rulings, etc.  Borrower shall have delivered to Agent evidence satisfactory to Agent that (i) all zoning approvals required for the construction of the Project have been obtained and (ii) Borrower has complied with all requirements of the Subway Agreement to the extent required as of such date.  Borrower shall have delivered to Agent rulings, in form and substance satisfactory to Agent, from the City and State of New York, with respect to the future exemption from transfer taxes of the redemption by each Member of its Units.

(z)Approvals.  Borrower shall have delivered a letter or other acknowledgment in form and substance satisfactory to Agent (i) from ING Member and FC 41st Street that the Loans are an “Acceptable Construction Loan” for purposes of the FC Operating Agreement and (ii) from ING Member approving the Equity Contribution and waiving its right to contest any Draw Request.

(aa)Other Documents.  Borrower shall have delivered such other documents and certificates as Agent or its counsel may reasonably require.

SECTION 4.02Conditions of Advances.  The obligation of the Lenders to make the initial Advance (the “Initial Construction Advance”) or any subsequent Advances (unless any such condition precedent is waived by Agent in its sole discretion (subject to Section 8.03 hereof)) of the Project Loan shall be subject to the following conditions precedent:

(a)Prior Conditions Satisfied.  All conditions precedent set forth in Section 4.01 shall continue to be satisfied as of the date of each Advance, provided that all such conditions precedent shall be deemed to be continued to be satisfied and Borrower shall have no obligation to deliver or satisfy any such conditions except that Borrower shall be obligated to deliver the documents referred to in Sections 4.01(f) and (g) hereof (if not previously delivered) and any amendments, modifications, substitutions, replacements or supplements to the documents referred to in Sections 4.01(c)-(h) and (k)-(l) hereof.

(b)Performance; No Default.  On the date of such Advance there shall exist no Noticed Default or Event of Default hereunder and no Noticed Default or Event of Default under and as defined in the Building Loan Agreement.

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(c)Representations and Warranties.  The representations and warranties made by Borrower Entities in the Project Loan Documents, or otherwise made by or on behalf of Borrower Entities in connection therewith after the date thereof, shall have been true and correct in all material respects on the date on which made and shall also be true and correct in all material respects on the date of such Advance, except (a) in each case to the extent that the failure of any such representation or warranty to be true and correct in all material respects on the date of such Advance does not have, and is not reasonably likely to have, a Material Adverse Effect (it being agreed, however, that if the facts causing such failure of any representation or warranty to be untrue or incorrect shall constitute a Default or Event of Default, nothing herein shall be construed to constitute a waiver by Agent of such Default or Event of Default) and (b) that the representations made in Section 6.04(b) and the second sentence of Section 6.05(a) and the representations made in Section 6.10 and Section 6.13 with respect to the Guarantors need not be true and correct on the date of each Advance.

(d)No Damage.  The Project shall not have been injured or damaged by fire, explosion, accident, flood or other casualty, or been subject to any condemnation, governmental taking or eminent domain proceeding (other than the “Condemnation” as defined in the Ground Lease and the Severance Subleases) unless Agent shall have received (or shall have received evidence reasonably satisfactory to Agent that Agent will receive in a timely manner) Net Proceeds, Net Awards or Proceeds and/or a Completion Deposit sufficient in the reasonable judgment of Agent to effect the satisfactory restoration of the Project, “Substantial Completion” (as defined in the Ground Lease) to be achieved by no later than the Fixed Substantial Completion Date (subject to Unavoidable Delay) and Final Completion to be achieved no later than the Maturity Date, which restoration shall be governed by the terms of the Project Loan Mortgage.

(e)Receipt by Agent and Construction Consultant.  Agent and Construction Consultant shall have received the following at least 10 Business Days prior to (or, in the case of clause (3), on) the Requested Advance Date:

(1)Draw Request.  A Draw Request (which shall also be submitted to the Disbursement Agent, but only to the extent Agent has informed Borrower that the Advance in question will be advanced by Disbursement Agent pursuant to Section 5.02(b) hereof) specifying the date proposed for such Advance, which date must be a Business Day (the “Requested Advance Date”);

(2)Schedule of Other Funding Sources.  If applicable, a statement as to the amount of Building Loan Costs and Project Loan Costs intended to be paid or funded on the Requested Advance Date with Other Funds;

(3)Title Continuation Letter.  A continuation letter with respect to the Title Insurance Policy theretofore delivered, which continuation letter shall be substantially in the form required by the

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Construction Loan Disbursement Agreement and shall show no exceptions to title other than Permitted Exceptions;

(4)[INTENTIONALLY OMITTED]

(5)Architect’s and General Contractor’s Certificates.  A General Contractor’s Certificate from the General Contractor and an Architect’s Certificate from the Lead Architect;

(6)[INTENTIONALLY OMITTED]

(7)Interest Rate Caps.  As a condition to the Initial Advance only, and only if Breakeven Leasing has not been achieved by the Requested Advance Date for the Initial Advance, Borrower shall have delivered to Agent an interest rate cap in form and substance acceptable to Agent (the “Initial Advance Interest Rate Cap”) between Borrower and a counterparty acceptable to Agent which shall cap the LIBOR Rate for the Building Loan and Project Loan until the Maturity Date (without giving effect to any extensions under Section 3.19(a) hereof) at the rates, and for the corresponding periods set forth in, Schedule 2 hereto, together with (i) a collateral assignment of the Initial Advance Interest Rate Cap in the form of Exhibit M hereto (an “Assignment of Interest Rate Cap”), (ii) a consent by the counterparty thereto to such collateral assignment and (iii) an opinion, in form and substance and from counsel reasonably acceptable to Agent, as to the due authorization, execution and delivery by Borrower and enforceability of, and other customary matters with respect to, the Initial Advance Interest Rate Cap and the Assignment of Interest Rate Cap, but in no event as to any matters with respect to such counterparty (other than enforceability of the Initial Advance Interest Rate Cap against such counterparty).  If Breakeven Leasing has been achieved by the Requested Advance Date with respect to the Initial Advance (and therefore Borrower shall not have been required to deliver the Initial Advance Interest Rate Cap), Borrower shall have delivered to Agent the Future Advance Interest Rate Caps and other items as and to the extent required by Section 7.20 hereof as of the Requested Advance Date as a condition to any subsequent Advance;

(8)Application for Payment.  From each Major Contractor (including the General Contractor), a completed and itemized Application and Certificate for Payment in the form of AIA Document No. G702 (including AIA Form G703 as an attachment thereto), or similar form reasonably approved by Agent, containing the required certification of such Major Contractor and Borrower’s Architects, together with all invoices relating to all items of Project Loan Costs covered thereby and further accompanied by a cost breakdown showing the cost of work on, and the cost of materials incorporated into, the Project to the date of the requisition.  The cost breakdown shall also show the percentage of

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completion of each line item in the Budgets.  All such applications for payment shall also show all contractors and subcontractors, including Major Subcontractors, by name and trade, the total amount of each contract and/or subcontract, the amount theretofore paid to each contractor and/or subcontractor as of the date of such application, and the amount to be paid from the proceeds of the Advance to each contractor and/or subcontractor;

(9)Changes to Budgets.  An update of the Budgets reflecting all actual and anticipated costs and in compliance with Section 3.02 hereof, which update must be approved by Agent, such approval not to be unreasonably withheld or delayed; provided that nothing in this Section 4.02(e)(9) shall entitle Agent to request, or shall permit Agent to condition its consent to any change(s) in the Budgets on (x) an increase in any line item in the Budgets for tenant improvements or leasing commission costs and/or (y) an increase in any interest line item on account of any delay in achieving Stabilized Occupancy.  The proviso clause of the preceding sentence shall not apply with respect to any Advance made on or after the Original Maturity Date (after giving effect to any extensions under Section 3.19(b) hereof) if, as of the Original Maturity Date, the ratio (expressed as a percentage) of the Remaining Loan Amount to the Appraised Value of the FC Units is more than 70%.  Nothing in this Section 4.02(e)(9) shall prohibit Agent from reasonably withholding its consent to any line item decrease in any of the line items referred to in clauses (x) and (y) above;

(10)Change Orders.  Copies of all Change Orders, regardless of whether the amount of such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced) to the extent not previously delivered to Agent, and, to the extent reasonably requested by Agent, copies of all inspection or test reports and other documents relating to the construction of the Project not previously delivered to Agent or Construction Consultant;

(11)Disbursement Schedule and Construction Schedule.  An update of the Disbursement Schedule (but only if requested by Agent) and Construction Schedule, which updates must be approved by Agent, which approval shall not be unreasonably withheld or delayed (provided that with respect to the Disbursement Schedule only, Agent shall be deemed to have approved any best estimate update made in good faith by Borrower).  Each such update must reflect all Change Orders, regardless of whether the amount of any such Change Order and/or any extension of time with respect thereto has been agreed to and regardless of whether work on such Change Order has commenced.  If any such update includes changes to the Disbursement Schedule, such update must be accompanied by evidence reasonably satisfactory to Agent that the Interest Rate Cap(s)

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(but only to the extent required by the terms hereof) will be modified, to the extent necessary, to conform with such changes, and if any such update includes changes to the Construction Schedule, such update must be accompanied by evidence reasonably satisfactory to Agent that such change does not make it likely that Borrower will fail to achieve “Substantial Completion” (as defined in the Ground Lease) by the Fixed Substantial Completion Date (subject to Unavoidable Delay) and Final Completion by the Maturity Date;

(12)Governmental and Third Party Approvals.  To the extent not previously delivered, all Governmental Approvals and all other third party consents and approvals necessary for the Project as contemplated by the Plans and Specifications, including, without limitation, a building permit; and

(13)Stored Materials.  The letter referred to in Section 3.04(c) hereof, to the extent that such Advance includes Loan proceeds for Stored Materials, but only if Borrower shall have acquired Stored Materials that are not subject to any previous letter delivered to Agent pursuant to said Section.

(f)Material Contracts; Leases.  Agent shall have received true, correct and complete photocopies of all Material Contracts and Leases in effect on the date of the Draw Request, to the extent not previously delivered to Agent, certified by Borrower or the Borrower Entity which is a party thereto.  Each such Material Contract shall have been approved by Agent in accordance with Section 7.13 hereof; and a consent to the collateral assignment of any Material Contract, if requested by Agent, in form and substance reasonably satisfactory to Agent, shall be delivered to Agent, to the extent not previously delivered to Agent.

(g)Evidence of Sufficiency of Funds; Construction Consultant Approval.  Each Budget shall be In Balance.  Agent shall have received written certification from the Construction Consultant to the effect that in its reasonable opinion the condition set forth in the immediately preceding sentence has been satisfied; that the work theretofore completed was completed to its satisfaction substantially in accordance with the Plans and Specifications and in accordance with all Legal Requirements; that “Substantial Completion” (as defined in the Ground Lease) shall be achievable by the Fixed Substantial Completion Date (subject to Unavoidable Delay) and Final Completion shall be achievable by the Maturity Date; as a condition to the Initial Advance only, that Borrower shall be able to Commence Initial Construction (as defined in the Ground Lease) of Tenant’s Construction Work (as defined in the Ground Lease) by the Fixed Construction Commencement Date (as defined in the Ground Lease) (subject to Unavoidable Delay); and that each Budget and each line item thereof is the best reasonable projection of all remaining Building Loan Costs and Project Loan Costs and all remaining costs covered by each line item, as applicable.  Such certification shall also cover such other information as Agent may from time to time reasonably request.

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(h)Other Funding Sources.  No later than 11:00 A.M. (New York City time) on the Requested Advance Date, all Other Funds covered by the statement described in Section 4.02(e)(2) hereof shall have been received by Agent (in the case of Advances disbursed in accordance with Section 5.02(b)(i) hereof) or received by Disbursement Agent (in the case of Advances disbursed in accordance with Section 5.02(b)(ii) hereof).

(i)[INTENTIONALLY OMITTED]

(j)Borrower LCs.  (i) the Borrower LCs shall be in full force and effect or shall have been fully drawn upon or (ii) to the extent clause (i) is not the case, the appropriate Borrower LC Deposit shall have been made in accordance with Section 7.54 hereof, and, if requested by Agent, reasonable evidence of clause (i) or clause (ii), as applicable.

(k)Deliveries to Third Parties.  To the extent not previously delivered, evidence reasonably satisfactory to Agent that Borrower has complied with its delivery obligations set forth in Section 7.56 hereof.

(l)Accounts.  Borrower shall have complied with its obligations under Section 7.57 hereof.

(m)Property Taxes.  Either (i) Lot 15 shall have been subdivided in accordance with the last sentence of Section 7.43 hereof, (ii) all Property Taxes assessed against Lot 15 that are then due and payable shall have been paid in full or (iii) the title continuation letter referred to in Section 4.02(e) shall not contain any exceptions to title insurance coverage for Property Taxes assessed against Lot 15.

(n)Other Documents.  Borrower shall have delivered such other information, documents and certificates as Agent or its counsel may reasonably require.

SECTION 4.03Conditions of Final Construction Advance.  In addition to the conditions set forth in Section 4.02 above, each Lender’s obligation to make the final Advance for NYTC Units Budget costs or for FC Units Budget costs, or for the Loans, pursuant to this Agreement shall be subject to satisfaction of the following additional conditions (unless waived by Agent in its sole discretion (subject to Section 8.03) or unless all of the Indebtedness is being paid in full at the time of the making of the final Advance):

(a)Completion.  With respect to the final Advance for either Budget, Final Completion of the applicable Units(s) shall have occurred or will occur upon the making of such Advance.

(b)Final Survey.  With respect to the final Advance of the Loans, if then prepared and available, receipt by Agent of a final Survey reasonably acceptable to Agent showing the as built location of the Project (and if not so prepared

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and available Borrower hereby covenants to deliver such Survey to Agent within one hundred and twenty (120) days after the date of the final Advance).

(c)Payment of Costs.  With respect to the final Advance for either Budget, evidence reasonably satisfactory to Agent that all Project Loan Costs and Building Loan Costs allocable to the applicable Units have been paid in full (or will be paid out of the funds requested to be advanced) and that no party claims or has a right to claim any statutory or common law lien arising out of the construction of such Units or the supplying of labor, goods, material and/or services in connection therewith.

(d)Other Documents.  Such documents, letters, affidavits, reports and assurances, as Agent or Agent’s counsel may reasonably require.

SECTION 4.04Contributions of Initial Required Equity Funds.

(a)Until such time as all Initial Required Equity Funds have been contributed and the Initial Construction Advance is made, Borrower shall, at least one (1) time per calendar month (and, in any event, at least ten (10) Business Days prior to any date (an “Equity Infusion Date”) on which Borrower desires to (i) obtain proceeds of the Equity Contribution for purposes of contributing Initial Required Equity Funds and/or (ii) contribute other Initial Required Equity Funds (the amount that Borrower so desires, the “Equity Infusion”)), provide to Agent (y) the documents required pursuant to Sections 4.02(e)(1), (2), (4), (5), (8), (9), (10) and (11), provided that all references to the making of an Advance in such provisions shall instead be deemed to be references to the making of an Equity Infusion, mutatis mutandis and (z) a current title continuation search for the Property.

(b)No later than the Business Day immediately preceding each Equity Infusion Date, Agent shall notify Borrower and NYTC Member whether the deliveries required by Section 4.04(a) have been made and whether, to the best of Agent’s knowledge, the conditions set forth in Sections 4.02(a), (b), (c), (d), (e) (but only to the extent the deliveries required pursuant thereto are subject to Agent’s approval), (f), (g), (i), (j), (k), (l), (m) and (n) have been satisfied (with all references in said Sections to an Advance being deemed references to the Equity Infusion, mutatis mutandis).  To the extent that Borrower and/or NYTC Member shall desire to make any Equity Infusion (regardless of whether or not such deliveries shall have been made and/or conditions shall have been satisfied), Borrower and/or NYTC Member shall expend (or cause to be expended) the Equity Infusion on Building Loan Costs or Project Loan Costs.  Agent shall suffer no penalty or liability to any Borrower Entity under this Section 4.04(b) (including for failure to give any notice provided for under this Section 4.04(b)).

(c)All Equity Infusions actually used to pay for Building Loan Costs or Project Loan Costs pursuant to this Section 4.04 shall be deemed to be, and shall be, Initial Required Equity Funds that have been contributed, regardless of whether, as of the date such contribution is made, (i) the conditions referred to in Section 4.04(b) hereof have been satisfied or (ii) Agent shall have notified Borrower and the NYTC Member in accordance with the first sentence of Section 4.04(b) hereof.

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SECTION 4.05Interest Advances.  Notwithstanding the provisions of Sections 4.01, 4.02 and 4.03, Advances for the payment of interest due under the Project Loan Notes shall be made in accordance with Section 5.03(b) hereof.

ARTICLE 5

METHOD OF DISBURSEMENT OF LOAN PROCEEDS

SECTION 5.01Administration.  As compensation for serving as Agent, Borrower shall pay Agent the Administration Fee.

SECTION 5.02Procedure for Advances.

(a)Submission of Draw Requests; Notification of LIBOR Rate.  Draw Requests may be submitted to Agent no more frequently than once every fifteen (15) days and not more than once per calendar month.  Not less than three (3) Business Days prior to the Intended Advance Date, Agent shall deliver written notice to each Lender at the address specified by each Lender from time to time, which notice shall include the Intended Advance Date and such Lender’s ratable share of such Advance.  On the Business Day immediately prior to the Start Day, Agent shall deliver written notice to each Lender and Borrower informing each Lender and Borrower of the LIBOR Rate for the upcoming calendar month Interest Period for all Outstanding Principal and any Advance made during such Interest Period.  However, Agent shall suffer no penalty or liability to Borrower for failure to give any such notice to Borrower.  Unless otherwise notified by Agent, each Lender may assume that all conditions to such Advance are satisfied on the Intended Advance Date.

(b)Disbursement Procedures.

(i)Provided that Agent has not elected, in accordance with Section 5.02(b)(ii) hereof, to disburse Advances through the Disbursement Agent in accordance with the procedures set forth in paragraph 2 of the Construction Loan Disbursement Agreement, not later than 11:00 A.M. New York City time on the Intended Advance Date, each Lender shall make available to Agent such Lender’s ratable portion of such Advance in same-day funds and, if applicable, Agent shall make available, in same day funds to the extent in its possession, the Other Funds and Borrower shall make available to Agent all other Other Funds in same-day funds, in each case to the extent shown in the delivery referred to in Section 4.02(e)(2) hereof, and upon fulfillment of the applicable conditions in this Agreement and paragraph 1 of the Construction Loan Disbursement Agreement, Agent shall disburse such Advance to Borrower.

(ii)Agent may elect to disburse Advances through the Disbursement Agent pursuant to paragraph 2 of the Construction Loan Disbursement Agreement (A) during the continuance of a Default or Event of Default, (B) subject to Section 4.01(q) of the Building Loan Agreement, upon its receipt of reasonable evidence that Borrower failed to promptly pay the applicable

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amounts out of any Advance to the General Contractor or any other contractor or subcontractor whose costs were the basis of the applicable Draw Request or that any contractor or subcontractor whose costs were the basis of the applicable Draw Request have not been paid, or (C) if Borrower has taken any actions, or failed to take any actions, which have resulted, or would reasonably be expected to result, in the filing or assertion of any Lien on the Premises (other than any Permitted Exception), provided that nothing contained in this sentence shall be construed to require Agent or any Lender to make an Advance upon the occurrence of any of the events described in the foregoing clauses (A), (B) and (C).  If Agent makes such an election in accordance with the immediately preceding sentence, Agent shall notify Borrower and each Lender and from and after such date until Agent notifies Borrower and each Lender that it has decided to no longer make the election described in this Section 5.02(b)(ii), (A) each Lender shall, not later than 11:00 A.M. New York City time, on each Intended Advance Date following Agent’s delivery of such notice, make available to Disbursement Agent such Lender’s ratable portion of such Advance in same-day funds, and, if applicable, Agent shall make available to Disbursement Agent in same day funds, to the extent in its possession, the Other Funds, and Borrower shall make available to Disbursement Agent in same day funds, all other Other Funds, in each case to the extent shown in the delivery referred to in Section 4.02(e)(2) hereof, and upon fulfillment of the applicable conditions in this Agreement and paragraph 2 of the Construction Loan Disbursement Agreement, Agent will request the Disbursement Agent to disburse such funds in accordance with the further terms and conditions contained in said paragraph of the Construction Loan Disbursement Agreement.

(c)Defaulting Lenders.

(i)If any Lender does not comply with its obligations under Section 5.02(b) above (any such Lender, a “Defaulting Lender”), the other Lenders (including GMACCM), or any of them, may, in their sole discretion, elect to deliver to Disbursement Agent on the Requested Advance Date all or any portion of the Defaulting Lender’s ratable portion of the applicable Advance not made available by the Defaulting Lender (such portion not made available, a “Deficiency”), in which event Defaulting Lender agrees to repay upon demand to each of the Lenders who has advanced a portion of the Deficiency the amount advanced on behalf of the Defaulting Lender, together with interest thereon at the Default Rate.  If more than one Lender elects to advance a portion of the Deficiency, such Lenders’ advances shall be made based on the relative ratable shares of each advancing Lender or as otherwise agreed to by such Lenders.  Each of the Lenders agrees that any of the other Lenders and Borrower shall have the right to proceed directly against any Defaulting Lender in respect of any right or claim arising out of such Defaulting Lender’s Deficiency, provided that Borrower shall not have such right if one or more of the other Lenders advances the entire Deficiency as described above.  In the event the Defaulting Lender fails to advance or repay the Deficiency (with interest at the Default Rate, if applicable), on or prior to the date of the next succeeding Advance, the entire interest of said

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Defaulting Lender in the Loans shall be subordinate to the interests of the other Lenders and all payments otherwise payable to the Defaulting Lender shall be used to advance or repay the Deficiency, as applicable, until such time such Defaulting Lender advances or repays all Deficiencies (including interest at the Default Rate, if applicable).

(ii)The failure of any Lender to pay any Deficiency shall not relieve any other Lender of its obligation, if any, hereunder to make its ratable or other agreed upon portion of the Advance on the date of such Advance, but no Lender shall be responsible for the failure of any Lender to make its ratable or other agreed upon portion of the Advance to be made by such other Lender on the date of any Advance, provided, however, that Lenders shall be obligated to fund the balance of the then current Advance (i.e., excluding the Deficiency) in the manner required hereunder.

SECTION 5.03Funds Advanced; Capitalized Interest.  (a)  All proceeds of all Advances shall be used by Borrower only for the purposes for which such Advances were made.  Borrower shall not commingle such funds with other funds of Borrower.

(b)Unless agreed to otherwise by Agent and a Lender, each Lender is hereby irrevocably authorized and agrees to subtract from the unadvanced Project Loan proceeds, on each interest payment date, without the further approval of Borrower, the interest due and payable to itself on each such date.  Any amounts so subtracted shall be deemed to be Advances hereunder.

SECTION 5.04Advances Do Not Constitute a Waiver.  No Advance shall constitute a waiver of any of the conditions of Lenders’ obligation to make further Advances nor, in the event Borrower is unable to satisfy any such condition, shall any Advance have the effect of precluding Agent from thereafter declaring a Default or Event of Default hereunder.

SECTION 5.05[INTENTIONALLY OMITTED]

ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF BORROWER

To induce Lenders to make the Project Loan and to induce Agent to enter into this Agreement and the other Project Loan Documents, for itself and on behalf of Lenders, and to perform Agent’s and Lenders’ obligations hereunder and thereunder, Borrower hereby represents and warrants to Agent for the benefit of Lenders that:

SECTION 6.01Validity of Project Loan Documents.  The Project Loan Documents are in all respects valid and legally binding obligations, enforceable against each Borrower Entity which is a party thereto in accordance with their respective terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other

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similar laws affecting the enforcement of creditors’ rights generally).  The Project Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by any Borrower Entity, including the defense of usury.  No Borrower Entity has asserted any right of rescission, set-off, counterclaim or defense with respect to the Project Loan Documents.

SECTION 6.02Title.  Borrower has good and marketable title to a ground leasehold estate in the premises demised under the Ground Lease and the Members collectively have good marketable title to the premises demised under the Severance Subleases, in each case subject to no Liens other than the Permitted Exceptions.  Borrower has, or will have at the time of payment therefor, good and marketable title to the Personal Property and no Lien has been or will be executed in favor of any Person other than Agent with respect to any of the Personal Property other than the Permitted Exceptions.  Borrower has no knowledge of any claims for payment for work, labor or materials affecting the Mortgaged Property which are or may become a Lien prior to, or of equal priority with, the lien created by any Security Document.  The provisions of each Security Document are effective to create, in favor of Agent for the benefit of Lenders, a legal, valid and enforceable lien, subject only to the Permitted Exceptions, on or security interest in all of the collateral described therein (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally), and when the appropriate recordings and filings have been effected in public offices, each of the Security Documents will constitute a perfected lien on and security interest in all right, title, estate and interest in the collateral described therein, prior and superior to all other Liens, except as permitted under the Project Loan Documents and the Permitted Exceptions.

SECTION 6.03Absence of Conflicts.  The execution and delivery of the Project Loan Documents by Borrower Entities to the extent each is a party thereto do not, and the performance and observance by Borrower Entities of their respective obligations thereunder will not, contravene or result in a breach of or default under (a) any provision of any Borrower Entity’s organizational documents, (b) any Legal Requirements applicable to any Borrower Entity, or to the Mortgaged Property or the use or operation thereof, (c) any decree or judgment binding on any Borrower Entity, or its assets, or (d) any agreement or instrument binding on any Borrower Entity, or its assets.  The execution and delivery of the Project Loan Documents by Borrower Entities to the extent each is a party thereto, and the performance and observance by each Borrower Entity of its obligations thereunder will not result in the creation or imposition of any Lien (other than pursuant to the Project Loan Documents or the Permitted Exceptions) upon any of its assets, subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally.

SECTION 6.04Pending Litigation.  (a)  Except for matters disclosed to Agent in the Disclosure Side Letter (the “Pending Litigations”), there are no litigations, writs, injunctions, orders, judgments, actions, suits or proceedings existing or pending or threatened in writing against the Mortgaged Property, Borrower or any Member.  Borrower hereby represents and warrants that except as disclosed to Agent in the

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Disclosure Side Letter, all such disclosed items are fully insured by its Policies (except for the deductibles applicable thereto).

(b)Other than as disclosed in filings made by each Guarantor with the Securities and Exchange Commission, there are no litigations, writs, injunctions, orders, judgments, actions, suits or proceedings existing or pending or threatened against such Guarantor which have a material likelihood of success and would, if determined adversely, result in a Material Adverse Effect.

SECTION 6.05Legal Requirements.

(a)None of Borrower, any Member or the Mortgaged Property is in violation of any Legal Requirement relating to such entity or the Mortgaged Property.  No Guarantor is in violation of any Legal Requirement which would result in a Material Adverse Effect.

(b)Each Borrower Entity and their Affiliates and, to the Knowledge of Borrower after having made reasonable inquiry, each Tenant at the Property and each managing agent and leasing agent of any portion of the Property (i) is not currently identified on the OFAC List, and (ii) is not a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.

SECTION 6.06Compliance with All Legal Requirements.  The current zoning law and/or restrictive covenants and declarations covering the Premises and each Public Project Agreement permit, as of right, the construction of the Project in accordance with the Plans and Specifications and each other Public Project Agreement and, upon completion of such construction, the operation, use and occupancy thereof contemplated by the Public Project Agreements and the Plans and Specifications.  The Mortgaged Property currently is and upon completion of such contemplated construction, the use thereof will be, in all respects in compliance with all Material Contracts, all Public Project Documents and all Legal Requirements, and such compliance is not dependent on any land, improvements or facilities not a part of the Mortgaged Property.  Borrower has all Governmental Approvals required to have been obtained to date and all third party consents and approvals necessary for the construction of the Project or any part thereof or the commencement or continuance of construction thereon, as the case may be, including but not limited to, where appropriate, all required environmental permits, all of which have been issued, are in full force and effect and are not subject to any revocation, amendment, release, suspension, forfeiture or the like.  Except for the Pending Litigations, there are no pending, or to the Knowledge of Borrower, threatened in writing, litigations, writs, injunctions, orders, judgments, actions, suits or proceedings (a) to revoke, attach, invalidate, rescind or modify any such Governmental Approval or third party consent or approval, or the zoning and/or restrictive covenants applicable to the Premises or any part thereof, as currently existing and as intended to exist upon completion of such contemplated construction or (b) which have any chance (other than an immaterial chance) of being determined adversely to Borrower, and if so determined

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adversely, would materially delay, interfere with or otherwise have any material adverse effect on such contemplated construction or the Construction Schedule.

SECTION 6.07Organization Status and Authority.  (a)  (i)  Each of Borrower and the Members is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York; (ii) Each of Borrower and the Members has the power, authority and legal right (w) to own and operate its properties and assets, (x) to carry on the business now being conducted and proposed to be conducted by it, (y) to execute, deliver and perform its obligations under the Project Loan Documents to which it is a party, and (z) to engage in the transactions contemplated by the Project Loan Documents to which it is a party; (iii) all Project Loan Documents have been duly authorized, executed and delivered by all necessary parties on behalf of Borrower and each Member, to the extent a party thereto; and (iv) each of Borrower and the Members possesses all rights, licenses, permits and authorizations, governmental or otherwise, presently necessary to entitle it to own its property and to transact the businesses in which it is now engaged, and its sole business has been and is the ownership of the Mortgaged Property (in the case of Borrower) or a membership interest in Borrower (in the case of each Member).

(b)Subject to Section 7.32(b) hereof, (i) FC Member, which is 100% jointly owned, directly or indirectly by FC Guarantor, Bruce Ratner, trusts for the benefit of family members of Bruce Ratner and ING, is, and for the term of the Project Loan (subject to Section 7.50 hereof) shall be, a member of Borrower, (ii) NYTC Member, which is 100% owned, directly or indirectly by NYTC Guarantor, is, and for the term of the Project Loan (subject to Section 7.46 hereof) shall be, a member of Borrower, and (iii) the Members own in the aggregate 100% of the membership interests in Borrower.

SECTION 6.08Availability of Utilities.  Except as set forth on Schedule 3, all utility services and facilities necessary and sufficient for the contemplated construction and development of the Premises in accordance with the Public Project Agreements and the Plans and Specifications and, upon completion of construction, the operation, use and occupancy of the Premises for its intended purposes, including, but not limited to, water supply, storm and sanitary sewer facilities, gas, electric and telephone facilities, and drainage, are presently available to the boundaries of the Premises through dedicated public rights of way or through perpetual private easements, approved by Agent, with respect to which the Project Loan Mortgage creates a valid, binding and enforceable first priority lien and security interest.

SECTION 6.09Condition of Property.  Since the execution and delivery of the Ground Lease, there has not, to the Knowledge of Borrower, been any bodily injury or property damage occurring in or upon the Premises as a result of any fire, explosion, accident, flood or other casualty.  With respect to the accidents previously disclosed to Agent, Borrower hereby represents and warrants that all such accidents are fully insured by its Policies (except for the deductibles applicable thereto).  Except for matters disclosed to Agent in the Disclosure Side Letter, there are no proceedings

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pending, or, to the Knowledge of Borrower, threatened or contemplated, to acquire by power of condemnation or eminent domain, the Mortgaged Property, or any interest therein, or to enjoin or similarly prevent the contemplated construction or use of the Mortgaged Property.

SECTION 6.10Accuracy of Documents.  To the Knowledge of Borrower, (a) all documents furnished to Agent by or on behalf of any Borrower Entity, General Contractor, Borrower’s Architects, any other Major Contractor and any Major Subcontractor, as part of or in support of the Project Loan application or pursuant to this Agreement or any of the other Project Loan Documents, are true, correct and complete in all material respects as of the date of delivery of each such document and (b) as of the Closing Date, there have been no material adverse changes with respect to such matters since such date, unless the same have been superseded by more recent dated material(s) delivered to Agent.

SECTION 6.11Encroachments.  There are no material encroachments on the Premises, and the Premises do not encroach upon any adjoining land or adjoining street, other than as set forth in the Permitted Exceptions.

SECTION 6.12Brokerage Commissions.  Any brokerage commissions, finder’s fees or similar payments owed by any Borrower Entity (collectively, the “Brokerage Commissions”) due in connection with the transactions contemplated hereby have been paid to the extent due and payable and any such Brokerage Commissions coming due in the future will be promptly paid by such Borrower Entity.  Agent represents and warrants to Borrower that it has not dealt with any broker in connection with the transactions contemplated hereby.

SECTION 6.13Financial Statements and Other Information.  The financial statements and supporting materials thereto (other than projections) of each Borrower Entity previously delivered to Agent, if any, are true and correct as of the date of each such statement, have been prepared as of the date of each such statement in accordance with generally acceptable accounting principles consistently applied, and fairly present the respective financial conditions of such Borrower Entity as of the respective dates thereof and the results of their respective operations for the periods covered thereby; no change has occurred in the assets, liabilities, or financial conditions reflected therein since the respective dates thereof so as to cause a Material Adverse Effect; and no additional material borrowings have been made by Borrower, any Member or FC Guarantor since the date thereof (other than the borrowing contemplated hereby, the Extension Loan, if then made, and, in the case of FC Guarantor, amounts previously disclosed in filings with the Securities and Exchange Commission and amounts that will be disclosed in the next filing with the Securities and Exchange Commission but which are prohibited from being disclosed at the current time under applicable securities laws.  With respect to each Borrower Entity, there exist no contingent liabilities, liabilities for taxes, unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected in said financial statements and supporting materials and except to the extent any of the foregoing would

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not cause a Material Adverse Effect.  To the knowledge of the applicable Borrower Entity, neither the aforesaid financial statements or supporting materials furnished to Agent in connection with or related to the transactions contemplated hereby, nor any representation or warranty in any Project Loan Document, contains any untrue statement of a material fact or omits to state a material fact or circumstance necessary in order to make the statements contained therein or herein not materially misleading.

SECTION 6.14Tax Returns.  All federal, state and other tax returns of all Borrower Entities (other than the Guarantors) required by law to be filed have been filed (or lawful extensions of such filing deadlines have been obtained), and all applicable federal, state and other taxes, assessments and other governmental charges upon Borrower Entities (other than the Guarantors) or their respective properties which are due and payable have been paid.

SECTION 6.15Material Contracts.  (a)  Except for the Permitted Exceptions and the Material Contracts which have been delivered to Agent, there are no contracts of any kind or type whatsoever (whether oral or written, formal or informal) relating to the Mortgaged Property or any part thereof which would constitute Material Contracts.  Neither Borrower nor any Member is in default under any Material Contract to which Borrower or either Member is a party or Permitted Exception, and to the Knowledge of Borrower, no third party is in default in any material respect thereunder.  True, correct and complete copies of all Material Contracts have been delivered to Agent.  Each Material Contract that is a Major Subcontract is, to the knowledge of Borrower, in full force and effect and each other Material Contract is in full force and effect and is valid and enforceable in all respects (subject, in each case, to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  As of the Closing Date, there are no Material Contracts under clause (k) of the definition of Material Contracts.

(b)Borrower delivered to Ground Lessor a copy of the Commitment Letter within seven (7) Business Days after the execution thereof in accordance with the notice provisions of the Ground Lease.

SECTION 6.16Guaranteed Maximum Price Contract.  (i)  A true, correct and complete copy of the Guaranteed Maximum Price Contract and the GMP Guaranty have been delivered to Agent; (ii) the Guaranteed Maximum Price Contract and the GMP Guaranty are in full force and effect and enforceable in all respects (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally); (iii) Borrower is in full compliance with its obligations under the Guaranteed Maximum Price Contract and, to the Knowledge of Borrower, General Contractor is in full compliance with its obligations under the Guaranteed Maximum Price Contract and the GMP Guarantor is in full compliance with its obligations under the GMP Guaranty; and (iv) the work to be performed by General Contractor under the Guaranteed Maximum Price Contract is in all respects the construction work called for by the Public Project Agreements and the Plans and Specifications.

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SECTION 6.17Access.  All curb cuts and driveway permits shown on the Plans and Specifications or otherwise necessary for access to the Mortgaged Property are existing or will exist at the time necessary for the construction and operation of the Mortgaged Property.

SECTION 6.18No Default.  No Noticed Default or Event of Default exists.

SECTION 6.19Architect’s Contract.  (i)  A true, correct and complete copy of the Architect’s Contract has been delivered to Agent; (ii) the Architect’s Contract is in full force and effect and enforceable in all respects (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally); (iii) all of FC 41st Street’s and NYTC Member’s rights under the Architect’s Contract have been assigned to Borrower and Borrower has assumed all of FC 41st Street’s and NYTC Member’s obligations thereunder and Borrower’s Architects have consented thereto, to the extent such consent is required under the Architect’s Contract; (iv) Borrower is in full compliance with its obligations under the Architect’s Contract and, to the Knowledge of Borrower, Borrower’s Architects are in full compliance with their respective obligations under the Architect’s Contract; and (v) the architectural services to be performed by Borrower’s Architects are the architectural services required to design the Project in accordance with the Plans and Specifications and the Public Project Agreements and all architectural services required to complete the Project in accordance with the Plans and Specifications and the Public Project Agreements provided for under the Architect’s Contract.

SECTION 6.20Plans and Specifications.  Borrower has furnished Agent true, correct and complete sets of the Plans and Specifications in existence to date, which Plans and Specifications comply with all Material Contracts, Legal Requirements, Governmental Approvals, Public Project Agreements and Permitted Exceptions, and which have been approved, to the extent required, by the Members, General Contractor, Ground Lessor, ESDC, ING Member, the City of New York, the New York City Transit Authority, Borrower’s Architects (to the extent applicable) and NYTC Guarantor and by each Governmental Authority to the extent required for construction of the Project.

SECTION 6.21Budgets.  Each Budget accurately reflects Borrower’s best and reasonable projection of all Building Loan Costs and Project Loan Costs attributable to the applicable Unit or Units (and Agent hereby acknowledges that for so long as the proviso clause of the first sentence of Section 4.02(e)(9) hereof applies, any amounts in each of the Budgets on account of tenant improvement costs and leasing commission costs, and interest on account of any delay in achieving Stabilized Occupancy shall be deemed to be Borrower’s best and reasonable projections of such costs).  The Initial Required Equity Funds plus the Loan Amount accurately reflect Borrower’s best and reasonable projection (and Agent hereby acknowledges that, for so long as the proviso clause of the first sentence of subject to the last Section 4.02(e)(9) hereof applies, Borrower’s projection of tenant improvement costs, leasing commissions and interest on account of any delay in achieving Substantial Completion as set forth in

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each of the Budgets shall be deemed to be Borrower’s best and reasonable projections) of the funds necessary to achieve payment of all Building Loan Costs and Project Loan Costs allocable to the Project.

SECTION 6.22Feasibility.  Each of the Construction Schedule and the Disbursement Schedule is a good faith best estimate as to the matters contained therein as of the date thereof.

SECTION 6.23[INTENTIONALLY OMITTED].

SECTION 6.24Governmental Approvals and Third Party Approvals.  Except as noted on Schedule 4, all Governmental Approvals and all third party consents and approvals which are required to have been obtained to date in connection with the valid execution, delivery and performance by any Borrower Entity of this Agreement or the other Project Loan Documents have been obtained and are in full force and effect.

SECTION 6.25No Liens.  Except for the Permitted Exceptions, no Borrower Entity has made, assumed or been assigned any contract of any kind or type which would give rise to a Lien against all or any portion of the Mortgaged Property except contracts which contain the obligation of the other party to supply such Borrower Entity with lien waivers from such other party and all of such party’s subcontractors and materialmen covering all work done and materials delivered in connection with the construction and design of the Project, and all such lien waivers have been obtained for work and materials heretofore performed or delivered.

SECTION 6.26Separate Tax Lot(s).  Other than the portion of the Premises located in Lot 15, the Premises are taxed separately without regard to any other property and for all purposes the Premises may be mortgaged, conveyed and otherwise dealt with as an independent parcel or parcels.

SECTION 6.27Margin Stock.  None of the proceeds of the Project Loan will be used for the purpose of purchasing or carrying “margin stock” within the meaning of Regulation T, U or X issued by the Board of Governors of the Federal Reserve System, as at any time amended, and Borrower agrees to execute all instruments necessary to comply with all the requirements of Regulation U of the Federal Reserve System, as at any time amended.

SECTION 6.28Foreign Person.  Borrower is not a “foreign person” within the meaning of Section 1445 or 7701 of the Code.

SECTION 6.29ERISA.  Neither the Borrower nor any of the Members is an Employee Benefit Plan and none of their assets constitute Plan Assets.

SECTION 6.30Employees.  Neither the Borrower nor the Members employs any natural persons as employees and neither the Borrower nor the Members shall maintain or contribute to (or become obligated to contribute to) any Employee Benefit Plan which is subject to Title IV of ERISA.  The execution, delivery and

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performance of the Project Loan Documents by the Borrower Entities will not result in, constitute or involve a nonexempt prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any of the Borrower Entities, any ERISA Affiliate or any Employee Benefit Plan.

SECTION 6.31Flood Zone.  The Improvements are not located in an area as identified by the Federal Emergency Management Agency or the Federal Insurance Administration as an area having special flood hazards.

SECTION 6.32Investment Company Act.  Borrower is not (i) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; or (ii) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended.

SECTION 6.33Assessments.  Other than the theater surcharge referenced in the Ground Lease, to the Knowledge of Borrower, there are no pending or proposed special or other assessments for public improvements or other similar matters affecting the Mortgaged Property.

SECTION 6.34Property Taxes and Other Charges.  To the extent any are due, all taxes of every kind and nature, including, without limitation, all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, all payments in lieu of real estate taxes, payments in lieu of sales taxes, and payments in lieu of mortgage recording taxes due under the Ground Lease or the Severance Subleases and all other public charges whether of a like or different nature, imposed upon or assessed against Borrower, the Members, the Mortgaged Property or any part thereof, or upon the revenue, rents, issues, income and profits of Borrower, the Members, the Mortgaged Property, or any part thereof, or arising in respect of the occupancy, use or possession thereof (collectively, “Property Taxes”), and all utility fees and charges in connection with the Mortgaged Property have been paid.

SECTION 6.35No Bankruptcy Filing.  (i) As of the Closing Date, no Guarantor is contemplating a Voluntary Bankruptcy and, no Person has notified any Guarantor in writing that it is contemplating the filing of any Involuntary Bankruptcy against any Guarantor and (ii) neither Borrower nor any Member is contemplating a Voluntary Bankruptcy, and no Person has notified Borrower or any Member in writing that it is contemplating the filing of any Involuntary Bankruptcy against Borrower or any Member.

SECTION 6.36Filing and Recording Taxes.  All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under any Legal Requirement in connection with the execution and delivery of the Public Project Agreements have been paid in full.  All mortgage, mortgage recording, stamp, intangible or other similar taxes required to be paid by any Person under any Legal Requirement in connection with the execution, delivery,

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recordation, filing, registration, perfection or enforcement of the Security Documents and the Liens intended to be created thereby have been paid or deposited with one of the Title Companies for payment, or, if not yet due and payable, will be paid when due and payable.

SECTION 6.37Fraudulent Transfer.  No Borrower Entity (a) has entered into any Project Loan Document with the actual intent to hinder, delay, or defraud any creditor or (b) has not received reasonably equivalent value in exchange for its obligations under the Project Loan Documents.  After giving effect to the transactions contemplated by the Project Loan Documents, the fair saleable value of Borrower’s and each Member’s assets exceed, and will immediately following the execution and delivery of the Project Loan Documents exceed, such Borrower Entity’s, total liabilities, including subordinated, unliquidated, disputed or contingent liabilities (including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured).  Borrower’s and each Member’s assets do not, and immediately following the execution and delivery of the Project Loan Documents will not, constitute unreasonably small capital to carry out their respective businesses as conducted or as proposed to be conducted.  Borrower does not intend to, and does not believe that it will (or that its Members will), incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of its obligations).

SECTION 6.38Insurance Compliance.  The Mortgaged Property is in compliance with all insurance requirements set forth in the Project Loan Documents.

SECTION 6.39Name; Taxpayer Identification Number.  Neither Borrower nor any Member has used any trade name or done business under any name other than its actual name set forth herein.  The taxpayer identification number of (i) Borrower is 52-2361085; (ii) FC Member is 31-1813969; and (iii) NYTC Member is 13-1102020.  The exact legal name and the state of formation of Borrower as set forth in the Articles of Organization of Borrower are as set forth on the first page of this Agreement.  Borrower’s mailing address, place of business and its chief executive office is the address set forth as the Borrower’s address on the first page of this Agreement.

SECTION 6.40Leases.  As of the date hereof, except as set forth on Schedule 5, neither Borrower nor any Member has entered into any Leases on or prior to the date hereof.  True, correct and complete copies of all Leases have been delivered to Agent.  Such Leases are in full force and effect and are in all respects the valid and legally binding obligations of the parties thereto, enforceable against such parties in accordance with their respective terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  Neither Borrower nor any Member is in default under any such Lease.

SECTION 6.41Interest Rate Protection Agreements.  Except for any Interest Rate Caps and any other interest rate caps, interest rate management contracts or “hedge agreements” which have been collaterally assigned to Agent for the benefit of Lenders in accordance with the terms hereof, if any, or which relate only to the Equity

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Contribution and/or the Extension Loan, no Borrower Entity has entered into any Interest Rate Cap, interest rate cap, interest rate management contracts or “hedge agreements” in connection with the Project Loan.  All Interest Rate Caps, if any, purchased by Borrower are in full force and effect and are in all respects the valid and binding obligation of Borrower, enforceable against it in accordance with its terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  Neither Borrower nor, to Borrower’s Knowledge, the counterparty to any Interest Rate Cap, is in default thereunder.

SECTION 6.42Prior Construction.  All construction heretofore performed relating to the Project has been performed in accordance with all Material Contracts, the Permitted Exceptions and all Legal Requirements, and substantially in accordance with the Plans and Specifications, and such construction has been fully paid for to the extent due and payable (except for (a) any applicable Retainage, (b) construction to be paid for out of the upcoming Advance hereunder (or from the Other Funds described in the applicable statement pursuant to Section 4.02(e)(2) hereof) or under the Building Loan Agreement and (c) work performed after the time period covered by the upcoming Advance hereunder).

SECTION 6.43Equity Contribution.  True, correct and complete copies of the Equity Contribution Documents have been delivered to Agent.  The Equity Contribution Documents are in full force and effect and are in all respects the valid and binding obligation of the NYTC Member enforceable against it in accordance with their terms (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally).  Neither FC Member nor the NYTC Member is in default under the Equity Contribution Documents.

SECTION 6.44Borrower LCs.  True, correct and complete copies of the Borrower LCs have been delivered to Agent.  Each Borrower LC is in full force and effect and is valid and enforceable in all respects (subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws effecting the enforcement of creditors’ rights generally).

ARTICLE 7

COVENANTS OF BORROWER

Borrower hereby covenants and agrees, from the date of this Agreement, and as long as Borrower remains indebted to Lenders hereunder:

SECTION 7.01Guaranteed Maximum Price Contract; GMP Guaranty.  (a)  To enforce the Guaranteed Maximum Price Contract and the GMP Guaranty in a diligent and commercially reasonable manner, (b) to observe and perform in all material respects each and every term to be observed or performed by Borrower thereunder, (c) to do no act which would relieve General Contractor or GMP Guarantor from its obligations thereunder, (d) to not amend or make any “Change Orders” or “Field Directives” (as such terms are defined in the Guaranteed Maximum Price Contract; hereinafter, “Scope

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Changes”) under the Guaranteed Maximum Price Contract except as permitted under Section 7.11 hereof; (e) except to Agent for the benefit of Agent and Lenders, not to sell, convey, transfer, assign, alienate, mortgage, encumber, pledge, hypothecate, or transfer the Guaranteed Maximum Price Contract, the GMP Guaranty or any interest thereon (or, without the prior approval of Agent, permit the sale, conveyance, transfer, assignment, alienation, mortgaging, encumbrance, pledging, hypothecation, or transfer of the Guaranteed Maximum Price Contract by General Contractor or of the GMP Guaranty by the GMP Guarantor, or any interest in either), (f) not to terminate, suspend or cancel the Guaranteed Maximum Price Contract or the GMP Guaranty or waive any material provision thereof without the prior reasonable consent of Agent, provided that, Borrower may terminate or cancel the Guaranteed Maximum Price Contract if prior to or simultaneously with such termination or cancellation, Borrower shall have entered into a new construction management agreement with a construction manager with a guaranteed maximum price, which construction manager, agreement and price shall each be reasonably acceptable to Agent (and if reasonably requested by Agent, Borrower shall also obtain a guaranty of such agreement in form and substance, and from an entity, reasonably satisfactory to Agent) and (g) to notify Agent of any default thereunder promptly after obtaining Knowledge thereof and provide Agent with copies of all material notices delivered in connection therewith.  Borrower shall from time to time, upon request by Agent, use diligent efforts to cause General Contractor to provide Agent and Construction Consultant with reports in regard to the status of construction of the Project, in such form and detail as reasonably requested by Agent.  Promptly after Borrower’s receipt thereof, Borrower shall deliver to Agent copies of all trade contracts entered into by the General Contractor.

SECTION 7.02Architect’s Contract.  To use diligent efforts, upon Agent’s request, to cause Borrower’s Architects to provide Agent and Construction Consultant with reports in regard to the status of construction of the Project, in such form and detail as reasonably requested by Agent.

SECTION 7.03Insurance.  To maintain the Policies in full force and effect and to diligently prosecute all claims, and comply with all procedures and requirements thereunder.  The proceeds of any insurance shall be applied in accordance with the terms of the Project Loan Mortgage.

SECTION 7.04Application of Funds.  To use the proceeds of the Project Loan solely and exclusively for the purposes set forth herein.

SECTION 7.05Property Taxes.  To promptly pay when due (or to cause each Member to pay when due), and to provide (or cause to be provided to) Agent with receipted bills therefor if requested by Agent as soon as said receipted bills are available, all Property Taxes and, upon the failure of the owner(s) of the portion of lot 15 not owned by Borrower to pay all real estate taxes and other impositions on lot 15 prior to the due date thereof, to promptly pay all such taxes and impositions.  Notwithstanding the foregoing or anything herein to the contrary, Borrower or the applicable Member shall have the right to contest the validity or application of any Property Taxes by

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appropriate legal proceedings, so long as:  (1) such legal proceedings shall be prosecuted with diligence by Borrower (or such Member), shall operate to prevent any taking or closing or shutting down of the Premises or any portion thereof by any Governmental Authority, and shall have the effect of staying any type of sale or forfeiture of the Premises or any part thereof for failure to comply, (2) Borrower (or such Member) shall have deposited with or delivered to Agent, as applicable, cash collateral, a bond or such other security reasonably satisfactory to Agent, on such terms as may be reasonably satisfactory to Agent and (if applicable) in an amount as may be deemed reasonably necessary by Agent (taking into account amounts provided for in the applicable Budget for such Property Taxes and amounts remaining to be funded from the applicable Loan with respect thereto) to pay for such contest and to pay any such Property Taxes to the extent Borrower (or such Member) has not paid such Property Taxes to the applicable Governmental Authority), and any fines, penalties, charges and interest thereon which may be awarded or assessed (which amount shall be increased at the request of Agent when Agent determines (in its reasonable judgment) that a greater amount may be required to make such payments), (3) such proceeding shall not subject Agent, any Lender, Borrower or any Member to the risk of any criminal liability, (4) no Noticed Default or Event of Default shall then exist under any Project Loan Document, (5) Borrower (or such Member) gives Agent (x) reasonably continuous notice upon the commencement and during the continuation of any such proceeding of the status thereof, and (y) confirmation on such periodic basis as Agent may request of the continuing satisfaction of the conditions set forth in clauses (1) through (4) above, and (6) Borrower (or such Member) shall have furnished to Agent all other items reasonably requested by Agent.  If Borrower (or such Member) shall fail at any time to comply with the above conditions to contest or the Premises or any part thereof is, in the judgment of Agent, in any imminent danger of being forfeited or lost, Agent may require Borrower (or such Member) to, and Borrower (or such Member) will, thereupon make the payment which is the subject of the contest.  During the continuance of an Event of Default, Agent may, at its option, credit all or any part of any cash, bond or other security then held by it to the Indebtedness in such order as Agent may elect.  Upon final determination of such contest, Borrower (or such Member) will take all steps necessary to comply with any requirements arising therefrom.  Borrower (on behalf of itself and each Member) hereby absolutely and unconditionally collaterally assigns to Agent for the benefit of Lenders all of its right, title and interest in and to any refund of Property Taxes or other assessments (net of all reasonable collection expenses and any portions thereof payable to tenants and, after the NYTC Units Redemption, to NYTC Member) (such net refund amount, a “Tax Refund”) now or hereafter payable to Borrower or any Member as a result of any tax contest, protest, tax certiorari proceeding (“Tax Proceeding”) or otherwise.  If Borrower or any Member shall receive any Tax Refund applicable to the Project or any Unit, such Tax Refund shall be deposited with Agent by Borrower or such Member, within three (3) Business Days of receipt thereof, to be applied or deposited, at the option of Borrower (a) if the Collection Accounts Agreement has been executed as of such date and Borrower and each Member have complied with their other obligations under Section 7.57 hereof, to a Collection Account, (b) to the prepayment of the Loans on the next interest payment date or (c) on the next Advance Date, to pay Building Loan Costs and/or Project Loan Costs allocable to the applicable Units.  During the continuance of an

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Event of Default, Agent may, at its option, credit all or any part of the Tax Refund to the Indebtedness in such order as Agent may elect.  Copies of all Property Tax bills received by Borrower shall be promptly sent by Borrower to Agent.

SECTION 7.06Reimbursable Costs, Transaction Costs and Other Fees and Costs.  (a)  (i) To reimburse Agent for all reasonable, third-party out-of-pocket costs and expenses which may hereafter be incurred by Agent in connection with, or coincidental to, the Project Loan, including, (1) all Transaction Costs and (2) all Reimbursable Costs, and (ii) to reimburse Agent and each Lender for all reasonable, third-party out-of-pocket costs and expenses (including, without limitation, attorneys’ fees) which may hereafter be incurred by Agent or any Lender in connection with Assignments (other than any pledge or hypothecation) of the Project Loan and Project Loan up to a maximum of $90,000.00 in connection with all Assignments of the Loan.  All such costs and expenses shall be paid by Borrower within ten (10) Business Days after demand is given to Borrower, together with reasonable back-up information substantiating such costs and expenses.  Notwithstanding the foregoing, Borrower shall reimburse Agent on the date hereof for all Transaction Costs incurred by Agent to the date hereof.

(b)All amounts incurred or paid by Agent or any Lender under Section 7.06(a) hereof, together with interest thereon at the Default Rate from the due date until paid by Borrower, shall be added to and be deemed for all purposes a part of the Indebtedness and shall be secured by the Security Documents.

SECTION 7.07Completion of Construction.  To pursue with diligence the construction of the Project, the achievement of Core and Shell Completion, the achievement of “Substantial Completion” (as defined in the Ground Lease) no later than the Fixed Substantial Completion Date and the achievement of Final Completion with respect to the Project in accordance with this Agreement and all Public Project Agreements, the Material Contracts (to the extent applicable), and in substantial compliance with the Plans and Specifications, in a good workmanlike manner and free of defects, and in compliance with all restrictions, covenants and easements affecting the Mortgaged Property, all Legal Requirements, all Governmental Approvals, and all terms and conditions of the Project Loan Documents and to achieve “Substantial Completion” (as defined in the Ground Lease) by the Fixed Substantial Completion Date and Final Completion of the Project by the Maturity Date.  Borrower shall pay all sums and perform all duties as may be necessary to complete such construction and activities, all of which shall be accomplished in a manner such that the Mortgaged Property remains free from any Liens, claims or assessments (actual or contingent) for any material, labor or other item furnished in connection therewith.  Borrower shall deliver to Agent and Construction Consultant copies of all Governmental Approvals relating to such construction and development related activities as and when received by Borrower or any Member.  Borrower shall not commit or permit waste of the Mortgaged Property.  After Final Completion, Borrower (i) shall maintain or cause to be maintained the Mortgaged Property in good working order and shall comply with all Legal Requirements affecting the Mortgaged Property, (ii) maintain or cause to be maintained the NYTC Office Unit

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and the FC Office Unit as “Class A” office space, and (iii) maintain or cause to be maintained the FC Retail Unit as first-class retail space.

SECTION 7.08Right of Agent to Inspect Property; Publicity.  To permit Agent and its representatives (including without limitation, the Construction Consultant) to enter and inspect the Project and all materials to be used in the construction thereof (such inspections to be performed, at the option of Borrower, with a representative or representatives of Borrower present thereat) and to examine the Plans and Specifications (a copy of which shall be kept at the Property) at all reasonable times and with reasonable advance notice; to cooperate and use reasonable efforts to cause the General Contractor, all contractors and subcontractors to cooperate with the Construction Consultant to enable it to perform its functions hereunder; and to permit Agent to maintain one sign on the Premises (at the expense of Borrower) in a location clearly visible to the public and otherwise publicize Agent’s role as Agent and/or a Lender; provided, however, that the text and circumstances of such sign shall be subject to the prior approval of Borrower, which consent shall not be unreasonably withheld or delayed and, to the extent required by the DUO Declaration, shall be in accordance with the terms and conditions set forth in the DUO Declaration.

SECTION 7.09Construction Consultant.  (a)  To permit Agent to retain the Construction Consultant at the cost of Borrower for the purposes of (i) reviewing all construction contracts contemplated to be entered into by or on behalf of any Borrower Entity and which are required to be approved by Agent pursuant to this Agreement, (ii) reviewing the Plans and Specifications and all Draw Requests, (iii) reviewing all proposed changes to such construction contracts and Plans and Specifications, (iv) making periodic inspections of the Project, (v) reviewing all payment requisitions submitted by all Persons, (vi) reviewing all field reports, (vii) reviewing the Disbursement Schedule, Construction Schedule and the Budgets, and all proposed changes thereto and (viii) advising Agent generally concerning construction and construction and development related activities at the Project, including whether Core and Shell Completion has been achieved, and whether Substantial Completion and Final Completion have been achieved with respect to any Unit or the Project.  Borrower shall deliver (and shall cause each other Borrower Entity to deliver) to Agent and Construction Consultant copies of all documents referred to in this Section promptly upon receipt of same.

(b)To pay the reasonable fees and reasonable out-of-pocket expenses of the Construction Consultant.

SECTION 7.10Correction of Defects.  To promptly correct, regardless of whether demand has been made by Agent or Construction Consultant, all defects in the Project or any departure from the Plans and Specifications not previously approved by Agent (to the extent such approval was required pursuant to the terms hereof).  Borrower agrees that any Advance, whether before or after such defects or departures from the Plans and Specifications are discovered by or brought to the attention of Agent, shall not constitute a waiver of Agent’s right to require compliance with this covenant.

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SECTION 7.11Plans and Specifications; Approval of Change Orders; Cost Savings.

(a)To permit no (i) Scope Changes or (ii) deviations or amendments to the Plans and Specifications or to the work to be performed under any contract or subcontract relating to construction of the Project (including any field orders) (each of the items in clauses (i) and (ii) of this Section 7.11(a), a “Change Order”) without the prior approval of Agent, such approval not to be unreasonably withheld, provided, however, that subject to the further provisions of this Section 7.11, Borrower may make or permit to be made any Change Order without Agent’s prior written approval so long as (A) (1) the cost of such Change Order does not exceed, as reasonably estimated by the Construction Consultant, $500,000 and such Change Order does not, in Agent’s reasonable judgment, materially change the design of the Project, (2) the cost of all such Change Orders made pursuant to this clause (A) do not exceed, as reasonably estimated by the Construction Consultant, $3,000,000 in the aggregate, (3) such Change Order does not cause any line item in any Budget to be exceeded (after taking into account, without duplication, any revisions or reallocations permitted under Sections 3.02, 3.03 and 3.20, reallocations under this Section 7.11 and revisions or reallocations under Sections 3.02, 3.03, 3.20 and 7.11 of the Building Loan Agreement, other reallocations approved by Agent, and any Completion Deposit or portion thereof (or any “Completion Deposit” (or portion thereof) under and as defined in the Building Loan Agreement) applicable to such line item, (4) such Change Order shall not increase the likelihood that “Substantial Completion” (as defined in the Ground Lease) will not be achieved by the Fixed Substantial Completion Date and Final Completion will not be achieved by the Maturity Date and (5) Borrower delivers to Agent prior notice of such Change Order or (B) such Change Order is required by a new Legal Requirement or is mandated by health, life or safety reasons which were not reasonably foreseeable by Borrower, provided that Borrower shall, if practicable, provide prior notice of such Change Order to Agent, and if not practicable, shall give notice to Agent immediately thereafter.

(b)Notwithstanding the provisions of Section 7.11(a) above, no Change Order shall be submitted to Agent or implemented (and Borrower shall not instruct the General Contractor or any other contractor or direct or indirect subcontractor to perform or implement any such Change Order) which requires (or is alleged by the applicable party to require) the approval of the Extension Loan Lender, FC Member, Ground Lessor, ESDC, the City of New York, the New York City Transit Authority, NYTC Member or ING Member (or with respect to which it is claimed, by any such entity, that its approval is required) unless such approval has been previously obtained.

(c)Each notice to Agent of, and each request to Agent for approval of, a Change Order shall specify the amount of such Change Order, the aggregate amount of all previous Change Orders and the aggregate amount of Change Orders then counting towards the aggregate limit referred to in clause (A)(2) of Section 7.11(a).  Borrower shall maintain adequate records to substantiate all costs incurred in constructing the Project, including drawings marked to reflect all approved changes to the Plans and Specifications.

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(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, (B) Borrower shall demonstrate to Agent’s reasonable satisfaction that a cost savings has been or will be realized with respect to any uncompleted line item (other than the “Construction Interest-GMAC Loan/NYTC Funding Amount,” the “Rent-Up Deficit” and the “Additional Interest Reserve” line items in the Budgets (collectively, “Additional Interest Line Items”)), or (C) in the case of the Additional Interest Line Items if (x) Breakeven Leasing has been achieved (provided that for purposes of this Section 7.11(d) only, Breakeven Leasing shall be calculated assuming the Extension Loan has been made), and (y) Borrower shall demonstrate to Agent’s satisfaction (in Agent’s sole discretion) that if the requested portion of any of the Additional Interest Line Items is reallocated, the remaining aggregate amount of the Additional Interest Line Items constitute an adequate interest reserve including an adequate reserve (if the Initial Advance Interest Rate Cap was not purchased), for all anticipated purchases of Future Advance Interest Rate Caps (excluding, however, interest payable on the Extension Loan), 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 (but only, in the case of clause (C), to the Building Loan Contingency (as defined in the Building Loan Agreement) and the line item that includes leasing commissions and only to the extent that all reallocations under said clause (C), together with any reallocations under Section 7.11(d)(C) of the Building Loan Agreement, do not exceed $15,000,000.00), 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 Borrower’s Lien Law Affidavit.  Notwithstanding the foregoing, no reallocation with respect to the Development Cost 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).

(e)Agent and Borrower acknowledge and confirm that notwithstanding any other provision hereof, (i) the implementation of Section 7.11(d) may result in an increase in Loan proceeds used to pay Building Loan Costs and a corresponding decrease in Loan proceeds used to pay Project Loan Costs, but under no

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circumstances can result in a decrease in Loan proceeds used to pay Building Loan Costs or an increase in Loan proceeds used to pay Project Loan Costs and (ii) the implementation of the procedures set forth in Section 7.11(d) of the Building Loan Agreement may result in an increase in the Building Loan Amount and a decrease in the Project Loan Amount.  If Borrower intends to so use a portion of the Project Loan Amount to pay Building Loan Costs, then, at Agent’s option, such use shall be accomplished by decreasing the Project Loan Amount and increasing the Building Loan Amount, with an accompanying increase in the amount of the Building Loan Mortgage and a decrease in the Project Loan Mortgage, and Borrower shall execute documents reasonably requested by Agent (including a severing of the Project Loan Mortgage into two (2) mortgages and a consolidation of one (1) such mortgage with and into the Building Loan Mortgage) to effectuate such changes.

SECTION 7.12Appraisal.  To permit Agent to conduct or have conducted, at Agent’s sole option and at Borrower’s expense, additional appraisals of the Mortgaged Property, or updates to the Appraisal, in form and substance satisfactory to Agent, provided, however, that Borrower shall not be required to pay for such additional appraisals if:  (i) no Noticed Default or Event of Default exists under this Agreement or any other Project Loan Document; (ii) such appraisal or update is not required by any Legal Requirement applicable to any Lender or the interpretation or administration thereof by any Governmental Authority or comparable agency charged with the interpretation or administration thereof; (iii) such additional appraisal or update is not required by the express terms of this Agreement or any other Loan Document; and (iv) Borrower shall have previously paid for an additional appraisal or an update to the Appraisal during the calendar year in which such additional appraisal or update is dated.

SECTION 7.13Material Contracts; Approval of Activities.  (a) Without the prior approval of Agent, which approval shall not be unreasonably withheld or delayed, not to (and not to permit any Member to and, in the case of Major Subcontracts, not to permit (to the extent that Borrower’s approval is required under the Guaranteed Maximum Price Contract) General Contractor to) (i) except to Agent for the benefit of Agent and Lenders, sell, convey, transfer, assign, alienate, mortgage, encumber, pledge, hypothecate or transfer any Material Contract (which for purposes of this Section 7.13 (other than subsection (c) of this Section 7.13) shall not include the Guaranteed Maximum Price Contract, the GMP Guaranty, the Ground Lease or the Severance Subleases), or any interest therein, or permit the sale, conveyance, transfer, assignment, alienation, mortgaging, encumbrance, pledging, hypothecation or transfer by the third party thereto, except in accordance with the terms hereof, (ii) enter into, amend, modify, suspend, surrender, terminate, cancel, waive or release any material provision of any (or, in the case of Major Subcontracts, permit (to the extent that Borrower’s approval is required under the Guaranteed Maximum Price Contract) General Contractor to enter into, amend, modify, suspend, surrender, terminate, cancel, waive or release any material provision of such) Material Contract (including, without limitation, the definition of Core and Shell in the Architect’s Agreement) of the Project, except to the extent permitted or approved under Section 7.11 or, in the case of the termination or cancellation of the Architect’s Contract, Borrower may so terminate or cancel if, prior to or simultaneously

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with such termination or cancellation, Borrower shall have entered into a new agreement or agreements with one or more architects which agreement or agreements and architect or architects shall be reasonably acceptable to Agent, and in any event such agreement or agreements shall use the same definition of Core and Shell as that used in the Architect’s Agreement.  Simultaneously with the entering into of any Managing Agent Agreement or, to the extent requested by Agent, any Leasing Agent Agreement or any other Material Contract (other than any Major Subcontract), Borrower shall (or shall cause the Member which is a party thereto to) cause the other party thereunder to execute and deliver to Agent a consent to the collateral assignment thereof in form and substance reasonably satisfactory to Agent.

(b)To observe and perform in all material respects each and every term to be observed or performed by Borrower (and to cause each other Borrower Entity to do the same) pursuant to the terms of any Material Contract (other than any Major Subcontract) and to: (i) promptly notify Agent of any material default under any Material Contract (other than any Major Subcontract, in which case Borrower shall promptly notify Agent of any material defaults thereunder promptly after Borrower acquires Knowledge thereof) and provide Agent with copies of any notices delivered in connection with any default under any Material Contract; and (ii) enforce (or, in the case of Major Subcontracts, cause, to the extent permitted under the Guaranteed Maximum Price Contract, the enforcement of) the provisions thereof in a diligent and commercially reasonable manner.

(c)Agent’s right hereunder to approve any Material Contract shall create no responsibility or liability on behalf of Agent or Lenders for their completeness, design, sufficiency or compliance with Legal Requirements.

SECTION 7.14Leases.  (a)  To (and to cause each Member to, as applicable):

(i)perform or cause to be performed in all material respects the lessor’s obligations under each Lease where there is not at the time an outstanding “Event of Default” by tenant thereunder,

(ii)promptly notify Agent in writing of any material default under any Lease and provide Agent with copies of any notices delivered or received in connection with any default under any Lease,

(iii)enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by the other party or parties under any Lease, to the extent it is commercially reasonable to do so,

(iv)during the continuance of an Event of Default, grant Agent the right, but Agent shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of any Lease on the part of the Borrower or such

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Member (as applicable) to be performed or observed to be promptly performed or observed in all material respects on behalf of Borrower or such Member (as applicable), to the end that the rights of Borrower or such Member (as applicable) in, to and under said Leases shall be kept unimpaired and free from default,

(v)provide, simultaneously with the execution of each Lease (or on or prior to the date hereof with respect to Leases executed on or prior to the date hereof), to (1) each lessee, a Section 291-f Notice in form and substance reasonably satisfactory to Agent, and (2) Agent, an executed acknowledgment from each such tenant relating to the payment of rent and security deposits to a Security Deposit Account and a Collection Account and the use of an expedited check clearing process, which acknowledgment shall be in the form required by each of the Security Deposit Accounts Agreement and the Collection Accounts Agreement, and

(vi)not, without the prior approval of Agent, which approval shall not be unreasonably withheld or delayed (except in the case of subclauses (3) and (4) of this clause (vi) or any matter relating to a Lease with (or proposed to be with) an Affiliate of any Borrower Entity, in which case Agent’s approval may be withheld in Agent’s sole and reasonable discretion),

(1)except as expressly permitted thereunder (but subject to the provisions of clause (7) below), amend, modify, extend or otherwise alter, in any material respect, any Lease;

(2)enter into (subject to the further provisions of this Section 7.14) any Lease;

(3)assign, mortgage, pledge or otherwise transfer, dispose of or encumber, whether by operation of law or otherwise, any Lease or the Rents thereunder or therefrom except in connection with the Extension Loan;

(4)accept or permit the acceptance of a prepayment of any of the Rents (excluding security deposits) in respect of any Lease for more than one (1) month in advance of the due date therefor;

(5)waive or release any of its material rights under any Lease or any guaranty thereof;

(6)consent to the assignment of all or any portion of any Lease, or a sublease of all or any portion of a Lease by the lessee thereunder (to the extent Lessor’s consent is required for such assignment);

(7)materially relocate any portion of any space subject to a Lease; or

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(8)terminate, cancel or accept a surrender of any Lease unless a monetary default exists thereunder or the applicable tenant has filed for bankruptcy or has had an involuntary bankruptcy filed against it;

provided, however, that any Lease that is by its express terms subordinate to the Project Loan Mortgage (and all amendments and refinancings thereof and increases thereto) without the delivery of a non-disturbance agreement by Agent shall not be subject to subclauses (1), (2), (5), (6) and (7) of this clause (viii) of this Section 7.14 if such Lease (together with all other Leases with the applicable Tenant and Affiliates thereof) is (taking into account all expansion options) for (x) office space only comprising not more than one full floor or not more than 25,000 rentable square feet or (y) retail space only comprising not more than 10,000 rentable square feet (any Lease covered by this proviso clause, a “Subordinate Lease”).

(b)All Leases shall be subordinate to the Project Loan Mortgage and provide that the lessee thereunder agrees to attorn to Agent at Agent’s request.  Notwithstanding the foregoing, so long as Borrower is not then in monetary or material non-monetary Default hereunder, at the request of Borrower or the applicable Member, Agent, for itself and on behalf of Lenders, shall enter into a Non-Disturbance Agreement with each proposed Tenant under a Permitted Lease which meets the conditions set forth in clauses (i) or (ii) below, as applicable, and each of clauses (iii) through (vii) below.

(i)As to proposed Tenants of space in the FC Retail Unit or the Common Elements Leasable Space (as defined in the Ground Lease), as applicable:  (x) the proposed Tenant is of sufficient financial condition to perform the obligations under the applicable Permitted Lease, taking into account any security deposit posted by the proposed Tenant, and Agent shall have been furnished with evidence reasonably satisfactory to Agent of such financial condition, and (y) the rentable square feet demised by such Permitted Lease is:

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(A)10,000 or more, or

(B)(1) 5,000 or more, but less than 10,000, and (2) the Tenant has expended or is obligated to expend at least $100.00 (subject to adjustment as provided in Section 13.2(b)(i)(B) of the Ground Lease) per square foot (exclusive of any allowance provided by Borrower or the applicable Member with respect to such improvements) on such Tenant’s initial tenant improvement work, or

(C)(1) 2,500 or more, but less than 5,000, and (2) the Tenant has expended or is obligated to expend at least $200.00 (subject to adjustment as provided in Section 13.2(b)(i)(B) of the Ground Lease) per square foot (exclusive of any allowance provided by Borrower or the applicable Member with respect to such improvements) on such Tenant’s initial tenant improvement work.

(ii)As to proposed Tenants of the FC Office Unit or the NYTC Office Unit:

(A)If NYTC Guarantor or its Affiliates occupy the NYTC Office Unit, and the leased space is in the FC Office Unit and the proposed Tenant is NYTC Guarantor pursuant to the form of NYTC Sublease substantially as set forth in Exhibit Q attached to the Ground Lease (the “NYTC Form Sublease”) in the form of the Non-Disturbance Agreement, provided that such Non-Disturbance Agreement shall provide that it is not effective unless and until the NYTC Units are not subject to the lien of the Building Loan Mortgage and the Project Loan Mortgage and NYTC Guarantor has no direct or indirect ownership interest in FC Member or Borrower; or

(B)in all circumstances not covered by clause (ii)(A) of this Section 7.14(b), (1) the space demised by such Permitted Lease is one-half of one full floor or more (provided, however, that, with respect to a Permitted Lease of less than a full floor Agent’s obligation to enter into a Non-Disturbance Agreement pursuant to this Section 7.14(b)(ii)(B) shall apply only if Borrower shall supply to Agent, together with Borrower’s Lease Request Form, evidence reasonably satisfactory to Agent that the space to be leased shall be regular in shape, reasonably accessible in a customary manner, rented at not less than fair market value and otherwise on terms that are commercially reasonable and customary in respect of similarly situated tenants of space of the size and quality to be demised under the Permitted Lease), and (2) the proposed Tenant is of sufficient financial condition to perform the obligations under the proposed Permitted Lease, taking into account any security deposit posted by the proposed Tenant, and Agent shall have been furnished with evidence reasonably satisfactory to Agent of such financial condition.  For the purposes of this clause (ii)(B), evidence of “fair market value” and “commercially reasonable and customary” terms may be provided by the opinion of two (2) or more disinterested real estate professionals, each having at least ten (10) years of

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experience in valuing or leasing commercial real estate in midtown Manhattan (each, a “Real Estate Professional”).

(iii)The proposed Tenant is not an Affiliate of Borrower or any Member (except as Permitted in clause (ii)(A) of this Section 7.14(b)).

(iv)The proposed Tenant (and its direct and indirect owners if such proposed Tenant is not publicly held) is not a Prohibited Person (as defined in the Ground Lease).

(v)The Permitted Lease satisfying the conditions set forth in Section 7.14 (b)(ii)(A) shall provide for no decrease in the amount of rent payable thereunder over the term of such Permitted Lease except for customary abatements and offsets of rent.

(vi)Except in respect of a Permitted Lease satisfying the conditions set forth in Section 7.14(b)(ii)(A), none of (A) the demised premises (including any expansion space) under such Permitted Lease, nor (B) the exclusive or prohibited use provisions of such Permitted Lease, conflict with (1) the demise under or (2) the exclusive or prohibited provisions of, any other Permitted Lease, and Borrower shall deliver to Agent a certification to such effect signed by Borrower.

(vii)Except in respect of a Permitted Lease satisfying the conditions set forth in Section 7.14(b)(ii)(A), and subject to clauses (b)(i) and (b)(ii) above, as applicable, the Permitted Lease contains terms that are commercially reasonable and customary in respect of similarly situated tenants of space of the size and quality to be demised under the proposed Permitted Lease, and the rent and other amounts owed thereunder constitute not less than fair rental value for the space to be demised thereunder.  For purposes of this clause (vii), evidence of “commercially reasonable and customary” terms and “fair market value” may be provided by the opinion of two (2) or more Real Estate Professionals.

(c)All Leases of space in the Units and Common Elements (other than Subordinate Leases) must be in a form as may be reasonably acceptable to Agent.  In the event that Agent shall fail to approve or disapprove of any proposal with respect to a Lease (other than a Subordinate Lease) made under this Section 7.14 within ten (10) Business Days after receipt by Agent of a notice from Borrower specifying that if Agent fails to approve or disapprove such proposal, such approval shall be deemed given, and provided that Agent shall have been provided with all material information necessary in the reasonable opinion of Agent to make such determination including, without limitation, the final form of the proposed Lease (and if the approval relates to a new lease, a summary of the material terms thereof), and all other material and/or necessary financial data on the potential tenant, as reasonably determined by Agent, Agent shall be deemed to have approved such proposal.  Any new Lease, and any modification, amendment, extension or alteration to any Lease, shall be delivered to

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Agent promptly after execution by Borrower or the applicable Member and the Tenant thereunder.  Borrower shall pay all reasonable attorneys’ fees and disbursements incurred by Agent in connection with the review of proposed Leases by Agent’s counsel.  No Subordinate Lease, or any amendment thereto, shall be entered into unless Agent is given not less than five (5) Business Days’ notice thereof.

(d)All information in all requests for Lease approvals shall be true and correct in all material respects.

SECTION 7.15Books and Records.  To keep and maintain detailed, complete and accurate books, records and accounts, on a Fiscal Year basis, reflecting all of its financial affairs and all items of income and expense of Borrower in connection with the Property and the construction of the Project in accordance with generally accepted accounting principles consistently applied and the results of the operation thereof.

SECTION 7.16Financial Statements and Other Information.  (a)  To furnish Agent the following:

(i)Quarterly Statements.  (A) From and after the Fiscal Year quarter following the Fiscal Year quarter in which Substantial Completion occurs, within forty-five (45) days after the close of each Fiscal Year quarter, an unaudited (1) operating statement of the Property detailing the total revenues received and the total expenses incurred and (2) to the extent not covered by the foregoing, a balance sheet and profit and loss statement of Borrower and FC Member, in each case prepared in accordance with generally accepted accounting principles, consistently applied, and certified by Borrower or FC Member, as applicable, and (B) within forty-five (45) days after the date of filing or submission thereof, copies of the 10-Q statements of each of the Guarantors; provided, however, that from and after a Fiscal Year in which the shares of a Guarantor are no longer being traded on a nationally-recognized exchange, within forty-five (45) days after the close of each Fiscal Year quarter, unaudited financial statements prepared in accordance with generally accepted accounting principles, consistently applied, and otherwise in form and substance reasonably satisfactory to Agent, and certified by such Guarantor.

(ii)Annual Statements.  (A)  From and after the Fiscal Year in which Substantial Completion occurs, within one hundred twenty (120) days after the close of each Fiscal Year, an audited (1) operating statement of the Property detailing the total revenues received and the total expenses incurred and (2) to the extent not covered by the foregoing, a balance sheet and profit and loss statement of Borrower and FC Member, in each case prepared in accordance with generally accepted accounting principles, consistently applied, and certified by Borrower or FC Member, as applicable, and (B) within one hundred twenty (120) days after the date of filing or submission thereof, copies of the 10-K statements of each of the Guarantors; provided, however, that from and after a Fiscal Year in which the shares of a Guarantor are no longer being traded on a nationally-recognized

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exchange, within one hundred twenty (120) days after the close of each Fiscal year, audited financial statements prepared in accordance with generally accepted accounting principles, consistently applied, and otherwise in form and substance reasonably satisfactory to Agent and certified by such Guarantor.

(iii)a certificate from Borrower certifying that there is no Default or Event of Default under the Loan Documents, which certificate shall be delivered to Agent no later than forty-five (45) days after the close of each Fiscal Year of the Borrower;

(iv)such other reports and information (including, without limitation, bank statements, but only as to Borrower and the Members) as Agent shall reasonably require, which reports and information shall be delivered to Agent as soon as practicable but in no event later than twenty (20) days after Agent’s request therefor, provided that, if such information cannot reasonably be delivered within such twenty (20) day period, within such longer period as may be required so long as such entity is diligently pursuing the delivery thereof;

(v)monthly leasing status reports for the FC Units, and, from and after Substantial Completion of any Unit, retail tenant sales reports with respect to any tenants who are currently paying percentage rent, tenant receivables reports and a current rent roll for each such Unit, each certified to fairly represent the status of such Unit by the owner of such Unit, which reports shall be delivered to Agent no later than twenty (20) days after the last day of each calendar month; and

(vi)(1) monthly statements showing any revisions since the preceding monthly statement to the Plans and Specifications (including all Change Orders since the preceding monthly statement (regardless of whether the work on such Change Order has commenced or the price therefor or any applicable time extension with respect thereto has been agreed to) and (2) quarterly statements showing the contracts entered into by any Borrower Entity, or by General Contractor with subcontractors, subsequent to the Closing Date, which statements shall be certified by Borrower (as to contracts entered into by Borrower) or the applicable Member (as to contracts entered into by such Member) and delivered to Agent and Construction Consultant no later than twenty (20) days after the last day of each calendar month or calendar quarter, as applicable.

(b)To grant (and to cause each Member to grant) Agent the right to conduct an independent audit of any of the above financial information at its own expense at any time; provided, however, that if any such audit shall reveal an error in excess of three and one-half percent (3½%), such audit expense shall be borne solely by the Borrower or Member which is being audited.

(c)To grant (and to cause each Member to grant) Agent and its advisors the right upon reasonable prior notice during reasonable business hours at the

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Premises or at Borrower’s or such Member’s office to examine the records, books, management and other papers of Borrower or such Member, as applicable, which reflect upon such entity’s financial condition, and Agent and its advisors shall have the right to make copies and extracts from the foregoing records and other papers.

SECTION 7.17Compliance with Legal Requirements.  (a)  To comply, and cause the Mortgaged Property to comply at all times with all Legal Requirements applicable thereto, including, without limitation, obtaining and complying with all conditions and requirements of all Governmental Approvals then necessary for the construction, use, occupancy and operation of the Mortgaged Property or any portion of the Mortgaged Property or the business thereon, and to preserve and maintain the same in full force and effect; and to provide Agent with evidence reasonably satisfactory to Agent that the Mortgaged Property complies with all Legal Requirements applicable thereto.  Without limiting the foregoing, Borrower shall strictly comply (and shall cause each Member to comply) to the extent applicable with the requirements of the Americans with Disabilities Act of 1990, all state and local laws and ordinances related to handicapped access and all rules, regulations, and orders issued pursuant thereto including, without limitation, the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities.

(b)Borrower or the applicable Member will have the right to contest the validity or application of any of the Legal Requirements affecting the Mortgaged Property by appropriate legal proceedings, so long as:  (1) such legal proceedings shall be prosecuted with diligence by Borrower (or such Member) and shall operate to prevent any taking or closing or shutting down of the Premises or any portion thereof by any Governmental Authority, and shall have the effect of staying any type of sale or forfeiture of the Premises, (2) Borrower (or such Member) shall have deposited with or delivered to Agent, as applicable, cash collateral, a bond or such other security reasonably satisfactory to Agent on such terms as may be reasonably satisfactory to Agent and (if applicable) in an amount as may be deemed reasonably necessary by Agent to pay for such contest and to pay for the cost of compliance (if not yet paid) with such Legal Requirements, and any fines, penalties, charges and interest thereon which may be awarded or assessed (which amount may be increased at the request of Agent when Agent determines (in its reasonable judgment) that a greater amount may be required to make such payments), (3) such proceeding shall not subject Agent, any Lender or any Borrower Entity to the risk of any criminal liability, (4) no Noticed Default or Event of Default shall then exist under any Project Loan Document, (5) Borrower (or such Member) gives Agent (x) reasonably continuous notice upon the commencement and during the continuation of any such proceeding of the status thereof, and (y) confirmation on such periodic basis as Agent may request of the continuing satisfaction of the conditions set forth in clauses (1) through (4) above, and (6) Borrower (or such Member) shall have furnished to Agent all other items reasonably requested by Agent.  If Borrower (or such Member) shall fail at any time to comply with the above conditions to contest or if the Premises or any part thereof is, in the judgment of Agent, in any imminent danger of being forfeited or lost, Agent may require Borrower (or such Member) to, and Borrower (or such Member) will thereupon, comply with the Legal Requirement which is the subject of the contest.  During the continuance of an Event of Default, Agent may, at

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its option, credit all or any part of any such cash, bond or other security then held by it to the Indebtedness in such order as Agent may elect.  Upon final determination of such contest, Borrower (or such Member) will take all steps necessary to comply with any requirements arising therefrom and, after final payment of all costs of such contest and any costs of compliance, Agent shall return to Borrower (or such Member) any remaining security held by Agent pursuant to the foregoing clause (2).

(c)Without limiting any other provision of this Section 7.17, each Borrower Entity shall comply with all legal requirements relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect.  Without limiting anything in the foregoing sentence, no Borrower Entity shall take any action, or permit any action to be taken, that would cause the representations and warranties in Section 6.05(b) of this Agreement to become untrue or inaccurate at any time during the term of the Loans.  Each Borrower Entity shall notify Agent promptly after obtaining knowledge that the representations and warranties in Section 6.05(b) of this Agreement may no longer be accurate or that any other violation of the foregoing legal requirements has occurred or is being investigated by any Governmental Authority.  In connection with such an event, each Borrower Entity shall comply with all legal requirements and directives of Governmental Authorities and, at Agent’s request, provide to Agent copies of all notices, reports and other communications exchanged with, or received from, Governmental Authorities relating to such event.  Borrower shall also reimburse Agent and Lenders for all actual reasonable expenses incurred by Agent in evaluating the effect of such an event on the Loans and the collateral for the Loans, in obtaining any necessary license from Governmental Authorities as may be necessary for Agent to enforce its rights under the Loan Documents, and in complying with all legal requirements applicable to Agent or any Lender as the result of the existence of such an event and for any penalties or fines imposed upon Agent or any Lender as a result thereof.  All such expenses shall constitute Reimbursable Costs.  Borrower agrees to confirm the representation and warranty set forth in Section 6.05(b) hereof in writing on an annual basis if requested by Agent to do so.

SECTION 7.18Title.  Except to the extent permitted by Section 7.39 hereof, to keep the Mortgaged Property free and clear of all Liens, other than the Permitted Exceptions and the liens in favor of Agent, for the benefit of Lenders, and to warrant and defend against the claims of all Persons (a) the title to the Mortgaged Property and every part thereof and (b) the validity and first priority (subject only to the Permitted Exceptions) of any Lien under the Security Documents.

SECTION 7.19Maintain Existence.  (a)  To maintain its existence in good standing and make no changes in its organization or in any of its organizational documents (except that (i) Borrower shall be permitted to dissolve after all Units have been redeemed by the Members in accordance with the provisions of this Agreement and the Building Loan Agreement and (ii) Borrower shall be permitted to amend its organizational documents to the extent necessary to reflect the withdrawal of NYTC Member from Borrower in connection with the NYTC Units Redemption and the withdrawal of FC Member in connection with the transaction described in Section 7.50 hereof, provided that Borrower delivers (or causes to be delivered) documentation

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reflecting such changes certified in such manner as Agent may reasonably request), and to cause the same to be true with respect to the Members and, to the extent that a failure to observe the foregoing covenant would constitute a Material Adverse Effect, to cause the same to be true with respect to the Guarantors.

(b)Except as permitted by, and in accordance with, Sections 7.32, 7.46 and 7.50, to not, without the Agent’s prior approval, convey or transfer any part of its property, assets, or business to any other Person (and to cause the same to be true with respect to the Members).

(c)To maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business (and to cause the same to be true with respect to the Members).

SECTION 7.20Interest Rate Caps.  (a)  Either (i) to the extent required by the first sentence of Section 4.02(e)(7), to purchase, deliver to Agent and maintain the Initial Advance Interest Rate Cap or (ii) if the Initial Interest Rate Cap is not required to be purchased, to purchase, deliver to Agent and maintain an interest rate cap (a “Future Advance Interest Rate Cap”) if the LIBOR Rate equals or exceeds, at any time during the applicable six (6) month period (the “Period”) set forth on Schedule 2 hereto, the “trigger rate” for such period set forth on said Schedule 2, which Future Advance Interest Rate Cap shall be in form and substance reasonably acceptable to Agent, shall be with a counterparty reasonably acceptable to Agent, shall cap the LIBOR Rate at the applicable rate set forth on said Schedule 2, and shall have a term of the Period or the balance thereof remaining.  At any time that Borrower shall be required to deliver to Agent a Future Advance Interest Rate Cap, Borrower shall also deliver to Agent (1) an Assignment of Interest Rate Cap with respect thereto, (2) a consent by the counterparty thereto to such Assignment of Interest Rate Cap and (3) an opinion, in form and substance, and from counsel, reasonably acceptable to Agent, as to the due authorization, execution and delivery by Borrower and enforceability of, and other customary matters with respect to, the Future Advance Interest Rate Cap and such Assignment of Interest Rate Cap (but not as to any matter with respect to such counterparty (other than the enforceability of such Future Advance Interest Rate Cap against such counterparty)).  If Borrower purchases any other interest rate caps, any interest rate management contracts or any “hedge agreements”, Borrower shall make the deliveries referred to in clauses (1), (2) and (3) of the preceding sentence with respect thereto.  Notwithstanding anything to the contrary in this Section 7.20, Borrower shall have the right, subject to Agent’s prior reasonable consent to increase the “trigger rates” set forth on said Schedule 2.

(b)If Borrower fails to perform its obligations under the first and second sentences Section 7.20(a) within two (2) Business Days after it is required to do so, Agent may, in its sole discretion and in addition to any other rights and remedies it may have hereunder and under the other Loan Documents in connection with such failure, purchase the required Future Advance Interest Rate Cap, in which event Borrower shall be obligated to reimburse Agent for the cost therefor.

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SECTION 7.21Further Assurance.  To execute and deliver promptly (and to cause each other Borrower Entity to execute and deliver promptly) such additional agreements and instruments and to take promptly such additional actions as Agent may at any time and from time to time reasonably request in order for Agent and Lenders to obtain the full benefits and rights granted or intended or purported to be granted by this Agreement and the other Project Loan Documents to which it (or such Borrower Entity) is a party, provided the same do not change any such Borrower Entity’s liabilities, or decrease such Borrower Entity’s rights, under the Project Loan Documents (other than, in each case, to a de minimis extent).  In furtherance of the foregoing, if at any time Agent has reason to believe that the Project Loan is not secured or will or may not be secured by the Security Documents as a first priority lien (subject only to the Permitted Exceptions) or security interest on the collateral intended to be granted under such Security Documents, then Borrower shall, within five (5) Business Days after notice from Agent, do and shall cause each other Borrower Entity to do, all things and matters reasonably necessary (including execution and delivery to Agent of all further documents and performance of all other acts which Agent deems reasonably necessary or appropriate) to assure to the satisfaction of Agent that the Project Loan is secured with first priority liens or security interests (subject only to the Permitted Exceptions) on the collateral intended to be granted under such Security Documents.

SECTION 7.22Budgets, Etc.  Not to change any line item in any Budget, or the Construction Schedule without Agent’s prior reasonable consent except to the extent expressly permitted hereunder.  Notwithstanding anything to the contrary contained in this Agreement, no request for Agent’s approval for any change in any Budget or in the Construction Schedule shall be made if such change would also require the approval of either Member or any third party (or if any such Member or third party claims that such change requires its approval), unless such other approval has previously been granted or a request for such other approval is made concurrently with the request to Agent.

SECTION 7.23Zoning, Easements and Restrictions; Use; Alterations.  (a)  Not to (and to cause each other Borrower Entity not to), without Agent’s prior approval, (i) initiate or support any limiting change in the permitted uses of the Mortgaged Property (or to the extent applicable, the zoning reclassification of the Mortgaged Property or modification to the DUO Declaration) or any portion thereof, or seek any variance under existing land use restrictions, laws, rules or regulations (or, to the extent applicable, the zoning ordinances) applicable to the Mortgaged Property, (ii) use or permit the use of the Mortgaged Property in a manner that would cause a default under the terms of any Project Loan Documents to which it is a party, or any Material Contracts (to the extent applicable), Leases, Legal Requirements, Governmental Approvals or any Permitted Exceptions, or the Equity Contribution Documents, (iii) modify, amend or supplement any Permitted Exception in a manner adverse in any material respect to the interests of Agent or Lenders, (iv) impose or permit or suffer the imposition of any material restrictions, covenants or easements upon the Mortgaged Property (other than the Permitted Exceptions), (v) execute or file any subdivision plat affecting the Mortgaged Property, (vi) institute, or permit the institution of, proceedings

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to alter any tax lot comprising the Mortgaged Property except as contemplated by Section 7.43 hereof with respect to Lot 15 and in connection with the Condominium Documents, (vii) permit or suffer the Mortgaged Property to be used by the public or any Person in such manner as might make possible a claim of adverse usage or possession or of any implied dedication or implied easement, or (viii) enter into any zoning lot merger agreement or similar agreement affecting the Mortgaged Property.

(b)Except for the construction of the Premises in accordance with the terms of the Project Loan Documents, not cause, suffer or permit, without Agent’s prior approval (i) any material alteration of the Improvements except as permitted by the terms of any Permitted Leases or (ii) any demolition or removal of any portion of the Improvements or the Personal Property, except for the removal in the ordinary course of business of items which are obsolete or the removal of which was made for good-faith business reasons and shall not adversely affect the use, operation or value of the Mortgaged Property.

SECTION 7.24Laborers, Subcontractors and Materialmen.  To notify Agent immediately if Borrower receives any written default notice, notice of lien or demand for past due payment from any laborer, subcontractor or materialmen.  In addition, at any time that any material dispute with any third party to a Material Contract shall commence, Borrower shall advise Agent of the same in reasonable detail and keep Agent reasonably informed as of the status thereof.

SECTION 7.25[INTENTIONALLY OMITTED]

SECTION 7.26Comply with Other Project Loan Documents.  To perform (and to cause each Member to perform) all of its obligations under this Agreement and the other Project Loan Documents and all other documents evidencing or securing the Project Loan (to the extent each is a party thereto).

SECTION 7.27[INTENTIONALLY OMITTED]

SECTION 7.28Illegal Activities.  Not to knowingly permit any portion of the Mortgaged Property to be purchased, improved, constructed, fixtured, equipped or furnished with proceeds of any criminal or other illegal activity.

SECTION 7.29Indemnification.  (a)  To defend, indemnify and hold harmless each Indemnified Party from and against, and to reimburse the affected Indemnified Party for, any and all losses, claims, damages, judgments, costs, expenses (including reasonable attorney’s fees and disbursements), liabilities, fines, penalties and charges (collectively, the “Losses”), which are or may be imposed, or sustained by, such Indemnified Party by reason of any matter arising from any Project Loan Document or the Project Loan (including, without limitation, by reason of (w) the occurrence of any Default or Event of Default, (x) any brokerage commissions, (y) any bodily injury or property damage occurring in or upon or in the vicinity of the Mortgaged Property or the Project or (z) any act performed or omitted to be performed hereunder), except (i) costs and expenses of the type described in Section 7.06 for which Borrower is not liable under

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said Section 7.06 and (ii) to the extent that such Losses resulted from a violation of law by any Indemnified Party or from the gross negligence or willful misconduct of any Indemnified Party.  In case any claim, action or proceeding (a “Claim”) is brought against an Indemnified Party in respect of which indemnification may be sought by such Indemnified Party pursuant hereto, Agent shall give notice thereof to Borrower, provided, however, that the failure of Agent to so notify Borrower shall not limit or affect such Indemnified Party’s rights to be indemnified pursuant to this Section 7.29 except to the extent Borrower is materially prejudiced by such failure.  Upon receipt of such notice of a Claim, Borrower shall, at its sole cost and expense, in good faith investigate, prosecute, negotiate or defend any such Claim with counsel and consultants selected by Borrower and reasonably satisfactory to such Indemnified Party (provided, however, that if the counsel is required to be selected by Borrower’s insurance provider pursuant to the express terms of the applicable insurance policy, such counsel shall be deemed satisfactory to such Indemnified Party), which counsel may, without limiting the rights of such Indemnified Party pursuant to the following sentences of this Section 7.29, also represent Borrower in such investigation, action or proceeding.  Borrower shall cause its counsel to promptly keep Agent fully apprised of all matters relating to such Claim including, without limitation, copying Agent on all material written materials generated or received by such counsel, promptly responding to any questions from Agent as to the status of such Claim, and causing such counsel to agree that each Indemnified Party shall be entitled to rely upon the work product of such counsel to the same extent that Borrower is entitled to rely thereon; provided, however, that Borrower shall not be required to cause such counsel, and such counsel shall not be required, to take any action that, in the reasonable opinion of such counsel, could impair the attorney-client privilege between Borrower and such counsel.  In the alternative, such Indemnified Party may elect to conduct its own defense through counsel and consultants of its own choosing and at the sole expense of Borrower, but only if (A) such Indemnified Party determines that the conduct of its defense by Borrower would be in conflict with its interests or is reasonably likely to result in greater liability than would result if such Indemnified Party were directly defending or prosecuting such Claim, (B) Borrower refuses to investigate, prosecute, negotiate or defend, (C) Borrower shall have failed, in such Indemnified Party’s judgment, to investigate, prosecute, negotiate or defend the Claim diligently and in good faith or (D) Borrower shall fail to keep Agent fully apprised of the status of any Claim.  Borrower may settle any Claim against such Indemnified Party without such Indemnified Party’s approval, if (i) such settlement is without any liability, cost or expense whatsoever to such Indemnified Party, (ii) the settlement does not include or require any admission of liability or culpability by such Indemnified Party under any federal, state or local statute or regulation, whether criminal or civil in nature and (iii) Borrower obtains an effective written release of liability for such Indemnified Party from the party to the Claim with whom such settlement is being made, which release must be reasonably acceptable to such Indemnified Party, and a dismissal with prejudice with respect to all claims made by the party against such Indemnified Party in connection with such Claim; provided, however, that if, pursuant to the immediately preceding sentence, any Indemnified Party shall elect to conduct its defense through counsel of its own choosing, such Indemnified Party shall have the right (with the reasonable consent of Borrower if clause (A) only of the immediately preceding sentence applies), to settle

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such Claim in good faith and Borrower shall be responsible for any such settlement.  Nothing contained herein shall be construed as requiring Agent or any Indemnified Party to expend funds or incur costs to defend any Claim in connection with the matters for which Agent or any Indemnified Party is entitled to indemnification pursuant to this Section 7.29.  The obligations of Borrower hereunder shall specifically include the obligation to expend its own funds, to incur costs in its own name and to perform all actions as may be necessary to protect any Indemnified Party from the necessity of expending its own funds, incurring costs or performing any actions in connection with the matters for which such Indemnified Party is entitled to indemnification hereunder.  If, notwithstanding the foregoing, any Indemnified Party shall incur any expenses hereunder, Borrower shall reimburse such Indemnified Party for all such amounts within ten (10) days after demand therefor, and any amounts not so reimbursed shall bear interest at the Default Rate from the date such amount was due until so paid.

(b)The obligations and liabilities of Borrower under this Section shall survive the termination of this Agreement and the payment of all amounts payable under the Project Loan Notes or the other Project Loan Documents.

SECTION 7.30Condominium.  (a)  To (i) not amend or supplement the Condominium Documents without Agent’s prior approval, such approval not to be unreasonably withheld (Borrower and Agent hereby acknowledging and confirming that (x) subject to clause (y) of this parenthetical clause, Agent has approved the Condominium Declaration and the Condominium By-Laws substantially in the form attached as Exhibit E to the Operating Agreement, as the same is to be amended in accordance with the First Amendment) and (y) Agent’s approval, not to be unreasonably withheld, shall be required with respect to all portions of the Condominium Declaration and Condominium By-Laws not yet finalized and therefore not contained in said amended Exhibit E (e.g., Exhibits C, D and G of the Condominium Declaration), (ii) cause the Condominium Documents to comply with all applicable Legal Requirements, (iii) cause the Condominium Documents to be filed in the appropriate public offices and the condominium thereunder to be validly created on or prior to the achievement of Core and Shell Completion and (vi) from and after the date that the condominium is created, diligently enforce (and use diligent efforts to cause the condominium association to enforce) the second sentence of Section 1 of Article IX of the Condominium Declaration.

(b)Without the prior consent of Agent, neither Borrower nor any Member shall abandon or change its plan for submission of the Mortgaged Property to the condominium form of ownership.

(c)Agent shall, on Borrower’s request, and provided no Noticed Default or Event of Default shall then exist, subordinate the lien of the Project Loan Mortgage to the liens in favor of the condominium for common charges set forth in the Condominium Declaration pursuant to the Condominium Subordination Agreement, upon the satisfaction of the conditions enumerated below:

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(i)the NYTC Units Redemption shall have occurred in accordance with Section 7.46(a) hereof;

(ii)the Title Insurance Policy insuring the Project Loan Mortgage shall have been endorsed to provide affirmative insurance in the form of Exhibit N attached hereto, to the effect that the Mortgaged Property constitutes a condominium validly created under the Condominium Act, Agent shall have received an assurance letter from the Title Companies in the form of Exhibit O hereto and Agent shall have received an endorsement to the existing title policy to the effect that the spreading of the Project Loan Mortgage and the Building Loan Mortgage referred to below shall not effect the validity or priority of such Mortgages;

(iii)Borrower shall have duly executed and delivered, or caused to be duly executed and delivered, to Agent (a) a conditional assignment of Borrower’s rights under the Condominium Documents in the form of Exhibit P hereto and (b) a conditional resignation of each of the Managers (as defined in the Condominium Declaration) of the condominium association in the form of Exhibit Q hereto;

(iv)Agent shall have received an opinion from counsel reasonably satisfactory to Agent which shall include opinions to the effect that (A) the Condominium Documents satisfy all applicable requirements of Governmental Authorities and have been duly executed and delivered and are enforceable against and by the Borrower, (B) all Legal Requirements relating to the formation of the condominium have been duly satisfied and, assuming the recording of the Condominium Declaration and the subordination of the Project Loan Mortgage and Building Loan Mortgage to the Condominium Declaration pursuant to the Condominium Subordination Agreement, the condominium has been duly and validly created and is existing in full force and effect, (C) the assignment referred to in clause (iii) of this subsection has been duly authorized, executed and delivered by Borrower and is enforceable against Borrower and (D) the resignations referred to in clause (iii) of this subsection are enforceable against said parties in accordance with their respective terms;

(v)the condominium which shall be created by the Condominium Documents, together with Borrower, shall have furnished to Agent, at no cost or expense to Agent, a blanket insurance policy complying with the applicable requirements contained in the Project Loan Mortgage;

(vi)the condominium association shall have (A) collaterally assigned its rights to Leases of rooftop and lobby spaces and agreed to deposit all Rents therefrom (to the extent of FC Member’s interest therein) into one of the Collection Accounts and (B) collaterally assigned the rights to excess casualty proceeds (to the extent of FC Member’s interest therein) to Agent for the benefit of Agent and Lenders, in each case pursuant to an agreement in form and substance reasonably satisfactory to Agent and Agent shall

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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;

(vii)the Project Loan Mortgage shall have been spread to cover the Severance Subleases to which FC Member is a party and the Ground Lease shall be released from the lien thereof;

(viii)the Lease Assignment (as defined in the Ground Lease) shall have been duly executed and delivered;

(ix)Agent shall have received such other documents (including, without limitation, a title continuation), certificates, instruments, opinions or assurances as Agent may reasonably request; and

(x)Borrower shall have paid all reasonable out of pocket costs and expenses incurred by Agent in connection with the foregoing (including reasonable attorneys’ fees and disbursements).

(d)Borrower shall give Agent not less than ten (10) Business Days notice of any meeting of the condominium board and shall cause Agent or any representative thereof to be permitted to attend any such meeting.  Upon reasonable notice by Agent, Borrower shall cause Agent or any representative thereof to be permitted to inspect the books and records of the Board of Managers and the FC Board of Managers (as each such term is defined in the Condominium Documents).

SECTION 7.31Developer.  To retain Developer or an Acceptable Developer as the developer (or, from and after Substantial Completion, the operator or manager and Person with principal responsibility and authority (subject to veto rights over major decisions held by Persons with equity interests in the Project) for leasing decisions) of the Project.

SECTION 7.32No Transfers or Encumbrances.  (a)  Not to, without the prior approval of, (1) in the case of Transfers contemplated by clause (i) of this subsection, the Super-Majority Lenders, (2) in the case of Transfers contemplated by clauses (ii) and (iii) of this subsection, but only if such Transfers result in a Change in Control of any Member, the Majority Lenders, and (3) in the case of all other Transfers, Agent:

(i)cause or permit any sale, conveyance, transfer, alienation, mortgage, encumbrance, pledge, hypothecation or transfer of the Mortgaged Property or any portion thereof or interest therein, other than (w) as provided under the Building Loan Documents, (x) as permitted under Section 7.46 hereof, or (y) as permitted under Sections 7.32(b) and 7.50 hereof;

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(ii)cause or permit any direct or indirect sale, conveyance, transfer, alienation, mortgage, encumbrance, pledge or hypothecation of, or granting of any security interest by any of the direct or indirect members of Borrower (or other legal or beneficial holders of direct or indirect equity interests in Borrower) in, all or any portion of such member’s (or such other holder’s) interest in Borrower or the right to receive distributions (directly or indirectly) from Borrower, other than as provided under the Equity Contribution Documents;

(iii)cause or permit any Person not now a Member of Borrower to become a member in or manager of Borrower, and the ultimate beneficial ownership of any Borrower Entity shall not be changed or altered, by sale, conveyance, transfer, alienation, mortgage, encumbrance, pledge, hypothecation, foreclosure, issuance of additional ownership or beneficial interests or otherwise, from the ultimate beneficial ownership on the date hereof; or

(iv)cause or permit a declaration of easements and/or condominium to be filed with respect to or recorded against the Mortgaged Property (other than in accordance with Section 7.30 hereof).

