A TLANTIC YARDS - CITY PARTICIPATION AGREEMENT

This ATLANTIC YARDS - CITY PARTICIPATION AGREEMENT (together with all
Exhibits attached hereto, this "Agreement") is made as of March 4, 2010, by and among Atlantic
. Yards Development Company, LLC, a Delaware limited liability company ("AYDC"), The City
of New York (the "City") and each Affiliate of AYDC that executes a Joinder pursuant to
Section 2 hereof (each, a Site Owner").
.
RECITALS

WHEREAS, the New York State Urban Development Corporation d/b/a the Empire State
Development Corporation ("ESDC") has adopted that certain Modified General Project Plan,
dated as of June 23, 2009 (the "MGPP") for the Atlantic Yards Land Use Improvement and
Civic Project (the "Project") in accordance with the New York State Urban Development
Corporation Act;
WHEREAS, portions of the Project are being undertaken by ESDC, the New York -City
Economic Development Corporation, the AYDC and its Affiliates;
WHEREAS, pursuant to the MGPP, the ESDC shall condemn certain City Properties;
WHEREAS, the City and the ESDC have entered into that certain Land Acquisition
Agreement, dated as of November 23,2009;
WHEREAS, as of the date hereof, ESDC and AYDC Interim Developer, LLC, a
Delaware limited liability company ("Interim Developer") have entered into certain leases (each,
an "Interim Lease") whereby: (i) ESDC presently leases certain real property (including the City
Properties) to Interim Developer pending the creation of certain development sites from such real
property (each, a "Development Site"); and (ii) the ESDC and the · Interim Developer
contemplate and provide that ESDC and the Site Owners will enter into certain development
leases with respect to such Development Sites (each, a "Development Lease");
WHEREAS, pursuant to each Development Lease: (i) the Site Owner shall develop a
portion of the Project on the applicable Development Site; and (ii) upon the expiration thereof,
the ESDC shall convey its fee interest in the Development Site to the Site Owner;
WHEREAS, by virtue of the Interim Leases and the Development Leases (collectively,
the ESDC Leases") the Site Owners will benefit from: (i) the contributed value of the City
Properties; and (ii) the ESDC's tax exempt status; and
WHEREAS, the parties have agreed that, as compensation for the taking of the City
Properties, the City shall be entitled to receive certain City Participation Payments with respect
to the Participating Sites.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which the parties hereby acknowledge, the City and AYDC agree as follows.
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 1.

Definition of Participating Sites and Expiration Date; Termination.

(a) "Participating Site" means any Development Site other than an Exempt
Site. An "Exempt Site" is any Development Site that either: (i) is the Arena Parcel (as
defined in that certain Agreement of Arena Lease to be entered into between Brooklyn
Area Local Development Corporation and Brooklyn Events Center, LLC); (ii) contains
any residential building (other than a building that participates in the so-called 80-20
program) containing a number of affordable housing units (as such term is used in the
MGPP) that is more than twenty-one percent (21 %) of the total number of housing units
in such building; or (iii) is otherwise so designated by the City.
(b) "Expiration Date" means, with respect to all or any portion of any
Participating Site, the earliest of: (i) the date on which such Participating Site's
Outstanding City Balance is reduced to zero; (ii) the date on which all or such portion of
the Participating Site has been Transferred; (iii) the date on which such Participating Site
becomes an Exempt Site; or (iv) the fifteenth (I 5 th ) anniversary of the Participating Site's
Substantial Completion Date. For the avoidance of doubt, in the case ofa Transfer of a
portion of a Participating Site (but not all of the Participating Site), the Expiration Date
shall not be deemed to have occurred with respect to all other portions of the
Participating Site which have not been so Transferred. If no Construction
Commencement Date has occurred by the fifteenth (15 th ) anniversary of the Project
Effective Date (as defined in that certain Development Agreement to be entered into by
and among the ESDC, AYDC and Brooklyn Arena, LLC), then the Expiration Date shall
be deemed to have occurred with respect to all Participating Sites as of the fifteenth (15 th )
anniversary of the Project Effective Date. If, at any time, no Construction
Commencement Date shall have occurred within fifteen (15) years since the last
Substantial Completion Date that has occurred, then the Expiration Date shall be deemed
to have occurred with respect to all Participating Sites on the fifteenth (I 5th ) anniversary
of the last Substantial Completion Date that has occurred.
(c) This Agreement shall commence on the date hereof and shall terminate,
with respect to all (or any portion, if applicable) of each Participating Site, and with
respect to all parties bound by this Agreement with respect to such Participating Site or
portion thereof, on the applicable Expiration Date. When this Agreement is so
terminated, the relevant Site Owner shall have no further obligations hereunder. Upon
the Expiration Date with respect to all Participating Sites, this Agreement shall terminate.
A Site Owner may elect at any time to terminate this Agreement with respectto any
Participating Site by paying to the City an amount equal to the Participating Site's
Outstanding City Balance as of such time.
2.