Any transaction covered by the foregoing clauses (i) - (iv) shall hereinafter be referred to as a “Transfer”; provided, however, that a Permitted Lease shall not be deemed to constitute a “Transfer.”  A Transfer shall be deemed to include, without limitation:  (i) an installment sales agreement wherein the applicable Person agrees to sell the applicable property or interest or any part thereof for a price to be paid in installments, and (ii) an agreement by any Borrower Entity leasing all or a substantial part of the Mortgaged Property for other than actual occupancy by a tenant or a sale, assignment or other transfer of, or the grant of a security interest in, any Borrower Entity’s right, title and interest in and to any Lease or any rent, revenues, issues, earnings, profits or income thereof.

(b)Notwithstanding the foregoing but, subject to subsections (c) and (d) below, the following transactions (collectively, “Permitted Transfers”) will be permitted:

(i)any transfers of equity interests in any entity that is a direct or indirect equity interest holder in Borrower, so long as the equity interests in such entity are traded on a nationally recognized exchange.  If such entity’s equity interests are no longer listed on a nationally recognized exchange (it being understood that any transaction or series of transactions that result in the delisting of the shares of such entity shall not be a Permitted Transfer) any Transfer of direct or indirect equity interests in such entity shall be a Permitted Transfer if such Transfer does not, individually or in the aggregate with other such prior Transfers, result in a Change of Control of Borrower or either Member;

(ii)any Transfer permitted by Section 8.01(b) of the Operating Agreement, Section 5.06(d)(3), Section 8.02(a) and Section 8.02(b)(ii)

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of the FC Operating Agreement, and any Transfer occurring as a result of the exercise of any remedies by the Extension Loan Lender under the Extension Loan Documents.  Notwithstanding the immediately preceding sentence, (A) Transfers permitted by the Recognition Agreements which are not otherwise Permitted Transfers hereunder shall not be Permitted Transfers, and (B) Transfers permitted by Section 5.06(d)(3) of the FC Operating Agreement shall only be a Permitted Transfer as long as ING Member is the owner of the Mezzanine Loan (as defined in the FC Operating Agreement) and ING Member is controlled by ING.  Borrower acknowledges and confirms that Transfers permitted by the Condominium Documents which are not otherwise Permitted Transfers hereunder shall not be Permitted Transfers;

(iii)any Transfer (including, without limitation, a Transfer that results from the foreclosure by a Member of another Member’s membership interests in Borrower) of interests between the Members;

(iv)simultaneously with the release of any Unit pursuant to Section 7.46 hereof or the redemption of the FC Units in accordance with Section 7.50 hereof, the redemption of the interest in Borrower held by the applicable Member; and

(v)any transfer of interests in FC Member by ING Member to FC 41st Street.

Notwithstanding the foregoing, a Permitted Transfer may occur only if (y) Agent shall be provided with at least ten (10) Business Days prior notice of such Transfer, together with all information reasonably requested by Agent with respect to such Transfer, and a diagram showing the structure of the affected entities after the contemplated Transfer and a list of the names, types of interests and percentages of ownership of all owners of interests in the applicable entities after the contemplated Transfer; and (z) all reasonable, third-party out-of-pocket fees and costs incurred by Agent in connection with the review of such Transfer to determine whether it is a Permitted Transfer or to obtain the consent of Agent if required, including, without limitation, attorneys’ fees and disbursements, shall be paid by Borrower.

(c)Borrower acknowledges that Agent and Lenders (i) have examined and relied on the creditworthiness and experience of the Borrower Entities in owning and operating properties such as the Mortgaged Property in agreeing to make the Project Loan, (ii) subject to the foregoing provisions of this Section 7.32, will continue to rely on such Borrower Entities’ direct and indirect ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the Project Loan, (iii) have a valid interest in maintaining the value of the Mortgaged Property so as to ensure that, should Borrower default in the repayment of the Project Loan, Lenders can recover the Project Loan by a sale of the Mortgaged Property, and (iv) shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Project Loan immediately due and payable upon the occurrence of any Transfer which violates this Section 7.32.

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(d)Notwithstanding anything to the contrary in this Section 7.32 or any other provision hereof, if (1) a Permitted Transfer (or any other Transfer approved in accordance with Section 7.32(a) hereof) results in FC Guarantor not owning any direct or indirect interest in the Mortgaged Property, (2) no Noticed Default or Event of Default shall then exist and (3) Borrower causes another Person (with liquidity, net worth and, if rated by S&P (or by Moody’s, if not rated by S&P), a long-term debt rating equal to or greater than the net worth, liquidity and, if applicable, the long-term debt rating by S&P or Moody’s (as applicable) of FC Guarantor at the time of such Permitted Transfer or Transfer) to execute and deliver a non-recourse carveouts guaranty substantially in the form of the FC Non-Recourse Carveouts Guaranty, mutatis mutandis, and (unless Final Completion has already been achieved), a completion guaranty substantially in the form of the FC Completion Guaranty, mutatis mutandis, and such guarantees are accompanied by an opinion of counsel reasonably acceptable to Agent covering due authorization, execution and delivery, enforceability and other customary matters with respect to such guarantees, then Agent shall release the FC Guarantor from liability under the Non-Recourse Carveouts Guaranty and (if applicable) the FC Completion Guaranty and, from and after such date, all references to the FC Non-Recourse Carveouts Guaranty, the FC Completion Guaranty and FC Guarantor shall instead be references to such non-recourse carveouts guaranty, such completion guaranty and such Person.

(e)Notwithstanding anything to the contrary in this Agreement, if an Event of Default caused by FC Guarantor under Section 9.01(e), (f)(x) or (q) hereof occurs or if an Event of Default occurs as a result of a breach by FC Guarantor of paragraph 8 of the FC Completion Guaranty or Section 4 of the FC Non-Recourse Carveouts Guaranty, and Borrower shall cause another Person (with liquidity, net worth and, if rated by S&P (or by Moody’s, if not rated by S&P), a long-term debt rating equal to or greater than the net worth, liquidity and, if applicable, the long-term debt rating by S&P or Moody’s (as applicable) of FC Guarantor at the time of such Event of Default) to execute and deliver, within ten (10) Business Days of such Event of Default, a non-recourse carveouts guaranty substantially in the form of the FC Non-Recourse Carveouts Guaranty, mutatis mutandis, and (unless Final Completion has already been achieved), a completion guaranty substantially in the form of the FC Completion Guaranty, mutatis mutandis, and such guaranties are accompanied by an opinion of counsel reasonably acceptable to Agent covering due authorization, execution and delivery, enforceability and other customary matters with respect to such guaranties and, in the case of an Event of Default that occurs as a result of a breach of said paragraph 8 of the FC Completion Guaranty or said Section 4 of the FC Non-Recourse Carveouts Guaranty only, a reimbursement to Agent for any losses or expenses already suffered by Agent as a result of any such breach and an indemnity agreement in form and substance reasonably satisfactory to Agent and such Person (which indemnity agreement may be included in such non-recourse carveouts guaranty, but which shall in any event be covered in the opinion of counsel referenced above) pursuant to which such Person shall agree to indemnify Agent for any subsequent losses or expenses Agent suffers as a result of such a breach, then such Event of Default shall be deemed to have been cured, and, from and after such date, all references to the FC Non-Recourse Carveouts Guaranty and (if applicable) the FC Completion Guaranty, and FC Guarantor shall instead be

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references to such non-recourse carveouts guaranty, such completion guaranty (if applicable) and such Person.

(f)Agent’s approval rights under this Section shall apply to every future Transfer, whether voluntary or not, and whether or not Agent has approved any prior Transfer.  Any Transfer made in contravention of this Section shall be null and void and of no force and effect.

SECTION 7.33No Distributions.  To not make any distributions or other payments or disbursements to any Borrower Entity or Affiliates of any Borrower Entity until the Project Loan has been repaid in full, other than (a) distributions of the payments permitted under Section 3.05(d) hereof and Section 3.05(d) of the Building Loan Agreement, (b) payments provided for under the Collection Accounts Agreement and the Security Deposit Accounts Agreement, (c) the payment to FC 41st Street, with Initial Required Equity Funds, of a $545,000 construction financing fee that is part of the “Financing Fees and Out-of-Pocket” line item in the FC Units Budget, (d) payments (through FC Member) to FC 41st Street and ING Member of the $14 million site management fee covered by the $14 million “Site Management” line item on the FC Units Budget, but only (x) prior to the first Advance hereunder, to the extent of actual out-of-pocket costs incurred, in connection with site management activities undertaken by FC 41st Street and ING Member, and reasonably approved by Agent and (y) from and after the first Advance hereunder, in accordance with Section 3.05(d) hereof, (e) distributions to FC Member under Section 3.01(b) of the Operating Agreement, distributions and reimbursements to NYTC Member under Sections 3.01(c) and 3.01(e) of the Operating Agreement, distributions to ING Member under Sections 3.02(a)(2) and 3.02(d)(2) of the FC Operating Agreement and distributions pursuant to Section 3.02(c) of the FC Operating Agreement, and (f) repayments of the Equity Contribution (including interest thereon).

SECTION 7.34Estoppels.  (a) To execute (and to cause each other Borrower Entity to execute) and deliver to Agent, within ten (10) days after request therefor is made by Agent, an estoppel certificate to Agent for the benefit of Lenders containing the following information:

(i)Each estoppel certificate from Borrower shall be duly acknowledged and certified by Borrower, and shall set forth:  (1) the original maximum principal amount of the Project Loan; (2) the aggregate amount of all Advances therefore made with respect to the Project Loan and the then Outstanding Principal amount; (3) the maturity date of the Project Loan; (4) the date through which installments of interest and/or principal (if any) have been paid; (5) that the Loan Documents are in full force and effect with no Default or Event of Default by Borrower under any of the Loan Documents (or, if any such Default or Event of Default by Borrower shall exist, specifying the nature thereof); (6) that there are no offsets or defenses or counterclaims against the payment of the Loans (or if any such offset, defense or counterclaim shall exist, specifying the nature thereof); (7) that the Loan Documents to which Borrower is a party are the valid, legal and binding obligations of Borrower, and have not been

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modified or amended (or if any such modification has occurred, specifying the nature thereof); (8) that the Guaranteed Maximum Price Contract, each other Material Contract, and Lease to which Borrower is a party is in full force and effect, and has not been modified or amended (except with the approval of Agent, if required under the Loan Documents), and that there are no defaults or events with which the passage of time or the giving of notice or both would constitute an event of default by Borrower under such Guaranteed Maximum Price Contract, Material Contract, or Lease by Borrower, and to Borrower’s Knowledge, by the third party or parties thereto (or, if any such default or event shall exist, specifying the nature thereof); (9) that the Guaranteed Maximum Price Contract, Material Contracts, and Leases to which Borrower is a party are valid, legal and binding obligations of Borrower; and (10) and any other matters reasonably requested by Agent.

(ii)Each estoppel certificate from any other Borrower Entity shall be duly acknowledged and certified by such Borrower Entity and shall set forth (1) a statement reaffirming all representations and warranties of such Borrower Entity provided herein and in the other Loan Documents (or, to the extent of any changes to any such representations and warranties, specifying such changes); (2) that the Loan Documents to which the applicable Borrower Entity is a party are in full force and effect and that no Default or Event of Default by such Borrower Entity exists under any such Loan Documents (or if any such Default or Event of Default shall exist, specifying the nature thereof); (3) that there are no offsets or defenses or counterclaims against such Borrower Entity’s obligations under the Loan Documents to which it is a party (and if any such offset, defense or counterclaim shall exist, specifying the nature thereof); (4) that the Loan Documents to which such Borrower Entity is a party are the valid, legal and binding obligations of such Borrower Entity, and have not been modified or amended (or if any such modification has occurred, specifying the nature thereof); (5) that each Material Contract and Lease to which such Borrower Entity is a party is in full force and effect, and has not been modified or amended (except with the approval of Agent, if required under the Loan Documents), and that there are no defaults or events with which the passage of time or the giving of notice or both would constitute an event of default under such Material Contract or Lease by such Borrower Entity, and to such Borrower Entity’s knowledge, by the third party or parties thereto (or, if any such default or event shall exist, specifying the nature thereof); (6) that the Material Contracts and Leases to which such Borrower Entity is a party are valid, legal and binding obligations of such Borrower Entity; and (7) any other matters reasonably requested by Agent.

(b)To request that (i) the New York City Transit Authority (and to use commercially reasonable efforts (without expenditure of any money, other than to a de minimis extent) to cause the New York City Transit Authority) to execute and deliver to Agent an estoppel certificate substantially in the form of the Subway Agreement Estoppel delivered pursuant to Section 4.01(w)(iii)(1) hereof, (ii) ESDC, Ground Lessor and the City of New York (and to use commercially reasonably efforts (without expenditure of any money, other than to a de minimis extent) to cause ESDC,

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Ground Lessor and the City of New York) to execute and deliver to Agent an estoppel substantially in the form of the Public Project Agreements Estoppel delivered pursuant to Section 4.01(w)(iii)(2) hereof, in each case within ten (10) days after the request therefor is made and (iii) Ground Lessor execute and deliver an estoppel with respect to the Ground Lease.

(c)Upon the request of Agent (which shall not be made more than quarterly) to cause the Tenant under any Major Lease to deliver an estoppel certificate substantially in the form attached hereto as Exhibit K.

SECTION 7.35Extension Loan Documents.  (a) (i) To cause FC Member to timely comply with its obligations under the first two sentences of Section 6.03 of the Operating Agreement, (ii) to use diligent efforts to satisfy, or cause to be satisfied, as promptly as practical, the Extension Loan Conditions described in clauses (b) and (d) of the definition thereto and to use diligent efforts to cause the achievement of the Completion Date, (iii) to not amend, and to cause any Borrower Entity which is a party thereto not to amend, the Extension Loan Documents, or assign, or permit any other Borrower Entity which is a party thereto or the Extension Loan Lender to assign, its rights or obligations under the executed Extension Loan Documents without the prior approval of Agent (and the Majority Lenders, if such assignment relates to the interest of the Extension Loan Lender), (iv) to cause to be provided to Agent copies of any communications given to or received from Extension Loan Lender under the Extension Loan Documents, (v) to notify Agent promptly of the occurrence of any default under the Extension Loan Documents, (vi) to not permit FC Member to enter into any documents in connection with the Extension Loan unless Agent shall have given its prior approval of such documents (Agent hereby acknowledging that Extension Loan Documents substantially in the forms of Exhibits Q and S to the FC Operating Agreement are satisfactory to it), (vii) to cause the Extension Loan Condition described in clause (c) of the definition of Extension Loan Conditions to be satisfied no later than the date that Core and Shell Completion is achieved and to cause the Extension Loan Condition described in clause (e) of the definition of Extension Loan Conditions to be satisfied no later than the Completion Date, and (viii) to cause the Extension Loan to be made within one hundred and twenty (120) days following satisfaction of the Extension Loan Conditions.

(b)Notwithstanding anything in Section 3.05(d) to the contrary, if, on the date the Extension Loan is made, there are “overbudgeted” portions of any line item in the NYTC Budget pursuant to clauses (A), (B) or (C) of the first sentence of Section 7.11(d) and provided that no Lender or Lenders shall have made Advances in excess of such line item (taking into account such cost savings), the amount of the Extension Loan and the Maximum Amount-NYTC shall be reduced by the amount of such cost savings but, notwithstanding the definition of Maximum Amount-FC, such Maximum Amount-FC shall not be increased.

SECTION 7.36Single Purpose Entity.  Until such time as the Project Loan is paid in full, Borrower:

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(a)except as referred to in Section 7.19(a)(ii) hereof, has not and will not amend, modify or otherwise change its operating agreement or formation agreement or certificate of formation without the approval of Agent, which approval shall not be unreasonably withheld or delayed;

(b)except as referred to in Section 7.19(a)(i) hereof, has not and will not enter into any transaction of merger or consolidation, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or acquire by purchase or otherwise all or substantially all the business or assets of, or any stock or other evidence of beneficial ownership of, any Person;

(c)has not and will not guarantee, pledge its assets for the benefit of, or otherwise become liable for or in connection with, any obligation of any Person;

(d)has not owned and will not own any asset other than (i) the Mortgaged Property and (ii) incidental personal property in connection with the construction or operation of the Mortgaged Property;

(e)has not engaged and will not engage, directly or indirectly, in any business other than the acquisition, development, construction, ownership, management and operation of the Mortgaged Property;

(f)has not entered into and will not enter into any contract or agreement (excluding the Development Agreements) with any of its officers, principals, employees, Members or Affiliates or any Affiliate of any Borrower Entity except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with third parties (each, a “Permitted Affiliate Contract”);

(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 and (iv) 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 Extension Loan) will be secured (senior, subordinate or pari passu) by the Mortgaged Property;

(h)has not made and will not make any loans or advances to any third party (including any Affiliate);

(i)is and will be, solvent and pay its debts from its assets as the same shall become due, except for those being contested in good faith by appropriate proceedings;

(j)has done or caused to be done and will do all things necessary to preserve its existence;

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(k)will conduct and operate its business as presently, and as presently contemplated to be, conducted and operated;

(l)will maintain financial statements, books and records and bank accounts separate from those of its Affiliates;

(m)will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate thereof);

(n)will file its own tax returns;

(o)will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(p)will not seek the dissolution or winding up, in whole or in part, of itself or the Members, except as contemplated by Section 7.19(a) hereof;

(q)will not commingle its funds and other assets with those of any Affiliate or any other Person;

(r)has maintained, and will maintain, its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify such assets from those of any Affiliate or any other Person;

(s)has not, and will not, hold itself out to be responsible for the debts or obligations of any other Person (including any Affiliate);

(t)will not do any act which would make it impossible to carry on its ordinary business or the business of the Members;

(u)will not possess the Mortgaged Property or incidental personal property necessary for the operation of the Mortgaged Property for other than a business or company purpose;

(v)will not sell, encumber or otherwise dispose of any part of the Mortgaged Property or incidental personal property necessary for the operation of the Mortgaged Property, except for the transfers referred to in Section 7.32(a)(i) hereof;

(w)will not hold title to its assets other than in its name;

(x)will not institute proceedings to be adjudicated bankrupt or insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or consent to, reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any applicable federal or state law relating to bankruptcy or insolvency; or consent to the appointment of a Bankruptcy Assignee of itself or the Members or a substantial part of its or the Members’ property, or of all or any part of the rents, revenues, issues, earnings, profits or income

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thereof; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; or take any action in furtherance of any such action; and

(y)will not acquire any stock or assets of, or form a partnership, joint venture or other entity with, any Person without Agent’s prior approval.

The foregoing provisions of this Section 7.36 shall be incorporated into, and be maintained in, Borrower’s Articles of Organization for as long as any Borrower Entity is indebted to Agent or the Lenders under any Project Loan Document.

SECTION 7.37Labor Harmony.  Borrower will not terminate or amend the No-Strikes Agreement, will diligently enforce the provisions thereof binding on the other party thereto, and will use diligent efforts to cause the General Contractor to (x) undertake to contract with only subcontractors and, if applicable, suppliers who utilize labor having compatible affiliations with those currently available in the New York City geographical area, and (y) take all appropriate and lawful steps so that all union and bargaining agreements are honored by the General Contractor and its subcontractors and, if applicable, the General Contractor’s suppliers and that no job site disruption or unrest ensues.

SECTION 7.38Required Notices.  To give (or to cause to be given) notice to Agent promptly of:

(a)any material notice, pleading or other information pertaining to the Pending Litigations received by Borrower or either Member and any other material actual or threatened (in writing) litigation, investigation or proceeding affecting Borrower, either Member or the Mortgaged Property;

(b)any material notice received by any Borrower or any Member from any Governmental Authority relating to the Property;

(c)any event or occurrence which could reasonably be expected to (i) delay “Substantial Completion” (as defined in the Ground Lease) beyond the Fixed Substantial Completion Date or cause the Project not to achieve Final Completion by the Maturity Date or (ii) otherwise cause a Material Adverse Effect; and

(d)any material notice given or received in connection with the Operating Agreement.

Each notice pursuant to this Section 7.38 shall be accompanied by a statement of Borrower setting forth details of the occurrence referred to therein and stating what action Borrower or the applicable Borrower Entity proposes to take with respect thereto.

SECTION 7.39Protection Against Liens.  Within sixty (60) days of obtaining knowledge thereof, to (i) pay and discharge, (ii) bond over or (iii) cause the Title Companies to insure over, all liens for labor, materials and services furnished to the Mortgaged Property and all liens in favor of the condominium against any portion of the

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Mortgaged Property for common charges that are past due and to take all actions reasonably required to prevent the assertion of claims of Liens against the Mortgaged Property.  Borrower irrevocably appoints, designates and authorizes Agent (such agency being coupled with an interest) with the authority (but no obligation) to file any notice relating to claims of Liens that Agent deems advisable to protect its interests under the Project Loan Documents.  In the event that any stop notice or claim is asserted by any Person furnishing labor, services, equipment or materials to the Mortgaged Property, upon demand by Agent, Borrower shall take such action as Agent may require to release Agent and/or Lenders from any obligation or liability with respect to such stop notice or claim, including (i) obtaining a bond or other security, in form, substance and amount satisfactory to Agent, or (ii) paying such claim.

SECTION 7.40Concrete, Soil and Other Tests.  To perform such soil, compaction, concrete and other tests (from time to time) as Agent or Construction Consultant may reasonably require, in form and substance reasonably satisfactory to Construction Consultant and Agent.

SECTION 7.41ERISA.  (a)  Not to (and to cause each Member not to) engage in a nonexempt prohibited transaction as described in Section 406 of ERISA or Section 4975 of the Code, or that would cause any obligation or action taken or to be taken pursuant to the Project Loan Documents (including, but not limited to, the exercise by Agent of any of its rights under the Project Loan Documents) to constitute a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or (b) not to (and to cause each Member not to) qualify as an Employee Benefit Plan or acquire any assets that constitute Plan Assets.

SECTION 7.42Name; Chief Executive Office.  To not (i) change its legal name, (ii) use any trade name or do business under any name other than its actual legal name set forth herein on the first page of this Agreement, and (iii) without the prior consent of Agent, change the mailing address, place of business or location of its chief executive office.

SECTION 7.43No Joint Assessment.  Not to suffer, permit or initiate the joint assessment of the Premises (i) with any other real property constituting a tax lot separate from the Premises (other than Lot 15), and (ii) unless required by applicable law, with anything which may be deemed to constitute personal property, and not to cause or permit any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Premises.  Borrower or the Members shall use its or their diligent efforts to subdivide Lot 15 into separate tax lots as soon as practicable such that the portion of Lot 15 that is subject to the Project Loan Mortgage is a separate tax lot.

SECTION 7.44Permitted Affiliate Contracts.  To provide Agent with (a) notice of any Permitted Affiliate Contract at least ten (10) days prior to execution thereof and (b) a copy of such Permitted Affiliate Contract promptly after the execution thereof with no changes or modifications from the draft previously submitted to Agent.

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No Permitted Affiliate Contract shall be amended or extended without the prior approval of Agent, such approval not to be unreasonably withheld or delayed.

SECTION 7.45Payment and Performance Bonds.  To obtain, promptly deliver to Agent and maintain Payment and Performance Bonds for all Payment and Performance Bond Contracts.

SECTION 7.46NYTC Units Release Provisions.  (a)  Provided that no Noticed Default or Event of Default exists under any Building Loan Document or Project Loan Document, the NYTC Units may be transferred to NYTC Member in redemption of NYTC Member’s interest in Borrower, and upon such conveyance and redemption and the satisfaction of the following conditions, (x) the releases and terminations referred to in Section 7.46(d) hereof shall be effectuated, (y) Agent shall modify the liens of the Building Loan Mortgage and Project Loan Mortgage so that there shall exist a second priority mortgage encumbering solely the FC Units, which mortgage shall be in the amount of the Extension Loan (and the Building Loan Notes and Project Loan Notes shall also be appropriately severed to reflect the same) and (z) Agent and Lenders shall assign such mortgages (and such severed notes) applicable to the FC Units to Extension Loan Lender:

(1)the Condominium Documents shall have been filed in the appropriate public offices and the condominium thereunder validly created under the Condominium Act, all of the conditions set forth in Section 7.30(c) shall have been met (other than the condition set forth in Section 7.30(c)(i)) and there shall be no remaining legal restrictions under the Condominium Documents or under applicable law to such conveyance and redemption;

(2)Core and Shell Completion shall have been achieved;

(3)A temporary certificate of occupancy for each of the Units (which may be a zero occupancy or core and shell temporary certificate of occupancy) shall have been issued;

(4)Agent shall have received not less than thirty (30) days’ prior notice of the proposed conveyance and redemption;

(5)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;

(6)Agent shall have received by wire transfer of immediately available funds (A) an amount sufficient (after application of such amount in accordance with Section 7.46(b) below) to reduce the Remaining Loan Amount to $200,500,000.00 (less any prior principal prepayments pursuant to Section 2.06 of the Project Loan Mortgage and

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Section 2.06 of the Building Loan Mortgage); and (B) all amounts required by clauses (x) and (y) of the first sentence of Section 3.12 hereof, which amounts shall be applied as provided in Section 7.46(b) below;

(7)Borrower shall have paid all reasonable, third-party out of pocket costs and expenses incurred by Agent in connection with such severance, assignment and release (including reasonable attorneys’ fees and disbursements);

(8)Agent shall have received an endorsement to the existing title policy to the effect that the applicable modifications of the Building Loan Mortgage and the Project Loan Mortgage and the assignments and releases 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;

(9)Borrower shall have paid any mortgage tax or transfer taxes due, and properly completed and submitted any required tax forms, in connection with the entering into of the Extension Loan and the NYTC Units Redemption;

(10)the redemption of the FC Units in accordance with Section 7.50 hereof shall have occurred (or shall be occurring simultaneously with the NYTC Units Redemption);

(11)Borrower shall have delivered to Agent all of the documents executed in connection with Extension Loan which shall be in form and substance satisfactory to Agent, and an intercreditor agreement between Extension Loan Lender and Agent, for itself and on behalf of Lenders, with respect to the Extension Loan (the “Extension Loan Intercreditor Agreement”), substantially in the form attached hereto as Exhibit R; and

(12)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)At the option of NYTC Member, amounts received by Agent under clause (6) of Section 7.46(a), shall, at NYTC Member’s option, (i) be immediately used to prepay the Outstanding Principal and all accrued and unpaid interest thereon in accordance with Section 3.12 hereof, or (ii) pursuant to an agreement between NYTC Member and Agent reasonably satisfactory to Agent, be held by Agent as additional collateral for the Building Loan and Project Loan until a date selected by NYTC Member that is not later than the first Business Day of the next succeeding month (and Borrower or NYTC Member shall also deposit with Agent interest on such amount

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that will accrue through such date), on which date such amounts (plus any interest earned thereon) shall be applied to prepay the Outstanding Principal and accrued and unpaid interest in accordance with Section 3.12 hereof.  Notwithstanding the foregoing, any amounts paid pursuant to clause (6) of this Section 7.46(b) in excess of the then Maximum Amount-NYTC shall be disbursed to NYTC Member.

(c)Upon the release of the NYTC Units in accordance with the provisions of this Section 7.46, (i) the NYTC Units shall be released from the liens of the remaining Building Loan Mortgage and Project Loan Mortgage and from the Building Loan Assignment of Leases and Project Loan Assignment of Leases and (ii) the Assignment of Contracts - NYTC Member and the NYTC Non-Recourse Carveouts 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 and (iii) the Ground Lease and the Severance Sublease to which NYTC Member is a party shall be released from the lien of the Building Loan Mortgage and Project Loan Mortgage.

(d)The assignments of mortgages and endorsements of notes made pursuant to this Section 7.46 shall be made without representations or warranties from, or recourse to, Agent or the respective holders thereof; provided, however, that Agent or such holder shall represent and warrant (x) that it owns each note and mortgage being assigned free and clear of all liens and encumbrances and (y) the outstanding principal amount of each note.

(e)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.

SECTION 7.47Security Personnel.  To employ security personnel or other means reasonably satisfactory to Agent to protect from theft or vandalism all portions of the Project and all tools and building materials stored at the Premises.

SECTION 7.48[INTENTIONALLY OMITTED].

SECTION 7.49Compliance with Condominium Documents.  Upon recording of the Condominium Declaration, Borrower will (or shall cause each Member to) do the following:

(a)(i)Pay on or before the expiration of any applicable grace or cure period all charges due with respect to the Units remaining part of the Mortgaged Property (including, without limitation, common charges and assessments) for which Borrower or such Member is responsible under the Condominium Documents, and will not, without the prior consent of Agent, vote at any meeting of such Unit owners, or permit its representatives on the board of directors or other governing board for such Unit to vote or take any action

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whatsoever respecting (1) any partition of all or a part of the property subject to the Condominium Declaration; (2) the nature and amount of any insurance covering all or a part of such Unit and the disposition of any proceeds thereof or the manner in which any condemnation or threat of condemnation of all or a part of such Unit shall be defended or settled and the disposition of any award or settlement in connection therewith; (3) the disposition of any excess insurance or condemnation proceeds; (4) the acquisition of any interest pursuant to any purchase option or right of first refusal in the Condominium Documents; and (5) any amendment to said Condominium Documents and any removal of such Unit from the provisions of the Condominium Act; and

(ii)otherwise timely comply before the lapse of any applicable notice and cure period with each of its obligations under the Condominium Documents.

(b)Promptly send to Agent copies of any written notice received by Borrower or any Member alleging any default by Borrower or any Member under, or noncompliance with, any of the Condominium Documents and all modifications and amendments to the Condominium Documents, and do all such acts and undertake all reasonable such steps and institute all such proceedings as shall be reasonably necessary to cure or avert such default and to forward to Agent any notices Borrower or any Member receives in regard to any of the foregoing matters.

SECTION 7.50Redemption of FC Units.  Provided that no Noticed Default or Event of Default exists under any Building Loan Document or Project Loan Document, Agent shall permit each of the FC Units to be transferred to the FC Member in redemption (or partial redemption) of FC Member’s interest in Borrower, upon satisfaction of the following conditions with respect to each applicable FC Unit:

(a)the Condominium Documents shall have been filed in the appropriate offices and the condominium thereunder validly created under the Condominium Act, all of the conditions set forth in Section 7.30(c) shall have been met and there shall be no remaining legal restrictions under the Condominium Documents or under applicable law to the conveyance and redemption of such Unit;

(b)Agent shall have received not less than ten (10) Business Days’ prior notice of the proposed conveyance and redemption;

(c)the applicable Unit will constitute one or more tax lots separate and distinct from the tax lot or lots applicable to the other portions of the Premises;

(d)Borrower or the FC Member shall have paid all out-of-pocket costs and expenses of Agent in connection with such conveyance and redemption and the other activities described in this Section 7.50;

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(e)the FC Member shall have executed such documents of assumption with respect to the Project Loan as Agent may reasonably require (including, without limitation, an assumption of recourse liability to FC Member as successor to Borrower);

(f)FC Member shall have delivered evidence satisfactory to Agent that its articles of organization shall contain the covenants set forth in Section 7.36 hereof, mutatis mutandis;

(g)Borrower shall have paid all transfer taxes applicable to such conveyance and redemption;

(h)Agent shall have received such assurances as Agent shall reasonably require to the effect that the conveyance and redemption shall not affect the validity or priority of the Building Loan Mortgage or Project Loan Mortgage; and

(i)Agent shall have received such opinions (but not a non-consolidation opinion), documents, certificates, instruments or assurances as Agent may reasonably request.

SECTION 7.51Title Insurance Proceeds.  To direct to be paid over to Agent any and all payments payable to Borrower or any Member under any title insurance policy covering the Property with respect to any Unit which then remains subject to the lien of a Building Loan Mortgage or Project Loan Mortgage.  Such payments shall be applied in accordance with the second- and third-to-last sentences of Section 7.05 hereof (as if such payments were a Tax Refund); provided that if Agent has a corresponding claim under its title insurance policy but has not received payment, all references in said sentences to Borrower’s option, shall be deemed to be references to Agent’s option.

SECTION 7.52No Indebtedness.  Not to permit any Member to incur any indebtedness other than the Extension Loan and the Mezzanine Loan (as defined in the FC Operating Agreement), and to not permit its (or any Member’s) managers on any of the board of managers under the Condominium Documents to vote to have the condominium incur indebtedness of more than five hundred thousand dollars ($500,000.00) in the aggregate.

SECTION 7.53Equity Contribution.  (a) To enforce (and to cause all other Borrower Entities parties thereto to enforce) the provisions of the Equity Contribution Documents against NYTC Member and not to waive or permit the waiver of any of the obligations of NYTC Member under the Equity Contribution Documents, (b) to comply (and to cause all other Borrower Entities parties thereto to comply) with the provisions of the Equity Contribution Documents and to do no act which would relieve NYTC Member of its obligations under the Equity Contribution Documents or cancel or terminate any Equity Contribution Documents, (c) to cause to be taken all actions necessary or appropriate in order to consummate the funding of the Equity Contribution, (d) to make no amendments to, or assign rights or obligations under, the Equity

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Contribution Documents without the prior approval of Agent and (e) to cause to be provided to Agent copies of any communications given to or received from NYTC Member under the Equity Contribution Documents.

SECTION 7.54Borrower LCs.  To maintain the Borrower LCs in full force and effect for so long as required under the Land Acquisition Agreement.  Agent acknowledges that the aggregate amount of the Borrower LCs shall be deemed to be Initial Required Equity Funds that have been contributed unless any of the Borrower LCs or any portion thereof (i) are permitted to be released to any Borrower Entity or reduced or (ii) are no longer in full force or effect (unless, in each case, such Borrower LCs shall have been fully-drawn upon).  Upon the occurrence of either of the events described in the foregoing clauses (i) and (ii), then (a) Borrower shall deposit with Agent the aggregate undrawn amount of such Borrower LCs or the applicable portion thereof (any such deposit, a “Borrower LC Deposit”) (provided that Agent and Borrower acknowledge that a Borrower LC Deposit shall constitute Initial Required Equity Funds when deposited), (b) Agent shall hold such amount in an interest bearing account, (c) such deposited amount shall be treated in accordance with (and Borrower shall comply with the requirements with respect thereto set forth in) Section 3.06 hereof as if the Borrower LC Deposit were a Completion Deposit and (d) the Borrower LC Deposit shall be applied to Building Loan Costs or Project Loan Costs simultaneously with the immediately succeeding Advance as Other Funds.  Notwithstanding the immediately preceding sentence, if (A) a Borrower LC posted by NYTC Member or any of its direct or indirect equity owners is permitted to be released or reduced, no Person shall have any obligation to make a Borrower LC Deposit with respect to such Borrower LC and (B) after all Initial Required Equity Funds have been contributed, the aggregate face amount of any of the Borrower LCs are required to be, and are, increased pursuant to the terms of the Land Acquisition Agreement and thereafter any of such Borrower LCs (or any portion thereof) are released to any Borrower Entity, the amount of such increase shall not be required to be deposited as a Borrower LC Deposit.

SECTION 7.55Additional Covenants Relating to Ground Lease.

(a)Without the prior approval of Agent, which approval shall not be unreasonably withheld or delayed, not to (i) amend, modify, surrender, terminate, cancel or waive any material provision of the Ground Lease and (ii) to cause each Member not to amend, modify, surrender, terminate, cancel or waive any material provision of the Severance Subleases.

(b)To do, or cause to be done, all things necessary to preserve and keep unimpaired the rights of Borrower as ground lessee under the Ground Lease, and the rights of the NYTC Member and FC Member as ground sublessee under the applicable Severance Sublease(s) and to prevent (and cause each Member to prevent) any default under the Ground Lease, or the applicable Severance Sublease(s), as applicable, within the applicable notice and grace periods or any termination, surrender, cancellation, forfeiture, waiver or impairment thereof, as applicable.  In the event of the failure of Borrower or a Member to make any payment required to be made by it pursuant to the provisions of the Ground Lease or the applicable Severance Sublease(s), as applicable, or

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to keep, observe or perform, or cause to be kept, observed or performed, any of the terms, covenants, provisions or agreements of the Ground Lease, or the applicable Severance Sublease(s), as applicable, beyond any applicable notice and grace periods, Borrower agrees (and shall cause each Member to agree) that Agent may (but shall not be obligated to), without notice, take any action on behalf of Borrower or such Member, as applicable, make or cause to be kept, observed or performed any such terms, covenants, provisions or agreements and to enter upon the Mortgaged Property and take all such action thereof as may be necessary therefor, to the end that the rights of Borrower in and to the leasehold estate created by the Ground Lease or to the subleasehold estate created by the applicable Severance Sublease(s), as applicable, shall be kept unimpaired and free from default and shall have, in addition to any other remedy of Agent, the same rights and remedies in the event of non-payment of any such sum by Borrower or such Member, as applicable, within the applicable notice and grace periods as in the case of a default by Borrower in the payment of any sums due under the Project Loan Notes or any other Project Loan Documents.

(c)To enforce, or cause the enforcement of, the Ground Lease and the Severance Subleases in a diligent and commercially reasonable manner and to promptly notify Agent of the giving of any notice by any party to the Ground Lease or the Severance Subleases to the other party thereto of any default by such other party in the performance or observance of any of the terms, covenants or conditions of the Ground Lease or the applicable Severance Sublease(s), as applicable, to be performed or observed, and deliver to Agent a true copy of each such notice and copies of all other notices, communications, plans, specifications and other similar instruments received by or delivered to Borrower or the applicable Member in connection therewith.  If, pursuant to the Ground Lease or any Severance Sublease, the other party thereto shall deliver to Agent a copy of any notice of default given to Borrower or the applicable Member, as applicable, such notice shall constitute full authority and protection to Agent for any action taken or omitted to be taken by Agent in good faith in reliance thereon to cure such default.

(d)If any action or proceeding shall be instituted to evict Borrower or a Member or to recover possession of the Mortgaged Property or for any other purpose affecting the Ground Lease or any Severance Sublease, to, immediately upon service thereof on or to Borrower or the applicable Member, as applicable, deliver to Agent a true copy of each petition, summons, complaint, notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding.

(e)No release or forbearance of any of Borrower’s obligations under the Ground Lease or any Member’s obligations under the applicable Severance Sublease(s), pursuant to the Ground Lease, a Severance Sublease or otherwise, shall release Borrower, or such Member from any of its obligations under this Agreement or any other Project Loan Document.  If the Ground Lease or other Severance Sublease is canceled or terminated, and if Agent or its nominee or any Lender shall acquire an interest in any new ground lease or sublease of the property demised thereby, Borrower shall have no right, title or interest in or to such new lease or sublease or to the leasehold

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estate created by such new ground lease or sublease.  Agent shall be liable for the obligations of Borrower arising under the Ground Lease and the Members arising under the Severance Subleases for only that period of time which Agent is in possession of the Mortgaged Property or has acquired, by foreclosure or otherwise, the Mortgaged Property and is holding all of the Borrower’s (or such Member’s) right, title and interest therein.

(f)Borrower shall (and shall cause the applicable Member to) give Agent prompt written notice of the commencement of any arbitration or appraisal proceeding under and pursuant to the provisions of the Ground Lease or any Severance Sublease.  Agent shall have the right to intervene and participate in any such proceeding and Borrower shall confer (or cause the applicable Member to confer) with Agent to the extent which Agent deems necessary for the protection of Agent.  Upon the written request of Agent, if an Event of Default exists, Borrower will (or will cause the applicable Member to) exercise all rights of arbitration conferred upon it by the Ground Lease or such Severance Sublease.  Borrower or such Member shall select an arbitrator who is reasonably approved in writing by Agent, provided, however, that if at the time any such proceeding shall be commenced, an Event of Default shall exist, Agent shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Borrower (or the applicable Member) the arbitrator or arbitrators, or appraiser, in such proceeding.

(g)If any action, proceeding, motion or notice shall be commenced or filed in respect of the Ground Lessor or any other fee owner of the Mortgaged Property in connection with any case under the Bankruptcy Code or under any other Bankruptcy Law, Borrower (or the applicable Member) shall, after obtaining knowledge thereof, promptly notify Agent.  Borrower (or the applicable Member) shall promptly deliver to Agent, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Borrower (or the applicable Member) in connection with any such action, proceeding, motion or notice and any proceedings relating thereto.  Borrower shall not commence any action, suit, proceeding or case, or file any application or make any motion (unless such motion is for the purpose of protecting the Ground Lease or the Severance Subleases and its value as security for the Indebtedness and the Obligations).  Agent shall have the option, exercisable upon notice from Agent to Borrower (or the applicable Member) and at Borrower’s (or the applicable Member’s) expense, to conduct and control any such litigation with counsel of Agent’s choice.  Agent may proceed in its own name or in the name of Borrower (or the applicable Member), and Borrower hereby assigns (and shall cause the Members to assign) to Agent, and hereby agrees to execute (or caused to be executed) any and all powers, authorizations, consents or other documents reasonably required by Agent in connection with all of its (or their) rights in respect of, any claim, suit, action or proceeding relating to the rejection of the Ground Lease or the Severance Subleases by Ground Lessor, including, without limitation, the right to file and prosecute, either in its own name or in the name of Borrower (or the Members), any proofs of claim, complaints, motions, applications, notices and other documents, in any such action, proceeding, motion or notice.  The assignments contained in the immediately preceding sentence constitute a present, irrevocable and unconditional assignment of the foregoing in such

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claims, suits, actions and proceedings, and shall continue in effect until all of the Indebtedness shall have been satisfied and discharged in full.

SECTION 7.56Deliveries.

(a)To deliver to Ground Lessor, in accordance with the notice provisions of the Ground Lease, (i) on the date hereof, copies of the Project Loan Mortgage and Project Loan Assignment of Leases, (ii) copies of all amendments thereto within the time period set forth in Section 31.1(a)(i) of the Ground Lease, and (iii) recorded copies of said mortgage, assignment and amendments; and

(b)to deliver to the City of New York (i) within two (2) Business Days after the date hereof, copies of the Project Loan Mortgage and Project Loan Assignment of Leases and (ii) copies of all amendments thereto.

SECTION 7.57Pledged Accounts.  (a)  (i) Prior to the earlier to occur of (A) execution of the first Lease covering any space in the FC Units or any Common Elements Leasable Space and (B) the date of the Initial Construction Advance, (1) to execute and deliver (and cause FC Member to execute and deliver) either (x) a pledge and security agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank, substantially in the form of Exhibit S hereto, subject to any modifications required by Borrower’s Bank that are reasonably acceptable to Agent or (y) (I) a pledge and security agreement by and among Borrower, FC Member and Agent, for itself and on behalf of Lenders substantially in the form of Exhibit S as to matters contained therein that govern the relationship between Agent, on the one hand, and Borrower and FC Member, on the other hand, and the respective rights of each and (II) a control agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank, in form and substance reasonably acceptable to Agent and Borrower’s Bank (the document listed under clause (x) or the documents listed under clause (y) collectively, the “Security Deposit Accounts Agreement”), and  (2)  to deliver an opinion reasonably acceptable to Agent covering due authorization, execution and delivery by Borrower and FC Member, security interest perfection, enforceability and other customary matters with respect to the Security Deposit Accounts Agreement (but in no event as to matters with respect to Borrower’s Bank (other than enforceability of the Security Deposit Accounts Agreement against Borrower’s Bank)).

(b)(i) Prior to the earlier to occur of (A) the receipt of the first Rents under any Lease covered by Section 7.57(a) or any other amounts required under the Loan Documents to be deposited into one of the Collection Accounts (as hereinafter defined) and (B) the date of the Initial Construction Advance, (1) to execute and deliver (and cause FC Member to execute and deliver) either (x) a pledge and security agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank substantially in the form of Exhibit T hereto, subject to any modifications requested by Borrower’s Bank that are reasonably acceptable to Agent or (y) (I) a pledge and security agreement by and among Borrower, FC Member and Agent, for itself and on behalf of Lenders substantially in the form of Exhibit T as to matters contained therein that govern the relationship between Agent, on the one hand, and

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Borrower and FC Member, on the other hand, and the respective rights of each and (II) a control agreement by and among Borrower, FC Member, Agent, for itself and on behalf of Lenders, and Borrower’s Bank, in form and substance reasonably acceptable to Agent and Borrower’s Bank (the document listed under clause (x) or the documents listed under clause (y) collectively, the “Collection Accounts Agreement”)  and (2) to deliver an opinion reasonably acceptable to Agent covering due authorization, execution and delivery by Borrower and FC Member, security interest perfection, enforceability and other customary matters with respect to the Collection Accounts Agreement (but in no event with respect to matters as to Borrower’s Bank (other than enforceability of the Collection Accounts Agreement against Borrower’s Bank)).

ARTICLE 8

THE AGENT

SECTION 8.01Actions.  If Agent shall have reasonable cause to believe that any action or proceeding related to the Mortgaged Property could, if adversely determined, have an adverse effect upon the rights or interests of Agent and/or Lenders under this Agreement or any of the other Project Loan Documents, Agent shall have the right to commence, appear in and defend such action or proceeding, and in connection therewith Agent may incur costs and expenses, employ counsel, and pay attorneys’ fees and disbursements.  Borrower agrees to pay to Agent all reasonable costs and expenses incurred by Agent in connection therewith, including without limitation reasonable attorneys’ fees and disbursements, together with interest from the due date thereof unless there has been a non-appealable judicial determination that Agent’s commencement, appearance and defense was not proper.  Borrower’s obligation to pay such costs and expenses shall be secured by the Security Documents.

SECTION 8.02Non-Liability of Agent and Lenders.  Borrower acknowledges and agrees that:

(a)any inspections of the construction of the Project made by or through Agent, Lenders or Construction Consultant are for purposes of administration of the Project Loan and for the protection of Agent and/or Lenders only and neither any Borrower Entity, nor any other Person is entitled to rely upon the same with respect to the quality, adequacy or suitability of materials or workmanship, conformity to the Plans and Specifications, state of completion or otherwise; each Borrower Entity shall make its own inspections and judgments of such construction to determine that the quality of the Project and all other requirements of such construction are being performed in a manner satisfactory to such Borrower Entity and Agent and in conformity with the Plans and Specifications and all other requirements; and Borrower shall immediately notify Agent should the same not be in conformity with any Plans and Specifications and all other requirements;

(b)by accepting or approving anything required to be observed, performed, fulfilled or given to Agent or Lenders pursuant to the Project Loan Documents, including any certificate, statement of profit and loss or other financial

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statement, survey, appraisal, lease, contract or insurance policy, neither Agent nor Lenders shall be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not constitute a warranty or representation to anyone with respect thereto by Agent or Lenders;

(c)neither Agent nor Lenders undertake nor assume any responsibility or duty to any Borrower Entity to select, review, inspect, supervise, pass judgment upon or inform any Borrower Entity of any matter in connection with the Mortgaged Property or the Project, including without limitation matters relating to the quality, adequacy or suitability of (i) the Plans and Specifications, (ii) the architects, contractors, subcontractors and materialmen employed or utilized in connection with the construction of the Project, or the workmanship of or the materials used by any of them, or (iii) the progress or course of construction and its conformity or nonconformity with the Plans or Specifications;

(d)neither Agent nor any Lender owes any duty of care to protect any Borrower Entity against negligent, faulty, inadequate or defective building or constructions; and

(e)neither Agent nor any Lender shall be directly or indirectly liable or responsible for any loss, claim, cause of action, liability, indebtedness, damage or injury of any kind or character to any Person or property arising from any construction on, or occupancy or use of, any of the Mortgaged Property or the Project, including without limitation any loss, claim, cause of action, liability, indebtedness, damage or injury caused by, or arising from:  (i) any defect in any building, structure, grading, fill, landscaping or other improvements thereon or in any on-site or off-site improvement or other facility therein or thereon; (ii) any act or omission of any Borrower Entity, the parties comprising any such entity or any such entities’ agents, employees, independent contractors, licensees or invitees (including, without limitation, the General Contractor); (iii) any accident in or on the Premises or any fire, flood or other casualty or hazard thereon; (iv) the failure of any Borrower Entity or any of such entity’s licensees, employees, invitees, agents, independent contractors or other representatives to maintain the Mortgaged Property in a safe condition; and (v) any nuisance made or suffered on any part of the Mortgaged Property.  Notwithstanding the foregoing, Borrower shall not be liable for any loss, claim, cause of action, liability, indebtedness, damage or injury which (x) is directly attributable to any gross negligence or willful misconduct of, or violation of law by, Agent, any Lender or any employee or agent of such Agent or Lender or (y) is attributable to the period of time during which Agent or any Lender is a “mortgagee in possession” or after the Mortgaged Property has been foreclosed upon or has been transferred by deed-in-lieu thereof to any third party purchaser.

SECTION 8.03Authorization and Action.

(a)By its acceptance of an interest in the Project Loan, each Lender: (i) agrees to the terms and conditions of this Agreement and all other Project Loan Documents; (ii) authorizes and directs Agent to act on its behalf in all respects

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under the Project Loan in connection with the Project Loan Documents and the making of the Project Loan and to exercise all powers under the Project Loan Documents and all powers reasonably incidental thereto, except with respect to matters, items and decisions as to which a Major Decision or Super-Major Decision is required (matters which are not Major Decisions or Super-Major Decisions being hereinafter referred to as “Agent Decisions”) and (iii) agrees to be bound by any acts of Agent in accordance with the foregoing.  Without limiting the generality of the foregoing and, notwithstanding any provision hereof to the contrary, any and all actions relating to the construction and development of the Project, including, without limitation, approval of changes to the Budgets, Disbursement Schedule, Construction Schedule, the Plans and Specifications, contracts and subcontracts and Payment and Performance Bonds; all decisions with respect to releases of Units under Section 7.46; at any time there is no outstanding Noticed Default or Event of Default, all decisions with respect to the making of Advances; and all power to determine, declare, and send notices of Defaults and Events of Default and to approve Leases (except to the extent approval of a Lease is a Major Decision) and Material Contracts, shall be Agent Decisions exclusively and shall not constitute a Major Decision or Super-Major Decision requiring the approval of any other Lender.  Any provision of this Agreement which grants to Agent the right to make a decision at its sole discretion or in its reasonable judgment or at its option or any other similar provision is intended, unless the context shall clearly require otherwise, to apply only to relations between Borrower, the other Borrower Entities and Agent and the respective rights and obligations of Borrower, the other Borrower Entities and Agent hereunder and shall not apply to the relations between Agent and the Lenders or the respective rights and obligations of Agent and the Lenders hereunder.

(b)As to any Major Decision or Super-Major Decision, Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Lenders (in the case of any Major Decision) or the Super-Majority Lenders (in the case of Super-Major Decision), provided, however, that Agent shall not be required to take any action which exposes Agent to personal liability or which is contrary to this Agreement or applicable law.

(c)All losses, expenses, liabilities and obligations incurred by Agent in connection with the Project Loan, the enforcement thereof or the realization of the security therefor and not paid for by a Borrower Entity shall be borne by the Lenders in accordance with their ratable interest in the Project Loan, and Lenders will, upon request, reimburse Agent for their ratable shares of any expenses incurred by Agent in connection therewith, including any advances made to pay Property Taxes or insurance or otherwise to preserve the lien of the Project Loan Mortgage or to preserve and protect the Mortgaged Property, or made to effect the completion of the Project to be constructed pursuant to this Agreement and/or the achievement of Final Completion of the Project, any other expense incurred in connection with the enforcement of the Security Documents, and any expenses incurred by Agent in connection with the consummation of the Project Loan not paid or provided by Borrower.

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(d)Promptly after Agent acquires actual knowledge thereof, Agent will give notice to each Lender of any Lien on the Mortgaged Property or material Default under this Agreement or any of the other Project Loan Documents which in Agent’s judgment materially adversely affects any Lender’s interest in the Project Loan.  Agent shall promptly advise Lenders from time to time of any material remedial action which Agent shall have taken.

(e)In no event shall any or all Lenders have the right to remove Agent without cause and in no event shall Agent resign as agent.

(f)The provisions of this Section 8.03 are for the sole benefit of Agent and Lenders and therefore may be modified, amended or deleted as Agent and Lenders shall mutually agree without the consent of any Borrower Entity.

SECTION 8.04Agent’s Reliance, Etc.  (a)  Agent shall administer this Agreement and the other Project Loan Documents and service the Project Loan in accordance with the terms and conditions of this Agreement and with the same degree of care as Agent would use in servicing a loan of similar size and type held for its own account, provided, however, that none of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Project Loan Documents, except for its or their own gross negligence or willful misconduct.  Without limitation of the generality of the foregoing, Agent:  (i) may consult with legal counsel, independent public accountants and other experts selected and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Project Loan Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Project Loan Document on the part of any Borrower Entity to inspect the Mortgaged Property (except that prior to Substantial Completion, Agent shall (or shall direct Construction Consultant to) periodically inspect the Mortgaged Property as necessary to comply with the standard of care described in the first sentence of this Section 8.04) or the books and records of any Borrower Entity; (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of any Project Loan Document or any other instrument or document furnished pursuant hereto; and (v) shall incur no liability under or in respect of this Agreement or any other Project Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.

(b)The provisions of this Section 8.04 are for the sole benefit of Agent and Lenders and therefore may be modified, amended or deleted as Agent and Lenders shall mutually agree without the consent of any Borrower Entity.

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SECTION 8.05Payments to Lenders.  Agent shall remit to Lenders their ratable shares of any payment received from Borrower or from another source on account of sums payable by Borrower.  The provisions of this Section are for the sole benefit of Agent and Lenders and therefore may be modified, amended or deleted as Agent and Lenders shall mutually agree without the consent of any Borrower Entity.

SECTION 8.06Construction Consultant.  (a)  Borrower acknowledges that (i) the Construction Consultant has been retained by Agent to act as a consultant and only as a consultant to Agent in connection with the construction of the Project and has no duty to any Borrower Entity, (ii) the Construction Consultant shall in no event have any power or authority to give any approval or consent or to do any other act or thing which is binding upon Agent and/or Lenders, (iii) Agent reserves the right to make any and all decisions required to be made by Agent under the Project Loan Documents and to give or refrain from giving any and all consents or approvals required to be given by Agent under the Project Loan Documents and to accept or not accept any matter or thing required to be accepted by Agent under the Project Loan Documents, and without being bound or limited in any manner or under any circumstance whatsoever by any opinion expressed or not expressed, or advice given or not given, or information, certificate or report provided or not provided, by the Construction Consultant with respect thereto, and (iv) Agent reserves the right in its sole and absolute discretion to disregard or disagree, in whole or in part, with any opinion expressed, advice given or information, certificate or report furnished or provided by the Construction Consultant to Agent or any other Person.

(b)Neither Agent nor the Construction Consultant shall have any liability to any Borrower Entity on account of (i) the services performed by the Construction Consultant, (ii) any neglect or failure on the part of the Construction Consultant to properly perform its services or (iii) any approval by the Construction Consultant of construction of the Project.  Neither Agent nor the Construction Consultant assumes any obligation to any Borrower Entity or any other Person concerning the quality of construction of the Project or the absence therefrom of defects.

SECTION 8.07Actions of Agent Binding Upon Lenders.  Any Borrower Entity shall be entitled to rely upon any notice from or action taken by Agent, and no Borrower Entity shall be under any duty to inquire as to whether such notice or action has been duly authorized by the Lenders.  Each Borrower Entity shall only be required to deal with Agent.

SECTION 8.08Initial Agent.

(a)Initial Agent is acting as initial agent under this Agreement, the Project Loan Mortgage and the Project Loan Assignment of Leases solely for the purpose of making available to Borrower an exemption from mortgage recording tax so that the Project may be financially feasible for Borrower.  In order to accomplish the foregoing, Initial Agent hereby agrees to submit the Project Loan Mortgage and the Project Loan Assignment of Leases to the Office of the City Register of New York County for recordation.  Upon such submission for recording of the Project Loan

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Mortgage and the Project Loan Assignment of Leases, effective immediately, automatically and without any further action whatsoever, Initial Agent shall be deemed to have (i) resigned as the initial agent (and the parties hereto consent to and accept such resignation), and (ii) assigned unto Agent all of Initial Agent’s right, title and interest as initial agent under this Agreement, the Project Loan Mortgage and the Project Loan Assignment of Leases (and Agent shall be deemed to have consented to and accepted such assignments).  The foregoing assignments are made without recourse, representation or warranty by Initial Agent, in any case or event or for any purpose whatsoever.  In confirmation of (and simultaneously with) the foregoing assignments, Initial Agent and Agent shall execute an assignment and assumption agreement evidencing such assignment which shall be submitted for recording in the Office of the City Register of New York County immediately after the submission of the Project Loan Mortgage and the Project Loan Assignment of Leases.

(b)Except as set forth in Section 8.08(a), Initial Agent has no beneficial interest in or discretionary authority, and has no obligations, responsibilities or liabilities, as initial agent under this Agreement, the Project Loan Mortgage, the Project Loan Assignment of Leases and such Project Loan Notes.  Initial Agent has no beneficial interest in or discretionary authority, and has no obligations, responsibilities or liabilities, under any other Project Loan Document.

(c)Borrower acknowledges that Initial Agent is entering into this Agreement solely as an accommodation to Borrower and that Initial Agent shall have absolutely no obligations, responsibilities or liabilities under this Agreement or any other Loan Document except to the extent set forth in Section 8.08(a).  The parties hereto acknowledge that the Initial Agent is executing this Agreement solely to bind itself with respect to this Section 8.08 and that Initial Agent’s execution does not amount to or evidence Initial Agent’s agreement with or endorsement of any other provisions of this Agreement.

(d)Initial Agent shall not be entitled to any compensation whatsoever for acting as initial agent under this Agreement, the Project Loan Mortgage, the Project Loan Assignment of Leases and such Project Loan Notes.

ARTICLE 9

EVENTS OF DEFAULT

SECTION 9.01Events of Default.  The occurrence of any one or more of the following conditions or events shall constitute an “Event of Default” under this Agreement:

(a)(i)failure by Borrower to pay (w) (subject to Agent’s obligations under Section 5.03(b) hereof) any installment of interest under the Project Loan Notes within five (5) days of when the same shall become due and payable, (x) the Indebtedness on the Maturity Date, (y) Property Taxes (unless the same are being contested in compliance with Section 7.05 hereof) within five (5) Business Days after

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notice of failure to pay the same when due and payable is given by Agent or (z) any amount required to be paid in connection with any prepayment under Section 3.12 or 7.46 hereof within five (5) Business Days after notice of failure to pay the same is given by Agent; (ii) failure by any Borrower Entity to pay any other sums (including any portion of a Completion Deposit) to be paid by it hereunder or under any other Project Loan Document after written demand for payment has been given and such sum has not been paid within the time period provided for in the applicable Project Loan Document (or, if there is no such time period, the time period provided for in such demand, which time period shall not be less than ten (10) Business Days); or (iii) failure by Borrower or any Member to deposit within two (2) business days after notice any amount required to be deposited under the Collection Accounts Agreement or Security Deposit Accounts Agreement.

(b)failure by any Borrower Entity to duly keep, perform and observe (i) the covenants contained in Sections 7.33, 7.52, 7.56 or 7.57 hereof within five (5) Business Days from the date upon which Agent gives notice of such failure or (ii) any covenant applicable to it under any Project Loan Document to which it is a party (other than those covenants referred to in the other clauses (including subclause (i) of this clause (b)) of this Section 9.01), within thirty (30) days from the date upon which Agent gives notice of such failure; provided that, in the case of clause (ii) of this Section 9.01(b) only, in the event such failure is curable but is not susceptible of cure within such thirty (30) day period it shall not be a default hereunder in the event such Borrower Entity commences cure within such thirty (30) day period and diligently prosecutes such cure to completion within one hundred and twenty (120) days of the expiration of such thirty (30) day period.  All determinations of whether any failure is curable or is susceptible to cure within thirty (30) days shall be made by Agent;

(c)a breach of or failure (i) by Borrower to duly keep, perform and observe the covenants and obligations contained in Section 7.35(a)(i), Section 7.35(a)(ii), Section 7.35(a)(vii), Section 7.35(a)(viii) or in Section 7.30(a)(iii) or (ii) by any Borrower Entity to duly keep, perform and observe any provision of Section 7.32, provided that, with respect to any such breach or failure of said Section 7.32 which (1) in the opinion of Agent, is unintentional, (2) does not affect in any material respect the value of the Mortgaged Property or the security intended to be granted to Agent, or (3) is not a breach or failure relating to the transfer of the Land or Improvements or the voluntary placement of a Lien on the Property, such breach or failure shall not constitute an Event of Default unless and until it continues uncured for five (5) Business Days after notice from Agent of such breach or failure;

(d)(i)  if Borrower or any other party thereto (other than Agent, any Lender, Ground Lessor, ESDC, the New York City Transit Authority or the City of New York) shall be in default beyond any applicable notice and cure period under any of the Condominium Documents (other than a default by NYTC Member after its Unit has been released pursuant to Section 7.46 hereof), or under any of the Public Project Agreements, or (ii) if the Equity Contribution Documents, the Ground Lease, the Severance Subleases or the Land Acquisition Agreement shall cease to be in full force or

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effect or shall not be enforceable against any party thereto, other than Agent (to the extent Agent is a party thereto);

(e)if any material inaccuracy shall exist in any of the financial statements and supporting materials thereto (other than projections) delivered to Agent in connection with the making of the Project Loan or delivered under this Agreement or any other Project Loan Document or any certificate furnished by or on behalf of any Borrower Entity to Agent pursuant to the provisions of any Project Loan Document provided that in the case of the Guarantors, such financial statements, supporting materials or certificates shall be limited to those delivered at or prior to the Closing Date;

(f)if (x) at any time any representation or warranty (other than any representation or warranty re-made pursuant to Section 4.02(c) hereof) made by any Borrower Entity in any of the Project Loan Documents or in any certificate furnished by or on behalf of any Borrower Entity or any officer thereof, shall be untrue or incorrect in any material respect when made, or (y) at any time any representation or warranty re-made by Borrower or any Member under Section 4.02(c) hereof shall be untrue or incorrect in any material respect and such untruth or incorrectness has, or is reasonably likely to have, a Material Adverse Effect;

(g)(i)if (A) a petition is filed against Borrower or any Member, seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any law relating to bankruptcy or insolvency, including, without limitation, the Bankruptcy Code (each, a “Bankruptcy Law”) or any Person other than Borrower or any Member shall apply for the appointment of any trustee, receiver, master, liquidator, assignee, sequestrator (or other similar official) (any of the foregoing, a “Bankruptcy Assignee”) of Borrower or such Member or of all or any part of the Mortgaged Property or of all of any part of the Rents (either, an “Involuntary Bankruptcy”) and (B) such application or appointment is (y) not opposed or (z) is opposed, but not discharged, stayed or dismissed prior to the earlier of (1) ninety (90) days after the filing thereof and (2) the entry of an order for relief in any such case or proceeding;

(ii)if (A) a petition is filed by Borrower or any Member seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any Bankruptcy Law, (B) Borrower or any Member shall apply for the appointment of any Bankruptcy Assignee of itself or of all or any part of the Mortgaged Property or of all or any part of the rents, revenues, issues, earnings, profits or income thereof, (C) Borrower or any Member acquiesces or colludes in any Involuntary Bankruptcy, (D) Borrower or any Member makes any assignment for the benefit of creditors, or (E) Borrower or any Member is or becomes insolvent (each of the foregoing, a “Voluntary Bankruptcy”);

(h)if any Draw Request is fraudulently submitted by Borrower in connection with any advance for services performed or for materials used in or

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furnished for the Property or if any proceeds of the Project Loan are misappropriated by any Borrower Entity;

(i)if Borrower confesses in writing its inability to continue or complete construction of the Project in substantial accordance with the Plans and Specifications and in accordance with the Public Project Agreements and this Agreement;

(j)failure by Borrower to purchase and maintain any Interest Rate Cap, to the extent such cap is required to be purchased by the terms of this Agreement, within five (5) Business Days from the date upon which Agent gives notice of such failure.

(k)If, on a repeated basis, Agent, the Construction Consultant or their respective representatives are not (subject to appropriate safety requirements) permitted at all reasonable times and upon reasonable notice to enter upon the Property, and inspect the Project and the construction thereof and to examine and make copies of (at Borrower’s expense) the Plans and Specifications (and provided Agent shall have notified Borrower each time it or the Construction Consultant or their respective representatives have not been permitted to so enter upon the Property and inspect the Project);

(l)if Borrower or any Member executes any conditional bill of sale, chattel mortgage or other security instrument covering any furniture, furnishings, fixtures and equipment intended to be incorporated and made a part of the Improvements, or covering articles of personal property that are part of the Project, or files a financing statement publishing notice of such security instrument, or purchases any of such furniture, furnishings, fixtures and equipment so that ownership of the same will not vest unconditionally in Borrower or a Member, free from encumbrances, on delivery to the Premises and payment therefor; or if Borrower does not produce to Agent, upon demand, the contracts, bills of sale, statements, receipted vouchers or agreements, or any of them, under which Borrower claims title to such materials, fixtures and articles and in either such case such failure shall continue for ten (10) days after notice from Agent with respect thereto;

(m)if Borrower does not disclose to Agent and Construction Consultant the names of all persons with whom Borrower contracted for the construction of the Project or for the furnishing of labor or materials therefor, or when so required by Agent pursuant to the Project Loan Documents, fails to obtain the acceptance by Agent of such persons and in either case such failure shall continue for ten (10) Business Days after notice of such failure from Agent;

(n)if a lien for the performance of work or supply of materials is filed against the Premises or any part thereof and is not paid and discharged, bonded or insured over in accordance with Section 7.39 hereof, or if a judgment in excess of $500,000.00 is filed against any Borrower or either Member or the Property and remains unsatisfied or unbonded for a period of sixty (60) days after such filing;

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(o)if the Policies are not kept in full force and effect in accordance with the terms and provisions of the Project Loan Mortgage or if the Payment and Performance Bonds are not kept in full force and effect and in either case the same is not cured within one (1) Business Day after any Borrower Entity has knowledge of same;

(p)if any provision of Section 7.36 is breached and any such breach is not cured within ten (10) Business Days after notice thereof from Agent; provided, that, in addition to curing such breach, Borrower delivers to Agent within twenty (20) Business Days a non-consolidation opinion in form and substance and from counsel reasonably satisfactory to Agent, which opinion takes into account such breach and cure;

(q)if any Borrower Entity shall fail to maintain its existence, except as otherwise permitted in any Project Loan Document;

(r)if Borrower is in default (beyond any notice or grace period expressly provided therein) under the Guaranteed Maximum Price Contract or if the third party to any Material Contract (other than the Material Contracts listed in clauses (c), (d) and, from and after the date on which the Plans and Specifications (other than any Change Orders) are in final form, (e) of the definition thereof) is in default thereunder and, in either case, such default, if not cured within any applicable notice and/or cure periods, could reasonably be expected to result in a Material Adverse Effect;

(s)if Borrower fails to cause the Title Insurance Companies to comply with their obligations under the Title Company Side Letter within five (5) Business Days from the date on which Agent gives notice to Borrower of such non-compliance; or

(t)if an Event of Default under and as defined in the Building Loan Agreement shall have occurred and be continuing.

ARTICLE 10

RIGHTS AND REMEDIES OF LENDERS

SECTION 10.01Remedies.  Upon the occurrence and during the continuance of any Event of Default (or, to the extent provided in Section 10.01(f), a Default), Agent may, at any time thereafter, at its option, exercise any or all of the following rights and remedies:

(a)Declare Lenders’ obligations to make Advances hereunder to be terminated, whereupon the same shall terminate, and/or declare all Indebtedness (including the Exit Fee (as defined in the Side Letter re:  Fees)) to be immediately due and payable, whereupon same shall become and be immediately due and payable, anything in the Project Loan Documents to the contrary notwithstanding, and without presentation, protest or further demand or notice of any kind (all of which are expressly hereby waived by Borrower); provided, however, that Lenders may make Advances or

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parts of Advances thereafter without thereby waiving the right to demand payment of the Project Loan Notes, without becoming liable to make any other or further Advances, and without affecting the validity of or enforceability of the Project Loan Documents; provided further, however, with respect to an Event of Default described in Section 9.01(g) hereof, all Indebtedness (including the Exit Fee) shall immediately and automatically become due and payable, without notice or demand, anything contained herein or in any other Project Loan Document to the contrary notwithstanding), and Agent may enforce or avail itself of any or all rights or remedies provided in the Project Loan Documents against any Borrower Entity and/or the Mortgaged Property, including all rights or remedies available at law or in equity.

(b)Agent may cause the Project to be constructed and developed until achievement of Final Completion and Stabilized Occupancy and may enter upon the Premises and construct, equip and complete the Project substantially in accordance with the Plans and Specifications (with such changes or modifications thereto that Agent may, in its sole discretion, deem necessary or advisable).  In connection with any construction of the Project undertaken by Agent pursuant to the provisions of this subsection, Agent may:

(1)use any funds of any Borrower Entity pledged to Agent under or pursuant to any Loan Document, and any funds remaining unadvanced under the Project Loan and/or the Building Loan;

(2)employ existing contractors and subcontractors, including the General Contractor, any other Major Contractors, any Major Subcontractors, and the like, or terminate the same and employ others;

(3)employ security personnel to protect the Property;

(4)take over and use any and all Personal Property contracted for or purchased by Borrower or the Members, or dispose of the same as Agent sees fit;

(5)execute all applications and certificates on behalf of Borrower or the Members which may be required by any Governmental Authority or Legal Requirements or contracts or agreements;

(6)pay, settle or compromise all existing or future bills and claims which are or may be liens against the Mortgaged Property, or may be necessary for the completion of the Project or the clearance of title to the Mortgaged Property, including, without limitation, all Property Taxes;

(7)complete the marketing and leasing of leasable space in the Improvements, enter into new leases and occupancy

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or operating agreements of the Units or portions thereof, and modify or amend existing leases and occupancy or operating agreements, all as Agent shall deem to be necessary or desirable;

(8)prosecute and defend all actions and proceedings in connection with the construction of the Project or in any other way affecting the Mortgaged Property and take such action and require such performance as Agent deems necessary under the GMP Guaranty or the Payment and Performance Bonds; and

(9)take such other action hereunder, or refrain from acting hereunder, as Agent may, in its sole and absolute discretion, from time to time determine, and without any limitation whatsoever, to carry out the intent of this Section 10.01(b).  Borrower shall be liable to Agent for all costs paid or incurred for the construction, completion and equipping of the Project, whether the same shall be paid or incurred pursuant to the provisions of this Section or otherwise, and all payments made or liabilities incurred by Agent hereunder of any kind whatsoever shall be deemed Advances made to Borrower under this Agreement and shall be secured by the Security Documents.  Any sums so expended by Agent shall be paid by Borrower to Agent on demand, with interest thereon at the Default Rate until paid; and Borrower shall execute such notes or amendments to the Project Loan Notes as may be requested by Agent to evidence Borrower’s obligation to pay such excess costs and until such notes or amendments are so executed by Borrower, Borrower’s obligation to pay such excess costs shall be deemed to be evidenced by this Agreement.  In the event Agent takes possession of the Premises and assumes control of such construction as aforesaid, Agent shall not be obligated to continue such construction longer than Agent shall see fit and may thereafter, at any time, change any course of action undertaken by it or abandon such construction and decline to make further payments for the account of Borrower and the Members whether or not the Project shall have been completed.  For the purpose of this Section, the construction, equipping and completion of the Project shall be deemed to include any action necessary to cure any Event of Default under any of the terms and provisions of any of the Project Loan Documents.

(c)Appoint or seek appointment of a receiver, without notice and without regard to the solvency of Borrower or the adequacy of the security, for the purpose of preserving the Mortgaged Property, preventing waste, and to protect all rights accruing to Lenders by virtue of this Agreement and the other Project Loan Documents, and expressly to do any further acts as Agent may determine to be necessary to complete the development and construction of the Project (including achieving Final Completion and Stabilized Occupancy).  All expenses incurred in connection with the appointment of such receiver, or in protecting, preserving, or improving the Mortgaged Property, shall be charged against Borrower with interest thereon from the date of such expenditure to the

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date repaid at the Default Rate and shall be secured by the Project Loan Mortgage and enforceable as a lien against the Mortgaged Property.

(d)Accelerate maturity of the Project Loan Notes and any other indebtedness of Borrower to Lenders, and demand payment of the principal sum due thereunder, with interest, advances, costs and reasonable attorneys’ fees and disbursements (including those for appellate proceedings), and enforce collection of such payment by foreclosure of the Project Loan Mortgage or the enforcement of any guaranty or the collection of any other collateral, or other appropriate action.

(e)Notwithstanding any other provision of this Agreement or any other Loan Document, and to the extent permitted by applicable law, at any time and from time to time, without notice (any such notice being expressly waived), and without regard to the adequacy of any collateral, set-off and apply (x) any and all deposits and other amounts (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where the deposits are held) at any time held by Agent, Borrower’s Bank or any other escrow bank pursuant to the provisions hereof and of all other Loan Documents and (y) all other sums credited by or due from Agent or any Lender to the extent permitted by Section 3.15(b) hereof.

(f)If an Event of Default (or a Default, if such Default is that an insurance policy required to be maintained under the Project Loan Documents is no longer in effect) shall have occurred and be continuing, Agent shall have the right, but not the duty, without limitation upon any of Agent’s rights pursuant hereto, to perform the obligations of or cure any breaches by any Borrower Entity which are the subject of the Event of Default (or the Default), in which event Borrower agrees to pay to Agent, within five (5) Business Days after demand therefor, all actual costs and expenses incurred by Agent in connection therewith, including without limitation reasonable attorneys’ fees and disbursements, together with interest from the date of expenditure at the Default Rate.  Upon demand by Agent, each of the Lenders shall promptly advance to Agent in immediately available funds its ratable portion of the funds expended by Agent in curing such Event of Default (or Default), together with interest thereon at the Default Rate from the date of Agent’s payment through the date prior to the date on which such advance is received by Agent.

(g)Agent may terminate or rescind any proceeding or other action brought in connection with its exercise of the remedies provided in this Section at any time before the conclusion thereof, as determined in Agent’s sole discretion and without prejudice to Lenders.

SECTION 10.02Power of Attorney.  During the continuance of an Event of Default (or effective at any time with respect to the right of Agent to execute and file any Uniform Commercial Code financing statements reasonably necessary or advisable to accomplish the purposes of any Project Loan Document), Borrower hereby irrevocably constitutes and appoints (and hereby causes the Members to hereby irrevocably constitute and appoint) Agent its (or their) true and lawful attorney-in-fact, with full power of substitution, to execute, acknowledge and deliver any instruments and do and perform

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any acts which are referred to in this Agreement or in the Ground Lease or any Severance Sublease (including, without limitation, those referred to in Section 10.01(b) hereof), in the name and on behalf of Borrower (and/or the Members).  The power vested in such attorney-in-fact is, and shall be deemed to be, coupled with an interest and irrevocable.

SECTION 10.03Remedies Cumulative.  During the continuance of any Event of Default, the rights, powers and privileges provided in this Article 10 and all other remedies available to Agent under this Agreement or under any of the other Project Loan Documents or at law or in equity may be exercised by Agent at any time and from time to time and shall not constitute a waiver of Agent’s other rights or remedies thereunder, whether or not the Project Loan shall be due and payable, and whether or not Agent shall have instituted any foreclosure proceedings or other action for the enforcement of its rights under the Project Loan Documents.  The exercise or beginning of the exercise by Agent of any one or more of the rights, powers or remedies provided for in this Agreement or the other Project Loan Documents or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Agent of all such other rights, powers or remedies, and no failure or delay on the part of Agent to exercise any such right, power or remedy shall operate as a waiver thereof.  Agent may, at its option, exercise any right or remedy with respect to less than all of the collateral pledged by the Security Documents, leaving unexercised its rights with respect to the remainder thereof, and such partial exercise shall in no way restrict or jeopardize Agent’s right to exercise rights with respect to all or another portion of the collateral at a later time or times.

SECTION 10.04Annulment of Defaults.  An Event of Default shall not be deemed to be in existence for any purpose of this Agreement or any other Project Loan Document if Agent shall have waived such Event of Default in writing or stated that the same has been cured to its satisfaction, but no such waiver shall extend to or affect any subsequent Event of Default or impair any of the rights of Agent or Lenders upon the occurrence thereof.

SECTION 10.05Waivers.  Borrower hereby waives (and shall cause each other Borrower Entity to waive) to the extent not prohibited by applicable law (a) all presentments, demands for payment or performance, notices of nonperformance (except to the extent required by the provisions hereof or of any other Project Loan Documents), protests and notices of dishonor, (b) any requirement of diligence or promptness on Agent’s part in the enforcement of its rights under the provisions of this Agreement or any other Project Loan Document, (c) any and all notices of every kind and description which may be required to be given by any statute or rule of law and (d) all rights to have any security marshaled upon the exercise of any remedies hereunder or under any other Project Loan Document.

SECTION 10.06Course of Dealing, Etc.  No course of dealing and no delay or omission by Agent in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or

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remedy.  A waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion.  No waiver or consent shall be binding upon Agent unless it is in writing and signed by Agent.  Agent’s exercise of any right to remedy any default shall not constitute a waiver of the default remedied, a waiver of any other prior or subsequent default or a waiver of the right to be reimbursed for any and all of its expenses in so remedying such default.  No Advance of Project Loan proceeds hereunder, no increase or decrease in the amount of any Advance, and no making of all or any part of an Advance prior to the due date thereof shall constitute an approval or acceptance by Agent or Lenders of the work theretofore done or a waiver of any of the conditions of Lenders’ obligation to make further Advances, nor in the event Borrower is unable to satisfy any such condition, shall any such failure to insist upon strict compliance have the effect of precluding Lenders from thereafter refusing to make an Advance and/or declaring such inability to be an Event of Default as hereinabove provided.  Any Advances hereunder during the existence of a Default or an Event of Default shall not constitute a waiver thereof.  All Advances shall be deemed to have been made pursuant hereto and not in contravention of the terms of this Agreement.  All rights and remedies of Agent hereunder are cumulative.

SECTION 10.07Bankruptcy.

(a)In the event of any Event of Default under Section 9.01(g), if Borrower or a Member seeks to reject the Ground Lease or a Severance Sublease pursuant to Section 365(a) of the Bankruptcy Code or any analogous provision of any other Bankruptcy Law, Borrower or such Member shall give Agent not less than thirty (30) days’ prior notice of the date on which Borrower or such Member shall apply to the applicable Governmental Authority for authority to reject the Ground Lease or such Severance Sublease.  Agent shall have the right, but not the obligation, to serve upon Borrower or such Member within such thirty (30) day period a notice stating that Agent demands that Borrower or such Member assume and assign the Ground Lease or such Severance Sublease to Agent pursuant to Section 365 of the Bankruptcy Code.  If Agent shall serve upon Borrower or such Member the notice described in the preceding sentence, Borrower or such Member shall not seek to reject the Ground Lease or such Severance Sublease and shall comply with the demand provided for in the preceding sentence within thirty (30) days after the notice shall have been given or such shorter time as may be necessary to assume such Ground Lease or Severance Sublease in such proceeding.

(b)Borrower shall not (and shall not permit any Member to), without Agent’s prior written consent, elect to treat the Ground Lease or a Severance Sublease as terminated under subsection 365(h)(1)(A)(i) of the Bankruptcy Code or any analogous provision of any other Bankruptcy Law.  Any such election made without Agent’s consent shall be void.

(c)If pursuant to subsection 365(h)(1)(B) of the Bankruptcy Code or any analogous provision of any other Bankruptcy Law, Borrower or a Member shall seek to offset against the rent reserved in the Ground Lease or a Severance Sublease the amount of any damages caused by the nonperformance by the Ground Lessor or any

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other fee owner of its or their obligations under the Ground Lease or by the sublessor of its obligations under a Severance Sublease after the rejection by Ground Lessor or such sublessor under the Bankruptcy Code or such other applicable Bankruptcy Law, Borrower or such Member shall, prior to effecting such offset, notify Agent of its intent to do so, setting forth the amounts proposed to be so offset and the basis therefor.  Agent shall have the right to object to all or any part of such offset that, in the reasonable judgment of Agent, would constitute a breach of the Ground Lease or such Severance Sublease, and in the event of such objection, Borrower or such Member shall not effect any offset of the amounts so objected to by Agent.  Neither Agent’s failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Agent.

ARTICLE 11

GENERAL CONDITIONS

SECTION 11.01Rights of Third Parties.  (a)  All conditions of the obligations of Agent and Lenders hereunder, including the conditions precedent to the obligation to make Advances, are imposed solely and exclusively for the benefit of Agent and Lenders and no other Person (including, without limitation, the Construction Consultant, General Contractor, any other Major Contractor, any Major Subcontractor, or any other contractors, subcontractors and materialmen engaged in the construction of the Project) shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lenders will make Advances in the absence of strict compliance with any or all thereof and no other Person shall, under any circumstances, be deemed to be a beneficiary of such conditions, any and all of which may be freely waived in whole or in part by Agent or any Lender any time if in its sole discretion it deems it desirable to do so.  In particular, Agent and Lenders make no representations and assume no obligations as to third parties concerning the quality of the construction by Borrower of the Project or the absence therefrom of defects.

(b)[INTENTIONALLY OMITTED]

SECTION 11.02Relationship.  The relationship between Agent and Lenders on the one hand, and Borrower Entities, on the other hand, is solely that of a lender and borrower, and nothing contained herein or in any of the other Project Loan Documents or the NYTC Completion Guaranty shall in any manner be construed as making the parties hereto partners, joint venturers or any other relationship other than lender and borrower.  In addition, neither Agent nor any Lender is the agent or representative of any Borrower Entity and neither this Agreement, any other Project Loan Document or the NYTC Completion Guaranty shall make Agent or any Lender liable to materialmen, contractors, craftsmen, laborers or others for goods delivered to or services performed by them upon the Mortgaged Property, or for debts or claims accruing to such parties against any Borrower Entity and there is no contractual relationship, either express or implied, between Agent or any Lender and any materialmen, subcontractors, craftsmen, laborers, or any other person supplying any work, labor or materials to the Mortgaged Property.

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SECTION 11.03Evidence of Satisfaction of Conditions; Approval Standard.  If any condition of this Agreement requires the submission of evidence of the existence or non-existence of a specified fact or facts or implies as a condition the existence or non-existence, as the case may be, of such fact or facts, Agent shall, at all times, be free independently to establish to its satisfaction and in its absolute discretion such existence or non-existence, except where Agent expressly agrees hereunder to be reasonable.  In any circumstance where any Project Loan Document or the NYTC Completion Guaranty specifies that the approval or consent of Agent, Construction Consultant or any Indemnified Party must be given, or that any matter or circumstance must be satisfactory or acceptable to, or determined by, Agent, Construction Consultant or any Indemnified Party, then unless expressly set forth to the contrary, such approval or consent or such determination of satisfaction or acceptability or other determination, shall be within the sole and absolute discretion of Agent, Construction Consultant or such Indemnified Party.

SECTION 11.04Notices.  (a)  Any request, notice, report, demand, approval or other communication permitted or required by this Agreement to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same, if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

Lenders or Agent:
GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606
Attention:	Vacys R. Garbonkus
Telecopier:	(312) 917-6131
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York  10019
Attention:	Harris B. Freidus, Esq.
Telecopier:	(212) 492-0064

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and (but only if such notice relates to a default by Agent)
GMAC Commercial Mortgage Corporation
200 Witmer Road
Horsham, Pennsylvania  19044
Attention:	General Counsel
Telecopier:	(215) 328-3620
Borrower:
The New York Times Building LLC
c/o FC Lion LLC
One MetroTech Center North
Brooklyn, New York 11201
Attention:	General Counsel
Telecopier:	(718) 923-8705
with a copy to:
Kelley, Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention:	James J. Kirk, Esq.
Telecopier:	(212) 808-7897
and
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention:	Anthony Benten
	David Thurm
	and Kenneth A. Richieri, Esq.
Telecopier	(212) 556-1646 (Mr. Benten) and
	(212) 556-4634 (Mr. Thurm and Mr. Richieri)
and
INGREDUS Site 8 South LLC
c/o Clarion Partners
335 Madison Avenue
New York, New York  10017
Attention:  Charles Grossman
Telecopier:  (212) 883-2700
and

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INGREDUS Site 8 South LLC

c/o Clarion Partners

601 13th Street, NW, Suite 450

Washington, D.C.  20005

Attention:  Martin Sandiford

Telecopier:  (917) 777-2600

(b)Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without the prior consent of Agent, Borrower may not add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address when no notice of changed address was given, shall be deemed to be receipt of any such notice.  As between Agent and any Borrower Entities only, a notice given by a party under any Project Loan Document of a change of entity, address or attention party shall be deemed to be a notice of such change to Agent or any such party, as applicable, for purposes of all Project Loan Documents to which such party is a party.

(c)Unless notified to the contrary pursuant to this Section 11.04(c), any notice or communication to be made to any Lender shall be made only to Agent and its counsel as provided for in this Section.

SECTION 11.05Assignment.  (a) Subject to Section 7.50 hereof, Borrower may not assign this Agreement, any other Loan Document or any of its rights or obligations hereunder or thereunder without the prior approval of Agent.  Subject to the further provisions of this Section 11.05, Borrower acknowledges and agrees that GMACCM and any other Lender may assign, transfer, sell, pledge or grant participation interests in or otherwise hypothecate its rights in, to and under the Loans, the Loan Documents and the NYTC Completion Guaranty, or any portion thereof (any such transaction, an “Assignment”) (i) without Borrower’s consent, to any Eligible Assignee, (ii) subject to clause (iii) of this sentence, with the prior consent of Borrower to any other Person, which consent may not be unreasonably withheld or (iii) without Borrower’s consent, to those entities approved by Borrower in the Disclosure Side Letter.  Upon any such Assignment by GMACCM or any Lender (excluding any such pledge or other hypothecation or any such granting of a participation interest), GMACCM or such Lender shall be relieved of any liability hereunder and under any Loan Document, but only to the extent such liability is assumed by the assignee.  Notwithstanding anything to the contrary in the foregoing, (1) no consent of Borrower shall be required for any Assignment by GMACCM during the continuance of an Event of Default and no consent of Borrower, GMACCM or Agent shall be required for any Assignment by any other Lender during the continuance of an Event of Default, (2) Agent agrees that prior to the occurrence of an Event of Default, GMACCM and its Affiliates shall collectively retain at least $50,000,000.00 of the Loans (including undrawn portions thereof) in the aggregate (or, in the event that there has been any prepayment of any principal amount owing under the Loans, GMACCM and its Affiliates shall collectively retain such portion of the Loans (including undrawn portions thereof) as shall, in the aggregate, bear the same proportion as $50,000,000.00 shall bear to $320,000,000.00), (3) each Lender shall

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have the right, without the consent of Borrower, Agent or any Lender, to grant participation interests in the Loans to any Person (and any such participations shall not count toward or be violative of clause (2) of this Section 11.05(a)), (4) without Agent’s consent, which may be withheld in Agent’s sole discretion, no Lender shall have the right to consummate an Assignment (other than a participation) with respect to a portion of the Loans not equal to any whole number multiple of $10,000,000, and (5) subject to the foregoing clauses (1), (3) and (4), each Lender’s right to consummate an Assignment shall be subject to Agent’s prior reasonable consent.  Clause (2) of the immediately preceding sentence shall not be construed so as to prohibit GMACCM from entering into any so-called “off-balance sheet” or “repurchase” facility arrangement wherein GMACCM shall retain effective control over any portion of the Loans which is subject to such arrangement and shall be responsible for the funding of that portion of the Project Loan.  The parties to any Assignment (other than any grantee of a participation interest or any grantee of a pledge or other hypothecation (but not any Person who has foreclosed upon such pledge or hypothecation)) by a Lender shall execute and deliver to Agent, for its acceptance and recording in the Agent’s Register, Agent’s form of assignment and acceptance agreement (the “Assignment and Acceptance Agreement”) together with a processing and recordation fee of $2,500, which fee shall cover Agent’s administrative cost in connection with such assignment.  The parties to such Assignment shall also pay all of Agent’s reasonable attorneys’ fees and disbursements in connection with such Assignment except, with respect to Agent’s reasonable attorneys’ fees and disbursements, to the extent paid by Borrower pursuant to Section 7.06(a)(ii) hereof.  Each Borrower Entity shall promptly execute and file any amendments to any Project Loan Document or the NYTC Completion Guaranty necessary or desirable to reflect any such Assignment (including, without limitation, multiple notes reflecting such assignee’s interest in the Project Loan) provided the same do not increase any such Borrower Entity’s liabilities (other than to a de minimis extent) or decrease any such Borrower Entity’s rights (other than to a de minimis extent) with respect to the Project Loan.  Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance Agreement, (x) such assignee shall be a Lender and (y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it, or assumed by the assignee thereunder, pursuant to such Assignment and Acceptance Agreement, relinquish its rights and be released from its obligations under this Agreement and the other Project Loan Documents (and, in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assignor’s rights and obligations under this Agreement, such assignor shall cease to be a Lender).  The Agent shall maintain a register (the “Agent’s Register”) showing the identity of the Lenders from time to time, and upon request from Borrower from time to time, shall supply Borrower with a copy of the Agent’s Register.  Agent acknowledges and confirms that as of the date hereof, GMACCM is the only Lender.  Supplementing the foregoing, no entity whose only interest in the Loans is a participation interest or a pledge or other hypothecation (except to the extent such entity has foreclosed on such pledge or other hypothecation) shall be considered, for any purpose hereunder, a Lender.

(b)Subject to Section 11.23 hereof, Borrower acknowledges and agrees that Agent or any Lender may provide to any potential assignee or participant

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originals or copies of this Agreement, any other Project Loan Documents and any other documents, instruments, certificates, opinions, insurance policies, letters of credit, reports, requisitions and other materials and information at any time submitted by or on behalf of any Borrower Entity or received by Agent and/or Lenders in connection with the Project Loan.  Agent and each Lender agree that as a condition to such disclosure to any such assignee or participant, Agent or such Lender shall use reasonable efforts to cause such assignee or participant to agree to keep such information confidential in a manner substantially similar to Section 11.23 hereof.  In addition, Borrower agrees to cooperate in all reasonable respects with Agent and/or Lenders in the exercise of their respective rights pursuant to this Section 11.05, including, without limitation, providing such information and documentation regarding Borrower Entities, or any other Person and their businesses and finances as Agent and/or Lenders or any potential assignee or participant may reasonably request and meeting with potential assignees and participants upon reasonable notice.

SECTION 11.06Successors and Assigns Included in Parties.  Whenever in this Agreement one of the parties hereto is named or referred to, the heirs, legal representatives, successors and assigns of such party shall be included (including, without limitation, any Member succeeding Borrower to title to any Unit pursuant to Section 7.50 hereof) and all covenants and agreements contained in this Agreement by or on behalf of Borrower or by or on behalf of Agent or any Lender shall bind and inure to the benefit of their respective heirs, legal representatives, successors and assigns (including such Members), whether so expressed or not.  Notwithstanding the foregoing, to the extent any Member is released from liability under the Project Loan Documents pursuant to Section 7.46 hereof, the heirs, legal representatives, successors and assigns of such Member shall also be deemed to have been released to such extent.

SECTION 11.07Headings.  The headings of the Articles, Sections and subsections of this Agreement are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Agreement to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Agreement unless otherwise stated.

SECTION 11.08Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect.

SECTION 11.09Interpretation.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar import when

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used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

SECTION 11.10Computation of Time Periods.  In this Agreement, with respect to the computation of periods of time from a specified date to a later specified date, the word “from” means both “from and including” and the words “to” and “until” both mean “to but excluding.”

SECTION 11.11Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed solely within such State.

SECTION 11.12Consent to Jurisdiction.  Borrower hereby irrevocably and unconditionally (a) agrees that any suit, action or other legal proceeding arising out of or relating to the Project Loan Documents may be brought in the courts of record of the State of New York in New York County or the courts of the United States, Southern District of New York; (b) consents to, and waives any and all personal rights under the laws of any state to object to, the jurisdiction of each such court in any such suit, action or proceeding; and (c) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts.  In furtherance of such agreement, Borrower agrees, upon request of Agent, to discontinue (or consent to the discontinuance of) any such suit, action or proceeding pending in any other jurisdiction or court.  Nothing contained herein, however, shall prevent Agent from bringing any suit, action or proceeding or exercising any rights against any security and against Borrower, and against any property of Borrower, in any other state or court.  Initiating such suit, action or proceeding or taking such action in any state shall in no event constitute a waiver of the agreement contained herein that the laws of the State of New York shall govern the rights and obligations of Borrower and any Lender and Agent hereunder or the submission herein by Borrower to personal jurisdiction within the State of New York.  Borrower irrevocably consents to the service of any and all process in any such suit, action or proceeding by service of copies of such process to Borrower at its address provided herein.  Nothing in this Section 11.12, however, shall affect the right of Agent to serve legal process in any other manner permitted by law.  TO THE FULL EXTENT PERMITTED BY LAW, BORROWER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF BORROWER, OR ANY OF ITS DIRECTORS, OFFICERS, PARTNERS, PRINCIPALS, MEMBERS, EMPLOYEES OR ANY OTHER AFFILIATES, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.  The waivers in this Section are given knowingly and voluntarily by Borrower and, with respect to the waiver of jury trial, is intended to encompass individually each instance and each issue as to which the right to a trial by jury would otherwise accrue.  Agent is hereby authorized to file a copy of this Section in any proceeding as conclusive evidence of these waivers by Borrower.

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SECTION 11.13Amendments.  Except as provided in Article 8 and Section 11.05 hereof, neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, but only by instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought.

SECTION 11.14Counterparts.  This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument.

SECTION 11.15Entire Agreement.  This Agreement and the other Project Loan Documents embody the entire agreement and understanding between the parties with respect to the Project Loan and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

SECTION 11.16Recourse.  Agent and Lenders shall have full recourse against Borrower for any liability or obligation of Borrower under this Agreement and the other Project Loan Documents.  Neither Lenders nor Agent nor any of them shall have any recourse against, or the right to enforce the liability and obligation of, the other Borrower Entities to perform and observe the obligations contained in this Agreement or any other Project Loan Documents by any action or proceeding brought against any such other Borrower Entity other than (1) as expressly provided in the Guaranties, or any other agreement hereafter executed and delivered to Agent by such other Borrower Entity in connection with the Project Loan or (2) against the collateral granted under the Security Documents or any other Project Loan Document.  The provisions of this Section 11.16 shall not (i) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Project Loan Documents or the NYTC Completion Guaranty; (ii) affect the validity or enforceability of any Project Loan Document or the NYTC Completion Guaranty or any of the rights and remedies of Agent thereunder; or (iii) impair the right of Agent to obtain the appointment of a receiver.  No officer, director, member, shareholder, limited partner, employee, agent, representative, beneficiary or trustee of, or any person executing this Agreement or any other Project Loan Document or the NYTC Completion Guaranty in a representative capacity on behalf of (solely by virtue of such execution) a Borrower Entity shall ever be personally liable hereunder for the obligations of such Borrower Entity, all liability of each Borrower Party being expressly limited to such Borrower Entity (or any general partner, joint venturer, or other person having liability for the obligations of such Borrower Entity as a matter of law) and its assets, and all persons dealing with a Borrower Entity must look solely to such Borrower Entity (or any general partner, joint venturer, or other person having liability for the obligations of such Borrower Entity as a matter of law) and its assets for the enforcement of any claim against such Borrower Entity and in no event shall any recourse be had to the private property of any officer, director, member, shareholder, limited partner, employee, agent, representative, beneficiary or trustee of, or any person executing this agreement on behalf of (solely by virtue of such execution), a Borrower Entity.

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SECTION 11.17Statute of Limitations.  Borrower hereby expressly waives and releases to the fullest extent permitted by law the pleading of any statute of limitations as a defense to payment of the Project Loan or performance of its obligations under any of the Project Loan Documents.

SECTION 11.18Remedies of Borrower Entities.  In the event that a claim or adjudication is made that Agent or any Lender has acted unreasonably or has unreasonably delayed acting with respect to any consent or approval requested under any Project Loan Document in any case where by law or under the Project Loan Document, it has an obligation to act reasonably or promptly, Agent or such Lender shall not be liable for any monetary damages, and the sole remedies of Borrower Entities shall be limited to injunctive relief or declaratory judgment.

SECTION 11.19Time of the Essence.  Time is of the essence of this Agreement and of each and every term, covenant and condition herein.

SECTION 11.20Survival.  This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lenders of the Project Loan and the execution and delivery to Lenders of the Project Loan Notes (regardless of any investigation made by Lenders or on their behalf), and shall continue in full force and effect so long as all or any part of the Project Loan is outstanding and unpaid.

SECTION 11.21Usury.  This Agreement and the other Project Loan Documents are subject to the express condition that at no time shall Borrower Entities be obligated or required to pay interest on the Project Loan or loan charges at a rate which could subject the holder of the Project Loan Notes to either civil or criminal liability as a result of being in excess of the Maximum Rate permitted by applicable law.  If by the terms of any Project Loan Document, any Borrower Entity is at any time required or obligated to pay interest on the Project Loan or loan charges at a rate in excess of such Maximum Rate, the rate of interest or loan charges under the Project Loan Notes shall be deemed to be immediately reduced to such Maximum Rate and the interest payable shall be computed at such Maximum Rate and all prior interest payments or loan charges in excess of such Maximum Rate shall be applied and shall be deemed to have been payment in reduction of the Outstanding Principal.  All sums paid or agreed to be paid to Lenders for the use, forbearance, or detention of the Project Loan or for loan charges shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Project Loan Notes until payment in full so that the rate or amount of interest on account of the Project Loan does not exceed the Maximum Rate from time to time in effect and applicable to the Project Loan for so long as the Project Loan is outstanding.

SECTION 11.22Successive Actions.  A separate right of action hereunder shall arise in favor of (a) Agent or (b) any other Indemnified Party, as the case may be, each time Agent or such Indemnified Party acquires knowledge of any matter indemnified by Borrower hereunder.  Separate and successive actions by Agent or any Indemnified Party may be brought hereunder to enforce any of the provisions hereof at

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any time and from time to time.  To the extent permitted by law, no action hereunder shall preclude any subsequent action, and Borrower hereby warrants and covenants not to assert any defense in the nature of splitting of causes of action or merger of judgments.

SECTION 11.23Confidentiality.  Borrower and Agent, for itself and on behalf of Lenders, acknowledge that in connection with the Project Loan, certain information shall be provided which the Providing Party deems proprietary and confidential (such information, the “Information”).  Provided that the Providing Party specifies in writing, at the time of its submission to the Receiving Party, that such information is confidential, Borrower agrees and Agent, for itself and on behalf of Lenders, agrees, that the Information shall be kept confidential and shall not be disclosed to any third party except (a) as may be required by any applicable court order or decree, or legal or administrative process; (b) as necessary in connection with the enforcement by Agent of its rights under the Project Loan Documents and the NYTC Completion Guaranty; (c) as may be required by any Governmental Authority, bank regulatory body or representative of any thereof arising out of or in connection with an examination of Agent, any Lender or any Borrower Entity (as applicable); (d) to any of the Receiving Party’s officers, directors, employees, attorneys, accountants, agents, advisors or other representatives who require access to Information to participate in the administration of the Project Loan; or (e) in connection with any actual or proposed Assignment of all or any part of Agent’s or any Lender’s interests in the Project Loan.  Without limiting the foregoing, Borrower and Agent, for itself and on behalf of Lenders, acknowledge and agree that if any report concerning the Loans or the Project appears in any media outlet (including, without limitation, The New York Times, The Boston Globe, The Worcester Telegram & Gazette and related web sites) owned by NYTC Guarantor (the “News Outlets”), Borrower shall not be in violation of this Section 11.23 as long as Borrower has not disclosed Information to the News Outlets and keeps such Information confidential from the News Outlets in accordance with its standard policies and procedures.  For purposes of this Section, “Information” shall include the economic terms and provisions of the Project Loan and shall not include (i) any information, product or structure internally developed by any Receiving Party provided the same does not identify any economic terms of the Project Loan; (ii) any information in any Receiving Party’s possession or otherwise known to any Receiving Party prior to the commencement of negotiations in connection with the consummation of the Project Loan; (iii) any information which is, or becomes, public or part of the public domain; and (iv) any information which was previously, or is subsequent to the date hereof, made available to any Receiving Party by a source not known to such Receiving Party to be bound by a confidentiality agreement with any Borrower Entity, Agent or any Lender (as applicable).  Supplementing the foregoing, all publicity statements and press releases issued by any Borrower Entity which refer to Agent, any Lender or the Project Loan must be approved in advance by Agent.

SECTION 11.24Reinstatement of Obligations.  If at any time all or any part of any payment made by on behalf of Borrower or received by Agent, any Lender or any Indemnified Party under or with respect to this Agreement is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency,

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bankruptcy or reorganization of Borrower), then the obligations of Borrower hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment, or receipt of payment by Agent, such Lender or such Indemnified Party, and the obligations of Borrower hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment had never been made.

SECTION 11.25Facsimile Signatures.  Project Loan Documents (other than any Project Loan Notes) and the NYTC Completion Guaranty may be signed by facsimile.  The effectiveness of any such signatures shall, subject to applicable Legal Requirements, have the same force and effect as manually-signed originals and shall be binding on all parties to the Project Loan Documents and the NYTC Completion Guaranty.  Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof, provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile signature.

[signature page follows]

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IN WITNESS WHEREOF, Borrower, Initial Agent and Agent have executed this Agreement on the date first above written.

BORROWER:
THE NEW YORK TIMES BUILDING LLC
By:		FC Lion LLC, member
		By:		FC 41st Street Associates, LLC, its managing member
				By:		RRG 8 South, Inc., its managing member
						By:		/s/ David L. Berliner
							Name:  Davd L. Berliner
							Title:    Sr. Vice President
By:		NYT Real Estate Company LLC, member
		By:	R Anthony Benten
			Name:  R Anthony Benten
			Title:    Manager
INITIAL AGENT:
NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION,
as Initial Agent
By:	/s/ Anita W. Laremont
	Name:				Anita W. Laremont
	Title:				SVP, Legal and General Counsel

							AGENT:
							GMAC COMMERCIAL MORTGAGE
							CORPORATION, as agent
							By:	/s/ Vacys R. Garbonkus
								Name:	Vacys R. Garbonkus
								Title:	Executive Vice President
THE UNDERSIGNED ARE EXECUTING THIS
AGREEMENT AS THE BENEFICIAL OWNERS OF
THE NYTC UNIT AND FC UNITS, RESPECTIVELY:
FC MEMBER:
FC LION LLC
By:	FC 41st Street Associates, LLC, its managing member
	By:		RRG 8 South, Inc., its managing member
			By:		/s/ David L. Berliner
					Name:	David L. Berliner
					Title:	Sr. Vice President
NYTC MEMBER:
NYT REAL ESTATE COMPANY LLC
By:		/s/ R Anthony Benten
		Name:		R Anthony Benten
		Title:		Manager

Exhibit A

The Land

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

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

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

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

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

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

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

A-1

Exhibit B

Permitted Exceptions

1.Railroad Consent recorded in Liber 3192 Cp. 302. (Affects Lot 14).

2.Terms, covenants, conditions, restrictions, provisions and easements contained in the deed made by New York State Urban Development Corporation d/b/a Empire State Development Corporation to 42nd St. Development Project, Inc. dated as of September 8, 2003 and recorded October 24, 2003 as CRFN2003000433117.

3.Terms, covenants, conditions, restrictions, provisions, easements and right of reversion contained in the deed made by New York State Urban Development Corporation d/b/a Empire State Development Corporation to The City of New York, dated as of September 8, 2003 and recorded October 24, 2003 as CRFN2003000433118.

4.Agreement (Easement) among The New York Times Building LLC, The New York City Transit Authority, 42^nd St. Development Project, Inc. and The City of New York, dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433126.

5.Site 8 South Land Acquisition and Development Agreement among New York State Urban Development Corporation d/b/a Empire State Development Corporation, 42^nd St. Development Project, Inc. and The New York Times Building LLC, dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433119.

6.First Amendment to Site 8 South Land Acquisition and Development Agreement among New York State Urban Development Corporation d/b/a Empire State Development Corporation, 42^nd St. Development Project, Inc. and The New York Times Building LLC, dated as of December 14, 2003 and recorded October 24, 2003 as CRFN2003000433120.

7.Site 8 South Project Agreement among New York State Urban Development Corporation d/b/a Empire State Development Corporation, 42^nd St. Development Project, Inc., The City of New York, The New York Times Building LLC, NYT Real Estate Company LLC and FC Lion LLC, dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433116.

8.Site 8 South Declaration of Design, Use and Operation made by New York State Urban Development Corporation d/b/a Empire State Development Corporation and 42^nd St. Development Project, Inc., dated as of December 12, 2001 and recorded October 24, 2003 as CRFN2003000433121.

B-1

9.Terms, covenants, provisions and option to purchase contained in the Agreement of Ground Lease made between 42^nd St. Development Project, Inc., as Landlord, and The New York Times Building LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433122.

10.Terms, covenants, provisions and option to purchase contained in the Agreement of Sublease made between The New York Times Building LLC, as Landlord, and FC Lion LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433123.

11.Terms, covenants, provisions and option to purchase contained in the Agreement of Sublease made between The New York Times Building LLC, as Landlord, and FC Lion LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433124.

12.Terms, covenants, provisions and option to purchase contained in the Agreement of Sublease made between The New York Times Building LLC, as Landlord, and NYT Real Estate Company LLC, as Tenant, dated as of December 12, 2001, a memorandum of which was recorded October 24, 2003 as CRFN2003000433125.

13.Permitted Leases.

14.Liens created by the Loan Documents.

B-2

Exhibit C

Certificate of Non-Bank Status

To:	The New York Times Building LLC
From:	[Name of Bank and Lending Office]

Date:

Re:  Building Loan and Project Loan Agreement

Ladies and Gentlemen:

Reference is hereby made to the Building Loan Agreement and that certain Project Loan Agreement, each dated as of [           ], 2004, among THE NEW YORK TIMES BUILDING LLC, NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORPORATION, as initial agent (“Initial Agent”), for itself and for the benefit of any co-lenders as may exist from time to time(such lenders collectively, including any successors and assigns, “Lenders”), and GMAC COMMERCIAL MORTGAGE CORPORATION and any successor thereto, as agent (including as successor to Initial Agent), for itself and any other co-lenders as may exist from time to time.  Pursuant to the provisions of Sections 3.16(e) of such Building Loan Agreement and such Project Loan Agreement, the undersigned hereby certifies that it is not a “bank” within the meaning of Section 881(c)(3) of the Internal Revenue Code of 1986, as amended.

Yours faithfully,
[NAME OF BANK]
By:
	Name:
	Title:

C-1

Exhibit D

Form of Condominium Subordination Agreement

D-1

County of New York	After recording, please return to:
Section: 4	Paul, Weiss, Rifkind, Wharton & Garrison LLP
Block: 1012	1285 Avenue of the Americas
Lots:  [              ] (f/k/a Lots 1, 5, 8,	New York, NY 10019
14, 53, 59, 61, 62, 63 [and part of 15])	Attention: Harris B. Freidus, Esq.

SUBORDINATION AGREEMENT

THIS SUBORDINATION AGREEMENT (this “Agreement”) is entered into as of                               , 200    by 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 its successors and assigns as agent, “Agent”) for itself and on behalf of the lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders” and each individually a “Lender”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Building Loan Agreement and that certain Project Loan Agreement (collectively, as the same have been and may be revised, restated, amended or modified from time to time, the “Loan Agreement”), each dated as of June    , 2004 among The New York Times Building LLC (“Borrower”), New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, the Lenders have agreed to advance to Borrower loans in the maximum aggregate principal amount of $320,000,000 (collectively, the “Loan”);

WHEREAS, the proceeds of the Loan are being used to construct certain improvements (the “Improvements”) on land (the “Land”) demised to Borrower pursuant to that certain Agreement of Lease by and between 42nd St. Development Project, Inc. (“Ground Lessor”) and Borrower, dated as of December 12, 2001 (the “Ground Lease”) which Land is more particularly described on Exhibit A hereto;

WHEREAS, as security for the Loan, Borrower has executed that certain Ground Leasehold Building Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement dated as of  June    , 2004 and recorded at the Office of the City Register of New York County on                               , 200   as CRFN#                               and that certain Ground Leasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement dated as of June   , 2004 and recorded at the Office of the City Register of New York County on                               , 200   as CRFN#                               (collectively, as the same may be extended, renewed, revised, restated, replaced, spread, amended, consolidated, supplemented, assigned or modified from time to time, the “Mortgages”);

WHEREAS, (a) Borrower has assigned to Ground Lessor all of Borrower’s right, title and interest in the Ground Lease and the Severance Subleases (as defined in the Ground Lease) pursuant to that certain Assignment and Assumption Agreement, dated as of                               , 200  , which has been submitted to the Office of the City Register of New York County for recordation immediately prior to the submission of this Agreement for recording and (b) Agent has released the Ground Lease and the Severance Sublease to which NYT Real Estate Company LLC (“NYTC Member”) is a party from the lien of the Mortgages;

WHEREAS, the Land and the Improvements have been submitted 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 of the Premises known as The New York Times Building, New York, New York 10019, dated as of                               , 200   (together with the Condominium By-Laws attached as Exhibit A thereto, the “Declaration”; all capitalized terms used herein but left undefined shall have the meanings assigned to such terms in the Declaration) and recorded on                               , 200   at the Office of the City Register of New York County as CRFN #                              ;

WHEREAS, as a result of the recording of the Declaration and the release referred to above, the Mortgages now encumber solely the FC Collective Unit and the Retail Unit, together with their respective undivided percentage interest in the Common Elements; and

WHEREAS, Agent has agreed to evidence certain lien priority agreements as between the Mortgages and the Declaration pursuant to this Agreement.

NOW THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, Agent hereby agrees as follows:

1.Lien Priority.  Agent, for itself and on behalf of Lenders, does acknowledge and agree that in the event of any foreclosure (or acceptance of a deed in lieu of foreclosure) of any Unit subject to the lien of the Mortgages by Agent, any designee of Agent or any third party purchaser, it, such designee or such third party purchaser shall take title to such Unit in connection with such foreclosure (or acceptance of a deed in lieu thereof) subject to the Declaration and the Board of Managers’ Lien.  Neither the immediately preceding sentence, nor any conflict or inconsistency between the terms and provisions of the Mortgages, on the one hand, and the terms and provisions of the Declaration, on the other hand, shall be construed to limit, nullify, prevent or restrict Agent from enforcing any provision in, or from exercising any rights or remedies of Agent or the Lenders under, the Mortgages.

2.Successors and Assigns.  Whenever in this Agreement any party is named or referred to, the successors and assigns of such party or parties shall be included, whether so expressed or not.  All obligations, covenants and agreements contained in this Agreement shall be binding on, and inure to the benefit of, the respective successors and assigns of the parties hereto whether so expressed or not.

2

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

4.Counterparts.  This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument.

[SIGNATURE ON NEXT PAGE]

3

IN WITNESS WHEREOF, Agent, for itself and on behalf of Lenders, has executed this Agreement as of the date first set forth above.

AGENT:
GMAC COMMERCIAL MORTGAGE CORPORATION, as Agent
By:
	Name:
	Title:

STATE OF	)
	)  ss.:
COUNTY OF	)

On the          day of         in the year 200   before me, the undersigned, personally appeared                                  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.

Notary Public

EXHIBIT A

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

SAID LAND AND IMPROVEMENTS NOW KNOWN AS Lots [                            ] as more particularly described in the Declaration and on the floor plans certified by                                                      on                             , 200   and filed with the Real Property Assessment Department on                        , 200   as Condominium Plan No.          and also filed in the Office of the City Register of New York County on                        , 200    as CFRN #                                                       .

Exhibit E

Draw Request

E-1

DRAW REQUEST

                            , 200  

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606
Attn:  Phillip J. Keel, Vice President

[                                                
                                                
                                                
Attn:                                        ](1)

Re:Building Loan Agreement dated as of                        , 2004 (as revised, restated, amended or modified from time to time, the “Building Loan Agreement”) and Project Loan Agreement dated as of                      , 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 by and among The New York Times Building LLC (“Borrower”), New York State Urban Development Corporation, d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”) for itself and for the benefit of any lenders as may exist from time to time (such lenders, collectively, including any successors and assigns, “Lenders”), and GMAC Commercial Mortgage Corporation and any successor thereto, as agent (including as successor to Initial Agent) (including any successors and assigns as agent, “Agent”) for itself and on behalf of 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

(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.

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 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 Owner’s 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:

1.The period covered by this Draw Request is                                                 .

2.The Improvements have not been injured or damaged by fire, explosion, accident, flood or other casualty except:                                                        .

3.All Building Loan Costs and Project Loan Costs for the payment of which Lenders have previously advanced funds have in fact been paid and all such prior Advances have been used for the purposes requested therefor except as follows:                                  .

4.The subject Advances shall be used for the purposes set forth in the Sworn Owner’s Statement attached hereto.

5.No Borrower Entity has any defenses to or offsets against the payment of any amounts due to Agent and/or any Lender under or in connection with the Loan Documents, or defenses, claims or counterclaims against the payment and performance of any of their respective obligations under the Loan Documents.  Borrower is authorized to make this representation on behalf of all of the other Borrower Entities.

6.The amount of each Advance (except if such advance is the final Advance) equals at least Fifty Thousand and No/100 Dollars ($50,000.00).  No other Draw Request has been submitted in this calendar month and the most recent Draw Request was submitted at least fifteen (15) days prior to the date hereof.  The total of all previous Advances made under the Building Loan and the Project Loan, together with the subject Advances, is shown on the attachments hereto.  The total of all previous Advances under the Building Loan Agreement and under the Project Loan Agreement allocable to the Maximum Amount—FC, together with that portion of the subject Advance allocable to the Maximum Amount—FC, does not exceed the Maximum Amount—FC.  The total of all previously requested Advances under the Building Loan Agreement and under the Project Loan Agreement allocable to the Maximum Amount—NYTC, together with that portion of the subject Advance allocable to the Maximum Amount—NYTC, does not exceed the Maximum Amount—NYTC.  No item of expense specified in the Sworn Owner’s Affidavit attached hereto has previously been made the basis of any prior Advance.

7.The purpose of the Advances is to pay the Building Loan Costs and Project Loan costs detailed in the Sworn Owner’s Statement and accompanying invoices attached hereto and made a part hereof.

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Initials of

Borrower

8.The costs of any additional documentation, legal fees or title insurance required by Agent to evidence the Advances and preserve the priority of the lien of the Building Loan Mortgage and Project Loan Mortgage and the other Security Documents is a Reimburseable Cost.

9.All conditions precedent to the Advances set forth in Section 4.02 and (if applicable) 4.03 of the Building Loan Agreement and the Project Loan Agreement have been fulfilled.

10.The information set forth herein is true, correct and complete as of the date hereof and will be true, correct and complete as of the Requested Advance Date.

This letter shall constitute a Borrower’s instruction to Lenders to pay to Agent [the Disbursement Agent] the Advances in the total amount indicated on the attachments in the Sworn Owner’s Statement, and (b) Borrower’s 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]

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Borrower:
THE NEW YORK TIMES BUILDING LLC
By:	FC LION LLC, member
	By:		FC 41st Street Associates, LLC, its managing member
				By:	RRG 8 South, Inc., its managing member
						By:
							Name:
							Title:
By:	NYT Real Estate Company LLC, member
	By:
		Name:
		Title:

Sworn Owner’s Statement

State of New York	)
	)	ss:
County of New York	)	Escrow No.

The affiant,                                             , being duly sworn on oath deposes and says the following in his/her capacity as the                              of RRG 8 South, Inc., which is the managing member of FC 41st Street Associates, LLC, which is the managing member of FC Lion LLC, which is a member of The New York Times Building LLC (“Borrower”), which is the owner of the premises known as The New York Times Building, New York, New York:

                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 Owner’s 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 affiant’s knowledge, the facts set forth in this statement and the attachments are true and complete.

Notwithstanding anything to the contrary contained in this Sworn Owner’s 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.

Signed:

Name:

Subscribed and sworn to before me this        day of                       , 200  .

Notary Public

Exhibit F

Description of Improvements

F-1

Borrower intends to construct upon the Land a 52 story office building (with ground floor retail) located at 820 Eighth Avenue, (block 1012, lots 1, 5, 8 and 14, part of 15, 53, 59, 61, 62 and 63) New York, New York, consisting of approximately 1,539,000 square feet of total gross building area of above grade space, additional below grade space and additional roof top and mechanical space.

Exhibit G

Intentionally Omitted

G-1

Exhibit H

Form of Non-Disturbance Agreement

H-1

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

This Subordination, Non-Disturbance and Attornment Agreement (this “Agreement”) is made as of                            , 200    , between GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation and 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 co-lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders”), [Tenant] (“Tenant”) and [Landlord] (“Landlord”).

RECITALS

A.Tenant is the tenant under a certain lease (the “Lease”), dated as of                                   ,             , with Landlord, of premises described in the Lease (the “Premises”) as more particularly described in Exhibit A hereto.

B.This Agreement is being entered into in connection with (i) those certain loans (collectively, the “Construction Loan”) which Lenders have agreed to make to The New York Times Building LLC (“Owner”) pursuant to that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of June     , 2004 and each by and among The New York Times Building LLC, New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, which Loans are secured, in part, by that certain Ground Leasehold Building Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement, dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Building Loan Mortgage”); that certain Ground Leasehold Project Loan Mortgage, Assignment of Leases, Security Agreement and Subordination Agreement, dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Project Loan Mortgage”); that certain Assignment of Leases and Rents (Building Loan Mortgage) dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Building Loan Assignment”); and that certain Assignment of Leases and Rents (Project Loan Mortgage), dated as of June       , 2004 (as the same may hereafter be amended or modified, the “Project Loan Assignment”).

C.The Building Loan Assignment and Project Loan Assignment are collectively referred to herein as the “Assignments.”  The Building Loan Mortgage and Project Loan Mortgage are collectively referred to herein as the “Mortgages”.  The Assignments and Mortgages, together with all other documents executed and delivered or to be executed and delivered in connection with the Construction Loan, are collectively referred to herein as the “Loan Documents”.

D.Landlord is a member of Owner and has consented to the Mortgages and the Assignments and has executed and delivered the Mortgages and the Assignments.  Each Mortgage covers, among other things, the Premises, and each Assignment covers, among other things, the Lease.

AGREEMENT

For mutual consideration, including the mutual covenants and agreements set forth below, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.Tenant agrees that the Lease and all terms and conditions contained therein and all rights, options, liens and charges created thereby is and shall be subject and subordinate in all respects to the Loan Documents, the liens created thereby, all present or future advances thereunder and all renewals, amendments, spreaders, modifications, consolidations, replacements, increases and extensions thereof, to the full extent of all amounts secured by the Loan Documents from time to time.

2.Agent agrees that, if Agent exercises any of its rights under the Loan Documents such that it becomes the owner of the Premises, including but not limited to an entry by Agent pursuant to any Mortgage, a foreclosure under any Mortgage, a power of sale under any Mortgage or otherwise:  (a) the Lease shall continue in full force and effect as a direct lease between Agent and Tenant, and subject to all the terms, covenants and conditions of the Lease, and (b) Agent shall not disturb Tenant’s right of quiet possession of the Premises under the terms of the Lease so long as Tenant is not in default beyond any applicable grace period of any term, covenant or condition of the Lease.

3.Tenant agrees that, in the event of an exercise of the power of sale or foreclosure of any Mortgage by Agent or the acceptance of a deed in lieu of foreclosure by Agent or any other succession of Agent to ownership of the Premises, Tenant will attorn to and recognize Agent as its landlord under the Lease for the remainder of the term of the Lease (including all extension periods which have been or are hereafter exercised) upon the same terms and conditions as are set forth in the Lease, and Tenant hereby agrees to pay and perform all of the obligations of Tenant pursuant to the Lease.

4.Tenant agrees that, in the event Agent succeeds to the interest of Landlord under the Lease, neither Agent nor Lenders shall be:

(a)liable in any way for any act, omission, neglect or default of any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent such act, omission, neglect or default accrues from and after Agent succeeds to the interest of Landlord; or

(b)subject to any claim, defense, counterclaim or offsets which Tenant may have against any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent such claim, defense, counterclaim or offset accrues  from and after the date that Agent succeeds to the interest of Landlord under the Lease; or

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(c)bound by any payment of rent or additional rent which Tenant might have paid for more than one month in advance of the due date under the Lease to any prior Landlord (including, without limitation, the then defaulting Landlord), except to the extent received by Agent or required under the Lease to be so paid in Advance; or

(d)bound by any obligation to make any payment to Tenant which was required to be made prior to the time Agent succeeded to any prior Landlord’s interest, except for any work allowance, work credit or any other similar payments to be made to Tenant under the Lease; or

(e)accountable for any monies deposited with any prior Landlord (including security deposits), except to the extent such monies are actually received by Agent; or

(f)bound by any amendment or modification of the Lease made without the written consent of Agent, which consent shall not be unreasonably withheld or delayed.

Subject to paragraph 2 above, nothing contained herein shall prevent Agent from naming Tenant in any foreclosure or other action or proceeding initiated in order for Agent to avail itself of and complete any such foreclosure or other remedy if such joinder shall be required by law.

5.Tenant hereby agrees to give to Agent copies of all notices of Landlord default(s) under the Lease in the same manner as, and whenever, Tenant shall give any such notice of default to Landlord and no such notice of default shall be deemed given to Landlord unless and until a copy of such notice shall have been so delivered to Agent.  Agent shall have the right but no obligation to remedy any Landlord default under the Lease, or to cause any default of Landlord under the Lease to be remedied, and for such purpose Tenant hereby grants Agent, in addition to the period given to Landlord for remedying defaults, an additional twenty (20) days in the case of a monetary default and an additional sixty (60) days in the case of a non-monetary default to remedy, or cause to be remedied, any such default.  Tenant shall accept performance by Agent of any term, covenant, condition or agreement to be performed by Landlord under the Lease with the same force and effect as though performed by Landlord.  No Landlord default under the Lease shall exist or shall be deemed to exist (i) as long as Agent, in good faith, shall have commenced to cure such default and shall be prosecuting the same to completion with reasonable diligence, within the above-referenced time period subject to any force majeure that exists at or during Agent’s cure periods, or (ii) if possession of the Premises is required in order to cure such default, or if such default is not susceptible of being cured by Agent, as long as Agent, in good faith, shall have notified Tenant within ten (10) business days of receiving Tenant’s notice to Agent of Landlord’s default that Agent intends to institute proceedings under the Loan Documents, and, thereafter, as long as such proceedings shall have been promptly instituted and shall be prosecuted with all reasonable diligence.  In the event of the termination of the Lease by reason of any bankruptcy by Landlord, upon Agent’s written request, given within thirty (30) days after

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any such termination, Tenant, within fifteen (15) days after receipt of such request, shall execute and deliver to Agent or its designee or nominee a new lease of the Premises for the remainder of the term of the Lease upon all of the terms, covenants and conditions of the Lease.  Neither Agent nor its designee or nominee shall become liable under the Lease unless and until Agent or its designee or nominee becomes, and then only with respect to periods in which Agent or its designee or nominee remains, the owner of the Premises.  In no event shall Agent or Lenders have any personal liability as successor to Landlord and Tenant shall look only to the estate and property of Agent or Lenders in the Premises and the proceeds of any sale of the Premises or any part thereof for the satisfaction of Tenant’s remedies for the collection of a judgment (or other judicial process) requiring the payment of money in the event of any default by Agent as Landlord under the Lease, and no other property or assets of Agent or Lenders shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under or with respect to the Lease.  Agent shall, subject to the last grammatical paragraph of paragraph 4 hereof, have the right, without Tenant’s consent, to foreclose the Mortgages or to accept a deed in lieu of foreclosure or to exercise any other remedies under the Loan Documents.

6.Tenant agrees that, following delivery of written notice from Agent to Tenant designating an account into which all payments of rent are thereafter to be made (which notice shall include appropriate wire and mailing instructions), Tenant shall thereafter make all payments of rent due under the Lease (including, without limitation, base rent, amounts due for operating expenses and real estate taxes and, where applicable, rent due as a percentage of sales receipts) and all other charges and sums payable by Tenant under the Lease in accordance with such notice, unless and until Tenant receives written instructions from Agent to do otherwise.  Agent shall apply such rents and other payments it receives in accordance with the Loan Documents and, upon the repayment of the indebtedness evidenced by the Loan Documents, shall instruct Tenant to make future payments of rent as directed by Landlord.  Any payments due under the Lease which are made by Tenant to Agent hereunder shall be deemed to satisfy Tenant’s obligations to Landlord under the Lease.  In the event of any conflict between the provisions of this paragraph 6 and the terms and provisions of the Lease, the provisions of this paragraph 6 shall govern and control.

7.Tenant has no knowledge of any prior assignment or pledge of the rents accruing under the Lease by Landlord.  Tenant hereby acknowledges the making of the Assignments from Landlord to Agent in connection with the Loans.  Tenant acknowledges that the interest of the Landlord under the Lease is to be assigned to Agent solely as security for the purposes specified in the Assignments, and Agent shall have no duty, liability or obligation whatsoever under the Lease or any extension or renewal thereof, either by virtue of the Assignments or by any subsequent receipt or collection of rents thereunder, unless Agent shall specifically undertake such liability in writing.

8.If Tenant is a corporation, each individual executing this Agreement on behalf of said corporation represents and warrants that s/he is duly authorized to execute and deliver this Agreement on behalf of said corporation, in accordance with a duly adopted resolution of the Board of Directors of said corporation

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or in accordance with the by-laws of said corporation, and that this Agreement is binding upon said corporation in accordance with its terms.  If Tenant is a partnership or limited liability company, each individual executing this Agreement on behalf of said partnership or limited liability company represents and warrants that s/he is duly authorized to execute and deliver this Agreement on behalf of said partnership or limited liability company in accordance with the partnership agreement for the partnership or operating agreement for the limited liability company.

9.Any notice, election, communication, request or other document or demand required or permitted under this Agreement shall be in writing and shall be deemed delivered on the earlier to occur of (a) receipt or (b) the date of delivery, refusal or nondelivery indicated on the return receipt, if deposited in a United States Postal Service Depository, postage prepaid, sent certified or registered mail, return receipt requested, or if sent via recognized commercial courier service providing for a receipt, addressed to Tenant or Agent, as the case may be, at the following addresses:

If to Tenant:

[To be added]

Attention:

with a copy to:

Attention:

If to Agent:

GMAC Commercial Mortgage Corporation

100 South Wacker Drive, Suite 400

Chicago, Illinois 60606

Attention: Vacys R. Garbonkus

with copies to:

GMAC Commercial Mortgage Corporation

200 Witmer Road

Horsham, Pennsylvania 19044

Attention: General Counsel

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and

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attention: Harris B. Freidus, Esq.

If to Landlord:

[to be added]

10.The term “Agent” or “Lenders” as used herein includes any successors or assigns thereof, including without limitation, any co-lender at the time of or after the making of the Loans, any purchaser at a foreclosure sale and any transferee pursuant to a deed in lieu of foreclosure, and their successors and assigns, and the term “Landlord” or  “Tenant” as used herein includes any successor and assign of the named Landlord or Tenant, as applicable, herein.

11.If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to be enforceable, or if such modification is not practicable such provision shall be deemed deleted from this Agreement, and the other provisions of this Agreement shall remain in full force and effect.

12.Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing executed by the party against which enforcement of the termination, amendment, supplement, waiver or modification is sought.

13.This Agreement shall be construed in accordance with the laws of the State where the Premises is located without regard to conflict of law principles.

14.As between Landlord and Tenant, nothing herein expands Landlord’s or Tenant’s respective obligations or limits Landlord’s or Tenant’s respective rights under the Lease.

[signature page follows]

6

WITNESS the execution hereof as of the date first above written.

GMAC COMMERCIAL MORTGAGE CORPORATION,
a California corporation, as Agent
By:
	Name:
	Title:
[TENANT]
By:
	Name:
	Title:

The undersigned Landlord hereby consents to the foregoing Agreement and confirms the facts stated in the foregoing Agreement.

[		]
By:
	Name:
	Title:

ACKNOWLEDGMENT FOR AGENT

STATE OF	)
	)  ss.:
COUNTY OF	)

On the      day of                     ,         , before me, the undersigned, personally appeared                                          , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Signature and Office of individual taking acknowledgment

ACKNOWLEDGMENT FOR TENANT

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF	)

On the      day of                     ,         , before me, the undersigned, personally appeared                                          , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Signature and Office of individual taking acknowledgment

ACKNOWLEDGMENT FOR LANDLORD

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF	)

On the      day of                     ,       , before me, the undersigned, personally appeared                                          , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Signature and Office of individual taking acknowledgment

9

EXHIBIT A

The Premises

10

Exhibit A

The Land

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

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

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

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

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

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

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

A - 1

Exhibit I

Architect’s Certificate

I-1

ARCHITECTS’ STATEMENT

[Architect’s Letterhead]

                               , 200

Application for Payment

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606

Ladies and Gentlemen:

The undersigned (“Architect”) understands that GMAC Commercial Mortgage Corporation, as agent (including any successor thereto, “Agent”) for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) has made or will make loans (the “Loans”) to The New York Times Building LLC (“Borrower”), which Loans will be used to finance construction by Borrower of the improvements (the “Improvements”) on and adjacent to the premises more particularly described in Exhibit A hereto (the “Land”; and together with the Improvements, the “Project”).  The Loans will be advanced pursuant to that certain Building Loan Agreement dated as of  June    , 2004 (the “Building Loan Agreement”) by and between Borrower, New York State Development Corporation d/b/a Empire State Corporation, as initial agent (“Initial Agent”) for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, and that certain Project Loan Agreement dated as of June     , 2004 (the “Project Loan Agreement”; collectively with the Building Loan Agreement, the “Loan Agreements”) by and between Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.  Capitalized terms not defined herein shall have the meanings ascribed to them in the Architect’s Agreement (as defined below).

Knowing that Agent and Lenders will rely on this Architect’s Statement in advancing proceeds of the Loans, Architect, for itself and on behalf of RPBW (as hereinafter defined), based upon its knowledge, information and belief, and upon its performance and services (including RPBW and Architect’s respective periodic on site observations of construction) all in accordance with the Architect’s Agreement (as hereinafter defined) and subject to generally accepted standards of practice, hereby states to Agent and Lenders as follows as of the date hereof:

1.Architects have been engaged to act as architects for the Project and such engagement is evidenced by that certain Contract for Architectural Services dated as of October 3, 2001 among FC 41st Street Associates, LLC (“FC 41st Street”),

NYT Real Estate Company LLC (“NYTC Member”), RPBW Piano Building Workshops, S.E.L.A.F.A. (“RPBW”; together with Architect, “Architects”)) and Architect, as assigned by FC 41^st Street and NYTC Member to Borrower in accordance with Section 14.3 of the Architect’s Agreement (the “Architect’s Agreement”).  No amendments or supplements to the Architect’s Agreement have been made except as set forth on Exhibit B attached hereto.

2.Architects last observed the Project on               , 200    and                               , 200  , respectively, and each found the status of the Project on such date and the progress made on the Project [since their last Certificate dated                , 200  ] to be in substantial accordance with the Project Schedule.

3.Architects have been advised that, pursuant to that certain memorandum of the New York State Urban Development Corporation d/b/a Empire State Development Corporation (“ESDC”) concerning the 42nd Street Development Project, dated November 14, 2001 (the “Override Resolution”), ESDC confirmed that the Project is not required to comply with the requirements of the New York City Zoning Resolution.  Architects have been further advised that the Project is required to comply with the Site 8 South Declaration of Design, Use and Operation by ESDC, 42nd St. Development Project, Inc., dated as of December 12, 2001 (the “DUO Declaration”) and is required to comply with all other “Legal Requirements” as defined in the ground lease for the site of the Project (the “Lease”).  In addition, Architects have been informed that Design Development Plans and Final Plans and Specifications, as defined in the Lease, are required to be approved by the ESDC before construction of the Project may begin and that such approvals have been received.

4.The Construction Documents in effect as of the date hereof have been approved by all applicable governmental authorities having jurisdiction over the Project and comply with building codes and other similar legal requirements.  Supplementing the foregoing, the Construction Documents comply with the “Design Development Plans” and “Final Plans and Specifications” that have been approved by ESDC.  Architects have made no amendments, modifications, or changes to the Construction Documents other than those with Agent’s prior written approval or with respect to which Borrower has informed Architects that Agent’s approval is not required since the last Architect’s Certificate dated                       , 200  , other than as described on Exhibit C attached hereto.

5.All work observed to date has been done generally in accordance with the Construction Documents.

6.Upon completion of the Project in accordance with the Construction Documents, the Project will be in compliance in all material respects with currently applicable building codes and other similar legal requirements (including, without limitation, the Americans with Disabilities Act) and the Project shall be entitled to certificates of occupancy by all applicable governmental authorities and may be lawfully occupied and used for the purposes for which it was designed.

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7.All material permits, licenses, and other approvals from governmental authorities required to complete construction of the Project have been validly issued by the appropriate governmental authorities (or are capable of being obtained within time periods consistent with the projected completion dates set forth on the Project Schedule) and are in full force and effect, and subject to the limited scope of services provided for in the Architect’s Agreement, to Architects’ knowledge there is no violation of any of the provisions thereof or of any legal requirements.

8.The Architects have no knowledge of any petitions, actions or proceedings pending or threatened to revoke, rescind, alter or declare invalid any legal requirements, permits, licenses or approvals of any governmental authorities for or relating to the Project.

9.The DUO Declaration permits, as of right, the construction of the Project in accordance with the Construction Documents and, upon completion of construction, the operation, use and occupancy thereof contemplated by the Construction Documents.

10.Architects have received a survey from the Borrower and, to the extent shown on such survey, are familiar with the locations of all easements, restrictions, rights-of-way, subsurface rights and the like in force relating to the Project, and the Construction Documents have been so prepared that the improvements will not encroach over, across or upon any such easements, restrictions, rights-of-way or subsurface rights and the like to the extent shown on such survey, except as expressly permitted by the holders of title to such easements, rights-of-way or subsurface rights pursuant to written instruments, agreements and permits.

11.The Architect’s Agreement is in full force and effect, Architects  are not in default thereunder and to Architects’ knowledge, Borrower is not in default of any of Borrower’s obligations thereunder.

12.The Project has not been suspended, abandoned or terminated.

13.As of the date hereof, the Fee has not been subject to any increase and there are no approved Additional Services for the Architects other than, in each case, those referenced on Exhibit B attached hereto or heretofore disclosed on a prior Architects’ Certificate to Agent.

14.As the date hereof, Architect acknowledges that Architects have been paid  $                                     for Basic Services, $                              for Additional Services and $                        for Reimbursable Expenses.

15.The provisions set forth in this Certificate shall be binding upon Architects and Architects’ successors and shall inure to the benefit of Agent and Lenders but not to any other Person and accordingly no other Person shall be entitled to rely thereon.

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Very truly yours,
FOX & FOWLE ARCHITECTS, PC, for itself and on behalf of RPBW
By:
	Name:
	Title:

4

Exhibit A

Description of Premises

Exhibit A

The Land

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

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

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

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

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

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

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

A - 1

Exhibit B

Amendments to the Architect’s Agreement and Fees for Services

Exhibit C

Amendments to the Construction Documents

Exhibit J

General Contractor’s Certificate

J-1

GENERAL CONTRACTOR’S CERTIFICATE

[General Contractor’s Letterhead]

                                      , 200  

Application for Payment No.             

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606

Ladies and Gentlemen:

The undersigned (“General Contractor”) understands that GMAC Commercial Mortgage Corporation, as agent (“Agent”) for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) has made or will make loans (the “Loans”) to The New York Times Building LLC (“Borrower”), which Loans will be used to finance construction by Borrower of the improvements (the “Improvements”) on and adjacent to the premises more particularly described in Exhibit A hereto (the “Land”; and together with the Improvements, the “Project”).  The Loans will be advanced pursuant to that certain Building Loan Agreement dated as of June     , 2004 (the “Building Loan Agreement”) by and between Borrower, New York State Development Corporation d/b/a Empire State Corporation as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, and that certain Project Loan Agreement dated as of June     , 2004 (the “Project Loan Agreement”; collectively with the Building Loan Agreement, the “Loan Agreements”) by and between Borrower, Initial Agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders.  Capitalized terms not defined herein shall have the meanings ascribed to them in the Guaranteed Maximum Price Contract defined below.

General Contractor certifies to Agent and Lenders as follows:

1.General Contractor has been engaged to act as the construction manager for the Project and such engagement is evidenced by that certain Construction Management Agreement between Borrower and General Contractor dated as of January 22, 2004 (the “Guaranteed Maximum Price Contract”).  Except for Change

Orders, Field Directives and Emergency Change Orders (collectively, “Scope Changes”) no amendments or supplements to the Guaranteed Maximum Price Contract have been made without the prior written approval of Agent.  The Guaranteed Maximum Price Contract constitutes the only agreement (other than Scope Changes) between General Contractor and Borrower with respect to the matters and interests described therein.

2.General Contractor has reviewed the Drawings and Specifications prepared for the Project and specified in the Guaranteed Maximum Price Contract.  There have been no Scope Changes since the date of the last General Contractor’s Certificate dated               , 200  , except as set forth in the Potential Change Order Log attached as Schedule 1 hereto.

3.The Application and Certificate of Payment (AIA Document No. G702), dated                                   , 200   (the “Current Application for Payment”) which General Contractor understands is to be included as an item in Borrower’s requisition to Agent, is in full compliance with the terms of the Guaranteed Maximum Price Contract.

4.Schedule 2 hereto is a list of each Major Subcontractor (as defined in Exhibit B).

5.The Work performed to date has been performed in accordance with the Guaranteed Maximum Price Contract and the other Contract Documents in effect on the date hereof.  To the best of General Contractor’s knowledge, except as set forth in paragraph 2 above, no event has occurred and there are no conditions (including without limitation, any concealed conditions, design defects or deficiencies), or changes in the Construction Documents that would entitle General Contractor to an increase in the GMP, other than (a) as set forth on Schedule 1 hereto and (b) increases that General Contractor is not yet obligated to make a claim for as of the date hereof in accordance with the terms of the Guaranteed Maximum Price Contract.  As of the date hereof, the Guaranteed Maximum Price is set forth in the Current Application for Payment.

6.As of the date hereof, the required dates under the Guaranteed Maximum Price Contract for Substantial Completion and Final Completion for each portion of the Project are set forth in the most recent schedule attached as Schedule 3 hereto.  The General Contractor does not know of any facts or circumstances which would entitle General Contractor to an extension of any such dates; and General Contractor has not made any claim for any such extension, other than (a) as set forth on Schedule 1 hereto and (b) claims that General Contractor is not yet obligated to make as of the date hereof in accordance with the terms of the Guaranteed Maximum Price Contract.

7.Except as shown on Schedule 4, all Governmental Approvals (as defined in Exhibit B) required to have been obtained by General Contractor, and, to the best of General Contractor’s knowledge, all other Governmental Approvals from the City of New York, including its Department of Transportation, required to have been obtained by Borrower, with respect to the construction of the Project have been issued, are in full

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force and effect and are not subject to any legal proceedings or unsatisfied conditions.  With respect to any such Governmental Approvals not yet required to be obtained, (i) each such Governmental Approval is of a type that is routinely granted upon application therefor and (ii) General Contractor knows of no facts or circumstances which indicate that any such Governmental Approval will not be timely obtainable without material difficulty, expense or delay prior to the time that it is required.

8.All insurance required from the General Contractor (if any) under the Guaranteed Maximum Price Contract (i) has been obtained and (ii) is in full force and effect.

9.Except for funds remaining in the Trust Account established pursuant to Article 18.6.1 of the Guaranteed Maximum Price Contract, General Contractor has paid to its direct subcontractors and suppliers in full all of its obligations with respect to all labor and/or materials and rented equipment, appliances or tools related to the construction of the Project supplied through and including the period covered by the Application and Certificate of Payment (AIA Document No. G702) included in Borrower’s second most recent requisition (the “Prior Application for Payment”) and all such subcontractors have paid their direct subcontractors and suppliers in full for and with respect to all labor and/or materials and rented equipment, appliances or tools related to the construction of the Project supplied through and including the period covered by the Prior Application for Payment properly due to subcontractors and suppliers in accordance with the Guaranteed Maximum Price Contract.

10.There are no unbonded liens in favor of General Contractor and/or any subcontractor hired by General Contractor who has performed work, for the work so performed, and/or who has supplied labor, goods and/or materials, for the labor, goods and/or materials so supplied, except for such work or labor, goods and/or materials for which payment is requested.

11.The Guaranteed Maximum Price Contract is in full force and effect.  Neither General Contractor nor Borrower is in default of any of its respective obligations to the other as of the date hereof.  There is no existing circumstance or event which, but for the lapse of time and/or the giving of notice, would constitute a default by either General Contractor or Borrower or would give either such party the right to terminate the Guaranteed Maximum Price Contract.  General Contractor has not sent or received any notice of default or any notice for the purpose of terminating the Guaranteed Maximum Price Contract.

12.There are no changes in the condition of the General Contractor which would be likely to materially adversely affect its ability to perform its obligations under the Guaranteed Maximum Price Contract.

13.The Project has not been suspended, abandoned or terminated.

14.All Work performed to date has been performed only by subcontractors (not including suppliers) subject to collective bargaining agreements with

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unions affiliated with the Building and Construction Trades Council of Greater New York.

15.General Contractor is in compliance with all of its obligations under Section 2.4 of the Guaranteed Maximum Price Contract.

16.The provisions set forth in this Certificate shall be binding upon General Contractor and General Contractor’s successors and assigns and shall inure to the benefit of Agent and Lenders and their successors and assigns.

Very truly yours,
AMEC CONSTRUCTION MANAGEMENT, INC.
By:
	Name:
	Title:

4

Exhibit A

The Land

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

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

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

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

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

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

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

Exhibit B

Definitions

“Governmental Approvals” means all approvals, consents, waivers, orders, acknowledgments, authorizations, permits and licenses required under applicable Legal Requirements to be obtained from any government (or any political subdivisions thereof), court, agency, authority, board (including, without limitation, any environmental protection, planning or zoning board), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit having jurisdiction over Borrower, the Project or any part thereof (or the construction, development, use, occupancy, management, ownership or operation of the Project or any part thereof) or Agent or any Lender, as applicable.

“Major Subcontractor” means any subcontractor (vis-a-vis Owner) under the Guaranteed Maximum Price Contract (or any direct or indirect subcontractor thereof) who is supplying labor, goods, materials or services in connection with the Project, where, at the time of determination, the aggregate contract price for such labor, goods, materials or services (including fees) equals or exceeds $500,000, whether pursuant to one contract or agreement or multiple contracts or agreements, after taking into account all change orders.

Schedule 1

Potential Change Order Log

Schedule 2

Major Subcontractors

Schedule 3

Current Schedule

Schedule 4

Governmental Approvals

Exhibit K

Form of Estoppel Certificate

K-1

Estoppel Certificate

                              , 200  

GMAC Commercial Mortgage Corporation, as Agent

100 South Wacker Drive, Suite 400

Chicago, Illinois 60606

Re:New York Times Building, New York, New York

The undersigned understands that THE NEW YORK TIMES BUILDING LLC (“Borrower”), NEW YORK STATE URBAN DEVELOPMENT CORPORATION, D/B/A EMPIRE STATE DEVELOPMENT CORPORATION, as initial agent (“Initial Agent”) for itself and for the benefit of the lenders as may exist from time to time (such lenders collectively, including any successors and assigns, “Lenders” and each individually a “Lender”) and GMAC COMMERCIAL MORTGAGE CORPORATION, as agent (including as successor to Initial Agent) (including any of its successors and assigns as agent, “Agent”) for itself and on behalf of Lenders, have entered into that certain Building Loan Agreement dated as of June         , 2004 and that certain Project Loan Agreement dated as of June         , 2004, and that Agent is requiring, and will rely upon, this certificate from the undersigned.  The undersigned hereby certifies as follows:

1.The undersigned is the tenant under the lease described in Exhibit A annexed hereto, covering the space in the building known as the New York Times Building, New York, New York (the “Property”) described on Exhibit A (the “Premises”), which lease has not been amended or supplemented (orally or in writing) except as set forth on Exhibit A (as so amended or supplemented, the “Lease”). [The Lease is guarantied by the guaranty set forth on Exhibit A (the “Guaranty”)].  The Lease [and the Guaranty] contain[s] all of the understandings and agreements between the landlord thereunder (“Landlord”) and the undersigned with respect to the Premises.

2.Except as indicated on Exhibit A, the undersigned has not assigned the Lease, sublet all or any portion of the Premises or pledged its interest thereunder.  All conditions to the Lease to be performed by Landlord as of the date hereof and necessary to the enforceability of the Lease have been satisfied.

3.The Lease [and the Guaranty] [is][are] in full force and effect.  As of the date hereof (i) the undersigned has neither sent nor received any notice of default under the Lease and, to the best of the undersigned’s knowledge, there are no defaults under the Lease by either Landlord or the undersigned [or under the Guaranty by the guarantor thereunder], nor are there any conditions or events existing which, with or without notice or the lapse of time, or both, could constitute a default under the Lease [or the Guaranty], and (ii) to the best of the undersigned’s knowledge, the undersigned has no charge, lien, claim or offsets under the Lease against Landlord or the rent or other amounts payable thereunder.  The undersigned has not advanced any funds for or on behalf of Landlord for which the undersigned has a right to deduct from or offset against future rent payments.

4.The amount of the security deposit to be held under the Lease is set forth on Exhibit A.

5.No notice to terminate the Lease [or the Guaranty] has been given or received by the undersigned.

6.[Neither] [T]he undersigned [nor the guarantor under the Guaranty] is [not] the subject, whether voluntary or otherwise, of any bankruptcy, insolvency or similar proceeding in any federal, state or other court or jurisdiction.

7.Attached hereto as Exhibit B is a true and correct copy of the Lease [and the Guaranty] and all the amendments, modifications and supplements thereto.

8.The undersigned hereby certifies to Agent the truth and accuracy hereof and acknowledges that Agent is relying on the terms hereof in consummating the transactions described above.

9.This certificate shall be binding upon the undersigned and its successors and assigns and shall inure to the benefit of and be enforceable by Agent and its successors and assigns, including any purchaser at a foreclosure sale or any person receiving a deed in lieu of foreclosure.

Very truly yours,
[		]
By:
	Name:
	Title:

EXHIBIT A

1.Description of Lease and of each amendment thereto [and any Guaranty thereof] by title, date and parties:

2.Subleases, assignments or pledges:

3.Security deposit:

EXHIBIT B

[attached behind]

If the Lease is guaranteed, the following must be completed by all lease guarantors:

JOINDER

The undersigned Guarantor of the Lease hereby joins in this tenant estoppel certificate to confirm that the undersigned’s Guaranty of the Lease remains in full force and effect, and is hereby reaffirmed and ratified.  The undersigned Guarantor represents and warrants that all representations and warranties made in such Guaranty are true and correct in all material respects as of the date hereof.  The undersigned further confirms that the undersigned has no claim of offset, defense or counterclaim to the obligations of the undersigned under such Guaranty and have no defenses to enforcement of the Guaranty or the Lease in accordance with its terms.

[Date]
	GUARANTOR:
	By:
		Name:
		Title:

Exhibit L

Intentionally Omitted

L-1

Exhibit M

Form of Assignment of Interest Rate Cap

M-1

FORM OF

ASSIGNMENT OF INTEREST RATE CAP

between

THE NEW YORK TIMES BUILDING LLC
having an address at
One MetroTech Center North,
Brooklyn, New York 11201
(Assignor)

and

GMAC COMMERCIAL MORTGAGE CORPORATION
having an address at
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606,
as agent
(Agent)

Dated as of                         , 200  

TABLE OF CONTENTS

SECTION 1.	Assignment
SECTION 2.	Representations and Warranties
SECTION 3.	Covenants
SECTION 4.	Performance of Assignor’s Obligations.
SECTION 5.	Notice and Instruction to Counterparty
SECTION 6.	Remedies
SECTION 7.	Indemnification
SECTION 8.	Notices.
SECTION 9.	Filing of Financing Statements; Appointment of Attorney-in-Fact
SECTION 10.	Successors and Assigns Included in Parties
SECTION 11.	Headings
SECTION 12.	Invalid Provisions to Affect No Others
SECTION 13.	Number and Gender
SECTION 14.	Computation of Time Periods
SECTION 15.	Governing Law
SECTION 16.	Amendments
SECTION 17.	Counterparts
SECTION 18.	Time of the Essence
SECTION 19.	Survival
SECTION 20.	Exculpation
SECTION 21.	Further Assurances
SECTION 22.	Assignment
SECTION 23.	Entire Agreement
SECTION 24.	Statute of Limitations
SECTION 25.	Remedies of Assignor
SECTION 26.	Obligations Not Impaired
SECTION 27.	No Waiver
SECTION 28.	Reinstatement of Obligations
SECTION 29.	Successive Actions

i

PWRW&G

3/31/04

FORM OF

ASSIGNMENT OF INTEREST RATE CAP

THIS ASSIGNMENT OF INTEREST RATE CAP (this “Assignment”), dated as of                          , 200  , is made by THE NEW YORK TIMES BUILDING LLC, a New York limited liability company with an address at One MetroTech Center North, Brooklyn, New York 11201 (“Assignor”), in favor of GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation with an office at 100 South Wacker Drive, Suite 400, Chicago, Illinois 60606, as agent (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”).

W I T N E S S E T H:

WHEREAS, Assignor, Initial Agent (as defined in the Loan Agreements (as hereinafter defined)), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, entered into that certain Building Loan Agreement, dated as of                              , 200   (as the same may be revised, restated, amended or modified from time to time, the “Building Loan Agreement”) and that certain Project Loan Agreement dated as of                             , 200    (as the same may be revised, restated, amended or modified from time to time, the “Project Loan Agreement”; the Building Loan Agreement and the Project Loan Agreement collectively, the “Loan Agreements”; capitalized terms used herein but not defined herein shall have the respective meanings specified in the Loan Agreements), pursuant to which the Lenders are advancing loans in the original maximum aggregate amount of $320,000,000.00 (the “Loan”) to Assignor;

WHEREAS, Initial Agent has satisfied all of its obligations under the Building Loan Documents and the Project Loan Documents and has resigned as initial agent under the Building Loan Documents and the Project Loan Documents and in confirmation of the foregoing, has, among other things, assigned all of its rights as initial agent to Agent, and Agent has assumed all of Initial Agent’s Obligations as initial agent;

WHEREAS, the Loan Agreements require that, under certain circumstances, Assignor purchase an interest rate cap and execute and deliver this Assignment as further security for the payment of the Indebtedness and the performance of the Obligations; and

WHEREAS, that certain ISDA Confirmation (the “Confirmation”), dated                                , 200   between Assignor and                                              (“Counterparty”), together with that certain ISDA Master Master Agreement (Multicurrency Cross Border) governing the Confirmation (the “Master Agreement”; the Confirmation, together with the Master Agreement, the “Interest Rate Cap”), which Interest Rate Cap is attached hereto as Exhibit A, is [the Initial Interest Rate Cap][a Future Interest Rate Cap] referred to in the Loan Agreement.

NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor and Agent, for itself and on behalf of Lenders, hereby agree as follows:

SECTION 1.Assignment.  As security for the due and punctual payment in full of the Indebtedness and the performance of the Obligations, Assignor hereby assigns, grants, delivers and transfers to Agent, and grants to Agent a security interest in, all of Assignor’s right, title and interest, whether now owned or hereafter acquired, now existing or hereafter arising, wherever located, in, to and under (i) the Interest Rate Cap; (ii) all rights to receive payments under, and any payment intangibles due or to become due to Assignor in respect of, the Interest Rate Cap or arising thereunder whether as contractual Obligations or otherwise (“Payments”); (iii) all of Assignor’s claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under or arising out of the Interest Rate Cap; and (iv) any and all accessions and additions to, substitutions for and replacements of products and proceeds (including non-cash proceeds) of any of the foregoing (the property and interests described in the foregoing clauses (i) through (iv) being referred to herein collectively as the “Collateral”).

SECTION 2.Representations and Warranties.  Assignor represents and warrants that (i) it is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York; (ii) it has the power, authority and legal right to purchase and own the Interest Rate Cap and to execute, deliver and perform its obligations under this Assignment including, without limitation, to assign and grant a security interest in the Collateral; (iii) this Assignment and the Interest Rate Cap have been duly authorized, executed and delivered by all necessary parties on behalf of Assignor; (iv) the copy of the Interest Rate Cap attached as Exhibit A hereto is a true and complete copy thereof, (v) it owns the Collateral free and clear of all liens and claims of others, (vi) it has not transferred, assigned, granted a security interest in or otherwise encumbered its interest in and to the Collateral other than in favor of Agent and Lenders pursuant to this Assignment, (vii) no security agreement, financing statement or other document is on file or of record in any public office with respect to the Collateral, other than in favor of Agent and Lenders pursuant to this Assignment, (viii) the obligation of the Counterparty under the Interest Rate Cap to make Payments is not subject to any defense or counterclaim arising from any act or omission of Assignor, any other Borrower Entity or any Affiliate thereof, (ix) the Interest Rate Cap is in full force and effect and there exists no default or event of default thereunder and (x) the exact name and the state of formation of Assignor as set forth in the Articles of Organization of Assignor are set forth on page 1 hereof and the place of business (as used in Article 9 of the UCC) and chief executive office of Assignor is located at the address set forth on page one.

SECTION 3.Covenants.  Assignor covenants and agrees that (i) it shall comply with all terms of the Interest Rate Cap, (ii) it shall not waive any material provision of, or make any material change to, the Interest Rate Cap and it shall not consent or agree to any act or omission to act on the part of Counterparty which would

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constitute a default under the Interest Rate Cap, (iii) it shall not tender or accept a surrender or cancellation of the Interest Rate Cap, (iv) it shall not assign, pledge, encumber or grant a security interest in any of the Collateral to anyone other than Agent for the benefit of itself and Lenders, (v) it shall exercise promptly and diligently each and every right which it may have under the Interest Rate Cap, (vi) it shall not take or omit to take any action or suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Cap, or any defense by Counterparty, to payment, (vii) it shall promptly deliver a copy of any notice received from Counterparty to Agent and (viii) it shall deliver to Agent copies of any replacement or substitution of, and any amendment to, the Interest Rate Cap.

SECTION 4.Performance of Assignor’s Obligations.  Subject to Section 6 hereof, nothing contained herein and no act taken by Agent hereunder shall obligate or be construed to obligate Agent, vis-à-vis Assignor, to perform any of the terms, covenants or conditions contained in the Interest Rate Cap or otherwise to impose any obligation upon Agent with respect to the Collateral.  This Assignment shall not operate to place upon Agent any responsibility for the operation, control, care, management or repair of the Mortgaged Property or for the payment, performance or observance of any Obligations or any requirement or condition under the Interest Rate Cap.

SECTION 5.Notice and Instruction to Counterparty.  The Counterparty has executed this Assignment for the purpose of evidencing its consent hereto.  This Assignment shall constitute a direction to the Counterparty to make all payments to be made under or pursuant to the terms of the Interest Rate Cap, without set-off, defense or counterclaim, to Agent (a) directly to the account designated on Schedule B hereto, and (b) upon Agent’s written notice to Counterparty that an Event of Default has occurred, in accordance with Agent’s written instruction.  Assignor agrees that payments made by Counterparty pursuant to these directions shall, to the extent of such payment, satisfy Counterparty’s obligations to Assignor in respect of the Confirmation and that Counterparty may rely upon Agent’s written notice without any inquiry into the factual basis for such notice or any prior notice to or consent from Assignor. Assignor further acknowledges that its consent is not needed to any termination and liquidation of the Collateral upon which Agent and Counterparty may agree and that all proceeds paid in respect thereof are to be paid to Agent. Assignor releases Counterparty from all liability in connection with Counterparty’s compliance with Agent’s written instructions or performance in accordance with this Assignment.

SECTION 6.Remedies.  Notwithstanding anything to the contrary contained herein, prior to the occurrence of an Event of Default, neither Agent nor Lenders shall have the right to assume the Interest Rate Cap.  During the continuance of an Event of Default, Agent shall be entitled to all of the rights, remedies, powers and privileges available to a secured party under the UCC.  Agent may, but shall not be obligated to, assume all of the obligations of Assignor under the Interest Rate Cap and/or exercise the rights, benefits and privileges of Assignor with respect to any of the other

3

Collateral and, in such event, Agent shall be entitled to utilize the Collateral in Assignor’s place and stead, in the name of Assignor or otherwise and/or to take in its name or in the name of Assignor, or otherwise, such action as Agent may at any time or from time to time determine to be necessary to cure any default under the Collateral or to protect the rights of Assignor or Agent or Lenders thereunder.  In connection with the foregoing, Agent shall be entitled to take possession of and use all books of account and financial records of Assignor relating to the Collateral.  The assumption by Agent of the Interest Rate Cap pursuant to this Section 6 shall be evidenced by a written notice from Agent to the Counterparty upon which the Counterparty shall be entitled to rely.  Under no circumstances shall Agent or any Lender be deemed by any party to have assumed Assignor’s rights and obligations under the Interest Rate Cap unless and until such written notice is delivered to the Counterparty in accordance with the foregoing provision.  Assignor hereby agrees to pay all sums expended by Agent under the authority hereof.  Such amounts shall constitute Reimbursable Costs.

SECTION 7.Indemnification.  Assignor agrees to indemnify and hold Agent and/or Lenders harmless from and against any and all losses which Agent and/or Lenders incur by reason of this Assignment, or by reason of any action permitted to be taken by Agent hereunder, and against and from any and all claims and demands whatsoever which may be asserted against Agent and/or Lenders by reason of any alleged obligation or undertaking on its part to perform or discharge any of the terms, covenants and conditions contained in the Interest Rate Cap except to the extent that such Loss resulted from the gross negligence or willful misconduct of Agent.  The foregoing indemnity shall be subject to the provisions of Section 7.29 of the Loan Agreements.

SECTION 8.Notices.

Any request, notice, report, demand, approval or other communication permitted or required by this Assignment to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

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Lenders or Agent:

GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois  60606
Attention:    Vacys R. Garbonkus
Telecopier:  (312) 917-6131

with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York  10019
Attention:  Harris B. Freidus, Esq.
Telecopier:  (212) 492-0064

Assignor

The New York Times Building LLC
One MetroTech Center North
Brooklyn, New York 11201
Attention:

Telecopier:

with a copy to:

[Assignor to provide]

Counterparty:

Telecopier:  (    )

(b)Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without limiting the foregoing, Assignor may not add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address or because no notice of changed address was given, shall be deemed to be receipt of any such notice.  A notice given by a party under any Loan Document of a change of entity, address or attention party shall be deemed to be a notice of such change for purpose of all Loan Documents to which such party is a party.

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(c)Unless notified to the contrary pursuant to this Section, any notice or communication to be made to any Lender shall be made only to Agent and its counsel as provided for in this Section.

SECTION 9.Filing of Financing Statements; Appointment of Attorney-in-Fact.  (a) Assignor hereby authorizes Agent to file Uniform Commercial Code financing statements describing the Collateral and evidencing and perfecting the security interests in the Collateral granted to Agent pursuant to this Assignment and to file any Uniform Commercial Code financing statements reasonably necessary or advisable too accomplish the purposes of this Assignment and (b) effective upon the occurrence of an Event of Default, Assignor hereby appoints Agent the attorney-in-fact for Assignor, with full authority in its place and stead and in the name of Assignor or otherwise, from time to time in Agent’s discretion, to take any action and to execute any instrument which Agent may deem reasonably necessary or advisable to accomplish the purposes of this Assignment.  Assignor agrees that the foregoing power constitutes a power coupled with an interest which may not be revoked and which shall survive until all of the Indebtedness shall have been indefeasibly paid in full and satisfied.

SECTION 10.Successors and Assigns Included in Parties.  Whenever in this Assignment Assignor, Agent or Lender(s) is named or referred to, the heirs, legal representatives, successors and assigns of such party or parties shall be included, whether so expressed or not.  All obligations, covenants and agreements contained in this Assignment shall be binding on, and inure to the benefit of, the respective heirs, legal representatives, successors and assigns of Assignor, Agent or such Lender(s), whether so expressed or not.

SECTION 11.Headings.  The headings of the Sections and subsections of this Assignment are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Assignment to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Assignment unless otherwise stated.

SECTION 12.Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Assignment in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Assignment shall remain operative and in full force and effect.

SECTION 13.Number and Gender.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar

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import when used in this Assignment shall refer to this Assignment as a whole and not to any particular provision of this Assignment.

SECTION 14.Computation of Time Periods.  In this Assignment, with respect to the computation of periods of time from a specified date to a later specified date, the word “from” means both “from and including” and the words “to” and “until” both mean “to but excluding”.

SECTION 15.Governing Law.  This Assignment shall be governed by and construed in accordance with laws of the State of New York applicable to contracts made and performed solely within such State.

SECTION 16.Amendments.  Neither this Assignment nor any provision hereof may be changed, waived, discharged or terminated orally, but only by instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought.

SECTION 17.Counterparts.  This Assignment may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument.

SECTION 18.Time of the Essence.  Time is of the essence of this Assignment and of each and every term, covenant and condition herein.

SECTION 19.Survival.  This Assignment and all covenants, agreements, representations and warranties herein made shall survive the making by Lenders of the Loans and the execution and delivery to Lenders of the Building Loan Notes and the Project Loan Notes (regardless of any investigation made by Lenders or on their behalf), and shall continue in full force and effect so long as all or any part of the Loans is outstanding and unpaid.

SECTION 20.Exculpation.  This Assignment shall be subject to the provisions of Sections 11.16 of the Loan Agreements.

SECTION 21.Further Assurances.  Assignor agrees that at any time and from time to time Assignor will promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary or desirable, or that Agent may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereunder or to enable Agent to exercise and enforce its rights and remedies hereunder.

SECTION 22.Assignment.  The assignment of this Assignment shall be governed by Sections 7.50 and 11.05 of the Loan Agreements.

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SECTION 23.Entire Agreement.  This Assignment and the other Loan Documents embody the entire agreement and understanding between the parties with respect to the Loans and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

SECTION 24.Statute of Limitations.  Assignor hereby expressly waives and releases to the fullest extent permitted by law the pleading of any statute of limitations as a defense to the performance of its obligations hereunder.

SECTION 25.Remedies of Assignor.  In the event that a claim or adjudication is made that Agent or any Lender has acted unreasonably or has unreasonably delayed acting with respect to any consent or approval requested under this Assignment in any case whereby law or under this Agreement it has an obligation to act reasonably or promptly, Agent or such Lender shall not be liable for any monetary damages, and the sole remedies of Assignor shall be limited to injunctive relief or declaratory judgment.

SECTION 26.Obligations Not Impaired.  Assignor hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever in respect of this Assignment (but not any notice of Default or Event of Default provided for in the Loan Agreements), as well as any requirement that Agent exhaust any right or remedy or take any action in connection with this Assignment or any other Loan Document.  Assignor further waives all rights to have any security marshalled upon the exercise of any remedies permitted hereunder.  Assignor agrees that Agent may take or release other security for the Indebtedness, release any party liable for any such Indebtedness, grant extensions, renewals or indulgences with respect to said Indebtedness, and may apply any other security therefor held by it without prejudice to any of its rights hereunder.

SECTION 27.No Waiver.  No failure or delay on the part of Agent to exercise any power, right or privilege under this Assignment shall impair any such power, right or privilege, or be construed to be a waiver of any default or an acquiescence therein, nor shall any single or partial exercise of such power, right or privilege preclude any other or further exercise thereof or of any other right, power or privilege.  To the extent permitted by law, Assignor hereby waives any requirement that Agent commence any foreclosure proceeding with respect to the Mortgaged Property or to any of the other collateral securing payment of the Loan prior to enforcement of any remedies pursuant to this Assignment.  Further, nothing contained in this Assignment and no act or action taken or done, or omitted to be taken or done, by Agent pursuant to the powers and rights granted to Agent hereunder shall be deemed to (i) be a waiver of or to cure any Default or Event of Default or (ii) be a waiver by Agent of any of its respective rights and remedies against any Borrower Entity or Member in connection with, or in respect of, the Indebtedness.

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SECTION 28.Reinstatement of Obligations.  If at any time all or any part of any payment made by or on behalf of Assignor or received by Agent or any Lender from Assignor under or with respect to this Assignment is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of Assignor), then the obligations of Assignor hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment, or receipt of payment by Agent or such Lender, and the obligations of Assignor hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment had never been made.

SECTION 29.Successive Actions.  A separate right of action hereunder shall arise in favor of Agent or any Lender each time Agent or such Lender acquires knowledge of any matter indemnified by Assignor under this Assignment.  Separate and successive actions by Agent may be brought hereunder to enforce any of the provisions hereof at any time and from time to time.  No action hereunder shall preclude any subsequent action, and, to the extent permitted by applicable law, Assignor hereby waives and covenants not to assert any defense in the nature of splitting of causes of action or merger of judgments.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date first written above.

ASSIGNOR:
THE NEW YORK TIMES BUILDING LLC
By:	FC LION LLC, member
	By:	FC 41st Street Associates, LLC, its managing member
		By:	RRG 8 South, Inc., its managing member
			By:
				Name:
				Title:
By:	NYT REAL ESTATE COMPANY LLC, member
	By:
		Name:
		Title:

By countersigning this Assignment Counterparty hereby:  (a) acknowledges and consents to the assignment and security interest granted by Assignor to Agent; (b) acknowledges Agent’s rights as described herein; and (c) confirms that it has not previously received notice of any other assignment of, or security interest in, Assignor’s rights in, to and under the Confirmation.  Until Agent notifies Counterparty in writing that Agent has released its interest in the Confirmation, Counterparty agrees that it will:  (a) make payments in respect of the Counterparty in accordance with this Assignment; (b) not accept changes to the account designated for payments due to Assignor without Agent’s prior written consent to each new account designation; (c) obtain Agent’s written consent prior to assigning its interest or obligations under the Confirmation; and (d) not modify or terminate the Confirmation, nor be relieved of its obligations under the Confirmation, pursuant to any waiver given by Assignor unless, in each case, made with Agent’s prior written consent.  Except as expressly provided herein in respect of the Confirmation, Counterparty shall have no obligation or liability to Agent in respect of the Confirmation, the assignment referenced herein or the Loan.

COUNTERPARTY:
[		]
By:
	Name:
	Title:

Exhibit A

Interest Rate Cap

[attached behind]

Exhibit B

Wiring Instructions

Bank:	Wachovia Bank, National Association 5th and Market Streets Philadelphia, Pennsylvania 19106 ABA#: 031-201-467
Beneficiary:	GMAC Commercial Mortgage Corporation
Account Number:
Reference:

Exhibit N

Condominium Title Endorsement

N-1

	Fidelity National Title
	INSURANCE COMPANY OF NEW YORK

AFFIRMATIVE INSURANCE ENDORSEMENT

ATTACHED to and forming a part of POLICY NO.:

The Company insures the insured against loss or damage sustained by reason of:

1.The failure of the unit identified in Schedule A and its common elements to be part of a condominium within the meaning of the condominium statutes of the State of New York.

2.The failure of the documents required by the condominium statutes to comply with the requirements of the statutes to the extent that such failure affects the title to the unit and its common elements.

3.Present violations of any restrictive covenants which restrict the use of the unit and its common elements and which are created by the condominium documents. Said restrictive covenants do not contain any provisions which will cause a forfeiture or reversion of title.

4.The priority of any lien for charges and assessments at Date of Policy provided for in the condominium statutes and condominium documents over the lien of any insured first mortgage identified in Schedule A.

5.The failure of the unit and its common elements to be entitled by law to be assessed for real property taxes as a separate parcel.

6.Any obligation to remove any improvements which exist at Date of Policy because of any present encroachments or because of any future unintentional encroachments of the common elements upon any unit or of any unit upon the common elements or another unit.

7.The failure of title by reason of a right of first refusal to purchase the unit and its common elements which was exercised or could have been exercised at Date of Policy.

THIS ENDORSEMENT is made a part of the policy and is subject to all of the terms and provisions thereof and of any prior endorsement thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy and any prior endorsements, nor does it extend the effective date of the Policy, nor does it increase the face amount thereof.

IN WITNESS WHEREOF, the Company has caused its corporate name and seal to be hereunto affixed by its duly authorized signatory and countersigned on the date hereinafter set forth.

Dated:

Countersigned:		Fidelity National Title Insurance Company of New York
BY:			BY	/s/ [ILLEGIBLE]
	Authorized Signatory			President
	(Please print name below)	[SEAL]
			ATTEST	/s/ Charles H. Wimer
				Secretary

Exhibit O

Title Assurance Letter

O-1

[LETTERHEAD OF ALL TITLE COMPANIES]

                             , 200  

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606

Re:  New York Times Building,
New York, New York (the “Property”)

Title No: [                                  ] [Title Company Name]

Title No: [                                  ] [Title Company Name]

Title No: [                                  ] [Title Company Name]

[Add more policies as needed]

Ladies and Gentlemen:

This letter will confirm that the above Title Companies have issued the policy or policies captioned above.  In connection with the same, you have advised the Title Companies of your intention to subordinate the insured mortgage to the Declaration of Condominium for the premises described in said policy(ies) (the “Mortgaged Premises”).  You have asked the Title Companies to inform you what effect the insureds voluntary act of subordinating the insured mortgage as aforesaid will have on the liability of the insurer(s) under the policy(ies).

The above policy(ies) is/are presently in full force and effect in accordance with the terms and conditions and insuring provisions thereof, including any endorsements annexed thereto, subject however, to the exclusions from coverage contained in the policy(ies) or in any endorsements affixed to the policy(ies) and to the exceptions to coverage contained on the Schedule B of the policy(ies).  As of the date hereof, the policy(ies) further insure that the subordination of the insured mortgage to the Declaration of Condominium affecting the Mortgaged Premises will not, except for the priority of the lien of condominium common charges for any unit or any express provision of the said Declaration of Condominium agreed to by you, affect the priority or enforceability of the lien of the insured mortgage nor will such subordination void the coverage provided under the policy(ies).

[Title Companies]

Exhibit P

Conditional Assignment of Declarant’s Rights

P-1

CONDITIONAL COLLATERAL ASSIGNMENT OF DECLARANT’S RIGHTS

FC LION LLC, a New York limited liability company (“Assignor”) for $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby grant, assign, transfer and set over unto GMAC COMMERCIAL MORTGAGE CORPORATION and its successors, as agent (including as successor to Initial Agent (as hereinafter defined)) (“Agent”) for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) under that certain Building Loan Agreement by and among The New York Times Building LLC (“Borrower”), New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders and Agent, for itself and on behalf of Lenders, dated as of June    , 2004 and that certain Project Loan Agreement by and among Borrower, Initial Agent, for itself and on behalf of Lenders, and Agent, for itself and on behalf of Lenders, dated as of June    , 2004 (collectively, as the same may be revised, restated, amended or modified from time to time, the “Loan Agreements”; capitalized terms used herein but left undefined shall have the meanings assigned to such terms in the Loan Agreements), all of Assignor’s rights and privileges including, without limitation, the right to take any actions and/or exercise any rights, remedies or easements available to Assignor as successor to Borrower (the “Declarant’s Rights”) arising under (i) the Declaration (as hereinafter defined), and (ii) the by-laws attached thereto (the “By-Laws”) relating to the condominium (the “Development”) created by the Declaration, but only to the extent the Declarant’s Rights relate to the Mortgaged Property other than the NYTC Units.

So long as no Event of Default shall have occurred and be continuing, Assignor may exercise the Declarant’s Rights, except that it may not (i) further transfer or encumber any of the Declarant’s Rights (except as permitted under the Loan Agreements), (ii) cause or allow any of the Condominium Documents to be modified in any material respect without Agent’s prior consent which consent may not be unreasonably withheld or (iii) allow any new Manager (as defined in the Declaration) to be elected or appointed unless Assignor shall have caused such new Manager to deliver to Agent a duly executed Conditional Resignation of Manager in the form attached to the Loan Agreements.

Upon the full payment of the Indebtedness secured by the Building Loan Mortgage and Project Loan Mortgage, the Declarant’s Rights shall automatically be reassigned to Assignor by the Agent and this Assignment shall terminate.

For the purposes of this Assignment, “Declaration” shall mean the Declaration of Leasehold Condominium establishing a plan of Leasehold condominium ownership of premises located on the easterly side of Eighth Avenue between 40^th and 41^st Streets, New York, New York pursuant to Article 9-B of the Real Property Law of the State of New York, dated                    ,       , and recorded on                        ,         , in the Office of the City Register, New York County as CRFN#                           .

This Assignment shall be governed by the laws of the State of New York applicable to contracts solely performed in said State.

The rights and privileges of the Agent and Lenders hereunder shall inure to the benefit of their respective successors and assigns.  This Assignment shall be binding upon, and inure to the benefit of, Assignor and its successors and assigns.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of this               day of               , 200  .

ASSIGNOR:
FC LION LLC
	By:	FC 41st Street Associates, LLC, its managing member
	By:		RRG 8 South, Inc., its managing member
			By:
				Name:
				Title:

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State of New York            )
	ss.:
County of New York        )

On the               day of                        ,                , before me, the undersigned, personally appeared                                        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.

Notary Public

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Exhibit Q

Conditional Resignation of Managers

Q-1

CONDITIONAL RESIGNATION OF
MANAGER

                        ,       , 200  .

GMAC Commercial Mortgage Corporation, as Agent
100 South Wacker Drive, Suite 400
Chicago, Illinois 606606

Re:  New York Times Building Condominium, New York, New York

Ladies and Gentleman:

The undersigned,                              , being a Manager on the [Board of Managers of the Association] [FC Board of Managers](1)  (as such term is defined in the Condominium Declaration (as defined in that certain Building Loan Agreement and that certain Project Loan Agreement by and between The New York Times Building LLC , New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of any co-lenders as may exist from time to time (such Lenders collectively, “Lenders”) and GMAC Commercial Mortgage Corporation and its successors, as agent (including as successor to Initial Agent), for itself and on behalf of Lenders, each dated as of June    , 2004 (collectively the “Loan Agreements”; capitalized terms not defined herein shall have the meanings ascribed to them in the Loan Agreements))), hereby tenders his or her resignation as a Manager thereof.  Said resignation may not be rescinded or revoked by the undersigned so long as you are the holder of any mortgage (securing the Building Loan or the Project Loan) encumbering any of the FC Units(as defined in the Loan Agreements).  Notwithstanding the foregoing sentence, said resignation shall only be effective upon your acceptance thereof, with notice to the undersigned, at any time during the existence and continuance of an Event of Default.

Signature Position, if any

This is to certify that this Conditional Resignation of Manager was executed in my presence on the date hereof by the party whose signature appears above in the capacity, if any, indicated.

(1)Delete as appropriate.

Notary Public

My commission expires:

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Exhibit R

Form of Extension Loan Intercreditor Agreement

R-1

SUBORDINATION AND INTERCREDITOR AGREEMENT

THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Agreement”) is dated as of                 , 200   between GMAC COMMERCIAL MORTGAGE CORPORATION, as agent for itself and any other co-lenders as may exist from time to time (collectively, “Lenders”) (together with its successors and assigns, “Senior Lender”), a California corporation, having an office at 100 South Wacker Drive, Suite 400, Chicago, Illinois 60606, and THE NEW YORK TIMES COMPANY [or a wholly owned subsidiary thereof] (together with its successors and assigns, “Subordinate Lender”), a                 , having an office at 229 West 43rd Street, New York, NY  10036.

RECITALS:

A.The New York Times Building LLC (“Original Borrower”), New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent, for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, entered into that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of                           , 2004 (collectively, as the same may be revised, restated, amended or modified from time to time, the “Senior Loan Agreements”; capitalized terms used herein without definition shall have the meanings assigned to such terms in the Senior Loan Agreements), pursuant to which Lenders agreed to advance to Borrower loans in the original maximum aggregate principal amount of $320,000,000.00 (collectively, the “Senior Loan”).

B.Pursuant to the Senior Loan Agreements, Borrower executed that certain Ground Leasehold Building Loan Mortgage, Assignment of Leases and Security Agreement and Subordination Agreement and that certain Ground Leasehold Project Loan Mortgage, Assignment of Leases and Security Agreement and Subordination Agreement (collectively, the “Original Senior Loan Mortgages”) encumbering the Property more particularly described as Exhibit A hereto (the “Property”).

C.On the date hereof, the property encumbered by the Original Senior Loan Mortgages is being subjected to a condominium regime, and in connection therewith (a) the liens of the Original Senior Loan Mortgages are being spread to include the Severance Subleases and the Ground Lease is being released therefrom, (b) immediately thereafter, the Severance Sublease entered into by NYTC Member is being released from the lien of the Original Senior Loan Mortgages (so that thereafter the Original Senior Loan Mortgages will encumber only the Severance Subleases (the “FC Severance Subleases”) entered by FC Member (“Borrower”), (c) Borrower is assuming the obligations of Original Borrower under the Senior Loan Agreements and the other Loan Documents (collectively, the “Senior Loan Documents”) and (d) the Original Senior Loan Mortgages are being severed, so that four mortgages shall exist, and two of such

mortgages (the “Subordinate Mortgages”) are being assigned to Subordinate Lender to secure a loan (the “Subordinate Loan”) being made to Borrower in the principal amount of $                     .  The Original Senior Loan Mortgages, as so spread and released, are hereinafter referred to as the “Senior Mortgages”).

D.Subordinate Lender and Senior Lender desire to establish by this Agreement their respective rights and obligations between each other as well as the relative priorities of their rights and remedies with respect to the Senior Loan and the Subordinate Loan.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, Subordinate Lender and Senior Lender hereby agree as follows:

1.Consent and Estoppel of Senior Lender.  Senior Lender hereby acknowledges and consents to the making of the Subordinate Loan and to the encumbrance of the FC Severance Subleases by the Subordinate Mortgages and, subject to the terms and conditions of this Agreement, agrees that the Subordinate Loan and such encumbrances shall not be deemed to constitute a default under the Senior Loan Documents.

2.Subordination. (a)  Subordinate Lender hereby agrees that the Senior Obligations (as hereinafter defined), the rights, powers and privileges of the Senior Lender under the Senior Loan Documents and any lien or other security interest created in favor of Senior Lender (the real and personal property encumbered by such liens and security interests, the “Senior Loan Collateral”) shall be prior and superior to the Subordinated Obligations (as hereinafter defined), the rights, powers and privileges of the Subordinated Lender under the loan documents evidencing or securing the Subordinate Loan (collectively, the “Subordinate Loan Documents”) and any lien or other interests created in favor of Subordinated Lender, such priority, as between the Subordinate Lender and the Senior Lender, to give to the Senior Lender all of the rights, powers and privilege of a first priority secured creditor under the New York Uniform Commercial Code, New York real property law, other applicable law and otherwise in respect of the Senior Obligations, the Senior Loan Documents and the collateral on which Senior Lender has been granted a lien or security interest.  In furtherance of the foregoing, Subordinate Lender hereby covenants and agrees with Senior Lender that the lien of the Subordinate Mortgages are, and shall continue to be, subject and subordinate to the lien of the Senior Mortgages and to any extensions, renewals, consolidations, splitters and modifications thereof, and to all advances heretofore made or which hereafter may be made thereon; provided, that except for such advances as may be made pursuant to the terms of the Senior Loan Documents, the maximum aggregate amount of the Senior Loan shall not be increased.  Any assignment of rents or leases given in conjunction with the Subordinate Mortgages are and shall in all respects be subject and subordinate to the Senior Mortgages and to any assignment of rents or leases given in conjunction with the Senior Mortgages.  The foregoing shall apply notwithstanding the availability of other collateral to Senior Lender or the actual date and time of execution, delivery, recordation,

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filing or perfection of the Senior Mortgages or any assignment of leases related thereto or the Subordinate Mortgages or any assignment of leases related thereto, or the lien or priority of payment thereof, the perfection or non-perfection of any lien or security interest intended to be granted in favor of Senior Lender, and notwithstanding the fact that the Senior Loan or any claim for the Senior Loan is subordinated, avoided or disallowed, in whole or in part, under Title 11 of the United States Code (the “Bankruptcy Code”) or other applicable federal or state law.  In the event of a proceeding by or against Borrower or a member in Borrower for insolvency, liquidation, reorganization, dissolution, bankruptcy or other similar proceeding pursuant to the Bankruptcy Code or other applicable federal or state law (a “Reorganization Proceeding”), the Senior Loan shall include all interest accrued on the Senior Loan, in accordance with and at the rates specified in the Senior Loan Documents, both for periods before and for periods after the commencement of any of such Reorganization Proceeding, even if the claim for such interest is not allowed pursuant to applicable law.  “Senior Obligations” shall mean, collectively, the unpaid principal of and interest on the Senior Loan and all other obligations and liabilities of the Borrower Entities to the Senior Lender (including interest accruing at the then applicable rate after the maturity (including by acceleration) of the Senior Loan and interest accruing at the then applicable rate after the commencement of any Reorganization Proceeding, whether or not a claim for post-filing or post-petition interest is allowed in any such Proceeding), whether absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Senior Loan Documents, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to the Senior Lender that are required to be paid by the Borrower or any other party pursuant to the terms of the Senior Loan Documents).  In no event shall the term “Senior Obligations” include any of the Subordinated Obligations.  “Subordinated Obligations” shall mean, collectively, the unpaid principal of and interest on the Subordinated Loan and all other obligations and liabilities of the Borrower or any other party to the Subordinated Lender (including interest accruing at the then applicable rate after maturity (including by acceleration) of the Subordinated Loan and interest accruing at the then applicable rate after the commencement of any Reorganization Proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such Proceeding), whether absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Subordinated Loan Documents, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to the Subordinated Lender that are required to be paid by the Borrower or any other party pursuant to the terms of the Subordinated Loan Documents).  In no event shall the term “Subordinated Obligations” include any of the Senior Obligations.

(b)If any lien or security interest granted to Senior Lender under the Senior Loan Documents is or becomes, for any reason, unenforceable or unperfected, such unenforceability or lack of perfection shall not affect the relative rights, as between Senior Lender and Subordinate Lender, which are intended to be created by the Senior

3

Loan Documents, the Subordinate Lender and this Agreement.  Subordinate Lender will not contest the enforceability or perfection of the Senior Loan Documents.

(c)Subordinate Lender will, at Subordinate Lender’s expense and at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further actions, that may be reasonably necessary, or that Senior Lender may reasonably request, to protect any right or interest granted by this Agreement or to enable Senior Lender to exercise and enforce its rights and remedies under this Agreement.

(d)To the extent that Borrower makes a payment or payments to Senior Lender or Senior Lender receives any payment or proceeds of any security for the Senior Loan, which payment(s) or proceed(s) (or any part) are subsequently voided, invalidated, declared to be fraudulent conveyances or preferential transfers, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then, to the extent of the payment(s) or proceeds received by Senior Lender, the Senior Loan (or part intended to be satisfied) will be revived for all purposes of this Agreement and will continue in full force and effect, as if such payment or proceeds had not been received by Senior Lender.

3.Subordinate Loan Defaults.  Subordinate Lender shall send to Senior Lender simultaneously with the delivery of any of the following notices to Borrower, in accordance with the notice provisions set forth in Section 8 hereof, a copy of each written notice or writing or other written communication given by or on behalf of Subordinate Lender with respect to:  (a) any default or event of default under or pursuant to the Subordinate Loan Documents; (b) any documents regarding any agreement or proposed agreement with respect to any foreclosure under the Subordinate Loan Documents, including, but not limited to, any deed in lieu of foreclosure, or regarding any other remedial action to be taken by Subordinate Lender or any so-called “workout,” “standstill” or other arrangement made in lieu of the exercise of remedies; and (c) the exercise by Subordinate Lender of any other rights or remedies under the Subordinate Loan Documents.

4.Senior Loan Defaults.  (a)  Senior Lender shall send to Subordinate Lender simultaneously with the delivery of any of the following notices to Borrower, in accordance with the notice provisions set forth in Section 8 hereof, a copy of each written notice or writing or other written communication given by or on behalf of such Senior Lender with respect to: (i) any default or event of default under or pursuant to the Senior Loan Documents; (ii) any documents regarding any agreement or proposed agreement with respect to any foreclosure or any other remedial action or work-outs, standstills, etc. with respect to the Senior Loan Collateral, including, but not limited to, any deed in lieu of foreclosure, or regarding any other remedial action to be taken by Senior Lender or any so-called “workout,” “standstill” or other arrangement made in lieu of the exercise of remedies; and (iii) the exercise by Senior Lender of any other rights or remedies under the Senior Loan Documents (collectively herein referred to as a “Senior Lender Notice”).

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(b)Notwithstanding anything to the contrary contained in the Senior Loan Documents, (i) Subordinate Lender shall have the right, but not the obligation, to cure any default under the terms of any of the Senior Loan Documents which can be cured with the payment of a sum of money (a “Monetary Default”) (which cure must include all default interest, late charges, protective advances and reimbursable sums (including reasonable attorneys’ fees and disbursements) then due and owing to Senior Lender (collectively, the “Cure Amount”)), on or before the tenth (10th) day after Senior Lender has given the first Senior Lender Notice of such Monetary Default; provided, however, that the cure rights of Subordinate Lender shall not apply to any Monetary Default (or series of Monetary Defaults) that have been (or continue to be) cured by Subordinate Lender more than three (3) consecutive times in any twelve (12) month period and, in the event that Subordinate Lender and/or Borrower successfully cures such default within such ten (10) days, Senior Lender shall not commence any acceleration, foreclosure action or other proceeding against the Senior Loan Collateral, and any amounts expended or paid by Subordinate Lender to cure such Monetary Default shall be deemed permitted advances under the Subordinate Loan Documents and under this Agreement without the further consent of Senior Lender; and (ii) in the event a Monetary Default becomes an Event of Default, and in lieu of the cure right set forth in clause (i) of this subparagraph (b), Subordinate Lender shall have the right, but not the obligation, on or before the forty-fifth (45th) day after Senior Lender has given a notice of the occurrence of such Event of Default, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the Cure Amount plus the Exit Fee (as defined in the Side Letter re: Fees) (which Exit Fee shall be, for purposes of this Agreement, deemed payable at the time of such assignment) (collectively, the “Owed Amount”) (but without any prepayment premium or penalty) together with any reasonable attorneys’ fees and disbursements incurred by the Senior Lender in connection with such assignment.

(c)Notwithstanding anything to the contrary set forth in the Senior Loan Documents, if the default so specified in a Senior Lender Notice is the failure of Borrower to observe or perform any covenant, promise or agreement in any Senior Loan Document, which default cannot be cured by the payment of money, Subordinate Lender shall have the right, but not the obligation, (i) to cure such default by observing or performing such covenant, promise or agreement on or before the twentieth (20th) day after Senior Lender has given the First Senior Loan Notice of such default, or (ii) in the event such default becomes an Event of Default, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the Owed Amount (but without any prepayment premium or penalty) together with any reasonable attorneys’ fees and disbursements incurred by the Senior Lender in connection with such assignment, on or before the forty-fifth (45th) day after the expiration of the Cure Period (as hereinafter defined).  If the default is not susceptible of cure within such twenty (20) day period, Subordinate Lender shall have such additional time as is necessary, but in no event more than ninety (90) days (such time period, the “Cure Period”), in order to effect such cure on the condition that Subordinate Lender promptly commences and diligently pursues such cure to completion. If the curing of such default is successfully completed within the Cure Period, Senior Lender shall not commence any acceleration, any foreclosure action

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or proceeding against the Senior Loan Collateral; provided, however, that from and after the scheduled maturity date of the Senior Loan (without giving effect to any extension period if such extension right was not exercised) Senior Lender may initiate foreclosure or exercise any of its other remedies.

(d)If the default specified in a Senior Lender Notice is not cured in accordance with the provisions of either subparagraph 4(b) or (c) hereinabove, Senior Lender shall be entitled to exercise its acceleration and other rights and remedies under the Senior Loan Documents.

(e)Following the occurrence and during the continuation of a Noticed Default relating to a Monetary Default or any other Event of Default, Subordinate Lender shall not accept any payment (whether from Borrower or any other person or entity) with respect to the Subordinate Loan before the Senior Loan has been irrevocably paid in full in cash.  In the event that Subordinate Lender receives, directly or indirectly, any payment with respect to the Subordinate Loan in violation of the foregoing sentence, Subordinate Lender will receive and hold the same in trust, as trustee, for the benefit of Senior Lender and will promptly deliver the same to Senior Lender in precisely the form received (except for the endorsement or assignment without recourse and without representation or warranty by Subordinate Lender to Senior Lender or its order where necessary) for application to the Senior Loan.

(f)Without limiting Senior Lender’s rights, benefits, remedies and privileges under this Agreement or the Senior Loan Documents, Senior Lender may, at any time, in its sole discretion, take all or any of the following actions without releasing Subordinate Lender from its obligations hereunder or incurring any liability to Subordinate Lender: (i) renew, extend, accelerate (on the terms set forth in the Senior Loan Documents) or postpone the time of payment of all or any portion of the Senior Debt or grant any indulgence with respect to the Senior Loan; (ii) compromise or settle the Senior Loan; and (iii) waive, substitute, surrender, exchange or release any of the security provided by the Senior Loan Documents; provided, however, that the maximum aggregate amount of the Senior Loan shall not be increased.

5.Standstill.  Until the Senior Loan is paid in full:

(a)Subordinate Lender shall waive any rights it may have pursuant to any Subordinate Loan Document to approve or to consent to any action of Borrower if Senior Lender shall have approved or consented to such action, and in the event that Senior Lender has no approval or consent rights over an action by Borrower, Subordinate Lender hereby waives any approval or consent rights it may have over any such action;

(b)Subordinate Lender shall not, without the prior consent of Senior Lender, take any Enforcement Action (as hereinafter defined). For the purposes of this Agreement, the term “Enforcement Action” shall mean, with respect to the Subordinate Loan Documents, the acceleration of all or any part of the Subordinate Loan, any foreclosure proceedings, the exercise of any power of sale, the acceptance by the holder of the Subordinate Mortgages of a deed or assignment in lieu of foreclosure, the obtaining

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of a receiver, the seeking of default interest or late charges (provided, however, that nothing shall prevent the accrual of such default interest or late charges pursuant to the terms of the Subordinate Loan Documents), the taking of possession or control of the Property, the suing on any of the Subordinate Loan Documents or any guaranty or other obligation contained in the Subordinate Loan Documents, the exercising of any banker’s lien or rights of set-off or recoupment, the application of any security for the Subordinate Loan against the Subordinate Loan, the commencement of any bankruptcy, reorganization or insolvency proceedings against Borrower or any guarantor under any federal or state law, or the taking of any other enforcement action against any guarantor, the Borrower or the Property; provided, however, that if Senior Lender accelerates the maturity of Borrower’s indebtedness secured by the Senior Loan Documents, then Subordinate Lender may accelerate the indebtedness secured by the Subordinate Loan Documents (but may not take any further action without Senior Lender’s consent as aforesaid);

(c)In the event (i) the Senior Loan becomes due or is declared due and payable prior to its stated maturity, (ii) Subordinate Lender receives any payment with respect to the Subordinate Loan contrary to the terms of this Agreement or the Subordinate Loan Documents, (iii) an Event of Default under and as defined in the Senior Loan Agreements has occurred and is continuing, or (iv) of a Reorganization Proceeding, then, any payment or distribution of any kind or character, whether in cash, property or securities which, but for these subordination provisions, shall be payable or deliverable with respect to any or all of the Subordinate Loan, shall be paid forthwith or delivered directly to Senior Lender for application to the payment of the Senior Loan.  Any such payment or distribution received by Subordinate Lender (notwithstanding the preceding sentence of this paragraph) shall be segregated from the funds and property of Subordinate Lender and held in trust by Subordinate Lender for the benefit of, and shall be forthwith be paid over or delivered in the same form as so received (with any necessary endorsements) by Subordinate Lender to Senior Lender for application to the payment of the Senior Loan.  Senior Lender may, but shall not be obligated to, demand, claim and collect any such payment or distribution that would, but for these subordination provisions, be payable or deliverable with respect to the Subordinate Loan.  In the event of the occurrence of (i), (ii), (iii) or (iv) above and until the Senior Loan shall have been fully paid and satisfied and all of the obligations to Senior Lender have been performed in full, no payment shall be made to or accepted by Subordinate Lender in respect of the Subordinate Loan;

(d)Subordinate Lender retains any right it may have to request that a final judgment in a foreclosure of the Senior Mortgages direct payment to Subordinate Lender of all or any part of the indebtedness secured by the Subordinate Mortgages from the proceeds of the foreclosure sale of the Senior Mortgage to the extent that the proceeds of such foreclosure sale are in excess of any amounts necessary to satisfy the Senior Loan;

(e)Subordinate Lender shall not modify, waive or amend any of the terms or provisions of the Subordinate Loan Documents without the prior consent of Senior Lender.  In addition, Subordinate Lender shall not pledge, assign, hypothecate,

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transfer, convey, sell or grant participation rights in the Subordinate Loan or any interest in the Subordinate Loan (other than to an Affiliate) without the prior consent of Senior Lender;

(f)Subordinate Lender shall not collect payments for the purpose of escrowing taxes, assessments or other charges imposed on the Property or insurance premiums due on the insurance policies required under the Senior Mortgages or the Subordinate Mortgage if Senior Lender is collecting payments for such purposes, however, Subordinate Lender may collect payments for such purposes if Senior Lender is not collecting the same, provided such payments shall be held in trust by Subordinate Lender to be applied only for such purposes;

(g)Notwithstanding anything to the contrary contained in the Senior Loan Documents, during the continuance of a default by Borrower which can be cured by the payment of money under the Subordinate Loan Documents beyond any applicable notice or grace period, if the Senior Loan Documents are not then in default with respect to the payment of principal and interest, Subordinate Lender shall have the right, but not the obligation, at any time prior to the giving by Senior Lender of a Senior Lender Notice, to obtain an assignment from the Senior Lender of the Senior Loan Documents upon payment in full of the Owed Amount together with any reasonable attorney’s fees and disbursements incurred by the Senior Lender in connection with such assignment; and

(h)To the extent that Subordinate Lender acquires any right under Section 361, 363 or 364 of the Bankruptcy Code, Subordinate Lender hereby agrees not to assert such rights without the prior consent of Senior Lender.  In the event of the occurrence of a Reorganization Proceeding, if proper proofs of claim and other pleadings and motions are not filed by Subordinate Lender at least thirty (30) days prior to the expiration date for such pleadings, Senior Lender shall have the right, upon at least ten (10) days prior notice to Subordinate Lender, to file appropriate proofs of claim and other pleadings or motions on behalf of Subordinate Lender.  The Subordinate Lender appoints Senior Lender as its attorney-in-fact for such purposes (which appointment, being coupled with an interest, is irrevocable until the termination of this Agreement).

6.Waiver of Rights of Subrogation.  Until such time as the Senior Loan is paid in full, the Subordinate Lender shall not exercise any right of subrogation that the Subordinate Lender may have or obtain pursuant to the exercise of any right or remedy in connection with the Subordinate Loan.  Without limiting the generality of the foregoing, the Subordinate Lender agrees not to acquire, directly or indirectly, by subrogation or otherwise, any lien, estate, right or other interest which is or may be prior in right to the Senior Mortgages, including, without limitation, advances for real estate taxes.

7.Insurance; Taking and Condemnation.  Subordinate Lender hereby assigns and transfers to Senior Lender:

(a)all of Subordinate Lender’s right, title, interest or claim, if any, in and to the proceeds of all policies of insurance covering the Property (or any portion

8

thereof) with respect to damages arising from the occurrence of a fire or other casualty for application or disposition thereof in accordance with the terms, conditions and provisions of the Senior Loan Documents; and

(b)all of Subordinate Lender’s right, title, interest or claim, if any, in and to all awards or other compensation made for any taking or condemnation of any part of the Property (or any portion thereof) for application or disposition thereof in accordance with the terms, conditions, and provisions of the Senior Loan Documents.

8.Notices. All notices, requests, demands, consents and approvals under this Agreement shall be in writing, and shall be hand delivered, sent by registered U.S. Mail, return receipt requested, or sent by overnight courier service, designated for next-day delivery, as follows:

If to Senior Lender:

GMAC Commercial Mortgage Corporation

100 South Wacker Drive – Suite 400

Chicago, Illinois 60606

Attn:  Vacys R. Garbonkus

With a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attn:  Harris B. Freidus, Esq.

If to Subordinate Lender:

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036

Attn:  Mr. David A. Thurm

With a copy to:

c/o The New York Times Company

229 West 43rd Street

New York, New York  10036

Attn:Solomon B. Watson, IV, Esq.,
General Counsel

and to:

Piper Rudnick, LLP

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1251 Avenue of the Americas

New York, New York 10020

Attn:  Martin D. Polevoy, Esq.

Any party hereto may designate a different address to which or person to whom notices or demands shall be directed by written notice given in the same manner and directed to the other parties at the address hereinabove set forth.  Any notice given hereunder shall be deemed received one (1) Business Day after delivery to an overnight delivery service designated for next-day delivery, three (3) Business Days after mailing if sent by registered U.S. mail return receipt requested, or when actually received if received on a Business Day (and otherwise on the next Business Day) if sent by hand delivery.

9.Representations, Warranties and Covenants.

(a)Subordinate Lender represents and warrants to Senior Lender that: (i) this Agreement has been duly authorized, executed and delivered on behalf of Subordinate Lender; (ii) Subordinate Lender is the sole legal and equitable holder and owner of the Subordinate Loan Documents, (iii) the Subordinate Loan Documents are the only agreements or instruments creating or purporting to create in favor of Subordinate Lender a lien encumbering the Property (and Subordinate Lender agrees that, so long as any portion of the Senior Loan remains unpaid, Subordinate Lender shall not claim any rights under, or the benefit of, any other agreement or instrument creating or purporting to create in favor of Subordinate Lender a security interest in the Property prior in lien or right of payment to the Senior Loan), (iv) the Subordinate Lender owns the Subordinate Loan, and (v) the aggregate principal indebtedness secured by the Subordinate Loan Documents is $                   and the maturity date is                   .

(b)Subordinate Lender acknowledges that Senior Lender has made no warranties or representations with respect to the due execution, legality, validity,  completeness or enforceability of the Senior Loan Documents or the collectibility of the Senior Loan.  Senior Lender will be entitled to manage and supervise the Senior Loan in accordance with its usual practices, modified from time to time as Senior Lender deems appropriate under the circumstances, without regard to the existence of any rights that Subordinate Lender may now or in the future have in or to the Senior Loan Collateral.  Senior Lender will have no liability to Subordinate Lender for, and Subordinate Lender waives, any claim which it may now or in the future have against Senior Lender arising out of: (i) any and all actions which Senior Lender, in good faith, takes or omits to take with respect to the Senior Loan Documents or the collection of the Senior Loan or the valuation, use, protection or release of any collateral (including, without limitation, actions or inactions of Senior Lender with respect to the creation, perfection or continuation of liens or security interests in its collateral, the occurrence of an Event of Default, the foreclosure on, sale, release of, depreciation of, or failure to realize on, any of its collateral, and the collection of any claim for all or any part of the Senior Loan from any account debtor, guarantor or other party); (ii) Senior Lender’s election, in any Reorganization Proceeding, of the application of Section 1111 (b)(2) of the Bankruptcy Code; or (iii) any borrowing or grant of a security interest by Borrower or a member in Borrower in a Reorganization Proceeding under Section 364 of the Bankruptcy Code.

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Notwithstanding anything to the contrary contained herein, Subordinate Lender does not waive any claim it may have against Senior Lender arising out of Senior Lender’s alleged breach hereof.  Subordinate Lender hereby waives any rights it may have to require a marshalling of the assets of Borrower.

(c)Senior Lender shall have no duty to advise Subordinate Lender of information known to Senior Lender regarding Borrower’s business, financial or other condition or the risk of non-payment of the Senior Loan. Upon written request made by Subordinate Lender or Senior Lender from time to time, but not more often than once in any calendar year, Senior Lender or Subordinate Lender, as the case may be, will furnish certificates indicating the principal, interest and other sums, if any, due under the Senior Loan Documents or Subordinate Loan Documents, as the case may be, and whether or not, to the best of Senior Lender’s knowledge or Subordinate Lender’s knowledge, an event of default (or event which, with notice or the passage of time, would constitute an event of default) has occurred.

10.No Third Party Beneficiary.  The terms of this Agreement are for the sole and exclusive protection and use of Subordinate Lender and any holders of the Subordinate Loan Documents and the Senior Lender and any holders of the Senior Loan Documents.  Neither Borrower, nor any other person or party, shall be a third-party beneficiary hereunder, and no provision hereof shall operate or inure to the use and benefit of Borrower or any such other person or party.

11.Construction of this Agreement.  This Agreement is for the sole benefit of Subordinate Lender and Senior Lender and shall be binding upon Subordinate Lender and Senior Lender, and all of their respective affiliates, participants, trustees, receivers, successors and assigns.  Nothing herein shall be deemed to modify, limit or in any way affect (a) the obligations of Borrower to Senior Lender under Senior Loan Documents, or (b) the obligations of Borrower to Subordinate Lender under the Subordinate Loan Documents.

12.Headings; Severability.  The section headings herein are for convenience of reference only and shall not affect the construction hereof.  If any provision hereof is prohibited, invalid or unenforceable in any jurisdiction, or as to any fact or circumstance, the same shall not affect the remaining provision hereof nor affect the validity or enforceability of such provision in any other jurisdiction or as to other facts or circumstances.

13.Jurisdiction and Venue; Waiver of Jury Trial.  Each of the parties hereby irrevocably submits to the jurisdiction of any federal or state court sitting in State of New York over any suit, action or proceeding arising out of or relating to this Agreement and covenants and agrees that such courts shall have exclusive jurisdiction over any such suit, action or proceeding.  Each party irrevocably waives, to the fullest extent permitted under applicable law, any objections it may now or hereafter have to the venue of any suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum.

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14.Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

15.Modification.  This Agreement may not be amended or modified except by an agreement in writing executed by all parties to this Agreement, and no provision of this Agreement may be waived except by a waiver in writing signed by the party against whom the waiver is asserted.

16.Business Days.  The terms “Business Day” and “Business Days” as used in this Agreement shall mean any day other than a Saturday, a Sunday or a Federal holiday.

17.Counterparts.  This Agreement and the consent hereto may be executed in counterparts, all of which, taken together, shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart.

18.Attorneys’ Fees.  In the event of any lawsuit or other legal proceeding arising from or relating to this Agreement, the prevailing party shall be entitled to an award of its actual reasonable attorneys’ fees and related costs and expenses.

19.Specific Performance.  In addition to any other remedies available under any applicable law, each party hereto shall be entitled to specific performance of this Agreement, and each party hereby irrevocably waives any defense to such specific performance based on the adequacy of any remedy at law.

20.Waiver of Jury Trial. SUBORDINATE LENDER AND SENIOR LENDER WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, WITH RESPECT TO, IN CONNECTION WITH OR ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH.

21.Termination. The following events are referred to herein as “Termination Events”:  (a) complete payment and satisfaction in full of the Senior Loan; and (b) complete payment and satisfaction in full of the Subordinate Loan.  Upon the occurrence of a Termination Event, this Agreement shall automatically terminate, and the provisions herein shall automatically be of no further force and effect.  Promptly upon request by Subordinate Lender or Senior Lender, the other party hereto shall execute any reasonable documents and/or instruments confirming any such termination.

[signature page follows]

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WITNESS the execution hereof as of the day and date first above written.

SENIOR LENDER:
GMAC COMMERCIAL MORTGAGE CORPORATION, as agent
By:
	Name:
	Title:
SUBORDINATE LENDER:
By:
	Name:
	Title:

State of New York	)
:	SS.:
County of New York	)

On the       day of                  , 200    before me, the undersigned, a Notary Public in and for said State, personally appeared (Person Appearing), (Personally Proved) to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Notary Name)

Notary Public

My commission expires: (expiration)

State of New York	)
:	SS.:
County of New York	)

On the       day of                 , 200   before me, the undersigned, a Notary Public in and for said State, personally appeared (Person Appearing), (Personally Proved) to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

(Notary Name)

Notary Public

My commission expires: (expiration)

Exhibit A

The Property

Exhibit S

Security Deposit Accounts Agreement

S-1

SECURITY DEPOSIT ACCOUNTS AGREEMENT

THIS SECURITY DEPOSIT ACCOUNTS AGREEMENT, dated as of                    , 200   (this “Agreement”), among [           ], a                                      having an address at                                        (“Bank”), THE NEW YORK TIMES BUILDING LLC, a New York limited liability company (“Borrower”) and FC LION LLC, a New York limited liability company (“FC Member”), each having an address at One MetroTech Center North, Brooklyn, New York 11201 (Borrower and FC Member collectively, the (“Pledgors”) and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation and any successors 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 (such lenders collectively, including any successors and assigns, “Lenders” and each individually, a “Lender”).

W I T N E S S E T H:

WHEREAS, Borrower, New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, are entering into that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of the date hereof (as the same may be revised, restated, amended or modified, the “Loan Agreements”; capitalized terms not otherwise defined herein shall have the respective meanings specified in the Loan Agreements), pursuant to which the Lenders are making the Loans to Borrower; and

WHEREAS, one of the conditions precedent to the obligations of the Lenders under the Loan Agreements is that the Pledgors provide for the payment of Tenant security deposits in respect of any Lease into one or more accounts established by Pledgors with Bank which account(s) will be maintained for the benefit of Agent and Lenders.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1.  Accounts.  (a) This Agreement applies to the accounts identified below that have been established
     at Bank by the applicable Pledgor for the benefit of Agent and Lenders:

Description of Accounts	Account Numbers
Account Name: The New York Times Building LLC Security Deposit Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:
Account Name: FC Lion LLC Security Deposit Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:

The accounts identified above shall be collectively referred to herein as the “Security Deposit Accounts”.  No Pledgor shall cancel or cause any of the Security Deposit Accounts to be canceled, nor shall any Pledgor establish any other account with Bank or any other bank, mutual fund, investment banking firm or similar institution into which any Rents (other than security deposits) shall be deposited.

(b)(i)  Each Pledgor shall deposit, or cause to be deposited, in the applicable Security Deposit Account, all security deposits received by such Pledgor (or any leasing or managing agent) under or in respect of any Lease within two (2) Business Days of receipt thereof.  All such deposits shall be made in the lawful currency of the United States of America.  If any such security deposit is in the form of a letter of credit, such letter of credit (or any replacement thereof) must be delivered to Bank within the same time period, must be an irrevocable, standby letter of credit in form and content and from an institution reasonably acceptable to Agent and must be payable to Agent, provided that any such letter of credit may be payable to the applicable Pledgor if such letter of credit is also freely assignable to Agent and is actually assigned to Agent prior to or simultaneously with its delivery to Bank.  To the extent required by the applicable Lease, each applicable Pledgor shall require each applicable Tenant to maintain in effect any such letter of credit (or any replacement thereof) during the term of the applicable Lease or replace such letter of credit with a cash deposit.  If any such letter of credit is not so maintained or replaced within fifteen (15) days prior to the expiration thereof, Agent shall have the right, in addition to any other remedies available to Agent, to require Bank to draw upon such letter of credit.  Upon receipt, Bank shall send copies of such letters of credit to Agent.

(ii)In the absence of instructions from a Pledgor as to which account any amounts shall be deposited to, Bank shall notify the Pledgors and request such instructions, and in the meantime, Bank may refuse to accept delivery of such amounts until such instructions are received from such payor or Pledgor.

(c)The applicable Pledgor shall provide the notice set forth on Exhibit A attached hereto to each party to a Lease as each Lease is executed (or, if such Lease has previously been executed, then immediately).  The applicable Pledgor shall obtain the acknowledgment of its Tenants to such notice. If the applicable Pledgor fails to provide any such notice or obtain such acknowledgement, or if any Event of Default has

2

occurred and is continuing, Agent shall have the right (and without prejudice to Agent’s rights with respect to such failures or Event of Default ) to direct such parties to remit all security deposits directly into the applicable Security Deposit Account by issuing a notice as Agent deems appropriate.  Each of the Pledgors hereby grants to Agent a power of attorney to sign and deliver the foregoing notices, which power of attorney shall be deemed coupled with an interest and irrevocable until the Indebtedness has been paid in full, and each Pledgor directs all applicable Tenants (and any successor to the interest of any such Tenant) under the applicable Leases to follow any such instructions given by Agent, notwithstanding any contrary instructions from any Pledgor and without any obligation or right on the Tenant’s part to determine the actual existence of an Event of Default or other event claimed by Agent as the basis for Agent’s right to send such notice.

(d)No modifications or revocations of any notice given by any Pledgor pursuant to clause (c) above are permitted without Agent’s prior written approval, which approval shall not be unreasonably withheld or delayed.  Upon Agent’s request from time to time, each Pledgor will certify in writing that it has sent a notice to all applicable Tenants or otherwise demonstrate to Agent’s satisfaction that notices have been issued to all applicable Tenants.

(e)Upon Agent’s request from time to time, each Pledgor shall provide a written statement to Agent itemizing the amounts deposited in its Security Deposit Account for the period covered by Agent’s request and such supporting documentation as Agent reasonably may require.

(f)Each of the Pledgors represents and warrants that (i) this Agreement creates a valid, first priority security interest in all of its rights in the Collateral (as defined below), (ii) as of the date hereof, except for the security interest created by this Agreement, the Security Deposit Accounts are free from any Lien, or other right, title and interest of any other person or party and (iii) the exact legal name and state of formation of each Pledgor are as set forth on page one hereof.  Except as permitted hereunder, no Pledgor shall sell, transfer, encumber, hypothecate or otherwise dispose of, or grant any option with respect to, the Collateral, or create or permit to exist any Lien upon the Collateral.

(g)The Security Deposit Accounts shall not be evidenced by a certificate of deposit, passbook or other instrument.

(h)Account balances shall accrue interest at a savings account rate (or a money market rate, but only to the extent that the Security Deposit Accounts can remain “deposit accounts” (as defined in the UCC) notwithstanding the giving of a money market rate) for accounts denominated in U.S. dollars and interest shall be credited by Bank to the applicable Security Deposit Account not later than the fifth (5th) Business Day of the month immediately following the month for which accrued interest is being credited.  Interest accruing on each of the Security Deposit Accounts shall be periodically added to the principal amount of the corresponding Security Deposit Account.

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(i)Each Pledgor acknowledges and agrees that neither it, nor any other party claiming on behalf of, or through, it, shall have any right, title or interest, whether express or implied, in the Security Deposit Accounts, or to withdraw or make use of any amounts from any Security Deposit Account except to the extent expressly permitted by Section 5 hereof.

2.  Pledge of the Collateral.

(a)To secure the full payment of the Indebtedness and the performance of the Obligations, each Pledgor hereby sells, conveys, assigns, transfers and grants a first priority continuing security interest in, pledges and sets over unto Agent, for Agent’s own benefit and the benefit of Lenders, all of its right, title and interest, whether now owned or hereafter acquired or arising,  in and to each Security Deposit Account, all interest, dividends, credits and proceeds relating thereto, all monies, checks and other similar instruments held or deposited therein and all of Borrower’s rights under any letters of credit, including all rights to proceeds of any letters of credit (collectively, the “Collateral”):

(b)Bank acknowledges that this Agreement constitutes notice of Agent’s security interest in the Collateral and hereby acknowledges and consents thereto.