Joinder of Site Owners; Recording of Memoranda.
(a) If any Affiliate of AYDC executes a Development Lease, then upon
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 such execution, AYDC shall cause such Affiliate to execute a joinder to this Agreement,
the form of which is attached hereto as Exhibit G (a "Joinder"). Upon such Affiliate's
execution of a Joinder, such Affiliate shall be deemed a "Site Owner" and party to this
Agreement and in this Agreement. The
Agreement on the terms set forth in the
obligations of each Site Owner that becomes a party to this Agreement shall be several
and not joint with any other Site Owner or AYDC, and, in furtherance of the foregoing,
the City acknowledges and agrees that no Site Owner who becomes a party to this
Agreement shall be liable for any obligation of any other Site Owner or AYDC under this
Agreement. Without limiting the foregoing, each Site Owner is responsible under this
Agreement only for obligations that relate to the Participating Site owned by such Site
Owner.
(b) Upon each Site Owner's execution of a Joinder, the Site Owner shall
execute and acknowledge a short-form memorandum of this Agreement substantially in
the form attached hereto as Exhibit E (a "Memorandum") that the City may record
against the Site Owner's Participating Site in the Office of the City Register, Kings
County, New York (the "Register's Office"). The costs, ifany, of recording any
Memorandum shall be borne by the relevant Site Owner. The failure to record any
Memorandum shall not affect or impair the validity or effectiveness of this Agreement.
(c) As a condition precedent to any Site Owner's obligation to execute a
Memorandum, the City shall execute a release of said Memorandum the form of which is
attached as Exhibit F (a "Release") which Release shall be held in escrow by a reputable
title company reasonably selected by the Site Owner (the "Escrow Agent"), at no cost or
expense of the City, until the Escrow Agent may release the Release from escrow and
record the same in the Register's Office in accordance with this Section 2(c). On or after
the Expiration Date with respect to its Participating Site, the Site Owner may send to the
Escrow Agent a written acknowledgment that such Expiration Date has occurred (an
"Expiration Date Acknowledgment"). A copy of such Expiration Date Acknowledgment
shall be sent to the City, and if the City believes that the Expiration Date has not
occurred, 'the City may, within twenty (20) business days after receiving said copy,
deliver to the Escrow Agent and to such Site Owner a written notice stating such belief
(an "Objection Notice"). If (i) the Escrow Agent or Site Owner does not receive an
Objection Notice from the City within ten (10) business days after receiving an
Expiration Date Acknowledgment from a Site Owner, then the Site Owner may send a
second acknowledgment to the Escrow Agent and the City that the Expiration Date has
occurred with respect to such Participating Site (a "Second Expiration Date
Acknowledgment"). Such Second Expiration Date Acknowledgment shall contain a
legend in not less than 14 point font bold upper case letters as follows: "THIS IS A
TIME SENSITIVE ACKNOWLEDGMENT AND, PURSUANT TO SECTION 2(e)
OF THE MASTER PARTICIPATION AGREEMENT, THE CITY SHALL NOT
BE ENTITLED TO RESPOND TO THIS ACKNOWLEDGMENT AFTER THE
DATE WHICH IS TEN (10) BUSINESS DAYS FOLLOWING THE DATE
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 HEREOF. IF THE CITY DOES NOT SO RESPOND TO THIS
ACKNOWLEI)GMENT WITH AN OBJECTION NOTICE WITHIN SUCH TEN
(10) BUSINESS DAYS, THEN THE ESCROW AGENT SHALL BE ENTITLED
.TO RELEASE THE MEMORANDUM CURRENTLY HELD BY THE ESCROW
AGENT WITH RESPECT TO [IDENTIFY THE PARTICIPATING SITE)." If, within
ten (10) business days after the date of such Second Expiration Date Acknowledgment,
the Escrow Agent or site Owner does not receive an Objection Notice, then (i) the Site
Owner's Expiration Date acknowledgment shall be deemed conclusive and final , and (ii)
the Escrow Agent shall release the Release from escrow and record the applicable
Release in the Register's Office. If the Escrow Agent receives such a notice from the
City within ten (10) business days after receiving a Second Expiration Date
Acknowledgment from a Site Owner, then the Escrow Agent shall continue to hold the
Release in escrow pending receipt of written notice from the City instructing the Escrow
Agent to release the Release from escrow and record the same in the Register' s Office. If
there is any dispute as to whether the Expiration Date has occurred with respect to any
Participating Site, then either party may submit such dispute to be resolved by an
arbitration conducted in accordance with the Commercial Arbitration Rule (Expedited
Procedures) of the American Arbitration Association. Each party shall bear its own
costs and expenses with respect to the arbitration; provided, however, that the costs of the
arbitration shall be borne by the losing party of such arbitration. The Site Owner shall be
responsible for all recording fees, charges and taxes (if any) in connection with the
recording of such Release.
3.
Contributed City Property; Appraisals; Definitions of City Property Value
and Contributed Property Value. The MGPP provides that ESDC will condemn each of
the following which collectively shall be termed the "City Properties": (i) the
development rights reserved by the City with respect to that certain Site 5 (as portrayed
on Exhibit B-1, "Site 5") in that certain deed dated July 3, 1997 (the "Site 5 Development
Rights"); (ii) that certain lot 6 portrayed on Exhibit B-2 ("Lot 6"); (iii) that certain parcel
portrayed on Exhibit B-3 (the "FDNY Parcel"); (iv) the streets currently owned by the
City within the area portrayed.on Exhibit B-4 (the "Arena Block Streets"); and (v) the
streets currently owned by the City within the area portrayed on Exhibit B-5 (the "Block
1129 Streets"). Pursuant to the ESDC Leases; the City Properties shall be assembled on
their respective blocks which shall be subdivided into separate, individual Development
Sites. The value of the City Properties or portions thereof contributed to each
Participating Site shall be calculated in accordance with this Section 3.
(a) Subject to Sections 3(b) and K£l, as applicable: (i) separate
Condemnation Appraisals shall determine the respective "Appraised Value" of each City
Property other than the Site 5 Development Rights; and (ii) within one year after the Title
Vesting Date, the "Appraised Value" of the Site 5 Development Rights shall be
determined by an appraisal conducted by an Appraiser mutually selected by the City and
AYDC (or if the City and AYDC cannot agree on an Appraiser by the date that is ninety