(c)Pledgors hereby authorize Agent to file UCC financing statements describing the Collateral and evidencing and perfecting the security interest in the Collateral granted to Agent pursuant to this Agreement and to file any other UCC financing statements reasonably necessary or advisable to accomplish the purposes of this Agreement.

3.  Control of the Collateral.  If Agent delivers to Bank a Notice of Exclusive Control (as hereinafter defined) and until such time as such Notice of Exclusive Control is rescinded in writing by Agent, Bank will comply with any directions originated by Agent concerning the Security Deposit Accounts and the other Collateral without further consent by any Pledgor.  Agent may exercise any rights and powers under or in connection with this Agreement and the Collateral without further consent of any of the Pledgors.  Subject to the foregoing, Bank shall also comply with entitlement orders or other directions concerning the Security Deposit Accounts and the other Collateral originated by any of the Pledgors or their Authorized Representatives (as defined in Section 5(b) below), until such time as Agent delivers a written notice to Bank (with copies to Pledgors) that Agent is thereby exercising exclusive control over the Security Deposit Accounts and the other Collateral.  Such notice is referred to herein as the “Notice of Exclusive Control”.  After Bank receives a Notice of Exclusive Control (and so long as such Notice of Exclusive Control has not been rescinded in writing by Agent), it will cease complying with entitlement orders or other directions concerning the Security Deposit Accounts and the other Collateral originated by any Pledgor or any of its Authorized Representatives and will comply solely with entitlement orders or other directions concerning the Security Deposit Accounts and the other Collateral originated

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by Agent.  As between Pledgors and Agent, Agent agrees to give a Notice of Exclusive Control only if a Noticed Default or an Event of Default has occurred and is continuing.

4.  Agency.  (a) Agent hereby appoints Bank as Agent’s agent, bailee and pledgee and pledgee-in-possession for the Collateral, and Bank, by its execution and delivery of this Agreement, hereby accepts such appointment and agrees to be bound by the terms of this Agreement.  Each of the Pledgors hereby agrees to such appointment of Bank.

(b)Bank agrees that all cash and other property held in the Security Deposit Accounts shall be segregated from all other cash and property held by Bank and shall be identified as being held in trust pursuant to this Agreement.  Segregation will be accomplished by appropriate identification of the cash or other property held in trust on the books and records of Bank.  Bank agrees not to commingle the amounts held in, or designated for deposit in, the Security Deposit Accounts with any other amounts held on behalf of Agent, Pledgors or any other party.  Agent agrees that Bank may commingle security deposits received with respect to different Tenants in a single account provided that Bank is able to separately track interest accruing to each Tenant.

5.  Withdrawals.  (a)  So long as a Notice of Exclusive Control is not in effect, and as between Pledgors and Agent, and without any right, duty or obligation on the part of Bank to verify compliance by Pledgors with this Section 5(a), Pledgors may utilize funds in the Security Deposit Accounts, upon not less than five (5) Business Days’ prior written confirmation from the applicable Pledgor to Agent specifying the amount of funds to be disbursed and certifying that such Pledgor is entitled, by the applicable Lease and by law, to the amounts so requested or the proceeds of the applicable letter of credit.  Upon receipt of such certification, Agent shall instruct Bank to deliver and apply such funds in accordance with the terms of such certification (or Agent shall draw upon the applicable letter of credit).  The applicable Pledgor shall provide evidence to Agent, on Agent’s request, of the proper application of such funds.  Upon the delivery of a Notice of Exclusive Control, the rights conferred upon the Pledgors pursuant to this Section shall immediately and automatically terminate without further action being required of Agent, Bank or any Pledgor.

(b)Each Pledgor agrees to designate a limited number of persons who have authority to issue or deliver withdrawal, transfer or disbursement instructions to Bank (each such person, an “Authorized Representative”).  The initial list of Authorized Representatives for each Pledgor and samples of their respective genuine signatures is attached hereto as Exhibit B (“Certificate of Authority”).  Each of the Pledgors may, from time to time, amend its then current list of Authorized Representatives by sending an amendment to, or replacement of, the Certificate of Authority, in each case to be substantially in the form of Exhibit B and signed by a Secretary, Assistant Secretary or other duly authorized officer of the applicable Pledgor.  Bank will be authorized to rely and act upon all instructions given or purported to be given by an Authorized Representative of a Pledgor, provided that (i) in the case of written instructions, such written instructions bear the original signature, facsimile

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signature or electronic signature of an Authorized Representative which resembles the specimen signature for such Authorized Representative on file with Bank; and (ii) in the case of electronically transmitted instructions, the person providing the instruction uses a security code or other authentication procedure provided by Bank for such Pledgor’s use.  Unless an expiration date is expressly stated in the Certificate of Authority, all authorizations shall continue in full force and effect until canceled or superseded by a subsequent Certificate of Authority received by Bank with reasonable opportunity to act thereon.

6.  Bank’s Obligations with respect to the Collateral.

(a)The parties agree that items deposited in the Security Deposit Accounts shall be deemed to bear the valid and legally binding endorsement of the payee and to comply with all of Bank’s requirements for the supplying of missing endorsements, now or hereafter in effect.  As between Pledgors and Agent, any deposit made by or on behalf of any Pledgor into the applicable Security Deposit Account shall be deemed deposited into such Security Deposit Account when the funds in respect of such deposit shall become collected funds.

(b)Notwithstanding anything to the contrary herein, each of the Pledgors acknowledges that it is responsible for monitoring the sufficiency of funds deposited its respective Security Deposit Account and that each is liable for any deficiency in available funds necessary to cover disbursements and fees to Bank, irrespective of whether it has received any account statement, notice or demand from Agent or Bank. If on any day there are insufficient amounts in the applicable Security Deposit Account necessary to cover disbursements and fees to Bank, the applicable Pledgor shall immediately deposit into the applicable Security Deposit Account, without the need for any notice or demand from Agent or Bank, the amount of such deficiency in immediately available funds.

(c)Availability of cash credited to the applicable Security Deposit Account shall be subject to checks, drafts or other demand instruments having cleared deposit.  If withdrawal instructions for wire transfers are received (i) at or before 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the same Business Day, or (ii) after 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the next Business Day.

7.  No Other Assignments.  Bank represents and warrants to Agent that no other notices of control, assignment, grant of security interest or Lien of any kind in respect of the Collateral are reflected in Bank’s records concerning the Collateral.  Bank hereby agrees that any such notice of control, assignment, grant of security interest, or Lien of any kind in respect of the Collateral that it receives, including the notice conferred by this Agreement, will be recorded in Bank’s records concerning the Collateral and Bank will immediately notify Agent upon receipt thereof.  Bank agrees not to allow any person or entity other than Agent and Bank (to the extent permitted in

6

Section 12 below) to withdraw amounts from the Security Deposit Accounts (it being acknowledged, however, that Pledgors have the rights to utilize funds in the Collateral Accounts to the extent provided in Sections 3 and 5 hereof).

8.  Actions With Respect to the Collateral Following an Event of Default.

(a)At all times after Bank’s receipt of a Notice of Exclusive Control, and until Bank has received notice from Agent that such Notice of Exclusive Control has been rescinded, Bank shall solely follow the written instructions of Agent as to the Collateral, including amounts from time to time on deposit in the Security Deposit Accounts, without further consent of any of the Pledgors, and Agent shall be irrevocably entitled to exercise any and all rights and remedies in respect of or in connection with the Collateral provided to Agent under the Loan Agreements or any other Security Document or otherwise available in equity or under applicable law, without further consent or instructions from any of the Pledgors.  Each of the Pledgors agrees that Bank may act as the agent of Agent in exercising, as to any funds or other property from time to time consisting of Collateral, any rights of set-off provided by the Loan Agreements or any other Loan Document or otherwise available in equity or under applicable law, without further consent or instructions from any Pledgor.

(b)Upon the occurrence and during the continuance of an Event of Default, Agent may, without notice of any kind, except for notices required by law which may not be waived (in addition to any other rights or remedies under this Agreement, at law or in equity or otherwise, but subject to the provisions of applicable law) retain for its own account or otherwise sell or dispose of all or any portion of the Collateral in one or more public or private sales, and, in each case, apply such proceeds in accordance with the Loan Documents.  In addition to the rights, powers and remedies granted to it under this Agreement and in any other Loan Document, Agent shall have all the rights, powers and remedies available at law or in equity, including, without limitation, the rights and remedies of a secured party under the applicable Uniform Commercial Code.  To the extent permitted by law, each of the Pledgors waives presentment, demand, protest and all notices of any kind and all claims, damages and demands it may acquire against the Agent or any Lender arising out of the exercise by them of any rights hereunder, except for claims, damages or demands arising from the gross negligence or willful misconduct of Agent or any Lender.

(c)Effective during the continuance of an Event of Default, each Pledgor hereby irrevocably constitutes and appoints Agent and any officer or agent of Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of each Pledgor and in the name of each Pledgor or in Agent’s own name, from time to time in Agent’s discretion, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, including, without limitation, any financing statements, endorsements, assignments or other instruments of transfer.

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9.  Information.  (a)  Bank shall provide to the applicable Pledgor and Agent a periodic statement setting forth all deposits, withdrawals, and account service charges, if any, with respect to each Security Deposit Account.  Such periodic statements will be issued on a monthly or quarterly basis, depending on activity, but not more frequently than once per month.  Any Pledgor or Agent may request more frequent statements in which case Bank may assess such Pledgor for the applicable account service charge.

(b)Each Pledgor acknowledges its duty to promptly examine each periodic statement issued to it by Bank and to use reasonable care to discover any errors or unauthorized transactions charged to, or affecting, the Security Deposit Accounts.  Should such Pledgor fail to send written objections or exceptions to Bank with respect to a periodic statement within sixty (60) days of the date such statement is issued, such Pledgor shall be deemed to have approved such statement, and, as against such Pledgor, such statement shall be presumed to be correct for all purposes with respect to all information set forth therein.  The foregoing shall not be construed to limit, in any respect, Bank’s right to correct any error it discovers with respect to the Security Deposit Accounts or to withdraw from the Security Deposit Accounts cash or other property deposited therein by Bank in error.

10.  Certain Matters Affecting the Bank.  Pledgors and Agent agree that:

(a)Bank shall be entitled to rely upon, and shall be protected in acting or refraining from acting upon, any written notice, certificate or other document or communication (including, without limitation, facsimiles thereof) believed by it to be genuine and to have been signed, presented or delivered by the proper party or parties, and Bank may rely on statements contained therein without further inquiry or investigation.  Bank shall have no obligation to review or confirm that actions it is requested to take pursuant to any such notice comply with any agreement or document other than this Agreement.

(b)Bank shall be entitled to rely, and shall be protected in acting or refraining from acting, without independent investigation or any further consent or instructions from any Pledgor, upon any written notice received from Agent to the effect that an Event of Default has occurred or has ceased to exist or that any action requested by Agent to disburse funds from the Security Deposit Accounts or other Collateral or exercise Agent’s set-off rights against the Collateral is permitted under the Loan Agreements, any other Loan Document and/or in equity or under applicable law.

(c)The duties and obligations of Bank shall be determined solely by the express provisions of this Agreement, and, except as expressly set forth herein, Bank will not be charged with knowledge of any provisions of the Loan Agreements or any other Loan Documents.  Bank shall not be liable except for the performance of its duties and obligations as are specifically set forth in this Agreement, except to the extent any claims, losses, damages, expenses or other liabilities are caused by the gross negligence or willful or intentional misconduct of Bank, and no implied covenants or obligations, except those that may be implied by law, shall be read into this

8

Agreement against Bank.  Without limiting the foregoing: Bank shall have no investment responsibility with respect to the cash or other property held in the Collateral except as specifically set forth herein; shall not be accountable for the use or application by any Pledgor or any other identified party of any money paid over by Bank in accordance with this Agreement; and shall have no responsibility for taking any steps to preserve rights against any parties with respect to any property held hereunder.

(d)Bank shall have no liability for any loss occasioned by delay in the actual receipt of notice or other instructions to Bank of any payment, disbursement or any other transaction regarding the Collateral, nor shall Bank be liable for any claims, losses, damages, expenses or other liabilities, other than to the extent the same may be caused by the gross negligence or willful or intentional misconduct of Bank.  Under no circumstance whatsoever will Bank be liable for any lost profits or for any incidental, special, consequential or punitive damages whether or not Bank knew of the possibility or likelihood of such damages and regardless of the form of action in which any such loss or damage may be claimed.  Bank’s substantial compliance with its standard procedures for provision of the services required under this Agreement shall be deemed to constitute its exercise of reasonable care.

(e)If any Pledgor becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, or if Bank is otherwise served with legal process which Bank in good faith believes affects the Collateral, or if at any time Bank receives conflicting instructions with respect to any action it is requested to take under this Agreement, Bank shall have the right to place a hold on the Collateral until such time as Bank receives an appropriate court order or other assurances satisfactory to Bank establishing that the Collateral continue to be disbursed according to the instructions contained in this Agreement.

11.  Irrevocable Agreement.  Pledgors acknowledge that the agreements made by it and the conveyances and authorizations made and granted by it herein are irrevocable and that the conveyances and authorizations made and granted herein constitute powers coupled with an interest.

12.  Waiver of Set-off Rights by Bank.  Bank hereby waives, with respect to all existing and future claims it may have against Pledgors, all rights of set-off and banker’s liens which it may now or hereafter have against the Collateral and all items (and proceeds thereof) that come into the possession of Bank in connection with the Collateral, except, without further consent from Pledgors or Agent, to the extent Bank is unable to obtain payment from Pledgors and to the extent permitted by applicable law, rights of set-off and banker’s liens arising in connection with (i) items deposited in the Security Deposit Accounts that are subsequently returned to Bank unpaid for insufficient funds or if such amount is otherwise uncollectible by Bank, including without limitation by any “stop payment order” having been applied to such item, (ii) any fees due to Bank or charges incurred by Bank in connection with its deposit or collection attempts (provided such amounts are not in excess of the fees or charges Bank regularly and customarily charges its customers with respect thereto), (iii) the amount represented by such uncollectible item if such item has actually been paid by Bank to Pledgors prior to

9

Bank’s collection thereof, (iv) unpaid fees and expenses with respect to the Collateral that are charged to any of the Pledgors by Bank in the normal course of business for the Collateral and (v) any funds or items deposited in the Security Deposit Accounts in error or as necessary to correct processing errors (and Bank shall have the right to withdraw from the Security Deposit Accounts funds or other items deposited in error without further consent from Pledgors or Agent).

13.  Miscellaneous.  This Agreement shall supersede any other agreement (to the extent conflicting herewith) relating to the matters referred to herein, including any other account agreement between either Pledgor and Bank.  This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of either Pledgor appointed or elected in any action under the United States Bankruptcy Code) and shall inure to their benefit.  This Agreement may not be changed, amended, modified or waived orally, but only by an instrument in writing signed by each of the parties hereto, provided that such instrument need by signed only by Bank and Agent if it does not change any rights or obligations of Pledgors hereunder.  This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of New York applicable to contracts made and performed solely within such State, except with regard to payment of checks and other items and other issues relating to the operations of the Security Deposit Accounts or any other account to which funds from the Security Deposit Accounts are transferred, which issues shall be interpreted and enforced according to the laws of the state where the Security Deposit Accounts or such other account are located.  This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument.  Pledgors may not assign this Agreement without the prior approval of Agent.  Agent may assign this Agreement in conformance with Section 11.05 of the Loan Agreements.  Bank may assign this Agreement with the prior approval of Agent, and notice thereof shall be given to Pledgors.

14.  Taxes.  Each Pledgor shall deliver promptly to Bank a duly completed and executed copy of the proper United States Internal Revenue Service (a) Form W-9 or (b) if a Pledgor is not a United States citizen, Form 1001, Form 4224, Form W-8 or Form 8709 (as applicable), certifying such Pledgor’s status as a beneficial owner of its Security Deposit Account (within the meaning of Section 1.1441-1(c)(6) of the Treasury Regulations of the United States Internal Revenue Tax Code).  Each of the Pledgors further agrees to provide duly executed and completed updates of such forms (or applicable successor forms) promptly (but in any event no later than 10 Business Days) upon Bank’s request therefor, if Bank notifies such Pledgor that existing forms have expired or become obsolete.  Each Pledgor shall, on its own initiative, shall promptly provide (but in any event no later than 10 Business Days) duly executed and completed updates of such forms upon the occurrence of any event in respect of such Pledgor requiring a change in the most recent form previously delivered by such Pledgor to Bank.  Each Pledgor shall be responsible for the payment of all taxes relating to the assets in its Security Deposit Account (other than taxes with respect to investment earnings retained by Bank in accordance with this Agreement).

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15.  Termination.  Pledgors may not terminate this Agreement for any reason without Agent’s prior written consent; provided, however, that Pledgors may terminate this Agreement for the purpose of using a different depository bank if (i) Agent approves such replacement depository bank, such approval not to be unreasonably withheld or delayed and (ii) such replacement depository bank shall enter into an agreement with Pledgors and Agent substantially similar to this Agreement.  This Agreement shall remain in full force and effect until such time as (a) Agent shall deliver written notice to Bank as to the full and final payment of all Indebtedness under the Loan Documents and the termination of the Loan Documents, (b) Agent shall deliver written notice of termination to Pledgors and Bank at any time for any reason, (c) Bank shall deliver written notice of termination to Pledgors and Agent not less than thirty (30) days prior to the effective termination date or (d) Borrower shall have replaced Bank with a replacement depository bank in accordance with the immediately foregoing sentence.  If Bank so terminates this Agreement or if Agent so terminates this Agreement but requires that Security Deposit Accounts with a different depository be established, Agent and Pledgors shall jointly select a new depository to replace Bank, and thereupon Agent and the Pledgors shall enter into a new arrangement with such depository substantially similar to this Agreement.  Bank hereby agrees that it shall promptly take all reasonable action necessary to facilitate the transfer of the Collateral to any replacement depository.  All rights of Bank under Sections 10 and 12 hereof for the period prior to any such termination shall survive such termination.

16.  Further Assurances.  Each Pledgor hereby covenants and agrees that it shall (i) perform such acts and execute, acknowledge and deliver, from time to time, such financing statements and other instruments as may be reasonably required by Agent to perfect or better assure this Agreement and the security interests created hereby, and file or record the same in the public records specified by Agent and (ii) upon request of Agent, execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable in Agent’s reasonable opinion to protect any security interest granted or purported to be granted hereby, to enable Agent to exercise and enforce its rights and remedies hereunder with respect to the Collateral or to effectuate the purpose and intent of this Agreement, provided that the same do not increase such Pledgor’s liabilities, or decrease such Pledgor’s rights, under the Loan Documents (other than, in each case, to a de minimis extent).

17.  Notices.  (i) Any request, notice, report, demand, approval or other communication permitted or required by this Agreement to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring

11

Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

Agent:

GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Attention:  Vacys R. Garbonkus
Telecopier:  (312) 917-6131

with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention:  Harris B. Freidus, Esq.
Telecopier:  (212) 492-0064

Borrower:

The New York Times Building LLC
c/o FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

and

The New York Times Company
229 West 43rd Street
New York, New York 10036

Attention:Anthony Benten, David Thurm and
Kenneth A. Richieri, Esq.

Telecopier:(212) 556-1646 (Mr. Benten) and
(212) 556-4634 (Mr. Thurm and Mr. Richieri)

FC Member:

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FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

If to Bank:

[                                                     ]
[                                                     ]
[                                                     ]
[                                                     ]

(b)Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without the prior consent of Agent, none of the Pledgors may add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address when no notice of changed address was given shall be deemed to be receipt of any such notice.

(c)Unless notified to the contrary pursuant to this Section 17, any notice or communication made to any Lender shall be made only to Agent and its counsel as provided in this Section.

18.  Fees.  Bank agrees not to charge any fees in connection with the Security Deposit Accounts or its services hereunder.

19.  Headings.  The headings of the Articles, Sections and subsections of this Agreement are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Agreement to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Agreement unless otherwise stated.

20.  Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only shall be held for naught, as though

13

not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect.

21.  UCC Matters.  Pledgors acknowledge and Bank represents that each of the Security Deposit Accounts is a “deposit account” as defined in Section 9-102(29) of the UCC.  In connection therewith:

(a)Bank represents that it is an organization that is engaged in the business of banking and therefore is a “bank” within the meaning of Section 9-102(8) of the UCC.

(b)Except to the extent provided in Section 12 hereof, Bank subordinates any security interest in the Collateral which Bank has or may have to the security interest of Agent in the Collateral.

(c)Subject to the provisions of Sections 3 and 5 hereof, Bank agrees to follow the directions originated by Agent with respect to the Collateral without further consent of any Pledgor.

(d)Bank represents that the Bank’s “jurisdiction” (as determined by the rules set forth in Section 9-304(b) of the UCC) is New York.

22.  Interpretation.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

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

24.  Entire Agreement.  This Agreement and the other Loan Documents embody the entire agreement and understanding between the parties with respect to the Loans and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

[                              ], as Bank
By:
		Name:
		Title:
GMAC COMMERCIAL MORTGAGE
CORPORATION, as Agent
By:
		Name:
		Title:
THE NEW YORK TIMES BUILDING LLC,
as Borrower
By:			FC Lion LLC, member
	By:			FC 41st Street Associates, LLC, its managing member
				By:			RRG 8 South, Inc., its managing member
						By:
								Name:
								Title:
By:			NYT Real Estate Company LLC
			By:
					Name:
					Title:
FC LION LLC, as FC Member
		By:			FC 41st Street Associates, LLC, its managing member

By:	RRG 8 South, Inc., its managing member
	By:
		Name:
		Title:

EXHIBIT A

Payment Instruction Notice

Tenant Name:

Lease Agreement (“Lease”):

Leased Premises:

Please take notice that your landlord under the above-referenced Lease has selected                    (“Bank”) as the financial depository which will hold all security deposits under your Lease and to which such security deposits are to be sent.

You are hereby directed and instructed to send all security deposit payments due to your landlord under your Lease in accordance with the instructions set forth in this letter, notwithstanding any provision of your Lease to the contrary.

All security deposits (other than letters of credit) should be made payable to the account specified below:

Account Name: [The New York Times Building LLC] [FC Lion LLC] Security Deposit Account - GMAC Commercial Mortgage Corporation, as agent and secured party

Account Number: #

Bank has agreed to accept your payments by any of the following means, to the extent permitted by the Lease:

•U.S. Dollar denomination checks mailed to Bank

•U.S. Dollar denomination wire transfers to the landlord’s designated Bank account

•Automated Clearing House (ACH) credits to the landlord’s designated account at Bank

•Letters of Credit

If you elect to make payments by check, Bank will collect upon your check by using a check truncation process. This means that Bank will convert your paper check into an electronic debit which will be presented for payment at your bank the next business day.  Your physical check will not be presented to your bank nor returned to you by your bank with your bank account statement.  Your bank statement, however, will reflect the check number and the amount electronically presented by Bank to your bank, thereby indicating that the check has been presented and paid.

The address for mailing checks and letters of credit to Bank is:

[                  ]

[                  ]

[                  ]

[                  ]

Should you wish to arrange payment by wire transfer or ACH credit, please contact Bank at                                and ask for                                 .

A-1

These payment instructions have been implemented as part of a credit facility provided to your landlord by GMAC Commercial Mortgage Corporation (“GMACCM”).  You are to continue making all payments in accordance with these instructions until you receive further written instructions signed by landlord and GMACCM (or its successor as agent).

Neither GMACCM nor Bank have assumed any obligations of your landlord under the Lease.  Therefore, you should continue to send all communications regarding the Lease or landlord issues in the manner specified in your lease and not to GMACCM or Bank.   Any notices which you send to GMACCM or Bank and not to the parties specified in your lease will not be effective notice to your landlord under the Lease.

Very truly yours,

[Landlord signature]

Dated:

ACKNOWLEDGED BY:

Tenant’s Name:

Authorized Signature:

Name & Title of Person Signing:

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EXHIBIT B

CERTIFICATE OF AUTHORITY
IDENTIFYING AUTHORIZED REPRESENTATIVES

I, the undersigned officer of The New York Times Building LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Security Deposit Accounts Agreement dated                      among The New York Times Building LLC, FC Lion LLC and GMAC Commercial Mortgage Corporation, as agent, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from The New York Times Building LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

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I, the undersigned officer of FC Lion LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Security Deposit Accounts Agreement dated                      among The New York Times Building LLC, FC Lion LLC, GMAC Commercial Mortgage Corporation, as agent, and Bank, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from FC Lion LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

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Exhibit T

Collection Accounts Agreement

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COLLECTION ACCOUNTS AND SECURITY AGREEMENT

THIS COLLECTION ACCOUNTS AND SECURITY AGREEMENT, dated as of                    , 200   (this “Agreement”), among [             ], a                                      having an address at                                        (“Bank”), THE NEW YORK TIMES BUILDING LLC, a New York limited liability company (“Borrower”) and FC LION LLC, a New York limited liability company (“FC Member”), each having an address at One MetroTech Center North, Brooklyn, New York 11201 (Borrower and FC Member collectively, the (“Pledgors”) and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation and any successors 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 (such lenders collectively, including any successors and assigns, “Lenders” and each individually, a “Lender”).

W I T N E S S E T H:

WHEREAS, Borrower, New York State Urban Development Corporation d/b/a Empire State Development Corporation, as initial agent (“Initial Agent”), for itself and for the benefit of Lenders, and Agent, for itself and on behalf of Lenders, are entering into that certain Building Loan Agreement and that certain Project Loan Agreement, each dated as of the date hereof (as the same may be revised, restated, amended or modified, the “Loan Agreements”; capitalized terms not otherwise defined herein shall have the respective meanings specified in the Loan Agreements), pursuant to which the Lenders are making the Loans to Borrower; and

WHEREAS, one of the conditions precedent to the obligations of the Lenders under the Loan Agreements is that the Pledgors provide for the payment of Rents into one or more accounts established by Pledgors with Bank which account(s) will be maintained for the benefit of Agent and Lenders.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1.Accounts.  (a) This Agreement applies to the accounts identified below that have been established at Bank by the applicable Pledgor for the benefit of Agent and Lenders:

Description of Accounts	Account Numbers
Account Name: The New York Times Building LLC Collection Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:
Account Name: FC Lion LLC Collection Account — GMAC Commercial Mortgage Corporation, as agent and secured party Account Type:

The accounts identified above shall be collectively referred to herein as the “Collection Accounts”.  No Pledgor shall cancel or cause any of the Collection Accounts to be canceled, nor shall any Pledgor establish any other account with Bank or any other bank, mutual fund, investment banking firm or similar institution into which any Rents (other than security deposits) shall be deposited.

(b)Each Pledgor shall deposit, or cause to be deposited, in the applicable Collection Account, all Rents (other than security deposits) paid to or for the benefit of such Pledgor.  Such Rents shall be made in the lawful currency of the United States of America, and shall be payable to the applicable Collection Account and shall be delivered directly by the payor to Bank.  If either of the Pledgors (or any leasing or managing agent) shall receive any Rents (other than a security deposit), that is not payable in the foregoing manner, such Pledgor(s) shall (and shall cause leasing and managing Agent to) deposit such Rents into the applicable Collection Account by the close of business on the second Business Day following the day on which the same is received by such Pledgor (or leasing or managing agent).  In the absence of instructions from the payor or a Pledgor as to which account any amounts shall be deposited to, Bank shall notify the Pledgors and request such instructions, and in the meantime, Bank may refuse to accept delivery of such amounts until such instructions are received from such payor or Pledgor.

(c)The applicable Pledgor shall provide the notice set forth on Exhibit A attached hereto to each party to a Lease as each Lease is executed (or, if such Lease has previously been executed, then immediately).  The applicable Pledgor shall obtain the acknowledgment of its Tenants to such notice. If the applicable Pledgor fails to provide any such notice or obtain such acknowledgement, or if any Event of Default has occurred and is continuing, Agent shall have the right (and without prejudice to Agent’s rights with respect to such failures or Event of Default ) to direct such parties to remit all Rents, other than security deposits, directly into the applicable Collection Account by issuing a notice as Agent deems appropriate.  Each of the Pledgors hereby grants to Agent a power of attorney to sign and deliver the foregoing notices, which power of attorney shall be deemed coupled with an interest and irrevocable until the Indebtedness has been paid in full, and each Pledgor directs all applicable Tenants (and any successor to the interest of any such Tenant) under the applicable Leases to follow any such instructions given by Agent, notwithstanding any contrary instructions from any Pledgor and without any obligation or right on the Tenant’s part to determine the actual existence

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of an Event of Default or other event claimed by Agent as the basis for Agent’s right to send such notice.

(d)No modifications or revocations of any notice given by any Pledgor pursuant to clause (c) above are permitted without Agent’s prior written approval, which approval shall not be unreasonably withheld or delayed.  Upon Agent’s request from time to time, each Pledgor will certify in writing that it has sent a notice to all applicable Tenants or otherwise demonstrate to Agent’s satisfaction that notices have been issued to all applicable Tenants.

(e)Upon Agent’s request from time to time, each Pledgor shall provide a written statement to Agent itemizing the amounts deposited in its Collection Account for the period covered by Agent’s request and such supporting documentation as Agent reasonably may require.

(f)Each of the Pledgors represents and warrants that (i) this Agreement creates a valid, first priority security interest in all of its rights in the Collateral (as defined below), (ii) as of the date hereof, except for the security interest created by this Agreement, the Collection Accounts are free from any Lien, or other right, title and interest of any other person or party and (iii) the exact legal name and state of formation of each Pledgor are as set forth on page one hereof.  Except as permitted hereunder, no Pledgor shall sell, transfer, encumber, hypothecate or otherwise dispose of, or grant any option with respect to, the Collateral, or create or permit to exist any Lien upon the Collateral.

(g)The Collection Accounts shall not be evidenced by a certificate of deposit, passbook or other instrument.

(h)Account balances shall accrue interest at a savings account rate (or a money market rate, but only to the extent that the Collection Accounts can remain “deposit accounts” (as defined in the UCC) notwithstanding the giving of a money market rate) for accounts denominated in U.S. dollars and interest shall be credited by Bank to the applicable Collection Account not later than the fifth (5th) Business Day of the month immediately following the month for which accrued interest is being credited.  Interest accruing on each of the Collection Accounts shall be periodically added to the principal amount of the corresponding Collection Account.

(i)Each Pledgor acknowledges and agrees that neither it, nor any other party claiming on behalf of, or through, it, shall have any right, title or interest, whether express or implied, in the Collection Accounts, or to withdraw or make use of any amounts from any Collection Account except to the extent expressly permitted by Section 5 hereof.

2.Pledge of the Collateral.

(a)To secure the full payment of the Indebtedness and the performance of the Obligations, each Pledgor hereby sells, conveys, assigns, transfers and grants a first priority continuing security interest in, pledges and sets over unto

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Agent, for Agent’s own benefit and the benefit of Lenders, all of its right, title and interest, whether now owned or hereafter acquired or arising,  in and to each Collection Account and all interest, dividends, credits and proceeds relating thereto and all monies, checks and other similar instruments held or deposited therein (collectively, the “Collateral”):

(b)Bank acknowledges that this Agreement constitutes notice of Agent’s security interest in the Collateral and hereby acknowledges and consents thereto.

(c)Pledgors hereby authorize Agent to file UCC financing statements describing the Collateral and evidencing and perfecting the security interest in the Collateral granted to Agent pursuant to this Agreement and to file any other UCC financing statements reasonably necessary or advisable to accomplish the purposes of this Agreement.

3.Control of the Collateral.  If Agent delivers to Bank a Notice of Exclusive Control (as hereinafter defined) and until such time as such Notice of Exclusive Control is rescinded in writing by Agent, Bank will comply with any directions originated by Agent concerning the Collection Accounts and the other Collateral without further consent by any Pledgor.  Agent may exercise any rights and powers under or in connection with this Agreement and the Collateral without further consent of any of the Pledgors.  Subject to the foregoing, Bank shall also comply with entitlement orders or other directions concerning the Collection Accounts and the other Collateral originated by any of the Pledgors or their Authorized Representatives (as defined in Section 5(b) below), until such time as Agent delivers a written notice to Bank (with copies to Pledgors) that Agent is thereby exercising exclusive control over the Collection Accounts and the other Collateral.  Such notice is referred to herein as the “Notice of Exclusive Control”.  After Bank receives a Notice of Exclusive Control (and so long as such Notice of Exclusive Control has not been rescinded in writing by Agent), it will cease complying with entitlement orders or other directions concerning the Collection Accounts and the other Collateral originated by any Pledgor or any of its Authorized Representatives and will comply solely with entitlement orders or other directions concerning the Collection Accounts and the other Collateral originated by Agent.  As between Pledgors and Agent, Agent agrees to give a Notice of Exclusive Control only if a Noticed Default or an Event of Default has occurred and is continuing.

4.Agency.  (a) Agent hereby appoints Bank as Agent’s agent, bailee and pledgee and pledgee-in-possession for the Collateral, and Bank, by its execution and delivery of this Agreement, hereby accepts such appointment and agrees to be bound by the terms of this Agreement.  Each of the Pledgors hereby agrees to such appointment of Bank.

(b)Bank agrees that all cash and other property held in the Collection Accounts shall be segregated from all other cash and property held by Bank and shall be identified as being held in trust pursuant to this Agreement.  Segregation will be accomplished by appropriate identification of the cash or other property held in trust

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on the books and records of Bank.  Bank agrees not to commingle the amounts held in, or designated for deposit in, the Collection Accounts with any other amounts held on behalf of Agent, Pledgors or any other party.

5.Withdrawals.  (a)  So long as a Notice of Exclusive Control is not in effect, and as between Pledgors and Agent, and without any right, duty or obligation on the part of Bank to verify compliance by Pledgors with this Section 5(a), Pledgors may utilize funds in the Collection Accounts solely for the purposes of (i) paying Project Loan Costs, Building Loan Costs and operating expenses, and any and all costs, expenses, fees, taxes and other amounts from time to time incurred, or to be incurred within the next thirty (30) days thereafter, with respect to the Property or the Project or (ii) paying principal and interest payable with respect to the Loans or Extension Loan, whether or not due and payable; provided, however, that if Substantial Completion has been achieved, and at the time in question the Pro Forma Debt Service Coverage exceeds 1.30:1:00, the applicable Pledgor may withdraw amounts from its respective Collection Account and distribute such amounts to its respective members.  The applicable Pledgor shall provide evidence to Agent, on Agent’s request, of the proper application of such funds.  Upon the delivery of a Notice of Exclusive Control, the rights conferred upon the Pledgors pursuant to this Section shall immediately and automatically terminate without further action being required of Agent, Bank or any Pledgor; provided, however, that if a Notice of Exclusive Control is in effect (and no Event of Default exists), at the request of Borrower, Agent will apply amounts on deposit in the Collection Accounts to cure any Noticed Default or Defaults (to the extent the same can be cured with the payment of money) and to allow Borrower to comply with its obligations under the Loan Documents.

(b)Each Pledgor agrees to designate a limited number of persons who have authority to issue or deliver withdrawal, transfer or disbursement instructions to Bank (each such person, an “Authorized Representative”).  The initial list of Authorized Representatives for each Pledgor and samples of their respective genuine signatures is attached hereto as Exhibit B (“Certificate of Authority”).  Each of the Pledgors may, from time to time, amend its then current list of Authorized Representatives by sending an amendment to, or replacement of, the Certificate of Authority, in each case to be substantially in the form of Exhibit B and signed by a Secretary, Assistant Secretary or other duly authorized officer of the applicable Pledgor.  Bank will be authorized to rely and act upon all instructions given or purported to be given by an Authorized Representative of a Pledgor, provided that (i) in the case of written instructions, such written instructions bear the original signature, facsimile signature or electronic signature of an Authorized Representative which resembles the specimen signature for such Authorized Representative on file with Bank; and (ii) in the case of electronically transmitted instructions, the person providing the instruction uses a security code or other authentication procedure provided by Bank for such Pledgor’s use.  Unless an expiration date is expressly stated in the Certificate of Authority, all authorizations shall continue in full force and effect until canceled or superseded by a subsequent Certificate of Authority received by Bank with reasonable opportunity to act thereon.

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6.Bank’s Obligations with respect to the Collateral.

(a)The parties agree that items deposited in the Collection Accounts shall be deemed to bear the valid and legally binding endorsement of the payee and to comply with all of Bank’s requirements for the supplying of missing endorsements, now or hereafter in effect.  As between Pledgors and Agent, any deposit made by or on behalf of any Pledgor into the applicable Collection Account shall be deemed deposited into such Collection Account when the funds in respect of such deposit shall become collected funds.

(b)Notwithstanding anything to the contrary herein, each of the Pledgors acknowledges that it is responsible for monitoring the sufficiency of funds deposited its respective Collection Account and that each is liable for any deficiency in available funds necessary to cover disbursements and fees to Bank, irrespective of whether it has received any account statement, notice or demand from Agent or Bank. If on any day there are insufficient amounts in the applicable Collection Account necessary to cover disbursements and fees to Bank, the applicable Pledgor shall immediately deposit into the applicable Collection Account, without the need for any notice or demand from Agent or Bank, the amount of such deficiency in immediately available funds.

(c)Availability of cash credited to the applicable Collection Account shall be subject to checks, drafts or other demand instruments having cleared deposit.  If withdrawal instructions for wire transfers are received (i) at or before 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the same Business Day, or (ii) after 2:00 p.m. eastern time on a Business Day, payment of the amount withdrawn shall be made to or for the benefit of the applicable Pledgor by wire transfer on the next Business Day.

7.No Other Assignments.  Bank represents and warrants to Agent that no other notices of control, assignment, grant of security interest or Lien of any kind in respect of the Collateral are reflected in Bank’s records concerning the Collateral.  Bank hereby agrees that any such notice of control, assignment, grant of security interest, or Lien of any kind in respect of the Collateral that it receives, including the notice conferred by this Agreement, will be recorded in Bank’s records concerning the Collateral and Bank will immediately notify Agent upon receipt thereof.  Bank agrees not to allow any person or entity other than Agent and Bank (to the extent permitted in Section 12 below) to withdraw amounts from the Collection Accounts (it being acknowledged, however, that Pledgors have the rights to utilize funds in the Collateral Accounts to the extent provided in Sections 3 and 5 hereof).

8.Actions With Respect to the Collateral Following an Event of Default.

(a)At all times after Bank’s receipt of a Notice of Exclusive Control, and until Bank has received notice from Agent that such Notice of Exclusive

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Control has been rescinded, Bank shall solely follow the written instructions of Agent as to the Collateral, including amounts from time to time on deposit in the Collection Accounts, without further consent of any of the Pledgors, and Agent shall be irrevocably entitled to exercise any and all rights and remedies in respect of or in connection with the Collateral provided to Agent under the Loan Agreements or any other Security Document or otherwise available in equity or under applicable law, without further consent or instructions from any of the Pledgors.  Each of the Pledgors agrees that Bank may act as the agent of Agent in exercising, as to any funds or other property from time to time consisting of Collateral, any rights of set-off provided by the Loan Agreements or any other Loan Document or otherwise available in equity or under applicable law, without further consent or instructions from any Pledgor.

(b)Upon the occurrence and during the continuance of an Event of Default, Agent may, without notice of any kind, except for notices required by law which may not be waived (in addition to any other rights or remedies under this Agreement, at law or in equity or otherwise, but subject to the provisions of applicable law) retain for its own account or otherwise sell or dispose of all or any portion of the Collateral in one or more public or private sales, and, in each case, apply such proceeds in accordance with the Loan Documents.  In addition to the rights, powers and remedies granted to it under this Agreement and in any other Loan Document, Agent shall have all the rights, powers and remedies available at law or in equity, including, without limitation, the rights and remedies of a secured party under the applicable Uniform Commercial Code.  To the extent permitted by law, each of the Pledgors waives presentment, demand, protest and all notices of any kind and all claims, damages and demands it may acquire against the Agent or any Lender arising out of the exercise by them of any rights hereunder, except for claims, damages or demands arising from the gross negligence or willful misconduct of Agent or any Lender.

(c)Effective during the continuance of an Event of Default, each Pledgor hereby irrevocably constitutes and appoints Agent and any officer or agent of Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of each Pledgor and in the name of each Pledgor or in Agent’s own name, from time to time in Agent’s discretion, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, including, without limitation, any financing statements, endorsements, assignments or other instruments of transfer.

9.Information.  (a)  Bank shall provide to the applicable Pledgor and Agent a periodic statement setting forth all deposits, withdrawals, and account service charges, if any, with respect to each Collection Account.  Such periodic statements will be issued on a monthly or quarterly basis, depending on activity, but not more frequently than once per month.  Any Pledgor or Agent may request more frequent statements in which case Bank may assess such Pledgor for the applicable account service charge.

(b)Each Pledgor acknowledges its duty to promptly examine each periodic statement issued to it by Bank and to use reasonable care to discover any

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errors or unauthorized transactions charged to, or affecting, the Collection Accounts.  Should such Pledgor fail to send written objections or exceptions to Bank with respect to a periodic statement within sixty (60) days of the date such statement is issued, such Pledgor shall be deemed to have approved such statement, and, as against such Pledgor, such statement shall be presumed to be correct for all purposes with respect to all information set forth therein.  The foregoing shall not be construed to limit, in any respect, Bank’s right to correct any error it discovers with respect to the Collection Accounts or to withdraw from the Collection Accounts cash or other property deposited therein by Bank in error.

10.Certain Matters Affecting the Bank.  Pledgors and Agent agree that:

(a)Bank shall be entitled to rely upon, and shall be protected in acting or refraining from acting upon, any written notice, certificate or other document or communication (including, without limitation, facsimiles thereof) believed by it to be genuine and to have been signed, presented or delivered by the proper party or parties, and Bank may rely on statements contained therein without further inquiry or investigation.  Bank shall have no obligation to review or confirm that actions it is requested to take pursuant to any such notice comply with any agreement or document other than this Agreement.

(b)Bank shall be entitled to rely, and shall be protected in acting or refraining from acting, without independent investigation or any further consent or instructions from any Pledgor, upon any written notice received from Agent to the effect that an Event of Default has occurred or has ceased to exist or that any action requested by Agent to disburse funds from the Collection Accounts or other Collateral or exercise Agent’s set-off rights against the Collateral is permitted under the Loan Agreements, any other Loan Document and/or in equity or under applicable law.

(c)The duties and obligations of Bank shall be determined solely by the express provisions of this Agreement, and, except as expressly set forth herein, Bank will not be charged with knowledge of any provisions of the Loan Agreements or any other Loan Documents.  Bank shall not be liable except for the performance of its duties and obligations as are specifically set forth in this Agreement, except to the extent any claims, losses, damages, expenses or other liabilities are caused by the gross negligence or willful or intentional misconduct of Bank, and no implied covenants or obligations, except those that may be implied by law, shall be read into this Agreement against Bank.  Without limiting the foregoing: Bank shall have no investment responsibility with respect to the cash or other property held in the Collateral except as specifically set forth herein; shall not be accountable for the use or application by any Pledgor or any other identified party of any money paid over by Bank in accordance with this Agreement; and shall have no responsibility for taking any steps to preserve rights against any parties with respect to any property held hereunder.

(d)Bank shall have no liability for any loss occasioned by delay in the actual receipt of notice or other instructions to Bank of any payment,

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disbursement or any other transaction regarding the Collateral, nor shall Bank be liable for any claims, losses, damages, expenses or other liabilities, other than to the extent the same may be caused by the gross negligence or willful or intentional misconduct of Bank.  Under no circumstance whatsoever will Bank be liable for any lost profits or for any incidental, special, consequential or punitive damages whether or not Bank knew of the possibility or likelihood of such damages and regardless of the form of action in which any such loss or damage may be claimed.  Bank’s substantial compliance with its standard procedures for provision of the services required under this Agreement shall be deemed to constitute its exercise of reasonable care.

(e)If any Pledgor becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, or if Bank is otherwise served with legal process which Bank in good faith believes affects the Collateral, or if at any time Bank receives conflicting instructions with respect to any action it is requested to take under this Agreement, Bank shall have the right to place a hold on funds deposited in the Collection Accounts until such time as Bank receives an appropriate court order or other assurances satisfactory to Bank establishing that the funds may continue to be disbursed according to the instructions contained in this Agreement.

11.Irrevocable Agreement.  Pledgors acknowledge that the agreements made by it and the conveyances and authorizations made and granted by it herein are irrevocable and that the conveyances and authorizations made and granted herein constitute powers coupled with an interest.

12.Waiver of Set-off Rights by Bank.  Bank hereby waives, with respect to all existing and future claims it may have against Pledgors, all rights of set-off and banker’s liens which it may now or hereafter have against the Collateral and all items (and proceeds thereof) that come into the possession of Bank in connection with the Collateral, except, without further consent from Pledgors or Agent, to the extent Bank is unable to obtain payment from Pledgors and to the extent permitted by applicable law, rights of set-off and banker’s liens arising in connection with (i) items deposited in the Collection Accounts that are subsequently returned to Bank unpaid for insufficient funds or if such amount is otherwise uncollectible by Bank, including without limitation by any “stop payment order” having been applied to such item, (ii) any fees due to Bank or charges incurred by Bank in connection with its deposit or collection attempts (provided such amounts are not in excess of the fees or charges Bank regularly and customarily charges its customers with respect thereto), (iii) the amount represented by such uncollectible item if such item has actually been paid by Bank to Pledgors prior to Bank’s collection thereof, (iv) unpaid fees and expenses with respect to the Collateral that are charged to any of the Pledgors by Bank in the normal course of business for the Collateral and (v) any funds or items deposited in the Collection Accounts in error or as necessary to correct processing errors (and Bank shall have the right to withdraw from the Collection Accounts funds or other items deposited in error without further consent from Pledgors or Agent).

13.Miscellaneous.  This Agreement shall supersede any other agreement (to the extent conflicting herewith) relating to the matters referred to herein,

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including any other account agreement between either Pledgor and Bank.  This Agreement is binding upon the parties hereto and their respective successors and assigns (including any trustee of either Pledgor appointed or elected in any action under the United States Bankruptcy Code) and shall inure to their benefit.  This Agreement may not be changed, amended, modified or waived orally, but only by an instrument in writing signed by each of the parties hereto, provided that such instrument need by signed only by Bank and Agent if it does not change any rights or obligations of Pledgors hereunder.  This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of New York applicable to contracts made and performed solely within such State, except with regard to payment of checks and other items and other issues relating to the operations of the Collection Accounts or any other account to which funds from the Collection Accounts are transferred, which issues shall be interpreted and enforced according to the laws of the state where the Collection Accounts or such other account are located.  This Agreement may be executed in any number of counterparts which together shall constitute one and the same instrument.  Pledgors may not assign this Agreement without the prior approval of Agent.  Agent may assign this Agreement in conformance with Section 11.05 of the Loan Agreements.  Bank may assign this Agreement with the prior approval of Agent, and notice thereof shall be given to Pledgors.

14.Taxes.  Each Pledgor shall deliver promptly to Bank a duly completed and executed copy of the proper United States Internal Revenue Service (a) Form W-9 or (b) if a Pledgor is not a United States citizen, Form 1001, Form 4224, Form W-8 or Form 8709 (as applicable), certifying such Pledgor’s status as a beneficial owner of its Collection Account (within the meaning of Section 1.1441-1(c)(6) of the Treasury Regulations of the United States Internal Revenue Tax Code).  Each of the Pledgors further agrees to provide duly executed and completed updates of such forms (or applicable successor forms) promptly (but in any event no later than 10 Business Days) upon Bank’s request therefor, if Bank notifies such Pledgor that existing forms have expired or become obsolete.  Each Pledgor shall, on its own initiative, shall promptly provide (but in any event no later than 10 Business Days) duly executed and completed updates of such forms upon the occurrence of any event in respect of such Pledgor requiring a change in the most recent form previously delivered by such Pledgor to Bank.  Each Pledgor shall be responsible for the payment of all taxes relating to the assets in its Collection Account (other than taxes with respect to investment earnings retained by Bank in accordance with this Agreement).

15.Termination.  Pledgors may not terminate this Agreement for any reason without Agent’s prior written consent; provided, however, that Pledgors may terminate this Agreement for the purpose of using a different depository bank if (i) Agent approves such replacement depository bank, such approval not to be unreasonably withheld or delayed and (ii) such replacement depository bank shall enter into an agreement with Pledgors and Agent substantially similar to this Agreement.  This Agreement shall remain in full force and effect until such time as (a) Agent shall deliver written notice to Bank as to the full and final payment of all Indebtedness under the Loan Documents and the termination of the Loan Documents, (b) Agent shall deliver written notice of termination to Pledgors and Bank at any time for any reason, (c) Bank shall

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deliver written notice of termination to Pledgors and Agent not less than thirty (30) days prior to the effective termination date or (d) Borrower shall have replaced Bank with a replacement depository bank in accordance with the immediately foregoing sentence.  If Bank so terminates this Agreement or if Agent so terminates this Agreement but requires that Collection Accounts with a different depository be established, Agent and Pledgors shall jointly select a new depository to replace Bank, and thereupon Agent and the Pledgors shall enter into a new arrangement with such depository substantially similar to this Agreement.  Bank hereby agrees that it shall promptly take all reasonable action necessary to facilitate the transfer of any funds held in the Collection Accounts and items received to any replacement depository.  All rights of Bank under Sections 10 and 12 hereof for the period prior to any such termination shall survive such termination.

16.Further Assurances.  Each Pledgor hereby covenants and agrees that it shall (i) perform such acts and execute, acknowledge and deliver, from time to time, such financing statements and other instruments as may be reasonably required by Agent to perfect or better assure this Agreement and the security interests created hereby, and file or record the same in the public records specified by Agent and (ii) upon request of Agent, execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable in Agent’s reasonable opinion to protect any security interest granted or purported to be granted hereby, to enable Agent to exercise and enforce its rights and remedies hereunder with respect to the Collection Accounts and the proceeds thereof or to effectuate the purpose and intent of this Agreement, provided that the same do not increase such Pledgor’s liabilities, or decrease such Pledgor’s rights, under the Loan Documents (other than, in each case, to a de minimis extent).

17.Notices.  (i) Any request, notice, report, demand, approval or other communication permitted or required by this Agreement to be given or furnished shall be in writing and shall be deemed given or furnished when addressed to the party intended to receive the same, at the address of such party as set forth below, (i) when delivered by overnight nationwide commercial courier service, one (1) Business Day (determined with reference to the location of the recipient) after the date of delivery to such courier service, (ii) when personally delivered, if delivered on a Business Day in the place of receipt and during normal business hours (otherwise on the next occurring Business Day in such place of receipt) or (iii) when transmitted by telecopy to the telecopier number set forth below, to the party intended to receive same if transmitted on a Business Day in the place of receipt and during normal business hours (and otherwise on the next occurring Business Day in such place of receipt) and provided that such transmission is confirmed by duplicate notice in such other manner as permitted above:

Agent:

GMAC Commercial Mortgage Corporation
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Attention:  Vacys R. Garbonkus
Telecopier:  (312) 917-6131

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with a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention:  Harris B. Freidus, Esq.
Telecopier:  (212) 492-0064

Borrower:

The New York Times Building LLC
c/o FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

and

The New York Times Company
229 West 43rd Street
New York, New York 10036

Attention:Anthony Benten, David Thurm and
Kenneth A. Richieri, Esq.

Telecopier:(212) 556-1646 (Mr. Benten) and
(212) 556-4634 (Mr. Thurm and Mr. Richieri)

FC Member:

FC Lion LLC
One Metro Tech Center North
Attention: General Counsel
Telecopier: (718) 923-8705

with a copy to:

Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
Attention: James J. Kirk, Esq.
Telecopier: (212) 808-7897

12

If to Bank:

[                                                     ]
[                                                     ]
[                                                     ]
[                                                     ]

(b)Any party may change the entity, address or the attention party to which any such request, notice, report, demand or other communication is to be given by furnishing notice of such change to the other parties in the manner specified above.  Without the prior consent of Agent, none of the Pledgors may add any other parties to these notice provisions.  Rejection or refusal to accept, or inability to deliver because of changed address when no notice of changed address was given shall be deemed to be receipt of any such notice.

(c)Unless notified to the contrary pursuant to this Section 17, any notice or communication made to any Lender shall be made only to Agent and its counsel as provided in this Section.

18.Fees.  Bank agrees not to charge any fees in connection with the Collection Accounts or its services hereunder.

19.Headings.  The headings of the Articles, Sections and subsections of this Agreement are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.  All references in this Agreement to Sections, subsections and other divisions are references to the Sections, subsections and divisions of this Agreement unless otherwise stated.

20.Invalid Provisions to Affect No Others.  If fulfillment of any provision hereof or any transaction related hereto at the time performance of such provisions shall be due, shall involve transcending the limit of validity presently prescribed by law, with regard to obligations of like character and amount, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect.

21.UCC Matters.  Pledgors acknowledge and Bank represents that each of the Collection Accounts is a “deposit account” as defined in Section 9-102(29) of the UCC.  In connection therewith:

(a)Bank represents that it is an organization that is engaged in the business of banking and therefore is a “bank” within the meaning of Section 9-102(8) of the UCC.

13

(b)Except to the extent provided in Section 12 hereof, Bank subordinates any security interest in the Collateral which Bank has or may have to the security interest of Agent in the Collateral.

(c)Subject to the provisions of Sections 3 and 5 hereof, Bank agrees to follow the directions originated by Agent with respect to the Collateral without further consent of any Pledgor.

(d)Bank represents that the Bank’s “jurisdiction” (as determined by the rules set forth in Section 9-304(b) of the UCC) is New York.

22.Interpretation.  Whenever the singular or plural number, or the masculine, feminine or neuter gender is used herein, it shall equally include the other.  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

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

24.Entire Agreement.  This Agreement and the other Loan Documents embody the entire agreement and understanding between the parties with respect to the Loans and supersede all other prior agreements and understandings, whether oral or written, relating to the subject matter hereof and thereof, except as specifically agreed to the contrary.

14

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

[                             ], as Bank
By:
		Name:
		Title:
GMAC COMMERCIAL MORTGAGE
CORPORATION, as Agent
By:
		Name:
		Title:
THE NEW YORK TIMES BUILDING LLC,
	as Borrower
By:			FC Lion LLC, member
	By:			FC 41st Street Associates, LLC, its managing member
				By:			RRG 8 South, Inc., its managing member
						By:
								Name:
								Title:
By:	NYT Real Estate Company LLC
	By:
				Name:
				Title:
FC LION LLC, as FC Member
	By:				FC 41st Street Associates, LLC, its managing member

By:		RRG 8 South, Inc., its managing member
	By:
			Name:
			Title:

EXHIBIT A

Payment Instruction Notice

Tenant Name:

Lease Agreement (“Lease”):

Leased Premises:

Please take notice that your landlord under the above-referenced Lease has selected                      (“Bank”) as the financial depository to which all payments of rent under your Lease are to be sent.

You are hereby directed and instructed to send all rent payments due to your landlord under your Lease (including, without limitation, base rent and amounts due for operating or common area expenses) in accordance with the instructions set forth in this letter, notwithstanding any provision of your Lease to the contrary.

All payments under or with respect to your Lease, other than security deposits, should be made payable to and sent to:

Account Name: [The New York Times Building LLC] [FC Lion LLC] Collection Account - GMAC Commercial Mortgage Corporation, as agent and secured party

Account Number: #

Bank has agreed to accept your payments by any of the following means:

•U.S. Dollar denomination checks mailed to Bank

•U.S. Dollar denomination wire transfers to the landlord’s designated Bank account

•Automated Clearing House (ACH) credits to the landlord’s designated account at Bank

If you elect to make payments by check, Bank will collect upon your check by using a check truncation process. This means that Bank will convert your paper check into an electronic debit which will be presented for payment at your bank the next business day.  Your physical check will not be presented to your bank nor returned to you by your bank with your bank account statement.  Your bank statement, however, will reflect the check number and the amount electronically presented by Bank to your bank, thereby indicating that the check has been presented and paid.

The address for mailing checks to Bank is:

[                 ]

[                 ]

[                 ]

[                 ]

Should you wish to arrange payment by wire transfer or ACH credit, please contact Bank at                                and ask for                                 .

A-1

These payment instructions have been implemented as part of a credit facility provided to your landlord by GMAC Commercial Mortgage Corporation (“GMACCM”).  You are to continue making all payments in accordance with these instructions until you receive further written instructions signed by landlord and GMACCM (or its successor as agent).

Neither GMACCM nor Bank have assumed any obligations of your landlord under the Lease.  Therefore, you should continue to send all communications regarding the Lease or landlord issues in the manner specified in your lease and not to GMACCM or Bank.   Any notices which you send to GMACCM or Bank and not to the parties specified in your lease will not be effective notice to your landlord under the Lease.

Very truly yours,

[Landlord signature]

Dated:

ACKNOWLEDGED BY:

Tenant’s Name:

Authorized Signature:

Name & Title of Person Signing:

A-2

EXHIBIT B

CERTIFICATE OF AUTHORITY
IDENTIFYING AUTHORIZED REPRESENTATIVES

I, the undersigned officer of The New York Times Building LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Collection Accounts and Security Agreement dated                      among The New York Times Building LLC, FC Lion LLC and GMAC Commercial Mortgage Corporation, as agent, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from The New York Times Building LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

C-1

I, the undersigned officer of FC Lion LLC hereby certify to Bank that each of the following persons named below has been duly authorized by it to act for it and exercise all authority conveyed to an “Authorized Representative” under the Collection Accounts and Security Agreement dated                      among The New York Times Building LLC, FC Lion LLC, GMAC Commercial Mortgage Corporation, as agent, and Bank, that each person holds the title set forth opposite his or her name, and that the specimen signatures set forth opposite the name of each such person is his or her genuine signature:

AUTHORIZED REPRESENTATIVES

Name Title Signature

I further confirm that Bank may rely on the effectiveness of this Certificate until Bank receives written notice from FC Lion LLC to the contrary (and has had a reasonable opportunity to act upon such written notice).

IN WITNESS WHEREOF, I have executed this Certificate this            day of                                         ,             .

Name:

Title:

2

Schedule 1

Initial Required Equity Funds Previously Contributed

$207,046,237

S1-1

Schedule 2

Initial Advance Interest Rate Cap

Period	Rate
Months 1-6	3.30	%
Months 7-12	3.80	%
Months 13-18	4.60	%
Months 19-24	5.75	%
Months 25-30	8.00	%
Months 31-36	8.25	%
Months 37-42	9.00	%
Months 43-48	9.50	%

Future Advance Interest Rate Cap

Period	Trigger Rate		Rate
Months 1-6	3.05	%	3.30	%
Months 7-12	3.55	%	3.80	%
Months 13-18	4.35	%	4.60	%
Months 19-24	5.50	%	5.75	%
Months 25-30	7.75	%	8.00	%
Months 31-36	8.00	%	8.25	%
Months 37-42	8.75	%	9.00	%
Months 43-48	9.25	%	9.50	%

S2-1

Schedule 3

Availability of Utilities

None.

S3-1

Schedule 4

Governmental Approvals and Third Party Approvals

None.

S4-1

Schedule 5

Leases

None.

S5-1

EX-10.5

Exhibit 10.5

CONSTRUCTION MANAGEMENT AGREEMENT

BETWEEN

THE NEW YORK TIMES BUILDING, LLC,

OWNER,

and

AMEC CONSTRUCTION MANAGEMENT, INC.,

CONSTRUCTION MANAGER

TABLE OF CONTENTS

ARTICLE 1 DEFINITIONS
ARTICLE 2 GENERAL PROVISIONS
2.1	RELATIONSHIP OF THE PARTIES
2.2	CONTRACT DOCUMENTS
2.3	CONSTRUCTION MANAGER’S GENERAL OBLIGATIONS
2.4	ETHICAL OBLIGATIONS
2.5	EQUAL OPPORTUNITY
2.6	COOPERATION WITH INTERIOR CONSTRUCTION MANAGER, TRADE CONTRACTORS AND ARCHITECT
ARTICLE 3 PRE-CONSTRUCTION PHASE
3.1	PRE-CONSTRUCTION PHASE SERVICES
ARTICLE 4 CONSTRUCTION PHASE
4.1	PERFORMANCE OF THE WORK
4.2	COORDINATION WITH INTERIORS WORK
4.3	BIDDING PROCESS
4.4	TRADE CONTRACTS
4.5	CONSTRUCTION PHASE SCOPE OF WORK
4.6	WARRANTIES
4.7	COMPLIANCE WITH AFFIRMATIVE ACTION REQUIREMENTS
ARTICLE 5 MANAGEMENT OF THE WORK
5.1	KEY EMPLOYEES
5.2	SUPPORT STAFF
5.3	AUTHORIZED REPRESENTATIVES
ARTICLE 6 PAYMENT
6.1	PHASES
6.2	PAYMENTS
6.3	PAYMENT DOES NOT CONSTITUTE ACCEPTANCE
6.4	INCENTIVE BONUSES
ARTICLE 7 GUARANTEED MAXIMUM PRICE
7.1	GMP
7.2	TRADE CONTRACT COSTS
7.3	GENERAL CONDITIONS COSTS
7.4	CONSTRUCTION CONTINGENCY
7.5	CONSTRUCTION MANAGER ACKNOWLEDGMENT OF INCOMPLETE DESIGN DOCUMENTS
ARTICLE 8 COSTS OF THE WORK
8.1	LIMITATION ON COSTS OF THE WORK
8.2	TRADE CONTRACT COSTS
8.3	GENERAL CONDITIONS COSTS
8.4	BACK-UP DOCUMENTATION
8.5	CONTROL OF COSTS OF THE WORK

ii

ARTICLE 9 NON-REIMBURSABLE COSTS
9.1	NON-REIMBURSABLE COSTS
ARTICLE 10 CHANGES IN THE WORK
10.1	CHANGE ORDERS
10.2	MATERIAL CHANGE
10.3	FIELD DIRECTIVE
10.4	EMERGENCY CHANGE ORDER
10.5	FULL PAYMENT FOR CHANGE ORDERS
10.6	BACKCHARGES
10.7	CHANGE ORDER-RELATED TIME EXTENSIONS
ARTICLE 11 SCHEDULE OF THE WORK AND OCCUPANCY
11.1	PROJECT SCHEDULE
11.2	CPM SCHEDULE
11.3	UPDATES TO CPM SCHEDULE
11.4	TIME OF THE ESSENCE
11.5	REQUIREMENTS FOR SUBSTANTIAL COMPLETION
11.6	REQUIREMENTS FOR FINAL COMPLETION
11.7	TIME EXTENSIONS
11.8	COMPENSATION FOR DELAY
11.9	ACCELERATION OF THE WORK
11.10	MODIFICATIONS TO PROJECT SCHEDULE
ARTICLE 12 SEPARATE CONTRACTORS
12.1	OWNER’S RIGHT TO ENGAGE SEPARATE CONTRACTORS
12.2	COOPERATION AND COORDINATION WITH SEPARATE CONTRACTORS
12.3	SEPARATE CONTRACTOR-RELATED SUSPENSIONS
12.4	DAMAGE TO WORK
ARTICLE 13 ACCOUNTING RECORDS
13.1	PROJECT ACCOUNTING RECORDS
13.2	MAINTENANCE OF PROJECT ACCOUNTING BOOKS AND RECORDS
13.3	AUDITS
13.4	PRESERVATION OF PROJECT RECORDS
ARTICLE 14 BONDS AND INSURANCE
14.1	BOND REQUIREMENTS
14.2	INSURANCE REQUIREMENTS
ARTICLE 15 HAZARDOUS MATERIALS
15.1	GENERAL REQUIREMENTS
15.2	HAZARDOUS MATERIALS BROUGHT TO SITE OR GENERATED BY CONSTRUCTION MANAGER AND/OR TRADE CONTRACTORS
15.3	HAZARDOUS MATERIALS IDENTIFIED IN CONTRACT DOCUMENTS
15.4	UNIDENTIFIED HAZARDOUS MATERIALS
ARTICLE 16 TERMINATION AND SUSPENSION
16.1	TERMINATION FOR DEFAULT
16.2	TERMINATION FOR CONVENIENCE
16.3	SUSPENSION
16.4	TERMINATION OF OWNER BY CONSTRUCTION MANAGER

iii

ARTICLE 17 DISPUTE RESOLUTION
17.1	LITIGATION
17.2	CONTINUATION OF WORK
17.3	PREVAILING PARTY AT TRIAL
ARTICLE 18 MISCELLANEOUS PROVISIONS
18.1	PRACTICE OF ARCHITECTURE AND/OR ENGINEERING
18.2	EFFECTIVENESS OF AGREEMENT
18.3	SURVIVAL OF OBLIGATIONS
18.4	ASSIGNMENT
18.5	CONFIDENTIALITY
18.6	TRUST ACCOUNT
18.7	NOTICES
18.8	CONSTRUCTION OF LANGUAGE
18.9	CAPTIONS AND TITLES
18.10	NO WAIVER
18.11	INDEMNIFICATION
18.12	SEVERABILITY
18.13	ARCHITECT AND OWNER CONSULTANTS
18.14	RIGHTS AND REMEDIES
18.15	GOVERNING LAW AND CONSENT TO JURISDICTION
18.16	INTERPRETATIONS IN WRITING
18.17	INDEPENDENT CONTRACTOR
18.18	LIMITED RECOURSE

iv

EXHIBIT A	Project Description
EXHIBIT B	Trade Contract Form
EXHIBIT C	Preliminary Schedule
EXHIBIT D	General Conditions Items
EXHIBIT E	Not Used
EXHIBIT F	Preliminary List of Drawings and Specifications
EXHIBIT G	Affirmative Action Requirements
EXHIBIT H	Waiver of Lien and Release Forms
EXHIBIT I	Consultants
EXHIBIT J	OCIP Manual
EXHIBIT K	Project Website Guidelines
EXHIBIT L	Key Employee Affidavit
EXHIBIT M	Key Employees
EXHIBIT N	Not Used
EXHIBIT O	Qualifications and Assumptions
EXHIBIT P	Not Used
EXHIBIT Q	Early Access Guidelines and Turnover Protocol
EXHIBIT R	Cost Allocation Guidelines
EXHIBIT S	Guaranteed Maximum Price
EXHIBIT T	Hoisting and Logistics Plan
EXHIBIT U	Allowances
EXHIBIT V	Guarantee

v

CONSTRUCTION MANAGEMENT AGREEMENT

AGREEMENT, made this 22nd day of January, 2004, by and between The New York Times Building, LLC, having its offices located at 1 Metrotech Center North, Brooklyn, New York 11201 (“Owner”); and AMEC Construction Management, Inc., having its offices located at 1633 Broadway, New York, NY 10019-6708 (“Construction Manager”).

WITNESSETH

WHEREAS, The New York Times Building LLC, as Owner, intends to construct a Base Building of approximately 1,540,000 gross square feet on a site located on Eighth Avenue between 40th and 41st Streets in New York, New York (the “Project”), which shall consist of three primary condominium units: (1) retail space; (2) commercial office space; and (3) headquarters for The New York Times Company, including its newspaper division; and

WHEREAS, the Owner has retained Renzo Piano Building Workshop, S.E.L.A.F.A., in association with Fox & Fowle Architects, P.C., as the Base Building Architect to prepare preliminary and final plans, specification, working drawings and other construction documents for the building core and shell design (the final versions of which are hereinafter collectively referred to as the “Construction Documents”); and

WHEREAS, NYT Real Estate Company, LLC, as Interiors Project Owner, intends to buildout an Interiors Project totaling approximately 845,000 gross square feet of space within the Base Building; and

WHEREAS, the Interiors Project Owner has retained Gensler & Partners as the Interiors Architect for The New York Times Headquarters portion of the Interiors Project; and

WHEREAS, the Interiors Project Owner has retained the Architect as the architect for The Times Center portion of the Interiors Project; and

WHEREAS, the Interiors Project Owner has retained Turner Construction Company as Interiors Construction Manager for the Interiors Project; and

WHEREAS, the Architect and the Interiors Architect shall collaborate on the design of cafeteria and conference room portions of the Project; and

WHEREAS, FC Lion, LLC, as Commercial Office Project Owner, intends to buildout an Office Interior Project totaling approximately 600,000 gross square feet of space within the Base Building and, in connection therewith, anticipates that there may be an architect or architects and a construction manager or construction managers retained (referred to as Commercial Office Architect and Commercial Office Construction Manager, respectively); and

WHEREAS, FC Lion, LLC, as Retail Project Owner, intends to buildout an Retail Project totaling approximately 20,000 gross square feet of space within the Base Building and, in connection therewith, anticipates that there may be an architect or architects and a construction manager or construction managers retained (referred to as Retail Architect and Retail Construction Manager, respectively); and

1

WHEREAS, Owner may separately retain the services of such other design professionals, consultants and construction managers as Owner may deem necessary and in the best interest of the Project; and

WHEREAS, Owner intends to retain the services of Construction Manager to: (1) perform Pre-construction Phase services; (2) construct the Project, including but not limited to, arranging for, monitoring, supervising and administering Trade Contracts for the construction of any and all portions of the Project; and (3) coordinate with the Interiors Architect, the Interiors Construction Manager, Interiors Trade Contractors, Office Architect, Office Construction Manager, Retail Architect, Retail Construction Manager and Separate Contractors working on the Base Building and the Project; and

WHEREAS, Construction Manager desires to be retained by Owner to perform, the Work pursuant to the terms and conditions of this Agreement; and

WHEREAS, in order to induce Owner to award this Agreement to Construction Manager, AMEC p.l.c. has executed the Guarantee attached hereto as Exhibit V;

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Owner and Construction Manager do hereby agree as follows:

ARTICLE 1

DEFINITIONS

The terms used in this Agreement, any amendment hereto and all Exhibits attached hereto, shall have the following meanings:

“Acceleration” shall mean the process by which Construction Manager increases the speed of the Work in order to regain lost time and maintain the Project Schedule.

“Affiliated Entity” shall mean, with respect to any entity, directly or indirectly controlling or controlled by, or under the direct or indirect common control with, such entity.  For the purposes of this Agreement, the term “control” as used with respect to any entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management of such entity, whether through ownership of voting securities or by contract or otherwise.

“Affirmative Action Requirements” shall mean those requirements set forth in Exhibit G hereto.

“Applicable Law” shall mean all applicable Federal, State and local laws, statutes, codes, rules, regulations and ordinances, which are in effect or pending at the time of execution of this Agreement.

“Application for Payment” shall mean Construction Manager’s monthly requisition which shall be submitted on AIA Document G-702, G-703 or such other form as may be agreed upon by Owner and Construction Manager.

2

“Architect” shall mean Renzo Piano Building Workshop, S.E.L.A.F.A., in association with Fox & Fowle Architects, P.C., or its successor designated in writing by Owner.  For the purposes of this Agreement, “Architect” includes the Architect’s Consultants identified in Exhibit I and any other Architect’s Consultants approved by Owner.

“Architect’s Consultants” shall mean engineers and specialty consultants retained directly by Architect including, but not limited to, the firms and individuals identified in Exhibit I.

“As-Built Drawings” shall mean red-lined Construction Documents showing the Work as constructed, prepared by Trade Contractors and indicating actual locations of utilities and all changes and alterations made to the Work during construction.

“Authorized Representative” shall mean an individual, designated in writing by each party, who shall be authorized to bind that party under the terms of this Agreement.

“Backcharge” shall mean a credit assessed against one Trade Contractor, by means of a deductive Change Order, for damage done to or extra Work performed by Construction Manager, another Trade Contractor or Owner.

“Base Building” shall mean the Core & Shell of the building to be constructed on Eighth Avenue between 40th and 41st Streets in New York, New York, of which the Project is a part.

“Bid Documents” shall mean the procedural documents and Bid Packages submitted to prospective Trade Contractors in connection with the competitive bidding process.

“Bidder’s List” shall mean a list of pre-qualified prospective Trade Contractors prepared by Construction Manager and approved by Owner.

“Bid Package” shall mean the collection of pertinent portions of the Construction Documents into a package suitable for bidding by prospective Trade Contractors working in a specific Trade.

“Buy Saves” shall mean the differential between the cost of any Trade Contract included in the GMP (Exhibit S) and the buyout of that Trade Contract at less than such GMP cost.

“Change” shall mean an agreed-upon modification to Construction Manager’s scope of Work which affects the price and/or the timing of the Work.

“Change Order” shall mean a written instrument prepared by Construction Manager, and signed by Owner and Construction Manager, describing a Change, and specifying any accompanying adjustment in the GMP or the Construction Contingency, and/or aTime Extension.

“Change Order Log” shall mean a list of all pending and approved Change Orders maintained by Construction Manager.

“Change Order Proposal” shall mean a written proposal by Construction Manager covering proposed Change Order Work submitted in response to a PCO issued by Owner.

“Change Order Work” shall mean Work undertaken by Construction Manager (through its Trade Contractors) under a signed Change Order.

“Claim” shall mean a formal request for additional compensation and/or a Time Extension by the Construction Manager.

3

“Codes” shall mean building codes applicable to the Project.

“Commissioning Plan” shall mean a written plan agreed upon by Owner and Construction Manager covering the initial startup, testing and operation of all systems comprising any portion of the Work.

“Confidential Information” shall mean all information (whether or not specifically labeled or identified as confidential), in any form or medium, which is disclosed to or learned by Construction Manager in the performance of this Agreement, or acquired directly or indirectly such as in the course of discussions or investigations by Construction Manager, and which relates to the Owner’s business, products, services, research or development, suppliers, distributors, clients, or customers, or which relates to similar information of a third party who has entrusted such information to the Owner including, without limitation, any specialized know-how, technical or non-technical data, formula, pattern, compilation, program, device, method, technique, drawing, process, financial or business information, models, list of actual or potential customers or suppliers, novel analysis, work papers, studies or other documents that contain, reflect, or are based on such information.

“Construction Contingency” shall mean an amount available for use by Construction Manager, subject to Owner’s prior written approval, to cover certain unanticipated costs as more fully described in Section 10.4.

“Construction Documents” shall mean the final Drawings and Specifications from which the Work is actually constructed.

“Construction Documents Phase” shall mean that Phase during which the Construction Documents are prepared by the Architect.

“Construction Manager” shall mean AMEC Construction Management, Inc.

“Construction Manager-Caused Delay” shall mean any delay or interruption in the progress of the Work which is caused by the Construction Manager, any Trade Contractor or any party for whom either of them is responsible.

“Construction Phase” shall mean that Phase during which the Work is actually being constructed by Trade Contractors and the Construction Manager performs the tasks described in Article 4.

“Contract Documents” shall mean the documents identified in Section 2.2 of this Agreement.

“Contract Time” shall mean the period of time for performance of the Work as indicated in the approved Project Schedule, and any subsequent revisions thereto approved by Owner pursuant to this Agreement.

“Controlled Inspection” shall mean an inspection of the Work or some portion thereof by an independent third party.

“Coordination Drawings” shall mean drawings prepared by Trade Contractors detailing the Work and the coordination of Work items among the various Trade Contractors.

4

“Core & Shell” shall mean those portions of the Project that are identified to be performed by Construction Manager pursuant to this Agreement.

“Costs of the Work” shall mean those costs actually expended by Construction Manager in performance of the Work that will be reimbursed by Owner as set forth in this Agreement including, but not limited to, Trade Contract Costs and General Conditions Costs, subject to the GMP.

“CPM” shall mean a critical path method format to be used for the Project Schedule.

“Critical Path” shall mean those Work activities identified on the Project Schedule which, if delayed, will cause a corresponding Delay in the Substantial Completion Date.

“Day” shall mean a calendar day.

“Daily Report” shall mean written reports provided on a daily basis by the Construction Manager that set forth the information described in Section 4.5.9.1.

“Delay” shall mean any delay or interruption in the progress of the Work as anticipated on the approved Project Schedule.

“Design Development Documents” shall mean the Design Documents prepared by Architect during the Design Development Phase.

“Design Development Phase” shall mean that Phase in the development of the Design Documents during which Architect prepares Documents that fix and describe the size and character of the Project as to architectural, structural, mechanical, electrical systems, materials and other elements as appropriate.

“Design Documents” shall mean preliminary Drawings and Specifications prepared by Architect prior to final approval by Owner of the Construction Documents.

“Design Team” shall mean Architect, Architect’s Consultants and Owner’s Consultants as identified in Exhibit I.

“Development Agreement” shall mean the agreement among The New York Times Building LLC, NYT Real Estate Company LLC and FC Lion LLC, dated December 12, 2001.  The requirements of the Development Agreement relating to early access and turnover protocol are attached hereto as Exhibit Q, and incorporated herein by reference as applicable to the terms of this Agreement.

“Drawings” shall mean graphic or pictorial portions of the Contract Documents, wherever located and whenever issued, which are proposed by Architect or any Vendor, and which show, among other things, the location and dimensions of the Work, generally including, but not limited to, plans, elevations, sections, details, schedules and diagrams.  A preliminary list of Drawings is attached hereto as Exhibit F.

“Emergency Change Order” shall mean a Change which is required in the case of an emergency imminently threatening the safety of persons or the Work and which, in the interest of such safety, Construction Manager determines must be made without obtaining the prior written approval of Owner.

5

“Event of Default” shall mean actions and/or inactions on the part of Construction Manager as described in Section 16.1 that justify termination of Construction Manager by Owner for default.

“Excusable Delay” shall mean a delay, disruption, acceleration or hindrance that is: (1) reasonably unforeseeable; (2) beyond the control of Construction Manager; (3) not caused or contributed to by Construction Manager, any Trade Contractor or Lower Tier Contractor, and (4) caused by one of the causes described in Article 11 of this Agreement.

“Fee” shall mean the fixed fee that is Construction Manager’s compensation for management of the Pre-Construction Phase and of the Construction Phase of the Project as set forth as part of Exhibit S.

“Fees-and-Costs” shall mean, in the context of dispute resolution, all actual expenses of any legal proceeding borne by a party to this Agreement, including, but not limited to, fees and expenses of all attorneys (including both inside and outside counsel); architects; engineers; expert witnesses; contractors; consultants; third party witnesses (and their separate attorneys’ fees, where borne by a party to this Agreement); and other persons providing any services relating to any legal proceeding; court fees and charges; all costs of transcripts; printing of briefs and records on appeal; copying; trial graphics; jury consultants; trial presentation expenses; and all other reimbursable costs and expenses charged by any of the foregoing.

“FF&E” shall mean, collectively, furniture, furnishings, fixtures, accessories and similar items relating to the Project.

“Field Directive” shall mean a written directive to perform Work that is issued solely by Owner.

“Final Completion” shall mean that Construction Manager has satisfactorily completed all of the Work in strict conformity with the requirements of the Contract Documents, and the Work has been finally accepted by the Owner.

“Final Completion Date” shall mean the date determined by Owner when the Work has been completed and accepted by Owner.

“Final Payment” shall mean the last payment to Construction Manager, including Retainage, in connection with the Project.

“Force Majeure Event” shall mean acts of God and similar casualties beyond the reasonable control of Construction Manager, as described in Article 11.

“General Conditions Cap” shall mean a percentage or fixed amount which shall serve as a cap on the amount of General Conditions Costs that will be reimbursed by Owner in connection with the Work, as will be set forth in Exhibit D to the Agreement.

“General Conditions Costs” shall mean those costs identified in Section 7.3 of this Agreement which relate to Construction Manager’s management of the Project and operations at the Project Site.

“GMP” shall mean the guaranteed maximum price for the Work set forth in Exhibit S.

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“Governmental Authorities” shall mean all Federal, State, local and quasi-governmental agencies having jurisdiction over the Project, including but not limited to the New York City Building Department.

“Hazardous Materials” shall mean: (1) any “hazardous waste” as defined by the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), as amended, and regulations promulgated thereunder, (2) any “hazardous, toxic or dangerous waste, substance or material” specifically defined as such in (or for the purposes of) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601, et seq.), as amended, and regulations promulgated thereunder; (3) any “hazardous waste” or “hazardous substance” as defined by applicable New York State laws and regulations), as amended, and regulations promulgated thereunder; and (4) any hazardous, toxic or dangerous waste, substance, or material as defined in any so-called “superfund” or “superlien” law or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning such waste, substance or material.

“Indemnitees” shall mean Owner, Developer, INGREDUS Site 8 South LLC, Architect, Interiors Project Owner, Interiors Construction Manager, Lender and their respective members, partners, principals, shareholders, directors, agents, employees, successors and assigns.

“In-Scope Change Order” shall mean a Change Order that is funded within the GMP including, but not limited to, from the Construction Contingency.

“Interiors Project” shall mean the buildout within Base Building of The New York Times headquarters and The Times Center.

“Interiors Architect” shall mean, with reference to The New York Times Headquarters portion of the Interiors Project, Gensler and Partners, or its successor designated in writing by the Interiors Project Owner, and with reference to The Times Center, shall mean Architect, or its successor designated in writing by the Interiors Project Owner.

“Interiors Construction Manager” shall mean the construction manager retained by the Interiors Project Owner for the fitout of the Interiors.

“Interiors Project Owner” shall mean NYT Real Estate Company, LLC.

“Job Progress Report” shall mean the monthly report that Construction Manager is required to submit in accordance with Section 4.5.10.

“Key Employees” shall mean those employees of the Construction Manager identified in Exhibit M, who will have primary responsibility for implementing the Construction Manager’s obligations under this Agreement.

“Last Settlement Offer Before Trial” shall mean, in the context of dispute resolution, either: (1) the final amount in immediately available funds offered in complete resolution of the dispute delivered in writing by one party to the other party no later than twenty (20) days prior to the first witness being sworn to give testimony in any trial of the legal proceeding; or (2) where no offer was made in accordance with the preceding subclause (1), the amount of zero (0).

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“Lease Agreement” shall mean the Agreement of Lease between 42nd St. Development Project, Inc., as Landlord, and The New York Times Building LLC, as Tenant, dated December 12, 2001.

“Lender” shall mean any entity or institution that provides financing to Owner in connection with the Project.

“Long Lead-Time Item” shall mean a material and/or piece of equipment which must be ordered substantially in advance of the date on which it is scheduled to be incorporated into the Work because of its lengthy production, manufacturing, fabrication or delivery schedule.

“Lower Tier Contractor” shall mean a contractor having an agreement with a Trade Contractor to perform a portion of the Trade Contractor’s scope of Work, together with any other contractors to whom the Lower Tier Contractor may further delegate portions of the Work.  The term also includes lower-tier suppliers.

“Milestone” shall mean a specified event or completion of a specific portion of the Project required for Construction Manager to receive the Time Bonus indicated in Section 6.4.

“Milestone Dates” shall mean those dates which mark the completion of the Milestones required for Construction Manager to receive the Time Bonuses set forth in Section 6.4.  One or more of the Milestone Dates may be changed by an approved Change Order issued pursuant to Section 11.7.2.

“OCIP” shall mean the Owner’s Controlled Insurance Program as described in Section 14.2.

“Open Access Floors” shall mean the Core and Shell work described in Section 4.5.27.6.2.

“Out-of-Scope Change Order” shall mean a Change Order that is funded by an increase in the GMP.

“Owner” shall mean The New York Times Building LLC.

“Owner-Caused Delay” shall mean a Delay in the Project Schedule caused by an act or failure to act on the part of Owner or any party for whom Owner is legally responsible.

“Owner-Furnished Items” shall mean material, equipment and other items selected, purchased and provided to Construction Manager by Owner outside of the GMP.

“Owner-Furnished Information” shall mean data, documents, studies, analyses, reports and similar items to be furnished by the Owner to the Construction Manager.

“Owner’s Consultants” shall mean designers (other than Architect and Architect’s Consultants), other specialty consultants and advisors, who are retained directly by Owner including, but not limited to, the firms and individuals identified in Exhibit I hereto.

“Payment Bond” shall mean a surety bond provided by a Trade Contractor to assure payment to Lower Tier Contractors.

“PCO” shall mean a potential Change Order proposal submitted by Owner to Construction Manager.

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“Performance Bond” shall mean a surety bond provided by a Trade Contractor to assure completion of that Trade Contractor’s scope of Work.

“Permitted Assignee” shall mean any Affiliated Entity of Owner.

“Person” shall mean: (1) an individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association or other entity; (2)any Federal, State, county or municipal government (or any bureau, department, agency or instrumentality thereof); and (3) any fiduciary acting in such capacity on behalf of any of the foregoing.

“Phases of Work” shall mean those portions of the Work as itemized in Section 6.1.

“Pre-Construction Phase” shall mean that preparatory phase of Construction Manager’s services prior to and in preparation for commencement of the Construction Phase of the Work.

“Preliminary Schedule” shall mean the schedule attached hereto as Exhibit C.

“Pre-Purchased Item” shall mean an item, material and/or equipment purchased by Owner, Construction Manager or a Trade Contractor in advance of the time that such Item will be installed in the Work, and stored on or off Site.  Pre-Purchased Items include, but are not limited to, Long Lead-Time Items.

“Prevailing Party at Trial” shall mean, in the context of dispute resolution, a party awarded an amount in any trial of the Legal Proceeding which, net of any offsets and counterclaims awarded to the other party, is greater than the Last Settlement Offer Before Trial made by the other party.

“Principal-in-Charge” shall mean the individual designated by Construction Manager and identified in Exhibit M to generally oversee successful and timely completion of the Project.

“Progress Payment” shall mean monthly payments to the Construction Manager based on the percentage of Work completed as measured against the approved Schedule of Values for the Project.

“Prohibited Person” shall mean: (1) any Person (1.1) that is in default after notice and beyond any applicable cure period, of such Person’s obligations under any material written agreement with New York City, the State of New York, or any of their instrumentalities, or (1.2) that directly controls, is controlled by, or is under common control with a Person that is in default after notice and beyond any applicable cure period, of such Person’s obligations under any material written agreement with New York City, the State of New York or any of their instrumentalities, unless, in each instance, such default or breach either (i) has been waived in writing by New York City, the State of New York or any of their instrumentalities as the case may be or (ii) is being disputed in a court of law, administrative proceeding, arbitration or other forum or (iii) is cured within thirty (30) days after a determination and notice from Owner that such Person is a Prohibited Person as a result of such default; (2) any Person that is an Organized Crime Figure; (3) any government, or any Person that is directly or indirectly controlled (rather than only regulated) by a government, that is finally determined to be in violation of (including, but not limited to, any participant in an international boycott in violation of) the Export Administration Act of 1979, as amended, or any successor statute, or the regulations issued pursuant thereto, or any government that is, or any Person that, directly or indirectly, is controlled (rather than only regulated) by a government, the effects or the activities of which are regulated or controlled pursuant to regulations of the United States Treasury Department or executive orders of the President of the United States of America issued pursuant to the Trading with the Enemy

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Act of 1917, as amended; (4) any Person that is in default in the payment to the City of New York of any real estate taxes, sewer rents or water charges totaling more than $10,000, unless such default is then being contested in good faith in accordance with applicable Legal Requirements or unless such default is cured within thirty (30) days after a determination and notice from Owner that such Person is a Prohibited Person as a result of such default; or (5) any Person (6.1) that has solely owned, at any time during the 3-year period immediately preceding a determination of whether such Person is a Prohibited Person, any property which, while in the ownership of such Person, was acquired by the City by in rem tax foreclosure, other than a property in which the City has released or is in the process of releasing its interest pursuant to the Administrative Code of the City of New York, or (6.2) that, directly or indirectly controls, is controlled by, or is under common control with a person that has owned, at any time in the 3-year period immediately preceding a determination of whether such Person is a Prohibited Person, any property which, while in the ownership of such Person, was acquired by the City of New York by in rem tax foreclosure, other than a property in which the City of New York has released or is in the process of releasing its interest to such person pursuant to the Administrative Code of the City of New York.

“Project” shall mean the construction of the Core & Shell of the Base Building of approximately 1,540,000 gross square feet on a site located on Eighth Avenue between 40th and 41st Streets in New York, New York, all as more fully described in Exhibit A hereto.

“Project Executive” shall mean the individual designated by Construction Manager and identified as such in Exhibit M hereto.

“Project Manual” shall mean a manual prepared by the Construction Manager and approved by the Owner that sets forth the information described in Section 3.1.18.

“Project Schedule” shall mean the schedule in CPM format, prepared by the Construction Manager and approved by the Owner, detailing the sequence and time durations for the Work and the Milestone Dates, including any approved revisions or updates thereto.

“Project Team” shall mean Owner, Owner’s Representative, Construction Manager, Architect and all Consultants, regardless of whether retained by Owner or Architect.

“Project Website” shall mean the website for the Project, to be established and maintained by the Owner for the duration of the Project in accordance with the Guidelines set forth in Exhibit K.

“Punchlist” shall mean a list, compiled by Construction Manager and Architect at Substantial Completion, and approved by Owner, which identifies items of Work that remain to be completed or corrected prior to Final Payment.

“Purchase Order” shall mean a written agreement between Construction Manager or a Trade Contractor and a Supplier in connection with the furnishing by the Supplier of materials and/or equipment in connection with the Work.

“Qualifications and Assumptions” shall mean any express qualifications and assumptions of the Construction Manager underlying the GMP, that are set forth in Exhibit O to the Agreement.

“Recovery Plan” shall mean a written plan prepared by Construction Manager, which describes how Construction Manager intends to reorganize and/or accelerate the Work to compensate for Delays and regain the Project Schedule.

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“RFI” shall mean a request for information and/or clarification submitted by Construction Manager or any Trade Contractor.

“RFP” shall mean Owner’s original Request for Proposals dated April 26, 2003 together with the addenda issued thereto.

“Retainage” means an amount withheld by Owner from Progress Payments to Construction Manager equal to: (1) ten percent (10%) of Trade Contract Costs through 50% completion of the Work, which shall be held by Owner until Final Payment; and (2) ten percent (10%) of Construction Manager’s Fee, which shall be held by Owner until Final Payment.  No Retainage shall be withheld on General Conditions Costs.

“Samples” shall mean physical examples that illustrate materials, equipment or workmanship, and which establish standards by which the Work will be judged.

“Schedule of Values” shall mean a line item breakdown of Trade Contractor Work, prepared by Construction Manager and approved by Owner, which shall be used as a basis for Progress Payments to the Construction Manager.

“Schematic Design Documents” shall mean the Design Documents prepared by Architect during the Schematic Design Phase.

“Schematic Design Phase” shall mean that Phase in the development of the Design Documents during which Architect determines the scale and relationship of the Project components.

“Separate Contractors” shall mean contractors or construction managers, other than the Construction Manager, that are retained directly by Owner to perform Work or services in connection with the Project.

“Shop Drawings” shall mean drawings, diagrams, illustrations, schedules, performance checks and other data prepared by Construction Manager, any Trade Contractor or Lower Tier Contractor to illustrate how a specified portion of the Work will be constructed.

“Shop Drawing Submittal Schedule” shall mean a schedule, prepared by Construction Manager and approved by Owner and Architect, outlining the sequence and timing of the submission of Shop Drawings for review by Architect.

“Site” shall mean the place where the Work will be performed (excluding manufacturing and storage/warehousing facilities).

“Site Safety Manager” shall mean the certified individual appointed by Construction Manager to be responsible for Site safety.

“Specifications” shall mean written requirements for the Work prepared by Architect.

“Submittal” shall mean a Shop Drawing, Sample, catalog cut or similar item submitted by a Trade Contractor.

“Submittal Log” shall mean a log maintained by Architect indicating the dates of submission of Shop Drawings and other Submittals by the Construction Manager and their return after review by Architect.

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“Substantial Completion” shall mean that stage in the progress of the Work when the Project (or any designated portion thereof) is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Project (or that designated portion) for its intended use.

“Substantial Completion Certificate” shall mean the certificate issued by Architect and approved by Owner indicating the date upon which the Project (or a designated portion thereof) is Substantially Complete.

“Substantial Completion Date” shall mean the date identified in Architect’s Substantial Completion Certificate when the Work (or a designated portion thereof) is Substantially Complete.

“Substitution” shall mean a replacement or alternative to an item of material or equipment identified in the Construction Documents which is proposed by Construction Manager and approved in writing by Owner and Architect, as described in Section 4.5.37.

“Supplier” shall mean a person or entity that supplies materials and/or equipment to Construction Manager or to a Trade Contractor.

“Surplus Materials and Equipment” shall mean materials and equipment which are purchased by Construction Manager and paid for by Owner, but which are ultimately not incorporated into the Work or consumed in the course of performing the Work.

“Suspension” shall mean a delay, resequencing, stoppage and/or interruption of the Work (in whole or in part), in response to a written directive from the Owner, as more fully described in Section 16.3.

“Temporary Certificate of Occupancy” shall mean a certificate issued by Governmental Authorities when the Work is Substantially Complete.

“Temporary Systems” shall mean all barricades, provisions for utilities, offices and constructed facilities used in connection with the Work that will not remain as part of the Project when the Project is complete.

“Tenant” shall mean the occupants of any floor or floors of the Base Building.

“Termination for Convenience” shall mean the termination of this Agreement by Owner without cause, as described in Section 16.2.

“Termination for Default” shall mean the termination of this Agreement by Owner for cause, as described in Section 16.1.

“Testing” shall mean, with reference to equipment, performing those test required by the Contract Documents.

“The New York Times Headquarters” shall mean that portion of the Interiors Project that will be built out for The New York Times office headquarters, comprising approximately 825,000 gross square feet.

“The Times Center” shall mean that portion of the Interiors Project, comprising approximately 20,000 square feet, which includes a 400-seat auditorium, a companion space of similar size for exhibits and/or entertaining, a TV studio, retail store and ancillary space.

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“Time Bonus” shall mean the amount that Construction Manager will be eligible to receive upon achievement of each Milestone, as set forth in Section 6.4.

“Time Extension” shall mean the grant by Owner of additional time to complete the Work or discrete portions thereof, in connection with Change Orders and other causes of Delay.

“Trade Contract” shall mean a written agreement, generally in the form set forth in Exhibit B hereto, between Construction Manager and a Trade Contractor.  The term “Trade Contract” also includes Purchase Orders.

“Trade Contract Award Letter” shall mean a letter submitted by Construction Manager to Owner after completion of bidding process in a form approved by Owner.

“Trade Contract Costs” shall mean amounts billed by Trade Contractors for Work performed.

“Trade Contractor” shall mean a person or entity having a Trade Contract directly with Construction Manager to perform a portion of the Work or to supply materials and/or equipment.  The term “Trade Contractor” also includes Suppliers.

“Trademark” shall mean a trademark used by the Owner that is protected under U.S. Trademark Law.

“Trade Secret” any and all information that comes into Construction Manager’s possession, custody or control by, through, from, or on behalf of the Owner without regard to form, including, without limitation, any technical or non-technical data, formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customer or suppliers, that is not commonly known by or available to the public and with information: (1) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

“Trust Account” shall mean the bank account established by Construction Manager through which all payments to Trade Contractors will be processed.

“Unit Price” shall mean a Trade Contractor price for a specified unit of repetitive Work.

“Vendor” shall mean the manufacturer or seller of Owner-Furnished Items.

“Work” means all work and other services required to be performed by the Construction Manager under the Contract Documents, and includes all labor, materials, equipment and services to be provided by Construction Manager during the Pre-Construction and Construction Phases of the Project under the terms of this Agreement.

“Work Day” shall mean Monday, Tuesday, Wednesday, Thursday and Friday, excluding any nationally recognized union holidays, and excluding Saturday and Sunday.

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ARTICLE 2

GENERAL PROVISIONS

2.1  Relationship of the Parties

Construction Manager accepts the relationship of trust and confidence established between Construction Manager and Owner by this Agreement, and covenants to Owner to furnish its best professional skill and judgment, and to cooperate with Owner, Owner’s Representative, Architect and other members of the Project Team in furthering the interests of Owner as made known to Construction Manager.  Construction Manager agrees to use its best efforts to construct the Project at the lowest-reasonable cost and in an expeditious fashion consistent with budgetary, design, scheduling and other similar considerations.  Accordingly, Construction Manager will devote its best efforts toward: (1) maintaining the cost level of the Project at the lowest possible point consistent with good construction practices and the quality of materials and workmanship required and expected by Owner; (2) carrying out Owner’s intent and the direction of the Construction Documents; and (3) achieving the rapid and efficient construction and completion of the Work.  Construction Manager will bring to Owner’s attention any possibilities for cost savings that may present themselves over the course of the Project, and will confer with Owner periodically in order to determine whether there are any areas where, by design change or otherwise, costs may be reduced; provided however, that the Owner will make the final determination whether to pursue such cost savings.

2.2  Contract Documents

2.2.1Contract Documents Identified

The Contract Documents shall consist of the following:

2.2.1.lThis Agreement, including all the Exhibits and amendments hereto.

2.2.1.2Construction Documents and such other Documents as may be prepared by Architect and approved in writing by Owner.

2.2.1.3Change Orders, Emergency Change Orders, and Field Directives.

2.2.1.4The RFP.

2.2.1.5The Project Schedule prepared by Construction Manager and approved by Owner, as the same may be updated, modified or extended in accordance with the applicable provisions of this Agreement.

2.2.1.6The letter dated January 16, 2004 from Owner to the Construction Manager regarding the New York Times Ownership Structure and Project Financing.

2.2.2This Agreement     The Contract Documents form the agreement between Owner and Construction Manager.  References in the Contract Documents to “the Contract” or “this Contract” shall be deemed to include all of the Contract Documents.  References to “this Agreement” or “the Agreement” shall refer to this instrument, which is one of the Contract Documents.

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2.2.3Intent of Contract Documents

The intent of the Contract Documents is to include within Construction Manager’s scope of Work the obligation to perform and provide all labor, supervision, materials and supplies, insurance, tools, equipment, permits, licenses, taxes, approvals, transportation, testing and field surveying and other services and items as are necessary to satisfactorily complete the Work.  Matters not expressly included in the Contract Documents, but which are reasonably inferable therefrom as being necessary to produce the intended results shall be deemed included as part of the Work.  For purposes of this Section, the scope of Work shall be deemed to include: (1) items commonly associated with items of Work shown; (2) repetitive items; and (3) items commonly associated with the indicated purpose or quality.

2.2.4Conflicts Among Contract Documents

The Contract Documents are complementary and cumulative, and what is called for by one shall be as binding as if called for by all.

2.2.5Industry Terminology

Words and abbreviations that have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.  In resolving any conflicts among the Contract Documents, the Contract Documents shall be given precedence based on the order in which they are set forth in Section 2.2.1.

2.2.6Resolution of Conflicts and Ambiguities in the Contract Documents

2.2.6.1Construction Manager shall carefully review the Contract Documents for conflicts or ambiguities.  If any conflicts or ambiguities are discovered by Construction Manager in or among the Contract Documents, Construction Manager shall immediately bring the same to the attention of Owner for resolution.  It is expressly understood and agreed that Owner, in consultation with Architect, shall be the interpreter of the Construction Documents and shall resolve any such conflicts and ambiguities.  The risk of performing any Work relating to any such conflict or ambiguity prior to the timely resolution of the same, shall be borne by Construction Manager without increase to the GMP.

2.2.6.2The layout of mechanical and electrical systems, equipment, fixtures, piping, ductwork, conduits, specialty items and accessories indicated on the Construction Documents is diagrammatic.  The actual Work shall be carried out so as not to affect the architectural and structural integrity and limitations of the Base Building or the Project, and shall be performed in such sequence and manner as to avoid conflicts and provide clear access to all control points, including valves, strainers, control devices and specialty items of every nature related to such systems and equipment.  If Construction Manager, after a careful review of Shop Drawings, Coordination Drawings and the Construction Documents, discovers or has knowledge of: (1) conflicts between Shop Drawings, the Coordination Drawings and/or the Construction Documents; or (2) any conflicts between existing conditions at the Site and the Construction Documents which, in Construction Manager’s professional opinion, are of a nature that may affect the architectural or structural integrity or limitations of the Base Building or the Project, Construction Manager shall immediately shall bring the same to the attention of Owner for resolution.  The risk of any Work relating to such a conflict that is performed by Construction Manager or by any Trade Contractor prior to the resolution of the conflict shall be borne by Construction Manager without increase to the GMP.

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2.2.7Drawings and Specifications

The Drawings and Specifications, which together comprise the Construction Documents are complementary.  Anything shown in any of the Drawings and not mentioned in the Specifications, or mentioned in any of the Specifications and not shown in the Drawings, shall have the same effect as if shown or mentioned in both.  In the event of a conflict between the Drawings and the Specifications, Construction Manager shall be required to perform the more complete installation, unless directed otherwise by Owner in Owner’s sole discretion.

2.2.8Representative Details

A typical or representative detail indicated on the Construction Documents shall constitute the standard for workmanship and materials throughout corresponding parts of the Work, unless otherwise approved by Owner.

2.3  Construction Manager’s General Obligations

2.3.1Participation in Development of Design Concept

The general scope of the Work, as initially reflected in the Original RFP and in the Construction Documents, shall be developed by Construction Manager into a detailed design and construction schedule, and further refined as the preparation of the Construction Documents progresses during the Pre-Construction Phase of the Project, so as to include and define the scope, parameters and anticipated timing for the Work, and the quality of materials and workmanship required and expected by Owner.  Construction Manager represents that Construction Manager: (1) has become acquainted with the design concept and scope of the Work, as reflected in the Drawings and Specifications identified in Exhibit F; (2) has visited and inspected the Project Site, including the location of adjacent structures and utilities and access to the Project Site; and (3) will actively participate with Owner and Architect in further development of the design concept into Construction Documents for the Project.

2.3.2Project Management

2.3.2.1Construction Manager agrees to furnish efficient business administration with emphasis on budget control, cost estimating, construction scheduling, coordination of the Work, supervision and construction management, and further agrees to perform the actual Work in an expeditious and economical manner consistent with the best interests of Owner.  Construction Manager shall utilize the Project Website as an active management tool and shall be responsible for posting (whether by posting itself or by causing appropriate Trade Contractors to post) Project documentation on a regular and timely basis as elsewhere described in this Agreement.

2.3.2.2Construction Manager shall assist Owner in developing and maintaining a climate of understanding and good will with all Governmental Authorities, the local communities adjacent to the Project Site, unions, new tenants at the Project site and the public at large.

2.3.2.3Construction Manager shall generally advise and assist Owner in all matters concerning construction of the Project and, upon request by Owner, provide advice and assistance with regard to matters concerning which the Construction Manager, being familiar with the construction industry, might be consulted.

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2.3.2.4All recommendations to be provided by Construction Manager shall be rendered promptly and in writing; shall state the advantages and disadvantages of various courses of action and evaluate alternatives; and shall be in sufficient detail to enable Owner to analyze such recommendations and make informed decisions with respect thereto.

2.4  Ethical Obligations

2.4.1Sales Commissions, Trade Discounts and Contributions

Construction Manager shall not accept, for its own account, any sales commissions, trade discounts or contributions of any type from third parties in connection with the Work.

2.4.2Conflicts of Interest

Construction Manager shall not:

2.4.2.1deal with (or recommend that the Owner deal with) any firm or entity in which Construction Manager has a financial or other interest;

2.4.2.2undertake any activity or employment which would or could create a conflict of interest, compromise Construction Manager’s professional judgment or otherwise prevent Construction Manager from serving Owner’s best interests;

2.4.2.3employ in connection with the Project, or recommend the acceptance of a bid from any Trade Contractor employing, with respect to the Project, any relative (including in-laws) of any officer or director of Construction Manager without fully disclosing such relationship in writing at the time that bids are solicited.

2.4.2.4allow any officer, director, employee, agent or consultant, acting on behalf of Construction Manager, to negotiate, accept, approve or otherwise participate in any Trade Contractor or Trade Contract in connection with which that individual has, directly or indirectly, a financial or other personal interest.

If Construction Manager becomes aware of any of the foregoing situations or circumstances, Construction Manager shall immediately notify Owner in writing, and obtain Owner’s written approval before proceeding.  Failure to so notify Owner and obtain Owner’s written approval of an actual or potential conflict of interest shall constitute a material breach of this Agreement, entitling Owner to terminate Construction Manager for default.  Termination of this Agreement pursuant to this Section shall result in forfeiture by Construction Manager of its Fee earned to the date of termination.

2.4.3Ethical Conduct

2.4.3.1Construction Manager acknowledges that Owner is committed to having the Work performed in accordance with the highest ethical standards applicable to, or governing, the conduct of construction practices.  In furtherance thereof, Construction Manager hereby agrees to comply with and observe all Applicable Laws, trade standards and ethical guidelines governing performance of the Work.

2.4.3.2In furtherance of the obligation set forth in Section 2.4.3.1, Construction Manager shall cause all of Key Employees identified in Exhibit M to sign the affidavit

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attached hereto as Exhibit L, once as a condition of their assignment to and participation in the Project, and a second time as a condition of Final Payment to Construction Manager.

2.5  Equal Opportunity

2.5.1No Discrimination

Construction Manager shall not discriminate against any employee or applicant for employment because of race, creed, color, national origin, marital status, sex, disability, sexual preference or age.  Construction Manager shall take such actions as are reasonably necessary to ensure that employees and applicants for employment are treated without regard to their race, creed, color, national origin, marital status, sex, sexual preference or age.  As used herein, the term “treated” shall mean and include, without limitation, the following: recruited, whether by advertising or other means; compensated, whether in the form of rates of pay or other forms of compensation; selected for training, including apprenticeship; promoted; upgraded; demoted; downgraded; transferred; laid off; and terminated.  Construction Manager agrees to comply with all Affirmative Action requirements set forth in Exhibit G.

2.5.2Reporting and Audit Requirements

Construction Manager shall furnish all information and reports required by Governmental Authorities to determine Construction Manager’s compliance with the provisions of this Section 2.5 and Applicable Laws, and shall permit access to its books and records by Owner and/or any such Governmental Authority during regular business hours for purposes of investigation to ascertain compliance with this Section 2.5.

2.6  Cooperation with Interior Construction Manager, Trade Contractors and Architect

The Construction Manager shall cooperate and coordinate the Work with the work of the Interiors Construction Manager, the Interiors Trade Contractors, the Interiors Architect, the Commercial Office Construction Manager, the Commercial Office Architect, the Retail Construction Manager, and the Retail Architect.

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ARTICLE 3

PRE-CONSTRUCTION PHASE

3.1  Pre-Construction Phase Services

During the Pre-Construction Phase of the Project, Construction Manager shall, at a minimum, perform the services described below and such other services as may be requested by Owner, which services are not intended to limit the services set forth in the RFP or otherwise in this Agreement:

3.1.1consult with Owner (including various user groups, as designated by Owner), Architect, and other members of the Project Team to ascertain Owner’s needs and goals and the requirements of the Work.

3.1.2attend weekly meetings of the Project Team.

3.1.3thoroughly review all Design Documents, and all revisions and additions thereto, for the purpose of preparing and submitting to Owner a preliminary Construction Budget.  The Construction Budget shall be in such form and shall contain such detail as Owner may require and shall be revised monthly or more frequently if Owner so requires.

3.1.4provide assistance to and cooperate with Owner, Architect and Owner’s code consultant in obtaining all necessary approvals of Governmental Authorities having jurisdiction over the Project.

3.1.5review the Design Documents on an ongoing basis during their development by Architect to advise Owner regarding: (1) proposed Site use, logistics and improvements; (2) selection and availability of materials, building systems and equipment; (3) methods of Project delivery; (4) Long Lead-Time items; (5) potential areas of Trade conflict; (6) value engineering recommendations; (7) possible economies; (8) constructability; and (9) completeness of the Design Documents.

3.1.6review all Design Documents and Construction Documents, and use best efforts to identify any failure of said Documents to comply with Applicable Laws, including, but not limited to, applicable building codes.  Construction Manager shall advise Owner and Architect of any failure of the Design Documents or Construction Documents to comply with Applicable Laws that Construction Manager identifies.  Construction Manager shall not, however, by virtue of this review, become liable for Architect’s failure to design the Project in accordance with all Applicable Laws.

3.1.7advise Owner regarding the costing and procurement of Pre-Purchased Items, when early procurement is in Owner’s best interests including, but not limited to, the purchase of Long Lead-Time Items.  If Owner procures any Pre-Purchased Item itself, Owner shall have the right to assign the Purchase Order for that Pre-Purchased Item to Construction Manager or a Trade Contractor.

3.1.8participate in value engineering reviews with Owner and Architect.

3.1.9review the Design Documents on an ongoing basis as they are being prepared for the purpose of making recommendations to Owner and Architect regarding:

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3.1.9.1availability of labor, materials, equipment and supplies.

3.1.9.2elimination of possible conflicts and/or overlapping jurisdictions among the various trades or overlapping responsibilities among Trade Contractors.

3.1.9.3conflicts and omissions and/or variations from customary construction practices and methods which may cause difficulties or delays in the performance of the Work.

3.1.9.4discrepancies and deficiencies in the Design Documents, or between the Design Documents and existing conditions at the Project Site.

3.1.9.5conduct of construction operations utilizing good construction practices.

3.1.9.6costs of labor, materials, equipment and supplies to be used in the Work.

3.1.9.7costs on comparable projects.

3.1.9.8unit prices and alternates.

3.1.9.9required Temporary Systems and Project support facilities.

3.1.9.10construction detailing.

3.1.9.11achievement of construction economies through alternative methods, materials, or concepts, consistent with Owner’s requirements and sound construction practice.

3.1.9.12temporary Certificate of Occupancy process.

3.1.10Comply with all Affirmative Action Requirements annexed hereto as Exhibit G.

3.1.11Provide: (1) a code compliance analysis of the Site; and (2) a confirmation of Building infrastructure, Site analysis and related probe work.

3.1.12Advise and make recommendations to Owner and Architect regarding the best order and sequence for the development of the Construction Documents.

3.1.13Maintain written records of all communications with, and recommendations made to, Architect, and Architect’s responses thereto.  Construction Manager shall make such records available for inspection by Owner at all times, and promptly furnish Owner, upon request, with copies of all correspondence and notes relating to communications between Construction Manager and Architect relative to the Work and the Project.

3.1.14Advise and consult with Owner and Architect with regard to division of the Construction Documents into appropriate Bid Packages.

3.1.15Develop and refine the preliminary Site logistics plan in cooperation with the corresponding plan being developed by the Building Construction Manager;

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3.1.16Prepare (and update regularly) a Project Manual which addresses Construction Manager’s policies, together with the policies of Owner and Architect on the following issues:

3.1.16.1Coordination with Interiors Construction Manager’s operations.

3.1.16.2Document control, including filing systems.

3.1.16.3Submittals, including Submittal Schedules, number of copies required and control logs.

3.1.16.4Clarifications, fully setting forth the process for requests for information.

3.1.16.5Change Order control, including related time extensions.

3.1.16.6Schedules, including CPM Requirements and occupancy schedules.

3.1.16.7Cost Control procedures, including cost reports.

3.1.16.8Quality Control procedures, including management, inspection and testing.

3.1.16.9Safety Procedures.

3.1.16.10Photography Requirements.

3.1.16.11Coordination procedures, including Coordination Drawings and coordination meetings.

3.1.16.12Monthly progress reports.

3.1.16.13Application for Payment process.

3.1.16.14Meetings including pre-construction, progress and others.

3.1.16.15Trade Contractor/Supplier/Vendor dispute resolution procedures.

3.1.16.16Closeout procedures, including procedures for Substantial and Final Completion inspections, preparation of Punchlists, and the preparation of As-Built Drawings.

The Project Manual shall be subject to Owner’s approval prior to implementation.

3.1.17Construction Manager shall confirm that materials, equipment and labor are currently available to accomplish the Work.  Construction Manager shall continually thereafter undertake materials and labor surveys, including analyses of the following with respect to materials and equipment; all materials and equipment required for the Work; a forecast of the availability thereof; and any factors or potential occurrences identified by Construction Manager which might affect the future availability of such materials and equipment.  With respect to labor, Construction Manager shall prepare an analysis of costs, types and quality of labor required for the Work; a forecast of labor availability as and when needed; and a schedule of the dates of all union contracts coming up for renewal during the anticipated period of the Work.

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3.1.18Construction Manager shall perform other services similar in type to those described above including, but not limited to: preparation of such other schedules, reports, budgets and other technical data as may be reasonably requested by Owner; and attendance at such meetings during the Pre-Construction Phase as Owner may reasonably request in order to assist in the preparation of the Construction Documents, cost estimates, updated Project Schedules and any other documents and instruments relative to the Project, to the end that Final Completion of the Work may be achieved within the budgetary and time objectives set forth in this Agreement.

3.1.19Construction Manager acknowledges that portions of the Pre-Construction and Construction Phases may be on-going at the same time and that certain services performed by Construction Manager may overlap.

3.1.20As part of Pre-Construction Phase Services (and at no additional charge to Owner), Construction Manager shall coordinate and cooperate with parties working on the Interiors Project including, but not limited to, the Interiors Architect, Interiors Construction Manager, and Interiors Trade Contractors.

3.1.21Construction Manager shall provide information as required for a tax cost segregation study.

3.1.22Throughout the Pre-Construction Phase, Construction Manager shall post on the Project Website (or cause Trade Contractors to post), as appropriate, documentation generated or received by Construction Manager in the performance of Construction Manager’s services.

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ARTICLE 4

CONSTRUCTION PHASE

4.1  Performance of the Work

Construction Manager shall perform or furnish all labor, materials, plant, tools, supplies, equipment, services, transportation, scaffolding, permits, licenses, supervision, and inspection (temporary utilities to be provided by Owner), and all General Conditions items identified in Exhibit D attached hereto.  Construction Manager shall provide all services, business administration and supervision, necessary for, or incidental to, the successful prosecution of the Work in an expeditious and economical manner, consistent with industry accepted standards, and in strict and complete compliance with: (1) the Contract Documents; (2) Applicable Laws pertinent to the means and methods of performing the Work; (3) acceptable construction industry practices; (4) the Affirmative Action Requirements attached hereto as Exhibit G, (5) the hoisting and logistics plan attached hereto as Exhibit T, as such may be amended to meet the requirements of Applicable Laws, and (6) the best interests of the Owner.  The Work shall be free from defects and represent “first quality” workmanship and materials.

4.2  Coordination with Interiors Work

Construction Manager acknowledges that work on the Interiors Project will proceed concurrently with and overlap Construction Manager’s Work on the Project.  Accordingly, Construction Manager agrees to coordinate and cooperate with the Interiors Construction Manager and the Interiors Trade Contractors on all matters affecting the Work including, but not limited to: (1) access; (2) storage space; (3) staging areas; (4) utilization of elevators and hoists; and (5) the phased turnover of floors.  Construction Manager acknowledges that work on the Commercial Office and Retail Projects may proceed concurrently with and overlap Construction Manager’s Work on the Project.  Accordingly, Construction Manager agrees to coordinate and cooperate with the respective Construction Manager and trade contractors on all matters affecting the Work including, but not limited to: (1) access; (2) storage space; (3) staging areas; (4) utilization of elevators and hoists; and (5) the phased turnover of floors.  Owner acknowledges that Construction Manager intends to use some of the commercial retail space for staging its Work.

4.3  Bidding Process

4.3.1Management of Bidding Process

Construction Manager shall be responsible for managing and scheduling the competitive bidding process for Trade Contracts.  Notwithstanding the foregoing, Owner shall have the right, in its discretion, to participate in all aspects of the bidding process.  The exercise by Owner of the rights of participation, review and approval set forth in this Section 4.3 shall not diminish Construction Manager’s obligations relative to the bidding process as set forth herein.

4.3.2Pre-Qualification of Bidders

All bidders shall be pre-qualified based on criteria to be established jointly by Owner and Construction Manager.  The Bidders List, which shall contain a minimum of three pre-qualified bidders for each anticipated buyout in excess of $10,000 (unless otherwise approved by Owner in writing),

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shall be developed by Construction Manager.  The Bidders List shall be subject to Owner’s approval, which may be withheld in Owner’s discretion.

4.3.3Pre-Bid Conferences

Construction Manager shall conduct pre-bid conferences to familiarize bidders with the Bid Documents and administration of the bidding process.  Construction Manager shall respond to bidders’ questions by issuing addenda.  The bid form shall be subject to review and approval by Owner.

4.3.4Submission and Evaluation of Bids

Bids shall be submitted by bidders at a place and time established by Owner.  Owner shall establish a procedure for the receipt and opening of all bids.  Owner shall have the right to be present at all bid openings, and to review all bids including, but not limited to, riders or addenda submitted by bidders for clarification purposes to identify “exclusions” that could result in a distortion or skewing of the bids.  Construction Manager shall receive, level and analyze all bids.  Construction Manager shall prepare a written evaluation and comparison of the bids.  Construction Manager’s evaluation of bidders shall include qualitative criteria such as experience, bondability and financial resources, as well as quantitative criteria.

4.3.5Recommendations Regarding Award

Construction Manager shall make written recommendations to Owner regarding the award of Trade Contracts.  Subject to Owner’s approval, Construction Manager shall negotiate the most favorable price and terms to be included in such Trade Contracts.  Construction Manager shall not allow any “holds” or other forms of contingencies within a Trade Contract price.  Individual Trade Contract contingencies shall be included in the overall Construction Contingency.

4.3.6Trade Contract Award Letter

4.3.6.1After completion of the bidding process for each trade, Construction Manager shall, by Trade Contract Award Letter in a form to be approved by Owner in writing, advise Owner as to: (1) which Trade Contract bid it intends to accept; (2) the price of the proposed Trade Contract; and (3) any proposed material differences between the provisions of the Trade Contract form and the terms of the Trade Contract that Construction Manager proposes to enter into.  For purposes hereof; the term “material difference” shall be deemed to mean changes to the Trade Contract form that: (1) permit the Trade Contractor thereunder to observe a lesser standard of care in the performance of its obligations to Construction Manager under the Trade Contract than Construction Manager is obligated to observe under the terms of this Agreement; and/or (2) any other difference which may have a cost, liability or other consequence to Owner.

4.3.6.2Upon receipt by Owner of Construction Manager’s Trade Contract Award Letter, Owner shall countersign the Trade Contract Award Letter, setting forth no objection by Owner, or Owner’s rejection or other comment regarding any differences between the proposed Trade Contract and the Trade Contract form, and the Work to be performed by Construction Manager shall be deemed changed to the extent of the differences accepted therein.  Owner has the absolute right to reject any Trade Contract Award Letter.  If Owner rejects a Trade Contract Award Letter which has no “material differences” as defined in Section 4.3.6.1 for any reason, or if Owner rejects a Trade Contract Award Letter which has a material difference without a good faith reason, then Owner may indicate no objection to one of the other Trade Contractors and the GMP and/or Project Schedule (as identified in

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the Trade Contract Award Letter) shall be increased or decreased by Change Order based on the difference between the rejected and the approved Trade Contract amounts.  Construction Manager, upon receipt of the Trade Contract Award Letter countersigned by Owner, shall promptly make all required changes in the proposed Trade Contract and award the Trade Contract in question.

4.3.7Prior bids.

The GMP is based on some bids that Construction Manager has solicited, coordinated, and negotiated.  A removal or rejection by Owner of any bidder whose bid was used to determine the GMP may result in a change to the GMP.  The GMP will be adjusted only to the extent that the bidder is greater than the line item for that trade in the budget annexed to the Agreement as part of Exhibit S.

4.4  Trade Contracts

4.4.1Requirement for Written Trade Contracts

Unless otherwise agreed upon in writing by Owner, all Work to be performed and all materials, equipment and supplies to be furnished in connection with the Work shall be performed or provided by Trade Contractors pursuant to written Trade Contracts awarded by Construction Manager.  No portion of the Work shall be performed by a Trade Contractor and no materials, equipment or supplies shall be furnished by any Supplier unless and until: (1) a Trade Contract is entered into between Construction Manager and the Trade Contractor in question; and (2) the Trade Contract is approved by Owner prior to execution (unless Owner expressly waives the requirement).

4.4.2Each Trade Contract shall set forth that Trade Contractor’s express undertaking to comply with: (1) Owner’s OCIP (if applicable); (2) Owner’s Affirmative Action Program as set forth in Exhibit G.

4.4.3Enforcement of Trade Contract Terms

Construction Manager covenants and agrees that it shall diligently enforce all terms and conditions of the Trade Contracts.

4.4.4Assignment of Trade Contracts upon Termination of Construction Manager

Each Trade Contract to be entered into by Construction Manager in connection with the Work shall contain a provision providing that, if this Agreement is terminated by Owner pursuant to Article 16 hereof, that Trade Contract, at the option of Owner, shall be assigned by Construction Manager to Owner, or to such other entity as Owner may direct.  In such event, Owner or its designees shall assume all of Construction Manager’s obligations thereunder arising from and after the date of the assignment; provided, however, that nothing contained herein shall be deemed to release Construction Manager from liability to such Trade Contractor or to Owner or Owner’s designees with respect to claims arising from events occurring prior to the effective date of such assignment.

4.4.5Ownership and Use of Documents

Construction Manager agrees that the Contract Documents belong to Owner, and may not be used by Construction Manager or any Trade Contractor other than as may be necessary for the performance of the Work hereunder.  Without limitation of the foregoing, all Documents furnished to Construction Manager are to be used only with respect to this Project and are not to be used on or in

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connection with any other project.  Submission or distribution of documents to meet official regulatory requirements or for other proper and necessary purposes in connection with the performance of the Work at the Project shall not be construed as a violation of this Section.  Construction Manager shall include the requirements of this Section in all Trade Contracts.

4.5  Construction Phase Scope of Work

The Construction Phase of the Work shall commence on the date of commencement of construction of any portion of the Work and shall end on the date of Final Completion of the Work.  During the Construction Phase, Construction Manager shall, at a minimum, perform the following services:

4.5.1Establishment of Administrative Procedures

Construction Manager shall: (1) establish procedures for the orderly and expeditious performance of the Work in accordance with the terms of this Agreement and the Project Manual; (2) perform, or cause to be performed, all Work necessary in connection with the Project; (3) establish procedures for administration of Trade Contracts; (4) maintain coordination among Trade Contractors; and (5) coordinate the Work with the Work of the Base Building Construction Manager.

4.5.2Site Organization

Construction Manager shall prepare Project Site organization chart and establish lines of authority as necessary to carry out the Work on a coordinated basis.

4.5.3Site Staff and Office

Construction Manager shall organize staff and assign personnel to various functional areas as necessary so that the Work may be controlled, coordinated and expedited.  Construction Manager shall establish a Site office, with appropriate furnishings, equipment and support staff.  The Site office shall have accommodations for up to five (5) representatives of Owner and Architect.

4.5.4Cost Forecasts

In consultation with Owner and Architect, Construction Manager shall prepare an initial cost forecast setting forth in such manner and detail as Owner may require, all anticipated costs of the Work for: (1) all Trade Contractors performing Work or furnishing materials and/or equipment under Trade Contracts on a trade-by-trade basis; and (2) General Conditions Work.  Construction Manager shall update the cost forecast monthly, or more frequently if requested by Owner, in consultation with Owner and Architect.  Construction Manager shall submit the updates to Owner for its approval, and shall make such adjustments thereto, including adjustments by reason of approved Change Orders, Emergency Change Orders and Field Directives, as Owner may deem appropriate, to keep Owner currently informed as to the anticipated aggregate Costs of the Work and the ability of Construction Manager to complete the Work within the GMP.  In addition, Construction Manager acknowledges that Owner will rely on Construction Manager for monthly cash flow analysis for the purpose of Owner’s financial planning.  Construction Manager agrees that it will provide timely and accurate information, to the extent possible, given the state of the Design Documents at the time.

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4.5.5Project Schedule Updates

Construction Manager shall update the Project Schedule (including a two-week look-ahead schedule) on a regular basis, but not less than one (1) time per month to assure maximum utilization of all Trade Contractors.  All revisions and updates to the Project Schedule shall be approved by Owner.

4.5.6Incorporation of Trade Contractor Schedules

Construction Manager shall review the submission of Trade Contractor portions of the Project Schedule, which Construction Manager shall incorporate into the Project Schedule in a timely and coordinated manner.

4.5.7Owner Approval of Changes

Construction Manager shall obtain Owner’s written approval of any Changes in the Work and any approvals or other documents necessary in connection therewith (including both scope Changes determined by Construction Manager to be outside the GMP, and in-scope Changes within the GMP).

4.5.8Job Site Meetings

Construction Manager shall conduct regular job site and coordination meetings with Trade Contractors and members of the Project Team.  Job meetings shall be held not less often than weekly, and coordination meetings shall be held as required.  Construction Manager shall prepare detailed written agendas and minutes of each such meeting, which shall be circulated to interested parties as directed by the Owner.  Agendas must be provided at least two (2) days before each meeting, and minutes must be provided within three (3) days after each meeting.

4.5.9Site Record-Keeping

4.5.9.1Construction Manager shall prepare and maintain, on a current basis, an on-Site record-keeping system, including, but not limited to: (1) records of all Changes in the Work necessitated by Change Orders, Emergency Change Orders and Field Directives; (2) RFI’s, which shall be posted, in unedited form, on the Project Website; (3) Project Schedules; (4) daily manpower breakdowns; (5) daily/weekly manpower reports required by the Affirmative Action Requirements annexed as Exhibit G; (6) Submittal Logs; (7) material lists; (8) records of all pertinent communications with Architect and Architect’s responses thereto; and (9) Daily Reports which shall record manpower breakdowns on a trade-by-trade basis with a description of the Work being performed each day by each trade, equipment and material deliveries, visitors, special occurrences, accidents, weather conditions, and other Work related information.  Construction Manager shall make such on-Site records available for inspection to Owner.  In addition, copies of all correspondence pertaining to the Work shall be maintained by Construction Manager and shall be made available at all times to Owner.

4.5.9.2Construction Manager shall maintain at the Project Site, on a current basis and make available to Owner, Architect, and/or Owner’s Consultants upon request copies of all Trade Contracts, Shop Drawings, Samples, operating and maintenance manuals, Construction Documents and any related documents and any revisions thereto.

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4.5.9.3Construction Manager shall maintain and make available to Owner upon request progress photos taken on a monthly basis according to a plan approved by Owner; and at Owner’s request, upon Final Completion of the Work.

4.5.9.4Construction Manager shall also maintain a current set of As-Built Drawings for all Trades, showing the Work as actually completed, in such form, content and detail and, at Owner’s option, in such electronic medium, as Owner may specify.

4.5.10Job Progress Report

Construction Manager shall submit to Owner each month a Job Progress Report which shall provide the following information: (1) the financial condition of the Work, including Trade Contract awards, Project modifications, anticipated cost summary, Change Order summary and projected cash needs; (2) status of the Work, including updated Project Schedules with projected critical dates compared with original Milestone Dates, status of job progress to date, current Work activity, projected Work activity for the following month, job photos and status of materials required; and (3) status of Shop Drawings, the Shop Drawing Submittal Schedule, Coordination Drawings, a coordination drawing routing schedule, and coordination meeting minutes.

4.5.11Coordination and Maintenance of Project Documentation

4.5.11.1Construction Manager shall assemble and review all required brochures, guarantees, certificates of compliance and related agreements and instruments.

4.5.11.2Construction Manager shall assure that Trade Contractors, Suppliers and Vendors maintain required insurance through the maintenance of current certificates of insurance.

4.5.12Submittal Schedule

Construction Manager shall submit to Owner a Submittal Schedule, which shall be prepared in consultation with Architect, and which shall be updated on monthly basis.  The status of outstanding Submittals should be addressed by Construction Manager at the weekly progress meetings and included in the meeting minutes.

4.5.13Submittal Process

4.5.13.1Construction Manager shall obtain and review for constructability and conformity with the Construction Documents, all Shop Drawings, Samples, catalog cuts and other Submittals provided by Trade Contractors, and comment to Owner and Architect on their form and any significant inconsistencies between the Submittals and the Construction Documents.  Owner’s reasonable CADD Standards shall apply to Trade Contractor Shop Drawings to the extent reasonably possible based on the technical infrastructure of individual Trade Contractors.  After Construction Manager has conducted its review, Construction Manager shall promptly submit the Shop Drawings and other Submittals to Architect for review and approval.  Construction Manager shall coordinate and cooperate with Architect throughout the Submittal review process.  After return of the Shop Drawings and other Submittals from Architect, the Construction Manager shall review Architect’s comments thereon; evaluate and consult with Owner as to their impact on the Project; and distribute the Shop Drawings and other Submittals to the submitting Trade Contractors and all other affected parties.  Construction Manager shall diligently act to discover and resolve any conflicts between Shop Drawings and other Submittals submitted by Trade Contractors.

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4.5.13.2Construction Manager shall oversee the preparation and ongoing development of Coordination Drawings.  This process, in part, is intended to recognize and resolve design conflicts in advance of fabrication and installation of the various components of the Work.  Construction Manager agrees that it shall cause the Trade Contractors to expeditiously and thoroughly prepare and submit Coordination Drawings, so as to facilitate the identification and resolution of conflicts, including errors in the Construction Documents.

4.5.14Coordination of Purchase Orders

Construction Manager shall establish and coordinate with Owner a system for processing, expediting and administering Purchase Orders for the procurement of materials, supplies and equipment.  Construction Manager shall submit to Owner a schedule of Purchase Orders.  Construction Manager shall manage the procurement and delivery of critical materials to the Project Site and coordinate deliveries with the progress of the Work.

4.5.15Notification of Delays and Non-Conforming Work

Construction manager shall notify Owner and Architect of any delays, potential delays or non-conforming Work that may affect the Project Schedule, and provide Construction Manager’s recommendations regarding how to minimize the impact of such delays and/or non-conforming work.  Construction Manager shall recommend courses of action to Owner when the requirements of a Trade Contract are not being fulfilled, and the non-performing Trade Contractor fails or refuses to take satisfactory remedial action.

4.5.16Permits

Construction Manager shall obtain all necessary permits in conjunction with the Owner’s code consultant.

4.5.17Supervision and Coordination of Trade Contractors

Construction Manager shall inspect, manage and coordinate the work of all Trade Contractors; enforce the terms of the Trade Contracts; enforce strict discipline and good order among all Trade Contractors; cause Trade Contractors to leave the Work uncovered until such time as said Work has been inspected and approved by Construction Manager and/or Architect as required by the Contract Documents; and otherwise endeavor to guard Owner against any Delays, increased costs and defects and deficiencies in the Work.  In connection with the foregoing, Construction Manager shall: (1) inspect the Work daily to ensure that the Work as constructed complies with the Contract Documents and Applicable Laws; (2) require any Trade Contractor to stop Work which Construction Manager observes is not in compliance with the requirements of the applicable Trade Contract, the Contract Documents, recognized trade standards or the Applicable Laws; (3) reject and require to be corrected, those portions of the Work which Construction Manager discovers do not conform to the requirements of the applicable Trade Contract, the Contract Documents, recognized trade standards or the Applicable Laws; (4) inspect all materials, supplies and equipment delivered to the Site (or another storage location) or installed pursuant to any Trade Contract in an effort to determine that the same are in compliance with the requirements of the applicable Trade Contract, the Contract Documents, recognized trade standards and the Applicable Laws; (5) reject and require replacement of all non-conforming materials, equipment and supplies; and (6) not employ in connection with the Work any person or Trade Contractor unfit for, or unskilled in, the assigned task and, subject to Owner’s prior approval, remove such unfit or unskilled employee or Trade Contractor from the Project Site.

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4.5.18Cutting and Patching

Construction Manager shall arrange for all cutting, fitting or patching that may be required to complete the Work or to make its several parts fit together in a manner consistent with the Contract Documents.

4.5.19Informal Resolution of Trade Contractor Disputes

Construction Manager shall use its best efforts to resolve disputes between Trade Contractors relative to the performance of their Work or the furnishing of materials, or equipment or supplies in connection with the Work.

4.5.20Storage and Inspection of Materials and Equipment

Construction Manager shall arrange for the delivery, inspection, storage, protection and security of all materials, systems equipment and supplies provided in connection with the Work including, but not limited to, Pre-Purchased Items.

4.5.21Site Maintenance

Construction Manager shall maintain the Project Site in a safe and orderly fashion and provide clean-up of the Site on a daily basis.

4.5.22Site Security

Construction Manager shall provide security services in connection with the Work as approved by Owner.

4.5.23Site Safety

4.5.23.1Construction Manager shall enforce the implementation of necessary safety, health and environmental protection procedures (including, but not limited to, OSHA programs) during the performance of the Work, which shall include, but not limited to the erection and maintenance of Temporary Systems; the posting of danger signs and other warnings against hazards; the conduct of inspections; and enforcing the requirement that all Trade Contractors comply with Applicable Laws relating to safety, health, equal opportunity and environmental protection in connection with the Work.

4.5.23.2Construction Manager shall comply with, and shall require all Trade Contractors to comply with, the safety procedures and requirements of Owner’s OCIP.

4.5.23.3Construction Manager shall establish, implement and observe all safety, health and environmental protection measures during performance of the Work consistent with Applicable Laws; submit to Owner for approval, and periodically update, as necessary, safety plans for the Project showing the manner in which the aforesaid measures are to be implemented; and designate a responsible person or persons from Construction Manager’s organization or an independent person or persons from another firm or organization, subject to Owner’s approval, who shall be a Construction Manager’s certified Site Safety Manager and whose duties shall include the prevention of accidents.  The performance of such services by Construction Manager shall not relieve Construction Manager or

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any of the Trade Contractor firm of their respective responsibilities for the safety of persons and property in compliance with this Agreement and all Applicable Laws.

4.5.24Administration of Payment Process

4.5.24.1Construction Manager shall prepare a Schedule of Values for approval by Owner; prepare all Applications for Payment in a form reasonably similar to AIA Forms G702 and G703; determine, prior to the submission of each Application for Payment, whether and to what extent the sums requested therein are due and payable; and certify the same to Owner.

4.5.24.2Construction Manager shall receive and review Applications for Payment from Trade Contractors and Suppliers.  Construction Manager shall issue Applications for Payment incorporating same to Owner for review and approval.

4.5.24.3Construction Manager shall receive and review Partial Waivers of Lien and Release forms submitted by Trade Contractors and Suppliers in connection with Applications for Payments.

4.5.25Administration of Change Order Process

4.5.25.1Construction Manager shall establish procedures for processing Change Orders including, but not limited to, the maintenance of a Change Order Log.

4.5.25.2Construction Manager shall make recommendations with respect to anyChanges that Construction Manager may consider necessary or desirable in connection with the Work.  No Changes shall be made in connection with the Work without the prior written approval of Owner.  Construction Manager shall negotiate Change Orders on behalf of Owner.

4.5.25.3Construction Manager shall issue to Trade Contractors: (1) Change Orders approved by Owner; (2) all Emergency Change Orders; and (3) Field Directives.

4.5.25.4Construction Manager shall with respect to portions of the Work to be performed pursuant to a Change Order, an Emergency Change Order, or a Field Directive, on a time and material, Unit-Cost or other similar basis, provide for record keeping in connection therewith; maintain accurate cost accounting records; and provide copies of all such accounting records to Owner.

4.5.26Installation of FF&E

Construction Manager shall coordinate with and afford the Separate Contractors and Vendors reasonable opportunity to install or cause the installation of FF&E in the Project.

4.5.27Substantial Completion

4.5.27.1Construction Manager shall work with Owner and Architect to develop a schedule for Substantial Completion staged occupancy and turnover for fitout of the Interiors Project in accordance with the provisions of Section 4.5.27.6 Early Access.

4.5.27.2Construction Manager shall assist Owner in determining when Substantial Completion of the Work (or any discrete portion thereof) has taken place; and prepare (in consultation with Architect and Owner’s Consultants) Punchlists that identify incomplete or unsatisfactory items of Work.  Punchlists shall be limited to minor details that do not affect Owner’s

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ability to use the Project or any discrete portion thereof.  Construction Manager shall supervise all Work necessary to complete the items set forth on the Punchlists.  The failure to include any element of the Work on the Punchlists shall not alter the responsibility of Construction Manager and/or the Trade Contractors to complete the Work in accordance with the Contract Documents.  Upon satisfactory completion of all Punchlist Items, Construction Manager shall provide written notice to Owner and Architect that the Work has reached the stage of Final Completion and is ready for final inspection.

4.5.27.3On or before the Substantial Completion Date, Construction Manager shall clear the Project Site of all debris, construction materials, rubbish, rubble, discarded equipment or spillage of solid or liquid waste; shall remove all tools, construction equipment, machinery and surplus materials; and shall maintain the Project free of such items until Final Completion.  In addition, on or before Final Completion, Construction Manager shall clean, the Project Site, as provided in the Construction Documents.  If the Work or the Project Site is damaged by Construction Manager or any Trade Contractor, Construction Manager, without increase to the GMP, shall promptly repair and restore the portion so damaged to its condition immediately prior to such damage in a manner satisfactory to Owner and Architect.  If Construction Manager fails to undertake said cleaning, removal and repairs, the Owner may, at Owner’s sole option, avail itself of any of the remedies provided in this Agreement and, subject to giving 72 hours’ prior written notice to Construction Manager, Owner may also perform, or cause to be performed, the said cleaning, removal and repairs.  All additional expenses incurred by Owner in connection therewith, at Owner’s option, shall be reimbursed to Owner either: (1) by Owner withholding a corresponding amount from monies then due or next becoming due from Owner to Construction Manager; or (2) by Construction Manager paying such amounts to Owner on demand, after rendition of a bill or statement therefor.

4.5.27.4Prior to Substantial Completion of the Work, Owner or Owner’s designees, including, but not limited to, Separate Contractors, shall have the right to use all or any portion of the Project for the installation of FF&E.  Construction Manager shall coordinate with Owner’s furniture consultant, Vendors and Trade Contractors regarding the delivery, installation and wiring necessary for FF&E.

4.5.27.5Construction Manager shall use good faith efforts in making the premises available hereunder to Owner or Owner’s designees.  Such use or occupancy by Owner or Owner’s designees shall not: (1) constitute acceptance by Owner of any element of the Work or of the space, systems, materials or equipment incorporated in the Project; (2) be construed as a waiver of any right or claim by Owner in connection with any portion of the Work; or (3) affect the obligations of Construction Manager or any Trade Contractor for any Work which is not in accordance with the Contract Documents.  Construction Manager shall continue performance of the Work in a manner which shall not unreasonably interfere with said use, occupancy and operation by Owner or Owner’s designees.  Construction Manager agrees that it shall not interfere with, such use or occupancy by Owner or Owner’s designees, and that it shall cooperate with Owner and any designated occupants to facilitate early occupancy of the Project or discrete portions thereof.

4.5.27.6.1Tenants including, but not limited to, the Interiors Project Owner and the Commercial Office Owner, shall have the right of access to any floor (or group of floors) of the Base Building that will be occupied by such Tenant as part of such Tenant’s unit (or other space that may be leased by such Tenant, or any of its affiliates, in such unit) on a floor by floor (or group of floors) basis for the commencement of such Tenant’s interior improvement work as of the date that the construction milestone defined as “Open Access” with respect to any such floor (or group of floors) of the Building that will be so occupied by such Tenant.  The determination of the floor or floors which will constitute each block to be delivered to such Tenant (the “Open Access Floor(s)”) and the

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scheduling therefore shall be made by the Owner.  Construction Manager agrees that the Tenants shall have access to the Open Access Floors at the earliest feasible date.  The first Open Access Floors to be delivered are called the “Initial Open Access Floor(s).”

4.5.27.6.2The term “Open Access” shall mean that the Core and Shell work with respect to a block of Open Access Floor(s) has been completed to the following extent (the date such work shall be completed as to any block of Open Access Floor(s) is herein called a “Open Access Completion Date”:

(1)  concrete has been poured and metal decking installed through the floor above such Open Access Floor(s);

(2)  fireproofing has been completed to and through such Open Access Floor(s);

(3)  the main sprinkler riser has been installed;

(4)  the main HVAC trunk duct risers have been installed;

(5)  material and personnel hoists are serving the Improvements through such Open Access Floor(s) and are available for use by Tenant;

(6)  Base Building stairwells are erected to and through such Open Access Floor(s).

All of the work set forth in subsection 4.6.27.6.2(1) through (6) is herein referred to as the “Open Access Work.”

4.5.27.6.3Delivery to the Tenants of their respective Initial Open Access Floors and each subsequent block of Open Access Floor(s) with the Open Access Work completed with respect thereto, in sequence from the bottom up, in accordance with the schedule set forth in Exhibit C.

4.5.27.6.4On or before the Open Access Completion Date as to the Initial Open Access Floors and each subsequent block of Open Access Floor(s), all of the work necessary to provide the following to the Initial Open Access Floors and the Open Access Floors shall be completed, and Construction Manager shall cause such work to be completed expeditiously in accordance with the Open Access Schedule;

(1)  temporary power will be operational;

(2)  temporary water will be operational;

(3)  a separate temporary loading dock and laydown/staging area will be accessible.

4.5.28Initial Startup and Testing

Construction Manager shall assist Owner, Owner’s Consultants and Owner’s operating and maintenance personnel in the initial start up, testing and operation of the Work and all systems comprising any portion of the Work in accordance with a Commissioning Plan to be agreed upon by Owner and Construction Manager before the start of the Work.

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4.5.29Closeout

Prior to making Final Payment under any Trade Contract, Construction Manager shall: (1) prepare a Trade Contract status summary indicating the Trade Contract’s financial status, together with a summary of all approved Change Orders and payments made to date made under that Trade Contract; (2) secure and deliver to Owner all guarantees, warranties, affidavits, general releases, final waivers of lien and releases, certificates, consent of any surety to Final Payment, As-Built Drawings, maintenance manuals, operating instructions, keys and other documents and items required to be delivered under the Contract Documents, or requested by Owner, in connection with the Work; (3) provide, for itself and all Trade Contractors, all required Affirmative Action signoffs.  All such documentation and items shall be in a form acceptable to Owner.

4.5.30Labor Relations

4.5.30.1Construction Manager shall make recommendations regarding, and render assistance necessary for, the development and administration of an effective labor relations program for the avoidance of labor disputes during the performance of the Work.  The Construction Manager shall assist in negotiating any agreements with labor unions that will result in cost savings, and shall use its best efforts to secure better agreements.

4.5.30.2Construction Manager shall not, directly or indirectly, engage any Trade Contractor, mechanic or laborer in connection with the Work (even if such Trade Contractor, mechanic or laborer has been approved by Owner), or use any materials in connection with the Work in a manner that would disturb harmony with any Trade engaged in performing any other Work on the Project or in the Building (including, without limitation, the creation of any work slowdown, sabotage, strike, picket or jurisdictional dispute) or create any actual or anticipated interference with the operation of the Building or performance of the Work, Owner’s work force, construction in other space in the Building or construction being performed by or on behalf of other tenants in the Building.  Construction Manager shall immediately stop the performance of any Work, or the use of any materials in connection with such Work or use of any Trade Contractor, mechanic or laborer if Owner notifies Construction Manager that continuing such Work or employing such Trade Contractor, mechanic or laborer would so disturb harmony with any Trade engaged in performing any other work in the Building or create any actual interference with the operation of the Building, the performance of Work on the Project, construction in other space in the Building or construction being performed by or on behalf of other tenants in the Building.  Construction Manager shall cease the use of any such Trade Contractor, mechanic or laborer if Owner notifies Construction Manager that such employment is creating actual interference as described above.

4.5.31Trade Contractor Disputes

Construction Manager shall actively participate in the resolution of Trade Contractor disputes.

4.5.32Governmental Consents, and Approvals and Permits

4.5.32.1Construction Manager shall secure and deliver to Owner all governmental consents, approvals, licenses and certificates customarily obtained by a construction manager performing services similar to those being performed by Construction Manager hereunder, including, but not limited to, assisting Owner in obtaining Temporary and Final Certificates of Occupancy.  The making of Final Payment by Owner to Construction Manager hereunder shall be conditional upon the delivery by Construction Manager to Owner of the foregoing items, unless the

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failure to obtain any of the items is due to causes beyond the reasonable control of Construction Manager.

4.5.32.2Construction Manager acknowledges that Owner will obtain and pay for the building permit.

4.5.33Discounts, Rebates and Refunds

All cash discounts, rebates and refunds obtained by Construction Manager shall accrue to Owner.  Construction Manager promptly shall inform Owner of the availability of any cash discount available so as to afford Owner the opportunity to obtain the same, if Owner so elects.  All trade discounts, rebates and refunds, if any, and all returns from the sale of Surplus Materials and Equipment shall accrue to Owner, and Construction Manager shall take such steps as are necessary to ensure that Owner receives credit for all of the foregoing.

4.5.34Discharge of Liens

4.5.34.1If, at any time, a lien of any kind is filed against the Project by a Trade Contractor or anyone claiming through Construction Manager or a Trade Contractor for Work performed or for materials, equipment or supplies furnished in connection with the Work for which: (1) the Construction Manager has previously been paid by the Owner, or (2) Owner has not made payment because of a bona fide dispute between the parties, then Construction Manager shall, within seven (7) days after notice from Owner, commence to cause such lien to be cancelled and discharged of record by bonding or otherwise, and thereafter diligently pursue such cancellation or discharge, without any increase in the GMP.

4.5.34.2If any lien required to be removed pursuant to Section 4.3.32.1 hereof is not cancelled and discharged of record as set forth in that Section, Owner shall have the right to take such action as Owner shall deem appropriate (which shall include the right to cause discharge of such lien of record by bonding or otherwise.  In such event, all costs and expenses incurred by Owner in connection therewith (including but not limited to premiums for any bond furnished and reasonable attorneys’ fees and disbursements), shall be paid by Construction Manager to Owner on demand, or at the option of Owner, deducted from any payment then due or thereafter becoming due from Owner to Construction Manager in accordance with the terms of this Agreement.  In the event Owner elects to discharge such lien by placing security with the Court, Owner will so notify Construction Manager and Construction Manager will have 120 days to substitute its own security.  If Construction Manager fails to do so, Owner can satisfy the lien by payment and deduct all costs and expenses from sums due to Construction Manager.

4.5.35Inspection and Testing

4.5.35.1Notice of Inspection or Testing

If the Contract Documents, Applicable Laws or Governmental Authorities having jurisdiction over the Project require that any Work be inspected or tested, Construction Manager shall give Owner and Architect timely notice of the readiness of the Work for inspection or testing and the date fixed for such inspection or testing.  Construction Manager shall coordinate all Controlled Inspections, and shall give Owner and Architect timely notice thereof.

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4.5.35.2Special Inspections or Testing

4.5.35.2.1Whenever, in the opinion of Owner, it is desirable to require special inspection or testing of the Work or any portion thereof, Owner shall have authority to do so, regardless of whether the Work is then fabricated, installed, covered or completed.  All costs incurred in connection with such special inspection or testing shall be a Cost of the Work authorized by the issuance of a Change Order, unless the test reveals a failure of the Work to conform to the Contract Documents.  If the test indicates that the Work fails to conform to the Contract Documents, Construction Manager shall bear, without increase to the GMP, all costs of such special inspection or testing, including, without limitation, Architect’s and additional services made necessary thereby.  No inspection performed or not performed by Owner shall be deemed a waiver of any of Construction Manager’s obligations hereunder or be construed as an approval or acceptance of the Work or any part thereof.

4.5.35.2.2In the event of a test failure of any portion of the Work, Owner may require inspection or testing of any or all similar items of the Work.  Construction Manager shall bear, without increase to the GMP, all costs of such additional inspection or testing, including, but not limited to, Architect’s additional services made necessary thereby.

4.5.35.3Covered and Concealed Work

If any Work is covered or concealed contrary to the request of Owner or Architect, or requirements of the Contract Documents, such Work, if required by Owner, shall be uncovered for examination, inspection or testing without increase in the GMP.  If any such test results are below minimums specified in the Contract Documents, Owner may order additional examination, testing or inspection.  Such additional examination, inspection or testing shall likewise not increase the GMP.  Should Owner or Architect have reason to believe that defects exist in any Work which has already been covered or concealed, although a request not to cover or conceal such Work had not previously been made by Owner or Architect, such Work shall be promptly uncovered by Construction Manager and subjected to such tests, inspection or examination as may be deemed appropriate by Owner or Architect.  In such case, the provisions of Sections 4.5.35.2.2 shall control with respect to the costs associated with such uncovering.

4.5.35.4Correction of Rejected Work

Work rejected by Owner or Architect for failure to conform to the Contract Documents shall immediately be reconstructed, made good, replaced or corrected by Construction Manager, (including adjacent portions of the Work destroyed or damaged by such removal or replacement) without increase in the GMP.  All rejected materials shall be removed from the Project Site within a reasonable period of time.  Acceptance of materials and workmanship by Owner shall not relieve Construction Manager from its liability for and obligation to replace all Work which is not in full compliance with the Contract Documents.

4.5.35.5Owner’s Right to Accept Defective or Non-Conforming Work

At Owner’s option, subject to the concurrence of the Construction Manager, Owner may accept defective or nonconforming Work or materials, instead of requiring their removal, correction or replacement, and a Change Order shall be issued.  The amount of said Change Order shall reflect a

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reduction in the GMP in an amount equal to the aggregate cost of labor and materials which would have been incurred by Construction Manager if Owner had required Construction Manager to repair or replace such defective or nonconforming Work as required by the Contract Documents.  Such adjustment shall be effected whether or not Final Payment has been made.

4.5.36Materials and Equipment

4.5.36.1Transfer of Title and Responsibility

As the Work progresses, title to each item of material or equipment shall vest in Owner upon payment for such item by Owner.  Each such item shall then become the sole property of Owner, subject to the right of Architect to reject the same at any time prior to Final Completion for failure to conform to the Contract Documents.  Notwithstanding the foregoing, nothing contained herein shall be construed to transfer the risk of loss from Construction Manager or any Trade Contractor to Owner prior to incorporation of such materials or equipment into the Work, regardless of whether such loss is the result of damage, theft, vandalism or any other cause, or whether the same was caused by the negligent acts or omissions of Construction Manager or any Trade Contractor, or their failure to comply with their respective obligations under this Agreement or the Trade Contracts.  Accordingly, Construction Manager shall be responsible for arranging for insuring materials and equipment until the same are incorporated in the Work.  Owner shall be responsible for insuring materials and equipment from and after the date the same are incorporated into the Work as set forth in Article 14 hereof.  Notwithstanding the foregoing, Owner shall make arrangements to insure the foregoing applies to Pre-Purchased Items stored off-site, for which Owner has made payment.

4.5.36.2Trade Contractor Warranties No Encumbrances

Construction Manager shall warrant, and shall require each Trade Contractor to warrant, that: (1) title to all materials and equipment incorporated in the Work or paid for by Owner, including, without limitation, title to Pre-Purchased Items, shall pass to Owner free and clear of all liens, claims, security interests and encumbrances of every kind; and (2) that no materials or equipment covered by any Application for Payment will have been acquired by any other person performing Work at the Project Site or furnishing materials and equipment in connection with the Work subject to an agreement under which an interest therein or an encumbrance thereon shall have been retained by the seller or otherwise imposed by seller or any other person.

4.5.36.3Pre-Purchased Items

4.5.36.3.1Construction Manager shall be entitled to arrange for the procurement of certain Purchased Items of specified materials and equipment to be incorporated into the Work in advance of the time when such items are scheduled to be incorporated into the Work, provided that Owner shall have given its prior written consent thereto in each instance.  In such event, Construction Manager shall be entitled to requisition for 100% of the cost of such Pre-Purchased Items prior to installation.  Construction Manager, upon submission of its Application for Payment, shall deliver to Owner a bill of sale with respect to each Pre-Purchased Items evidencing unencumbered title to the same in Owner’s name, together with any warranties, certificates of insurance and other documents requested by Owner evidencing that such materials and equipment are covered by insurance as specified by Owner.

4.5.36.3.2All Pre-Purchased Items shall be stored at the Project Site or at such off-Project Site storage locations as shall have been approved in writing in each

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individual instance by Owner, and shall be subject to inspection at any time by Owner or Owner’s designee.  AnyPre-Purchased Items stored in off-Site storage locations shall be segregated from materials and equipment of others; shall be clearly labeled to evidence Owner’s ownership interest therein; and shall otherwise be stored in such manner as directed by Owner.  Insurance premiums, storage costs and other reasonable expenses incurred in connection with the off-Site storage of Pre-Purchased Items shall be included in the Costs of the Work.  The risk of loss or damage to such Pre-Purchased Items shall remain with Construction Manager until the incorporation of such Pre-Purchased Items into the Work.

4.5.36.3.3All Pre-Purchased Items obtained by Construction Manager shall be subject to the condition that, if, upon inspection of the same by Owner or if, upon incorporation of the same into the Work, Owner determines that such Pre-Purchased Items, or any portion thereof, are faulty or defective, then the Pre-Purchased Items shall be replaced, without increase in the GMP, Construction Manager’s Fee or General Conditions Costs, within thirty (30) days after receipt by Construction Manager of written notice to such effect from Owner or Architect.

4.5.36.4Owner-Furnished Items

Owner may elect to provide certain Owner-Furnished Items that shall, at Owner’s option, be stored at the Site or at an off-site location identified and arranged by Owner.  Owner shall have the right to assign the Purchase Order for any Owner-Furnished Item to Construction Manager who may, in turn, assign said Purchase Order to the appropriate Trade Contractor.  Construction Manager shall cooperate with Owner in the installation of Owner-Furnished Items into the Work.

4.5.37Substitutions

4.5.37.1Standards for Substitutions

4.5.37.1.1The materials and equipment of manufacturers identified in the Construction Documents are intended to establish the standard of quality and design required by Owner.  Notwithstanding anything to the contrary contained in the Construction Documents, materials and equipment of manufacturers other than those specified may be used only if accepted by Owner as provided in this Section 4.5.37.

4.5.37.1.2Owner, in consultation with Architect, shall be the judge of the equivalency of each proposed Substitution.  Architect shall make written recommendations with regard to the acceptance or rejection of proposed Substitutions to Owner.  Owner shall then issue to Construction Manager written approval or rejection of the proposed Substitution, and Construction Manager shall inform the appropriate Trade Contractor of said approval or rejection.  Owner, in its sole discretion, may authorize rejection of a proposed Substitution, notwithstanding the fact that Architect or may have judged it equivalent and recommended acceptance of the same.  In the event that a Substitution is necessary due to the unavailability of a specified item, any rejection by the Owner under this Section shall be accompanied by a recommendation by the Owner of a readily available Substitution.

4.5.37.2“Or Equal” Specifications

4.5.37.2.1When two or more materials or pieces of equipment are specified in the Construction Documents for an item of Work, any one thereof shall be deemed acceptable, and Construction Manager shall have the choice as to which product to use.

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4.5.37.2.2When only one material or piece of equipment is specified in the Construction Documents for an item of Work and the term “or equal” is used in connection therewith, Construction Manager may offer a Substitution by submitting awritten application to Architect, in sufficient time (taking into account the progress of the Work, the period of delivery of the items concerned and adequate time for Architect’s review), setting forth: (1) the proposed Substitution, together with substantiating data, samples, brochures and other documentation supporting the proposed Substitution, including, but not limited to, evidence that the proposed Substitution is equal in quality and serviceability to the specified item; will not entail changes in detail, schedule and construction of related Work; conforms with the design of the Project and its artistic intent; and will not result in an increase in the Costs of the Work; and (2) Changes in other parts of the Work required by reason of the proposed Substitution, and the cost consequences associated therewith.  A copy of any such application shall be delivered to Owner simultaneously with its delivery to Architect.

4.5.37.2.3When only one product is specified in the Construction Documents for an item of Work and the term “or equal” is not used in connection with such product, Owner, in its sole and absolute discretion, may authorize the rejection of any Substitution proposed by Construction Manager.  Notwithstanding the foregoing, if such specified product shall become unavailable for a material period of time, and Owner receives reasonably satisfactory proof from Construction Manager that the same shall be unavailable for reasons other than the failure of Construction Manager or a Trade Contractor to order such product in a timely manner, consistent with the Contract Documents and the Project Schedule, then, in such event, Owner shall consent to such Substitution, in which event any change in costs incurred in connection with the use of such Substitution shall be confirmed by a Change Order and included in the Costs of the Work hereunder.

4.5.37.3Support Required for Substitutions

Construction Manager shall support any request for a Substitution with sufficient evidence to permit Architect to make a fair and equitable recommendation to Owner on the merits of the proposal.  Any item by a manufacturer other than those identified in the Construction Documents, or of brand name, or model number or size or generic species other than those cited in the Construction Documents, shall be considered a Substitution.

4.5.37.4Acceptance of Proposed Substitutions

Acceptance by Owner of a proposed Substitution shall not relieve Construction Manager from responsibility for compliance with all of the requirements of the Contract Documents.  In addition, there shall be no increase in the Costs of the Work related to a Substitution, unless Construction Manager has notified Owner as required herein that the cost of the Substitution is an increase in the value of the substituted item, and Owner has approved such increase the issuance of a Change Order.  If Changes in other parts of the Work are required by reason of an approved Substitution, the costs of any such Changes shall likewise be confirmed by Change Order and included in the Costs of the Work.

4.5.37.5No Time Extensions

Except in the instances where a specified product is not commercially available, the Project Schedule shall not be adjusted as a result of any circumstance relating to a proposed Substitution.

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4.5.38Cost Segregation

Construction Manager shall be required to report costs per a “Schedule of Assets” list (“List”) provided by the Owner or Owner’s consultants.  Costs must be accurately associated with each and every item of the List for assets that are included in the Construction Manager’s scope of work as defined by the drawings, specifications, and/or contract agreement(s).  All change proposals shall include necessary language to sufficiently describe the asset and the related work to be performed thereunder.  A preliminary List will be provided within a reasonable time period after execution of this Agreement.  Owner may modify or add to the List during the course of construction relative to the scope of work for Construction Manager.  Construction Manager shall update the List periodically through the course of construction.  A final and completed List will be provided to Construction Manager within thirty (30) days of completion of Construction Manager’s contract.  Construction Manager is required to complete the final List within fifteen (15) days following its receipt.

4.6Warranties

4.6.1Materials and Equipment Warranties

Construction Manager warrants and represents that all materials and equipment incorporated in the Work shall be new and of good quality, free from improper workmanship and defective materials and in strict conformance with the Contract Documents and all Applicable Laws.  All Work not conforming to these requirements, including Substitutions not properly approved, may be considered defective, and must be corrected or replaced.  The Warranty on a piece of equipment installed in the Work shall: (1) commence to run on the date that the piece of equipment is first put into service under the Commissioning Plan; and (2) be the manufacturer’s standard warranty for that piece of equipment.  Owner’s option to purchase extended warranty coverage for materials and equipment shall be preserved in the applicable Bid Documents and/or Purchase Order.

4.6.2Return and Repair Warranty

Construction Manager shall guarantee (and shall require all Trade Contractors to guarantee) the Work for a period of one (1) year after Substantial Completion, during which time the appropriate Trade Contractor will return to the Site and replace or repair any defective or non-conforming item of Work identified by Owner.  In the event Construction Manager achieves Substantial Completion of a discrete building system, the warranties in connection with that building system will commence to run on the earlier of the date that Owner: (1) issues written approval and acceptance of such system; or (2) commences the use of the system for its intended purpose.  Owner shall give such written notice to Construction Manager promptly after discovery of an item of defective or non-conforming Work.  Notwithstanding the foregoing and in recognition that Construction Manager is required to include guarantees of the type contained in Trade Contracts, in the event that Owner shall agree in writing, in its sole discretion, to the inclusion in a specific Trade Contract of a period of guaranty which has a duration of less than one (1) year, then the obligation of Construction Manager under this Section with respect to the Work of such Trade Contractor shall be applicable only for the shorter period contained in the Trade Contract.

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4.6.3No Limitation on Statute of Limitations

Nothing contained in this Section 4.6shall be construed to establish a period of limitation with respect to any other obligation that Construction Manager might have under the Contract Documents.  The establishment of the time periods noted in Section 4.6.2, or such longer period of time as may be prescribed by Applicable Laws or by the terms of any warranty required by the Contract Documents, relates only to the specific obligation of the Construction Manager and the appropriate Trade Contractor to correct the Work, and has no relationship to the time within which the breach of the obligation of the Construction Manager or any Trade Contractor to comply with the Contract Documents may be sought to be enforced.  Nor is the time within which proceedings may be commenced to establish Construction Manager’s liability with respect to Construction Manager’s obligations under this Agreement affected by the provisions of Section 4.6.2.

4.7Compliance with Affirmative Action Requirements

Construction Manager agrees to comply with (and to cause all Trade Contractors to comply with) the Affirmative Action Requirements set forth in Exhibit G.  Construction Manager shall retain all Project records relating to the satisfaction of Affirmative Action Requirements for a period of not less than three (3) years after Final Completion of the Project.

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ARTICLE 5

MANAGEMENT OF THE WORK

5.1Key Employees

5.1.1Key Employees Identified

Construction Manager has designated the individuals identified in Exhibit M as Key Employees, who shall have primary responsibility for management of the Project.

5.1.2No Reassignment or Removal of Key Employees

Key Employees may not be replaced or reassigned by Construction Manager during the term of this Agreement (including both Pre-Construction and Construction Phases) without the prior written consent of Owner.  In the event that a Key Employee dies, becomes disabled or otherwise leaves the employ of Construction Manager, Construction Manager shall promptly propose a substitute of comparable expertise and experience who shall likewise be subject to Owner’s approval.  Construction Manager shall immediately remove any Key Employee whom Owner, in its discretion, determines is not performing in accordance with the best interests of the Project.

5.1.3Time Commitments of Key Employees

Construction Manager agrees that the Principal in Charge shall devote at least ten (10) percent of his time to the Project, and shall be available to Owner on an as-needed basis.  The Project Executive shall be available to Owner on an as-needed basis.  The Senior Project Engineer and Senior Project Superintendent shall be assigned to the Work on a full-time basis.  The Senior Project Engineer shall be stationed at the Project Site until Final Completion of the Work in order to facilitate performance and completion of the Work in the most expeditious and economical manner consistent with the interests of Owner.

5.2Support Staff

In addition to the Key Employees, Construction Manager shall staff the Project with appropriate support personnel, who shall be assigned to the Project as agreed by Owner and Construction Manager, and who may be stationed at the Project Site, in Construction Manager’s home office or a branch office, or such other location as may be approved by Owner.  Each support person whom Construction Manager intends to include as part of General Conditions Costs, and that individual’s salary or wage rate (and any increases thereto) shall be subject to Owner’s prior written approval.  Owner shall have the opportunity to interview all support personnel proposed by Construction Manager Construction Manager shall remove any individual support person whose continued participation is not, in the Owner’s determination, in the best interests of the Project.

5.3Authorized Representatives

Construction Manager hereby designates Andres Sosa, as the Construction Manager’s Authorized Representative, together with any other person(s) who, with prior written notice to Construction Manager, Owner may designate or appoint, to act in conjunction with Robert Willis who

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shall act as Owner’s Authorized Representatives.  Whenever this Agreement requires or permits the approval or consent of a party, such approval or consent shall be deemed given only if furnished by the respective party’s Authorized Representative in writing.  Any such approval or consent given by an Authorized Representative shall be binding on the respective party unless and until the other party has received written notice of the designation or appointment of a successor to the foregoing.

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ARTICLE 6

PAYMENT

6.1Phases

Each Application for Payment shall be submitted with a Summary Application together with separate Applications for each of the following Phases of Work:

(1)  New York Times;

(2)  FC Lion;

(3)  Retail; and

(4)  Auditorium.

Construction Manager shall comply with the Cost Allocation Guidelines attached as Exhibit R.

6.2Payments

Owner shall make Progress Payments to Construction Manager at monthly intervals in accordance with the following procedures:

6.2.1On or before the twenty-fifth (25th) day of the calendar month following commencement of the Work and on or before the twenty-fifth (25th) day of each calendar month thereafter, Construction Manager shall submit to Owner for review and certification, a “pencil-copy” Application for Payment, based upon the Schedule of Values approved by Owner, setting forth in detail: (1) Trade Contract Costs incurred by Construction Manager in connection with the Work during the immediately preceding twenty-five (25) day period, pro-rated through the end of the month (less Retainage as described in Section 6.2.2); (2) the portion of Construction Manager’s Fee as set forth in Exhibit S earned that month based on the percentage of completion of the Work; (less Retainage as set forth in Section 6.2.2); and (3) General Conditions Costs as set forth in Exhibit D.  Change Order Work may be included in monthly Applications for Payment based on the percentage of completion of the Change Order Work.

6.2.2After review by Owner, Construction Manager shall finalize the Application for Payment and submit it to Owner on the first (1st) day of the following month.  Any materials which are stored either on Site or off-Site (included, but not limited to, Pre-Purchase Items), but which have not been incorporated into the Work, shall be listed separately on each Application for Payment, and payment therefor is subject to compliance with Article 4.  The Application should show: (1) a deduction for Retainage equal to ten percent (10%) of Trade Contract Costs, but only until the Work of each Trade Contractor is fifty percent (50%) completed as determined by Owner and Architect, which amount shall be held by Owner until Substantial Completion of the Work; and (2) a deduction for Retainage equal to ten percent (10%) of Construction Manager’s Fee, which amount shall be withheld until Final Completion.  No Retainage shall be withheld on General Conditions Costs.  All Applications for Payment must be accompanied by such documentation (including Partial Waivers and Releases of Lien in the form set forth in Exhibit H for all payments through the prior Application for Payment) from Construction Manager and Trade Contractors as may be reasonably required by Owner.  Owner may require additional evidence of Construction Manager’s right to the payment claimed, and that title to equipment or materials not yet incorporated into the Project is unencumbered including, but not limited to, bills of sale, bills of lading, title documents, warehouse receipts and similar documentation.

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6.2.3Each Application for Payment shall constitute an express representation by Construction Manager that:

6.2.3.1the partial payment requested has been incurred by Construction Manager on account of the Work or is justly due to Trade Contractors;

6.2.3.2the materials, equipment and supplies for which such Application for Payment is being submitted have been installed or incorporated in the Project or have been stored at the Project Site or at such off-Project Site storage locations as have been approved in writing by Owner;

6.2.3.3the materials, equipment and supplies covered by prior payments are not subject to any security interests or similar encumbrances;

6.2.3.4no mechanic’s, laborer’s, vendor’s, materialman’s or other liens have been filed, or have been threatened to be filed, in connection with the Work or in connection with any of the materials, equipment or supplies incorporated therein or purchased in connection therewith, and in the event that Construction Manager cannot make such a statement, state in full the reasons therefor;

6.2.3.5no claims have been filed, or have been threatened to be filed, by any Trade Contractor or anyone claiming through any Trade Contractor in connection with the Project, or if such claim has been filed, or threatened state in full the reasons therefor;

6.2.3.6the Work which is the subject of such Application for Payment has been performed in accordance with the Contract Documents.

6.2.4Construction Manager shall carefully examine all payment breakdowns and Applications for Payment submitted by Trade Contractors in an effort to eliminate “front-end loading.” Construction Manager shall under no circumstances request or allow payments to be made to any Trade Contractor which are “front-end loaded,” and which do not accurately reflect the true value of the Work performed or the materials, equipment or supplies actually furnished.

6.2.5On or before the forty fifth (45th) day after Owner’s receipt of the Application for Payment, Owner shall pay Construction Manager an amount equal to the sum of: (1) Trade Contract Costs approved by Owner (less Retainage as set forth in Section 6.2.2); (2) General Conditions Costs; and (3) Construction Manager’s Fee (less Retainage as set forth in Section 6.2.2).  There shall be no Retainage on General Conditions Costs.  Construction Manager shall process and make payment to all Trade Contractors whose Work is included in the Application for Payment as paid by Owner within ten (10) Work Days after Construction Manager’s receipt of payment from the Owner.  This provision is strictly for the benefit of Owner in order that satisfactory morale and relations with Trade Contractors be maintained, and shall not under any circumstances confer any right upon any third party.  This provision shall be waivable by Owner, in writing, in Owner’s absolute discretion.  Owner reserves the right to make payment directly to Trade Contractors in the event that such payments are not made by Construction Manager as provided for in this Agreement.

6.2.6Within thirty (30) days following Substantial Completion of the Work and submission of an Application for Payment, Construction Manager shall be entitled to an amount equal to the balance remaining unpaid to Construction Manager for Costs of the Work, together with that portion of the Construction Manager’s Fee and General Conditions Costs then due, less an amount equal to the sum two times the value of the Punchlist prepared in accordance with Section 4.5.27.2.

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Notwithstanding the foregoing, it is expressly understood and agreed that if, at any time after Retainage with respect to a particular Trade Contract is released, a lien is filed against the Project which relates to Work performed or materials, equipment or supplies furnished by said Trade Contractor, and Construction Manager has failed to cancel or discharge such lien in accordance with Article 4, Owner, at its option, shall be entitled to hold back from the sums then due to Construction Manager an amount equal to all costs and expenses to be incurred by Owner in causing such lien to be discharged of record, including, without limitation, attorneys’ fees and disbursements;

6.2.7Within sixty (60) days following Final Completion of the Work, Construction Manager shall submit a Final Application for Payment which shall be accompanied by: (1) final Waiver of Lien and Release forms for Construction Manager and all Trade Contractors; (2) consents of sureties; (3) As-Built Drawings; (4) operating and maintenance manuals; (5) keys; (6) requirement permits and certificates; (7) affidavits of Key Employees as described in Section 2.4.3.2; and (8) all other documents and/or items which Construction Manager is obligated by the Contract Documents to deliver at Final Completion.  Upon receipt of said documentation and items in a form acceptable to Owner, Owner shall pay to Construction Manager an amount equal to the aggregate of the balance remaining unpaid to Construction Manager on account of Costs of the Work, the Construction Manager’s Fee, and the balance of any Retainage withheld under Trade Contracts.  Acceptance by Construction Manager of Final Payment following Final Completion of the Work shall constitute a waiver of all Claims of which Construction Manager had knowledge at the time of Final Payment, unless the same are expressly reserved in writing and identified by Construction Manager as unsettled at the time of Final Completion.  Such reserved Claims shall remain valid only for a period of one (1) year.

6.2.8Notwithstanding anything in this Agreement to the contrary, Owner, in its reasonable judgment, may withhold from any payment due or to become due to Construction Manager any amount which Owner, in its good faith opinion, deems sufficient to reimburse Owner for its actual or potential expenditures for the account of Construction Manager, or to secure Owner’s remedies in consequence of any actual or potential default or breach by Construction Manager under this Agreement including, without limitation, Owner’s opinion that the balance payable to Construction Manager under this Agreement would be insufficient to complete the Work.  In connection with any of the foregoing, Owner may nullify, in whole or in part, any previously approved Application for Payment upon reasonable basis.  Owner may, in its sole discretion, issue joint checks to Trade Contractors and/or Suppliers, although nothing herein shall obligate Owner to do so.

6.3  Payment Does Not Constitute Acceptance

No payment by Owner of any Application for Payment shall constitute acceptance by Owner of Work completed or of materials stored that are not in conformity with the Contract Documents, and no such payment shall be construed as a waiver of any right or claim by Owner in connection with such Work or stored material.

6.4  Incentive Bonuses

[*]

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[*]

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ARTICLE 7

GUARANTEED MAXIMUM PRICE

7.1  GMP

7.1.1A statement setting forth the price components of Construction Manager’s GMP is attached hereto as Exhibit S.  Construction Manager’s Qualifications and Assumptions are attached hereto as Exhibit O.

7.1.2The GMP shall be comprised of:

7.1.2.1Trade Contract Costs, as described in Section 7.2.

7.1.2.2General Conditions Costs, as described in Section 7.3 and Exhibit D hereto.

7.1.2.3Construction Contingency, as described in Section 7.4;

7.1.2.4Allowances, as set forth in Exhibit U;

7.1.2.5Construction Manager’s Fee included as part of Exhibit S.

7.2  Trade Contract Costs

Trade Contract Costs shall be based on the actual buyout of all Trades.  For those Trade Contracts that have not been bought out at the time that the GMP is given, the GMP shall include an estimate of Costs of the Work.  Construction Manager has specifically identified any allowances or contingencies relating to Trade Contract buyout.  Construction Manager shall advise Owner of any differential between an estimated Trade Contract price and the actual buyout of that Trade Contract.  The Construction Contingency may be adjusted to reflect such differential.

7.3  General Conditions Costs

General Conditions Costs set forth in Exhibit D.

7.4  Construction Contingency

7.4.1The Construction Contingency is the maximum sum available, subject to Owner’s approval, to cover unanticipated costs which would otherwise increase the Construction Manager’s costs as follows:

7.4.1.1Unforeseen conditions and events not evident to, or identified by, Owner or Construction Manager at the time of execution of this Agreement or circumstances arising after the execution of this Agreement such as:

7.4.1.1.1refinement of details of Architect’s design within the scope of Work and standards of quality and quantities on which the GMP was based;

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7.4.1.1.2abnormal field condition or difficulties resulting in additional costs, if such conditions or difficulties could not have been anticipated based on a reasonable review of the Contract Documents;

7.4.1.1.3additional costs incurred as a result of a default by a Trade Contractor in excess of Bond coverage;

7.4.1.1.4additional costs incurred as a result of items omitted by Construction Manager in the formulation of the GMP;

7.4.1.1.5correction of non-conforming Work or defects not due to negligence of Construction Manager or any Trade Contractor (correction of non-conforming Work or defects resulting from Construction Manager’s or Trade Contractor’s negligence are to be corrected by the responsible party at its own cost);

7.4.1.1.6costs associated with Time Extensions (to the extent permitted by Article 11);

7.4.1.1.7casualty losses and related expenses, not compensated by insurance or otherwise, sustained by Construction Manager or any Trade Contractor in connection with the Work, except to the extent such losses or expenses are attributable to gross negligence or willful misconduct of Construction Manager or any Trade Contractor, or result from the willful violation by Construction Manager or any Trade Contractor of Applicable Laws.  Such losses shall include settlements made with the prior written consent and approval of Owner.  Reimbursement shall not be made for any losses or expenses for which Construction Manager has or will be indemnified by third parties or for which Construction Manager would have been compensated by insurance, except for the failure of Construction Manager to procure and maintain insurance in accordance with the requirements of this Agreement or the failure of Construction Manager to comply with the requirements of any insurance carriers providing coverage for the Project.

7.4.1.1.8costs to repair Work damaged by Owner or any Separate Contractor.

7.4.1.1.9unanticipated costs associated with the buyout of Trade Contracts.

7.4.2Use of the Construction Contingency shall be reasonably approved in writing by Owner as provided herein.  No amounts may be charged to the Construction Contingency except with prior written approval of Owner, and then only to the extent that such amounts have been paid or are to be paid by Construction Manager.  Construction Contingency funds are further subject to the following restrictions:

7.4.2.1No sums may be charged to Construction Contingency for Work for which Construction Manager is entitled to an Out-of-Scope Change Order hereunder.

7.4.2.2No sums may be charged to the Construction Contingency for costs that arise out of Construction Manager’s willful misconduct, gross negligence or a material breach of sufficient magnitude to constitute an Event of Default under this Agreement.

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7.4.2.3Construction Manager is not entitled to payment of amounts which would otherwise be properly chargeable to the Construction Contingency to the extent that: (1) such amounts are properly chargeable to a Trade Contractor or other responsible person or entity; (2) Construction Manager failed to notify Owner or its insurance carrier, if applicable, of the event which results in the claim to the Construction Contingency within ten (10) calendar days of such event; or (3) such amounts exceed the Construction Contingency set forth in the GMP.

7.4.2.4The amount of the Construction Contingency shall be adjustable, and may be increased by Buy Saves, and/or decreased based on Owner-approved charges as described in this Section.  There shall not be any line item contingencies.

7.5  Construction Manager Acknowledgment of Incomplete Design Documents

Construction Manager acknowledges that the Design Documents to be reviewed by Construction Manager in connection with preparation of the GMP may be incomplete and subject to further development by Architect.  Notwithstanding the foregoing, Construction Manager understands and agrees that it will not be entitled to any increase in the GMP as a result of:

7.5.1final completion of the Construction Documents consistent with the design intent as expressed in the Design Documents reviewed by Construction Manager;

7.5.2any inconsistencies in or the lack of coordination of Construction Documents consistent with industry standard practices of coordination;

7.5.3the fact that Costs of the Work may not be precisely defined prior to final completion of the Construction Documents;

7.5.4an overrun in the buyout of any Trade Contract or a default in performance by any Trade Contractor;

7.5.5the extension of Milestone Dates, Substantial Completion Date, or Final Completion Date or any Delay in the performance of the Work for any reason whatsoever, except as provided in Article 9;

7.5.6Changes in the Work, except for those for which Construction Manager is entitled to a Change Order.

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ARTICLE 8

COSTS OF THE WORK

8.1  Limitation on Costs of the Work

In addition to the Construction Manager’s Fee, and subject to Owner’s receipt from Construction Manager of properly prepared monthly projections and of such other supporting documentation as Owner may reasonably require, Owner shall reimburse Construction Manager for the Costs of the Work set forth in this Article 8, to the extent such Costs of the Work are actually and necessarily incurred by Construction Manager in the performance of the Work.  Costs of the Work shall not include any costs that arise out of the grass negligence, willful misconduct, or breach of this Agreement by Construction Manager or by any Trade Contractor.

8.2  Trade Contract Costs

Trade Contract Costs include all costs paid by Construction Manager under Trade Contracts approved by Owner for Work performed (including the cost of Pre-Purchased Items procured by any Trade Contractor or by Construction Manager and assigned to a Trade Contractor) in accordance with the terms of this Agreement.

8.3  General Conditions Costs

General Conditions Costs as set forth in Exhibit D shall consist of the following items:

8.3.1Wages paid for labor of personnel in the direct employ of Construction Manager in the performance of construction services at the Site incident to the Work under applicable collective bargaining agreements, or under a salary, wage or hourly rate schedule agreed upon by Owner.  Agreed-upon salary, wage and/or hourly rate schedules may not be changed by Construction Manager without the prior written consent of Owner (except for adjustments for union employees where the adjustment is contractually mandated by the applicable collective bargaining agreement).

8.3.2When approved in advance by Owner, reasonable salaries paid by Construction Manager to its supervisory or administrative personnel when stationed at the Site or at Construction Manager’s home office or any branch office, based on salary schedules agreed to by Owner and Construction Manager, and attached hereto as Exhibit D.  No home office personnel, other than those identified in Exhibit D, may be charged to General Conditions Costs.  No change in the approved salary schedules shall be made by the Construction Manager without the Owner’s prior written approval.  Construction Manager’s supervisory or administrative personnel who are engaged at shops or on the road in expediting the production or transportation of materials or equipment in connection with the performance of the Work shall be considered to be stationed at the Site, and their salaries shall be paid for that documented portion of their time spent on performance of the Work.  Said employees of Construction Manager shall be paid on the basis of time cards and certified payrolls to which the Owner shall have ready access.  If a salaried employee who is fully chargeable to the Project spends any portion of his or her time working on another project, then Owner shall be entitled to a credit, on a reasonable hourly charge basis, for the time spent by said employee on such other project.  Owner shall be entitled to audit Construction Manager’s records relating to said employee in order to determine the amount of an appropriate credit.

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8.3.3Actual payroll taxes and contributions and other assessments or taxes for unemployment compensation, old age benefits, Worker’s Compensation and Employee Liability insurance, social security and other standard employee benefits, based on a multiplier (to be agreed upon by the parties) times the wages and salaries described in Sections 8.3.1 and 8.3.2.  Vacation and training costs for a salaried employee shall be prorated based on the amount of time the employee actually spends working on the Project.  No reimbursement will be made on account of fidelity insurance premiums.

8.3.4Actual costs and expenses incurred in connection with telephones installed at the Project Site, fax, messenger and overnight delivery service, blueprinting for Shop Drawings, reproduction, photographs and other similar petty cash items directly related to the Work.  Construction Manager shall limit such costs through use of the Project Websites as directed by Owner, and shall utilize outside contractors and Vendors designated by Owner for services including, but not limited to, messenger service, blue printing and reproduction.

8.3.5Actual costs of hand tools not owned by the workmen, less the reasonable salvage value obtainable on such items used, but not totally consumed, in the performance of the Work, and costs of canvases and tarpaulins used in the performance of the Work.  Construction Manager shall provide an inventory of such items based on original Purchase Orders.  At Owner’s option and at its direction, Construction Manager shall: (1) deliver all or any portion of such hand tools, canvases and tarpaulins to Owner; (2) use reasonable efforts to sell the same for the account of Owner; or (3) discard the same in the manner set forth in Article 4 hereof;

8.3.6Actual costs of all temporary structures and their maintenance, less the reasonable salvage value obtainable on such items which are used, but not totally consumed, in the performance of the Work; provided, however, that at Owner’s option and at its direction, Construction Manager shall: (1) deliver all such temporary structures to Owner; (2) use reasonable efforts to sell the same for the account of Owner; or (3) discard the same in the manner set forth in Article 4.

8.3.7Net rental charges and maintenance expenses for any Temporary system or structure necessary in connection with the performance of the Work (such as, for example, hoists), including the installation, erection, removal, transportation and delivery costs thereof.

8.3.8Net rental charges of all machinery and equipment (exclusive of hand tools) used at the Project Site in connection with the performance of the Work, together with costs incurred in the installation thereof, minor repairs and replacements thereto and the dismantling, removal, transportation and delivery of the same.  Any Trade Contract and/or Construction Manager Pre-Purchased Item in excess of $10,000 is subject to Owner’s prior written approval.

8.3.9Travel, to the extent Construction Manager receives prior written approval from Owner, to: (1) meetings in connection with the Project; (2) Trade Contractor’s offices; (3) yards; or (4) fabrication plants.  All domestic and international travel shall be economy or coach class at the lowest available fare, whether refundable or not.  Travel to the Project Site and to the New York City offices of Owner, Construction Manager, Architect and/or Interior Architect shall not be reimbursable as a General Conditions Cost.

8.3.10Royalties (if such royalties shall have been approved in writing by Owner); costs for the use of patented materials or processes (if the use of the same has been specified by Architect and/or approved in writing by Owner); and license fees necessary for the performance of the

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Work (excluding Work-related required licenses for the Construction Manager and its employees, agents and Trade Contractors).

8.3.11Federal, State and local sales, use, excise, personal property and other similar taxes, if any, which may be required to be paid by Construction Manager in connection with the Work, except taxes applicable, directly or indirectly, to the Construction Manager’s Fee.  Construction Manager shall be responsible for obtaining necessary tax exemption certificates for qualified costs.  All sales and use taxes shall be submitted to Owner for reimbursement as incurred.  No back billing of sales and use taxes will be accepted by Owner.

8.3.12Cost of premiums for any bond furnished in connection with, and for the discharge of, any lien.

8.3.13Costs of insurance and Payment and Performance Bonds required pursuant to Article 14.

8.3.14Costs of specialty consultants (approved in advance by Owner).

8.3.15Costs included in Exhibit D.

8.4  Back-up Documentation

Construction Manager shall allow Owner to review and copy Project-related accounting records including, but not limited to, records relating to personnel salaries and wages, and personnel-related expenses.

8.5  Control of Costs of the Work

Construction Manager shall use its best efforts to minimize Costs of the Work incurred, consistent with the intent and purposes of this Agreement, sound business practice and the instructions from Owner.  Owner reserves the right to audit Costs of the Work in accordance with this Agreement, and any adjustments which are yielded by an audit shall be paid to Owner by Construction Manager or, at Owner’s option, deducted from payments due to Construction Manager.

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ARTICLE 9

NON-REIMBURSABLE COSTS

9.1  Non-Reimbursable Costs

Owner shall not reimburse Construction Manager for any of the following costs, all of which shall be borne by Construction Manager at its sole expense:

9.1.1Salaries or other compensation of any principals and branch office heads of Construction Manager.

9.1.2Salaries of non-line staff personnel including, but not limited to, legal, billing/collections (except any accounting personnel based at the Project Site, financial, and corporate insurance (except OCIP-related personnel)).

9.1.3Operating Expenses of Construction Manager’s home and branch offices, including overhead and administrative expenses.

9.1.4Any part of Construction Manager’s capital expenses, including interest on capital employed in connection with the Work.

9.1.5Insurance-related costs.

9.1.5.1costs not reimbursed by insurance, arising: (1) out of the acts or omissions of Construction Manager (including acts or omissions of any Trade Contractor), or the failure of Construction Manager to perform its obligations under this Agreement, or (2) from the violation by Construction Manager (or any Trade Contractor) of any Applicable Law;

9.1.5.2casualty losses and related expenses sustained by Construction Manager (or by any Trade Contractor) in connection with tools, equipment, supplies and other personal effects owned or rented by Construction Manager (or by the Trade Contractor).

9.1.5.3any other costs which would have been insured but for the failure of Construction Manager (or any Trade Contractor) to carry the insurance required to be carried hereunder, or the failure of Construction Manager (or any Trade Contractor) to comply with the requirements of any insurance carriers providing insurance coverage for the Project, as set forth in Article 14.

9.1.6Losses, costs, and expenses (including attorneys’ fees and disbursements) incurred by Construction Manager in connection with, or a result of, the occurrence of any event expressly provided for under the terms of this Agreement wherein Construction Manager agrees to indemnify and hold harmless Owner against such losses, costs and expenses.

9.1.7Costs of the Work that have been Backcharged against or deducted from the compensation of a Trade Contractor for any reason.

9.1.8Costs resulting from the performance by Construction Manager or of any Trade Contractor of general conditions-type costs, other than or in addition to those types of costs expressly identified in Article 8 as being reimbursable by Owner.

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9.1.9Costs incurred by reason of Construction Manager’s failure to comply with its obligations under this Agreement, including parking or any other fines assessed by New York City or the State of New York.

9.1.10New York State and New York City sales and use taxes on any portion of the Work which is subject to exemption, as such exemption is identified to Construction Manager through means of a certificate of capital improvement or certificate of other exemption.  Construction Manager is responsible for obtaining applicable capital improvement and/or tax exemption certificates.

9.1.11Cost of insurance on tools and equipment owned by workmen.

9.1.12Costs of any item or expense which this Agreement expressly provides are to be paid or borne by Construction Manager at its sole cost and expense.

9.1.13Overtime charges, unless approved in advance by Owner.

9.1.14Vertical transportation costs (i.e., hoists, cranes, etc.) that are the responsibility of others.

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ARTICLE 10

CHANGES IN THE WORK

10.1Change Orders

10.1.1Owner, without invalidating this Agreement, may at any time direct Changes in the Work consisting of additions, deletions or other revisions.  All such required Changes in the Work shall be requested in a written PCO submitted to Construction Manager, and shall be authorized by Owner, and executed in the manner set forth in the following Sections:

10.1.2Construction Manager agrees to exercise its best efforts so that, within fifteen (15) days after the issuance of the PCO, Construction Manager shall furnish to Owner a signed Change Order Proposal, in a form satisfactory to Owner, setting forth in detail, with suitable breakdowns by trades and work classifications, and using the Unit Price and/or other costing method specified by Owner, Construction Manager’s estimate of: (1) the cost or savings of the Change reflected in the PCO, which cost shall be at the best price obtainable for, and shall reflect the most economical manner of affecting, such Change; and (2) the Changes in the Project Schedule (including the Substantial Completion Date and/or the Final Completion Date) which would result from implementation of Construction Manager’s Change Order Proposal.  Construction Manager shall not be entitled to any increase in Construction Manager’s Fee or General Conditions Costs in connection with the first ten million ($10,000,000) dollars in aggregate value of Change Orders.  To the extent Change Orders have resulted in an increase in the GMP in excess of ten million ($10,000,000) dollars, then Construction Manager shall be entitled to an increase of eight (8%) percent of the Cost of the Work as total compensation for Construction Manager’s Fee and General Conditions Costs.

10.1.3If Owner approves Construction Manager’s Change Order Proposal, Owner shall issue to Construction Manager a written Change Order signed by Owner, and the Substantial Completion Date and the Final Completion Date, the GMP and the Contract Documents, as the case may be, shall be adjusted, if required, in accordance with the terms of such Change Order.  All other terms and conditions of this Agreement shall remain in full force and effect.

10.1.4A Change Order shall be effective only when signed by Owner and Construction Manager.

10.1.5Construction Manager shall issue copies of all Change Orders to the appropriate Trade Contractors.

10.1.6Construction Manager shall bill promptly for Change Orders based on a consolidation of the Trades involved in implementing the Change Order.

10.2Field Directive

Owner, in its sole discretion, can direct Construction Manager to perform work upon issuance of a Field Directive.  If Construction Manager and Owner disagree on the value of Work to be performed under a Field Directive, or on whether such Work is part of Construction Manager’s Work under this Agreement, Construction Manager must so notify Owner in writing within fifteen (15) business days of receipt of the Field Directive and may seek legal recourse if the dispute is not resolved within 120 days thereafter, provided, however, that the Construction Manager shall continue

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performance of the Work in question pending resolution of the parties’ dispute.  Failure of Construction Manager to so notify Owner shall be deemed a waiver by Construction Manager of any increase in the GMP, Construction Manager’s Fee or General Conditions Costs and a waiver of any claim for a Time Extension.

10.3Emergency Change Order

Notwithstanding anything to the contrary set forth herein, Construction Manager and Architect shall each have the authority to issue Emergency Change Orders without the prior written approval of Owner.  Construction Manager shall: (1) notify Owner that an Emergency Change Order has been issued within twenty-four (24) hours after the same has been issued, which notice shall set forth the reason giving rise to the issuance of the same; and (2) promptly furnish Owner with copies of all such Emergency Change Orders.  Valid Emergency Change orders shall be confirmed by Owner by a duly issued Change Order.

10.4Full Payment for Change Orders

When paid by Owner to Construction Manager, the compensation specified in a Change Order shall constitute full payment for the additional Work covered thereby, including any delay/disruption cost or expense occasioned by reason of such Change.

10.5Backcharges

Construction Manager shall develop a procedure for the prompt processing of Backcharges among the Trade Contractors, which process shall be implemented by means of deductive Change Orders.  Construction Manager shall track all Backcharges, and shall provide Owner with a monthly status report.

10.6Change Order-Related Time Extensions

Each Change Order shall specify whether Construction Manager is entitled to a related Time Extension.  Construction Manager shall not be entitled to a Time Extension in connection with any Change Order unless the Time Extension is expressly stated therein.

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ARTICLE 11

SCHEDULE OF THE WORK AND OCCUPANCY

11.1Project Schedule

Construction Manager shall promptly and diligently perform, or caused to be performed, the Work in strict accordance with the Project Schedule approved by Owner and the Milestones set forth in the Project Schedule.  The Work shall be: (1) Substantially Completed on or before the Substantial Completion Date as set forth on the Project Schedule; and (2) Finally Completed on or before the Final Completion Date as set forth in the Project Schedule.

11.2CPM Schedule

Within ninety (90) days of the award of this Agreement, Construction Manager shall submit a detailed Project Schedule in CPM format, which includes the Milestones set forth in Section 6.4, and which will indicate a start date for the Work approved by Owner.  The Project Schedule shall be subject to review and approval by Owner.  Upon approval, the Project Schedule shall be attached hereto as Exhibit C, and shall serve as the baseline schedule for the remainder of the Project.

11.3Updates to CPM Schedule

Construction Manager agrees to coordinate all revisions to the Project Schedule with Owner’s scheduling consultant and to participate in update meetings on a monthly basis, or more frequently as required.

11.4Time of the Essence

Construction Manager further acknowledges that the timely performance of its obligations in accordance with the Project Schedule is of the essence of this Agreement.  This “time of the essence” requirement shall apply to all dates, time limits and time requirements set forth in this Agreement and in the Project Schedule.

11.5Requirements for Substantial Completion

The Work (or a designated portion thereof) shall be deemed Substantially Completed on the date when all of the following events or conditions shall have occurred:

11.5.1Owner may use and occupy the Project or, if requested by Owner, portions thereof without interference for all of its intended purposes under this Agreement;

11.5.2only Punchlist items, if any, remain incomplete, provided said Punchlist items, in Owner’s judgment, do not interfere with Owner’s use and occupancy;

11.5.3Architect shall have issued a Certificate of Substantial Completion; and

11.5.4Issuance of a Temporary Certificate of Occupancy.

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11.6Requirements for Final Completion

The Work shall be deemed Finally Completed on the date when Owner has received evidence satisfactory to Owner indicating that:

11.6.1all Work (including all items set forth on the Punchlist), has been fully and satisfactorily completed in a good and workmanlike manner; in conformance with the Contract Documents; to Owner’s satisfaction; and in full compliance with all Applicable Laws and requirements of Governmental Authorities having jurisdiction over the Project, including required sign-offs for the Project.  If the Work does not comply with Applicable Laws because the Construction Documents do not so comply, and Construction Manager had no knowledge of such non-compliance, nothing herein shall be deemed to shift liability for such non-compliance from Architect to Construction Manager.

11.6.2all final certificates of approval relating to the Work including, without limitation, all necessary certificates of the Board of Fire Underwriters or any successor thereto and the permanent certificate of occupancy, shall have been issued and delivered to the Owner.

11.6.3all required receipts, general releases, final waivers and releases of lien (in the form set forth in Exhibit H), affidavits (including, but not limited to executed copies of the Key Employee Affidavits set forth in Exhibit L), guarantees, warranties, consents of sureties, As-Built Drawings and any other documents required under this Agreement or the Trade Contracts shall have been issued and delivered to Owner.

11.6.4All required signoffs including, but not limited to, those relating to: (1) Affirmative Action Requirements; (2) sales taxes; and (3) OCIP requirements.

11.7Time Extensions

11.7.1Construction Manager hereby acknowledges that the Project will be tightly coordinated from a scheduling perspective, and agrees to manage the Work in a manner consistent with tight coordination and the requirements for timely performance set forth herein.

11.7.2Subject to other provisions of the Contract Documents and to the extent permitted by this Section, Construction Manager shall be entitled to an extension of the Substantial Completion and Final Completion Dates established by the Project Schedule only for Excusable Delays and Owner-Caused Delays: (1) which directly impact activities on the Critical Path of the Schedule; (2) which result from one or more of the causes set forth below; and (3) (i) were beyond the control of Construction Manager; and (ii) to the extent not caused by or contributed to, in whole or in part, by the fault, error, omission, or negligence of Construction Manager, Trade Contractors, or anyone directly or indirectly employed by them for whom they are responsible:

11.7.2.1Labor strikes (including strikes affecting transportation) unless precluded by any Project labor agreement, that do, in fact, directly affect the progress of the Work; provided, however, that Time Extension in connection with an individual labor strike shall not exceed the number of Days of said strike, together with a reasonable adjustment for demobilization and remobilization.  In any event, labor grievances, under existing agreements, representative matters, informational picketing and other labor matters shall not constitute a basis for a Time Extension (Excusable Delay).

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11.7.2.2Acts of the public enemy, war, civil unrest, terrorism, sabotage, acts of the State, Federal or local governments in their sovereign capacity; provided, however, that in no event shall Construction Manager be entitled to a Time Extension with respect to any acts of the State, Federal or local governments in enforcing any Applicable Laws relating to Construction Manager’s performance of the Work.  Construction Manager may, however, be entitled to a Time Extension if the enforcement of any Applicable Laws causes a Delay as a result of errors or omissions in the Construction Documents and not a result of Construction Manager’s failure to comply with any of the terms of this Agreement (Excusable Delay).

11.7.23Acts of the Interiors Construction Manager and/or Interiors Trade Contractors beyond those which might be reasonably anticipated based on the tight coordination described in Section 11.7.1 (Owner-Caused Delay).

11.7.2.4Changes ordered in the Work, provided that Changes Orders are properly authorized and approved under the provisions of Article 7 (Owner-Caused Delay).

11.7.2.5Any negligence or breach by Owner or Architect, or any act of the Owner specifically authorizing or approving the Delay in writing (Owner-Caused Delay).

11.7.2.6Acts of God, such as tornado, fire, hurricane, blizzard, earthquake, typhoon, or flood, that damage completed Work or to stored materials and equipment (but only to the extent that such materials and/or equipment was properly stored by Construction Manager) (Excusable Delay).

11.7.2.7Acts or failure to act of Owner, Architect and their respective agents, employees and Consultants which cause a Delay in the Work (Owner-Caused Delay).

11.7.2.8Acts of Separate Contractors performing Work on the Project (beyond those that might be reasonably expected based on the tight coordination described in Section 11.7.1) (Owner-Caused Delay).

Any and all changes in the Substantial Completion and/or Final Completion Dates shall be effected by Change Order as provided in Article 10.

11.7.3In the event that Construction Manager requests a Time Extension, Construction Manager shall furnish such justification and supporting evidence as Owner may deem reasonably necessary for a determination whether Construction Manager is entitled to a Time Extension under the provisions of this Agreement.  If Owner finds that Construction Manager is entitled to a Time Extension, Owner’s determination as to the total number of Days of the Time Extension shall be based upon the approved Project Schedule and on all relevant data.  The Construction Manager acknowledges and agrees that delays in activities which, do not affect the critical path of the Project Schedule or the Substantial Completion or Final Completion Dates will not be the basis for a Time Extension.  If the Owner determines that the Construction Manager is entitled to a Time Extension, an appropriate Change Order will be issued in accordance with Article 10.

11.7.4All notices of claims for Time Extensions shall be made in writing to the Owner within seven (7) Days of discovery by Construction Manager of the Delay, and the circumstances and activities leading to such claim shall be indicated in Construction Manager’s Daily Report for the Day(s) affected.  In the absence of such notice, all such claims for a Time Extension shall be deemed to have been waived by Construction Manager.  In making a claim for a Time

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Extension as a result of a Delay, the Construction Manager shall provide an estimate of the probable effect of such Delay.  Within twenty-one (21) Days after the completion of the circumstances or activity that caused the Delay, the Construction Manager shall finalize its claim for a Time Extension related to such Delay, and shall submit such final claim in writing to the Owner.

11.7.5In no case shall a Time Extension be granted because of any Construction Manager-Caused Delay.

11.8Compensation for Delay

11.8.1The Time Extension specifically provided for in Section 11.7 of this Agreement shall be Construction Manager’s sole and exclusive remedy for Excusable Delays.  Construction Manager shall not be entitled to any lost profits, consequential damages or other damages in connection with Excusable Delays.  Construction Manager hereby expressly agrees to waive its right to recover any damages for Excusable Delays.  Construction Manager may be entitled to access the Contingency in order to recover additional, documented General Conditions Costs up to a maximum amount reasonably demonstrated by Construction Manager and agreed to by Owner in writing for Excusable Delay to the extent such costs are not otherwise compensable under this Agreement.

11.8.2In addition to the Time Extension provided for in Section 11.7, Construction Manager shall be entitled to recover additional, documented General Conditions Costs up to a maximum amount reasonably demonstrated by Construction Manager and agreed to by Owner in writing for Owner-Caused Delays which continue after a sixty (60) cumulative day “grace period.” Construction Manager shall not be entitled to any other damages in connection with Owner-Caused Delays.  Construction Manager shall submit a written Claim for such costs within twenty-one (21) Days after cessation of the Owner-Caused Delay, and such costs shall be processed by Change Order.  Construction Manager may be entitled to access the Contingency in order to recover additional, documented General Conditions Costs up to a maximum amount reasonably demonstrated by Construction Manager and agreed to by Owner in writing for costs arising during the “grace period” of the Owner-Caused Delay to the extent such costs are not otherwise compensable under this Agreement.

11.8.3Construction Manager shall not be entitled to either a Time Extension or additional compensation in connection with Construction Manager-Caused Delays.

11.9Acceleration of the Work

Construction Manager shall notify Owner promptly if the Work, or any portion thereof, will not be completed within the time provided in the Project Schedule for any reason including, but not limited to, an Excusable Delay or an Owner-Caused Delay as described in Section 11.7.  If Construction Manager so notifies Owner, or if, in the opinion of Owner reasonably exercised, Construction Manager falls behind in the Project Schedule for any cause within the reasonable control of Construction Manager, Construction Manager shall take appropriate action to regain the Project Schedule, and shall, if requested by Owner, submit a Recovery Plan to demonstrate the manner in which the lost time may be regained.  Such actions on the part of Construction Manager shall not result in an increase in the GMP.

11.10Modifications to Project Schedule

Construction Manager shall make no modifications to the Project Schedule without first obtaining Owner’s prior approval thereof.  Revisions/updates to the approved Project Schedule shall

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address issues such as the following: (1) all major components of the Project and the Work, including Architect’s preparation of Design Documents; (2) critical design details; (3) matters relating to Trade Contractors and Trade Contract awards; (4) the Work of Separate Contractors; (5) Interiors Project coordination; and (6) Owner’s responsibilities.  All revisions/updates to the Project Schedule shall be subject to Owner’s written approval.

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ARTICLE 12

SEPARATE CONTRACTORS

12.1Owner’s Right to Engage Separate Contractors

Owner reserves the right to directly engage Separate Contractors to perform work on the Project.  These Separate Contractors may perform additional work relating to the Project, but beyond the Work covered by this Agreement.  Alternatively, Separate Contractors may be engaged by Owner to perform work covered by this Agreement which is not, in the opinion of Owner, being performed by Construction Manager in a manner consistent with the Project’s cost, quality and scheduling objectives.  The Owner’s agreements with Separate Contractors may include terms, covenants, conditions and warranties different from those in any Trade Contract or the Contract Documents.

12.2Cooperation and Coordination with Separate Contractors

Construction Manager shall, without additional compensation, cooperate and coordinate the Work with the work of such Separate Contractors.  Construction Manager shall integrate the schedules of individual Separate Contractors into the overall Project Schedule as reasonable and appropriate.  Construction Manager shall cooperate with the Separate Contractors in providing such access to the Project Site and to the Work including, but not limited to utilization of storage space, staging areas, hoists and elevators, as the Separate Contractors may reasonably request.  Construction Manager shall furnish to such Separate Contractors any services which Construction Manager furnishes to Trade Contractors including, but not limited to, use of hoists, storage and staging facilities.  Any additional costs incurred by Construction Manager in implementing its obligations under this Section shall be reimbursed by Change Order which the Owner agrees to issue.

12.3Separate Contractor-Related Suspensions

Construction Manager understands that portions of the work of Separate Contractors may have to be performed either before, simultaneously with or after the Work, and that the Work may have to be suspended temporarily if, in Owner’s judgment, such suspension is necessary for the timely and efficient completion of the Project.  Accordingly, Construction Manager agrees that, upon request by Owner, Construction Manager shall temporarily suspend any affected Work activity during the period which, in Owner’s reasonable judgment, Construction Manager’s Work would unreasonably interfere with the Work of a Separate Contractor.  If Owner requests that Construction Manager temporarily suspend any Work, and if and to the extent that there are delays in the performance of the Work as a result thereof and Construction Manager demonstrates that the Work has actually been delayed thereby, then, the period of time during which the Work was suspended shall be recognized as an Excusable Delay, and the Construction Manager shall be granted an appropriate Time Extension.

12.4Damage to Work

If Construction Manager causes damage to the property of Separate Contractors or to other work or property on the Project Site, Construction Manager shall promptly remedy such damage as provided in this Agreement.  If any Separate Contractor causes damage to the Work, and Construction Manager is required to remedy such damage, Owner will issue a Change Order for the cost thereof, and will further grant a Time Extension or, alternatively, Owner may direct and compensate Construction Manager for Acceleration, if the delayed activity is on the Critical Path of the Project Schedule.

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ARTICLE 13

ACCOUNTING RECORDS

13.1Project Accounting Records

Construction Manager shall maintain full, detailed and separate accounting books and records to: (1) monitor delivery to the Project Site of all materials, equipment and supplies used in connection with the Work or incorporated in the Project; (2) check all labor performing Work; (3) provide a basis for proper financial management of the Work in accordance with a system to be approved by Owner.

13.2Maintenance of Project Accounting Books and Records

Construction Manager shall maintain Project accounting books and records on a current basis, and shall institute such accounting procedures as may be reasonably requested by Owner including, but not limited to, procedures relating to any sales tax exemptions or other tax rebates, credits, exemptions or benefits available to Owner in connection with the Work.

13.3Audits

13.3.1Owner or Owner’s designated representative shall have the right to conduct interim audits of Construction Manager’s Project accounting books and records, in Owner’s discretion, to confirm the Costs of the Work being charged by Construction Manager.

13.3.2Owner or Owner’s designated representative shall conduct a final audit of Construction Manager’s accounting books and records at Project completion.  Final audit results acceptable to Owner shall be a condition of Final Payment to Construction Manager.

13.4Preservation of Project Records

Construction Manager shall preserve all Project accounting books and records for a period of one (1) year after Final Completion of the Work and, if requested by Owner, no later than thirty (30) days prior to the expiration of said one (1) year period, deliver to Owner, at Owner’s expense, copies of all or any portion of such Project accounting books and records.

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ARTICLE 14

BONDS AND INSURANCE

14.1Bond Requirements

14.1.1Bonds

Owner shall be entitled to require Construction Manager, on a selective basis, to cause individual Trade Contractors to furnish their bond ratings, and, in Owner’s discretion, to also furnish separate Payment and Performance Bonds naming Owner, any assignee of Owner, and Construction Manager as obligees.  Owner shall have the right to approve the form of Bonds provided by Trade Contractors provided by Construction Manager.

14.1.2Reimbursement

The cost of Bonds shall be a Trade Contract Cost.

14.2Insurance Requirements

14.2.1It is Owner’s intent to provide insurance coverage for the Project under an OCIP.  If the OCIP is in place, the provisions set forth below, together with the requirements of the OCIP Manual attached as Exhibit J, shall apply:

14.2.2Owner’s Controlled Insurance Program (OCIP)

14.2.2.1In accordance with the Owner Controlled Insurance Program (“OCIP”) being implemented by the Owner on this Project, the Owner has purchased and will provide to Construction Manager, its Trade Contractors, and Lower Tier Contractors insurance as set forth below, for claims which may arise out of, or result from, work performed by them under this Contract, for which they may be legally liable.  All bidders are required to submit their bid(s) with their insurance included for this Project The winning bidder(s) and all Lower Tier Contractors will be required to identify their costs to provide Workers’ Compensation, General Liability and Excess Liability for this Project.  The OCIP enrollment forms (outlined in this Construction Manager’s Manual) must be completed and returned within 10 business days by Construction Manager, all Trade Contractors and Lower Tier Contractors after they have been awarded a contract.  Please note that each Trade Contractor must also include a copy of its Workers’ Compensation Experience Modification Worksheet, along with a copy of the Policy Declarations Page(s) from their Workers’ Compensation, General Liability and Excess Liability policies.  The contract award will then be reduced by the costs identified by the winning bidder(s) and this total will be identified as a withhold amount.  At the conclusion of the contract, an audit will be performed and this amount will be adjusted based upon actual payrolls incurred on the project site and work performed including change orders.  Each enrolled Trade Contractor (any tier) will provide documentation as follows: Declarations or information page, Rating page(s), Verification of Experience Modification for Workers’ Compensation and a minimum of 3 years Loss History for each Trade Contractor (any tier) that participate in self-insured, large deductible or retrospective rated insurance programs.  If a Trade Contractor is participating in a retained loss program of this type(s), an insurance credit will be developed using the contractors actual loss history during the requested time period and program fixed costs (e.g. Excess Insurance premiums, Claims Administration charges and Claim Development factors, etc.).  Loss History calculations will

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be based upon Trade Contractor’s experience outside of this program provided by Owner.  The final adjustment will be addressed with a Change Order at the conclusion of the Project.  All insurance credits will be adjusted to reflect any change in Trade Contractor’s (any tier) insurance costs (higher or lower) that occur throughout their involvement in this project.  In the event that a Trade Contractor overstates its insurance estimate, the Trade Contractor will be credited accordingly.  The amount and type of coverage to be provided by the Owner under its OCIP program is as follows:

14.2.2.2Statutory Workers’ Compensation and Employer’s Liability with limits of $1,000,000 Bodily Injury by Accident, $1,000,000 Bodily Injury by Disease and $1,000,000 policy limit by disease.  Workers’ Compensation insurance covers all Construction Manager, Trade Contractor and Lower Tier Contractor employees whose regular duties include performing work at the Project Site.

14.2.2.3Commercial General Liability Insurance (excludes Automobile Liability).  This policy includes Completed Operations Coverage for a period of 10 years after acceptance of the work by Owner with a limit of liability of $2,000,000 each occurrence/$5,000,000 general aggregate for Bodily Injury/Property Damage.  No Automobile Liability insurance will be included.  This insurance applies to the operations of all insured parties at the Project site, including any work site set up by Owner for use by an insured party exclusively for the storage of material or equipment, or for fabrication of material to be used at the Project site.  The limits of liability apply collectively to all insured parties under the policy.

14.2.2.4  Excess Insurance. Excess liability insurance is provided, insuring the Owner, Construction Manager, Trade Contractors and Lower Tier Contractors working on the Project.  This insurance will cover only operations at the Project site and will provide excess coverage over the limits of coverage described in 1. and 2. above.  No Automobile Liability insurance will be included.  Coverage (excess of $2,000,000 per occurrence / $5,000,000 aggregate) will apply collectively to all insured parties on all covered projects with a single set of limits not less than $100,000,000 each Occurrence/Aggregate excess of the primary.

14.2.2.5Property insurance, as described in Section 14.2.2.13.

14.2.2.6The insurance provided for in Sections 14.2.2.2 through 14.2.2.5, written on an occurrence basis, shall be maintained without interruption from the date of commencement of the Work until date of final payment, and for a minimum period of ten (10) years after final payment for completed operations coverage.  In the event that insurance coverages as provided by Owner and as described herein are canceled, lapsed or otherwise become unavailable, the Owner has the option to procure and provide alternate insurance to the Contractors.  As an alternative, the Owner shall have the right to require the Contractor and all tiers of Subcontractors to provide insurance coverage, with reimbursement being made to the Contractor for the actual cost thereof by Change Order.

14.2.2.7Each Trade Contractor participating in the OCIP will be issued an individual Worker’s Compensation policy.  Certificates of Insurance will be issued for the coverages of Commercial General Liability and Excess Liability that will evidence the coverages furnished by Owner.  These shall be filed with the Trade Contractor prior to commencement of the Work.  Both the Worker’s Compensation Policy and the Commercial General Liability and Excess Liability certificates shall contain a provision that coverage as afforded under the policies will not be canceled or allowed to expire until at least 30 days prior written notice has been given to Trade Contractor.

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14.2.2.8Construction Manager’s Insurance

The Construction Manager, Trade Contractors and Lower Tier Contractors shall provide, at their own expense, the following insurance:

14.2.2.8.1Comprehensive Business/Automobile liability insurance.  The Construction Manager, Trade Contractors and Lower Tier Contractors working on the Project (and any material dealers, suppliers, and vendors who enter the Project site) shall, at their own expense, carry automobile liability insurance covering all owned, non-owned, and hired vehicles used in connection with the Work.  The Construction Manager shall include this requirement in all of its subcontracts and purchase orders.  The limits of liability for this insurance shall be at least $5,000,000 per occurrence - bodily injury and property damage combined including uninsured and underinsured motorist coverage.

14.2.2.8.2Workers’ Compensation and Commercial General Liability Insurance.  The Construction Manager shall carry and maintain at least the following insurance coverages in connection with operations away from the Project site:

14.2.2.8.3Workers’ Compensation – Statutory Limits

14.2.2.8.4Employer’s Liability - $2,000,000 (per bodily injury/disease and aggregate.)

14.2.2.8.5Commercial General Liability Insurance with limits of at least $10,000,000 combined single limit bodily injury and property damage, and including protection for contractual liability, products, completed operations, work performed by independent contractors, and broad form property damage coverage.  Owner reserves the right to require alternative limits (higher or lower) to individual Trade Contractors (any tier) at their discretion.