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 (90) days before the tirst anniversary of the Title Vesting Date, an independent Appraiser
selected by the appraiser that conducted the Condemnation Appraisals), and such
appraisal shall be conducted in accordance with the standards set forth in Section 3(b)
with respect to Second Appraisals as if such Site 5 Development Rights were appurtenant
to a zoning lot on Site 5. As used herein, "Condemnation Appraisal" means a
condemnation appraisal which shall, with respect to each City Property, be conducted
within an ESDC condemnation proceeding. Each Appraisal to be conducted pursuant to
this Section 3(a) shall be referred to herein as a "First Appraisal". AYDC shall pay all
costs reasonably incurred in connection with each First Appraisal.
(b) If, within sixty (60) days after the later to occur of (x) receipt of the
Condemnation Appraisal for any City Property or (y) the Title Vesting Date (the
"Condemnation Appraisal Date"), either party delivers written notice to the other party
that it disagrees with the Appraised Value determined by the Condemnation Appraisal for
such City Property (a "Second Appraisal Notice"), then an Appraiser mutually selected
by the City and AYDC (or if the City and AYDC cannot agree on an Appraiser within
twenty (20) days after the delivery of the Second Appraisal Notice, an independent
Appraiser selected by the appraiser that conducted the applicable Condemnation
Appraisal) shall conduct a second appraisal (a "Second Appraisal") to determine the
applicable Appraised Value. If either party delivers a Second Appraisal Notice within
sixty (60) days of the Condemnation Appraisal Date, then a Second Appraisal shall: (i) be
completed within one (1) year after the applicable Condemnation Appraisal Date; (ii)
conclusively determine the Appraised Value of the applicable City Property; and (iii) be
conducted in accordance with the standards set forth in this Section 3(b). If neither party
delivers a Second Appraisal Notice pursuant to this Section 3(b) within thirty (30) days of
the Condemnation Appraisal Date, then either party may send to the other party a notice
(an "Appraisal Reminder Notice") reminding such other party that if such other party
fails to deliver a Second Appraisal Notice within thirty (30) days of the Appraisal
Reminder Notice, then the Appraised Value determined by the Condemnation Appraisal
shall be deemed conclusive. Each Appraisal Reminder Notice shall contain a legend in
not less than 14 point font bold upper case letters as follows: "THIS IS A TIME
SENSITIVE APPRAISAL REMINDER NOTICE WITH RESPECT TO [identify
the applicable City Property] (THE "CITY PROPERTY") AND, PURSUANT TO
SECTION 3(b) OF THE MASTER PARTICIPATION AGREEMENT, IF
. NEITHER PARTY DELIVERS A SECOND APPRAISAL NOTICE WITHIN
THIRTY (30) DAYS AFTER THE DATE HEREOF, THEN THE APPRAISED
VALUE OF SUCH CITY PROPERTY SHALL BE THE APPRAISED VALUE
DETERMINED BY THE CONDEMNATION APPRAISAL OF SUCH CITY
PROPERTY." If, within thirty (30) days after the delivery of an Appraisal Reminder
Notice, neither party delivers a Second Appraisal Notice, then the Appraised Value
determined by the Condemnation Appraisal shall be deemed conclusive. Each Second
.Appraisal shall be conducted in accordance with the following standards:

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 (1) the fair market value of each City Property shall be determined
on a "stand alone" basis;
(2) with respect to the Block 1129 Streets and the Arena Block
Streets (each, a group of City Streets) the fair market value of such City Streets shall be
determined as if the City Streets had zoning (for use and bulk) equivalent to the then
current zoning of surrounding properties;
(3) zoning and other conditions existing as of the day before the
applicable Title Vesting Date, including any encumbrances, physical conditions or other
considerations that reasonably could bear upon the fair market value of the City
Properties shall be considered;
(4) the impact that the Project or the uses described in the MGPP
could have on the applicable value shall not be considered; and
(5) the Second Appraisals shall be subject to review by each of the
City and AYDC before completion.
(c) Each appraisal conducted pursuant to this Section 3 shall be conducted
by an "Appraiser" that is a certified member of the Appraisal Institute and has at least ten
(10) years experience appraising real property in Brooklyn, New York. The First
Appraisal of the Site 5 Development Rights shall be final and conclusive. Each Second
Appraisal shall be final and conclusive. Either AYDC or the City may commence the
process to obtain a Second Appraisal. AYDC shall bear all costs reasonably incurred in
connection with any Second Appraisal, but AYDC shall be entitled to a credit for such
costs for inclusion in the "costs incurred by AYDC in connection with the appraisals" as
per Section 3(d) below.
(d) "Net Appraised Value" means, with respect to each City Property, the
Appraised Value of such City Property, minus: (i) the costs incurred by AYDC in
connection with the appraisals conducted with respect to such City Property pursuant to
this Section 3, but not including cost of the First Appraisal which shall be deemed to be a
General Acquisition Cost (as defined herein below); and (ii) with respect to the FDNY
Parcel only, the Moving Costs incurred by the AYDC (or any Affiliate thereof) in
relocating the equipment cleaning and storage facility heretofore operated by the Fire
Department of New York thereon.
(e) "City Property Value" means, with respect to each City Property, the
Net Appraised Value of such City Property, as such Net Appraised Value shall accrue
with interest compounding annually: ( i) at the Primary Accrual Rate from and after the
Title Vesting Date until the date on which a Site Owner commences construction on the
first Development Site containing such City Property (with respect to each City Property,
the "Construction Commencement Date"); and (ii) at the Regular Accrual Rate from and

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 after the Construction Commencement Date until the applicable Substantial Completion
Date.
(f) For any value that is to accrue at a rate of interest equal to, or based
upon, the Primary Accrual Rate under this Agreement, "Primary Accrual Rate" means a
percentage equal to three percent (3%) per annum.