14.2.2.8.6Hazardous Material Liability Insurance covering bodily injury and/or property damage of limits not less than $2,000,000, if the work involves abatement, removal, replacement, repair, enclosure, encapsulation and/or disposal of any hazardous material or substance.  This coverage must remain in force for both on-site and off-site exposures.

14.2.2.8.7The Construction Manager shall maintain Consultant’s Professional Liability (Errors and Omissions) and Contractor’s Pollution Legal Liability in the limit of $75,000,000.  Professional Liability provides coverage against claims resulting from any act, error or omission in the rendering of Professional Services by the Construction Manager.  Contractor’s Pollution Legal Liability provides coverage against claims for pollution conditions arising out of the performance of Professional Services and contracting operations rendered by the Construction Manager.

14.2.2.9The Construction Manager shall maintain and require all Trade Contractors and Lower Tier Contractors (and Suppliers, Vendors and Project participants) not covered under the Owner’s OCIP to maintain appropriate levels of the insurance as identified herein.

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14.2.2.10A Certificate of Insurance evidencing the Construction Manager-provided insurance under this Section shall, prior to commencement of any Work at the Project site, be furnished to Owner’s insurance agency at the following address:

Gallagher Pipino, Inc.

c/o Construction Insurance Partners, LLC

308 North 21^st Street

St. Louis, Missouri 63103

(800) 316-4031

(314) 342-7170 fax

Contact: Cindie Allscheid,        Ext. 743

With copy to:

The New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: General Counsel

14.2.2.11Certificates of Insurance provided under these provisions shall provide for a 30-day advance written notice of cancellation, lapse or policy change to Construction Insurance Partners at the address indicated above.  The Construction Manager shall also require the Trade Contractors and all Lower Tier Contractors to furnish similar Certificates of Insurance, copies of which shall be filed with the above Construction Insurance Partners representative.  Failure of Construction Manager or any Trade Contractor or other party to file such Certificates of Insurance shall not relieve such party of its responsibility to carry and maintain such insurance.

14.2.2.12The Owner-Controlled Insurance Program as previously outlined is intended to afford broad coverage and relatively high limits of liability, but may not provide all the insurance needed by Trade Contractor.  Any insurance for higher limits or other coverages that a Trade Contractor may be required by law to carry or may need for its protection shall be at the Trade Contractor’s expense.  Any policy of insurance covering Construction Manager or any Trade Contractor or Lower Tier Contractor owned or leased machinery, watercraft, vehicles, tools, or equipment against physical loss or damage shall provide for a Waiver of Subrogation as to any claims against any insured parties under the Owner Controlled Insurance Program.

14.2.2.13Property Insurance

14.2.2.13.1Owner shall purchase and maintain property insurance in the amount of the initial contract sum, as well as subsequent modifications thereto for the entire Work at the site on a replacement cost basis.  Such property insurance shall be maintained unless otherwise provided in the Contract Documents, until final payment has been made or until no person or entity other than the Owner has an insurable interest in the property.  This insurance shall include Owner, Construction Manager, Trade Contractors and Lower Tier Contractors performing the Work as named Insureds.

14.2.2.13.2The property insurance shall be on an All Risk policy form basis and insure against the perils of fire and extended coverage, and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, temporary buildings and debris removal, including demolition occasioned by enforcement of any applicable legal

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requirements.  This property insurance shall also include transit coverages for materials to be incorporated into the project, as well as temporary offsite storage locations.  Sublimits may apply with respect to transit and offsite coverages.  Such insurance shall include loss of use coverage.  The property insurance will not provide coverage against loss by theft or disappearance of any materials (unless the materials are to be incorporated into the Project), tools, or equipment of Construction Manager, any Trade Contractor or Lower Tier Contractor, or any other person furnishing labor or materials for the Project.  Construction Manager shall pay the first $10,000 of each deductible.  The remaining portion of each deductible and any deductible in excess of the cumulative total shall be paid by the Owner.

14.2.2.13.3Boiler & Machinery Insurance.  To the extent not previously provided for herein, Owner shall purchase and maintain boiler and machinery insurance which shall specifically cover such insured objects during installation until final acceptance by Owner.  This insurance shall include the interests of the Owner, Construction Manager, all Trade Contractors and any Lower Tier Contractor for the Work, and Owner and Construction Manager shall be listed as named insureds.

14.2.2.13.4A loss insured under Owner’s property insurance shall be adjusted by Owner as fiduciary and made payable to Owner as fiduciary for the insureds subject to any applicable mortgagee clause.  Construction Manager shall pay Trade Contractors their just shares of insurance receipts received by Construction Manager, and by appropriate written agreements shall require Trade Contractors to make payments to Lower Tier Contractors in similar manner.

14.2.2.13.5Partial occupancy or use shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise.  Owner and Construction Manager will take reasonable steps to obtain consent of the insurance company or companies and shall take no action with respect to partial occupancy or use that would cause cancellation, lapse or a reduction of insurance.

14.2.2.14 General Provisions

14.2.2.14.1Other Insurance.  If Construction Manager requests in writing that insurance risks other than those described herein or insurance for special hazards be included, Owner shall, if possible, obtain such insurance and the cost to Owner shall be reimbursed by Construction Manager.

14.2.2.14.2Waivers of Subrogation.  Owner and Construction Manager hereby waive all rights against each other and any of their Trade Contractors, Lower Tier Contractors, agents, consultants and employees, each of the other, as to claims and damages covered by insurance obtained by Owner under its OCIP program and property insurance, except the parties do not waive such rights as they have proceeds of such insurance held by Owner as a fiduciary.  The OCIP program and property insurance obtained by Owner shall provide such waivers of subrogation by endorsement or otherwise.  A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damage.

14.2.2.14.3Insurance provided by Owner in favor of the Construction Manager and the Trade Contractors in its OCIP program shall not extend to Suppliers of Construction Manager or Trade Contractors not performing work at the project site.

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14.2.2.14.4Construction Manager and its Trade Contractors and Lower Tier Contractors warrant that no cost for insurance is, or shall be, included in any cost or fee charged to Owner on the Project.

14.2.2.14.5Construction Manager and its Trade Contractors and Lower Tier Contractors agree to comply with policy conditions of the insurance policies provided by Owner hereunder, and to comply with any claims handling procedures, payroll reporting procedures, loss prevention program, or other similar programs related to the Owner’s Controlled Insurance Program, including, without limitation, filing any claims in a timely fashion in accordance with the requirements set forth in such insurance policies.

14.2.2.14.6Construction Manager and its Trade Contractors and Lower Tier Contractors expressly agree to procure and provide Workers’ Compensation, General Liability and Automobile Liability coverage at their own expense respecting operations not conducted at the project site.  These coverages shall include a waiver of subrogation in favor of the Owner and their employees, agents, consultants and contractors.

14.2.2.14.7To the extent any Trade Contractor is, for whatever reason, not covered as an insured under the Owner Controlled Insurance Program, the Construction Manager shall require that Trade Contractor to provide applicable Workers’ Compensation, General Liability, and Automobile Liability insurance at their own expense in a form and amount acceptable to Owner.  Such coverages shall include the Owner as an additional insured and shall provide appropriate waivers of subrogation with the following limits:

.1Workers’ Compensation – Statutory Limits

.2Employer’s Liability - $3,000,000 (per bodily injury/disease and aggregate)

.3Commercial General Liability Insurance with limits of at least $10,000,000 combined single limit bodily injury and property damage, and including protection for contractual liability, products, completed operations, work performed by independent contractors, and broad form property damage coverage.

.4Auto Liability - $5,000,000 Combined Single Limit

.5Owner reserves the right to require alternative limits (higher or lower) to individual Trade Contractors (any tier) at their discretion.

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ARTICLE 15

HAZARDOUS MATERIALS

15.1General Requirements

15.1.1Construction Manager shall comply with, and shall ensure compliance by all Trade Contractors, with Applicable Laws relating to Hazardous Materials.

15.1.2Construction Manager shall obtain and comply with, and ensure that all Trade Contractors obtain and comply with, any and all approvals, registrations or permits required by Applicable Laws relating to Hazardous Materials.

15.2Hazardous Materials Brought to Site or Generated by Construction Manager and/or Trade Contractors.

15.2.1Construction Manager shall keep the Project Site free of Hazardous Materials brought to the Site and/or generated in connection with the Work.  Without limiting the foregoing, Construction Manager shall not cause or permit the Project Site to be used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or process Hazardous Materials, except in compliance with Applicable Laws.  Similarly, Construction Manager shall not cause or permit, as a result of any intentional or unintentional act or omission on the part of Construction Manager or any Trade Contractor, a release of Hazardous Materials onto the Project Site or onto any other property.

15.2.2Construction Manager shall indemnify, hold harmless and defend the Indemnitees from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses (including reasonable attorneys fees) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way related to: (1) the presence, disposal, release, or threatened release of any Hazardous Materials which are on, from or affecting the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise; (2) any bodily injury, personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Materials; (3) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials; and/or (4) any violation of laws, orders, regulations, requirements, or demands of Governmental Authorities, or any policies or requirements of the Indemnitees, which are based upon or in any way related to such Hazardous Materials brought to the Site and/or generated by Construction Manager and/or any Trade Contractor, including, without limitation, attorney and consultant fees, investigation and laboratory fees, court costs, and litigation expenses.  The provisions of this Section 15.2.2 shall be in addition to any and all other obligations and liabilities that Construction Manager may have to the Owner under Applicable Laws, and shall survive Final Completion of the Work.

15.3Hazardous Materials Identified in Contract Documents

15.3.1With regard to Hazardous Materials existing at the Site, which are identified in the Contract Documents and for which Construction Manager is responsible as part of the Work, Construction Manager shall conduct and complete all investigations, studies, sampling, and testing, and all remediation, removal, and related actions necessary to clean up and remove all Hazardous Materials, on, from, or affecting the Project Site in accordance with all Applicable Laws to the

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satisfaction of the Owner, and in accordance with the orders and directives of all Governmental Authorities.

15.3.2Construction Manager shall indemnify, hold harmless and defend the Indemnitees from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses (including reasonable attorneys fees) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to negligence or willful misconduct of Construction Manager, any Trade Contractor, and their respective agents and employees in the investigation, study, sampling, testing, remediation, removal and related actions in connection with Hazardous Materials identified in the Contract Documents and included within Construction Manager’s scope of Work.  The provisions of this Section 15.3.2 shall be in addition to any and all other obligations and liabilities that Construction Manager may have to Owner under Applicable Laws, and shall survive Final Completion of the Work.

15.4Unidentified Hazardous Materials

15.4.1If a Hazardous Material is encountered on the Site by Construction Manager that is not identified in the Contract Documents, Construction Manager shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to Owner in writing.

15.4.2Owner shall obtain the services of a licensed laboratory to verify the presence or absence of Hazardous Materials reported by Construction Manager and, in the event such Hazardous Material is found to be present, to verify that it has been rendered harmless.  When the Hazardous Material has been rendered harmless, Work in the affected area shall resume upon written agreement between Owner and Construction Manager.  The Project Schedule shall be extended appropriately and the GMP shall be increased by Change Order in the amount of the Construction Manager’s reasonable additional costs of shut-down, delay and start-up.

15.4.3To the fullest extent permitted by law, Owner shall indemnify, hold harmless and defend Construction Manager, Trade Contractors, and their respective agents and employees from and against claims, damages, losses and expenses (including reasonable attorneys fees) arising out of or resulting from Hazardous Materials at the Site that are not identified in the Contract Documents, if, in fact, the Hazardous Material presents the risk of bodily injury or death, and has not been rendered harmless; provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, and except to the extent that such damage, loss or expense is not due to the gross negligence or willful misconduct of a party seeking indemnity under this Section.

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ARTICLE 16

TERMINATION AND SUSPENSION

16.1Termination for Default

16.1.1The following shall constitute Events of Default under the terms of this Agreement:

16.1.1.1Construction Manager shall fail to diligently prosecute the Work, or default performing any material obligation under this Agreement, and after receipt of written notice of such default from Owner, Construction Manager shall fail, within three (3) days, to cure such default or commence a cure for such default satisfactory to Owner, and diligently prosecute such cure; or

16.1.1.2Any Key Employee identified in Exhibit M, or his successor designated in writing, shall cease to be in Construction Manager’s employ, and Construction Manager shall fail within a reasonable time to provide a substitute acceptable to Owner, in Owner’s reasonable discretion, which shall include Owner’s subjective assessment as to Owner’s ability to develop a successful working relationship with such individual; or

16.1.1.3Construction Manager becomes a party to any insolvency proceeding in a capacity as a debtor, and, in the case of any involuntary proceeding only, such proceeding is not stayed or discharged within thirty (30) days after the commencement of same.  The term “insolvency proceeding” as used herein shall include: (1) the filing of a petition for relief under Chapter 11 of Title 11 of the United States Code by Construction Manager of any petition or action looking to, or seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other present or future Federal or State statute, law or regulation; (2) the appointment, with or without the consent of Construction Manager, of any trustee, custodian, receiver or liquidator of Construction Manager or of any of its property or assets; or (3) Construction Manager’s making an assignment for the benefit of creditors.  In such an event, to the extent permitted by Applicable Law, Owner may serve written notice upon Construction Manager terminating this Agreement on date specified by Owner in said notice.

16.1.1.4Breach by Construction Manager of the ethical obligations set forth in Section 2.4.

16.1.2Upon the occurrence of an Event of Default, Owner may, at Owner’s option, exercised upon three (3) days written notice to Construction Manager, terminate the engagement of Construction Manager.  In such an event, Construction Manager shall be entitled to payment of an amount equal to:

16.1.2.1the aggregate of: (1) the actual unpaid Costs of the Work incurred by Construction Manager in its proper performance of the Work up to the date of termination, plus (2) the fair market value of such tools (less, if Owner elects to return the tools to Construction Manager, the salvage value thereof), less (3) an amount equal to the additional costs and expenses (including attorneys’ fees and disbursements) incurred by Owner over those which would have been incurred by Owner in connection with the Project had Construction Manager not defaulted hereunder, including, without limitation, the additional expense of engaging another construction manager/general

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contractor, as well as additional compensation for services of Architect and any Owner’s Consultant made necessary by the Event of Default.

16.1.2.2Construction Manager shall be entitled to the payment described in Section 16.1.2.1 only after Final Completion of the Work by a replacement construction manager/general contractor.  Owner shall have the right to set-off against the aforesaid payment any amounts then due and payable by Construction Manager to Owner hereunder, or which may accrue as damages owing by Construction Manager to Owner under the terms of this Agreement.

16.1.3Upon the happening of any of the Events of Default, Owner shall have the right, in addition to all other rights and remedies, to complete or cause the Work to be completed, by such means, and in such manner, by agreement or otherwise, as Owner deems advisable, subject, however, to the terms and conditions of the Payment and Performance Bonds required of Trade Contractors hereunder.

16.1.4If it shall be determined that a termination under this Section 16.1 was wrongful or unjustified, such termination shall then be deemed to be a Termination for the Convenience of Owner under Section 16.2, and the sole right, remedy and recourse of Construction Manager against Owner shall be governed and determined by Section 16.2;

16.1.5In the event of the happening of any of the Events of Default, subject to the orders and powers of any involved Bankruptcy Court, Construction Manager shall not interfere, directly or indirectly, with Owner’s right and efforts to complete the Work by others or with any of the Trade Contractors.

16.2Termination for Convenience

16.2.1Owner, at any time and for any reason whatsoever in Owner’s sole discretion, may terminate this Agreement for Owner’s convenience.  Construction Manager acknowledges that this Agreement must be approved by the Board of New York Times member of the Owner.  In the event that the Board fails to approve this Agreement, then the Agreement shall be considered terminated for Owner’s convenience.  Any Termination for Convenience shall be effected by delivering to Construction Manager a notice of Termination for Convenience specifying the date upon which the Termination for Convenience shall become effective and identifying any specific portion of the Work to be completed by Construction Manager prior to such effective date.  Upon receipt of a notice of Termination for Convenience by the Owner, Construction Manager shall:

16.2.1.1stop all Work under this Agreement on the date, and to the extent, specified in the notice of Termination for Convenience.

16.2.1.2enter into no further Trade Contracts except as may be necessary for completion of such portion of the Work specified in the notice.

16.2.1.3unless directed otherwise by Owner, terminate all Trade Contracts entered into by Construction Manager to the extent that said Trade Contracts relate to portions of the Work to be performed subsequent to the effective date of the Termination for Convenience.

16.2.1.4at Owner’s option, assign to Owner or such other entity or entities as Owner may direct, in the manner, at the times, and to the extent directed by Owner, all of the right, title and interest of Construction Manager in any or all Trade Contracts, in which case, Owner or such other

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entity or entities, shall accept all of Construction Manager’s obligations arising under such Trade Contracts after the date of such assignment.  Construction Manager shall have included in each Trade Contract a provision specifically contemplating and validating any such assignment, and the Trade Contractor shall continue to perform its services under the Trade Contract without interruption.

16.2.1.5to the extent required by Owner and subject to the prior written approval of Owner, settle all outstanding liabilities and all claims arising out of any termination of Trade Contracts.  In the event of a Termination for Convenience, no Trade Contractor shall be entitled to recover anticipated profits on Work unperformed or materials or equipment not incorporated or installed in the Project, nor shall any Trade Contractor be reimbursed for losses arising out of matters covered by insurance.  Instead, Trade Contractor’s recovery shall be limited to the reasonable and actual out-of-pocket costs and expenses incurred by such Trade Contractor for Work satisfactorily performed or materials, supplies and equipment procured, fabricated, incorporated or installed in the Project prior to the effective date of the Termination for Convenience.

16.2.1.6if applicable, transfer title to Owner, to the extent not already vested in Owner, and deliver in the manner, at the times, and to the extent, if any, directed by Owner: (1) fabricated or unfabricated parts, Work in progress, completed Work, supplies and other materials and equipment produced as a part of, or acquired in connection with the performance of, the Work terminated by such notice of Termination; and (2) copies of the Contract Documents and other Drawings, sketches, Specifications, Shop Drawings, information and other relevant documentation directly related to the performance of the Work.

16.2.1.7use its best efforts to sell, in the manner, at the times, to the extent, and at the price or prices directed or authorized by Owner, any property of the types referred to in Section 16.2.1.6; provided, however, that Construction Manager: (1) shall not be required to extend credit to any purchaser; and (2) may acquire any such property under the conditions prescribed and at a price or prices approved by Owner.  The proceeds of any such transfer or disposition shall be applied to reduce any payments to be made by Owner to Construction Manager under this Agreement, or shall otherwise be credited against the Costs of the Work, or paid in such other manner as Owner may direct.

16.2.1.8complete performance of such part of the Work as shall have been specified in the notice of Termination to be completed on or before the effective date of such Termination.

16.2.1.9prior to the effective date of such Termination for Convenience, take such actions as may be necessary, or as Owner may reasonably direct, for the protection and preservation of the property related to the Work and the Project which is in the possession of Construction Manager and in which Owner has or may acquire an interest.

16.2.2In the event of a Termination for Convenience pursuant to this Section 16.2, Construction Manager shall be paid by Owner for: (1) unpaid Costs of the Work incurred by Construction Manager in performance of the Work up to the effective date of the Termination for Convenience; (2) reasonable, documented demobilization costs; and (3) that portion of the Construction Manager’s Fee attributable thereto; less (4) any sums properly deductible by Owner under the terms of this Agreement.

16.2.3Construction Manager agrees that the pendency or existence of any dispute between Construction Manager and Owner, Architect or any Owner’s Consultant shall in no manner whatsoever affect or interfere with the discharge of Construction Manager’s obligations hereunder.

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16.3Suspension

Owner may, at any time and for any reason, direct Construction Manager to suspend the Work, or any portion thereof, for a period of time.  A notice of Suspension issued by Owner shall be in writing and shall specify the period during which the Work is to be suspended.  Construction Manager shall resume the Work upon the date specified in such notice, or upon such other date as Owner may thereafter specify in writing.

16.4Termination of Owner by Construction Manager

16.4.1If: (1) without good cause, Owner shall fail for a period of fifteen (15) days after the due date to make payment on the undisputed portion of any approved Application for Payment; or (2) if the Work shall have been suspended (i) by Owner for a period in excess of one hundred and twenty consecutive (120) days; or (ii) for a period in excess of one hundred and eighty (180) days under an order of any court or other public authority having jurisdiction over the Work or the Project or as a result of an act of government, such as a declaration of national emergency making materials unavailable through no act or fault of Construction Manager, then Construction Manager immediately shall serve Owner with written notice thereof.

16.4.2If Owner shall fail: (1) to cause all such undisputed portions of such Application for Payment to be paid within fifteen (15) days after such notice; or (2) if the delay described in Section 16.4.1(2) shall continue more than fifteen (15) days after receipt of such notice, then this Agreement may be terminated by Construction Manager by written notice to Owner setting forth the date of termination, which date shall not be sooner than seven (7) days after the date of the second notice.  If, within said seven (7) day period, the matter giving rise to Construction Manager’s right to terminate this Agreement shall not have been cured or discontinued, this Agreement shall be deemed Terminated for Convenience and Construction Manager shall be compensated in the manner and to the extent set forth in Section 16.2 hereof.

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ARTICLE 17

DISPUTE RESOLUTION

17.1Litigation

In the event that a Claim, dispute or controversy between the parties cannot be resolved through negotiation, the parties shall have recourse to litigation in a court of competent jurisdiction located in the State of New York, New York County.  No action or proceeding shall lie or be maintained by Construction Manager against Owner, Architect or consultants upon any claim arising out of or based upon this Agreement, the Contract Documents or by reason of any act or omission or any requirements relating to the giving of notices or information, unless such action or proceeding shall be commenced within one (1) year after Substantial Completion of the Work or, if this Agreement is earlier terminated, within one (1) year following the date of such earlier termination.  This Section 17.1 shall not be deemed or construed to modify any other provision hereof relating to waivers of claims by Construction Manager.  Construction Manager shall cause each Trade Contract to contain like provisions to this Section 17.1.

17.2Continuation of Work

Notwithstanding any Claim between Owner and Construction Manager or any claim or controversy between Construction Manager and any Trade Contractor, or any claim or controversy between or among such Trade Contractors, it shall be the responsibility of Construction Manager to continue to prosecute all of the Work and perform all of its services diligently in a good and workmanlike manner in conformity with this Agreement.  Construction Manager and its Trade Contractors shall have no right to cease performance hereunder or to permit the prosecution of the Project to be delayed.  Owner shall, subject to its right to withhold amounts pursuant to this Agreement, continue to pay Construction Manager for Costs of the Work incurred in accordance with this Agreement.

17.3Prevailing Party at Trial

In connection with any trial or other legal proceeding between the parties relating to or arising under this Agreement, whether sounding in tort or contract, the Fees-and-Costs of the Prevailing Party at Trial will be paid or reimbursed by the other party, regardless of and without awaiting the outcome of any appeal of any judgment rendered in such trial.  This Section shall not be admissible or introduced by any Person in any legal proceeding for any purpose whatsoever, except in a subsequent legal proceeding for purpose of enforcing this Section.

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ARTICLE 18

MISCELLANEOUS PROVISIONS

18.1Practice of Architecture and/or Engineering

Construction Manager is not being engaged by Owner as a licensed architect and engineer.  Therefore, nothing contained in this Agreement, including, but not limited to, the obligation on the part of the Construction Manager to review the Design Documents for various purposes, shall be deemed to require or authorize Construction Manager to perform, or assume any liability for, any acts which would be deemed the practice of architecture or engineering in connection with the design of the Project.

18.2Effectiveness of Agreement

This Agreement, when executed by the parties, shall be effective as of the date first stated above in this Agreement.  All understandings and agreements heretofore had among Construction Manager and Owner with respect to the Project are merged into, or superseded by, this Agreement.  This Agreement fully and completely expresses the agreement of the parties with respect to the Work and the Project, and it may not be modified or amended except by written agreement executed by each of the parties hereto.  Construction Manager understands and agrees that no representations of any kind whatsoever have been made to Construction Manager other than as appear in this Agreement, that it has not relied on any such representations and that no claim that it has so relied on may be made at any time and for any purpose.

18.3Survival of Obligations

Except as specifically provided for herein, all obligations of Construction Manager survive the completion of the Work or termination of this Agreement.

18.4Assignment

18.4.1Assignment by Construction Manager

Construction Manager may not assign this Agreement or the performance of all or any of its obligations hereunder without the prior written consent of Owner, which consent may be given or withheld in Owner’s sole and exclusive discretion.  The provisions of this Section 18.4 may not be waived or otherwise modified except by a written instrument signed by Owner.

18.4.2Assignment by Owner

18.4.2.1This Agreement shall be freely assignable by Owner, without the consent of Construction Manager to any Lender, or to any Permitted Assignee, provided that such Lender or Permitted Assignee agrees to assume Owner’s obligations and liabilities hereunder.

18.4.2.2In all other cases, Owner’s assignment of this Agreement is subject to the prior approval of Construction Manager, which approval shall not be unreasonably withheld or delayed.  If Owner shall assign this Agreement as set forth above, Construction Manager agrees that it shall deal with such Permitted Assignee or other approved assignee in the place and stead of Owner,

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and that it shall perform all of its obligations under this Agreement, and complete the Work in the manner required by this Agreement.  In such event, such Permitted Assignee or other approved assignee may, among other things, use the Contract Documents without payment of any additional fees or charges, and may enforce the obligations of Construction Manager hereunder with the same force and effect as if the Permitted Assignee or other approved assignee assumes the obligations and liabilities of Owner.  Upon such assignment and assumption by the Permitted Assignee or either approved assignee, Owner shall be released from all of its payment and other obligations and liabilities hereunder arising from Work to be performed subsequent to the assignment.  Construction Manager shall certify, in the form reasonably required by any such Permitted Assignee or other approved assignee, that the undertakings contained herein as to the obligations in favor of such Permitted Assignee or other approved assignee shall run in favor of such Permitted Assignee or other approved assignee.

18.5Confidentiality

18.5.1Confidential Information

18.5.1.1As a result of Construction Manager’s participation in the Project, Construction Manager will have access and contribute to information and materials of a highly sensitive nature, including Confidential Information.  Construction Manager hereby warrants that Construction Manager and its employees and agents shall not (without in each instance obtaining the Owner’s prior written consent) disclose, make commercial or other use of, or give or sell to any person, firm, or corporation, any Confidential Information received directly or indirectly from Owner or acquired or developed in the course of the performance of this Agreement unless: (1) required to do so pursuant to Applicable Law (and then only after Construction Manager has given Owner prompt written notice of the legal compulsion and, at Owner’s expense, provided by Owner with cooperation in any attempt Owner may make to gain a protective order acceptable to Owner); or (2) it is rightfully in the possession of Construction Manager from a source other than Owner prior to the time of disclosure of the information to Construction Manager under this Agreement; or (3) it was in the public domain prior to the time of Construction Manager’s receipt; or (4) it became part of the public domain prior to the time of Construction Manager’s receipt by any means other than an authorized act or omission on the part of Construction Manager; or (5) it is supplied to Construction Manager after the time of Construction Manager’s receipt by a third party who is under no obligation to the Owner to maintain such information in confidence; or (6) it was independently developed by Construction Manager prior to the time of receipt.

18.5.1.2Construction Manager’s confidentiality and non-disclosure obligations shall survive the expiration or earlier termination of this Agreement as follows: (1) in the case of information or material that constitute a Trade Secret under Applicable Laws, for so long as such information and materials remain a Trade Secret; and (2) in the case of other Confidential Information, for a period of ten (10) years following the expiration or earlier termination of this Agreement.  All Confidential Information, regardless of form, shall be the property of Owner and shall be returned to Owner upon its request, or in any event, at the expiration or earlier termination of this Agreement.

18.5.2Trade Secrets, Trademarks and Trade Names

18.5.2.1Construction Manager acknowledges that Owner will provide Construction Manager with access to certain information which may qualify as a Trade Secret under Applicable Law, and the Construction Manager agrees that for all such Trade Secrets that come into its

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possession, custody or control: (1) such Trade Secrets shall remain the sole property of Owner, and Construction Manager shall have no interest in said Trade Secrets; (2) Construction Manager shall maintain the secrecy of the Trade Secrets for so long as they remain Trade Secrets under Applicable Law; and (3)immediately upon the expiration or earlier termination of this Agreement, Construction Manager shall deliver to the Owner all Trade Secret documentation and any and all copies thereof, regardless of form or content.

18.5.2.2Without Owner’s prior written approval, the Construction Manager shall have no right to use any Trademark or Trade Name of Owner or of Owner’s Affiliated Entities.  Further, Construction Manager shall not refer to this Agreement or the Work or services performed hereunder or to any Confidential Information, directly or indirectly, in connection with any production, promotion or publication, and the Owner reserves the right in its sole discretion to release such information, time its release, and approve its form and content.

18.5.2.3Construction Manager may publish any information (other than Trade Secrets and Confidential Information, which shall not be published) resulting from or relating to its services or the Work, only after obtaining the Owner’s prior written approval, which Owner may grant or withhold in its sole discretion.  The Owner’s approval, if granted, may be conditioned upon changes in the text or reasonable delay in publication to protect Trade Secrets or Confidential Information and other interests of the Owner.

18.5.3Press Releases and Other Project Promotion

18.5.3.1The Owner shall control all promotion in connection with the Project including, but not limited to, the issuance of press releases and the preparation and distribution of promotional materials.  Construction Manager may not publish any information regarding the Project or Construction Manager’s participation in the Project including, but not limited to, Confidential Information as described in Section 18.5.2, without the prior written approval of Owner.

18.5.3.2No signs advertising the Work to be performed by Construction Manager or any Trade Contractor or identifying any person, firm or entity concerned with the Work to be performed by Construction Manager or any Trade Contractor shall be allowed at the Project Site or elsewhere unless approved in writing by Owner in advance, which approval shall be within Owner’s sole and exclusive discretion.

18.6Trust Account

18.6.1Construction Manager agrees to open an interest-bearing demand deposit Trust Account with a commercial banking institution located in New York City, satisfactory to Owner, for the deposit of all advances, disbursements or other payments or refunds, in connection with any Application for Payment, required to be made by Owner to Construction Manager on account of Trade Contract Costs pursuant to the terms of this Agreement.  All interest on the Trust Account shall belong to Owner.  Construction Manager shall reconcile the Trust Account within three (3) weeks after receipt of each bank statement, and shall provide Owner with copies of each such bank statement and reconciliation upon request.  Construction Manager agrees that such demand deposit account shall be a trust fund; that such account shall remain a separate bank account; and that no monies deposited into said account will be commingled by Construction Manager with any other funds of Construction Manager or others.  Payments on account of: (1) Construction Manager’s Fee; (2) General Conditions Costs; and (3) other Costs of the Work set forth in this Agreement, to the extent such other Costs of the Work are incurred directly by Construction Manager, need not be maintained in the Trust Account.  All

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payments to Construction Manager or Trade Contractors shall be paid directly out of the Trust Account and may not be transferred to any other account.  Construction Manager further agrees that, upon reasonable notice from Owner at any time, it will authorize such commercial banking institution to permit Owner to review and inspect all records maintained with respect to the Trust Account.  Such requests may be repeated by Owner at any time in Owner’s absolute discretion.

18.7Notices

Every notice, demand, request, consent, approval or other communication which either party hereto is required or desires to give or make to the other party hereto shall, notwithstanding any other provisions of this Agreement, be effective only if given in writing and delivered by hand and receipted for, or by registered or certified mail, postage-prepaid, return receipt requested, or by overnight mail as follows:

18.7.1If to Construction Manager, addressed to:

AMEC Construction Management, Inc.

1633 Broadway

New York, NY 10019-6708

Attn: John Babieracki

and;

18.7.2If to Owner, addressed to:

The New York Times Building, LLC
c/o Forest City Ratner Companies
One MetroTech Center North
Brooklyn, NY 11201
Attn: Robert Sanna

And to:

The New York Times Building, LLC
c/o The New York Times Company
229 West 43^rd Street
New York, NY 10036
Attn: David Thurm

With a copy to:

The New York Times Building, LLC
c/o Forest City Ratner Companies
One MetroTech Center North
Brooklyn, NY 11201
Attn: David Berliner, Esq.

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And to:

The New York Times Building, LLC
c/o The New York Times Company
229 West 43^rd Street
New York, NY 10036
Attn: General Counsel

or to such other address or addresses as Owner and Construction Manager shall from time to time designate by notice given and delivered as aforesaid.

18.8Construction of Language

The language in this Agreement shall be construed according to its customary meaning within the building industry in the New York City metropolitan area, except where a specific definition is provided herein.  Whenever used, the singular number shall include the plural, and the plural the singular, and the use of any gender shall be applicable to all genders.

18.9Captions and Titles

Captions and titles of the different Articles and Sections of this Agreement are solely for the purpose of aiding and assisting in the location of different material in this Agreement and are not to be considered under any circumstances as parts, provisions or interpretations of this Agreement.

18.10No Waiver

18.10.1The failure of either party to insist upon the strict performance of any provisions of this Agreement, the failure of either party to exercise any right, option or remedy hereby reserved, or the existence of any course of performance hereunder shall not be construed as a waiver of any provision hereof or of any such right, option or remedy available to either party or as a waiver for the future of any such provision, right, option or remedy or as a waiver of a subsequent breach thereof.

18.10.2The consent or approval by Owner of any act by Construction Manager requiring Owner’s consent or approval shall not be construed to waive or render unnecessary the requirement for Owner’s consent or approval of any subsequent similar act by Construction Manager.  The payment by Owner of any amount due hereunder with knowledge of a breach of any provision of this Agreement shall not be deemed a waiver of such breach.  No provision of this Agreement affecting or relating to Owner shall be deemed to have been waived unless such waiver shall be in writing signed by Owner.

18.10.3The consent or approval by Construction Manager of any act by Owner requiring Construction Manager’s consent or approval shall not be construed to waive or render unnecessary the requirement for Construction Manager’s consent or approval of any subsequent similar act by Owner.  No provision of this Agreement affecting or relating to Construction Manager shall be deemed to have been waived unless such waiver shall be in writing signed by Construction Manager.

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18.11Indemnification

18.11.1To the fullest extent permitted by law, Construction Manager shall indemnify, hold harmless and defend the Indemnitees from and against all losses, claims, costs, damages, and expenses (including, without limitation, attorneys’ fees and disbursements), arising out of or in connection with: (1) any personal injury, sickness, disease or death or damage or injury to, loss of or destruction of property (including tools, equipment, plant and the buildings at the Project Site, but excluding the Work itself, and excluding costs to the extent such costs are covered by Owner’s Property insurance) including the loss of use resulting therefrom, sustained or purported to have been sustained as a result of the performance of the Work; (2) any fines or penalties incurred by reason of Construction Manager’s violation of Applicable Laws; and (3) any infringement of patents covering products or processes provided such processes or products have not been specified or mandated by the Owner or Architect, to the extent such loss, claim, cost, damage or expense is caused in whole or in part by any act or omission of Construction Manager, the Trade Contractors, or anyone for whose acts Construction Manager or its Trade Contractors may be liable.  Such obligation shall arise regardless of any claimed liability on the part of an Indemnitee.  Such obligation shall not be construed to negate, abridge or otherwise reduce any other right or obligation that would otherwise exist as to any Indemnitee.

18.11.2In any and all claims against any Indemnitee by any employee of Construction Manager, or of its Trade Contractors or anyone directly or indirectly employed by either Construction Manager or its Trade Contractors or anyone for whose acts either Construction Manager or its Trade Contractors may be liable, the indemnification obligation under Section 18.11.1 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Construction Manager under workers’ or workmen’s compensation acts, disability acts or other employee benefit acts.

18.11.3Should a Trade Contractor bring suit against the Construction Manager and/or Owner, the Construction Manager, without prejudice to any other rights to receive reimbursement under its GMP, shall, to the extent the Owner neither caused nor contributed tothe commencement of such suit by improper or inappropriate conduct, defend such suit on behalf of Owner, with the cost thereof also reimbursable as a Cost of the Work, or if the Construction Manager does not defend the Owner, the Owner may reduce the GMP by the reasonable cost of such defense and, if the balance of the GMP is insufficient, the Construction Manager shall reimburse Owner for such costs of defense.

18.11.4To the fullest extent permitted by law, Owner shall indemnify, hold harmless and defend the Construction Manager, the Trade Contractors, Lower Tier Contractors and their respective agents and employees from and against all losses, claims, costs, damages, and expenses (including, without limitation, attorneys’ fees and disbursements), arising out of or in connection with: (1) any personal injury, sickness, disease or death or damage or injury to, loss of or destruction of property (including tools and equipment, but excluding the Work itself) to the extent caused, in whole or in part, by any act or omission of Owner, Separate Contractors or anyone for whose acts Owner or any Separate Contractor may be liable.  Such obligation shall arise regardless of any claimed liability on the part of Construction Manager or any Trade Contractor.  Such obligation shall not be construed to negate, abridge or otherwise reduce any other right or obligation which would otherwise exist as to Construction Manager or any Trade Contractor.

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18.12Severability

If any provision of the Contract Documents is invalid or unenforceable as against any person, party or under certain circumstances, the remainder of the Contract Documents and the applicability of such provision to other persons, parties or circumstances shall not be affected thereby.  Each provision of the underlying Contract Documents shall, except as otherwise herein provided, be valid and enforced to the fullest extent permitted by law.

18.13Architect and Owner Consultants

All references in this Agreement to Architect or Owner Consultants shall be deemed to mean any person or entity designated from time to time by Owner to serve in such capacity.

18.14Rights and Remedies

The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to, and not in limitation of, any of the duties, obligations, rights and remedies otherwise imposed or available at law or in equity.

18.15Governing Law and Consent to Jurisdiction

18.15.1This Agreement shall be governed by the laws of the State of New York, both as to interpretation and performance.  Owner and Construction Manager hereby irrevocably consent to the jurisdiction of the Courts of the State of New York, County of New York, for all purposes in connection with any action or proceeding which arises from or relates to this Agreement.

18.15.2Nothing in the Contract Documents or any Trade Contract shall be construed to permit deviation from the governing law specified in this Section 18.15.

18.16Interpretations in Writing

18.16.1 Any and all interpretations of Contract Documents must be in writing to be valid.

18.16.2 This provision is not intended to prohibit or deny normal discussion, recommendations, explanations, suggestions, approvals, rejections, and similar activity in pursuit of the Work at the Project on an oral basis, such as at job conferences at the Project Site.  In such instances, the written minutes, correspondence, Shop Drawing records, and other written data shall govern over personal claims regarding oral statements made contrary to the written data.

18.17Independent Contractor

It is expressly understood and agreed by the parties hereto that Construction Manager, in performing its obligations under this Agreement, shall be deemed an independent contractor.  Nothing contained in this Agreement shall be construed to mean that Construction Manager and Owner are joint venturers or partners.

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18.18Limited Recourse

The obligations of Owner do not constitute personal obligations of any natural persons who comprise the trustees, officers, shareholders, employees or agents of Owner.  All persons dealing with Owner shall look solely to the assets of Owner for satisfaction of any liability of Owner and will not seek recourse against any natural persons who comprise such trustees, officers, shareholders, employees or agents or any of them or any of their personal assets for such satisfaction.  However, this clause shall not protect such persons from willful misconduct or acts committed in violation of any duty of corporate loyalty.

18.19Waiver of Delay Damages

The Owner and the Construction Manager agree to waive the following specific damages in connection with delay:

.1damages incurred by the Owner for rental expenses, for losses of use, income, profit, business and reputation, and for loss of management or employee productivity or of the services of such persons, although Construction Manager acknowledges that the Owner is not waiving damages for financing or other interest costs; and

.2damages incurred by the Construction Manager for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit.

18.20Limitation of Damages

In connection with damages suffered by Owner as a result of delay, Construction Manager shall be liable to Owner for all damages arising hereunder subject to the limitation of the greater of: (i) the amount of proceeds recovered under any applicable insurance policy; or (ii) two times the amount of Construction Manager’s Fee under this Agreement.  Construction Manager acknowledges that the limitation in Section 18.20 (ii) is in no way intended to limit the amount recoverable under any insurance policies.  Construction Manager further acknowledges that there shall be no limitation on damages which are not the result of delay.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

The New York Times Building, LLC			AMEC Construction Management, Inc.
By:	FC Lion LLC
	By:	FC 41st Street Associates, LLC
	By:	RRG 8 South, Inc.	By:	/s/ Lasse Petterson
			Name:	Lasse Petterson
			Title:	President
By:	/s/ David Berliner
Name:	David Berliner
Title:	Secretary
By:	NYT Real Estate Company LLC
	By:	The New York Times Company
By:	/s/ David A. Thurm
Name:	David A. Thurm
Title:	Manager

In connection only with the following obligation:

Upon the effectiveness of the condominium declaration, the obligations of Owner under this Construction Management Agreement will be assumed by the following entities.  The obligations of these entities will be allocated pursuant to the terms of the condominium declaration.

FC Lion LLC
	By:	FC 41st Street Associates, LLC
	By:	RRG 8 South, Inc.
By:	/s/ David Berliner
Name:	David Berliner
Title:	Secretary
NYT Real Estate Company LLC
	By:	The New York Times Company
By:	/s/ David A. Thurm
Name:	David A. Thurm
Title:	Manager

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LIST OF EXHIBITS

EXHIBIT A	Project Description
EXHIBIT B	Trade Contract Form
EXHIBIT C	Preliminary Schedule
EXHIBIT D	General Conditions Items
EXHIBIT E	Not Used
EXHIBIT F	Preliminary List of Drawings and Specifications
EXHIBIT G	Affirmative Action Requirements
EXHIBIT H	Waiver of Lien and Release Forms
EXHIBIT I	Consultants
EXHIBIT J	OCIP Manual
EXHIBIT K	Project Website Guidelines
EXHIBIT L	Key Employee Affidavit
EXHIBIT M	Key Employees
EXHIBIT N	Not Used
EXHIBIT O	Qualifications and Assumptions
EXHIBIT P	Not Used
EXHIBIT Q	Early Access Guidelines and Turnover Protocol
EXHIBIT R	Cost Allocation Guidelines
EXHIBIT S	Guaranteed Maximum Price
EXHIBIT T	Hoisting and Logistics Plan
EXHIBIT U	Allowances
EXHIBIT V	Guarantee

EXHIBIT A
Project Description

The project site is located in New York City on the east side of 8th Avenue between 40th and 41st Streets.  As part of the Times Square Redevelopment Project, 42nd Street Development Project, Inc. has entered into a ground lease agreement with The New York Times Building LLC. 42nd Street Development Project, Inc is a subsidiary of the New York State Urban Development Corporation dba Empire State Development Corporation (“ESDC.”) The New York Times Building LLC, the project Owner, is a joint venture between subsidiaries of The New York Times Company (NYTC) and Forest City Ratner Companies (FCRC.) Forest City Ratner Companies also serves as the Developer for the project.  Renzo Piano Building Workshop and Fox and Fowle Architects make up the architectural team.

As a general overview of the project, the ground floor is made up of a common lobby, loading dock facilities, and The Times Center, which is an auditorium.  The Times Center finishes and equipment are not part of the Core and Shell scope of work.  Floors 2 through 27 will be occupied by NYTC.  The 28th Floor is common mechanical space with some space that is capable of being occuipied, allocated to both NYTC and FCRC.  Floors 29 through 50 are FCRC space that will be leased to Tenants.  The 51st Floor is common mechanical space with some unprogrammed space allocated to both NYTC and FCRC.  The cellar is primarily Common Mechanical but also includes The Times Center function area, mailroom and storage areas, and occupiable space allocated to both NYTC and FCRC.

EXHIBIT B

Trade Contract Form

SUBCONSF

PROJECT #:

TRADE CODE #:

SUBCONTRACT

GENERAL CONTRACTOR:	AMEC CONSTRUCTION MANAGEMENT, INC.
	1633 Broadway, 24th Floor
	New York, New York 10019

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INDEX

ARTICLE 1.	Subcontractor’s Work
ARTICLE 2.	Payments
ARTICLE 3.	Subcontractor’s Investigation and Representations
ARTICLE 4.	Subcontractor’s Liability
ARTICLE 5.	Indemnification
ARTICLE 6.	Subcontractor’s Insurance
ARTICLE 7.	Performance Bond and Labor and Material Payment Bond
ARTICLE 8.	Time of Performance
ARTICLE 9.	Changes
ARTICLE 10.	Subcontractor’s Failure to Perform
ARTICLE 11.	Settlement of Disputes
ARTICLE 12.	Warranty
ARTICLE 13.	Liens
ARTICLE 14.	Inspection and Acceptance
ARTICLE 15.	Termination for Convenience
ARTICLE 16.	Approvals
ARTICLE 17.	Clean-up
ARTICLE 18.	Assignment
ARTICLE 19.	Patents and Royalties
ARTICLE 20.	Taxes and Permits
ARTICLE 21.	Laws, Regulations and Ordinances
ARTICLE 22.	Labor
ARTICLE 23.	Equal Opportunity
ARTICLE 24.	Notices
ARTICLE 25.	Severability and Waiver
ARTICLE 26.	Advertising
ARTICLE 27.	Anti-Bribery and Corruption Provisions
ARTICLE 28.	Complete Agreement
	Signature Page

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SUBCONTRACT AGREEMENT

THIS SUBCONTRACT AGREEMENT (hereinafter “Subcontract”), made this        day of             , 20   , by and between AMEC CONSTRUCTION MANAGEMENT INC., (hereinafter “Contractor”) and                                                                                                                                                                    &nbs p;  of                                                 (hereinafter “Subcontractor”).

WITNESSETH:

WHEREAS, Contractor and(hereinafter “Owner”) have entered into a contract dated                         for the construction of                                                                                 

(hereinafter “Project”), according to the documents listed in Exhibit I attached hereto (hereinafter “Contract Documents” in which Contractor is referred to as the “Construction Manager”); and

WHEREAS, Contractor desires to subcontract certain work specified in the Contract Documents, and Subcontractor desires to perform said work at the prices and upon the terms and conditions hereinafter expressed;

NOW, THEREFORE, in consideration of the mutual agreements herein expressed, the parties do contract as follows:

1.Subcontractor’s Work

a.Subcontractor shall perform all work and shall furnish all supervision, labor, materials, plant, hoisting, scaffolding, tools, equipment, supplies and all other things necessary for the construction and completion of the work described in Schedules A and B to Exhibit II and work incidental thereto (hereinafter “Work”) in strict accordance and full compliance with the terms of this Subcontract and to the satisfaction of Contractor and Owner.  The Subcontractor’s Work is not limited by any titles on drawings or headings in the specifications, it being the intention of the parties that all items and services customarily performed with the Work described in Schedules A and B of Exhibit II shall be performed by Subcontractor, including any and all items and services consistent with, contemplated by and reasonably inferable from the Subcontract and Contract Documents as necessary to provide a complete and fully functioning scope of Work, whether or not such items and services are specifically mentioned therein, unless specifically excluded from Schedules A and B of Exhibit II.  Subcontract hereby represents that it has fully reviewed the requirements of this Subcontract (including without limitation all plans and specifications and all requirements of the Contract Documents) in preparation for execution of this Subcontract.  Therefore, any error, ambiguity, inconsistency or omission in the Subcontract and/or Contract Documents of which the Subcontractor had, or should have had, knowledge (taking into consideration the intent of the scope of Work provided in Schedules A and B of Exhibit II and the Contract Documents and that which is necessary to produce a full, complete and functional scope of Work) shall not be the basis for any increase in the amount payable under this Subcontract or time required to perform the Work.  Should any errors, ambiguities, inconsistencies or omissions appear in the Subcontract and/or Contract Documents of which Subcontractor did not have, or should not have had, knowledge before execution of this Subcontract, it shall be the duty of the Subcontractor to notify Contractor of same in writing in accordance with the notice requirements contained herein.  Upon receipt of such notice, Contractor shall instruct Subcontractor as to the measures to be taken and Subcontractor shall comply therewith.

b.With respect to the Work covered by this Subcontract, Subcontractor shall, in accordance with the attached copy of the Contract Documents, have all rights toward the Contractor that Contractor has toward the Owner and Subcontractor shall assume all obligations, risks and responsibilities towards Contractor that Contractor has assumed towards Owner.  All of the terms of the attached copy of the Contract Documents, whether administrative or

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substantive in nature, are hereby incorporated by reference as additional terms and conditions of this Subcontract governing Subcontractor’s rights and obligations hereunder.  In addition to other rights and remedies set forth in this subcontract, Contractor shall, in accordance with the attached copy of the Contract Documents, have all rights and remedies against Subcontractor that Owner has against Contractor.  Subcontractor shall have the right to enforce its rights and remedies and to defend against claims against it by the Owner as provided in Article 11 herein.  It is intended that the Contract Documents and this Subcontract Agreement supplement each other, and in the event of any inconsistency between the terms and conditions of the attached copy of the Contract Documents and this Subcontract Agreement, the more restrictive provisions as applied to the Subcontractor shall prevail and govern irrespective of whether such provisions are interpreted to be administrative or substantive in nature.

2.Payment

a.Contractor shall pay Subcontractor for performance of the Work subject to additions and deductions by change order, the total sum of                                                                                                                                                                           &nb sp;                                                                                           Dollars ($                                            ) (“Subcontract Price”).  Schedule C to Exhibit II lists the Unit Price Schedule, where applicable and Schedule D to Exhibit II lists the Alternate Price Schedule, where applicable.

b.Partial payments shall be due Subcontractor in the amount of 90% of the Work in place, and for which payment has been made to Contractor by Owner.  If the Contract Documents allow Contractor partial payments for stored materials, partial payments shall also be due Subcontractor in the amount of 90% of stored materials for which payment has been made to Contractor by Owner.  Subcontractor shall submit a breakdown of the total Subcontract price.  In the event Contractor disapproves said breakdown, Contractor shall establish a reasonable breakdown which shall serve as the basis for partial payments.

c.Partial payments shall be due on or about the 10th day following receipt of payment from Owner by Contractor.  No partial payment made under this Subcontract shall be considered an acceptance of the Work in whole or in part.  All material and Work covered by partial payments shall become the property of Contractor, or, if the Contract Documents so provide, the property of Owner; however, this provision shall not relieve Subcontractor from the sole responsibility and liability for all Work and materials upon which payments have been made until final acceptance thereof by Owner.

d.If the Subcontractor is making satisfactory progress with the Work (in the Contractor’s reasonable opinion), is not in default under this Subcontract or under any other Contract Document, is in compliance with all the documentation requirements of this Subcontract and the Contract Documents and if (but only to the extent that) the Contractor, as a condition precedent to Subcontractor’s right to receive such payment, has received payment from the Owner for such Work, the Contractor will, subject to other provisions of this Subcontract, make monthly payments to the Subcontractor as set forth above in subparagraphs (b) and (c) of this Article 2.  Subcontractor agrees to look solely to such funds received by Contractor from Owner for payments to Subcontractor hereunder.  Subcontractor further agrees that delay in payment or non-payment by the Owner does not create any separate obligation of Contractor to pay regardless of the extent of the delay.  Final payment shall be made after Subcontractor’s Work has been accepted by Owner, satisfactory proof of payment of all amounts owed by Subcontractor in connection with this Subcontract has been provided, the Subcontractor’s Work is complete, all waivers and releases required by the Contract Documents have been submitted by the Contractor and Contractor has been paid in full for the Subcontractor’s Work.  Contractor may withhold amounts otherwise due under this Subcontract or any other contractual arrangement between the parties to cover any costs or liability Contractor has incurred or may incur for which Subcontractor may be responsible.

e.After the first partial payment hereunder, Contractor shall have the right to withhold any subsequent partial payments until Subcontractor submits evidence satisfactory to Contractor that all previous amounts owed in connection with performance of this Subcontract have been paid.  Notwithstanding anything to the contrary in this Subcontract or the existence of any performance of labor and material payment bond, the Contractor is hereby empowered but not required at any time to withhold from the Subcontractor an amount or amounts equal in the opinion of the Contractor to the amounts necessary to complete the entire Work, or any part thereof, and to pay and fully discharge any claims or liens arising out of the Work performed under this Subcontract that may arise and be unpaid for which, if established, the Contractor or the Owner may become liable.  Without limitation of any other rights or remedies of Contractor, the amount of all such payments of the Subcontractor’s obligations by the Contractor shall be deducted from the Subcontract Price then unpaid.  If any such obligations, claims or liens exceed the amount of the Subcontract Price then unpaid or arise after Contractor has paid or otherwise satisfied the full Subcontract Price in accordance with and

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subject to the terms and conditions hereof, the Subcontractor, immediately upon demand, shall pay to the Contractor all monies that the Contractor may have paid to discharge such obligations, liens or claims with respect to the Project.  Nothing herein is intended to limit or preclude the rights of the Contractor under other terms of this Subcontract to backcharges, set-offs or other claims against the Subcontractor in regard to the matters addressed in this Clause or otherwise.  Subcontractor and Contractor agree that ten dollars ($10) of the amount Contractor pays Subcontractor pursuant to this Subcontract is consideration for the acceptance and agreement by Subcontractor to the payment terms set forth in this Subcontract.  Retention shall be paid to the Subcontractor in accordance with the Contract Documents, less in any event any amounts the Contractor has applied to cure any default by Subcontractor under the Contract Documents.

f.Final payment shall be made after Subcontractor’s Work has been accepted by Owner, satisfactory proof of payment of all amounts owed by Subcontractor in connection with this Subcontract has been provided, the Subcontractor’s Work is complete and Contractor has been paid in full for the Subcontractor’s Work.

3.Subcontractor’s Investigations and Representations

Subcontractor represents that it is fully qualified to perform the Work of this Subcontract, and acknowledges that, prior to the execution of this Subcontract, it has (a) by its own independent investigation ascertained (i) the Work required by this Subcontract, (ii) the conditions involved in performing the Work, and (iii) the obligations of this Subcontract and the Contract Documents; and (b) verified all information furnished by Contractor or others satisfying itself as to the correctness and accuracy of that information.  Any failure by Subcontractor to independently investigate and become fully informed will not relieve Subcontractor from its responsibilities hereunder.

4.Subcontractor’s Liability

a.To the fullest extent permitted by law, Subcontractor hereby assumes the entire responsibility and liability for all Work, supervision, labor and materials provided hereunder, whether or not erected in place, and for all plant, scaffolding, tools, equipment, supplies and other things provided by Subcontractor until final acceptance of the Work by Owner.  In the event of any loss, damage or destruction thereof from any cause, Subcontractor shall be liable therefor and shall repair, rebuild and make good said loss, damage or destruction at Subcontractor’s cost.

b.Subcontractor shall be liable to Contractor for all costs and/or damages Contractor incurs as a result of Subcontractor’s failure to perform this Subcontract in accordance with its terms.  Subcontractor’s failure to perform shall include the failure of its suppliers and/or subcontractors of any tier to perform.

c.Subcontractor’s assumption of liability is independent from, and not limited in any manner by, the Subcontractor’s insurance coverage obtained pursuant to Article 6, or otherwise.

5.Indemnification

To the extent permitted by law, Subcontractor shall indemnify, defend, save and hold the Owner, the Contractor, the Contractor’s Sureties, the Architect (excluding with respect to the Architect, claims arising out of (i) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (ii) the giving of or the failure to give direction or instructions by the Architect, his agent or employees, provided such giving or failure to give is the primary cause of the injury or damage) and their respective partners, parents, affiliates, agents, officers, employees and anyone else acting for or on behalf of any of them (herein collectively called “Indemnitees”) harmless from and against all liability, damage, loss, claims, demands and actions of any nature whatsoever which arise out of or are connected with, or are claimed to arise out of or be connected with the performance of Work by the Subcontractor, or any act or omission of Subcontractor.  As used in this Paragraph 5, the term “Subcontractor” shall include its lower tier subcontractors.

Without limiting the generality of the foregoing, such defense and indemnity includes all liability, damages, loss, claims, demands and actions on account of personal injury, death or property loss to any Indemnitee, any of Indemnitees’ employees, agents, contractors or Subcontractors, licensees or invitees, or other contractor or Subcontractor, their employees, agents, Subcontractors, licensees or invitees or to any other persons, whether based upon, or claimed to be based upon, statutory (including, without limiting the generality of the foregoing, workers compensation), contractual, tort or other liability of any Indemnitee, contractor, Subcontractor or any other persons.  In addition, the liability, damages, loss, claims, demands and actions indemnified against shall include all liability, damage, loss, claims, demands and actions for trademark, copyright or patent infringement, for unfair competition or infringement of any other so-called “intangible” property rights which arise out of any failure of Subcontractor to discharge its duties.

In the event more than one Subcontractor is connected with an accident or occurrence covered by this indemnification, then all of such Subcontractors shall be jointly and severally responsible to the Indemnitees for

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indemnification and the ultimate responsibility among such indemnifying Subcontractors for the loss and expense of any such indemnification shall be settled by separate proceedings and without jeopardy to any Indemnitee.  The provisions of the indemnity provided for herein shall not be construed to indemnify any Indemnitee for its sole negligence if not permitted by law or to eliminate or reduce any other indemnification or right which Owner, Contractor or Architect has by law or the Contract Documents

Subcontractor expressly understands and agrees that any performance bond or insurance protection required by this Subcontract or as otherwise provided by Subcontractor shall in no way limit the responsibility to indemnify, defend, save and hold the Indemnitees harmless as herein provided.

The foregoing indemnification agreement by Subcontractor shall be included in each of its sub-subcontracts and shall be in favor of the Indemnitees and Subcontractor.

The Subcontractor shall bear any expense, whether incurred or paid, of any Indemnitee because of any claim or other matter indemnified against hereunder, including reasonable attorneys’ fees and court costs arising from the in the defense of any such claim.  If any such claim has not been settled or discharged when the Work is finished, final settlement between the Contractor and the Subcontractor and final payment of the Subcontract Price and the acceptance of the Work shall be deferred until any such claim is paid or settled or the Subcontractor provides a bond, acceptable to the Contractor, in its sole discretion, to satisfy such claim.  At the request of any Indemnitee, the Subcontractor, at its own expense, shall assume the defense, on behalf of such Indemnitee, of any such claim; provided, however, that any attorney employed in such defense must be satisfactory to such Indemnitee.  Subcontractor acknowledges and agrees that ten dollars ($10.00) of Subcontractor’s compensation pursuant to this Subcontract has been paid by Contractor in consideration of Subcontractor agreeing to these defense, indemnity and hold harmless obligations.

6.Subcontractor’s Insurance

(i)Prior to commencing the Work, Subcontractor shall procure and thereafter maintain at its own expense until final acceptance of the Work, insurance coverage as described in the “Insurance Schedule” attached to this subcontract as Schedule E to Exhibit II.

(ii)In the event Owner elects to utilize an owner-controlled insurance program, such program shall be implemented in accordance with the guidelines of The Owner Controlled Insurance Program (“OCIP”) attached hereto as Exhibit III.  In such event, Contractor shall be entitled to a credit for the cost of insurance coverages included in the Subcontract Price that are procured through the OCIP.  Subcontractor shall still be obligated to provide all insurance coverages not included under the OCIP which are required by Schedule E to Exhibit II as part of the Subcontract Price.

7.Performance Bond and Labor and Material Payment Bond

The Subcontractor shall furnish at Subcontractor’s expense a Performance Bond and a Payment Bond, each in the full amount of this Subcontract.  The bond forms shall be in accordance with Schedules F, G and H of Exhibit II and shall be subject to Owner’s and Contractor’s approval for adequacy of protection and the satisfactory character of the surety.  The surety shall have an A.M. Best rating of B+, VII or better.  The failure of the Subcontractor to furnish required bonds within ten (10) days after having been given notice by Contractor shall constitute a material failure to perform this Subcontract giving rise to a termination for default pursuant to Article 10 herein.

8.Time of Performance

a.Subcontractor will proceed with the Work in a prompt and diligent manner, in accordance with Contractor’s schedule as reasonably amended from time to time.  TIME IS OF THE ESSENCE.  Subcontractor shall be entitled to additional compensation for compliance with schedule amendments only to the extent, if any, that the Contract Documents entitle Contractor to reimbursement in connection with same.

b.If requested by Contractor, Subcontractor shall submit a detailed schedule for performance of the Subcontract in a form acceptable to Contractor which shall comply with all scheduling requirements of the Contract Documents and with Article 8.a above.  Contractor may, at its sole discretion, direct Subcontractor to make reasonable modifications and revisions in said schedule.

c.Subcontractor will coordinate its Work with the work of Contractor, other subcontractors and Owner’s other builders, if any, so that no delays or interferences occur in the completion of any part or all of the Project.

d.Should the Subcontractor be delayed, impacted or disrupted in the performance of this Subcontract, it shall be entitled to an extension of time only for delays caused by any acts or causes which would entitle the

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Contractor to an extension of time under the Contract Documents and for delays caused solely by the Contractor but Subcontractor shall not be entitled to any increase in the Subcontract Price or to damages or additional compensation as a consequence of such delays, impacts or disruptions, regardless of whether such delays or disruptions are unreasonable or unforeseeable, unless the Owner is liable and pays for such delays, impacts or disruptions.  The Contractor will pay the Subcontractor the amount allowed and paid by the Owner for the Subcontractor’s delay, impact or disruption.  Within three (3) days after the commencement of any delay, impact or disruption in the performance of its Work hereunder, the Subcontractor shall notify the Contractor in writing stating full details of the cause of the alleged delay, impact or disruption.  In any event, the Subcontractor shall notify the Contractor of any delays, impacts or disruptions for which the Owner is responsible, in sufficient time so that its claim may be timely processed against the Owner administratively.  Failure to provide timely notice of delays for which the Owner is responsible in accordance with the Contract Documents shall result in a waiver of any such claim by Subcontractor to the extent Contractor is prejudiced thereby.  Notwithstanding the foregoing, in the event Subcontractor is entitled to an extension of time hereunder, Contractor reserves the right, exercised in its sole discretion, to order acceleration and/or compression of the schedule applicable to the Work covered by this Subcontract and to compensate Subcontractor for the costs associated therewith in lieu of granting an extension of time.

9.Changes

a.Contractor may, at any time, unilaterally or by agreement with Subcontractor, and without notice to the sureties, make changes in the Work covered by this Subcontract.  Any unilateral order or agreement under this Article 9.a shall be in writing.  Subcontractor shall perform the Work as changed without delay.

b.Subcontractor shall submit in writing any claims for adjustment in the price, schedule or other provisions of the Subcontract claimed by Subcontractor for changes directed by Contractor or as a result of deficiencies or discrepancies in the Contract Documents, to Contractor in time to allow Contractor to comply with the applicable provisions of the Contract Documents.  Failure to submit timely notice of such claims in accordance with the requirements of the Contract Documents shall result in a waiver of any such claim by Subcontractor to the extent Contractor is prejudiced thereby.  Contractor shall process said claims in the manner provided by and according to the provisions of the Contract Documents so as to protect the interest of Subcontractor and others including Contractor.  Subcontract adjustments shall be made only to the extent that Contractor is entitled to relief from or must grant relief to Owner.  Furthermore, each Subcontract adjustment shall be equal only to Subcontractor’s allocable share of any adjustment in Contractor’s contract with Owner.  Subcontractor’s allocable share shall be determined by Contractor, after allowance of Contractor’s normal overhead, profit and other interest in any recovery by making a reasonable apportionment, if applicable, between Subcontractor, Contractor and other subcontractors or persons with interest in the adjustment.  This paragraph will also cover other equitable adjustments or other relief allowed by the Contract Documents.

c.For changes ordered by Contractor independent of Contract Documents, Subcontractor shall be entitled to an equitable adjustment in the Subcontract Price.

10.Subcontractor’s Failure to Perform

a.If, in the opinion of Contractor, Subcontractor shall at any time (1) refuse or fail to provide sufficient properly skilled workmen or materials of the proper quality, (2) fail in any respect to prosecute the Work according to the current schedule, (3) cause, by any action or omission, the stoppage, or delay of or interference with the work of Contractor or of any other builder or subcontractor, (4) fail to comply with all provisions of this Subcontract or the Contract Documents, (5) be adjudged a bankrupt, or make a general assignment for the benefit of its creditors, (6) have a receiver appointed, (7) become insolvent or a debtor in reorganization proceedings or (8) fail to make payments to its lower-tier subcontractors or suppliers, then, after serving three (3) days’ written notice, unless the condition specified in such notice shall have been eliminated within such three (3) days, the Contractor may at its option without voiding the other provisions of the Subcontract and without notice to the sureties, (i) take such steps as are necessary to overcome the condition, in which case the Subcontractor shall be liable to Contractor for the cost thereof, (ii) terminate the Subcontract for default, or (iii) seek specific performance of Subcontractor’s obligations hereunder, it being agreed by Subcontractor that specific performance may be necessary to avoid irreparable harm to Contractor and/or Owner.  In the event of termination for default, Contractor may, at its option, (1) enter on the premises and take possession, for the purpose of completing the Work, of all materials and equipment of Subcontractor, (2) require Subcontractor to assign to Contractor any or all of its subcontract or purchase orders involving the project, or (3) complete the Work either by itself or through others, by whatever method Contractor may deem expedient.  In case of termination for default, Subcontractor shall not be entitled to receive any further payment until the Work shall be fully completed and accepted by Owner.  At such time, if the unpaid balance of the Subcontract Price to be paid shall exceed the expense incurred by Contractor, such excess shall be paid by Contractor to Subcontractor.  However, if such amount incurred by Contractor shall exceed such unpaid balance, then,

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Subcontractor shall pay Contractor the difference within five (5) business days following demand by Contractor.  Subcontractor shall pay all reasonable costs of collection, if any.

b.If Contractor wrongfully exercises any option under 10.a. (i) (ii) or (iii) above, Contractor shall be liable to Subcontractor for the reasonable value of Work performed by Subcontractor prior to Contractor’s wrongful action plus the direct costs incurred by Subcontractor as a result of Contractor’s wrongful action plus, in the case of a wrongful termination for default, reasonable close-out costs, less prior payments made, upon Contractor’s receipt of payment for same from Owner.  The Subcontractor’s remedy under this Article 10.b, shall be exclusive.  Nothing herein shall bar withholdings by Contractor permitted by other provisions of this Subcontract.

11.Settlement of Disputes

a.In case of any dispute between Contractor and Subcontractor, due to any action of Owner or involving the Contract Documents, Subcontractor agrees to be bound to Contractor to the same extent that Contractor is bound to Owner, by the terms of the Contract Documents and by any and all preliminary and final decisions or determinations made thereunder by the party, board or court so authorized in the Contract Documents or by law whether or not Subcontractor is a party to such proceedings.  In case of such dispute, Subcontractor will comply with all provisions of the Contract Documents allowing a reasonable time for Contractor to analyze and forward to Owner any required communications or documentation.  Contractor will, at its option, (1) present to Owner in Contractor’s name, or (2) authorize Subcontractor to present to Owner, in Contractor’s name, all of Subcontractor’s claims and answer Owner’s claims involving Subcontractor’s Work, whenever Contractor is permitted to do so by the terms of the Contract Documents.  If such dispute is prosecuted or defended by Contractor, Subcontractor agrees to furnish all documents, statements, witnesses, and other information required and to pay or reimburse Contractor for all costs incurred in connection therewith.  The Subcontract Price shall be adjusted by Subcontractor’s allocable share determined in accordance with Article 11 hereof.  The use of the dispute resolution procedure in this paragraph 11.a. is a condition precedent to the use of any other dispute resolution procedure authorized and allowed by this Subcontract in case of disputes between Contractor and Subcontractor due to any action of Owner or involving the Contract Documents.

b.With respect to any controversy between Contractor and Subcontractor not involving Owner or the Contract Documents, Contractor shall issue a decision that shall be followed by Subcontractor.  If the Subcontractor is correct as to the controversy, Subcontractor shall be entitled to an equitable adjustment in the Subcontract Price as its sole remedy.  Notification of any such claim for equitable adjustment must be asserted in writing within ten (10) days of Subcontractor’s knowledge of the claim.

c.Failure by Subcontractor to submit requests or claims for additional compensation or time for performance in accordance with the provisions of this Subcontract or the Contract Documents shall constitute a waiver of such claims or requests by Subcontractor and shall be deemed adequate grounds for rejection of same by Contractor.  Notwithstanding the preceding sentence, failure to submit such requests and claims in relation to claims for which the Owner is ultimately responsible shall constitute a waiver only to the extent the Contractor is prejudiced thereby.

d.Any dispute arising out of or relating to this Subcontract (i) not due to any action of the Owner or not involving the Contract Documents or (ii) decided by Owner and there remains a dispute between Contractor and Subcontractor, shall be resolved by a court of competent jurisdiction in the state and county in which the project is located or some other location designated by Contractor unless Contractor elects to refer the matter to arbitration in which case the dispute shall be decided by arbitration in accordance with the then current Construction Industry Rules of the American Arbitration Association (“AAA”).  Provided, however, the arbitration shall not be under the administration of the AAA but by one (1) independent and impartial arbitrator mutually selected by the parties.  The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Section 1-16, and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.  The place of arbitration shall be New York City.  The arbitrator is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration.

12.Warranty

Subcontractor warrants its Work hereunder to Contractor on the same terms and for the same period as Contractor warrants the Work to Owner under the Contract Documents.  With respect to Subcontractor’s Work, Subcontractor shall perform all warranty obligations and responsibilities assumed by Contractor under the Contract Documents.

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13.Liens

a.In the event that liens are filed by anyone in relation to the labor and/or material being furnished by Subcontractor, Subcontractor agrees to have the same discharged (by posting a bond with the appropriate authorities or otherwise) within five (5) days of notice.  In the event such lien is not so discharged, such circumstances shall be deemed a failure to perform the Work on the part of the Subcontractor subject to the conditions and terms set forth in Article 10 above.

b.Prior to final payment, Subcontractor shall provide to Contractor a release of its liens and claims and of all liens and claims of all persons furnishing labor and/or materials for the performance of this Subcontract as well as satisfactory evidence that there are no other liens or claims whatsoever outstanding against the Work.

c.If required by Contractor, Subcontractor shall furnish releases of liens with respect to all prior payments, as part of each request for partial payment other than the initial request.

14.Inspection and Acceptance

Subcontractor shall provide appropriate facilities at all reasonable times for inspection by Contractor or Owner of the Work and materials provided under this Subcontract, whether at the Project site or at any place where such Work or materials may be in preparation, manufacture, storage or installation.  Subcontractor shall promptly replace or correct any Work or materials which Contractor or Owner shall reject as failing to conform to the requirements of this Subcontract.  The Work shall be accepted according to the terms of the Contract Documents.  However, unless otherwise agreed in writing, entrance and use by Owner or Contractor shall not constitute acceptance of the Work.

15.Termination for Convenience

Contractor shall have the right to terminate this Subcontract for convenience by providing Subcontractor with a written notice of termination to be effective upon receipt by Subcontractor.  If the Subcontract is terminated for convenience because there is a termination of Contractor’s contract with Owner, the Subcontractor shall be paid the amount representing costs that are due from the Owner for its Work as provided in the Contract Documents after payment therefore by the Owner to Contractor.  If Contractor terminates this Subcontract for convenience and the Contractor’s contract with Owner has not been terminated, Subcontractor shall be paid for all Work completed through the date of termination plus reasonable termination and closeout costs less any amounts which the Contractor is entitled to withhold pursuant to the terms of this Subcontract.

16.Approvals

a.Subcontractor shall deliver to Contractor copies of shop drawings, cuts, samples and material lists required by and in accordance with the requirements of the Contractor and the Contract Documents within sufficient time so as not to delay performance of the Project or within sufficient time for Contractor to submit the same within the time stated in the Contract Documents, whichever is earlier.  Any deviation from the Contract Documents shall be clearly identified on shop drawings.  Notwithstanding any general approval granted by Contractor or Owner, all such submissions and the Work performed in accordance therewith shall be in accordance with the Contract Documents.

b.Contractor’s review of Subcontractor’s shop drawings, cuts, samples and material lists is only for the convenience of the Owner in following the Work and shall not relieve the Subcontractor from responsibility for any deviations from the requirements of the Contract Documents.

c.Subcontractor warrants and agrees that it can and will obtain all requisite approvals from Owner as to its eligibility to serve as a subcontractor and the approvals of all materials and performance of the Work as required by the Contract Documents.

17.Clean-Up

Subcontractor shall clean up its Work and remove all debris resulting from its Work in a manner that will not impede either the progress of the Project or of other trades.  If the Subcontractor fails to comply with this Article within 24 hours after receipt of notice of noncompliance from the Contractor, the Contractor may perform such necessary clean-up and deduct the cost from any amounts due to the Subcontractor.

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18.Assignment

Subcontractor shall not sub-subcontract the Work of this Subcontract and shall not assign or transfer this Subcontract, or funds due hereunder, without the prior written consent of Contractor and Subcontractor’s surety.  Contractor shall not unreasonably withhold its consent to the assignment of funds due hereunder.

19.Patents and Royalties

Except as otherwise provided by the Contract Documents, Subcontractor shall pay all royalties and license fees which may be due on the inclusion of any patented materials in the Work.  Subcontractor shall defend all suits or claims for infringement of any patent rights that may be brought against Contractor or Owner arising out of the Work, and shall indemnify Contractor and Owner for all loss, including all costs and expenses, on account thereof.

20.Taxes and Permits

Except as otherwise provided by the Contract Documents, Subcontractor agrees to pay and comply with and hold Contractor harmless against the payment of all contributions, taxes or premiums which may be payable by it under Federal, state or local laws arising out of the performance of this Subcontract and all sales, use or other taxes of whatever nature levied or assessed against Owner, Contractor, or Subcontractor arising out of this Subcontract including any interest or penalties.  Subcontractor shall obtain and pay for all permits, licenses, fees and certificates of inspection necessary for the prosecution and completion of its Work and shall arrange for all necessary inspections and approvals by public officials.

21.Laws, Regulations and Ordinances

a.This Subcontract shall be governed by the laws of the State of New York.

b.Omitted.

c.Subcontractor agrees to be bound by, and, at its own cost, comply with all Federal, state and local laws, codes, ordinances and regulations applicable to this Subcontract and the performance of the Work hereunder including the Occupational Safety and Health Act of 1970.  Subcontractor shall be duly licensed to operate under the law of the applicable jurisdictions.  Subcontractor shall be liable to Contractor and Owner for all loss, cost and expense attributable to any acts of commission or omission by Subcontractor, its employees and/or agents resulting from failure to comply including, but not limited to, any fines, penalties or corrective measures.

22.Labor

a.Subcontractor and its lower-tier subcontractors shall not employ anyone in Subcontract Work whose employment may be objected to by Contractor or Owner.

b.Should any workers performing Work covered by this Subcontract engage in a strike or other work stoppage or cease to work due to picketing or a labor dispute of any kind, said circumstances shall be deemed a failure to perform the Work on the part of the Subcontractor subject to the conditions and terms set forth in Article 10 above.

23.Equal Opportunity

a.In connection with the performance of Work under this Subcontract, Subcontractor agrees not to discriminate against any employee or applicant for employment because of race, religion, sex, handicap, color or national origin.  The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or advertising, layoff or termination, rates of pay or other forms of compensation and selection for training (including apprenticeship).  Subcontractor agrees to post hereafter, in plain view for employees and applicants for employment to review, notices prepared by Subcontractor (and approved by the government when required) setting forth the provision of this Article 23.

b.Subcontractor shall permit access to its books, records and accounts by representatives of Contractor or Owner for purposes of investigation to ascertain compliance with the provisions of this Article 23.

c.Subcontractor shall comply with Schedule J to Exhibit II of this Subcontract.  In the event of Subcontractor’s non-compliance with the provisions of such Schedule J, this Subcontract may be terminated for default.

10

d.Subcontractor shall include the provisions of this Article 23 in every lower-tier subcontract and purchase order.  The requirements of this Article 23 shall be in addition to any equal opportunity provisions of the Contract Documents.

24.Notices

All notices shall be addressed to the parties at the addresses set out herein and shall be considered as delivered when postmarked if dispatched by registered mail or when received in all other cases.

25.Severability and Waiver

The partial or complete invalidity of any one or more provisions of this Subcontract shall not affect the validity or continuing force and effect of any other provision.  The failure of either party to insist on any one or more instances upon the performance of any of the terms, covenants or conditions of this Subcontract or to exercise any right herein shall not be construed as a waiver or relinquishment of such term, covenant, condition or right as respects further performance.

26.Advertising

Neither Subcontractor, its subcontractors, suppliers or employees shall take photographs of the Work on site or publish or display advertising matter of any description relating to the Project without first obtaining the written consent of Contractor and the Owner.

27.Anti-Bribery Provisions

Subcontractor undertakes to protect the standards of business practice of the Contractor at all times and to act in such a way as to uphold the Contractor’s good name and reputation and not to do or attempt to do any act or thing which is intended and/or which in fact causes any damage to or brings discredit upon the Contractor.  In particular, the Subcontractor will not:

(a)Offer, give or agree to give to any director, officer, employee or agent of the Contractor or Owner any gift or consideration of any kind as an inducement or reward for either (i) taking or electing not to take any action in relation to this Subcontract or any other contract with the Contractor or the Owner or (ii) demonstrating or electing not to demonstrate either favorable or unfavorable behavior towards any person in relation to the Subcontract or any other contract with the Contractor or the Owner.

(b)Induce or attempt to induce any officer, servant or agent of any private or public body to depart from his duties to his employer or be involved with any such arrangement.

Any violation of this Article 27 shall constitute a material failure to perform by Subcontractor giving rise to a termination for default pursuant to Article 10 herein.

28.Complete Agreement

This Subcontract contains the entire agreement between the parties hereto with respect to the matters covered herein.  No other agreements, representations, warranties or other matters, oral or written, shall be deemed to bind the parties hereto.

11

IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have hereunto executed this Subcontract, on the day and year above written.

	(Subcontractor)
	By:
Witness
	Title:
	Address:
	AMEC CONSTRUCTION MANAGEMENT, INC.
	(Contractor)
	By:
Witness
	Title:
	Address:

12

EXHIBIT I

CONTRACT DOCUMENTS

Attached is a redacted copy of the Agreement between AMEC and THE NEW YORK TIMES BUILDING, LLC dated [INSERT] with all applicable exhibits.

13

EXHIBIT II

LIST OF SCHEDULES

1.	Schedule A.	List of applicable drawings and documents
2.	Schedule B.	Further description and definition of Work
3.	Schedule C.	Unit Price Schedule
4.	Schedule D.	Alternate Price Schedule
5.	Schedule E.	Insurance Rider Contract
6.	Schedule F.	Payment Bond form
7.	Schedule G.	Performance Bond form
8.	Schedule H.	Multiple Obligee Rider
9.	Schedule J.	Workforce Equal Employment/Affirmative Action and Minority & Women Owned Business Enterprise Subcontractor Requirements
10.	Schedule L.	Safety Schedule
11.	Schedule M.	Logistics Plan
12.	Schedule N.	ESDC DVO Requirements

14

EXHIBIT III

OWNER CONTOLLED INSURANCE PROGRAM

“OCIP”

15

EXHIBIT C

Preliminary Schedule

AMEC Schedule, NYT 13

[GRAPHIC]

EXHIBIT D

General Conditions Items

The General Conditions shall be in the Lump Sum of $[*] payable as follows:

Month 1: $274,325 for work completed through November, 2003

Months 2-5: Actual general conditions costs incurred by Construction Manager

From Month 6 until Final Completion, the General Conditions shall be distributed in equal monthly payments based on the number of months remaining until the scheduled Final Completion.  The amount of such payment will fluctuate if the Final Completion Date is adjusted.

General Conditions Cost Categories include but are not limited to:

1.       All non-union staff direct personnel expense (salaries) broken down by position.

2.       All non-union staff fringes and benefits costs broken down by position.

3.Watchman service.

4.On-site temporary offices/trailers.

5.On-site temporary office furniture and equipment.

6.Temporary fence and gate.

7.       Temporary toilets and maintenance, temporary water, temporary electric, temporary environment and maintenance.

8.General cleaning direct personnel cost

9.General cleaning fringe benefit and union costs.

10.     Final cleaning, including curtain wall and storefront.

11.     Interior window washing.

12.     Small tools.

13.     Blueprinting and general reproduction costs.

14.Licensed surveying costs.

15.Project signs including both legal and code required signage and appropriate signage to identify the Project, to be developed by and/or approved by Owner.

16.Glass breakage.

17.Permits and Violations.

18.Telephone.

19.Petty Cash.

20.Travel Expenses (Material expediting, mock-ups, etc.)

21.     Progress photographs.

22.Hoist installation and removal.

23.     Operation of the hoist.

24.     Teamster shop steward.

25.     Master mechanic.

26.     Coordination of controlled inspections (Controlled Inspection testing shall be contracted directly by Owner.)

27.     Extermination.

28.     Rubbish removal.

29.     Winter protection.

30.     Article 19 NYC site safety protection and OSHA protection.

31.     Miscellaneous stationery.

32.     Postage, overnight mail, etc.

33. Messenger service.

34. All sidewalk bridge and overhead protection requirements.

35. All horizontal and vertical safety netting.

36. Installation and dismantling of all required common trade scaffolding, equipment, hoists, cranes, etc. which shall be available for use by all trades and Owner’s contractors as may be required.

EXHIBIT E

Not Used

EXHIBIT F

Preliminary List of Drawings and Specifications

DRAWING LIST

DRAWING NO.	TITLE	DATE	REMARKS
ARCHITECTURAL DRAWINGS
A-0000	Drawings Index	4/1/03	98% GMP
A-0001	Room Finish Schedule, Abbreviations, Symbols and Materials	8/29/03	Addendum #16
A-0002	Partitions & Drywall Details	8/29/03	Addendum #16
A-0003	Door & Misc. Details	8/29/03	Addendum #16
A-0004	Hoistway Door Details	5/30/03	Addendum #10
A-0005-A	Sidewalk Paving Plan Partial A	8/29/03	Addendum #16
A-0005-B	Sidewalk Paving Plan Partial B	8/29/03	Addendum #16
A-0006-A	Sidewalk Bollard Plan Partial A	8/29/03	Addendum #16
A-0006-B	Sidewalk Bollard Plan Partial B	4/1/03	98% GMP
A-0007	Sidewalk Bridge Plan & Elevation	4/1/03	98% GMP
A-1000	Key Floor Plan (Cellar thru 5th Floor)	7/3/03	Addendum #12
A-100C1-A	Cellar Plan Partial A	8/29/03	Addendum #16
A-100C1-B	Cellar Plan Partial B	8/29/03	Addendum #16
A-100C1-C	Cellar & Ground Floor Mezzanine Plan	8/29/03	Addendum #16
A-1001-A	Ground Floor Plan Partial A	8/29/03	Addendum #16
A-1001-B	Ground Floor Plan Partial B	8/29/03	Addendum #16
A-1002-A	2nd Floor Plan Partial A	8/29/03	Addendum #16
A-1002-B	2nd Floor Plan Partial B	7/3/03	Addendum #12
A-1003-A	3rd Floor Plan Partial A	7/3/03	Addendum #12
A-1003-B	3rd Floor Plan Partial B	7/3/03	Addendum #12
A-1004-A	4th Floor Plan Partial A	8/29/03	Addendum #16
A-1004-B	4th Floor Plan Partial B	8/29/03	Addendum #16
A-1005-A	5th Floor Plan Partial A	8/29/03	Addendum #16
A-1005-B	5th Floor Roof Partial Plan B	8/29/03	Addendum #16
A-1005-B-ALT 24	5th Floor Roof Partial Plan B Alternate #24	7/3/03	Addendum #12
A-1005-B ALT- B1	5th Floor Roof Plan Partial B – 14'-0" Unit Alternate	7/31/03	Addendum #14
A-1005-C	Partial Plans at East Podium Roof	8/29/03	Addendum #16
A-1005-D	Partial Plan at Podium Bulkhead Roof	8/29/03	Addendum #16
A-1006	6th and 7th Floor Plan	8/29/03	Addendum #16
A-1008	8th-11th & 13th Typical Low Rise Floor Plan	8/29/03	Addendum #16
A-1012	12th Floor Plan - Office/Data Center	8/29/03	Addendum #16
A-1014	14th Floor Cafeteria Plan	8/29/03	Addendum #16
A-1015	15th Floor Conference Room Plan	7/3/03	Addendum #12
A-1016	16th Floor EMR Plan and 17th Floor Partial Plan	8/29/03	Addendum #16
A-1018	18th Floor Thru 27th Floor Plan	8/29/03	Addendum #16
A-1028	28th Floor Mechanical Room Plan (Cross Over & Run By)	8/29/03	Addendum #16
A-1029	29th Floor Mid Low EMR Plan	8/29/03	Addendum #16
A-1030	30th thru 38th Floor Plan	8/29/03	Addendum #16
A-1041	39th Thru 50th Floor Plan &Partial Plan	8/29/03	Addendum #16
A-1051	51st Floor Plan, E.M.R. Mezz. & Stair Plan	8/29/03	Addendum #16
A-1052	52nd Floor Main Roof Plan	7/3/03	Addendum #12

1

A-1052-ALT 24	52nd Floor Main Roof Plan Alternate #24	7/3/03	Addendum #12
A-1053	Bulkhead Plan	8/29/03	Addendum #16
A-1054	E.M.R. Plan & Façade Maintenance Platform Plan	8/29/03	Addendum #16
A-200C1	Cellar Core Plan & Elevator Pit Plan	8/29/03	Addendum #16
A-2001	Ground Floor Core Plan	8/29/03	Addendum #16
A-2002	2nd Floor Core Plan	8/29/03	Addendum #16
A-2003	3rd Floor Core Plan	8/29/03	Addendum #16
A-2004	Typical Low Rise Core Plan	8/29/03	Addendum #16
A-2005	Typical Mid-Low Rise Core Plan	8/29/03	Addendum #16
A-2006	Typical Mid-High Rise Core Plan	8/29/03	Addendum #16
A-2007	Typical High Rise Core Plan	8/29/03	Addendum #16
A-2008	Typical Podium East Core Plan	8/29/03	Addendum #16
A-2014	14th Floor Cafeteria Core Plan	8/29/03	Addendum #16
A-2015	15th Floor Conference Room Core Plan	7/3/03	Addendum #12
A-2016	16th Floor Core Plan	8/29/03	Addendum #16
A-2101	Building Core Sections and Details	8/29/03	Addendum #16
A-2101-A	Building Core Sections and Details	8/29/03	Addendum #16
A-2101-B	Building Core Sections and Details	8/29/03	Addendum #16
A-2102	Miscellaneous Sections & Details	8/29/03	Addendum #16
A-2103	Sections @ Typical Low Rise Core	8/29/03	Addendum #16
A-2104	Sections @ Typical Low Rise Core	7/3/03	Addendum #12
A-2105	Sections @ Typical Low Rise Core	7/3/03	Addendum #12
A-2106	Sections @ Typical High Rise Core	5/30/03	Addendum #10
A-2107	Sections @ Typical High Rise Core	5/30/03	Addendum #10
A-2108	Sections @ Typical High Rise Core	7/3/03	Addendum #12
A-2109	Section @ 17 & 29 Elevator Machine Rooms	8/29/03	Addendum #16
A-2110	Section @ 40 & 51 Elevator Machine Rooms	8/29/03	Addendum #16
A-2111	Section @ Rooftop Elevator Machine Rooms	8/29/03	Addendum #16
A-2112	Section @ Podium Elevators	7/3/03	Addendum #12
A-2201	Stair Sections & Details	8/29/03	Addendum #16
A-2202	Stair Sections	8/29/03	Addendum #16
A-2203	Convenience Stair Sections	7/3/03	Addendum #12
A-2301	Enlarged Plans @ Loading Dock	8/29/03	Addendum #16
A-2302	Partial Sections @ Loading Dock	8/29/03	Addendum #16
A-2303	Enlarged Elevations @ Loading Dock	8/29/03	Addendum #16
A-2401	Partial Reflected Ceiling Plans @ Cellar, 1st & 2nd Flrs.	5/30/03	Addendum #10
A-2402	Partial Reflected Ceiling Plans @ Tower Cores	5/30/03	Addendum #10
A-2403	Partial Reflected Ceiling Plan @ Cellar	4/1/03	98% GMP
A-2501	Toilet Rm. RCPS, Elevations and Details	8/29/03	Addendum #16
A-2502	Toilet Rm. RCPS, Elevations and Details	8/29/03	Addendum #16
A-2503	Toilet Rm. RCPS, Elevations and Details	8/29/03	Addendum #16
A-2504	Toilet Rm. RCPS, Elevations and Details	8/29/03	Addendum #16
A-2505	Toilet Rm. RCPS, Elevations and Details	8/29/03	Addendum #16
A-2506	Cellar Toilet Rom. RCPS, Elevations and Details	8/29/03	Addendum #16
A-2601	Elevator Cab	4/1/03	98% GMP
A-2611	Elevator Cab Details	4/1/03	98% GMP
A-3001	South Building Elevation @ 40th St.	7/3/03	Addendum #12

2

A-3002	West Building Elevation @ 8th Ave.	7/3/03		Addendum #12
A-3003	North Building Elevation @ 41st St.	7/3/03		Addendum #12
A-3004	East Building Elevation	7/3/03		Addendum #12
A-3101	Partial South Elevation at Tower Base	8/29/03		Addendum #16
A-3102	Partial South Elevation at Podium (40th Street)	8/29/03		Addendum #16
A-3103	Partial West Elevation at Tower Base	8/29/03		Addendum #16
A-3104	Partial North Elevation at Tower Base	8/29/03	Addendum #16
A-3105	Partial North Elevation at Podium (41st Street)	8/29/03	Addendum #16
A-3106	Partial East Elevation @ Lot Line	8/29/03	Addendum #16
A-3107	Partial East Elevation @ Tower Base	4/11/03	98% GMP
A-3111	Partial South Elevations at 13th -17th & 27th - 30th Floors	7/3/03	Addendum #12
A-3112	Partial West Elevation at Typical & Mechanical Floors	5/30/03	Addendum #10
A-3113	Partial North Elevations at 13th - 17th & 27th - 30th Floors	7/3/03	Addendum #12
A-3114	Partial East Elevations at 13th -17th & 27th - 30th Floors	4/1/03	98% GMP
A-3121	Partial South/Partial North Elevations at Top of Tower	5/30/03	Addendum #10
A-3122	Partial West/Partial East Elevation at Top of Tower	4/1/03	98% GMP
A-3201	Partial South Elevations at Tower Base without Screen	8/29/03	Addendum #16
A-3202	Partial South Elevations at Podium	829/03	Addendum #16
A-3203	Partial Elevations at Podium Loading Docks	8/29/03	Addendum #16
A-3204	Partial West Elevations at Tower Base without Screens	829/03	Addendum #16
A-3205	Partial North Elevations at Tower Base	8/29/03	Addendum #16
A-3206	Partial North Elevations at Podium without Screens	8/29/03	Addendum #16
A-3211	Partial South Elevations at 13th - 17th & 27th - 30th Floors without Screens	7/3/03	Addendum #12
A-3213	Partial North Elevation at 13th - 17th Flrs. & 27th - 30th Flrs.	7/3/03	Addendum #12
A-3214	Parital East Elevations at 13th - 17th & 27th - 30th Floors Without Screens	4/1/03	98% GMP
A-3215	Partial West Elevations at 13 thru 17 Without Screens	7/3/03	Addendum #12
A-3221	Partial North & South Elevation @ Top of Tower w/o Screen	4/1/03	98% GMP
A-3222	Partial West Elevation @ Top of Tower w/o Screen	4/1/03	98% GMP
A-3231	Elevations @ Interior Court	4/1/03	98% GMP
A-3232	Elevations @ Interior Court	7/3/03	Addendum #12
A-3301	Enlarged Elevations @ Podium East Bulkhead	5/30/03	Addendum #10
A-3303	Elevations @ Main Roof of Elevator Machine Rooms	8/29/03	Addendum #16
A-4001	East-West Building Section	4/1/03	98% GMP
A-4002	North/South Building Sections	4/1/03	98% GMP
A-4106	Partial E-W Section @ Top of Tower	7/3/03	Addendum #12
A-4107	Partial W-S Section @ Top of Tower	7/3/03	Addendum #12
A-4108	Rooftop Structure Elevations	5/30/03	Addendum #10
A-4201	Typical Floor Sections	4/1/03	98% GMP
A-4202	28th Floor Sections	5/30/03	Addendum #10
A-4203	Cafeteria & Conference Room Sections	4/1/03	98% GMP
A-4204	Cafeteria & Conference Room Sections	4/1/03	98% GMP
A-4205	Cafeteria & Conference Room Sections	4/1/03	98% GMP
A-4601	Roof Details	8/29/03	Addendum #16
A-4701	Podium Roof A.H.U.	8/29/03	Addendum #16
A-4701 ALT B1	Podium Roof AHU 14’-0” Width Alternate	7/31/03	Addendum #14

3

A-4801	Mast Plans, Sections & Details	7/3/03	Addendum #12
A-5001	Façade Typology Diagram	4/1/03	98% GMP
A-5002	Façade Typology	4/1/03	98% GMP
A-5003	Façade Typology	4/1/03	98% GMP
A-5004	Spandrel Panel Typology	4/1/03	98% GMP
A-5101	Details Façade Type 1: Tower Sections	4/1/03	98% GMP
A-5102	Details Façade Type 1: Lower Tower Sections	7/3/03	Addendum #12
A-5103	Details Façade Type 1: Podium Façade Section	8/29/03	Addendum #16
A-5104	Details Façade Type 1: Podium/Tower Façade Sections	5/30/03	Addendum #10
A-5105	Details Façade @ Cafeteria 14th Floor	5/30/03	Addendum #10
A-5106	Details Façade @ Cafeteria 14th Floor & Kitchen	5/30/03	Addendum #10
A-5107	Details Façade Type 1: Roof Screens	5/30/03	Addendum #10
A-5108	Details Façade Type 1: Mechanical Floors Sections	5/30/03	Addendum #10
A-5114	Roof Screen Plan Details	5/30/03	Addendum #10
A-5115	South Roof Screen Axonometric	4/1/03	98% GMP
A-5116	West Roof Screen Axonometric	4/1/03	98% GMP
A-5117	Recess Corner Roof Screen Axonometric	4/1/03	98% GMP
A-5120	Details Façade Type 1: Tower Wing Wall	7/3/03	Addendum #12
A-5120-ALT-4	Details Façade Type 1: ALT 4	7/3/03	Addendum #12
A-5121	Details Façade Type 1: 15' Podium Wing Wall	7/3/03	Addendum #12
A-5122	Details Façade Type 1: 7'-6" Podium Wing Wall	7/3/03	Addendum #12
A-5123	Details Façade Type 1: Podium Section	5/30/03	Addendum #10
A-5124	Podium Terrace Sections	8/29/03	Addendum #16
A-5125	Podium Loading Dock Details	8/29/03	Addendum #16
A-5126	Podium Loading Dock Details	5/30/03	Addendum #10
A-5131	Main Roof Parapet Details	4/1/03	98% GMP
A-5132	Base Details of Col’s at 75'-0" Roof Screen	4/1/03	98% GMP
A-5133	Base Details of Col’s at 55'-0" & 27'-6" Roof Screens	4/1/03	98% GMP
A-5150	Details Façade Type 1: 50% Ceramic Façade w/ Glass	4/1/03	98% GMP
A-5151	Details Façade Type 1: Curtain Wall Details	4/1/03	98% GMP
A-5152	Tower Corner Mullion Detail Plans	4/1/03	98% GMP
A-5152-ALT-8	Tower Corner Mullion Detail Plans	4/1/03	98% GMP
A-5153	Window Washing Track Details	8/29/03	Addendum #16
A-5201	Details Façade Type 2: Recessed Façade Sections	5/30/03	Addendum #10
A-5202	Details Façade Type 2: Convenience Stair Elevation	7/3/03	Addendum #12
A-5203	Details Façade Type 2: Convenience Stair Section	4/1/03	98% GMP
A-5301	Details Façade Type 3: Garden Court Façade	8/29/03	Addendum #16
A-5350	Details Façade Type 3: Glass Curtain Wall	8/29/03	Addendum #16
A-5351	Details Façade Type 3: Glass Curtain Wall	4/1/03	98% GMP
A-5401	Plans & Wall Section @ Stairs C & D Enclosure	8/29/03	Addendum #16
A-5451	Details @ Podium Stairs C & D	8/29/03	Addendum #16
A-5501	Storefront Façade: Tower, 8th Avenue	5/30/03	Addendum #10
A-5502	Storefront Façade: Podium 40th/41st Streets	5/30/03	Addendum #10
A-5503	Storefront Façade: Tower, 40th/41st Streets	5/30/03	Addendum #10
A-5504	Storefront Façade: Section Details	5/30/03	Addendum #10
A-5521	Storefront Façade: Vestibule Entrance, 40th/41st Streets	5/30/03	Addendum #10
A-5522	Storefront Façade: Vestibule Entrance, 8th Avenue	5/30/03	Addendum #10

4

A-5523	Storefront Façade: Retail Entrances, Tower	8/29/03	Addendum #16
A-5524	Storefront Façade: Times Center Entrance	5/30/03	Addendum #10
A-5550	Storefront Façade: Mullion Typology	5/30/03	Addendum #10
A-5551	Storefront Façade: Mullion Plan/Section Details	5/30/03	Addendum #10
A-5553	Storefront Façade: Interior & Auditorium Façade Details	8/29/03	Addendum #16
A-5556	Storefront Façade: Section Details at Soffit	5/30/03	Addendum #10
A-5557	Storefront Façade: Vestibule Details	5/30/03	Addendum #10
A-5559	Storefront Façade: Typical Door Details	5/30/03	Addendum #10
A-5561	Storefront Façade: Signage & Window Display Signs	8/29/03	Addendum #16
A-5562	Storefront Façade: Awning Details	5/30/03	Addendum #10
A-5601	Details Façade Type 6: Skylights with Metal Grille	7/3/03	Addendum #12
A-5651	Details Façade Type 6: Skylights with Metal Grille	7/3/03	Addendum #12
A-5702	Glass Canopy: 40th/41st Street	8/29/03	Addendum #16
A-5703	Glass Canopy: 8th Avenue	8/29/03	Addendum #16
A-5710	Glass Canopy: Details	8/29/03	Addendum #16
A-5801	Section Detail @ 8th Ave. & Podium Soffit	5/30/03	Addendum #10
A-5802	Beam Penetration Details on 2nd - 5th Floors @ South Elev.	8/29/03	Addendum #16
A-5803	Details @ Façade Penetrations @ Wing Wall	5/30/03	Addendum #10
A-5804	Details @ Façade Penetrations @ Corner	4/1/03	98% GMP
A-5805	Details @ Façade Penetrations @ Corner	8/29/03	Addendum #16
A-5806	Façade Penetration Details @ Mechanical Floor	5/30/03	Addendum #10
A-5807	Façade Penetration Details @ East Podium Tower	4/1/03	98% GMP
A-5901	Details @ Cogen & Bulkhead Roof	8/29/03	Addendum #16
A-5902	Sections & Details @ Main Roof Bulkheads	5/30/03	Addendum #10
A-6001	Lobby Finishes Plan	8/29/03	Addendum #16
A-6101-A	Lobby Reflected Ceiling Plan	7/3/03	Addendum #12
A-6101-B	First Floor Reflected Ceiling Plan	5/30/03	Addendum #10
A-6201	Lobby Interior Elevations	8/29/03	Addendum #16
A-6201-ALT-25	Lobby Interior Elevations Alternate	7/3/03	Addendum #12
A-6301	Lobby Wall Sections	8/29/03	Addendum #16
A-6401	Lobby Details	8/29/03	Addendum #16
A-6402	Column Base Details at Grade	4/1/03	98% GMP
A-6410	Ground Floor Plan Details	8/29/03	Addendum #16
A-6502	Details @ Wood Floor Grill	4/1/03	98% GMP
A-6601	Details @ Lobby Ceiling	4/1/03	98% GMP
A-6701	Lobby Stair & Handrails	4/1/03	98% GMP
A-6702	Lobby Handicap Lift	5/30/03	Addendum #10
A-6704	Lobby Glass Partition	4/1/03	98% GMP
A-6705	Lobby/Times Center Glass Partition	4/1/03	98% GMP
A-6706	Garden Court Bridge Details	8/29/03	Addendum #16
A-6751	Lobby Handrails Details	7/3/03	Addendum #12
A-6801	Master Security Lobby Desk Details	4/1/03	98% GMP
A-6811	Master Security Lobby Desk Details	4/1/03	98% GMP
A-7201	Birdwire Partial Plans and Details	8/29/03	Addendum #16
A-7301	Exterior Lighting Adjacent Building	8/12/03	Addendum #15
A-8004	Ground Floor Reflected Ceiling Plan	7/3/03	Addendum #12
A-8006	Ground Floor/Cellar Finish Plan	7/3/03	Addendum #12

5

A-8102	Ground Floor/Cellar Lobby Sections	7/3/03	Addendum #12
A-8201	Ground Floor Lobby Interior Elevations	7/3/03	Addendum #12
A-8202	Ground Floor & Cellar Interior Elevations	7/3/03	Addendum #12
A-900C1-A	Cellar Floor Edge of Slab Plan Partial A	8/29/03	Addendum #16
A-900C1-B	Cellar Floor Edge of Slab Plan Partial B	8/29/03	Addendum #16
A-900C1-C	Cellar Mezzanine Edge of Slab Plan	8/29/03	Addendum #16
A-9001-A	Ground Floor Edge of Slab Plan Partial A	8/29/03	Addendum #16
A-9001-B	Ground Floor Edge of Slab Plan Partial B	8/29/03	Addendum #16
A-9002-A	2nd Floor Edge of Slab Plan Partial A	8/29/03	Addendum #16
A-9002-B	2nd Floor Edge of Slab Plan Partial B	7/3/03	Addendum #12
A-9003-A	3rd Floor Edge of Slab Plan Partial A	8/29/03	Addendum #16
A-9003-B	3rd Floor Edge of Slab Plan Partial B	7/3/03	Addendum #12
A-9004-A	4th Floor Edge of Slab Plan Partial A	8/29/03	Addendum #16
A-9004-B	4th Floor Edge of Slab Plan Partial B	7/3/03	Addendum #12
A-9005-A	5th Floor Edge of Slab Plan Partial A	8/29/03	Addendum #16
A-9005-B	5th Floor Edge of Slab Roof Partial Plan B	7/3/03	Addendum #12
A-9005-C	Edge of Slab Partial Plan at Podium Bulkhead Roof	7/3/03	Addendum #12
A-9008	6th-11th & 13th Floor Edge of Slab Plan	8/29/03	Addendum #16
A-9012	12th Floor Office/Data Center Edge of Slab Plan	8/29/03	Addendum #16
A-9014	14th Floor Cafeteria Edge of Slab Plan	8/29/03	Addendum #16
A-9015	15th Floor Conference Room Edge of Slab Plan	8/29/03	Addendum #16
A-9016	16th Floor and Partial 17th Floor Edge of Slab Plan	8/29/03	Addendum #16
A-9018	18th Floor Thru 27th Floor Edge of Slab Plan	8/29/03	Addendum #16
A-9028	28th Floor Edge of Slab Plan	8/29/03	Addendum #16
A-9029	29th Floor Mid Low EMR Edge of Slab Plan	8/29/03	Addendum #16
A-9030	30th thru 38th Floor Edge of Slab Plan	8/29/03	Addendum #16
A-9041	41st Thru 50th Floor Edge of Slab Plan	8/29/03	Addendum #16
A-9051	51st Floor & Partial 51st Flr. EMR Mezz. & EOS Plan	8/29/03	Addendum #16
A-9052	52nd Floor Main Roof Edge of Slab Plan	4/1/03	98% GMP
CONED VAULTS
CE-1	Transformer Vault Under Sidewalk Plans	4/1/03	98% GMP
CE-2	Transformer Vault Sections and Details	4/1/03	98% GMP
CE-3	Transformer Vault Layout Sections & Details	4/1/03	98% GMP
FAÇADE MAINTENANCE DRAWINGS
FM-0001	Façade Maintenance System Equipment Layout	7/3/03	Addendum #12
FM-0002	Façade Maintenance System Sections and Details	7/3/03	Addendum #12
FM-0003	Façade Maintenance System Sections and Details	7/3/03	Addendum #12
FM-0004	Façade Maintenance System Garden Area	7/3/03	Addendum #12
FM-0005	Façade Maintenance System 8th Ave Recess	7/3/03	Addendum #12
VERTICAL TRANSPORTATION DRAWINGS
EL-0001	Elevator Plan View	7/3/03	Addendum #12