(g) "Contributed Property Value" means: (i) with respect to the
Participating Site that contains Tower Bl, the City Property Value of Lot 6; plus (ii) with
respect to each Participating Site that is located within the area portrayed as Block 1129
on Exhibit B-5, twenty-five percent (25%) of the City Property Value of the Block 1129
Streets; and (iii) with respect to the Participating Site that contains the Site 5
Development Rights, an amount equal to the City Property Value of the Site 5
Development Rights. For the avoidance of doubt, the City Property Value of the Arena
Block Streets and the FDNY Parcel shall not be included in the Contributed Property
Value of any Participating Site.
4.
Tax Benefit Contributions. By virtue of the ESDC Leases and ESDC's taxexempt status, the Interim Developer and Site Owners will enjoy certain exemptions from
real estate taxes (and shall be required to pay under the ESDC Leases, in lieu thereof,
certain payments in lieu of taxes ("PILOTs"», and may also enjoy: (i) certain exemptions
from mortgage recording taxes (each, a "MRT Exemption"); and (ii) certain exemptions
from sales taxes on the materials incorporated in the improvements constructed on the
Participating Sites (each, a "Sales Tax Exemption"). The values of the PILOTs, MRT
Exemptions and Sales Tax Exemptions that will or may be available to each Participating
Site shall be calculated in accordance with this Section 4.
(a) "PILOT Commencement Date" means, with respect to a Participating
Site, the date on which the Interim Developer commences to pay PILOTs in accordance
with the applicable Interim Lease.
(b) "PILOT Expiration Date" means, with respect to a Participating Site,
the earlier of: (i) the last day that the Site Owner is required to make PILOTs under the
Development Lease; (ii) the date which is the day before the twelfth (1 t h) anniversary of
the PILOT Commencement Date (subject to force majeure); or (iii) the Substantial
Completion Date.
(c) "PILOT Year" means, with respect to a Participating Site, any period
commencing on the PILOT Commencement Date, or any anniversary thereof, and ending
on the earlier of: (i) the day before the next anniversary of the PILOT Commencement
Date; or (ii) the PILOT Expiration Date.
(d) "PILOT Year Share" means, with respect to any PILOT Year, a
percentage equal to: (i) the number of days in such PILOT Year; divided by (ii) three
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 hundred sixty-five (365).
(e) With respect to each particular Development Site, Exhibit D-l sets forth
certain stipulated amounts that a Site Owner \vould otherwise likely be expected to pay in
respect of taxes with respect to such Development Site (i.e. ifsuch Development Site
were owned in fee by the Site Owner) in each PILOT Year until the PILOT Expiration
Date (each such amount, an "Annual PILOT Baseline").
(f) "Annual PILOT Value", with respect to a Participating Site and a
PILOT Year, is equal to the excess, if any of (x) the PILOT Year Share of the applicable
Annual PILOT Baseline; over (y) the PILOTs actually paid in such PILOT Year, as such
excess amount shall accrue with interest compounding annually at the Regular Accrual
Rate from and after the expiration of such PILOT Year until the Substantial Completion
Date.

(g) "Regular Accrual Rate" means a percentage equal to six and one quarter
percent (6.25%) per annum.
(h) "PILOT Value", with respect to a Participating Site, shall equal the
accrued sum of each Annual PILOT Value for each PILOT Year until the PILOT
Expiration Date. For illustration purposes, Exhibit 0-2 is a pro forma spreadsheet '
demonstrating how the PILOT Value for a Participating Site will be calculated using: (i)
an assumed PILOT Commencement Date; (ii) an assumed PILOT Expiration Date; and
(iii) assumed PILOTs actually paid in each PILOT Year.
(i) "MRT Exempt Mortgage" means a mortgage which is exempt from
mortgage recording taxes by virtue of the ESDC's tax-exempt status.

U) "Principal MRT Value", with respect to a Participating Site which has a
MRT Exempt Mortgage recorded against it, is equal to the excess, if any, of (i) the
. aggregate mortgage recording tax which otherwise would be payable if all of the MRT
Exempt Mortgages on such Participating Site did not have the benefit of any exemption
from the mortgage recording tax over (ii) the aggregate mortgage recording tax (if any)
actually paid in connection with such MRT Exempt Mortgages.
(k) "MRT Value", with respect to a Participating Site which has a MRT
Exempt Mortgage recorded against it, is equal to the Principal MRT Value of each MRT
Exempt Mortgage so recorded, as such Principal MRT Value shall accrue with interest
compounding annually at the Regular Accrual Rate from the date such MRT Exempt
Mortgage is recorded until the Substantial Completion Date.
(1) "Sales Tax Value", with respect to a Participating Site that is subject to
a Sales Tax Exemption, is equal to one and one tenth percent (1.1 %) of such Participating
Site' s Trade Costs.

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 (m) "Tax Value", with respect to a Participating Site, is equal to the sum
of: (i) the Participating Site's PILOT Value; plus (ii) the Participating Site's MRT Value
(if applicable); plus (iii) the Participating Site's Sales Tax Value (if applicable).
5.

Outstanding City Balance.