6

EL-0002	Elevator Pit Plans	7/3/03	Addendum #12
EL-0003	Machine Rooms	7/3/03	Addendum #12
EL-0004	Elevator Elevations	7/3/03	Addendum #12
LANDSCAPE DRAWINGS
L-1001	Ground Floor Grading and Subsurface Drainage Plan	4/1/03	98% GMP
L-1002	Ground Floor Planting Plan	4/1/03	98% GMP
L-1003	Irrigation Plan	4/1/03	98% GMP
L-4001	Ground Floor Planting Section	4/1/03	98% GMP
L-5001	Drainage Planting Details	4/1/03	98% GMP
L-5002	Irrigation Details	4/1/03	98% GMP
SITE SURVEY
C1	Site Survey	4/1/03	98% GMP
C2	Site Survey	4/1/03	98% GMP
C3	Site Survey	4/1/03	98% GMP
SUPPORT OF EXCAVATION
SOE-1	Support of Excavation Plan	8/29/03	Addendum #16
SOE-2	Support of Excavation Section	8/29/03	Addendum #16
SOE-3	Support of Excavation Details and Notes	8/29/03	Addendum #16
SOE-4	Support of Excavation NYTC Notes	8/29/03	Addendum #16
D-1	Temporary Berm During Demolition Plan	8/29/03	Addendum #16
D-2	Temporary Berm During Demolition Section	8/29/03	Addendum #16
D-3	Temporary Berm During Demolition NYTC Notes	8/29/03	Addendum #16
STRUCTURAL DRAWINGS
S-0001	General Notes	5/30/03	Addendum #10
S-0002	Paint Location Plan	5/30/03	Addendum #10
S-0003	Paint Location Plan	5/30/03	Addendum #10
S-0004	Building Deflections Under Max Lateral Forces	7/3/03	Addendum #12
S-0005	Building Vertical Deflections	7/3/03	Addendum #12
S-100F-A	Foundation Plan Partial A	7/3/03	Addendum #12
S-100F-B	Foundation Plan Partial B	7/3/03	Addendum #12
S-100C1-A	Cellar Slab Plan Partial A	5/30/03	Addendum #10
S-100C1-B	Cellar Slab Plan Partial B	7/3/03	Addendum #12
S-100C1-C	Mechanical Mezzanine Framing Plan	7/3/03	Addendum #12
S-1001-A	Ground Floor Framing Plan Partial A	7/3/03	Addendum #12
S-1001-B	Ground Floor Framing Plan Partial B	7/3/03	Addendum #12
S-1002-A	2nd Floor Framing Plan Partial A	7/3/03	Addendum #12
S-1002-B	2nd Floor Framing Plan Partial B	7/3/03	Addendum #12
S-1003-A	3rd Floor Framing Plan Partial A	7/3/03	Addendum #12
S-1003-B	3rd Floor Framing Plan Partial B	7/3/03	Addendum #12

7

S-1004-A		4th Floor Framing Plan Partial A	7/3/03		Addendum #12
S-1004-B	4th Floor Framing Plan Partial B		7/3/03	Addendum #12
S-1005-A	5th Floor Framing Plan Partial A		7/3/03	Addendum #12
S-1005-B	5th Floor Framing Plan Partial B		7/3/03	Addendum #12
S-1005-C	East Podium Cogen Framing Plans		5/30/03	Addendum #10
S-1006	6th-11th, & 13th Typical Tower Plan		7/3/03	Addendum #12
S-1012	12th Floor Data Center		7/3/03	Addendum #12
S-1014	14th Floor Cafeteria Plan		7/3/03	Addendum #12
S-1015	15th Floor Conference Room Plan		7/3/03	Addendum #12
S-1016	16th Floor Framing Plan		7/3/03	Addendum #12
S-1017	17th Floor EMR Plan		7/3/03	Addendum #12
S-101B	18th Floor thru 27th Floor Plan		7/3/03	Addendum #12
S-1028A	28th Floor Mechanical Room Plan		7/3/03	Addendum 412
S-1028B	28th Floor Plan Upper Level		5/30/03	Addendum #10
S-1029	29th Floor Mid Low EMR Plan		7/3/03	Addendum #12
S-1030	30th Thru 39th Floor Plan & 40th Floor Partial Plan		7/3/03	Addendum #12
S-1041	41st Thru 50th Floor Plan		7/3/03	Addendum #12
S-1051A	51st Floor Plan		7/3/03	Addendum #12
S-1051B	51st Floor Plan Upper Level		5/30/03	Addendum #10
S-1052	52nd Floor Main Roof Plan		7/3/03	Addendum #12
S-1053	53rd Floor Bulkhead Plan		5/30/03	Addendum #10
S-1054	54th Floor Roof Plan		5/30/03	Addendum #10
S-2000	Splice Table		4/1/03	98% GMP
S-2001	Typical Footing and Rock Anchor Details		7/3/03	Addendum #12
S-2002	Typical Wall and Grade Beam Details		7/3/03	Addendum #12
S-2003	Typical Slab on Grade Details		7/3/03	Addendum #12
S-2004	Column Encasement Details		7/3/03	Addendum #12
S-2005	Foundation Elevations 1		4/1/03	98% GMP
S-2008	Foundation Elevations 2		4/1/03	98% GMP
S-2008	Typical Elv. Pit Details		7/3/03	Addendum #12
S-2009	Foundation Sections and Details		7/3/03	Addendum #12
S-2010	Foundation and Ground Floor Sections and Details		7/3/03	Addendum #12
S-2011	Foundation and Ground Floor Sections and Details 2		4/1/03	98% GMP
S-2012	Foundation and Ground Floor Sections and Details 3		4/1/03	98% GMP
S-2013	Ground Floor Sections and Details		7/3/03	Addendum #12
S-2101	Con Edison Vault Part Plans and Sections		4/1/03	98% GMP
S-2102	Con Edison Vault Removable Precast Roof Slab		.4/1/03	96% GMP
S-2200	TA Notes		7/3/03	Addendum #12
S-2201	Subway & Building Foundation Sections		4/1/03	98% GMP
S-2400	Typical Masonry Details		4/1/03	98% GMP
S-3000	Erection Guidelines		4/1/03	98% GMP
S-3001	Typical Slab on Metal Deck Details		5/2/03	Addendum #9
S-3002	Typical Steel Details		4/1/03	98% GMP
S-3003	Typical Steel Details		7/3/03	Addendum #12
S-3005	Intermediate Rail Support Part Plans and Elev. Div. Beams		5/2/03	Addendum #9
S-3101	General Podium Sections and Details		5/2/03	Addendum #9
S-3102	General Podium Sections and Details		7/3/03	Addendum #12

8

S-3104	General Podium Sections and Details	5/30/03	Addendum #10
S-3110	Stairs A, A1 - B, B1 Cellar - 2nd Floor	7/3/03	Addendum #12
S-3111	Stairs A, A1 - B, B1 Details Cellar - 2nd Floor	4/1/03	98% GMP
S-3112	Stairs A1 and B1 Framing Plans	5/2/03	Addendum #9
S-3120	Convenience Stair Part Plan and Details	7/3/03	Addendum #12
S-3130	Garden Sections and Details	5/30/03	Addendum #10
S-3201	General Tower Sections and Details	4/1/03	98% GMP
S-3202	Sections and Details	5/30/03	Addendum #10
S-3203	Sections and Details	7/3/03	Addendum #12
S-3204	Ground Floor Sections and Details	4/1/03	98% GMP
S-3205	Sections and Details	7/3/03	Addendum #12
S-3220	Erection Truss Details	4/1/03	98% GMP
S-3221	Erection Truss Details	5/30/03	Addendum #10
S-4001	Interior Podium Column Schedule	5/30/03	Addendum #10
S-4002	Interior Tower Column Schedule	7/3/03	Addendum #12
S-4002 ALT 20	Interior Tower Column Schedule	7/17/03	Addendum #13
S-4003	Interior Column and Base Plate Details	7/3/03	Addendum #12
S-4004	Interior Column Splice Details	4/1/03	98% GMP
S-4005	Interior Column Splice Details	4/1/03	98% GMP
S-5000	Exterior Steel General Notes	5/30/03	Addendum #10
S-5001	Exterior Podium Column Schedule	5/30/03	Addendum #10
S-5002	Exterior Tower Column Schedule and Details	7/3/03	Addendum #12
S-5002 ALT 20	Exterior Tower Column Schedule and Details	7/17/03	Addendum #13
S-5003	Exterior Column Splice Details	4/1/03	98% GMP
S-5010	Part Plan at Southwest Corner	5/30/03	Addendum #10
S-5011	Cantilever Beam Elevation	4/1/03	98% GMP
S-5012	Wing Beam Elevations	7/3/03	Addendum #12
S-5013	“X” Brace Elevations and Details	5/30/03	Addendum #10
S-5014	Podium Wing Beam Details	7/3/03	Addendum #12
S-5015	Steel Beam Sections and Details	4/1/03	98% GMP
S-5016	Exposed Steel Beam Details	5/2/03	Addendum #9
S-5020	Exposed Outrigger Connection Details	4/1/03	98% GMP
S-5021	Exposed Outrigger Connection Details	5/30/03	Addendum #10
S-5101	West Canopy Framing Sections and Details	5/30/03	Addendum #10
S-5102	North/South Canopy Framing Sections and Details	5/30/03	Addendum #10
S-5140	8th Avenue Skirt Sections and Details	4/1/03	98% GMP
S-5240	75'-0" Roof Garden Screen Elevation	4/1/03	98% GMP
S-5241	55'-0" Roof Garden Screen Elevation	4/1/03	98% GMP
S-5242	27'-6" Roof Garden Screen Elevation	4/1/03	98% GMP
S-5243	Roof Garden Screen Details	4/1/03	98% GMP
S-5244	75" Roof Garden Screen Details	4/1/03	98% GMP
S-5245	55" Roof Garden Screen Details	4/1/03	98% GMP
S-6000	Typical Bracing Connection Details	5/30/03	Addendum #10
S-6001	East-West Braced Frame Elevations On Grid 3	5/30/03	Addendum #10
S-6001 ALT 20	East-West Braced Frame Elevations On Grid 3	7/17/03	Addendum #13
S-6002	East-West Braced Frame Elevations On Grid 4	5/30/03	Addendum #10
S-6002 ALT 20	East-West Braced Frame Elevations On Grid 4	7/17/03	Addendum #13

9

S-6003	East-West Braced Frame Elevations On Grid 6	5/30/03	Addendum #10
S-6003 ALT 20	East-West Braced Frame Elevations On Grid 6	7/17/03	Addendum #13
S-6004	East-West Braced Frame Elevations On Grid 2 & 7	5/30/03	Addendum #10
S-6004 ALT 20	East-West Braced Frame Elevations On Grid 2 & 7	7/17/03	Addendum #13
S-6005	North-South Braced Frame Elevations On Grid B	5/30/03	Addendum #10
S-6005 ALT 20	North-South Braced Frame Elevations On Grid B	7/17/03	Addendum #13
S-6006	North-South Braced Frame Elevations On Grid C.2	5/30/03	Addendum #10
S-6006 ALT 20	North-South Braced Frame Elevations On Grid C.2	7/17/03	Addendum #13
S-6007	North-South Braced Frame Elevations On Grid D	5/30/03	Addendum #10
S-6007 ALT 20	North-South Braced Frame Elevations On Grid D	7/17/03	Addendum #13
S-6008	Braced Frame Details at Floor 51	5/30/03	Addendum #10
S-6009	Outrigger Elevations On Grids 5, A and E	5/30/03	Addendum #10
S-6009 ALT 20	Outrigger Elevations On Grids 5, A and E	7/17/03	Addendum #13
S-6010	Braced Frame Details	4/1/03	98% GMP
S-6011	Braced Frame Details	5/30/03	Addendum #10
S-6012	Braced Frame Details	5/30/03	Addendum #10
S-6013	Braced Frame Details Line C.2	4/1/03	98% GMP
S-6020	Braced Frame - Line B Connection Details	4/1/03	98% GMP
S-6021	Braced Frame - Line C Connection Details	4/1/03	98% GMP
S-6022	Braced Frame Details	4/1/03	98% GMP
S-6023	Outrigger Connection Details	4/1/03	98% GMP
S-6024	Braced Frame Details	4/1/03	98% GMP
S-6026	Interior Outrigger Connection Details	4/1/03	98% GMP
S-7010	Mast Framing Details	7/3/03	Addendum #12
S-7011	Mast Framing Details	4/1803	Addendum #7
S-7012	Mast Elevation	7/3/03	Addendum #12
S-7013	Mast Details	7/3/03	Addendum #12
SUBWAY ENTRANCE
	Title Sheet	8/2903	Addendum #16
G-1	General Notes	7/3/03	Addendum #12
G-2	Insurance Clauses and Abbreviations	4/1/03	98% GMP
A-1	Proposed Stair Plan & Reflected Ceiling Plan	8/29/03	Addendum #16
A-2	Proposed Stair Elevations - 1	8/29/03	Addendum #16
A-3	Proposed Stair Elevations - 2 & Signage	8/29/03	Addendum #16
A-4	Architectural Details	8/29/03	Addendum #16
A-5	Architectural Details - 2	8/29/03	Addendum #16
C-1	Demolition Plans	8/29/03	Addendum #16
C-2	Demolition Sections	8/29/03	Addendum #16
C-2A	Excavation and Bracing - Plan and Sections	8/29/03	Addendum #16
C-3	Proposed Street / Mezzanine Plans	8/29/03	Addendum #16
C-4	Proposed Section	8/29/03	Addendum #16
C-5	Proposed Sections - 2	8/29/03	Addendum #16
C-6	Miscellaneous Details	8/29/03	Addendum #16
D-1	Station Drainage	8/29/03	Addendum #16
U-1	Existing / Proposed Utility Plan	4/1/03	98% GMP
U-2	Proposed Sewer Plan	4/1/03	98% GMP

10

E-1	Proposed Lighting Plan	8/29/03	Addendum #16
E-2	One-Line Diagram for Rolling Grille Controls and Panel Schedules	8/29/03	Addendum #16
SECURITY
SE-LEG	Security Device Legend and Drawing List	8/29/03	Addendum #16
SE-DET-A	Security Device Details	8/29/03	Addendum #16
SE-DET-B	Security Device Details	8/29/03	Addendum #16
SE-10C1-A	Cellar Floor Security Device Plan (Partial A)	8/29/03	Addendum #16
SE-10C1-B	Cellar Floor Security Device Plan (Partial B)	8/29/03	Addendum #16
SE-1001-A	Ground Floor Security Device Plan (Partial A)	8/29/03	Addendum #16
SE-1001-B	Ground Floor Security Device Plan (Partial B)	8/29/03	Addendum #16
SE-1002-A	Second Floor Security Device Plan (Partial A)	8/29/03	Addendum #16
SE-1002-B	Second Floor Security Device Plan (Partial B)	8/29/03	Addendum #16
SE-1003-A	Third Floor Security Device Plan (Partial A)	8/29/03	Addendum #18
SE-1003-B	Third Floor Security Device Plan (Partial B)	8/29/03	Addendum #16
SE-1004-A	Fourth Floor Security Device Plan (Partial A)	8/29/03	Addendum #16
SE-1004-B	Fourth Floor Security Device Plan (Partial B)	8/29/03	Addendum #16
SE-1005-A	Fifth Floor Security Device Plan (Partial A)	8/29/03	Addendum #16
SE-1005-B	Fifth Floor Security Device Plan (Partial B)	8/29/03	Addendum #16
SE-1005-C	East Podium Roof Security Device Plan (Partial)	8/29/03	Addendum #16
SE-1006	6th - 7th Floor Security Device Plan	8/29/03	Addendum #16
SE-1008	8th - 11th, 13th Floor Security Device Plan (Typical Low Rise)	8/29/03	Addendum #16
SE-1012	12th Floor Security Device Plan (Office/Data Center)	8/29/03	Addendum #16
SE-1014	14th Floor Cafeteria Security Device Plan	8/29/03	Addendum #16
SE-1015	15th Floor Conference Room Security Device Plan	8/29/03	Addendum #16
SE-1016	16th Floor EMR & 17th Floor Partial Security Device Plan	8/29/03	Addendum #16
SE-1018	18th - 27th Floor Security Device Plan	8/29/03	Addendum #16
SE-1028	28th Floor Mechanical Room Security Device Plan	8/29/03	Addendum #16
SE-1029	29th Floor Security Device Plan	8/29/03	Addendum #16
SE-1030	30th - 40th Floor Security Device Plan	8/29/03	Addendum #16
SE-1041	41st - 50th Floor Security Device Plan	8/29/03	Addendum #16
SE-1051	51st Floor Security Device Plan	8/29/03	Addendum #16
SE-1052	52nd Floor Main Roof Security Device Plan	8/29/03	Addendum #16
HVAC
M-0000	HVAC Drawing List	8/29/03	Addendum #16
M-0001	HVAC Symbols and Abbreviations	4/1/03	98% GMP
M10C1-A-SUB	Sub-Cellar Floor Plan Partial A	4/1/03	98% GMP
M10C1-B-SUB	Sub-Cellar Floor Plan Partial B	7/3/03	Addendum #12
M-10C1-A	Cellar Floor Plan Partial A	8/29/03	Addendum #16
M-10C1-B	Cellar Floor Plan Partial B	8/29/03	Addendum #16
M-10C1-C	Cellar Floor Plan Mezzanine	7/3/03	Addendum #12
M-1001-A	Ground Floor Plan Partial A	5/30/03	Addendum #10
M-1001-B	Ground Floor Plan Partial B	8/29/03	Addendum #16

11

M-1002-A	2nd Floor Plan Partial A	5/2/03	Addendum #9
M-1002-B	2nd Floor Plan Partial B	5/30/03	Addendum #10
M-1003-A	3rd Floor Plan Partial A	5/2/03	Addendum #9
M-1003-B	3rd Floor Plan Partial B	5/2/03	Addendum #9
M-1004-A	4th Floor Plan Partial A	5/2/03	Addendum #9
M-1004-B	4th Floor Plan Partial B	5/2/03	Addendum #9
M-1005-A	5th Floor Plan Partial A	5/2/03	Addendum #9
M-1005-B	5th Floor Plan Partial B	8/29/03	Addendum #16
M-1005M-B	5th Floor Mezzanine Plan	5/2/03	Addendum #9
M-1006	6th and 7th Floor Plan	5/2/03	Addendum #9
M-1008	8th - 11th & 13th Floor Plan	5/2/03	Addendum #9
M-1012	12th Floor Plan - Office/Data Center	5/2/03	Addendum #9
M-1014	14th Floor Cafeteria Plan	5/30/03	Addendum #10
M-1015	15th Floor Conference Room Plan	5/30/03	Addendum #10
M-1016	16th Floor Plan	8/29/03	Addendum #16
M-1017	17th Floor Plan	8/29/03	Addendum #16
M-1018	18th - 27th Floor Plan	5/30/03	Addendum #10
M-1028	28th Floor Mechanical Room Plan	5/30/03	Addendum #10
M-1029	29th Floor Mid Low EMR Plan	5/30/03	Addendum #10
M-1030	30th - 38th Floor Plan	5/30/03	Addendum #10
M-1039	39th Floor Plan	8/29/03	Addendum #16
M-1040	40th Floor Plan	8/29/03	Addendum #16
M-1041	41st - 50th Floor Plan	8/29/03	Addendum #16
M-1051	51st Floor MER Plan (Lower)	5/30/03	Addendum #10
M-1051M	51st Floor MER Plan (Upper)	5/30/03	Addendum #10
M-1052	52nd Floor Main Roof Plan	5/30/03	Addendum #10
M-1053	Roof Bulkhead Level	8/29/03	Addendum #16
M-1054	Roof EMR Level	8/29/03	Addendum #16
M-3000	HVAC Building Sections No. 1	4/1/03	98% GMP
M-3001	HVAC Building Sections No. 2	5/30/03	Addendum #10
M-3002	HVAC Building Sections No. 3	5/30/03	Addendum #10
M-3003	HVAC Building Sections No. 4	4/1/03	98% GMP
M-3004	HVAC Building Sections No. 5	4/1/03	98% GMP
M-3005	HVAC Building Sections No. 6	5/30/03	Addendum #10
M-3006	HVAC Building Sections No. 7	5/30/03	Addendum #10
M-3007	HVAC Building Sections No. 8	5/30/03	Addendum #10
M-4000	Cellar Floor Part Plan No. 1	8/29/03	Addendum #16
M-4001	Cellar Floor Part Plan No. 2	5/30/03	Addendum #10
M-4002	Cellar Floor Part Plan No. 3	7/3/03	Addendum #12
M-4003	Cellar Floor Part Plan No. 4	5/30/03	Addendum #10
M-4004	Cellar Floor Part Plan No. 5	7/3/03	Addendum #12
M-4005	Cellar Floor Part Plan No. 6	8/29/03	Addendum #16
M-4006	Cellar Floor Part Plan Mezzanine	7/3/03	Addendum #12
M-4007	5th Floor Part Plan No. 1	8/29/03	Addendum #16
M-4008	5th Floor Part Plan No. 2	4/1/03	98% GMP
M-5000	HVAC Water Riser Diagram No. 1	5/30/03	Addendum #10
M-5001	HVAC Water Riser Diagram No. 2	5/30/03	Addendum #10

12

M-5002	HVAC Water Riser Diagram No. 3	5/2/03	Addendum #9
M-5003	HVAC Steam and Hot Water Riser Diagram No. 1	5/30/03	Addendum #10
M-5004	HVAC Steam and Hot Water Riser Diagram No. 2	5/30/03	Addendum #10
M-5005	HVAC Steam and Hot Water Riser Diagram No. 3	5/30/03	Addendum #10
M-5006	HVAC Air Riser Diagram No. 1	7/3/03	Addendum #12
M-5007	HVAC Air Riser Diagram No. 2	5/30/03	Addendum #10
M-5008	HVAC Air Riser Diagram No. 3	5/30/03	Addendum #10
M-5009	HVAC Air Riser Diagram No. 4	5/30/03	Addendum #10
M-5010	HVAC Cogen Flow Diagram	5/30/03	Addendum #10
M-5011	HVAC Fuel Oil Floor Diagram	8/29/03	Addendum #16
M-6000	HVAC Schedules Sheet No. 1.	7/3/03	Addendum #12
M-6001	HVAC Schedules Sheet No. 2	7/3/03	Addendum #12
M-6002	HVAC Schedules Sheet No. 3	7/3/03	Addendum #12
M-6003	HVAC Schedules Sheet No. 4	7/3/03	Addendum #12
M-6004	HVAC Schedules Sheet No. 5	7/3/03	Addendum #12
M-7000	HVAC Details Sheet No. 1	4/1/03	98% GMP
M-7001	HVAC Details Sheet No. 2	4/1/03	98% GMP
M-7002	HVAC Details Sheet No. 3	5/30/03	Addendum #10
M-7003	HVAC Details Sheet No. 4	4/1/03	98% GMP
M-7004	HVAC Details Sheet No. 5	4/1/03	98% GMP
M-7005	HVAC Details Sheet No. 6	5/30/03	Addendum #10
M-7006	HVAC Details Sheet No. 7	8/29/03	Addendum #16
M-7007	HVAC Details Sheet No. 8	8/29/03	Addendum #16
M-7007 ALT-B1	HVAC Details Sheet No. 8	7/31/03	Addendum #14
M-7008	HVAC Details Sheet No. 9	4/1/03	98% GMP
M-8000	HVAC Control Diagram No. 1	4/1/03	98% GMP
M-8001	HVAC Control Diagram No. 2	8/29/03	Addendum #16
M-8002	HVAC Control Diagram No. 3	8/29/03	Addendum #16
M-8003	HVAC Control Diagram No. 4	5/2/03	Addendum #9
M-8004	HVAC Control Diagram No. 5	5/2/03	Addendum #9
M-8005	HVAC Control Diagram No. 6	4/1/03	98% GMP
M-8006	HVAC Control Diagram No. 7	4/1/03	98% GMP
M-8007	HVAC Control Diagram No. 8	8/29/03	Addendum #16
M-8008	HVAC Control Diagram No. 9	4/1/03	98% GMP
M-8009	HVAC Control Diagram No. 10	4/1/03	98% GMP
M-8010	HVAC Control Diagram No. 11	4/1/03	98% GMP
M-8011	HVAC Control Diagram No. 12	4/1/03	98% GMP
M-8012	HVAC Control Diagram No. 13	4/1/03	98% GMP
ELECTRICAL
E-0000	Electrical Drawing List	8/29/03	Addendum #16
E-0001	Symbol List & Abbreviations	8/29/03	Addendum #16
E-10C1U-A	Cellar Floor Plan Partial A - Underground	5/30/03	Addendum #10
E-10C1U-B	Cellar Floor Plan Partial B - Underground	7/3/03	Addendum #12
E-100C1-A	Cellar Floor Plan Partial A	8/29/03	Addendum #16

13

E-100C1-B	Cellar Floor Plan Partial B	8/29/03	Addendum #16
E-1001-A	Ground Floor Plan Partial A	8/29/03	Addendum #16
E-1001-B	Ground Floor Plan Partial B	8/29/03	Addendum #16
E-1002-A	2nd Floor Plan Partial A	8/29/03	Addendum #16
E-1002-B	2nd Floor Plan Partial B	7/3/03	Addendum #12
E-1003-A	3rd Floor Plan Partial A	8/29/03	Addendum #16
E-1003-B	3rd Floor Plan Partial B	8/29/03	Addendum #16
E-1004-A	4th Floor Plan Partial A	8/29/03	Addendum #16
E-1004-B	4th Floor Plan Partial B	8/29/03	Addendum #16
E-1005-A	5th Floor Plan Partial A	8/29/03	Addendum #16
E-1005-B	5th Floor Plan Partial B	8/29/03	Addendum #16
E-1005-C	5th Floor Plan C Roof	8/29/03	Addendum #16
E-1006	6th & 7th Floor Plan	8/29/03	Addendum #16
E-1008	8th - 11th & 13th Floor Plan	8/29/03	Addendum #16
E-1012	12th Floor Plan Data Center	8/29/03	Addendum #16
E-1014	14th Floor Cafeteria Plan	8/29/03	Addendum #16
E-1015	15th Floor Conf. Rm. Plan	8/29/03	Addendum #16
E-1016	16th Floor Plan - 17th Floor Part Plan	8/29/03	Addendum #16
E-1018	18th thru 27th Floor Plan	8/29/03	Addendum #16
E-1028	28th Floor Mech. Rm. Plan	8/29/03	Addendum #16
E-1029	29th Floor Mid Low EMR Plan	8/29/03	Addendum #16
E-1030	30th thru 40th Floor Plan & Partial Plan	8/29/03	Addendum #16
E-1041	41st thru 50th Floor Plan	8/29/03	Addendum #16
E-1051	51st Floor Plan	8/29/03	Addendum #16
E-1052	52nd Floor Main Roof	7/3/03	Addendum #12
E-1053	Bulkhead Plan	5/30/03	Addendum #10
E-1054	1st and 2nd Platform Plans	7/3/03	Addendum #12
E-4000	Electric Closets Part Plans	5/30/03	Addendum #10
E-5000	One Line Riser Diagram No. 1	8/29/03	Addendum #16
E-5001	One Line Riser Diagram No. 2	5/30/03	Addendum #10
E-5002	One Line Riser Diagram No. 3	5/30/03	Addendum #10
E-5003	Stair A & B Riser Diagram	8/29/03	Addendum #16
E-5004	Switchboard One Line Diagram	8/29/03	Addendum #16
E-5005	Distribution Board One Line Diagram	8/29/03	Addendum #16
E-5006	Cogen Distribution	8/29/03	Addendum #16
E-5007	Alternate Emergency Switchboard One Line Diagram	8/29/03	Addendum #16
E-6000	Electrical Details	8/29/03	Addendum #16
E-6001	Electrical Conduit Riser Details	4/1/03	98% GMP
E-7000	Panel Schedules	8/29/03	Addendum #16
E-7001	Miscellaneous Schedules	8/29/03	Addendum #16
E-7002	Miscellaneous Schedules	8/29/03	Addendum #16
E-7003	Miscellaneous Schedules	8/29/03	Addendum #16
E-7004	Switchboard Schedules	8/29/03	Addendum #16
E-7301	Part Floor Plan and Site Plan	8/12/03	Addendum #15
E-7302	One Line Diagram, Details and Panel Schedules	8/12/03	Addendum #15

14

PLUMBING
P-0000	Plumbing Drawing List	8/29/03	Addendum #16
P-0001	Plumbing Symbol List	5/30/03	Addendum #10
P-10CU-A	Underground Floor Plan A	8/29/03	Addendum #16
P-10CU-B	Underground Floor Plan B	8/29/03	Addendum #16
P-10C1-A	Cellar Floor Plan A	8/29/03	Addendum #16
P-10C1-B	Cellar Floor Plan B	8/29/03	Addendum #16
P-10C1-C	Cellar Mezzanine Floor Plan Partial C	8/29/03	Addendum #16
P-1001A	1st Floor Plan A	5/30/03	Addendum #10
P-1001B	1st Floor Plan B	8/29/03	Addendum #16
P-1002A	2nd Floor Plan A	5/30/03	Addendum #10
P-1002B	2nd Floor Plan B	8/29/03	Addendum #16
P-1003A	3rd Floor Plan A	5/30/03	Addendum #10
P-1003B	3rd Floor Plan B	8/29/03	Addendum #16
P-1004A	4th Floor Plan A	5/30/03	Addendum #10
P-1004B	4th Floor Plan B	8/29/03	Addendum #16
P-1005A	5th Floor Plan A	5/30/03	Addendum #10
P-1005B	5th Floor Plan B	8/29/03	Addendum #16
P-1006	6th and 7th Floor Plan	5/30/03	Addendum #10
P-1008	8th - 10th Floor Plan	5/30/03	Addendum #10
P-1011	11th Floor Plan	5/30/03	Addendum #10
P-1012	12th Floor Plan/Data Center	5/30/03	Addendum #10
P-1013	13th Floor Plan	5/30/03	Addendum #10
P-1014	14th Floor Cafeteria Plan	5/30/03	Addendum #10
P-1015	15th Floor Conf. Room Plan	5/30/03	Addendum #10
P-1016	16th Floor Plan	5/30/03	Addendum #10
P-1017	17th Floor Plan	5/30/03	Addendum #10
P-1018	18th thru 27th Floor Plan	5/30/03	Addendum #10
P-1028	28th Floor MER Plan	5/30/03	Addendum #10
P-1029	29th Floor EMR Plan	5/30/03	Addendum #10
P-1030	30th thru 38th Floor Plan	5/30/03	Addendum #10
P-1039	39th Floor Plan	5/30/03	Addendum #10
P-1040	40th Floor	5/30/03	Addendum #10
P-1041	41st thru 50th Floor Plan	5/30/03	Addendum #10
P-1051	51st Floor Plan	5/30/03	Addendum #10
P-1051M	51st Floor Plan Mezzanine	5/30/03	Addendum #10
P-1052	52nd Floor - Roof Plan	5/30/03	Addendum #10
P-1053	53rd Floor Plan	5/30/03	Addendum #10
P-1054	Roof EMR Level	5/30/03	Addendum #10
P-1055	Façade Maintenance Platform Plan	5/30/03	Addendum #10
P-4000	Plumbing Cellar Part Plans & Details	8/29/03	Addendum #16
P-4001	Plumbing Part Plans	5/30/03	Addendum #10
P-4002	Plumbing Part Plans	5/30/03	Addendum #10
P-5000	Plumbing Sanitary Riser Diagram #1	8/29/03	Addendum #16
P-5000A	Plumbing Sanitary Riser Diagram #2	8/29/03	Addendum #16
P-5001	Plumbing Sanitary Riser Diagram #2	5/30/03	Addendum #10

15

P-5002	Plumbing Sanitary Riser Diagram #3	5/30/03	Addendum #10
P-5003	Plumbing Storm Riser Diagram #1	8/29/03	Addendum #16
P-5004	Plumbing Storm Riser Diagram #2	8/29/03	Addendum #16
P-5005	Plumbing Storm Riser Diagram #3	4/1/03	98% GMP
P-5006	Plumbing Gas Riser Diagram #1	5/30/03	Addendum #10
P-5007	Plumbing Gas Riser Diagram #2	4/1/03	98% GMP
P-5008	Plumbing Gas Riser Diagram #3	4/1/03	98% GMP
P-5009	Plumbing Domestic Water Riser Diagram #1	7/3/03	Addendum #12
P-5010	Plumbing Domestic Water Riser Diagram #2	5/30/03	Addendum #10
P-5011	Plumbing Domestic Water Riser Diagram #3	5/30/03	Addendum #10
P-6000	Plumbing Details #1	4/1/03	98% GMP
P-6001	Plumbing Details and Schedules Sheet No. 2	8/29/03	Addendum #16
P-6002	Plumbing Details #3	5/2/03	Addendum #9
FIRE PROTECTION
F-0000	Fire Protection Drawing List	8/29/03	Addendum #16
F-0001	Fire Protection Symbol List	4/1/03	98% GMP
F-10C1-A	Cellar Floor Plan A	8/29/03	Addendum #16
F-10C1-B	Cellar Floor Plan B	5/2/03	Addendum #9
F-1001A	1st Floor Plan A	4/1/03	98% GMP
F-1001B	1st Floor Plan B	4/1/03	98% GMP
F-1002A	2nd Floor Plan A	8/29/03	Addendum #16
F-1002B	2nd Floor Plan B	4/1/03	98% GMP
F-1003A	3rd Floor Plan A	4/1/03	98% GMP
F-1003B	3rd Floor Plan B	4/1/03	98% GMP
F-1004A	4th Floor Plan A	4/1/03	98% GMP
F-1004B	4th Floor Plan B	7/3/03	Addendum #12
F-1005A	5th Floor Plan A	4/1/03	98% GMP
F-1005B	5th Floor Plan B	7/3/03	Addendum #12
F-1006	6th and 7th Floor Plan	4/1/03	98% GMP
F-1008	8th - 11th, and 13th Floor Plan	4/1/03	98% GMP
F-1012	12th Floor Plan/Data Center	4/1/03	98% GMP
F-1014	14th Floor Cafeteria Plan	4/1/03	98% GMP
F-1015	15th Floor Conf. Room Plan	8/29/03	Addendum #16
F-1016	16th Floor Plan	4/1/03	98% GMP
F-1017	17th Floor Plan	5/2/03	Addendum #9
F-1018	18TH THRU 27TH Floor Plan	4/1/03	98% GMP
F-1028	28th Floor MER Plan	4/1/03	98% GMP
F-1029	29th Floor EMR Plan	4/1/03	98% GMP
F-1030	30th thru 38th Floor Plan	4/1/03	98% GMP
F-1039	39th Floor Plan	4/1/03	98% GMP
F-1040	40th Floor Plan	4/1/03	98% GMP
F-1041	41st thru 50th Floor Plan	4/1/03	98% GMP
F-1051	51st Floor Plan	4/1/03	98% GMP
F-1051M	51st Floor Plan Mezzanine	4/1/03	98% GMP

16

F-1052	52nd Floor - Roof Plan	4/1/03	98% GMP
F-1053	Roof Bulkhead Level	4/1/03	98% GMP
F-1054	1st and 2nd Platform Plans	4/1/03	98% GMP
F-4000	Fire Protection Part Plans	8/29/03	Addendum #16
F-5000	Fire Protection Riser Diagram #1	7/3/03	Addendum #12
F-5001	Fire Protection Riser Diagram #2	5/30/03	Addendum #10
F-5002	Fire Protection Riser Diagram #3	5/30/03	Addendum #10
F-6000	Fire Protection Details	4/1/03	98% GMP
FIRE ALARM
EF-0000	Fire Alarm/Security Drawing List	8/29/03	Addendum #16
EF-0001	Fire Alarm/Security Symbol List & Abbreviations	8/29/03	Addendum #16
EF-10C1-A	Fire Alarm/Security Cellar Floor Plan Partial A	8/29/03	Addendum #16
EF-10C1-B	Fire Alarm/Security Cellar Floor Plan Partial B	8/29/03	Addendum #16
EF-1001-A	Fire Alarm/Security Ground Floor Plan Partial A	8/29/03	Addendum #16
EF-1001-B	Fire Alarm/Security Ground Floor Plan Partial B	8/29/03	Addendum #16
EF-1002-A	Fire Alarm/Security 2nd Floor Plan Partial A	4/1/03	98% GMP
EF-1002-B	Fire Alarm/Security 2nd Floor Plan Partial B	4/1/03	98% GMP
EF-1003-A	Fire Alarm/Security 3rd Floor Plan Partial A	4/1/03	98% GMP
EF-1003-B	Fire Alarm/Security 3rd Floor Plan Partial B	4/1/03	98% GMP
EF-1004-A	Fire Alarm/Security 4th Floor Plan Partial A	8/29/03	Addendum #16
EF-1004-B	Fire Alarm/Security 4th Floor Plan Partial B	8/29/03	Addendum #16
EF-1005-A	Fire Alarm/Security 5th Floor Plan Partial A	8/29/03	Addendum #16
EF-1005-B	Fire Alarm/Security 5th Floor Plan Partial B	4/1/03	98% GMP
EF-1005-C	Fire Alarm/Security 5th Floor Plan C Roof	4/1/03	98% GMP
EF-1006	Fire Alarm/Security 6th & 7th Floor Plan	8/29/03	Addendum #16
EF-1008	Fire Alarm/Security 8th - 11th & 13th Floor Plan	8/29/03	Addendum #16
EF-1012	Fire Alarm/Security 12th Floor Plan Data Center	8/29/03	Addendum #16
EF-1014	Fire Alarm/Security 14th Floor Cafeteria Plan	8/29/03	Addendum #16
EF-1015	Fire Alarm/Security 15th Floor Conf. Rm. Plan	8/29/03	Addendum #16
EF-1016	Fire Alarm/Security 16th Floor Plan - 17th Floor Part Plan	8/29/03	Addendum #16
EF-1018	Fire Alarm/Security 18th Thru 27th Floor Plan	8/29/03	Addendum #16
EF-1028	Fire Alarm/Security 28th Floor Mech. Rm. Plan	8/29/03	Addendum #16
EF-1029	Fire Alarm/Security 29th Floor Mid Low EMR Plan	8/29/03	Addendum #16
EF-1030	Fire Alarm/Security 30th thru 40th Floor Plan & Partial Plan	8/29/03	Addendum #16
EF-1041	Fire Alarm/Security 41st thru 50th Floor Plan	8/29/03	Addendum #16
EF-1051	Fire Alarm/Security 51st Floor Plan	8/29/03	Addendum #16
EF-1052	Fire Alarm/Security 52nd Floor Main Roof	8/29/03	Addendum #16
EF-1053	Fire Alarm Bulkhead Plan	4/1/03	98% GMP
EF-1054	Fire Alarm 1st and 2nd Platform Plans	4/1/03	98% GMP
EF-5000	Fire Alarm Riser Diagram No. 1	8/29/03	Addendum #16
EF-5001	Fire Alarm Riser Diagram No. 2	4/1/03	98% GMP
EF-5002	Fire Alarm Riser Diagram No. 3	4/1/03	98% GMP
EF-7000	Fire Alarm Details and Schedules	7/3/03	Addendum #12
EF-7001	Fire Alarm Details and Schedules	5/30/03	Addendum #10
EF-7002	Security Details	4/1/03	98% GMP

17

TELECOM
T-0000	Telecommunications Drawings List	7/3/03	Addendum #12
T-0001	Telecommunications Legend & Symbols List	4/1/03	98% GMP
T-100C1-A	Telecommunications Cellar Level Plan - Partial A	5/2/03	Addendum #9
T-100C1-B	Telecommunications Cellar Level Plan - Partial B	7/3/03	Addendum #12
T-1001	Telecommunications Ground Floor Plan	7/3/03	Addendum #12
T-1002-A	Telecommunications 2nd Floor Plan - Partial A	4/1/03	98% GMP
T-1002-B	Telecommunications 2nd Floor Plan - Partial B	5/2/03	Addendum #9
T-1004-A	Telecommunications 3rd & 4th Floor Plan - Partial A (Typical Podium)	4/1/03	98% GMP
T-1004-B	Telecommunications 3rd & 4th Floor Plan - Partial B (Typical Podium)	5/2/03	Addendum #9
T-1005	Telecommunications 5th to 7th Floor Plan (Typical NY Times)	4/1/03	98% GMP
T-1008	Telecommunications 8th to 27th Floor Plan (Typical NY Times)	4/1/03	98% GMP
T-1028	Telecommunications 28th Floor Plan	4/1/03	98% GMP
T-1029	Telecommunications 29th to 50th Floor Plan (Typical Tenant)	7/3/03	Addendum #12
T-1051	Telecommunications 51st Floor Plan (Radio Room Level)	4/1/03	98% GMP
T-4000	Telecommunications Closet Floor Penetration Details	4/1/03	98% GMP
T-5000	Telecommunications Pathway Riser Diagram (NY Times Only)	7/3/03	Addendum #12
T-5001	Telecommunications Pathway Riser Diagram (FCRC Only)	7/3/03	Addendum #12
T-5002	Telecommunications Grounding Riser Diagram (NY Times Only) (Dwg Issued for Coordination Only)	7/3/03	Addendum #12
T-5003	Telecommunications Grounding Riser Diagram (FCRC Only)	4/1/03	98% GMP
ARCHITECTURAL SKETCHES
ITB-SK-001	Paint Location Plans	7/31/03	Addendum #14
ITB-SK-002	Intumescent Details of Beam Penetration at Column 2:B	7/31/03	Addendum #14
ITB-SK-003	Steel Painting/lntumescent Diagram	7/31/03	Addendum #14
STRUCTURAL SKETCHES
ITB-SK-S-002	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-003	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-004	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-005	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-006	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-007	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-008	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-009	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-010	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-011	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-012	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-013	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-014	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-015	Structural Sketch	7/31/03	Addendum #14
ITB-SK-S-016	Structural Sketch	7/31/03	Addendum #14

18

SPECIFICATIONS
DIVISION 1 - GENERAL REQUIREMENTS
SECTION
01020	Allowances	8/29/03	Addendum #16
01040	Coordination	4/1/03	98% GMP
01100	Alternates	8/29/03	Addendum #16
01202	Progress Meetings	4/1/03	98% GMP
01300	Submittals	4/1/03	98% GMP
01320	Constitution Progress Documentation	4/1/03	98% GMP
01321	Survey of Existing Conditions	4/1/03	98% GMP
01400	Quality Requirements	4/1/03	98% GMP
01410	Testing and Inspection	8/29/03	Addendum #16
01420	References	4/1/03	98% GMP
01500	Construction Facilities and Temporary Controls	4/1/03	98% GMP
01570	Traffic Regulation	4/1/03	98% GMP
01600	Materials and Equipment	4/1/03	98% GMP
01630	Mock-Ups	7/3/03	Addendum #12
01700	Execution Requirements	4/1/03	98% GMP
01730	Operating and Maintenance Data	4/1/03	98% GMP
01731	Cutting and Patching	4/1/03	98% GMP
01770	Closeout Procedures	4/1/03	98% GMP
01810	Commissioning of Mechanical, Electrical, Plumbing and Fire Protection	4/1/03	98% GMP
DIVISION 2- SITE WORK
SECTION
02260	Shoring and Underpinning	4/1/03	98% GMP
02315	Excavation and Backfilling	4/1/03	98% GMP
02320	Rock Anchors	4/1/03	98% GMP
02515	Concrete Walks and Curbs	4/1/03	98% GMP
02620	Landscape Drainage	4/1/03	98% GMP
02740	Bituminous Pavement	4/1/03	98% GMP
02900	Planting	4/1/03	98% GMP
02950	Irrigation	4/1/03	98% GMP
DIVISION 3- CONCRETE
SECTION
03100	Concrete Formwork	4/1/03	98% GMP
03200	Concrete Reinforcement	4/1/03	98% GMP
03300	Cast-In-Place Concrete	4/1/03	98% GMP

19

03350	Cement Leveling Compound	4/1/03	98% GMP
DIVISION 4 - MASONRY
SECTION
04200	Unit Masonry	5/30/03	Addendum #10
DIVISION 5 - METALS
SECTION
05120	Structural Steel	6/18/03	Addendum #11
05121	Architectural Structural Steel	5/30/03	Addendum #10
05150	High Strength Rods	4/1/03	98% GMP
05300	Metal Decking	4/1/03	98% GMP
05400	Cold Formed Metal Framing	4/1/03	98% GMP
05500	Miscellaneous Metals	5/30/03	Addendum #10
05510	Steel Stairs	5/30/03	Addendum #10
05700	Ornamental Metals	8/29/03	Addendum #16
05800	Expansion Joint Cover Assemblies	5/30/03	Addendum #10
DIVISION 6 - WOOD AND PLASTICS
SECTION
06100	Carpentry	4/1/03	98% GMP
06400	Architectural Woodwork	8/29/03	Addendum #16
DIVISION 7 - THERMAL AND MOISTURE PROTECTION
SECTION
07110	Liquid Membrane Waterproofing	4/1/03	98% GMP
07120	Fluid Membrane Horizontal Waterproofing	4/1/03	98% GMP
07130	Sheet Membrane Waterproofing	4/1/03	98% GMP
07140	Split Slab Membrane Waterproofing	4/1/03	98% GMP
07161	Capillary Waterproofing	5/2/03	Addendum #9
07200	Building Insulation	5/2/03	Addendum #9
07240	Exterior Insulation Finish System	4/1/03	98% GMP
07241	Exterior Finish System	4/1/03	98% GMP
07250	Sprayed Fire Resistive Materials	7/31/03	Addendum #14
07254	Intumescent Fireproofing	7/31/03	Addendum #14
07255	Intumescent Dry Wrap Fireproofing	4/1/03	98% GMP
07256	Mineral Board Fireproofing	7/31/03	Addendum #14
07270	Firestops and Smokeseals	5/30/03	Addendum #10
07420	Vertical and Horizontal Wall Panels	4/1/03	98% GMP
07552	Fluid Applied Protected Membrane Roofing	5/30/03	Addendum #10

20

07600	Sheet Metal Work	5/30/03	Addendum #10
07700	Roof Specialties and Accessories	5/30/03	Addendum #10
07900	Joint Sealers	4/1/03	98% GMP
07910	Miscellaneous Joint Fillers	4/1/03	98% GMP
DIVISION 8 - DOORS AND WINDOWS
SECTION
08100	Steel Doors and Frames	5/30/03	Addendum #10
08120	Impact Doors	4/1/03	98% GMP
08130	Sound Control Doors	4/1/03	98% GMP
08305	Access Doors	4/1/03	98% GMP
08330	Insulated Roll Up Doors	8/29/03	Addendum #16
08332	Horizontal Coiling Fire Shutters	4/1/03	98% GMP
08333	Roll Up Counter Fire Shutters	4/1/03	98% GMP
08334	Roll Up Fire Shutters	4/1/03	98% GMP
08411	Aluminum and Steel Framed Storefronts	4/1/03	98% GMP
08450	Balanced Doors	4/1/03	98% GMP
08550	Horizontal Sliding Fire Rated Windows	4/1/03	98% GMP
08630	Skylights and Canopies	5/2/03	Addendum #9
08700	Finish Hardware	8/29/03	Addendum #16
08710	Door Schedule	8/29/03	Addendum #16
08800	Miscellaneous Glass and Glazing	5/30/03	Addendum #10
08900	Glazed Curtain Wall and Ceramic Tube Sunshade Revised	4/1/03	98% GMP
DIVISION 9 - FINISHES
SECTION
09216	Veneer Plastering	5/2/03	Addendum #9
09250	Gypsum Drywall	8/29/03	Addendum #16
09290	Glass Reinforced Gypsum Fabrications	4/1/03	98% GMP
09310	Tile Work	7/31/03	Addendum #14
09510	Acoustic Panel Ceilings	5/2/03	Addendum #9
09560	Wood Strip Flooring	8/29/03	Addendum #16
09660	Resilient Tile Flooring	4/1/03	98% GMP
09665	Resilient Sheet Flooring	4/1/03	98% GMP
09681	Carpet (Glue Down)	5/30/03	Addendum #10
09721	Interior Elastomeric Waterproof Walking Surface	5/30/03	Addendum #10
09815	High Performance Coatings	7/31/03	Addendum #14
09900	Painting and Finishing	5/30/03	Addendum #10
09960	Wallcovering	5/2/03	Addendum #9

21

DIVISION 10 - SPECIALTIES
SECTION
10160	Floor Mounted Toilet Partitions	4/1/03	98% GMP
10200	Aluminum Louvers	5/2/03	Addendum #9
10260	Plastic Wall Guards	4/1/03	98% GMP
10290	Bird Deterrent System	4/1/03	98% GMP
10400	Signage	8/29/03	Addendum #16
10500	Lockers	4/1/03	98% GMP
10522	Fire Extinguishers and Cabinets	4/1/03	98% GMP
10530	Fabric Awning	4/1/03	98% GMP
10605	Wire Mesh Partitions	4/1/03	98% GMP
10800	Toilet Accessories	5/30/03	Addendum #10
DIVISION 11 - EQUIPMENT
SECTION
11010	Façade Maintenance System	7/31/03	Addendum #14
11160	Loading Dock Equipment	8/29/03	Addendum #16
DIVISION 12 - FURNISHINGS
SECTION
12480	Foot Mats and Frames	5/2/03	Addendum #9
12700	Security Desks	5/2/03	Addendum #9
DIVISION 13 - SECURITY SYSTEMS
SECTION
13700	Security Systems	4/1/03	98% GMP
DIVISION 14 - CONVEYING SYSTEMS
SECTION
14100	General Vertical Transportation	7/3/03	Addendum #12
14200	Electric Traction Elevators	7/3/03	Addendum #12
14270	Elevator Cabs	5/2/03	Addendum #9
14400	Hydraulic Elevators	7/3/03	Addendum #12
14420	Wheelchair Lifts	4/1/03	98% GMP
14900	Elevator Maintenance	7/3/03	Addendum #12
DIVISION 15 - MECHANICAL
FIRE PROTECTION

22

SECTION
15300	Separation of Work Between Trades	4/1/03	98% GMP
15301	Fire Protection Special Conditions	5/30/03	Addendum #10
15302	Scope of Work	4/1/03	98% GMP
15303	Unit Prices	4/1/03	98% GMP
15304	Access Doors in General Construction	4/1/03	98% GMP
15306	Fire Protection Firestopping	4/1/03	98% GMP
15308	Fire Protection Basic Materials and Methods	4/1/03	98% GMP
15310	Piping and Fitting Materials	4/1/03	98% GMP
15311	Hangers, Supports, Anchors and Guides	4/1/03	98% GMP
15312	Valves	4/1/03	98% GMP
15316	Wet Pipe Sprinkler Systems	4/1/03	98% GMP
15317	Dry Pipe Sprinkler Systems	4/1/03	98% GMP
15320	Standpipe and Hose Systems	4/1/03	98% GMP
15328	Insulation	4/1/03	98% GMP
15340	Pumps	4/1/03	98% GMP
15350	Electric Heat Tracing	4/1/03	98% GMP
PLUMBING
SECTION
15400	Separation of Work Between Trades	4/1/03	98% GMP
15401	Plumbing Special Conditions	5/30/03	Addendum #10
15402	Scope of Work	4/1/03	98% GMP
15403	Unit Prices	4/1/03	98% GMP
15404	Access Doors in General Construction	4/1/03	98% GMP
15405	Plumbing Firestopping	4/1/03	98% GMP
15406	Testing	4/1/03	98% GMP
15408	Plumbing Basic Materials and Methods	4/1/03	98% GMP
15410	Piping and Fitting Materials	5/2/03	Addendum #9
15411	Hangers, Supports, Anchors and Guides	4/1/03	98% GMP
15412	Valves	5/2/03	Addendum #9
15413	Disinfecting of Water Supply System	4/1/03	98% GMP
15414	Backflow Prevention	4/1/03	98% GMP
15415	Plumbing Fixtures and Trim	5/30/03	Addendum #10
15416	Domestic Water Heaters	8/29/03	Addendum #16
15417	Domestic Water System	5/2/03	Addendum #9
15419	Sanitary and Storm Drainage Systems	4/1/03	98% GMP
15421	Tanks	5/2/03	Addendum #9
15424	Water Meters	4/1/03	98% GMP
15425	Vibration Isolation	4/1/03	98% GMP
15428	Insulation	4/1/03	98% GMP
15429	Natural Gas System	5/2/03	Addendum #9
15440	Pumps	5/2/03	Addendum #9
15450	Electric Heat Tracing	4/1/03	98% GMP

23

HVAC
SECTION
15500	Separation of Work Between Trades	5/30/03	Addendum #10
15501	HVAC Special Conditions	5/30/03	Addendum #10
15502	Scope of Work	4/1/03	98% GMP
15503	Unit Prices	4/1/03	98% GMP
15504	Access Doors in General Construction	4/1/03	98% GMP
15505	Systems Identification	4/1/03	98% GMP
15506	Firestopping	4/1/03	98% GMP
15507	Instruments	4/1/03	98% GMP
15509	Piping and Accessories	4/1/03	98% GMP
15512	Hangers, Anchors and Supports	4/1/03	98% GMP
15513	Valves	4/1/03	98% GMP
15514	Expansion Compensators	4/1/03	98% GMP
15515	Pipe Cleaning and Chemical Water Treatment	4/1/03	98% GMP
15516	Testing, Adjusting and Balancing	4/1/03	98% GMP
15525	Steam Specialties	4/1/03	98% GMP
15526	Water Specialties	4/1/03	98% GMP
15530	Sheet Metal	4/1/03	98% GMP
15531	Dampers	5/30/03	Addendum #10
15540	Pumps	8/29/03	Addendum #16
15590	Fuel Handling Systems	5/30/03	Addendum #10
15680	Refrigeration Machines (Water Cooled)	7/3/03	Addendum #12
15681	Refrigeration Machines (Air Cooled)	8/29/03	Addendum #16
15710	Cooling Towers	5/30/03	Addendum #10
15711	Water Filters and Cleaners	4/1/03	98% GMP
15755	Heat Exchangers	4/1/03	98% GMP
15781	Air Cooled Air Conditioning Units	4/1/03	98% GMP
15783	Computer Room Air Conditioning Units	8/29/03	Addendum #16
15790	Coils	4/1/03	98% GMP
15810	Steam Humidifiers	4/1/03	98% GMP
15830	Space Heating Units	4/1/03	98% GMP
15831	Fan Coil Units	4/1/03	98% GMP
15855	Factory Assembled Air Handling Units	8/29/03	Addendum #16
15860	Fans	4/1/03	98% GMP
15885	Air Filters and Cleaners	5/30/03	Addendum #10
15920	Acoustics	4/1/03	98% GMP
15925	Vibration Isolation	4/1/03	98% GMP
15928	Insulation	4/1/03	98% GMP
15930	Air Terminal Units	4/1/03	98% GMP
15940	Air Outlets and Inlets	4/1/03	98% GMP
15945	Electric Motors	4/1/03	98% GMP
15946	Electric Motor Controllers	4/1/03	98% GMP
15947	Variable Frequency Controllers	4/1/03	98% GMP
15950	Electric Heat Tracing	4/1/03	98% GMP

24

DIVISION 16 - ELECTRICAL
SECTION
16000	Separation of Work Between Trades	4/1/03	98% GMP
16001	Electrical Special Conditions	4/1/03	98% GMP
16002	Scope of Work	4/1/03	98% GMP
16003	Unit Prices	4/1/03	98% GMP
16004	Access Doors in General Construction	4/1/03	98% GMP
16005	Systems Identification	4/1/03	98% GMP
16006	Testing, Adjusting and Balancing	4/1/03	98% GMP
16007	Temporary Lighting and Power	4/1/03	98% GMP
16010	Equipment Connections and Coordination	4/1/03	98% GMP
16011	Alternative Proposals	5/30/03	Addendum #10
16030	Vibration Isolation and Seismic Restraints	4/1/03	98% GMP
16110	Raceways and Boxes	4/1/03	98% GMP
16115	Bus Duct	4/1/03	98% GMP
16120	600 Volt Wire and Cable	4/1/03	98% GMP
16130	Wiring Devices	4/1/03	98% GMP
16132	Poke-Through Floor Outlets	4/1/03	98% GMP
16140	Installation of Individual Motor Controllers	4/1/03	98% GMP
16145	Relays and Remote Control Switches	4/1/03	98% GMP
16150	Disconnect Switches	4/1/03	98% GMP
16160	Fuses (600 V and Less)	4/1/03	98% GMP
16170	Panelboards	4/1/03	98% GMP
16190	Ceiling, Floor and Wall Electrical Penetration Fire Seals	4/1/03	98% GMP
16210	Engine Generator(s) and Accessories	5/30/03	Addendum #10
16215	Natural Gas Fire Engine Generator(s) and Accessories	4/1/03	98% GMP
16220	Automatic Transfer Switches	4/1/03	98% GMP
16230	Automatic Paralleling/Synchronizing Switchgear	4/1/03	98% GMP
16290	Automatic Metering System Specification	4/1/03	98% GMP
16420	Switchboards	4/1/03	98% GMP
16430	Dry Type Transformers	4/1/03	98% GMP
16450	Grounding System	5/30/03	Addendum #10
16460	Lightning Protection System	4/1/03	98% GMP
16500	Luminaires & Accessories	4/1/03	98% GMP
16510	Architectural Lighting	7/3/03	Addendum #12
16530	Individual Dimmer Switches	8/29/03	Addendum #16
16720	Fire Alarm-Life System	8/29/03	Addendum #16
16751	Telecommunications Pathways	5/2/03	Addendum #9
DIVISION 17 - BUILDING MANAGEMENT AND CONTROL SYSTEM
SECTION
17000	Request for Proposal	4/1/03	98% GMP
17100	Special Conditions	7/3/03	Addendum #12

25

17101	Unit Prices	4/1/03	98% GMP
17102	Identification	4/1/03	98% GMP
17103	Testing, Acceptance and Start-Up	4/1/03	98% GMP
17104	Central Computer Console Hardware	4/1/03	98% GMP
17105	Field Hardware and Materials	8/29/03	Addendum #16
17106	Signal Transmission	4/1/03	98% GMP
17107	Central Computer Console Software	4/1/03	98% GMP
17108	Installation	4/1/03	98% GMP
17109	Sequence of Controls	8/29/03	Addendum #16
17110	Metering and Submetering	4/1/03	98% GMP
17111	Chiller Plant Optimization Alternate	4/1/03	98% GMP
SUBWAY STAIR RELOCATION TECHNICAL SPECIFICATIONS
DIVISION 01 - GENERAL
1A	Brief Description of the Work	4/1/03	98% GMP
1B	General Clauses	4/1/03	98% GMP
1C	Contractor’s Liability and Insurance	4/1/03	98% GMP
1D	Drawings	4/1/03	98% GMP
1E	Manner of Prosecution of Work	4/1/03	98% GMP
1F	Maintenance and Protection of Traffic and Work Site	4/1/03	98% GMP
DIVISION 02 - SITE WORK
2A	Excavation	4/1/03	98% GMP
2B	Controlled, Uncontrolled Fills and Backfills	4/1/03	98% GMP
2D	Surface, Subsurface and Overhead Structures	4/1/03	98% GMP
2J	Surfaces Restored	4/1/03	98% GMP
2L	Asphaltic Concrete Pavement	4/1/03	98% GMP
2P	Removals, Relocations and Repairs	4/1/03	98% GMP
DIVISION 03 - CONCRETE
3A	Concrete	4/1/03	98% GMP
3B	Concrete Reinforcement	4/1/03	98% GMP
3C	Grout	4/1/03	98% GMP
DIVISION 04 - MASONRY
4A	Masonry Mortar	4/1/03	98% GMP
4B	Unit Masonry, General	4/1/03	98% GMP
4D	Concrete Masonry Units	4/1/03	98% GMP

26

4E	Masonry Accessories	4/1/03	98% GMP
4G	Masonry Restoration	4/1/03	98% GMP
DIVISION 05 - METALS
5A	Structural Steel	4/1/03	98% GMP
5B	Miscellaneous Metals	4/1/03	98% GMP
5C	Metal Fabrications	4/1/03	98% GMP
DIVISION 06 -WOOD AND PLASTICS
6B	Tight Board Fence	4/1/03	98% GMP
6C	Carpentry	4/1/03	98% GMP
6F	Wood Barriers	4/1/03	98% GMP
DIVISION 07 - THERMAL AND MOISTURE PROTECTION
7A	Membrane Waterproofing	4/1/03	98% GMP
7R	Joint Sealers	4/1/03	98% GMP
DIVISION 08 - DOORS AND WINDOWS
8G	Railings and Gates	4/1/03	98% GMP
8H	Stainless Steel Roll-Up Grilles	7/3/03	Addendum #12
DIVISION 09 - FINISHES
9A	Painting	4/1/03	98% GMP
9C	Ceramic Tile	4/1/03	98% GMP
9CC	Tile Repair	4/1/03	98% GMP
9HH	Granite Floor Tile	4/1/03	98% GMP
DIVISION 10 - SPECIALTIES
10E	Signs	4/1/03	98% GMP
DIVISION 15 - MECHANICAL
15B	Drainage Work	4/1/03	98% GMP

27

DIVISION 16 - ELECTRICAL
16B	Basic Electrical Requirements	4/1/03	98% GMP
16BB	Lighting Fixtures	4/1/03	98% GMP
16C	Wire and Cable	4/1/03	98% GMP
16D	Conduit, Boxes and Fittings	4/1/03	98% GMP
16K	Testing	4/1/03	98% GMP
DOCUMENTS
RWDI Final Report: Cladding Wind Loads Study		4/1/03	98% GMP
MRCE Final Subsurface Investigation		4/1/03	98% GMP
Pentagram Base Building Graphics Package		8/29/03	Addendum 16

28

EXHIBIT G

Affirmative Action Requirements

42nd St. DEVELOPMENT PROJECT, INC. AND EMPIRE STATE DEVELOPMENT

NON-DISCRIMINATION AND AFFIRMATIVE ACTION CONSTRUCTION CONTRACT PROVISIONS

I.Policy

It is the policy of the State of New York, Empire State Development (“ESD”) and 42nd St. Development Project, Inc., (“42DP”) to comply with all federal, State and local law, policy, orders, rules and regulations which prohibit unlawful discrimination because of race, creed, color, national origin, sex, sexual orientation, age, disability or marital status, and to take affirmative action to ensure that Minority and Women-owned Business Enterprises (M/WBEs), Minority Group Members and women share in the economic opportunities generated by ESD’s and/or its subsidiaries’ participation in projects or initiatives, and/or the use of ESD/42DP funds.

1)The Contracting Party represents that its equal employment opportunity policy statement incorporates, at a minimum, the policies and practices set forth below:

(a)Contracting Party shall (i) not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, sexual orientation, age, disability or marital status, (ii) undertake or continue existing programs of affirmative action to insure that Minority Group Members and women are afforded equal employment opportunities without discrimination, and (iii) make and document its conscientious and active efforts to employ and utilize Minority Group Members and women in its workforce on Contracts.  Such action shall be taken with reference to, but not limited to, recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or termination, rates of pay or other forms of compensation, and selection for training or retraining, including apprenticeship and on-the-job training.

(b)At the request of the AAO, the Contracting Party shall request each employment agency, labor union, or authorized representative of workers with whom it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, labor union, or representative does not unlawfully discriminate, and that such union or representative will affirmatively cooperate in the implementation of the Contracting Party’s obligations herein.

(2)Commencing not more than 30 days after the later of (i) execution of the Contract, or (ii) start of construction, the Contracting Party shall submit to the AAO a Monthly Employment Utilization Report (Schedule A-1) of the workforce actually utilized on the Contract, itemized by ethnic background, gender, and Federal Occupational Categories or other appropriate categories specified by the AAO.

(3)The Contracting Party shall also include with the first Monthly Employment Utilization Report and as part of the documentation required for final payment, such data describing: a) the total number of company employees at commencement of the project, b) the total number of company employees at the completion of the project and c) any net increases in the number of employees in the company.  Net increases in employment shall be further classified by ethnicity, gender and occupational code.

The Contracting Party shall include, or cause to be included, the provisions of clauses (1) through (3) in every Contract or purchase order that it enters into in order to fulfill its obligations under the Contract, in such a manner that such provisions will be binding upon each and every Contracting Party with respect to any Contract or Subcontract.

II.Goals for Minority and Women-Owned Business Enterprise Participation (Core and Shell)

(a)Contracting Party is required to use its “Best Efforts” to achieve an overall M/WBE participation goal of 18.0% of the total dollar value of the Contract, as it pertains solely to the hard costs of Tenant’s construction of the core and shell of the new building, and shall exclude so called “soft costs” including, but not limited to, architect, engineering, legal, design and other fees to professionals and consultants, application and permit fees, cost of surveys, inspections, furnishings and decorative items not being affixed into the new building.

1

(b)The goal for M/WBE participation in the performance of the work is expressed as a percentage of the contract price.  The term “hard costs” as used in this Section II (a) and Section III (a), shall be deemed to exclude architectural, engineering and other such design consulting costs.

(c)The total dollar value of the work performed by M/WBEs will be determined as: (i) the dollar value of the work subcontracted to M/WBEs; (ii) where the Contracting Party is a joint venture, association, partnership or other similar entity including one or more M/WBEs – the contract price multiplied by the percentage of the entity’s profits/losses which are to accrue to the M/WBE(s) under the Contracting Party’s agreement; or (iii) where the M/WBE is the Contracting Party – the contract price.

(d)The Contracting Party shall include, or cause to be included, the provisions of clauses (a) through (c) in every Contract or purchase order that it enters into in order to fulfill its obligations under the Contract, in such a manner that such provisions will be binding upon each and every Contracting Party with respect to any Contract or Subcontract.

III.Goals for Minority and Female Workforce Participation (Core and Shell)

(a)The Contracting Party is required to use its “Best Efforts” to achieve the overall goal of 20 %minority and female workforce (M/FWF) participation in the work performed pursuant to Contracts entered into in connection with the Lease as it pertains to the hard costs of Tenant’s construction of the core and shell of the new building.

(b)The M/FWF participation goals are expressed as a percentage equal to the person hours of training and employment of minority or female workers, as the case may be, used by any Contracting Party, divided by the total person hours of training and employment of all workers (including supervisory personnel).

(c)The required participation for minority and female employment and training must be substantially uniform throughout the performance of the work.

(d)The Contracting Party shall not participate in the transfer of minority or female employees or trainees from employer-to-employer or from project-to-project for the sole purpose of meeting the Contracting Party’s obligations herein.

(e)In striving to achieve the goals for M/FWF participation, Contracting Party shall use its “Best Efforts” to identify and employ qualified minority and female supervisory personnel and journey persons.

(f)The non-working hours of trainees or apprentices may not be considered in meeting the goals for M/FWF participation contained herein unless:  (i) such trainees or apprentices are employed by Contracting Party during the training period; (ii) the Contracting Party has made a commitment to employ the trainees or apprentices at the completion of their training, subject to the availability of employment opportunities; and (iii) the trainees are trained pursuant to an approved training program.

(g)The Contracting Party shall include, or cause to be included, the provisions of clauses (a) through (f) in every Contract or purchase order that it enters into in order to fulfill its obligations under the Contract, in such a manner that such provisions will be binding upon each and every Contracting Party with respect to any Contract or Subcontract.

IV.Goals for Minority and Women-Owned Business Enterprise Participation (Leasehold Improvements)

(a)Contracting Party is required to use its best efforts to achieve the following M/WBE participation goals with respect to the Tenant’s or subtenant’s construction of leasehold improvements within the building:

2

(1)Seven and one half percent (7.5%) of the total dollar value of the Contract as it pertains solely to the hard costs in connection with the leasehold improvements to leasehold space measuring 500,000 or more square feet;

(2)Five percent (5.0%) of the total dollar value of the Contract as it pertains solely to the hard costs in connection with the leasehold improvements to leasehold space totaling more than three floors or leasehold space measuring 100,000 or more square feet, but not exceeding 500,000 square feet.

(b)To the extent that any subtenant shall undertake the construction of leasehold improvements within the building for three floors or less or leasehold space not exceeding 100,000 square feet, then such subtenant shall represent that it shall not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, sexual orientation, age, disability or marital status and be in compliance with all applicable federal, State and local law, policy, orders, rules and regulations which prohibit unlawful discrimination.

V.Goals for Minority and Female Workforce Participation (Leasehold Improvements)

(a)The Contracting Party is required to use its “Best Efforts” to achieve the following M/FWF participation goals in the work performed pursuant to contracts entered into in connection with the leasehold improvements:

1)Fifteen percent (15%) minority and female workforce participation in the work performed pursuant to contracts entered into in connection with a subtenant’s leasing of 500,000 or more square feet of floor space;

(2)Ten percent (10%) minority and female workforce participation in the work performed pursuant to contracts entered into in connection with a subtenant’s leasing of more than three floors or 100,000 or more square feet, but not more than 500,000square feet of floor space.

(b)To the extent that any subtenant shall undertake the construction of leasehold improvements within the building for three floors or less or leasehold space not exceeding 100,000 square feet, then such subtenant shall represent that it shall not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, sexual orientation, age, disability or marital status and be in compliance with all applicable federal, State and local law, policy, orders, rules and regulations which prohibit unlawful discrimination.

VI.Equal Employment Opportunity - Operation of the New Building

(a)Tenant agrees that it will neither commit nor knowingly permit discrimination by reason of race, creed, color, national origin, sex, sexual orientation, age, disability, or marital status in the sale, transfer or assignment of its interest under this Lease or in the subletting, use or occupancy of the Premises or any part thereof.

(b)Tenant agrees that with regard to the maintenance, management and operation of the building, it shall be bound by, to the extent it operates the building and, in any event, shall cause any person or entity Tenant employs to operate the building with respect to the maintenance, management and operation thereof, to be bound by the provisions of paragraph (a) above.

VII.Reporting Requirements

The Contracting Party will permit access to its relevant books, records and accounts, with respect to the Contract, by the AAO solely for purposes of investigation to ascertain compliance with the provisions herein.  Not later than three business days after a request, the Contracting Party shall periodically file, or cause to be filed, reports, substantially in the format attached hereto as Schedule A-l and A-2 (MBE/WBE Compliance Report to be filed monthly), with the AAO detailing compliance with the provisions of these non-discrimination and affirmative action clauses.  Accuracy of the information contained in the reporting documentation shall be certified to as to the actual knowledge of an owner or officer of the Contracting Party.

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VIII.Non-Compliance and Sanctions

In the event that any Contracting Party violates any of the provisions herein, the ESD and/or 42DP may require that the following sanctions and remedies for non-compliance be imposed:

(a)Within twenty (20) days after the end of each calendar month, the AAO will review the Monthly Employment Utilization Report and the MBE/WBE Compliance Report filed with the AAO to assess compliance with the established program.  If the Contracting Party has failed to file the required monthly reports and/or if in the reasonable judgment of the AAO, an analysis of the reports reveals apparent underutilization, the AAO may elect to notify (which notification shall be in writing) the Contracting Party in writing (the “First Notice”), which notice shall describe the nature and extent of the apparent underutilization.

(b)If the AAO’s review and analysis of the Contracting Party’s reports filed in the month next following the month in which the Contracting Party received the First Notice reveals that there continues to be apparent underutilization, then the AAO may notify the Contracting Party in writing (the “Second Notice”) which notice shall describe the nature and extent of the continuing apparent underutilization and will arrange a conference (allowing three days advance notice to the Contracting Party) which the Contracting Party must attend, at which the AAO will identify in consultation with Tenant, specific reasonable and practicable corrective measures from among those available to demonstrate Best Efforts which the Contracting Party will undertake.

(c)If the AAO’s review and analysis of the Contracting Party’s reports filed in the month next following the month in which the Contracting Party received the Second Notice reveals continuing apparent underutilization and if the Contracting Party has not already undertaken the specific corrective measures agreed upon to demonstrate its Best Efforts, the AAO may notify the Contracting Party in writing (the “Final Notice”), which notice shall describe the nature and extent of the continuing apparent underutilization.  Upon receipt of the Final Notice, the Contracting Party shall be required to comply with the following sanctions and remedies for compliance:

(1)The Contracting Party shall attend a hearing with the AAO.

(2)After any such hearing, and a determination by the AAO that the Contracting Party has failed to comply with any of these provisions, and the passage of time in which to remedy such failure has transpired, and as the sole remedy for non-compliance, the AAO, in his/her sole discretion, may assess liquidated damages against the Contracting Party for failure to demonstrate its best efforts in complying with the affirmative action program.  Liquidated damages may be assessed in an amount equal to the dollar value of Contracts that would have been realized by M/WBEs if the goals had been achieved.

(3)If such an award is assessed against any Contracting Party, the amount of such assessment may be withheld from any monies due to the Contracting Party by the ESD and/or 42DP or, may be paid to the ESD and/or 42DP by the Contracting Party that has been found to fail to comply with the affirmative action program provided, however, that nonpayment of any such assessment by any Contracting Party shall be subject to the right and time to cure of a recognized mortgagee pursuant to subsection 11.3(b) of this Lease.  Any liquidated damages collected hereunder shall be paid into one or more M/WBE technical assistance funds administered by the ESD and/or 42DP.

(d)Such sanctions that may be imposed and remedies invoked hereunder, shall be considered independent of, or in addition to, sanctions and remedies otherwise provided by law.

(e)In no event shall ESD and/or 42DP terminate the Lease or any Contract, or order the cessation of work under any Contract, due to any Contracting Party’s failure to comply with the provisions of this affirmative action program.

(f)In no event shall any Recognized Mortgage (orits designee or other successor-in-interest) which acquires Tenant’s interest in the Lease by foreclosure (or deed-in-lieu of foreclosure) of its Recognized

4

Mortgage be liable for any damages accruing prior to the time of such acquisition of Tenant’s interest in the Lease.

5

42nd St. DEVELOPMENT PROJECT, INC. AND EMPIRE STATE DEVELOPMENT

NON-DISCRIMINATION AND AFFIRMATIVE ACTION DEFINITIONS

Affirmative Action

Shall mean the actions to be undertaken by the Contracting Party in connection with work performed under the Lease, to ensure non-discrimination and Minority/Women-owned Business Enterprise and minority/female workforce participation, as set forth in Sections II, III, IV, and V herein, and developed by ESD and/or its subsidiaries.

With regard to the obligations imposed on the Tenant to comply and to cause its Contractors to comply with the provisions set forth herein, shall mean the taking by the Tenant of reasonable and practicable affirmative steps to ensure compliance on its own part and on the part of its Contractors and subtenants including the imposition of reasonable sanctions, where required under the provisions of the Lease.

Affirmative Action Officer (“AAO”)

Shall mean ESD’s Affirmative Action Officer or his/her designee, managing the affirmative action program for ESD and/or its subsidiaries.

Contract

Shall mean a written agreement or purchase order instrument, or amendment thereto, executed by or on behalf or a Contracting Party, providing for a total expenditure in excess of $10,000 for labor, services, supplies, equipment, materials or any combination of the foregoing regarding the implementation of the project.  Notwithstanding the foregoing definition, it is understood and agreed by ESD and the Tenant that achievement of the percentage goals set forth in Sections II, III, IV and V shall be based upon an assessment of the overall project upon completion.

Contracting Party

Shall mean (i) the Tenant, or parties with whom the Tenant has executed a contract, to perform services, including construction work, resulting from the lease, (ii) any party which undertakes to construct leasehold improvements within the building, but not including improvements to leasehold space measuring less than 100,000 square feet and (iii) any contractor, subcontractor, consultant, subconsultant or vendor supplying goods or services, pursuant to a contract or purchase order in excess of $1,500, in connection with work performed under the Lease.  Notwithstanding the foregoing definition, it isunderstood and agreed by ESD and the Tenant that achievement of the percentage goals set forth in Sections II, III, IV and V shall be based upon an assessment of the overall project upon completion.

Subcontract

Shall mean an agreement providing for a total expenditure in excess of $1,500 between a Contracting Party and any individual or business enterprise, for goods or services rendered in connection with construction work performed under the Lease.  Notwithstanding the foregoing definition, it is understood and agreed by ESD and the Tenant that achievement of the percentage goals set forth in Sections II, III, IV and V shall be based upon an assessment of the overall project upon completion.

Minority Business Enterprise (“MBE”)

Shall mean a business enterprise, including a sole proprietorship, partnership or corporation that is: (i) at least fifty-one percent (51%) owned by one or more Minority Group Members; (ii) an enterprise in which such minority ownership is real, substantial and continuing; (iii) an enterprise in which such minority ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the enterprise; (iv) an enterprise authorized to do business in the State of New York and is independently owned and operated; and (v) an enterprise certified by New York State as a minority business.

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Minority Group Member

Shall mean a United States citizen or permanent resident alien who is and can demonstrate membership in one of the following groups: (i) Black persons having origins in any of the Black African racial groups; (ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent of either Indian or Hispanic origin, regardless of race; (iii) Asian and Pacific Islander persons having origins in any of the Far East countries, South East Asia, the Indian subcontinent or the Pacific Islands; and (iv) Native American or Alaskan native persons having origins in any of the original peoples of North America.

Women-owned Business Enterprise (“WBE”)

Shall mean a business enterprise, including a sole proprietorship, partnership or corporation that is: (i) at least fifty-one percent (51%) owned by one or more citizens or permanent resident aliens who are women; (ii) an enterprise in which the ownership interest of such women is real, substantial and continuing; (iii) an enterprise in which such women ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the enterprise; (iv) an enterprise authorized to do business in the State of New York and is independently owned and operated; and (v) an enterprise certified by New York State as woman-owned.

7

42nd St. DEVELOPMENT PROJECT, INC. AND EMPIRE STATE DEVELOPMENT
NON-DISCRIMINATION AND AFFIRMATIVE ACTION DEFINITIONS

Best Efforts - Minority and Women-owned Business Enterprise Participation

Although Best efforts shall not be limited to the efforts specified herein, the compliance with the following list shall be prima facie evidence that Best Efforts are being made.  The role of M/WBE firms are not restricted to that of a subcontractor/subconsultant.  Where applicable, M/WBE firms should be considered for roles as prime contractors.

(a)Dividing the contract work into smaller portions in such a manner as to permit subcontracting to the extent that it is economically and technically feasible to do so;

(b)Actively and affirmatively soliciting bids from qualified M/WBEs, including circulation of solicitations to minority and women’s trade associations.  Each Contracting Party shall maintain records detailing the efforts made to provide for meaningful M/WBE participation in the work.  Such record keeping must include the names and addresses of all M/WBEs contacted and, if an M/WBE is the low bidder and is not selected for such work or portion thereof, the reasons for such decision;

(c)Making plans and specifications for prospective work available to M/WBEs in sufficient time for review;

(d)Utilizing the services and cooperating with those organizations providing technical assistance to the Contracting Party in connection with potential M/WBE participation on the Contract;

(e)Utilizing the resources of the AAO to identify New York State certified M/WBE firms for the purpose of soliciting bids and subcontracts; and

(f)Encouraging the formation of joint ventures, associations, partnerships, or other similar entities , where appropriate, to ensure that the Contracting Party will meet its obligations herein.

(g)The Contracting Party shall remit payment in a timely fashion.

Best Efforts - Minority Group Member and Female Workforce Participation

Although Best efforts shall not be limited to the efforts specified herein, the compliance with the following list shall be prima facie evidence that Best Efforts are being made to provide for meaningful Minority Group Member and female workforce participation.

(a)Ensure and maintain a working environment free of harassment, intimidation, and coercion at the premises.  The Contracting Party shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the obligation to maintain such a working environment, with specific attention to Minority Group Member or female individuals working at the premises;

(b)State in all solicitations or advertisement for employees that all qualified applicants will receive consideration for employment without regard to race, creed, color, national origin, sex, sexual orientation, age disability or marital status;

(c)Send to each labor union or representative of workers with which a collective bargaining agreement or understanding is in place, a notice advising the said labor union or workers’ representative of commitments under this Section, and post copies of the notice in conspicuous places available to employees and applicants for employment;

(d)Establish and maintain a current list of Minority Group Member and female recruitment sources and community organizations, and provide written notification to them when employment opportunities are available.  Maintain a record of the organizations’ responses;

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(e)Maintain a current file of the name, address and telephone number of each Minority Group Member and female applicant and any referrals from a union, recruitment source or community organization, and of the action taken with respect to each individual.  If such individual was sent to the union hiring hall for referral and was not referred back by the union or, if referred, was not employed, this shall be documented in writing in the file with the reasons therefore, along with whatever additional actions the Contracting Party may have taken;

(f)Disseminate the Contracting Party’s equal employment opportunity policy by providing notice of the policy to unions and training programs and requesting their cooperation in meeting its Equal Employment Opportunity obligations, by including it in any policy manual and collective bargaining agreement, by publicizing it in the company newspaper, annual report, and other similar items, by specific review of the policy with all management personnel and with all Minority Group Member and female employees at least once a year, and by posting the company Equal Employment Opportunity policy on bulletin boards accessible to all employees at each location where work is performed under this Contract;

(g)Disseminate the Contracting Party’s Equal Employment Opportunity policy externally by including it in any advertising in the news media, specifically including Minority Group Member and female news media, and providing written notification to and discussing the Equal Employment Opportunity policy with any contractor with whom the Contracting Party does or anticipates doing business; and,

(h)Ensure that all facilities and company activities are non-segregated except that separate or single-user toilets and necessary changing facilities shall be provided to assure privacy between the sexes.

9

420P/EMPIRE STATE DEVELOPMENT

MONTHLY EMPLOYMENT UTILIZATION REPORT

(See reverse side for instructions)

COMPANY NAME:

PROJECT NAME:

CONTRACTOR START DATE:

ADDRESS:

PROJECT LOCATION:

ESTIMATED COMPLETION DATE:

COMPANY EMPLOYMENT DATA

TELEPHONE NUMBER:

COUNTY:

ZIP:

PERCENT OF JOB COMPLETED (for reporting period)

A.

B.

C. NET INCREASE (Applies only to change, if any, to Company's employee makeup at the end of project)

FEDERAL ID NO.:

REPORTING PERIOD:  Month

Year

CONTRACT NO.:

TOTAL COMPANY EMPLOYEES   (at the beginning of project)

TOTAL COMPANY EMPLOYEES (at the end of project)

TOTAL MALE

TOTAL FEMALE

CHECK IF NOT-FOR-PROFIT:

CONTRACT AMOUNT:

C1 Employees

C2 OCCUPATIONAL CODE/NUMBER OF EMPLOYEES

C3 Employees

C4 OCCUPATIONAL CODE/NUMBER OF EMPLOYEES

1.WORKER HOURS OF EMPLOYMENT

2.NUMBER OF WORKERS

1a.ALL WORKER HOURS

1b.BLACK (Not of Hispanic Origin)

1c.HISPANIC

1d.ASIANor PACIFIC ISLANDER

1e.NATIVE AMERICAN/ ALASKAN NATIVE

2a.ALL

2b.MINORITY

3.CONSTRUCTION TRADES

CLASSIFICATION

MALE

FEMALE

TOTAL

MALE

FEMALE

MALE

FEMALE

MALE

FEMALE

MALE

FEMALE

MALE

FEMALE

MALE

FEMALE

Total White

Total White

Supervisory

Journey Worker

Total Black

Total Black

Apprentice

Trainee

Subtotal

Journey Worker

Total Hispanic

Total Hispanic

Apprentice

Trainee

Subtotal

Journey Worker

Total Asian

Total Asian

Apprentice

Trainee

Subtotal

TOTAL     SUPERVISORS

TOTAL JOURNEY     WORKERS

Total Native American

Total Native American

TOTAL     APPRENTICES

TOTAL TRAINEES

GRAND TOTAL

CERTIFICATION: I,	(Print Name), the	(Title), do certify that (i) I have read
this Monthly Employment Utilization Report and (ii) to the best of my knowledge, information and belief the information contained herein is complete and accurate.

SIGNATURE DATE

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MONTHLY EMPLOYMENT UTILIZATION REPORT

Instructions for Completion

The Monthly Employment Utilization Report (“MEUR”) is to be completed by each subject contractor (both Prime and Sub) and signed by a responsible official of the company.  The reports are to be filed by the 5th day of each month during the term of the project, and they shall include the total work-hours for each employee classification in each trade in the covered area for the monthly reporting period.  The prime contractor is responsible for submitting its subcontractors report, along with its own.  Additional copies of this form may be obtained from Empire State Development (“ESD”).

Minority:  Includes Blacks, Hispanics, Native Americans, Alaskan Natives, and Asian and Pacific Islanders, both men and women.

1.	Worker Hours of Employment (a-e)
	a) All Worker Hours:	The total number of male hours, the total number of female hours, and the total of both male and female hours worked under each classification.
	b) through e) Minority Worker Hours	The total number of male hours and the total number of female hours worked by each specified group of minority worker in each classification.
2.	Number of Workers (a-b):
	a) All Workers	Total number of males and total number of females working in each classification of each trade in the contractor’s aggregate workforce during reporting period.
	b) Minority Workers	Total number of male minorities and total number of female minorities working in each classification, in each trade in the contractor’s aggregate workforce during reporting period.
3.	Construction Trade:	Only those construction crafts which contractor employs in the covered area.
		Construction Trades include:    Field Office Staff (Professionals and Office/Clerical), Laborers, Equipment Operators, Surveyors, Truck Drivers, Iron Workers, Carpenters, Cement Masons, Painters, Electricians, Plumbers and Other.

Note: ESD may demand payroll records to substantiate work hours listed on the Monthly Employment Utilization Report, if discrepancies should arise.

COMPANY EMPLOYMENT DATA (Sections A through C):

The Contractor shall also include with the first MEUR report and as part of the documentation required for final payment, such data describing: a) the total number of company employees at commencement of the project, b) the total number of company employees at the completion of the project and c) any net increases in the number of employees in the company.  Net increases in employment shall be further classified by ethnicity, gender and Occupational Code; and shall be attributable to the contractor’s participation in an ESD and/or 42DPproject or Initiative.

A.	Total Company Employees:		Total number of company employees in N.Y.S. offices, upon commencement of project.
B.	Total Company Employees:		Total number of company employees in N.Y.S. offices, upon completion of project.
C.	Net Increase (C1 through C4):		Provide information identifying any net increase in the number of employees in the company upon project completion.  Classify any new employee by gender, ethnicity and occupation.
	Male
		1.  Employees	Classify any new male employee by ethnic background.
		2.  Occupational Codes	Identify occupation by using the Codes provided below and indicate number of employees in each category.
	Female
		3.  Employees	Classify any new female employee by ethnic background.
		4.  Occupational Codes	Identify occupation by using the Codes provided below and indicate number of employees in each category.

OCCUPATIONAL CODES
	Officials/Administrators	100
	Professionals	110
	Technicians	120
	Sales Workers	130
	Office & Clerical	140
	Craft Workers	150
	Operatives	160
	Laborers	170
	Service Workers	180

FORWARD TO:
	Empire State Development
	Laverne Poole  -  Affirmative Action Unit
	633 Third Avenue
	New York, NY 10017	Office: (212) 803-3228	FAX: (212) 803-3223

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SCHEDULE A-2

MBE/WBE COMPLIANCE REPORT

CONSTRUCTION

PROJECT SPONSOR/DEVELOPER:	ESD AA REPRESENTATIVE:	LAVERNE POOLE
ADDRESS:	PROJECT NAME:
	PROJECT START DATE:		PERCENT COMPLETE:
	ACTUAL COMPLETION:
TELEPHONE:	Attach M/WBE contract documentation, i.e. executed contracts, signed purchase orders or canceled checks. This report should be completed by an officer of the  reporting company, and forwarded to the ESD AA Representative with the appropriate  documentation.
CONTACT PERSON:
TOTAL NUMBER OF SUBCONTRACTORS:
TOTAL DOLLAR AMOUNTS OF SUBCONTRACTS:

PRIME CONTRACTOR (Name, Address, Contact Person and Phone) TYPE OF CONTRACT (Trade/Service) CONTRACT AMOUNT M/WBE SUBCONTRACT DATE MBE/WBE SUBCONTRACTOR (Name, Address, Contact Person and Phone) SCOPE OF SERVICES AMOUNT CONTRACTED TO MBE/WBE

CERTIFICATION:

I,	(Print Name), the	(Title), do certify that (i) I have read this Compliance
Report and (ii) to the best of my knowledge, information and belief the information contained herein is complete and accurate.

SIGNATURE DATE

Forward to:

Empire State Development

Affirmative Action Unit — Laverne Poole

633 Third Avenue

New York, NY 10017-6754   Office: (212) 803-3224          Fax: (212) 803-3223

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CLE EMPLOYER PARTICIPATION

The Contractor and Subcontractor will each employ the fourth person to work on this project for their respective company, through the Community Labor Exchange Program.  In addition, each fourth person employed thereafter, will be hired through the Community Labor Exchange.  (Every 4th job slot will be filled by an employee hired from the CLE).

In the event of temporary jobs for specific tasks, of intense labor, for short term duration, the employer will hire at no less than the same proportions from the Community Labor Exchange Program as defined in the previous paragraph.  Termination of such employees will be based on industry accepted practices of “last hired, first fired” basis, applied to all temporary employees without preference.  Contractors and Subcontractors who employ smaller numbers, will negotiate the hiring of Community Labor Exchange workers on an individual basis with the intent of achieving the best results possible.

LOCAL EMPLOYMENT

DEGA will set up meetings with the residents community resource or trade organizations to address the compiling of lists of qualified skilled local residents for employment.  The list compiled will be used by the Construction Manager to fill its own work crew, if any, on the job with qualified, local, skilled persons.

AGENCY AND COMMUNITY REFERRALS

Referrals by the community agencies must be made to the CM’s on site office.  The CM’s EEO/AA representative will immediately have the referred person fill out an application and will add the name to the log indicating the name, address, union affiliation where applicable, and referral.  The person’s name will be added to the list of other walk-ins and will be referred to the appropriate trade when work begins.  The On Site Manager or designated superintendent will maintain a log on all referrals, hires, etc. and will share said information with DEGA personnel.  DEGA will disseminate on site an information sheet on how walk-ins to the job, seeking work, can apply for training certification.

CONTRACTORS PRESENT WORKFORCE

To ensure that opportunities are afforded to local applicants and other walk ins, wherever possible the contractor/subcontractor will be required to submit a pre-award workforce list with the name address, social security, ethnic background, or the workforce which she/he is bringing on to the site from its existing workforce and how many jobs will afford new opportunities for employment of local or walk-ins or referrals from other community sources.

FOLLOW-UP ON REFERRALS

Upon request DEGA may follow-up on referrals made by community sources, or officials or it may opt to respond to these matters through its EEO staff or other designated person.

Contractors will accept referrals for walk-in, unskilled laborers, trainees, journey persons, etc.  Wherever possible, referral sources will be asked to send the person to the trailer.  Once the application is completed, the information on persons referred will be submitted to the contractor/subcontractor related to their trade or job function, for employment consideration.

WALK-INS

All walk-ins will report to the on site office where they will receive an application.

Walk-In Procedures

Walk-ins must be directed to the CM’s on site office regardless of the position they are seeking.  The person making the referral to the trailer must point out that an application must be filled out and they must be interviewed before they can come on the worksite.

All referrals to the on site office must be documented in a log which indicates the date, name of the applicant, address, telephone, position applied for, who referred them to the position applied for, whether they belong to a union, etc. whether person was referred, back to the contractor.

Protected Information

Under law no one may be asked their ethnic background or other protected information.  Therefore, all information relative to ethnicity and sex (Black, Hispanic, Asian etc.) and gender ( M, F) required in the application and many required logs or forms on the site which must be filled in based on what the person who is filling out the application, log, or report has observed.

The law does not allow contractors to request the ethnic background and sex of the applicants.  It does however, allow the person interviewing or filling out the information based on their personal observation to jot down the information in order to comply with Civil Rights, Equal Employment and Affirmative Action reporting regarding the workforce at the project.

The person who is filling out the information at the trailer will complete the bottom part of the application and keep that stub for inclusion in reports.  The top part of the application will be made accessible without the ethnic or sex information to the contractor who will employ the person.

All letters sent out for the above named referral sources must be maintained ready for inspection.  Upon reasonable notice by authorized representatives the contractor/subcontractor is to produce the records.

Walk-Ins/Referral Records:

The contractor/subcontractor must also maintain a current file names, addresses and telephone numbers of each minority and female off-the-street applicant and source, or community organization and the actions taken with respect to each individual.  If such individual was sent to the union hiring hall for referral and was not referred back to the contractor by the union or if, referred was not employed by the contractor, this shall be documented in the file with the reasons, along with actions the contractor may have taken.

Current Applicant File

The Contractor must also maintain a current file of names, addresses and telephone numbers of each minority and female off-the-street applicant source, or community organization and the actions taken with respect to each individual.  If such individual was sent to the union hiring hall for referral and was not referred back to the contractor by the union or if, the person referred, was not employed by the contractor, shall be documented in the file with the reasons, along with other actions the contractor may have taken.

Union Caused Impediments

The contractor must provide immediate written notification to DEGA when the union or unions with which the contractor has collective bargaining agreements fails to return thereferral to the contractor of a minority group person or woman sent by the contractor, or when the contractor has other information that the union referral process impeded the contractor’s efforts to meet its obligations.  The contractor must have copies of letters to unions, responses from unions, minutes of meetings, etc. relating to the claim that the union is impeding the contractor’s efforts to comply.  In addition, the contractor must have copies of letters sent to DEGA to verify its claim that the union is impeding the contractor’s efforts to comply.

Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor’s obligations under these specifications, Executive Order 12246, or the regulations promulgated pursuant thereto

EXHIBIT H

Waiver of Lien and Release Forms

MECHANICS LIEN WAIVER

Contractor:		Date:
Trade:
Project:	New York Times	Contract Price:	$
		Net Extras and Deductions:	$
Construction Manager:		Adjusted Contract Price:	$
AMEC Construction Management, Inc.		Amount Previously Paid:	$
		Balance Due:	$
Owner:	The New York Times Building, LLC

THE UNDERSIGNED (1) acknowledges receipt of the amount set forth above as payments received to date, (2) to the extent of such payments, waives and releases any claim which it may now or hereafter have upon the land and improvements described above in the project description, (3) that the amount of payments received to the date of this waiver represents the current amount due in accordance with our contract and work completed, and (4) warrants that it has not and will not assign any claims for payment or right to perfect a lien against such land and improvements and warrants that it has the right to execute this waiver and release.

THE UNDERSIGNED further warrants that (1) all workmen employed by it or its subcontractors upon this Project have been fully paid to the date hereof, (2) all materialmen from whom the undersigned or its subcontractors have purchased materials used in the Project have been paid for materials delivered on or prior to the date hereof, (3) none of such workmen and materialmen has any claim or demand or right of lien against the land and improvements described above, and (4) stipulates that he is an authorized officer with full power to execute this waiver of lien.

THE UNDERSIGNED agrees that the owner of the Project,                                             , and any other lender and any title insurer may rely upon this waiver.

WITNESS the signature and seal of the undersigned as of this      day of                    , 200  .

STATE OF				By:
COUNTY OF				Name:
				Title:
Sworn to before me this
	day of	, 200	.
Notary Public

FINAL WAIVER OF CLAIMS AND LIENS AND RELEASE OF RIGHTS

Contractor:		Date:
Trade:
Project:	New York Times	Contract Price:	$
		Net Extras and Deductions:	$
Construction Manager:  AMEC Construction
	Management, Inc.	Adjusted Contract Price:	$
		Amount Previously Paid:	$
Owner:	The New York Times Building, LLC	Balance Due - Final Payment:	$

The undersigned hereby acknowledges that the above Balance Due when paid represents payment in full for all labor, materials, etc., furnished by the below named Contractor or Supplier in connection with its work on the above project in accordance with the Contract made by it with                           .

In consideration of the amounts and sums previously received, and the payment of $               , being the full and Final amount due, the below named Contractor or Supplier does hereby waive and release the Owner and Construction Manager from any and all claims and liens and rights of liens upon the premises described above, and upon improvements now or hereafter thereon, and upon the monies or other considerations due or to become due from Owner or Construction Manager or from any other person, firm or corporation, said claims, liens and rights of liens being on account of labor, services, materials, fixtures or apparatus heretofore furnished by the below named Contractor or Supplier to the Project.

The undersigned further represents and warrants that he/she is duly authorized and empowered to sign and execute this waiver on his/her own behalf and on behalf of the company or business for which he/she is signing; that it has properly performed all work and furnished all materials of the specified quality per plans and specifications and in a good and workmanlike manner, fully and completely; that is has paid for all the labor, materials, equipment and services that it has used or supplied, that it has no other outstanding and unpaid applications, invoices, retentions, holdbacks, expenses employed in the prosecution of work, charge backs or unbilled work or materials against Owner or Construction Manager as of the date of the aforementioned last and final payment application and that any materials which have been supplied or incorporated into the above premises were either taken from its fully-paid or open stock or were fully paid for and supplied on the last and final payment application or invoice.

The undersigned further agrees to defend, indemnify and hold harmless Owner and Construction Manager for any losses or expenses (including without limitation reasonable attorney’s fees) should any such claim, lien or right of lien be asserted by the below named Contractor or Supplier or by any of its or their laborers, materialmen or subcontractors.

In addition, for and in consideration of the amounts and sums received, the below named Contractor or Supplier hereby waives, releases and relinquishes any and all claims, rights or causes of action in equity or law whatsoever arising out of through or under the above mentioned Contract and the performance of work pursuant thereto.

The below named Contractor or Supplier further guarantees that all portions of the work furnished and installed are in accordance with the Contract and that the terms of the Contract with respect to this guarantee will remain in effect for the period specified in said Contract.

Sworn before me this      day of                , 200  .
	By:
	Name:
Notary Public	Title:

EXHIBIT I

Consultants

Consultant	Discipline
RPBW / Fox & Fowle	Architect
Thornton Tomasetti	Structural Engineer
Flack & Kurtz	MEPEngineer
Jenkins & Huntington	Elevator Consultant
Skertzo	Projection Consultant
SP Technologies	Mast Consultant
Vollmer	Subway Consultant
Amec	Preconstruction Manager
OVI	Lighting Consultant
RWDI	Wind Tunnel
CSTB	Wind Tunnel
Lovell & Belcher	Surveying
AKRF	Environmental Engineer
Mueser Rutledge	Geotechnical Engineer
Cerami	Acoustic Engineer
Heitmann	Curtain Wall Consultant
Entech	Façade Maintenance Consultant
Kroll Schiff	Security Consultant
HW White	Landscape Arch
Ekistics	Garden Microclimate
Jack Green Associates	Curtain Wall Consultant
Jaffe Holden	Acoustic Engineer - SPU
Fisher Dachs	Theater Design - SPU
Kling Lindquist	MEP Peer Review
Wiss Janney Elstner	Ceramic Tube Testing
Howard Shapiro	Derrick Design
Electric Research & Mgmt	EMF Study
Pentagram	Graphics

EXHIBIT J

OCIP Manual

DRAFT COPY

EXHIBIT “J”

The New York Times Headquarters Project

(FCRC/NYT)

OWNER CONTROLLED INSURANCE PROGRAM

(OCIP)

CONTRACTOR’S MANUAL

March 16, 2001

(Revised September 22, 2003)

PREARED BY:

Gallagher Pipino, Inc.	Construction Insurance Partners, LLC
7600 Market Street	308 North 21st Street
Youngstown, Ohio 44513–3849	St. Louis, Missouri 63103

IMPORTANT: This Contractor’s Manual is an outline of the coverages proposed by the insurers, based on the information provided by The New York Times Headquarters Project (FCRC/NYT).  It does not include all the terms, coverages, exclusions, limitations, and conditions of the actual insurance contract language.  The policies themselves must be read for those details.  Policy forms for your reference will be made available upon request

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FCRC– OCIP

CONTRACTOR INSURANCE MANUAL

TABLE OF CONTENTS

			PAGE
I.	INTRODUCTION		2
II.	OCIP–TRADE CONTRACT ARTICLE 5-EXHIBIT C REPLACEMENT CONTRACT LANGUAGE		3
III.	OCIP INSURANCE COVERAGE SUMMARIES		9
IV.	COVERAGES NOT INCLUDED IN THE OCIP		16
V.	ENROLLMENT PROCEDURES		17
	•	REQUEST FOR INSURANCE (RFI) FORM
	•	SUPPLEMENTAL BID INFORMATION – FORM 1/FORM 1A
	•	CERTIFICATE OF INSURANCE REQUIREMENTS
VI.	PAYROLL REPORTING		22
VII.	CLAIM REPORTING		24

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VIII. CONTRACTOR SAFETY REQUIREMENTS 26

I.INTRODUCTION

Owner has implemented an Owner Controlled Insurance Program (OCIP) for the construction of this project.  Certain insurance coverages are being provided for the term of your contract.  This manual details the coverages provided under the OCIP, the steps necessary to enroll, and the procedures in the event of a claim.

To enroll in the program, the application in this manual must be completely filled out and returned to Construction Insurance Partners along the required certificate of insurance within 10 business days after notification of winning bid by the Owner or General Contractor.

Since your subcontractors will also be covered by the OCIP while performing work at the project site, it is mandatory that you provide a list of all subcontractors to the General Contractor.  Once identified, your subcontractors will receive a copy of this manual.

Should you have any questions regarding the OCIP, please contact:

Construction Insurance Partners, LLC
308 North 21st Street
St. Louis, Missouri 63103
(800) 316-4031
(314) 342-7170 fax
Contacts:
John J. Campbell,	Ext. 754
Terry Schlick,	Ext. 742
Larry Jackson,	Ext. 750
Brian Billhartz,	Ext. 745
Cindie Allscheid	Ext. 743
Debby Wilson,	Ext. 749

Owner and the General Contractor are committed to safety on the job site, and require all contractors to share in this commitment.

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II.OCIP – “Exhibit C”-Replacement Contract Language

Unless specifically noted, the provisions set forth below in this insurance exhibit replace the requirements contemplated by Forest City Enterprises, Inc. (Owner) standard form agreement.  Nothing in these provisions modifies the indemnification requirements in your agreement.  The following Article 5, Exhibit C will constitute the insurance provisions of the Contract Documents for this Project:

ARTICLE 5 – Insurance

5.1Owner’s Controlled Insurance Program

5.1.1In accordance with the Owner Controlled Insurance Program (“OCIP”) being implemented by the Owner on this Project, the Owner has purchased and will provide to the Contractor, its Subcontractors, and all tiers of Sub-subcontractors insurance as set forth below, for claims which may arise out of, or result from work performed by them under this Contract, for which they may be legally liable.  All bidders are required to submit their bid(s) with their insurance costs INCLUDED for this Project.  The winning bidder(s) and all tiers of their subcontractors will be required to identify their cost(s) to provide Workers’ Compensation, General Liability and Excess Liability for this Project.  The OCIP enrollment forms (outlined in this Contractors Manual) must be completed and returned within 10 business days by the Contractor, its Subcontractor and Sub-subcontractors after they have been awarded a contract.  Please note that each party must also include a copy of their Workers’ Compensation Experience Modification Worksheet, along with a copy of the Policy Declarations Page(s) from their Workers’ Compensation General Liability and Excess Liability policies.  The contract award will then be reduced by the costs identified by the winning bidder(s) and this total will be identified as a withhold amount.  At the conclusion of the contract, an audit will be performed and this withheld amount will be adjusted based upon actual payrolls incurred on the project site and work performed including change orders.  Each enrolled Contractor (any tier) will provide documentation as follows: Declarations or information page, Rating page(s), Verification of Experience Modification for Workers’ Compensation and a Minimum of 3 years Loss History for Contractors (any tier) that participate in self-insured, large deductible or retrospective rated insurance programs.  If a Contractor is participating in a retained loss program of this type(s), an insurance credit will be developed using the contactors actual loss history during the requested time period and program fixed costs (e.g. Excess Insurance premiums, Claims Administration charges and Claim Development factors, etc.).  Loss History calculations will be based upon a Contractor’s experience outside of this program provided by the Owner.  The final adjustment will be addressed with a change order at the conclusion of the Project.  All insurance credits will be adjusted to reflect any change in the Contractor’s (any tier) insurance costs (higher or lower) that occur throughout their involvement in this project.  In the event that a contractor overstates their insurance estimate, the Contractor will be credited accordingly.

The Owner reserves the right to elect the alternative of not implementing the Owner Controlled Insurance Program at any time.

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.2Claims under Workers’ Compensation and other similar laws which are applicable to the work to be performed at the Project site.

.3Claims for damages because of bodily injury, occupational disease or sickness, or death of the Contractor’s employees.

.4Claims for damages because of bodily injury, sickness, or death of any person other than the Contractor’s employees.

.5Claims for damages which are sustained by any person as a result of the following offenses: false arrest, libel, slander, invasion of privacy discrimination, and other personal injuries, excluding claims for employment practice liability.

.6Claims for damages, other than to the Work itself because of injury to or destruction of tangible property including loss of use resulting there from.

5.1.2The amount and type of coverage to be provided by the Owner under its OCIP program for the types of claims set forth in Subparagraph 5.1.1 above is as follows:

.1Statutory Workers’ Compensation and Employer’s Liability with limits of $1,000,000 Bodily Injury by Accident, $1,000,000 Bodily Injury by Disease and $1,000,000 Policy Limit by Disease.  Workers’ Compensation insurance covers all Contractor, Subcontractor, and Sub-subcontractor employees whose regular duties include performing work at the Project Site.

.2Commercial General Liability Insurance (excludes Automobile Liability).  This policy includes Completed Operations Coverage for a period of 5 years after acceptance of the work by Owner with a limit of liability of $2,000,000 each occurrence/$5,000,000 general aggregate for Bodily Injury/Property Damage.  No Automobile Liability insurance will be included and shall be provided for by the appropriate contractor (of any tier).  This insurance applies to the operations of all insured parties at the Project site, including any work site set up by the Owner for use by an insured party exclusively for the storage of material or equipment, or for fabrication of material to be used at the Project site.  The limits of liability apply collectively to all insured parties under the policy.

.3Excess Insurance.  Excess liability insurance is provided, insuring the Owner, Contractor, Subcontractors, and all tiers of Sub-subcontractors working on the Project.  This insurance will cover only operations at the Project site and will provide excess coverage over the limits of coverage described in .1 and .2 above.  No Automobile Liability insurance will be included.  Coverage (excess of $2,000,000 per occurrence / $5,000,000 aggregate) will apply collectively to all insured parties on all covered projects with a single set of limits not less than $100,000,000 each Occurrence/Aggregate excess of the primary.

.4Builder’s Risk Insurance, as provided for in more detail in Paragraph 5.3 below and as outlined in the Contract for General Contracting Services document.

5.1.3The insurance provided for in Subparagraph 5.1.2, written on an occurrence basis, shall be maintained without interruption from the date of commencement of the Work until

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date of final payment, and for a minimum period of five years after final payment for completed operations coverage.  In the event that insurance coverages as provided by the Owner and as described in Subparagraph 5.1.2 are canceled, lapsed or otherwise become unavailable, the Owner has the option to procure and provide alternate insurance to the Contractors.  As an alternative, the Owner shall have the right to require the Contractor and all tiers of Subcontractors to provide insurance coverage, with reimbursement being made to the Contractor for the actual cost thereof by Change Order (but without any markup for overhead and profit).

5.1.4Each Contractor participating in the OCIP will be issued an individual Worker’s Compensation policy.  Certificates of Insurance will be issued for the coverages of Commercial General Liability and Excess Liability that will evidence the coverages furnished by the Owner.  These shall be filed with the Contractor prior to commencement of the Work.  Both the Worker’s Compensation Policy and the Commercial General Liability and Excess Liability certificates shall contain a provision that coverage as afforded under the policies will not be canceled or allowed to expire until at least 30 days prior written notice has been given to the Contractor.

5.2Contractor’s Insurance

5.2.1The Contractor, Subcontractors, and Sub-subcontractors shall provide, at their own expense, the following insurance:

.1Comprehensive Business/Automobile liability Insurance.  The Contractor, Subcontractors and all tiers of Sub-subcontractors working on the Project (and any material dealers, suppliers, and vendors who enter the Project site) shall, at their own expense, carry automobile liability insurance covering all owned, non-owned, and hired vehicles used in connection with the Work.  The Contractor shall include this requirement in all of its subcontracts and purchase orders.  The limits of liability for this insurance shall be at least $1,000,000 per occurrence - bodily injury and property damage combined including uninsured and underinsured motorist coverage.

.2Workers’ Compensation and Commercial General Liability Insurance.  The Contractor shall carry and maintain at least the following insurance coverages in connection with operations away from the Project site as outlined:

.1Workers’ Compensation – Statutory Limits

.2Employer’s Liability - - $1,000,000 (per bodily injury/disease and aggregate)

.3Commercial General Liability Insurance with limits of at least $10,000,000 combined single limit bodily injury and property damage, and including protection for contractual liability, products, completed operations, work performed by independent contractors, and broad form property damage coverage.  The Owner reserves the right to require alternative limits (higher or lower) to individual Contractors (any tier) at their discretion.

.4Hazardous Material Liability Insurance covering bodily injury and/or property damage of limits not less than $2,000,000, if the work involves

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abatement, removal, replacement, repair, enclosure, encapsulation and/or disposal of any hazardous material or substance.  The Owner reserves the right to require alternative limits (higher or lower) to individual Contractors (any tier) at their discretion.  This coverage must remain in force for both on-site and off-site exposures.

5.2.2The Contractor shall require all Subcontractors and all tiers of Sub-subcontractors (and material dealers, suppliers, vendors and Project participants not covered under the Owner’s OCIP) to maintain appropriate levels of the insurance as identified in Article 5.2.1 of this Exhibit C.

5.2.3A Certificate of Insurance evidencing the Contractor provided insurance under this Paragraph 5.2 shall, prior to commencement of any Work at the Project site, be furnished to the Owner’s insurance agency at the following address:

Construction Insurance Partners, LLC

308 North 21^st Street Suite 650

St. Louis, Missouri 63103

(800) 316-4031

(314) 342-7170 fax

Contact:  Cindie allscheid       Ext. 743

And

Owner and General Contractor

5.2.4Certificates of Insurance provided under the provisions in Article 5-Exhibit C and Subparagraph 5.2.3 shall provide for a 10-day advance written notice of cancellation, lapse or policy change to Construction Insurance Partners at the address indicated above.  The Contractor shall also require their Subcontractors and all tiers of Sub-subcontractors to furnish similar Certificates of Insurance, copies of which shall be filed with the above Construction Insurance Partners representative.  Failure of any Contractor or Subcontractor or other party to file such Certificates of Insurance shall not relieve such party of its responsibility to carry and maintain such insurance.

5.2.5The Owner-Controlled Insurance Program as previously outlined is intended to afford broad coverage and relatively high limits of liability, but may not provide all the insurance needed by a Contractor.  Any insurance for higher limits or other coverages that the Contractor may be required by law to carry or may need for its protection shall be at the Contractor’s expense.  Any policy of insurance covering any Contractor’s, Subcontractor’s or Sub-subcontractor’s owned or leased machinery, watercraft, vehicles, tools, or equipment against physical loss or damage shall provide for a Waiver of Subrogation as to any claims against any insured parties under the Owner Controlled Insurance Program.

5.3Builder’s Risk Insurance

5.3.1The Owner shall purchase and maintain Builder’s Risk insurance in the amount of the initial contract sum, as well as subsequent modifications thereto for the entire Work at the site on a replacement cost basis as outlined in Article 5-Exhibit C Paragraph 1.15.  Such Builder’s Risk insurance shall be maintained unless otherwise provided in the

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Contract Documents, until final payment has been made as provided in Paragraph 1.15 of Exhibit C or until no person or entity other than the Owner has an insurable interest in the property.  This insurance shall include the Owner, the Contractor, the Subcontractors, and Sub-subcontractors performing the Work as named Insureds.

.2Builder’s Risk insurance shall be on an All Risk policy form basis and insure against the perils of fire and extended coverage, and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse of false work, temporary buildings and debris removal, including demolition occasioned by enforcement of any applicable legal requirements.  This Builder’s Risk insurance shall also include transit coverages for materials to be incorporated into the project, as well as temporary offsite storage locations.  Sublimits may apply with respect to transit and offsite coverages.  Such insurance shall include loss of use coverage.  The Builder’s Risk insurance will not provide coverage against loss by theft or disappearance of any materials (unless the materials are to be incorporated into the Project), tools, or equipment of the Contractor, any Subcontractor any Sub-subcontractor, or any other person furnishing labor or materials for the Project.

.3Boiler & Machinery Insurance.  To the extent not previously provided for herein, the Owner shall purchase and maintain boiler and machinery insurance which shall specifically cover such insured objects during installation until final acceptance by the Owner.  This insurance shall include the interests of the Owner, Contractor, Subcontractors, and Sub-Subcontractors for the Work, and the Owner and Contractor shall be listed as named insureds.

5.4General Provisions

5.4.1Other Insurance.  If the Contractor requests in writing that insurance risks other than those described herein or insurance for special hazards be included, the Owner shall, if possible, obtain such insurance and the cost to Owner shall be reimbursed by the Contractor.

5.4.2Waivers of Subrogation.  The Owner and Contractor hereby waive all rights against each other and any of their Subcontractors, Sub-subcontractors, agents, consultants and employees, each of the other; as to claims and damages covered by insurance obtained by the Owner under its OCIP program, except the parties do not waive such rights as they have with respect to proceeds of such insurance held by the Owner as a fiduciary.  The Owner or Contractor as appropriate shall require of the separate Contractors and the Subcontractors, Sub-subcontractors, agents and employees of any of them, by appropriate written agreements, similar waivers, each in favor of other parties enumerated herein.  The OCIP program obtained by the Owner shall provide such waivers of subrogation by endorsement or otherwise.  A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damage.

5.4.3A loss insured under the Owner’s Builder’s Risk insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds subject to any applicable morgagee clause and of Subparagraph 5.4.10.  The Contractor shall pay Subcontractors their just shares of insurance receipts received by the Contractor, and

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by appropriate written agreements shall require Subcontractors to make payments to their Sub-subcontractors in similar manner.

5.4.4Occupancy prior to completion shall not affect the coverage under the Builder’s Risk insurance.

5.4.5Insurance provided by Owner in favor of the Contractor and Subcontractors in its OCIP program, as described in this Article 5 shall not extend to vendors or suppliers of the Contractors or Subcontractor not performing work at the project site.

5.4.6The Contractor and their Subcontractors and all tiers of Sub-subcontractors warrant that no cost for insurance is, or shall be, included in any cost or fee charged to the Owner on the Project, other than those costs which are reimbursable pursuant to the Contract for General Contracting Services document and Paragraph 5.2 of this document.

5.4.7Contractor, Subcontractors and Sub-subcontractors agree to comply with policy conditions of the insurance policies provided by the Owner under this Exhibit C, and to comply with any claims handling procedures, payroll reporting procedures, loss prevention program, or other similar programs related to the Owner’s Controlled Insurance Program, including, without limitation, filing any claims in a timely fashion in accordance with the requirements set forth in such insurance policies.

5.4.8Contractor and their Subcontractors and Sub-subcontractors expressly agree to procure and provide Workers’ Compensation, General Liability and Automobile Liability coverage at their own expense respecting operations not conducted at the project site.

5.4.9To the extent any Subcontractor is, for whatever reason, not covered as an insured under the Owner Controlled Insurance Program, the Contractor shall require that Subcontractor to provide applicable Workers’ Compensation, General Liability, and Automobile Liability Insurance at their own expense in a form and amount acceptable to Owner.  Such coverages shall include the Owner as an additional insured and shall provide appropriate waiver of subrogation with the following limits:

.1Workers’ Compensation – Statutory Limits

.2Employer’s Liability - $1,000,000 (per bodily injury/disease and aggregate)

.3Commercial General Liability Insurance with limits of no less than $1,000,000 per occurrence/$2,000,000 general aggregate for Bodily Injury/Property Damage, including protection for contractual liability, products, completed operations, work performed by independent contractors, and broad form property damage coverage.

.4Auto Liability - $1,000,000 Combined Single Limit

.5The Owner reserves the right to require alternative limits (higher or lower) to individual Contractors (any tier) at their discretion.

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5.4.10The indemnification provisions as outlined in the Contract for General Contracting Services document shall remain in force for all applicable coverages unless specifically not required and identified under the OCIP program provisions.

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III.COVERAGE SUMMARY

This section outlines the coverages provided for you by the OCIP.  Owner makes no warranty or representation that the OCIP coverages constitute an insurance portfolio, which adequately addresses all the risks faced by the contractor.  The Owner grants permission should you desire to supplement coverages provided by the OCIP at your expense.

The coverages outlined in the following pages are a summary of what is provided by the OCIP.  The policies are the governing documents to refer to for actual terms and conditions.

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WORKERS’ COMPENSATION AND EMPLOYER’S LIABILITY

Insurance Carrier:	St. Paul Mercury Insurance Company
Policy Term:	Date of Contract until project completion
*Named Insured:	The Owner (any tier of contractor, subcontractor and sub-subcontractors thereof, or other entity or person while performing work at the Owner project and for whom the Owner has agreed by contract to provide an Owner Controlled Insurance Program.
Interest:	Covering only operations related to the Owner’s Project.
Limits of Liability:	Workers’ Compensation
	Statutory Benefits - Applicable States
Employers Liability:	Bodily Injury by Accident	$1,000,000 Each Accident
	Bodily Injury by Disease	$1,000,000 Each Employee
	Bodily Injury by Disease	$1,000,000 Policy Limit

*There will be a separate policy issued to each contractor or subcontractor as individual Named Insured.  You will receive your policy after all the necessary forms have been completed.

NOTE:		This policy applies only to operations related to the project conducted at the location designated below and operations necessary or incidental thereto:
		Forest City Ratner Companies and The New York Times New York Times Headquarters Project
Endorsements:	NCCI or St. Paul endorsement forms as follows:
	Designated Workplace Exclusion Endorsement
	Assignment of Consent Endorsement
	Maritime Coverage Endorsement
	Waiver of Our Right to Recover from Others Endorsement
	Federal Employers Liability Act endorsement $1,000,000 each
	Occurrence / Aggregate Endorsement
	Named Insured
	Cancellation Provision-60 days notice non-payment of premium or failure to comply with reasonable engineering recommendations
	Alternate Employers Endorsement
	U.S. Longshoremen & Harbor Workers Act endorsement
	Experience modification endorsement
	Pending Rate Change endorsement
	Deductible Reimbursement endorsement
	Voluntary Compensation endorsement $1,000,000 limit
	Repatriation endorsement

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Fraud and Misrepresentation Endorsement

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COMMERCIAL GENERAL LIABILITY

Insurance Carrier:	St. Paul Mercury Insurance Company
Policy Term:	From start of project until project completion plus 10 years completed operations.
Named Insured:	(1)	Owner
		And
	(2)	All tiers of contractors, subcontractors and sub-subcontractors who work on the project and for whom the Owner has agreed by contract to provide coverage under the Owner Controlled Insurance Program.
Interest:	This policy applies only to operations related to the project conducted at the location designated below and operations necessary or incidental thereto:
	Forest City Ratner Companies and The New York Times New York Times Headquarters Project
Limits of Liability:	Primary:
	$5,000,000 General Aggregate, per project
	$5,000,000 Products/Completed Operations Aggregate, per project
	$2,000,000 Personal Injury and Advertising Injury
	$2,000,000 Each Occurrence
	$1,000,000 Fire Damage (any one fire)
	$   100,000 Medical Payments (each accident)
	LIMITS SHOWN ARE ANNUALLY REINSTATED except for Completed Operations

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Endorsements:	St. Paul using form 47500 or by endorsement as follows:
	Products and Completed Operations Ext. (1 set of limits) – 10 years
	Named Insured
	Additional Protected Persons
	Contractor’s Fraud and Misrepresentation Endorsement
	Notice of Accident Endorsement
	Notice of Accident-Workers Compensation First Reported Endorsement
	Sole Agent
	Waiver of Rights of Recovery from Others Endorsement
	Other Insurance
	Described Premises or Projects Limitation Endorsement
	Amend Occurrence to include Reasonable Force
	Cancellation Provision-60 days notice non-payment of premium or failure to comply with reasonable engineering recommendations
	Assignment Consent Endorsement
	Additional Definitions Endorsement
	Inclusion of Alcoholic Beverage coverage
	Waiver of Subrogation / Property Damage Endorsement
	Contractors Personal Injury Endorsement
	Damage to Your Products or Completed Work Endorsement
	Contractual Liability
	Worldwide Coverage
	Fellow Employee Bodily Injury Endorsement All Employees
	In Rem Endorsement
	Non-owned Watercraft & Aircraft Exception
	Incidental Medical Malpractice Endorsement
	Composite Rate Endorsement
	Deductible Endorsement
	Architect, Engineer or Surveyor Professional Services Exclusion
	Exclusion Lead
	Exclusion Asbestos (remediation work)
	Nuclear Energy Liability Exclusion
	State mandatory Endorsements
	Stop Gap Liability Endorsement
	Limited Sudden & Accidental Pollution Liability $1 MM/$2 MM Sub-limit
	Waiver of Rights of Recovery Endorsement
	Fraud and Misrepresentation Endorsement
	Notice of an Event Endorsement
	Notice of an Accident Endorsement
	Contractors Professional Services Exclusion Endorsement

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EXCESS LIABILITY

Insurance Carrier(s):	TBD– Layer 1 ($50 MM Excess of Primary)
	TBD – Layer 2 ($50 MM Excess of $50 MM Excess of Primary)
Policy Term:	From date bound until project completion
Named Insured:	Owner and all tiers of enrolled contractors and subcontractors
Interest:	Coverage in respect of the Insured’s operations, solely with respect to the construction of the specified the Owner projects.
Limits of Liability per Project:
	$100,000,000 x $2,000,000/$2,000,000/$5,000,000
	REINSTATED ANNUALLY except for Completed Operations
Conditions:	Terms and conditions per policy on file with the Owner.  Policy period is construction term plus an additional sixty (60) months of completed operations coverage

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BUILDER’S RISK INSURANCE

Owner has arranged the Builder’s Risk insurance for the project’s entire construction phase.  The coverage protects all involved parties including the Owner and all contractors and subcontractors.  This insurance does not protect certain property of contractors used at the construction site, including contractors’ tools and equipment (including office trailers, tool sheds and any other temporary structures) not intended to become a permanent part of the project.  The following are details of the coverage:

Insurers:	TBD Property Program
Named Insured:	Owner and contractors of every tier.
Coverage Form:
(Perils)	“All Risks” of direct physical loss of or damage to insured property subject to policy terms, conditions, and exclusions.
Contact:	Gallagher Pipino, Inc.
	7600 Market Street
	Youngstown, Ohio 44513–3849
	Telephone:  800-726-8177
	Fax:  330-726-1891

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IV.COVERAGES NOT INCLUDED IN THE OCIP

1.Automobile Insurance

The OCIP does not include Automobile Liability, uninsured and underinsured motorist coverage and Physical Damage Insurance for licensed vehicles.  All subcontractors are required to provide certificate of insurance showing auto liability coverage limit of $1,000,000 with Owner and General Contractor named as additional insureds.  The Owner reserves the right to require alternative limits (higher or lower) to any individual Contractor (any tier) at their discretion.

2.Off-Site Workers’ Compensation

The OCIP only covers work-related injuries occurring at the work site.  It does not cover Workers’ Compensation risks associated with your other jobs or activities.  All subcontractors are required to provide a certificate of insurance showing statutory Workers’ Compensation limits and Employer’s Liability limit in the amount of $1,000,000.  The Owner reserves the right to require alternative limits (higher or lower) to any individual Contractor (any tier) at their discretion.

3.Off-Site General Liability

The OCIP only covers third-party liability claims arising from activities at the work site.  It does not cover liability risks associated with your other jobs or activities.  All subcontractors are required to provide certificate of insurance showing $10,000,000 combined single limit and showing The New York Times Headquarters Project (FCRC/NYT) and the General Contractor as additional insureds.  This limit can be provided through a combination of Primary and Excess policy limits.  The Owner reserves the right to require alternative limits (higher or lower) to any individual Contractor (any tier) at their discretion.

4.Tools, Equipment and Machinery

The OCIP does not cover loss of, or damage to, your tools and equipment at the job site.  Nor does it cover your employee’s tools or equipment.  Other property such as scaffolds, machinery, crane, earth-moving equipment, consumables, office trailers, tool sheds and any other temporary structures not intended to become a permanent part of the project is not covered under this OCIP.

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V.ENROLLMENT PROCEDURES

•NOTICE OF SUBCONTRACT AWARD: This form must be completed by any contractor that has sub-contractors. They must advise Construction Insurance Partners, LLC of name, address, contact name, telephone number and fax number of all contractors that will be working on-site on this project.

•REQUEST FOR INSURANCE (RFI): THIS FORM MUST BE RETURNED TO Construction Insurance Partners, LLC by the Contractor prior to the Contractor going onto the job-site. This form is necessary to provide coverage for the Contractor on the project. If the Contractor is uncertain as to the estimated on-site date, leave this part of the form blank and call Construction Insurance Partners, LLC at 314-554-9743 – Cindie Allscheid before going on-site. Be sure to provide your NCCI number in the spaced market Bureau Identificiation Number and your PIN number. All payroll estimates should be for on-site payroll only.

Complete attached Request for Insurance(RFI) application and mail and/or fax to:

Construction Insurance Partners, LLC

308 North 21st Street

St. Louis, Missouri 63103

(800) 316-4031

(314) 342-7170 fax

Contact: Cindie Allscheid, Ext. 743

•SUPPLEMENTAL BID INFORMATION FORM I: Contractors whose insurance programs are fully insured use the Form I. the contractors will identify their insurance costs for both Worker’s Compensation and Deferred Liability coverages. When using the same information provided on the RFI form be sure to provide classification codes, workers’ compensation codes and estimated payroll for on-site work only. Contractors are asked to provide a copy of the Declarations or information page(s), Rating page(s), Verification of Experience Modification of their current insurance policy along with the completed Form 1.

LOSS SENSITIVE (I.E. Large deductible or retrospective rated program, etc.) FORM 1A: Complete form 1A if you are a qualified self-insured for Workers’ Compensation and/or General Liability or have a “loss sensitive’’ (i.e. large deductible or restropective reated program, etc.). These forms are provided to assist in the calculation of the insurance credit your company will be providing to the Owner for the coverages; Workers’ Compensation, General Liability and Excess Liability. Each enrolled Contractor (any tier) will provide documentation as follows: Declarations or information page(s), Rating page(s), Verification of Experience Modification for Workers’ Compensation and a Minimum of 3 years Loss History for Contractor’s (any tier) that participate in self-insured, large deductible or retrospective rated insurance programs. If a Contractor is participating in a retained loss program of this type(s), please complete Form 1A. An insurance credit will be developed using the contractors actual loss history during the requested time period and program fixed costs (e.g. Excess Insurance premiums, Claims Administration charges and Claim Development factors, etc.). Loss History calculations will be based upon a Contractors experience outside of this program provided by the Owner.

•The final adjustment will be addressed with a change order at the conclusion of the Project. All insurance credits will be adjusted to reflect any change in the Contractor’s (any tier) insurance costs

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(higher or lower) that occur throughout their involvement in this project.  In the event that a contractor overstates their insurance estimate, the Contractor will be credited accordingly.

•Contractors will be required to provide a “Certificate of Insurance” naming Construction Insurance Partners, LLC as the Certificate Holder and Forest City Enterprises, Inc. as additional insured and the General Contractor (see sample cert for complete wording) evidencing their Workers’ Compensation, General Liability, Excess, Automobile and Disability coverages.

•MONTHLY PAYROLL REPORT:  Because Workers’ Compensation and General Liability insurance premiums are calculated based on employer payroll data, contractors are asked to provide a Monthly Payroll Report outlining the actual payroll insured on the project.  This information must be turned in to Construction Insurance Partners, LLC.

•Construction Insurance Partners, LLC will provide all Contractor’s with an individual Workers’ Compensation policy, Certificate of Insurance and an audit slip for the contractor to submit to their Contractor’s individual insurance carrier.  This report will reflect the amount of payroll and insurance coverages affected by the Owner Controlled Insurance Program.

•Reminder: Suppliers, vendors, material men and haulers are excluded from the OCIP.  However, a Certificate of Insurance is still required as an evidence of Insurance.

•If you have subcontractors, they will need complete this same packet

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NOTICE OF SUBCONTRACT AWARD

Construction Insurance Partners, LLC

308 North 21^st

St. Louis, MO 63103

COMPLETE THIS FORM ONLY IF YOU HAVE SUB-CONTRACTORS

Prime or General Contractor
We have awarded a subcontract as follows:
Project Name	New York Times Headquarters Project
Type of Work
Subcontractor
Address
Contact
Telephone & Fax Number
Date of Subcontract
Estimated Contract Amount
Probable Starting Date
Authorized Signature	Typed Name
Date

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REQUEST FOR INSURANCE - Forest City Enterprises, Inc. – OCIP

Underwritten by: St. Paul Mercury Insurance Company

Sub-Contractor Name:
Address:
Audit
Telephone / Fax:	Contact Name:
E-Mail Address:
Scheduled On-Site Dates:		From:	To:
		This will be the effective date of the OCIP policy
Federal Employee Identification Number:
Bureau Identification Number (NCCI):
Experience Mod:			Date of Modifier:
Job Name:		New York Times Headquarters Project
Prime Contractor:
CLASSFICATION		CLASS CODE	ESTIMATED ON-SITE PAYROLL

CONTRACTOR’S INSURANCE INFORMATION

Each contractor must attach a Certificate of Insurance evidencing offsite workers’ compensation, offsite general liability and auto liability coverage and indicate that your GL and WC coverages exclude your work on Forest City Enterprises, Inc. – OCIP.  Contact your Insurance Agent for this Certificate. It is your responsibility to notify your Insurance Agent to exclude all work to be done at this Project Site from your regular GL and WC policies. This certificate should also name Forest City Enterprises, Inc. and General Contractor as additional insureds on the auto liability and offsite general liability.

ASSIGNMENT BY CONTRACTOR OR SUBCONTRACTOR FOR

SPONSOR CONTROLLED INSURANCE PROGRAM

The undersigned, a contractor or subcontractor under construction, contract with Forest City Enterprises, Inc.(“Owner”) or the General Contractor in consideration of the agreement of Owner to arrange insurance and pay premiums as provided by said Contract for the Contractor and for each Subcontractor of any tier thereunder, and for other good and valuable consideration hereby assigns to Owner all return premiums, premium refunds, dividends, and any monies due or to become due to the Undersigned in connection with said insurance.

Name of Contractor or Subcontractor
Authorized Signature	Typed Name	Date
Completed form and Certificate of
Insurance should be returned to:	If questions, contact:
Construction Insurance Partners	Controlled Insurance Program Unit
(314)-342-7170 Fax	800-316-4031
	Cindie Allscheid

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Forest City Ratner Companies and
The New York Times Company	Form 1

SUPPLEMENTAL BID INFORMATION

Insurance Information Form/General Contractor and Subcontractor

Contractor Name:		Contact Person:
Address:		Telephone:
City, State, Zip:		e-mail:
Your Contract Value	$	Prime Contractor:
Job Name	New York Times Headquarters Project

Workers’ Compensation (project site payroll only)

*attach additional pages if required

Important:  Attach current Workers’ Compensation Policy Declaration Page and Schedule of Classifications.

Classification	Code	WC Rate incl. Tier 1 Rate	Estimated Payroll	Premium Rate* Payroll/100
1.
2.
3.
4.
		Total	$	$
			Increased Limits
			Contractor Credit if applicable
WC Insurance Company:			EMR
Experience Modifier (ERM):			Assigned Risk Surcharge, if app.
Effective Date of ERM:		/    /	State Disability and, if app.
Effective Date of WC Policy:		/    /	State Assessment Fund, if app.
Expiration Date of WC Policy:		/    /	Premium Discount
Employer’s Liability Limit:		$
		$
		$	Total Estimated Project Workers’ Comp. Premium	$	(A)

B. General Liability (including completed operations)

*attach additional pages if required

Classification	Code	Current Rate	Estimated Payroll	Premium Rate* Payroll/1000
1.
2.
3.
4.
			General Liability Premium	$
			Excess/Umbrella Liability Premium	$
			Total Liability Premium	$	(B)
C.Subcontractor Premiums (all tiers) For each Sub-Contractor, there should be a Form 1				$	(C)
D.Total Premium (A+B+C) This estimated amount must equal the insurance withhold that will be shown on your contract.				$	(D)

“Total Premiums” indicated in D, represent the amount of insurance premiums the contractor has identified as their insurance cost estimate that will be identified as a withhold amount.  This is outlined in the General Conditions (including any superseding supplemental conditions), since the owner is furnishing the construction insurance.  A final adjustment will be approved based upon the actual payrolls and applicable rates submitted by the contractor at the conclusion of their contract.  In the event insurance is not provided by Owner, this amount will not be withheld.

Signed by: Title:

A copy of your master WC and GL insurance program Declarations Page and Experience Modification

Worksheet must be attached with this form.

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Return completed forms to Construction Insurance Partners

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Form 1A

New York Times Headquarters – OCIP PROJECT
SUPPLEMENTAL BID INFORMATION FORM 1A

Contractor Name:	Policy Period:
Contact:	Reporting Period:
Telephone:	Self-Insured Retention for
	WC:	$
	GL:	$
Contract Value:	% Self Performed
Your Contract Value Only (Do not include subs)	% Subcontracted
Awarding Contractor	Prime Contractor
Estimated No. of	Estimated Job-hours
Subcontractors

Workers’ Compensation (project site payroll only) for the New York Times Headquarters

A. Self Insured Calculation
	Premium Program Cost
Payroll	$
Expected Loss Rate per $100/payroll or Company Allocation including loss handling charge*	$
Total Section A	$

B. Excess Workers Compensation Calculation
	Premium Program Cost
Payroll	$
Excess Workers’ Compensation Composite Rate	$
Total Section B	$

C. Assessment Computation

W/C Class Code	Estimated On-Site Payroll	Rate	Manual Premium/Program Costs
TOTAL MANUAL PREMIUM/PROGRAM COSTS
Experience Mod Factor
Discount			(                       )
State Disability Fund and State Assessment Fund Surcharges, if applicable
Total Section C

D. General and Excess Liability (Including Completed Operations)

Attach additional pages if required.

Classification	Code	Current Rate	Est. Payroll/Gross Receipts	Premium/Program Costs
1.
2.
3.
4.
		General Liability Premium		$
		Excess/Umbrella Liability Premium		$
		Total Liability Premium		$
TOTAL CREDIT FOR WC/GL & EXCESS LIAB (A+B+C+D)				$	(E)

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Note: You are required to provide the following:

•      Experience Modifier worksheet

•      A copy of your Excess policies declaration page(s) and rating page(s)

•      A Certificate of Self Insurance from the State of New York

•      Loss Fund Allocation Worksheet and/or rate (Minimum 3 years)

“Total Premiums” indicated in E represent the amount of insurance premiums the contractor has identified as their insurance cost estimate that will be identified as a withhold amount.  This is outlined in the General Conditions including any superseding supplemental conditions), since the Owner is furnishing the construction insurance. A final adjustment will be approved based upon the actual payrolls and applicable rates submitted by the contractor at the conclusion of their contract.  In the event insurance is not provided by Owner this amount will not be withheld.

Signed by: Title:

RETURN COMPLETED FORM TO:

Construction Insurance Partners, LLC

308 North 21^st Street

St. Louis, Missouri 63103

(800) 316-4031

(314) 342-7170 fax

Contact:  Cindie Allscheid, Ext. 743

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CERTIFICATE REQUIREMENTS

You are required to forward a Certificate of Insurance evidencing coverage for Automobile Liability, off site General Liability, and off site Workers’ Compensation to Construction Insurance Partners.  Owner and General Contractor must be named as Additional Insureds as respects to Automobile Liability and off-site Commercial General Liability.  Please show full limits for coverage carried.  Carrier ratings and coverage limits the subject to approval by the Owner and General Contractor. Every Contractor (any tier) will at a minimum carry the following limits:

Coverage	Limits
Workers’ Compensation	Statutory
Employer’s Liability	$1,000,000
Commercial General Liability	$10,000,000 (combined single limit bodily injury and property damage, and including protection for contractual liability, products, completed operations, work performed by independent contractors, and broad form property damage coverages).
Automobile Liability	$1,000,000 Combined Single Limit

These minimum insurance requirements do not alleviate the Contractor of their total liability exposure.  The Owner reserves the right to require alternative limits (higher or lower) to individual Contractors (any tier) at their discretion.

Please contact Construction Insurance Partners regarding any question concerning this certificate of insurance requirement.  The contact name and address is as follows:

Construction Insurance Partners, LLC

308 North 21^st Street

St. Louis, Missouri 63103

(800) 316-4031

(314) 342-7170 fax

Contact:  Cindie Allscheid, Ext. 743

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VI.           PAYROLL REPORTING

Owner requires that all contractors submit a monthly report of man-hours and payroll to Construction Insurance Partners as per the following form.

It is the Prime Contractor’s responsibility to insure that this information is provided monthly by all subs.

THE CONTRACTORS AND ALL TIERS OF SUBCONTRACTORS WILL MAKE THEIR PAYROLL RECORDS AVAILABLE TO THE INSURANCE COMPANY AUDITOR AT ANY TIME DURING THE POLICY PERIOD AND UP TO THREE YEARS AFTER COMPLETION OF THE PROJECT.

Payroll:	Payroll shall include the total remuneration and hours worked for all employees working on the Project Site, including the cost of board and lodging where it is considered part of an employee’s earnings.
Payroll Records:	All payroll records on the Owner’s Projects should be kept separate from all other work.  This will make the audit process easier.
Payroll Reports:	Payroll reports should be sent to Construction Insurance Partners within two weeks following end of prior month.  You should use the same workers’ compensation codes and classifications as shown on your current workers’ compensation policy.  Show only total hours and total payroll for each classification of employees.  The report can be handwritten and faxed, hold the original copy in your file.  If you have more than one contract and/or work order, please either 1) complete a Form for each awarding contractor or, 2) show which payroll applies to which contractor.
Overtime:	Earnings for overtime should be included only at the normal hourly rate, (DO NOT INCLUDE EXTRA WAGES PAID FOR OVERTIME HOURS).  Overtime means those hours in excess of 8 hours worked each day, 40 hours in any week or on Saturdays, Sundays, or holidays, but only when there is an increase in the hourly rate to work such hours.  Hours should also be shown on overtime.

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New York Times Headquarters Project

OCIP Monthly Payroll Report Form

Contractor Name:	Payroll Month
Sub of:	From:	To:
	Final Payroll?

Workers’ Comp
Code Classification Gross Payroll* Total Monthly
Job Hours

* Straight time wage rates only.

Complete a Separate Form for Each Contract

This form should be turned in monthly to:

Construction Insurance Partners, LLC

Attn: Cindie Allscheid

Fax 314-342-7170

Signed:	Date:
Title

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VII.CLAIM REPORTING

As a participant in Forest City Enterprises, Inc. – OCIP, you will be expected to cooperate with construction management, Construction Insurance Partners and the OCIP insurer in the event of a claims situation. It is the responsibility of each Contractor and Subcontractor (any-tier) to report all claims. This section outlines the procedures to be followed in the event of an accident.

What to do if an injury/incident occurs:

•Injured worker notifies contractor supervisor

•Contractor supervisor immediately notifies General Contractor

•Contractor supervisor assists General Contractor with the completion of the Claim Notification Form(s). Both Workers’ Compensation and General Liability reporting forms will be available at the job-site. Insurance carrier will be notified of loss by calling a toll-free telephone number provided by the carrier. It is the responsibility of all supervisors to report their claims to the carrier. The General Contractor will assist as necessary.

•All contractors are required to assist in an accident investigation as outlined in Section VIII –Contractor Safety Requirements of this OCIP Contractor Manual.

•If you should have any questions regarding a workers’ compensation or general liability claim, please contact:

Larry Jackson

Construction Insurance Partners

308 North 21^st Street

St. Louis, Missouri 63103

(800) 316-4031

(314) 342-7170 fax

•General Contractor contacts Construction Insurance Partners

•Construction Insurance Partners will be copied on all Loss Notices.

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“New York Times Headquarters Project”

OCIP

All employee injuries must be reported to the General Contractor and the injured employee may, at their discretion, elect to receive treatment at the following facilities:

During Normal Working Hours

TBD

Hours: 7:00 a.m. – 10:00 p.m.

Monday - Friday

Emergency Treatment & After Hours Care

TBD

St. Paul Mercury Insurance Company

Send Bills To:

TBD

Address

City, State Zip

(Please write claim number on bill if known)

Customer Service – Medical Bill Review:

Telephone:

(Call this telephone number to check on the status of a medical bill)

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VIII.        CONTRACTOR SAFETY REQUIREMENTS

The Owner reserves the right to adopt the safety plan of the General Contractor.  Please refer to the Contract Provisions for the required Safety Procedures titled, “AMEC CONSTRUCTION MANAGEMENT, INC., Corporate Safety Policy and Procedure” attached as Exhibit S of your Contract Document.  The Contractor’s safety policies, procedures and codes of practice must be in compliance with current federal, state and local occupational health and safety standards.  Some sections may exceed the minimum standard.  The importance that safety awareness has in our corporate philosophy cannot be understated. Our approach is simple; substandard conditions and substandard practices will not be tolerated.  The following outline is a sample of the minimum requirements expected to be followed by the Contractor (any tier).

Safety Programs

•Each contractor or subcontractor who has 50 or more employees on-site at any one time will be required to provide a full-time on-site safety representative.

•Each contractor must develop and submit a written safe work procedure that identifies the hazards of their work and the equipment/methods that will beused to eliminate or control them prior to starting their scope of work.  In addition, the name of the “Competent Person” as described in the OSHA Construction Standard 29CFR 1926 must be specified.

•All contractor and subcontractor employees must receive the “Site Safety Orientation” prior to starting work. AMEC’s Site Safety Manager will provide this to the Contractor Superintendent prior to said contractor beginning any work on site.  It will then become the Contractors responsibility to ensure that each of their employees have received same prior to starting work.  This will be monitored through the use of “Hard Hat Stickers”.

•General Contractor will be provided with a copy of all programs.

•Each contractor will maintain on-site, a fully functional “Hazard Communication/Employer Right-to-Know Program.  A copy will be provided for General Contractor

•Each contractor’s safety activities will be audited based on requirements of the safety program.  OSHA standards will be the minimum acceptable site standards.

•Subcontractors or sub-subcontractors who may not have a written safety program may elect to fall under AMEC’s safety program.  Should that option be used, each sub or sub-tier is required to submit a letter to AMEC indicating it will use that option, that he has a copy of the program and is familiar with the safety requirements under that program and intends to comply with it.

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•Straight adoption of these programs will not be an acceptable option.  Each contractor’s safety program must be tailored by that contractor to reflect the specific exposures encountered by its tradesmen.  Construction Insurance Partners and St. Paul Mercury Insurance Company will offer assistance in this area as requested.

•All contractors should submit their safety programs to the General Contractor before they begin work.

•Basic personal protective equipment consists of safety glasses with side shields an ANSI approved hard-hat, durable work shoes or boots, long pants and tee-shirt with sleeves as the minimum.  A hard hat, safety glasses with side shields and proper footwear must be worn at all time while on the project.  Hearing protection, dust masks or respirators shall be worn where hazards to the ears or respiratory tract exists.  Training on the proper use and limitations of respiratory equipment will be provided to any worker using such equipment.

•A strict 100% fall protection policy shall be adhered to where any worker is exposed to a hazard of falling six (6) feet or more or when working over dangerous equipment. (NOTE: The only exception to this rule will be for employees engaged in structural steel erection.  These individuals will follow the guidelines of 29CFR 1926 subpart-R)

•Prior to removing guardrails, temporary or permanent floor covers, grating or other barriers designed for fall protection, workers will be provided with fall protection as explained in sub (b) above.  Guardrails and protective floor coverings shall not be left open and unattended for any period or for any reason.  Upon completion of the task or activity, the guardrail or covering must be replaced in a securely fastened state.  All floor covers must be legibly marked as “hole” or “opening”.

•Documentation shall be submitted to AMEC stating the each subcontractor supervisor has been trained to administer first aid and CPR

•Each contractor and subcontractor supervisor will have attended the “OSHA 10 Hour Construction Outreach Training Program” as evidenced by the appropriate documentation.  If the supervisors have not received said training, it will be provided at “no cost” to the contractor.  However, when the training is scheduled, the contractor MUST make supervisors available for the classes.  (Note: Every effort will be made to schedule classes during hours that will not impact the ongoing work)

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•A “No Drug or Alcohol Policy” will be enforced by all contractors’ and sub contractors’.  This policy restricts certain items and substances from being brought on Company premises, prohibits all employees and others working on Company premises from reporting for work or from working with detectable levels of illegal or non-prescribed drugs and other substances.  Post accident drug testing will be required for all personnel working on site.

Safety Committee

•Each prime and those major subcontractors selected by General Contractor will appoint a Safety Coordinator.

•Safety Coordinators will be required to attend a Safety Training Session by Construction Insurance Partners and St. Paul Mercury Insurance Company as requested.

•The Safety Coordinators will form the Safety Committee.

•Safety Committee Meetings will be held as called by General Contractor.  These meetings will usually occur once each month.  Attendance by Safety Coordinators is mandatory.

•Safety Coordinators will be required to accompany Construction Insurance Partners and/or St. Paul Mercury Insurance Company on safety tours of the job site for the purpose of hazard recognition.

•Superintendents/supervisors may be permitted to act as Safety Coordinators.

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Accident Investigations

•Each contractor and subcontractor is required to conduct and submit written accident investigations report(s) to St. Paul Mercury Insurance Company and the General Contractor within 24 hours after an incident occurs.

•St. Paul Mercury Insurance Company and/or Construction Insurance Partners representatives will make accident investigation forms available for any contractor who does not currently have them.

•Construction Insurance Partners and/or St. Paul Mercury Insurance Company representatives will review all accident investigation reports for quality.

Modified Duty Program

•The purpose of a Modified Duty Program is to get the occupationally injured employee back to work as safely and quickly as possible without causing further harm or injury.  The keys to a successful program are 1) commitment on the part of the contractor to be creative and flexible in assigning work and 2) the willingness on the part of the employee to attempt the modified duty offered.  Each contractor and subcontractor will work with the OCIP Administration Team in identifying modified duty work, document that the modified work to be offered is within the physical limitations outlined by the treating physician and coordinate the return of the injured employee back into the work place.

Safety Meetings

•Each contractor, subcontractor and sub-subcontractor is required to conduct safety meetings at the job site as directed by its established safety program.

•At a minimum, Safety Meeting are required weekly.

•A supply of safety talk topics will be maintained in the Construction Office for those companies who wish access to additional topics.

•Joint safety meetings may be conducted by or with the prime and/or other subs.

•The resulting safety meeting report must clearly identify each employee who attended and be listed - by contractor, subcontractor or sub-sub.

•All safety meeting reports should be forwarded to Construction Insurance Partners and/or St. Paul Mercury Insurance Company for a review of quality and timeliness.  The results of this review will be submitted to General Contractor for their action.

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Self-Inspections

•Each prime and subcontractor must conduct job-site inspections on a regular basis. While these inspections may conform to the requirements of the contractor’s own safety program, they are subject to minimum standards established for the job.

•Joint inspections or inspections conducted by a prime contractor for a sub must be identified as such. Documentation of these inspections must clearly identify the name of the person who did the inspection and each of the contractors, subcontractors, and sub-sub for whom the inspection was made and any safety recommendations that resulted from the inspection.

•Inspection follow-up will be performed by each contractor to ensure compliance with recommendations.

•The quality of inspections will be audited by Construction Insurance Partners and St. Paul Mercury Insurance Company loss control personnel and results of those audits provided to General Contractor for their action.

Job Surveys

•St. Paul Mercury Insurance Company and/or Construction Insurance Partner’s safety representatives will conduct job-site safety surveys monthly, in the company of the members of the Safety Committee for the purpose of hazard recognition.

•Suggestions and recommendations resulting from those surveys will be discussed with contractor representatives at the time of the survey. Recommendations and suggestions will also be discussed during the regular monthly Safety Committee Meetings.

•The findings will be submitted in the loss prevention report directed to General Contractor for their action.

Record-Keeping and Files

IF IT IS NOT RECORDED IN THE PROJECT’S CONSTRUCTION OFFICE, IT HAS NOT BEEN COMPLETED!

Documentation is required in the contractor’s safety file located in the General Contractor construction office. Representatives of St. Paul Mercury Insurance Company and Construction Insurance Partners will review safety program documentation. It is very important that any contractor with questions regarding record-keeping contact General Contractor, Construction Insurance Partners or St. Paul Mercury Insurance Company’s loss control representative for clarification.

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The following documentation is required:

•A written safety program

•A written hazard/employee right-to-know program. Materialsafety data sheets conforming to the above hazard communication program. The Hazard Communication standard requires contractors to provide Material Safety Data Sheets (“MSDS”) for all hazardous products to be used on this project. The MSDS sheets must be available for workers at all times while on the project. Workers must receive training to be made aware of the hazards of these products.

•Job-site safety meeting reports

•Accident investigations - In order for the Company to investigate all accidents, the subcontractor must immediately notify the Company and submit an accident report within three (3) working days of the accident.

•Job-site inspections - Weekly inspections of the subcontractors operations, equipment and work areas will be performed by a Competent Person designated by the subcontractor. Documentation of inspections will be submitted to the Company.

•The Company has a policy of progressive warnings for non-compliance. Persons will receive a verbal, then written, and, thirdly, suspension or removal from the project. In circumstances where non-compliance threatens life or limb, the Company reserves the right to remove the person from the project.

•Fully charged fire extinguishers must be provided in all site office and storage trailers as well as for all flame soldering, cutting or welding operations and other operations where hot work is performed.

•To minimize fire and injury potential due to poor housekeeping. Work areas must be kept clean and free from scrap or reusable materials including lunch garbage

•All subcontractors must be responsible to ensure all visitors, inspectors, service or delivery personnel meet the minimum requirement for personal protective equipment prior to entering the construction area.

•Where requested by the Company, and before commencing the work, the subcontractor shall provide a written safe work procedure or permit for any portion of the work which may pose unique or specific hazards to workers performing or exposed to that work or work area.

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File Audits

•Safety files will be reviewed by St. Paul Mercury Insurance Company and/or Construction Insurance Partner’s loss control representatives monthly.

•Comments as to the quantity and quality of contractor’s documentation will be addressed to General Contractor for their action.

•Contractors are encouraged to discuss safety record-keeping problems with the representatives of Construction Insurance Partners and St. Paul Mercury Insurance Company.

•Construction Insurance Partners and/or St. Paul Mercury Insurance Company representatives will make a decision each month as to the contractor with the best quality records for the previous month. That information will be made known to General Contractor for appropriate action relative to the job’s safety incentive activities.

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EXHIBIT K

Project Website Guidelines

Project Website Scope

The Project Website is an Extranet system managed by Owners and made available to Architectural, Engineering, Construction and Specialty Consultant firms actively participating in the project. Features of the Project Website support collaboration during design and construction, and document archiving.

Project Website Components

Software components are loosely integrated permitting the creation of linkages between applications data and document records.

“Prolog” project management software by Meridian Project Systems, Inc. of Sacramento, CA. Features include: the documentary record of the job in searchable form including RFI’s, meeting minutes and contact lists.

“ImageSite” document review, markup and reprographic software by eQuorum Corp. of Atlanta, GA. Features include: the drawings of the job in searchable, easily viewable Tiff files that are automatically captured from large CADD files.

“ProjectWise” document control software by Bentley Systems, Inc. of Exton, PA.

ProjectWise is an internet-based central repository of current and historical versions of CADD backgrounds and archives of drawings.

Construction Manager’s Project Website Responsibilities:

Construction Manager shall use certain Prolog Manager and Prolog Website features, specifically RFI’s, meeting minutes, and change order management. Construction Manager shall coordinate with the Architect and Consultants and share all information necessary to incorporate trade contractor Shop Drawings and “verified” as-built conditions for the key trades such as MEP and life safety into Consultant’s drawings/document set and the Project archive. In situations where electronic equivalents of paper documents are not readily available, Construction Manager shall provide and post scanned copies to the NYT Project Website in accordance with procedures and best practices established by the Owner.  This coordination and transfer of information shall be performed continuously throughout the Project.

Construction Manager agrees to utilize the Project Website actively and consistently throughout the project.

At the conclusion of the Project, or defined scope of work, whichever occurs first, Construction Manager agrees that Owner shall retain ownership of all licenses provided or purchased during the course of the Project.

Owner CADD and Website Responsibilities:

Owner shall manage and administer the Project Website and all of its hardware, software and database components.

Owner shall distribute and administer Project Website-specific application software licenses, provide basic Project Website-specific training and Project Website-specific Help Desk support services to enable The Construction Manager, in Owners’ judgment, to effectively manage project collaboration and documentation via the Project Website.

Owner shall assist Construction Manager in securing access to the Project Website.

EXHIBIT L

KeyEmployee Affidavit

To: The New York Times Building, LLC (“Owner”)

I,                                                           , do hereby certify as follows:

1.I am an employee of AMEC Construction Management, Inc., Construction Manager for the New York Times project (“Project”).

2.I am a “Key Employee” of Construction Manager, as that term is defined in the Construction Management Agreement dated November      , 2003 (“Agreement”) between Owner and Construction Manager.

3.I have read and understand Article 2 of the Agreement relating to Ethical Obligations.

4.I do hereby certify that I will (have) during the course of the Project comply (complied) with the requirements set forth in Article 2 of the Agreement regarding Ethical Obligations.

5.This Certification is made by me with full knowledge that:

1.execution of this Affidavit is a condition of my assignment to and participation in the Project.

2.violation by me of the Ethical Obligations set forth in the Agreement may result in my dismissal from the Project.

3.my execution of a copy of this Affidavit at Final Completion of the Project is a condition of Final Payment to Construction Manager.

Name:	(please print)
Position:
Date:
Signature:

EXHIBIT M

Key Employees

John Babieracki – COO

Daniel DeLosa – Chief Estimator

Patrick Muldoon – Project Executive

Andres Sosa – Sr. Project Manager

John Fedeli – Sr. Project Superintendent

George Mow – Project Manager forBuilding Enclosure

Robert Filipi – MEP Procurement / Commissioning

EXHIBIT N

Not Used

Exhibit O

Qualifications and Assumptions

A.General

1.  Construction schedule assumes a start of foundation work of March 5, 2004. Owner acknowledges that the delay in the start date from February 15, 2004 to March 5, 2004 may result in additional costs from subcontractors which would result in an increase to the GMP. Construction Manager shall document these additional costs, if any, no later than March 15, 2004, or such costs shall be waived by Construction Manager.

2.  The GMP is based on some bids that Construction Manager has solicited, coordinated, and negotiated. A removal or rejection by Owner of any bidder whose bid was used to determine the GMP may result in a change to the GMP. The GMP will only be adjusted only to the extent that the bidder is greater than the line item for that trade in the budget annexed to the contract as Exhibit S.

3.  The Construction Manager will perform the exterior final cleaning as directed by Owner as follows:

a.  Construction Manager will complete the final cleaning no later than August 30, 2007, as part of the GMP. If the permanent Façade maintenance equipment is completed and approved at the time Construction Manager is ready to perform the final cleaning then the Owner will permit Construction Manager to utilize the equipment for the cleaning.

b.  If Owner elects to require the final cleaning to be completed no later than December, 2006, then Construction Manager will utilize alternate scaffolding. This option will require an increase to the GMP in the amount of $59,000 for additional scaffolding, curtainwall leave-outs at the roof, and any other additional costs associated with this alternate method.

4.  Specification Section 09250.1.7, Environmental Conditions, is excluded. In its stead, Construction Manager has established and will implement a mold prevention plan to address the approach to keeping the project moisture-free as part of the Work and within the GMP. Therefore, notwithstanding anything to the contrary in this plan or in the contract, to the extent that either (i) Construction Manager fails to fully implement this plan, or (ii) Construction Manager’s plan was inadequate to address reasonably foreseeable water infiltration, and there is a resultant damage, then Construction Manager shall be responsible for all costs associated with such damage.

5.  The Construction Manager’s schedule is predicated on the following Owner turnover milestones:

•Excavation/foundation work to start on March 5, 2004, subject to Paragraph Al above.

•The west end of the site (Lots #1, #5, #59, #61, & #62) is available for excavation/foundation work starting May 19, 2004, subject to Paragraph A1 above.

6.  Specification section 01321, Survey of Existing Conditions. This section is excluded. This shall be provided by the Owner.

7.  NYC Dept. of Buildings Permits and Approvals: Fees for New Building Permit, Paving Plan and Sewer Connection to be paid by Owner. All other fees are to be paid by Construction Manager, including but not limited to, highway permits, sidewalk closing permits, permits to accommodate site logistics, BEC fees and Fire Department inspection fees.

8.  The GMP includes a trade line of two hundred and fifty thousand ($250,000) dollars to cover the cost of Con Edison fees and deposits required to bring the temporary electrical service to the site. To the extent the charges exceed this amount, Construction Manager shall be permitted to access the Contingency. The GMP includes all usage and consumption charges for electric service and other utilities for the Work. Temporary load letter was provided to Owner. Owner to provide same to Con Edison.

9.  The GMP includes only Requests for Information (RFIs) that had been answered and indicated in the New York Times Building Project GMP BID RFI LOG Updated June 26, 2003. RFI’s to be included in contract documents.

10. Railroad Protective Liability insurance is excluded from the GMP.

11. All out of sequence work and other required provisions for early start-up and testing of the chilled water and condenser water systems is included in the GMP.

B.Demolition & Abatement

1.  All demolition and abatement work is excluded.

2.  Mueser Rutledge Consulting Engineers Drawings D-1, D-2 and D-3 are excluded.

3.  Demolition sidewalk bridge shall be by the Owner.

4.  The GMP includes the removal of lot line windows and installation of masonry per drawings.  The GMP excludes restoration/finish work within the adjacent building except if such restoration/finish work is required due to damage caused by the Construction Manager.

C.Sitework

1.  Regarding Alternate No. 21 - Individual concrete footing is assumed for the type 2 bollards, not continuous footing.

2.  Owner has obtained approval of the Builders Pavement Plan.  The final sign offs shall be obtained by Construction Manager.

3.  Street restoration is included to one lane from curbline.

D.Excavation and Foundations

1.  The GMP includes the removal of the demolition debris berm only as indicated on drawings.  Demolition subcontractor to leave “clean” basements.

2.  Photographic survey of NYCTA Subway shall be by Owner.

3.  Vibration monitoring as required by 42DP and NYCTA shall be by the Owner.

4.  Cutting, capping, or relocation of existing utilities within the site is excluded.

5.  Removal of any Hazardous or contaminated materials/liquids is excluded.

6.  The GMP assumes that the existing building to the east is on rock and excludes the cost of underpinning along the east face of the excavation. The GMP includes extended anchors per detail on Drawing No. S-2009.

7.  The GMP includes excavation for footings to elevations as indicated on the drawings plus an additional 3’-0”. Construction Manager shall provide unit prices for additional concrete and excavation.

E.Superstructure Concrete

1. Floor flatness is as per the specification section 03300, dated October 10, 2003. Construction Manager will arrange to shoot elevations of the bottom of approximately every third beam in advance of pouring deck to confirm that the design camber exists. If the camber is less than that required per AISC standards, then the Construction Manager will arrange to shore those beams at an additional cost to the GMP.

F.Structural Steel

1.  The GMP includes the framed openings and beam penetrations as indicated on the structural drawings and architectural A-9000 series drawings. Construction Manager shall provide unit price for channel framed openings in steel and miscellaneous metal buyout.

2.  Progress payments for value of raw material received from mill sources are to be process with the monthly basis after inspection and receipt of insurance certificates, UCC filings and other documentation required by Owner.

3. Crane picks for tenant equipment is excluded. Picks for all equipment on drawings up to and including Addendum #16 is included. Unit price to be provided as part of steel bid.

4.  The GMP includes bolted connections at interior column splices that develop less than 1000 kips in tension. Construction Manager will maintain the splice connection within the 2’-6” x 2’- 6” enclosure detail indicated. If detail dimension cannot be maintained, the connection will be welded.

5.  Construction Manager will pursue bolted connections at any core column splice that develops less than 1000 kips in tension. Construction Manager will review with the architect to confirm locations where bolted connections fit within the core construction. If bolted connection is determined not to fit, then it will be welded.

6.  The intermediate floor splice, at the N/S channels, as indicated on drawing S-5011 is excluded.

7.  The GMP includes the use of US channels in lieu of European channels.

8.  The GMP includes 3/8” tolerance at exterior steel column connections.(i.e 3/8” lippage).

9. The GMP includes, at the Construction Manager’s option, pursuing an alternate splice connection detail at the exterior columns. Alternate connection detail shall be in accordance with Thornton-Tomasetti sketch, dated 7/28/03, indicating longitudinal fillet welds in lieu of traverse partial penetration welds.

G.Miscellaneous and Ornamental Metals

1.  The railings at convenience stairs are excluded.

H.Roofing

1.  The stone ballast at the roof setbacks that receive IPE wood decking is excluded.

2.  The GMP includes Hanover pedestal roof pavers based on standard color and finish. Specification to be revised to include standard color and finish.

I.Curtain Wall

1. Construction Manager acknowledges that they will enter into the curtainwall contract with Benson Industries. There will be no increase in the GMP in connection with the curtainwall contract.

2. The GMP includes $400,000 for additional support steel and other items, over and above the current drawings, that may be required by the curtain wall subcontractor for the rooftop monorail.

J.Entrances & Storefront

1. The GMP includes an allowance of $[*] for Storefront, Entrances, Awnings, and Canopies (8th Ave., North, South).

K.Interior Partitions and Finishes

1. The GMP includes intumescent dry wrap fireproofing at the four (4) vibration isolators just below the 5th floor slab at the Cogen plant as per the drawings.

2. The GMP includes mold resistant sheetrock at the partitions noted in the Addendum #10 room finish schedule.

3. The GMP includes note #11 Dwg A0001 Addendum #10 - application of stain to concrete surfaces at cellar trenches.

4. No partitions, doors and finishes are included at the following spaces as per the drawings:

Outside of core areas at Cafeteria/kitchen

Auditorium on ground level/cellar level

Retail areas at ground level

5. All finishes for the Times Center space on the ground floor are excluded with the exception of the cellar bathrooms as per the drawings.

6. Color coded painting of mechanical and plumbing piping is excluded. Adhesive labeling decals as per Division 15 are included.

7. Electric locks to be supplied by hardware contractor as part of the GMP.

8. Window blinds are not included

L.Bird Deterrent System

1. If the permanent Facade maintenance equipment is completed and approved at the time Construction Manager is ready to install the bird deterrent system, then the Owner will permit Construction Manager to utilize the equipment for the installation. If the equipment is not complete then Construction Manager will install the bird deterrent system as part of the GMP. Notwithstanding the forgoing, Construction Manager acknowledges that the bird deterrent system must be completed by August 30, 2007.

M.Conveyances

1. A destination based elevator control system (Miconic) isnot included.

2. The GMP includes utilizing Fujitec Serge of New York for all elevator work on this project. In the event that the Owner directs Construction Manager to retain a different contractor for this trade, then the provisions of Item A.2. shall be applied.

N.Electrical

1. Quantities of notch lighting (Type ‘AL-40’) taken from riser.

2. All 120V normal circuits in the core area are run to the respective electric closet and left coiled in a box for future connection by the Tenant contractor.

3. Included are seismic restraints for life safety and cogen as per specifications.

4. Emergency operation of the roll-up grill at the subway entrance is by chain in lieu of battery back up, if approved by Owner at Owner’s sole discretion.

5. Included are rigid plates with sheet metal sleeves in lieu of threaded sleeves for the communication system.

6. In addition to the conduits shown under slab (to chiller plant) other feeder conduits originating from the service switchboards are also run under the slab but only to the extent this meets the design criteria and other project restraints in Owner’s discretion.

7. The GMP includes an allowance of $[*] for furnishing, installing, and wiring of security system, and an allowance of $[*] for furnishing, installing, and wiring of turnstiles (excluding cladding). Conduit, raceways, junction boxes and drag lines are included in the GMP.

O.  Value Engineering

1. The GMP excludes the permanent temporary heating system on the FCRC floors, comprising of horizontal piping from the riser shut off valve up to and including the fan powered boxes, associated ductwork, appurtenances, and wiring.

2. VE#28 – GMP is based on a Fixed boom window washing Rig at the podium Roof in lieu of the specified unit.

3. VE#33 –GMP is based on a six inch slab on grade at the Chiller Plant Room (el. –22.0).

4. VE#49 – GMP is based on eliminating approximately 100 control points from the current BMS System.

P. Addendum No. 16

1. Elastomeric waterproofing at the Cogen mezzanine level is excluded. Reference drawing #A-0001. Fox & Fowle to revise drawing and note in a future Bulletin.

2. VE#26 – Plate column enclosure savings is included in the GMP. Construction Manager is reviewing alternate means of achieving the VE savings. Alternate means include thinner plate material and a horizontal joint.

3. All revisions (i.e. drywall, hollow metal, hardware, paint) to the 51^st floor as indicated on drawing A-1051 is excluded. This work will be priced when the design is complete and issued as a future Bulletin.

4. The second light switch indicated at the typical tower men’s and women’s core bathroom is excluded. The light switch at the vestibule shall also control the bathroom lighting. Drawings to be revised by Flack & Kurtz.

5. The four inch (4”) conduit (running to east side of core) as indicated on the Fire Alarm/Security drawings is excluded. Construction Manager has also provided a credit for the original conduit, running to the west side of core, included as part of the GMP. In lieu of the conduits, Construction Manager has included (2) sleeves at the security closet (on all typical floors) and one (1) sleeve through each end of the core wall (at FCRC floors). Drawings to be revised by Flack & Kurtz.

EXHIBIT P

Not Used

EXHIBIT Q

Early Access Guidelines and Turnover Protocol

Upon completion of the following scope of Core and Shell work, the NYTC Interiors CM will be permitted access to the floor or group of floors in order to commence interior improvement work:

Metal deck installed and concrete slab on deck complete.

Fireproofing complete on the columns, bracing, and underside of floor above.

Main sprinkler riser installed.

Main HVAC duct risers installed.

Material and personnel hoists have been installed to allow for service to the floor.

Base building stairwells have been erected up to the floor.

Currently, the NYTC Interiors CM plans to wait until the following items are complete prior to commencing work:

1.Perimeter Walls complete except at hoist openings.

2.Exterior side core walls, perimeter walls and columns enclosures will be taped, spackled, sanded and primed.

3.Core rooms complete, including doors and hardware.

4.Elevator opening work is complete.

5.Floor is flash patched as required by contract.

6.Floor is turned over broom clean.

7.Building Enclosure punch list work is not complete.

8.Toilet rooms (tiles, light fixtures, ceilings, plumbing fixtures, partitions, mirrors and door hardware) are complete and punch listed. Protection will be by interior contractor.

9.Building enclosure is complete and watertight except at hoist openings. Each hoist opening will be protected with plywood as per OSHA requirements.

10.Curtain wall closed except for caulking and crane leave-outs.

11.Core doors hung, primed and ADA hardware complete.

12.SOFP complete except for minor patching.

13.Core and shell utility closets complete.

14.Air riser shafts and main ductwork takeoff serving the floor including dampers, controls and fire alarm devises shall be installed but not operational.

15.Supply air insulated and pressure tested.

16.Piping riser takeoffs serving the floor including insulation and valves are completed.

17.All heating hot water connections to FPTU’s are installed, insulated, pressure tested and balanced.

18.Chilled water or secondary chilled water main piping loop and branch piping with valved future outlets is installed, insulated and pressure tested.

19.Toilet exhaust trunk duct tied into vertical shaft.

20.Floor supply and return airshaft complete with fire smoke damper terminating at core wall.

21.Electrical closet fire smoke damper sleeve set in core wall.

22.NYT supplemental chilled water supply and return risers complete with valued outlets where appropriate.

23.Bus duct and/or cable risers/feeders serving the floor are installed.

24.Utility and UPS power panels are installed and powered.

25.Temporary lighting and power grid is installed as per base building specification.

26.Core and shell closets complete with high and low voltage distribution panels.

27.Core and shell smoke detectors complete to provide elevator fireman’s re-call.

28.Core and shell Warden stations complete.

29.Core and shell strobe and speaker panels complete and ready to receive NYT tenant work.

30.Core and shell speakers complete at toilets not connected, coiled at core wall to be picked up by tenant work.

31.Core and shell sprinkler flow and tamper switch installed and operational.

32.Plumbing and fire protection riser takeoffs serving the floor are completed including insulation and valves.

33.Sprinkler work (main) is installed and pressure tested.

34.All toilet room and janitor closet fixtures are installed.

35.All plumbing and fire protection riser takeoffs serving the floor (domestic water, waste lines, vent lines, sprinkler, standpipe, etc.) including insulation and valves.

36.Vertical conduits and slab openings for Telecommunication installed.

The schedule included in this Agreement must include floor turnover dates that correspond with the completion of the conditions listed above.

In order to avoid any potential dispute between the user’s CM and the Core and Shell CM, a walkthrough will take place prior to the user accessing the floor to commence work. During the walkthrough all incomplete Core and Shell work will be identified, and any damaged work in place will be identified.

The two CMs will at that time establish a set of ground rules with regard to storage of materials on the floor and will coordinate their respective schedules in order avoid conflicts.

While the Core and Shell CM will be contractually obligated to cooperate with and to coordinate their schedule with the interior improvement CM’s schedule, it is understood and agreed that the interior improvement work will proceed in a way which will not adversely impact the construction of the Core and Shell, the Core and Shell schedule or the Core and Shell budget.

EXHIBIT R

Cost Allocation Guidelines

TIMES TOWER

GMP ALLOCATION METHODOLOGY

Updated 7/9/03

CM Instructions:

One of the below codes will be assigned to every detailed line item of the GMP.

The format of the GMP allocation is attached.

Colored drawings produced by the owner will contain the allocation codes noted on this summary.

Show detailed takeoffs, not summary data.

Pricing should reflect buy-out estimate.

Process to calculating a deduct:

•Price out and allocate the higher cost option on the estimate

•Price out the lower cost option - do not show on the estimate

•Calculate the difference in the total costs and allocate the difference on the estimate to the member entitled to the benefit

Code structure:

100Percentage GSF allocation

200’sOther allocation method for general work

300’sNYTC office item

400’sFCRC office item

500’sTimes Center item

600’sRetail item

Code	Allocation Code Description	Allocation Methodology
100	Basic GSF Allocation	Percentage Interest for each of the 4 units provided by the Owner to be applied to each detailed line item of the GMP that does not have an alternate allocation methodology.
200	Elevators	Service and tower elevators allocated based on buy. Until then, allocate as follows: Service elevators 54.167% NYTC, 45.833% FCRC Tower passenger to users (NYTC and FCRC) F32 Freight @ east core GSF S31 Service @ east core 50% NYT, 50% GSF P29 Passenger @ east core 100% NYT C30 Times Center 100% Times Center Handicap lift @ lobby GSF
201	Elevator Pits	CM to allocate cost of each elevator bank pit per colored drawing S100C1-A. Costs include: excavation, concrete, Waterproofing, cast in place suspended pits.
202	Exterior Wall Enclosure - Assigned Contract	Owner will provide the allocation of the Benson curtain wall.
203	Exterior Wall Enclosure - storefront and east wall	CM provides costs and Owner provides façade allocation percentage. Items include: storefront (street and 1st floor garden), east block party wall w/ EIFS (all floors), and loading dock O/H door. Included in $[*] allocation pending CM buy.
204	Not used

205	Not used
206	Increased Structural Loading	Cm to allocate costs in accordance with Kyle Kralis e-mail dated 7/16/03, NYTC will be allocated 1.25 pounds per sf for the increased load of the 12th floor data center (15 tons) and the 15th floor conference room (7.5 tons). CM to price at the rate for milled steel. There is no special allocation for the high load on the office floor north and south bays since the spaces are approximately equal.
207	Integrity Enhancements	[*]
208	Finishes Division 9 and waterproofing and wainscoting	CM to allocate costs based on color coded plan to CM provided by Owner. Includes floor, wall and ceiling finishes per A0001, Division 9. Excludes Times Center.
209	Mirrors, Interior Doors, and Hardware (partial Division 8)	CM to allocate costs based on color coded plan to CM provided by Owner. Includes bathroom mirrors. Excludes Times Center.
210	Specialties (partial Division 10)	CM to allocate costs based on color coded plan to CM provided by Owner. Toilet and shower partitions, toilet accessories, lockers, and associated support steel, if applicable. Excludes Times Center
211	Millwork - (partial Division 6)	CM to allocate costs based on color coded plan to CM provided by Owner. Includes counter tops.
212	Entrance Doors	CM to allocate costs based on color coded plan to CM provided by Owner. Allocate entrance doors for non-common spaces to user (Times Center and Retail.) The main entrance doors are code 100. Included in $[*] allocation pending CM buy.
213	Interior Storefront (glass)	CM to allocate costs based on color coded plan to CM provided by Owner. Break out cost of laminated glass and upgraded aluminum alloy and allocate based on GSF. 1st floor Overhead Interior Fire Shutter and related steel support at Times Center split between Times Center and Common. Included in $[*] allocation pending CM buy.
214	Interior Partitions	CM to allocate costs based on color coded plan to provided by Owner. Verify quantities with F&F. Includes drywall ceilings, partitions and soffits, glass, etc Excludes FCRC elevator shaft enclosure on NYTC floors.
215	Grounding Wire	CM to allocate to beneficial user based on color coded plan: FCRC connection to backbone, NYTC sleeves for future ground and wire in basement (Times Center and mailroom).
216	Bond and insurance	CM to allocate by trade based on percentage of trade cost allocated to NYTC or FCRC.

217	Raised Floor/No Raised Floor	Allocate to allocate costs based on owner direction: NYTC: –raised slab at fire stair vestibule (A2101 P7, P10) –curbs at elevator lobby (A2101,J7) and curbs at telecom penetrations (A2101AP7, P13, A4) –grating and rails @ mechanical rooms (A2101B P10) –core service corridor duct work, lighting, etc. –bathroom waterproofing on floors where there is no stack offset on the floor below FCRC: –machine room –core service corridor duct work, etc.
300	NYTC Communicating Stairs	Allocated to NYTC: - CM to provide breakout pricing for core and shell portion of NYTC Communicating Stairs in Tower and Podium, including: steel stair stingers, pans, extension of standpipe from core to communication stairs @ 6 locations (2 floors) per color coded plan, and additional steel framing required for stair openings.
301	NYTC Podium Skylight	Allocated to NYTC. CM to provide breakout cost of skylight and associated intumescent paint. Provide NYTC with a deduct for the full cost of the concrete, metal deck, spray fireproofing, and roofing displaced by the skylight.
302	Not used
303	NYTC Kitchen Exhaust etc.	CM to breakout cost of ductwork, cal sill insulation Drywall included with interior partitions.
304	NYTC UPS	CM to break out costs, including empty conduit, pits, grate and waterproofing drip pan
305	NYTC Steam Humidifiers	CM to break out costs, including equipment and steam piping (and branch piping from LP riser to humidifier)
306	Cogen	CM to break out cost based on colored drawings, including all costs to fill out the interior space: Electrical, HVAC, Plumbing, Fire Protection. Concrete & metal deck, handrails and steel stair, fuel containment curbs, masonry walls, metal panels, screening, ladder to roof, acoustic doors, aluminum cladding, fireproofing, drywall duct enclosures, interior partitions. Structural Steel: Vibration and sound isolation Waterproofing SS Flue (Ornamental Metals) Enclosure Insulation — thermal & acoustic Provide a credit for the building back-up generator costs not incurred (housing, waterproofing, etc).
307	NYTC Air cooled Chiller	CM to allocate costs based on color coded plan to CM provided by Owner.
308	NYT Telecom	CM to break out costs based on colored drawings, including: 2 telecom conduits (1 riser) from 12 to 51, 4 telecom conduit from the 12th floor to the basement pull box at the west garden wall and the two conduit from the pull box to the NYT mailroom. Also, break out the cost of the telecom sleeves in the east and west risers going through the FCRC floors to 51st floor. (Note—allocate the cost of the remaining telecom sleeves, conduit, main carrier entrance room ladder rack and slab openings GSF using Code 100.)
309	NYTC Kitchen Gas	CM to break out costs based on color coded plan, including gas piping and gas meters.
310	NYTC Kitchen Power	CM to break out costs based on color coded plan for dedicated kitchen power (basement breaker at switchboard, riser w/line, and disconnect on floor)
311	NYTC telecom chilled water	CM to break out costs based on color coded plan for the telecom closet chilled water riser (CHS/R-4).
312	NYTC filtered water system	CM to break out cost based on colored drawings for central filtered water system supply and drains
313	Not used

314	NYTC Tennant MEP	CM to allocate cost based on color coded drawing for tenant MEPS fitout not captured in other codes, such as drains, vents, conduit, etc.
315	NYTC Intumescent Paint	CM to allocate cost of  intumescent paint, net of spray fireproofing, for newsroom skylight, Times cafeteria bridge, and Times Center bridge.
316	NYTC Podium AHU	CM to allocate the incremental cost of the podium AHU to NYTC based on the AMEC’s pricing study of the on floor unit alternative documented by F&K; and allocate a like amount (in total) as a credit to each of the four units
317	NYTC Podium Window Washing	CM to allocate the incremental cost to extend use of the of the podium garden window washing rig to the NYTC newsroom skylight
401	FCRC Temporary Heat on Office Floors	CM to breakout cost based on color coded drawing for FPUs, starters, power, piping, controls, fan powered boxes, etc.
402	Fuel oil facility	CM to allocate tank, infill piping, vent piping, relief piping, waterproofing, 40% to common and 60% to FCRC.
403	FCRC elevator shafts on NYTC floors	CM to allocate costs based on color coded plan to CM provided by Owner.
404	FCRC fuel  & gas riser	CM to break allocate costs per color coded drawings for fuel and gas riser
405	FCRC Sprinkler	CM to allocate cost of heads and piping in retail and basement storage areas per color coded chart.
406	FCRC telecom	CM to allocate firestopping at telecom slots.
501	Times Center MEP Owner Fitout	CM to break out costs based on color coded drawing, including: AHUs 6, 7, & 8, SF, RF, Duct controls, piping (including costs of under slab), and starters.
502	Times Center Structural Street Provisions	CM to allocate lump sum for additional cost due to long spans and vibration isolation.
503	Times Center and Mailroom Toilets	CM to break out all costs including plumbing and finishes
504	Times Center Lower Function Room Elevator	CM to allocate cost of the depressed slab for the basement of the Times Center and the corridor railing at the basement corridor ramp adjacent to the Times Center.

For clarity, the following items will be allocated using the GSF allocation (code 100).

–Steel supports for retail signage

–Bird protection

–Canopies and awnings

–Turnstiles, lobby reception desks, lobby elevator bank partition.

–Equipment to heat water using steam (basement for NYT and 28^th floor for FCRC)

–Empty electrical conduit and chilled water to retail and Times Center

–General conditions and fees

–Allocate the trade insurance deduct, sales tax deduct, and bond premium based on the relative trade cost for each unit. For example, if a particular trade’s insurance deduct is $1000 and FCRC Office unit’s share of costs for that trade is 45%, then FCRC would be allocated $450 of the deduct. The cost of the OCIP insurance premium will be allocated based on each unit’s share of total trade costs and GCs.

Note: This methodology has
not yet been finalized and is
subject to revision.

EXHIBIT S

Guaranteed Maximum Price

AMEC Construction Management, Inc.

New York Times Building

Grade Code	Item	Amount	Add. #12	Add #13 MAST - Final	Add.#14	Add.#15	Add.#16	Add.#17	Sub-Total	Other Items	Total Budget
000	General Conditions									[*]	[*]
000	Sitework (Incls Subway work)	[*]	[*]						[*]		[*]
250	Landscaping	[*]							[*]		[*]
500	Building Substructure	[*]							[*]	[*]	[*]
000	Concrete	[*]	[*]	[*]	[*]		[*]		[*]		[*]
200	Masonry	[*]							[*]	[*]	[*]
100	Structural Steel	[*]		[*]			[*]		[*]		[*]
500	Misc Iron	[*]	[*]			[*]	[*]		[*]	[*]	[*]
400	Ornamental Metal	[*]			[*]				[*]	[*]	[*]
100	Rough Carpentry (horizontal Nets)	[*]							[*]		[*]
200	Finish Carpentry & Millwork	[*]							[*]	[*]	[*]
240	EIFS	[*]							[*]		[*]
250	Spray-on Fire Proofing & lobby stucco	[*]		[*]					[*]	[*]	[*]
101	Metal Panels	[*]							[*]		[*]
500	Roofing & Waterproofing	[*]	[*]	[*]					[*]	[*]	[*]
910	Caulking	[*]							[*]		[*]
100	Metal Doors & Frames	[*]	[*]				[*]		[*]		[*]
311	Overhead Doors	[*]	[*]				[*]		[*]		[*]
400	Entrances & Storefronts	[*]							[*]		[*]
801	Skylights	[*]	[*]						[*]		[*]
200	Hardware	[*]	[*]				[*]		[*]		[*]
800	Glazing (Incls FR sliding window)	[*]	[*]						[*]		[*]
900	Curtainwall									[*]	[*]
250	Gypsum Wallboard (Incls ACT.)	[*]	[*]		[*]		[*]		[*]	[*]	[*]
300	Ceramic Tile	[*]			[*]				[*]		[*]
550	Wood Flooring	[*]			[*]				[*]	[*]	[*]
650	Resilient Floorings	[*]							[*]		[*]
900	Intumescent/Painting	[*]		[*]	[*]		[*]		[*]	[*]	[*]
000	Specialties (Incls plastic wall guards, lockers, F.E. cabinets, wire mesh part, load dock equip, & floor mats)	[*]					[*]		[*]		[*]
160	Toilet Partitions	[*]							[*]		[*]
290	Bird Deterrent Sys	[*]					[*]		[*]		[*]
404	Building Signage	[*]					[*]		[*]		[*]
800	Toilet Accessories	[*]	[*]						[*]		[*]
200	Louvers	[*]							[*]	[*]	[*]
012	Façade Maintenance Equipment	[*]			[*]				[*]	[*]	[*]
200	Elevators	[*]	[*]						[*]		[*]
050	H.V.A.C. (Incls piping, sheetmetal, equipment)	[*]	[*]		[*]		[*]		[*]	[*]	[*]
400	Plumbing	[*]	[*]				[*]		[*]	[*]	[*]
500	Fire Protection	[*]	[*]						[*]		[*]
900	Controls & Instrumentation	[*]	[*]						[*]	[*]	[*]
000	Electrical	[*]	[*]	[*]			[*]		[*]	[*]	[*]
800	Security Systems (Incls turnstiles)	[*]							[*]		[*]
000	Contingency									[*]	[*]
000	Fee									[*]	[*]
300	Bond Costs									[*]	[*]
		[*]	[*]	[*]	[*]	[*]	[*]		[*]		[*]
									[*]
							Total GMP w/Bonds =		352,719,873
							Total GMP w/o Bonds =		[*]

EXHIBIT T
Hoisting and Logistics Plan

EXHIBIT U

Allowances

The amounts included as allowances are estimates. To the extent the actual cost differs from the allowance value, the GMP will be either increased or decreased to reflect the difference. The following is the list of allowances included in the GMP:

1.  Storefront Allowance of $[*]includes complete ground floor exterior glass storefront system including doors at perimeter of building (Note that cladding on hollow metal doors at the perimeter is in the Curtain Wall Contractor’s scope.); ground floor exterior wall system including doors at garden courtyard (Note that floors 2 through 4 of the garden courtyard are included in the Curtain Wall Scope.); interior glazing system that separates retail areas from lobby and Times Center auditorium from the lobby; all ground floor entrance doors and vestibules; glass canopies, including heat tracing located at approximately elevation +16-0" as shown, for example, on sheets A-5702 and A-5703 (Note that structural steel supporting the canopies is included in the allowance); retail awnings located at approximately elevation +12-0" as shown, for example, in section on sheet A-5502, retail signage support steel, canopy drain leaders, and all other associated exposed steel elements.

2.  Security System Allowance of $[*]includes equipment, cabling, installation, terminations, supervision, engineering, programming, and training for the Security System as outlined in the specifications.

3.  Lobby Turnstile Allowance of $[*]includes cost to furnish and install lobby turnstiles. Not included in the allowance is the cladding, which is included in the GMP under the millwork and/or ornamental metals scope of work.

4.  Con Ed Vault Reconstruction allowance of $[*]includes structural changes required by Con Ed to reinforce the existing vaults at the north and south loading dock entrances. Not included in the allowance is the replacement of the grating which is included in the GMP as per the plans and specifications.

EXHIBIT V

Guarantee

Exhibit V

GUARANTEE OF PERFORMANCE

THIS GUARANTEE OF PERFORMANCE (“Guarantee”) is made and entered into as of the 5 February 2004, by AMEC p.l.c. (“Guarantor”) for the benefit of The New York Times Building, LLC and its successors and assigns (collectively “Beneficiary”).

WHEREAS, Beneficiary has entered into that certain Construction Management Agreement dated as of 22January 2004 (“the Agreement”) by and between Beneficiary as Owner, and AMEC Construction Management, Inc. (“AMEC CM”), a wholly-owned subsidiary of Guarantor, for the construction of a building of approximately 1,540,000 gross square feet on a site located on Eighth Avenue between 40^th and 41^st Street in New York, NY (“the Project”), which Agreement is by reference made a part hereof as though set forth in full.

NOW THEREFORE, in consideration of Beneficiary’s entering into the Agreement with AMEC CM:

1.Guarantor hereby guarantees to Beneficiary that AMEC CM shall promptly, faithfully and fully complete the Project and the Agreement in accordance with its terms and conditions.

2.The Guarantee shall be a continuing guarantee and is to be irrevocable and to remain in full force and effect as long as AMEC CM or its successors or assigns shall be obligated to Beneficiary under the terms of or as a consequence of the Agreement, subject to Section 3.

3.This Guarantee shall be effective and binding on Guarantor as stated herein, notwithstanding any bankruptcy, rejection of Agreement in bankruptcy, insolvency or other legal disability (whether voluntary or involuntary) of AMEC CM or any of its successors or assigns; the judgment of any court or the award of any arbitration panel having jurisdiction over AMEC CM or any of its successors or assigns; any limitation or modification of the liability of AMEC CM pursuant to the operation of any present or future federal or state statute or rule with respect to bankruptcy, insolvency or similar statutes; the dissolution of AMEC CM; and/or any modification of the Agreement agreed to by Beneficiary and AMEC CM.

4.If AMEC CM fully performs the Agreement, Guarantor shall have no obligation under this Guarantee.

5.If AMEC CM fails to perform under the Agreement, and the default has not yet been: (1) remedied by AMEC CM; or (2) waived in writing by Beneficiary, then Guarantor’s obligation under this Guarantee shall arise after:

5.1Beneficiary has sent a written notice (“First Notice”) to AMEC CM and Guarantor, at the addresses described in Section 11, stating that Beneficiary believes AMEC CM has failed to perform in accordance with the terms and conditions of the Agreement (an “AMEC CM Default”), and Beneficiary has made reasonable efforts to arrange a conference with AMEC CM and Guarantor, to be held not later than twenty (20) days after the date of the First Notice, to discuss a plan for curing the AMEC CM Default. If Beneficiary, AMEC CM and Guarantor agree upon a plan at such conference, AMEC CM shall be allowed a reasonable time to cure the AMEC CM Default in a manner satisfactory to Beneficiary; provided, however, that no agreement on the part of Beneficiary or any attempt by AMEC CM to cure or commence a cure of the AMEC CM Default shall constitute a waiver of Beneficiary’s right to subsequently terminate AMEC CM for default; and

5.2Beneficiary has declared an AMEC CM Default under Section 5.1, and, if the AMEC CM Default has not been cured, formally terminated AMEC CM’s right to

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complete the Agreement. Such a formal termination shall not be declared earlier than twenty (20) days after the First Notice as set forth in Section 5.1; and

5.3Beneficiary has agreed to pay the Balance of the Contract Price (as defined in Section 5.4) to Guarantor, in accordance with the terms of the Agreement, or directly to a contractor selected by Guarantor pursuant to Section 6.3 to perform the balance of work under the Agreement in accordance with its terms.

5.4For the purposes of this Guarantee, the phrase “the Balance of the Contract Price” shall mean the total amount payable by Beneficiary to AMEC CM under the Agreement after all proper adjustments have been made, including: (1) the deduction of all payments previously made by Beneficiary to AMEC CM for work properly performed; (2) the deduction of Additional Costs (as defined in Section 5.5) incurred by Beneficiary as a result of the AMEC CM Default; and (3) the addition of any insurance proceeds or other amounts received by Beneficiary in settlement of insurance or other claims to which AMEC CM would otherwise be entitled.

5.5For the purposes of this Guarantee, the phrase “Additional Costs” shall mean:

5.5.1Any additional legal and/or design professional fees resulting from the AMEC CM Default, and/or from the failure of Guarantor to act as set forth in Sections 6.1 through 6.4, and/or from the denial of liability by Guarantor as set forth in Section 6.5 if such denial is found to be invalid; and

5.5.2Direct damages incurred by Beneficiary by the delayed performance or non-performance of AMEC CM without regard to any additional cure period provided to Guarantor herein; provided, however, that Guarantor shall in no event be liable, in contract, tort or otherwise (including negligence, warranty, indemnity and strict liability), for any special, indirect or consequential damages, including specifically, but without limitation, loss of profits or revenue, loss of full or partial use of any equipment or facility, costs of capital, loss of goodwill, claims of customers, governmental entities or other third parties, or similar damages.

6.When Beneficiary has satisfied the conditions of Section 5, Guarantor shall promptly and at Guarantor’s expense take one of the following actions:

6.1Take such measures as are necessary to enable and cause AMEC CM to perform and complete the Agreement; and pay to Beneficiary the Additional Costs described in Section 5.5; or

6.2Undertake to complete performance of the Agreement itself, through its agents and/or independent subcontractors acceptable to Beneficiary; and pay to Beneficiary the Additional Costs described in Section 5.5; or

6.3Obtain bids or negotiated proposals from qualified contractors, acceptable to Beneficiary, for performance and completion of the Agreement; arrange for a contract, consistent with the terms of the Agreement, to be prepared for execution by Beneficiary and the contractor selected by Guarantor with Beneficiary’s concurrence; and pay to Beneficiary the Additional Costs described in Section 5.5 in excess of the Balance of the Contract Price incurred by Beneficiary resulting from the AMEC CM Default; or

6.4Waive its rights to: (1) have AMEC CM perform and complete the Agreement; (2) arrange for completion through Guarantor’s agent or independent subcontractors;

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or (3) obtain a new contractor to complete the Agreement with reasonable promptness under the circumstances. Upon receipt of cost information from Beneficiary, promptly tender partial payments therefore to Beneficiary.  After investigation, determine the costs to complete the Project in excess of the Balance of the Contract Price and the Additional Costs for which Guarantor is liable to Beneficiary and, promptly tender payment therefore to Beneficiary. Notwithstanding acceptance of such payment, Beneficiary may dispute the amount of the payment; or

6.5Deny liability, in whole or in part, and notify Beneficiary citing reasons therefor.

7.If Guarantor does not proceed as provided in Section 6 with reasonable promptness, Guarantor shall be deemed to be in default of this Guarantee twenty (20) days after receipt of an additional notice (“Second Notice”) from Beneficiary demanding that Guarantor perform its obligations under this Guarantee, and Beneficiary shall thereafter be entitled to enforce this Guarantee by using any legal remedy available to Beneficiary. If Guarantor has denied liability as set forth in Section 6.5, in whole or in part, then Beneficiary shall be entitled to enforce any remedy available to Beneficiary without the requirement for a Second Notice.

8.After Beneficiary has terminated AMEC CM’s right to complete the Agreement, and if Guarantor elects to act under Sections 6.1, 6.2 or 6.3 above, then the responsibilities of Guarantor to Beneficiary shall not be greater than those of AMEC CM to Beneficiary under the Agreement, and the responsibilities of Beneficiary to Guarantor shall not be greater than those of Beneficiary to AMEC CM under the Agreement.

9.Guarantor shall not be liable to Beneficiary for obligations of AMEC CM that are unrelated to the Project covered by the Agreement, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Guarantee to any person or entity other than Beneficiary, its successors, assigns and legal representatives.

10.Any proceeding under this Guarantee may only be instituted in any court of competent jurisdiction in the State of New York, and Guarantor hereby submits to the jurisdiction of the courts of New York and waives any objection based on venue or forum non convenience or objection to New York choice of law. Any such action shall be instituted within two (2) years after Guarantor refuses or fails to perform its obligations under this Guarantee. If the provisions of this Section are void or prohibited by law, the applicable limitation period shall be the minimum period of limitation available to guarantors as a defense in the State of New York.

11.Notices to Guarantor, Beneficiary, and AMEC CM shall be faxed, mailed or hand-delivered to the following addresses:

To Guarantor:	Group Secretary AMEC p.l.c. Sandiway House Hartford, Northwich, Cheshire United Kingdom CWB 2YA Telecopier No: 011-44-606-883996
To Beneficiary:	The New York Times Building, LLC C/o The New York Times Co. 239 West 43rd Street New York, NY 10036 Att’n David Thurm Telecopier No: 212-

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And:	The New York Times Building, LLC C/o FC 41st Street Associates, LLC One Metrotech Center North Brooklyn, NY 11201 Att’n David Berliner Telecopier No: 718-923-8705
To AMEC CM:	AMEC Construction Management, Inc. 1633 Broadway 24th Floor, New York, New York 10019
with a copy to	John Babieracki Executive Vice-President & Chief Operating Officer AMEC Construction Management, Inc. 1633 Broadway, 24th Floor New York, NY 10019 Telecopier No:

Beneficiary shall send Guarantor a copy of any Notice of default that Beneficiary gives to AMEC CM.

12.Guarantor’s liability under this Guarantee in respect of all claims in the aggregate hereunder shall be limited to and shall not exceed the liability of AMEC CM pursuant to the Agreement and this Guarantee. Further, it shall be a precondition to the establishment of any liability on the part of Guarantor that Beneficiary shall have complied with the specific requirement for the Beneficiary to provide sufficient Project financing to compensate AMEC CM or the Guarantor for the balance of the scope of work under the Agreement.

13.This Guarantee and all rights and obligations hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to contracts made and performed in New York regardless of its or any other jurisdiction’s choice of law principles.

IN WITNESS WHEREOF, Guarantor has duly executed and delivered this Guarantee as of the date first above written.

ATTEST:		AMEC p.l.c. (“Guarantor”)
By:	/s/ Fiona Lockcroft	By:	/s/ Peter James Holland
Name:	Fiona Lockcroft	Name:	Peter James Holland
Title:	Secretariat Administrator	Title:	Company Secretary - Administration Director

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EX-10.6

Exhibit 10.6

THE NEW YORK TIMES COMPANY

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

Effective January 1, 1983,

Amended and Restated Effective February 19, 1987
Amended May 5, 1989

Amended and Restated Effective January 1, 1993

Amended and Restated Effective January 1, 2004

THE NEW YORK TIMES COMPANY

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

PURPOSE

The Supplemental Executive Retirement Plan is designed to provide a benefit which, when added to the retirement income provided under other Company plans, will ensure the payment of a competitive level of retirement income to key senior executives of The New York Times Company, thereby providing an additional incentive for assuring orderly management succession. Eligibility for participation in the Plan shall be limited to executives designated by the Executive Committee. This Plan become effective on January 1, 1983, and shall be effective as to each Participant on the date he or she is designated as such hereunder.

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SECTION I

DEFINITIONS

1.1.“Basic Plan” means the qualified defined benefit pension plan to which the Company makes or has made contributions on behalf of a designated Participant (including, but not limited to The New York Times Companies Pension Plan, The Guild-Times Pension Plan, The New York Times Company Retirement Annuity Plan (non-contributory portion)) and any excess benefit plan (within the meaning of Section 3(36) of the Employee Retirement Income Security Act of 1974) pursuant to which the Company makes payments to or on behalf of a designated Participant.

1.2.“Basic Plan Benefit” means the amount of benefit payable to a Participant under any Basic Plan, assuming immediate commencement of payments as of the date of Retirement, with benefits payable in the form of a straight life annuity.

1.3“Child” means a natural or legally adopted child of a Participant and his/her Surviving Spouse.

1.4“Company” means The New York Times Company and its subsidiaries and affiliates.

1.5“Dependent Child” means any unmarried Child who resides with a Participant or a Surviving Spouse at the time of Participant’s or the Surviving Spouse’s death, as applicable.

1.6“Executive Committee” or “Committee” means a committee consisting of the Chairman and the President of The New York Times Company.

1.7“Final Average Earnings” means effective April 1, 2000,the average of the highest consecutive sixty (60) months of Earnings out of the last one hundred twenty

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(120) months preceding the date on which the Participant retires or terminates employment multiplied by twelve (12). “Earnings” for any calendar year shall include the Participant’s base salary, annual cash bonuses and sales commissions paid during such year, and shall exclude any other compensation (such as deferred incentive compensation under the Long-Range Incentive Plan, retirement units, performance awards under the Executive Incentive Award Plan and stock options under the 1974 Incentive Stock Option Plan, the Employee Stock Purchase Plan and any successor plans) and any contributions to or benefits under this Plan or any other pension, profit-sharing, stock bonus or other plan of deferred compensation; except that amounts deferred under a non-qualified deferred compensation plan and/or amounts which the Company contributes to a plan on behalf of the Participant pursuant to a salary reduction agreement which are not includible in the Participant’s gross income under Section 125, 402(e)(3), 492(h) or 403(b) of the Code shall be included.

1.8“Key Executive Position” means a position so designated by the Committee.

1.9“Participant” means a key senior executive of the Company who has been designated as a Participant by the Committee. An executive shall become a Participant in the Plans as of the date he or she is individually selected by, and specifically named by the Committee for inclusion in the Plan. If a participant is reclassified to a responsibility that is not a Key Executive Position, the Participant’s continuing eligibility will be subject to the approval of the Committee.

1.10“Plan” means The New York Times Company Supplemental Executive Retirement Plan.

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1.11“Retirement” means the termination of a Participant’s employment with the Company on one of the retirement dates specified in Section 2.1.

1.12“Service” means the Participant’s service for vesting purposes as defined in the Basic Plan, up to a maximum of twenty (20) years, and shall include any additional service credit in specific situations as may be authorized by the Committee. Additionally, service shall include any credits for service pursuant to a buyout plan or agreement accepted by a Participant.

1.13“Surviving Spouse” means the Participant’s spouse who qualifies for a surviving spouse’s benefit under the Basic Plan in the event of a Participant’s death before retirement.

1.14The masculine gender, where appearing in the Plan, will be deemed to include the feminine gender, and the singular may include the plural, unless the context clearly indicates the contrary.

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SECTION II

ELIGIBILITY FOR BENEFITS

2.1.Each Participant with ten (10) or more years of Service shall be eligible to retire and receive a benefit under this Plan beginning on one of the following dates:

(a)  “Normal Retirement Date,” which is the first day of the month following the month in which the Participant reaches age sixty-five (65).

(b)  “Early Retirement Date,” which is the first day of any month following (i) the Participant’s sixtieth (60th) birthday when an election to retire has been made in accordance with Section 4.1(a), or (ii) if the Committee consents to the Participant’s early retirement, the Participant’s fifty-fifth (55th) birthday.

(c)  “Postponed Retirement Date,” which in the case of a Participant who terminates his employment with the Company after his Normal Retirement Date, is the first day of the month next following the month in which the Participant terminates employment with the Company.

2.2.For purposes of determining a Participant’s age under this plan and retirement dates thereunder, the age of a Participant shall include any age credit pursuant to a buyout plan or agreement accepted by a Participant.

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SECTION III

AMOUNT OF AND FORM RETIREMENT BENEFIT

3.1.The annual retirement benefit payable at Normal Retirement Date under the Plan shall equal the excess, if any, of (a) fifty percent (50)% of the Final Average Earnings (prorated at two and one-half percent (2.5%) times Final Average Earnings times years of Service for Service of less than twenty (20) years) over (b) the sum of the Basic Plan Benefits payable as of the Participant’s Normal Retirement Date.

3.2.The annual benefit payable at an Early Retirement Date shall equal the benefit determined using the formula in Section 3.1, reduced by four percent (4%) for each year (one-third (1/3) of one percent (1%) for each month) benefits commenced prior to age sixty (60), less the sum of the annual Basic Plan Benefits payable as of the Participant’s Early Retirement Date.

3.3.The annual benefit payable at a Postponed Retirement Date shall be equal to the benefit determined in accordance with Section 3.1 based on the Participant’s Service and Final Average Earnings as of the Participant’s Normal Retirement Date.

3.4.Retirement Benefits payable under this Plan shall be payable at the same time and in the same manner as benefits under the Basic Plan (except the Level Income options), unless otherwise determined by the Company. Once in pay status, a Participant may not change the form of benefit payable under the Plan.

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SECTION IV

PAYMENT OF RETIREMENT BENEFITS

4.1.(a)  A Participant with ten (10) or more years of Service who is age sixty (60) or older, may elect to retire under the Plan by giving a minimum of six months’ notice to the Committee (unless such notice is waived by the Committee).

(b)A Participant with ten (10) or more years of Service who is not eligible for early retirement under Section 4.1(a) may request retirement under this Plan as of the first of any month between the ages of fifty-five (55) and sixty (60), but such request shall be subject to the approval of the Committee which may approve or deny the request based on the needs of the Company.  If the request is denied, the Committee and the Participant will defer such Retirement under this Plan for a mutually agreed upon period time. This will not preclude the right of the Participant to retire under the Basic Plan, in which case the Participant will not be entitled to any benefit hereunder.

4.2.Benefits payable in accordance with Section III will commence on the Participant’s date of Retirement under Section 2.1. Plan payments must begin immediately upon Retirement and may not be deferred. Benefits will continue to be paid on the first day of each succeeding month. The last payment will be on the first day of the month in which the retired Participant dies unless an optional form of benefit was elected in accordance with Section 3.4.

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SECTION V

DEATH BENEFITS

5.1.(a)If a Participant dies while actively employed by the Company or while receiving Long-Term Disability benefits from the Company and (i) a Surviving Spouse is eligible to receive benefits under the provisions of a Basic Plan and (ii) the Participant had ten (10) or more years of Service and (iii) the Participant’s age plus Service equaled or exceeded sixty-five (65), the Surviving Spouse shall be entitled to receive an annual benefit commencing as of the month following the month in which the Participant’s death occurs in an amount equal to fifty percent (50%) of the amount of the Participant’s accrued benefit as of his date of death determined in accordance with Section III in which case the sum of the Basic Plan Benefits actually payable as of each respective benefit payment date hereunder shall be substituted for the sum of the Basic Plan Benefits payable as of the Participant’s Normal Retirement Date. The reduction described in Section 3.2 for the early payment of benefits shall not apply to this benefit.

(b)If there is no Surviving Spouse, but there are dependent children under age twenty-three (23), or if the Surviving Spouse dies while there are dependent children under age twenty-three (23), the Surviving Spouse’s benefits will be shared equally by each such child until he or she reaches the age of twenty-three (23).

5.2.The Surviving Spouse’s benefit will be payable monthly, and will commence on the first day of the month following the month in which the Participant dies. The last payment will be made on the first day of the month in which the Surviving Spouse dies, or, where Section 5.1(b) applies, the date a dependent child reaches age twenty-three (23) or dies.

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SECTION VI

FORFEITURE OF BENEFIT

Notwithstanding any other provision of this Plan, if at any time during which a Participant is entitled to receive payments under the Plan, the Participant elects to engage in any business or practice or become employed in any position, which the Committee, in its sole discretion, deems to be in competition with the Company or any of its business or interests, or which is deemed by the Committee, in its sole discretion, to be otherwise prejudicial to any of its interests, or such Participant fails to make himself available to the Company for reasonable consultation and other services, the Committee, in its sole discretion, may cause the Participant’s entire interest in benefits otherwise payable under the Plan to be forfeited and discontinued, or may cause the Participant’s payments of benefits under the Plan to be limited or suspended until such Participant is no longer engaging in the conduct above or for such other period the Committee finds advisable under the circumstances, or may take any other action the Committee, in its sole discretion, deems appropriate. The decision of the Committee shall be final. The omission or failure of the Committee to exercise this right at any time shall not be deemed a waiver of its right to exercise such right in the future. The exercise of discretion will not create a precedent in any future cases.

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SECTION VII

MISCELLANEOUS

7.1This Plan shall be binding on the Company and its successors and assigns. In furtherance of the foregoing, the Company may assign its obligations to make payments under this Plan to any successor to all or substantially all of the Company’s business.

7.2.The Committee may, in its sole discretion, terminate, suspend or amend this Plan at any time or from time to time, in whole or in part. However, no amendment or suspension of the Plan will affect a retired Participant’s right or the right of a Surviving Spouse or other beneficiary to continue to receive a benefit in accordance with this Plan as in effect on the date such Participant commenced to receive a benefit under this Plan.

7.3.Nothing contained herein will confer upon any Participant or other employee the right to be retained in the service of the Company nor will it interfere with the right of the Company to discharge or otherwise deal with Participants and other employees without regard to the existence of this Plan.

7.4.This Plan is intended to meet the Employee Retirement Income Security Act’s definition of “an unfunded plan for management or other highly compensated individuals” and, as such, the Company will make Plan benefit payments solely on a current disbursement basis out of general assets of the Company.

7.5.To the maximum extent permitted by law, no benefit under this Plan will be assignable or subject in any manner to alienation, sale, transfer, claims of creditors, pledge, attachment or encumbrances of any kind.

7.6.The Committee may adopt rules and regulations and hire an individual or an entity to assist it in the administration of the Plan.

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7.7.This Plan is established under and will be construed according to the laws of the State of New York.

7.8.Claims. If any Participant, beneficiary or other properly interested party is in disagreement with any determination that has been made under the Plan, a claim may be presented, but only in accordance with the procedures set forth herein.

(a)Original Claim. Any Participant, beneficiary or other properly interested party may, if he/she so desires, file with the Committee a written claim for benefits or a determination under the Plan. Within ninety (90) days after the filing of such a claim, the Committee shall notify the claimant in writing whether the claim is upheld or denied in whole or in part or shall furnish the claimant a written notice describing specific special circumstances requiring a specified amount of additional time (but not more than one hundred eighty (180) days from the date the claim was filed) to reach a decision in the claim. If the claim is denied in whole or in part, the Committee shall state in writing:

(i)the reasons for the denial;

(ii)the references to the pertinent provisions of this Plan on which the denial is based;

(iii)a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and

(iv)an explanation of the claims review procedure set forth in this section.

(b)Claim Review Procedure. Within sixty (60) days after receipt of notice that a claim has been denied in whole or in part, the claimant may file with

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the Committee a written request for a review and may, in conjunction therewith, submit written issues and comments. Within sixty (60) days after the filing of such a request for review, the Committee shall notify the claimant in writing whether, upon review, the claim was upheld or denied in whole or in part or shall furnish the claimant a written notice describing specific special circumstances requiring a specified amount of additional time (but not more than one hundred twenty (120) days from the date the request for review was filed) to reach a decision on the request for review.

(c)General Rules.

(i)No inquiry or question shall be deemed to be a claim or a request for a review of a denied claim unless made in accordance with the foregoing claims procedure. The Committee may require that any claim for benefits and any request for a review of denied claim be filed on forms to be furnished by the Committee upon request.

(ii)All decisions on claims and on requests for a review of denied claims shall be made by the Committee. The decisions of the Committee shall be final, binding and conclusive upon all persons.

(iii)The decision of the Committee on a claim and on a request for a review of a denied claim shall be served on the claimant in writing. If a decision or notice is not received by a claimant within the time specified, the claim or request for a review of a denied claim shall be deemed to have been denied.

(iv)Prior to filing a claim or a request for a review of a denied claim, the claimant or the claimant’s representative shall have a reasonable opportunity to review a copy of this Plan and all other pertinent documents in the possession of the Company and the Committee.

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(v)The individuals serving on the Committee shall, except as prohibited by law, be indemnified and held harmless by the employer from any and all liabilities, costs, and expenses (including legal fees), to the extent not covered by liability insurance arising out of any action taken by any individual of this Committee with respect to this Plan, unless such liability arises from the individual’s claim for such individual’s own benefit, the proven gross negligence, bad faith, or (if the individual had reasonable cause to believe such conduct was unlawful) the criminal conduct of such individual. This indemnification shall continue as to an individual who has ceased to be a member of the Committee for the employer and shall enure to the benefit of the heirs, executors and administrators of such an individual.

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APPENDIX I

Everything in this Plan to the contrary notwithstanding, the following Participants shall have benefits under this Plan as provided in their respective agreements with the Company as follows:

1.Lance R. Primis: as per his agreement with the Company dated December 4, 1996.

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EX-12

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Exhibit 12

THE NEW YORK TIMES COMPANY
Ratio of Earnings to Fixed Charges
(Dollars in thousands, except ratios)
(Unaudited)

			For the Years Ended
(In thousands, except ratio)	For the Six Months Ended June 27, 2004		December 28, 2003		December 29, 2002		December 30, 2001		December 31, 2000		December 26, 1999
Earnings from continuing operations before fixed charges
Income before income taxes, minority interest and income/loss from joint ventures	$	222,746	$	508,070	$	504,433	$	332,204	$	637,830	$	501,912
Distributed earnings from less than fifty-percent owned affiliates		5,000		9,299		6,459		14,859		19,375		13,061
Adjusted pre-tax earnings from continuing operations		227,746		517,369		510,892		347,063		657,205		514,973
Fixed charges less capitalized interest		26,667		57,752		60,023		64,069		80,876		63,313
Earnings from continuing operations before fixed charges	$	254,413	$	575,121	$	570,915	$	411,132	$	738,081	$	578,286
Fixed charges
Interest expense, net of capitalized interest	$	21,270	$	46,704	$	48,697	$	51,405	$	68,566	$	52,503
Capitalized interest		3,168		4,501		1,662		459		—		—
Portion of rentals representative of interest factor		5,397		11,048		11,326		12,664		12,310		10,810
Total fixed charges	$	29,835	$	62,253	$	61,685	$	64,528	$	80,876	$	63,313
Ratio of earnings to fixed charges		8.53		9.24		9.26		6.37		9.13		9.13

Note: The Ratio of Earnings to Fixed Charges should be read in conjunction with this Quarterly Report on Form 10-Q, as well as the Company's Annual Report on Form 10-K for the year ended December 28, 2003.

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THE NEW YORK TIMES COMPANY Ratio of Earnings to Fixed Charges (Dollars in thousands, except ratios) (Unaudited)

EX-31.1

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Exhibit 31.1

Rule 13a–14(a)/15d–14(a) Certification

I, Russell T. Lewis, certify that:

1.

I have reviewed this quarterly report on Form 10-Q of The New York Times Company;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–15(e) and 15d–15(e)) for the registrant and have:

a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)

[omitted];

c)

Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)

Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.

The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: August 5, 2004 /s/  RUSSELL T. LEWIS Russell T. Lewis
Chief Executive Officer

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Rule 13a–14(a)/15d–14(a) Certification

EX-31.2

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Exhibit 31.2

Rule 13a–14(a)/15d–14(a) Certification

I, Leonard P. Forman, certify that:

1.

I have reviewed this quarterly report on Form 10-Q of The New York Times Company;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–15(e) and 15d–15(e)) for the registrant and have:

a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)

[omitted];

c)

Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)

Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.

The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: August 5, 2004 /s/  LEONARD P. FORMAN Leonard P. Forman
Chief Financial Officer

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Rule 13a–14(a)/15d–14(a) Certification

EX-32.1

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Exhibit 32.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADDED BY
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

        In connection with the Quarterly Report of The New York Times Company (the "Company") on Form 10-Q for the period ending June 27, 2004 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Russell T. Lewis, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as added by § 906 of the Sarbanes-Oxley Act of 2002, that, based on my knowledge:

        (1)   The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

        (2)   The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

August 5, 2004 /s/  RUSSELL T. LEWIS Russell T. Lewis
Chief Executive Officer

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CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADDED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

EX-32.2

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Exhibit 32.2

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADDED BY
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

        In connection with the Quarterly Report of The New York Times Company (the "Company") on Form 10-Q for the period ending June 27, 2004 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Leonard P. Forman, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as added by § 906 of the Sarbanes-Oxley Act of 2002, that, based on my knowledge:

        (1)   The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

        (2)   The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

August 5, 2004 /s/  LEONARD P. FORMAN Leonard P. Forman
Chief Financial Officer

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CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADDED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002