(a) "Outstanding City Balance", with respect to a Participating Site and as
of any particular date, is equal to the excess, if any, of (i) the Net City Investment in such
Participating Site as of such date, over (ii) any City Participation Payments made (or
deemed to have been made) with respect to such Participating Site prior to such date;
(b) "Net City Investment", with respect to a Participating Site and as of any
particular date, is equal to the City Investment Share of the Gross City Investment for
such Participating Site, as such amount shall accrue with interest compounding annually
at the Regular Accrual Rate from and after the Substantial Completion Date through any
particular date;
(c) "City Investment Share", with respect to a Participating Site, is equal to:
(i) the amount of zoning square feet on such Participating Site that have not been
Transferred and have not been dedicated to a school or other community facility use;
divided by (ii) the total zoning square feet on such Participating Site; and
(d) "Gross City Investment", with respect to a Participating Site, is equal to
the sum of: (i) such Participating Site's Contributed Property Value; plus (ii) such
Participating Site's Tax Value.
6.

Site Owner's Equity.

(a) Exhibit C sets forth a schedule (the "General Allocation Schedule") of
certain costs that AYDC and its Affiliates (other than Site Owners) have incurred or
expect to incur with respect to each Development Site, as such costs are proportionally
allocated to each Development Site in accordance with: (i) the amount of zoning square
feet ("ZSF") that are projected to be contained in each such Development Site; and (ii)
the amount of costs per zoning square foot ("$/ZSF") that are to be allocated to each
Development Site within a similar building category (e.g. "50-30-20 Rental", "80-20
Rental", "Market Rental", "Condo", "Office", "Retail"). As used herein, a Participating
Site's "General Acquisition Costs" include the costs set forth with respect to such
Participating Site on the General Allocation Schedule, as the General Allocation
Schedule may be amended in accordance with Sections 6(b) and 6(d).
(b) Upon written notice to the City within thirty (30) days after each GAC
True-Up Date or any GAC Reallocation Date (as applicable), but subject to the City's
audit and contest rights set forth in Section 6(d), the A YDC may amend the General
Allocation Schedule in order to "true-up" the General Allocation Schedule in accordance
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 with the following:
(i) If, as of a GAC True-Up Date, the AYDC or an Affiliate thereof
(other than a Site Owner) has paid or reasonably expects to pay Qualified Costs (defined
below) that have not yet been reflected on the General Allocation Schedule, then:

(1) with respect to each Development Site for which the
Construction Commencement Date has not yet occurred (each, a "Pre-Construction
Site"), the "Qualified Costs Share" shall equal the quotient of (x) the General
Acquisition Costs allocated to the applicable Pre-Construction Site as of the day before
the applicable GAC True-Up Date divided by (y) the aggregate sum of General
Acquisition Costs reflected on the General Allocation Schedule as of the day before the
applicable GAC True-Up Date with respect to all Pre-Construction Sites;
(2) the General Acquisition Costs allocated to each PreConstruction Site shall be increased by an amount equal to the product of (x) the
applicable Pre-Construction Site's Qualified Costs Share multiplied by (y) such
Qualified Costs; and
(3) the $/ZSF for each such Pre-Construction Site shall be
.amended accordingly.

(ii) If, as of a GAC True-Up Date, AYDCand its Affiliates (other
than Site Owners) have incurred and expect to incur fewer General Acquisition Costs
than were previously reflected on the General Acquisition Schedule, then:
(1) the difference between (x) the General Acquisition Costs
that AYDC and its Affiliates (other than Site Owners) previously incurred or expected to
incur with respect to the Project and (y) the General Acquisition Costs that AYDC and
its Affiliates (other than Site Owners) have then incurred and expect to incur with
respect to the Project shall be referred to herein as the "Cost Savings";

(2) with respect to each Pre-Construction Site, the "Cost
Savings Share" shall equal the quotient of (x) the General Acquisition Costs allocated to
the applicable Pre-Construction Site as of the day before the applicable GAC True-Up
Date divided by (y) the aggregate sum of General Acquisition Costs reflected on the
General Allocation Schedule as of the day before the applicable GAC True-Up Date
with respect to all Pre-Construction Sites;
(3) the General Acquisition Costs allocated to each PreConstruction Site shall be decreased by an amount equal to the product of (x) the
applicable Pre-Construction Site's Cost Savings Share multiplied by (y) the Cost
Savings; and
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 (4) the $/ZSF for each such Pre-Construction Site shall be
amended accordingly.
(iii) If, as of a GAC Reallocation Date, the building category of any
Pre-Construction Site has changed since the date hereof (or the last GAC True-UP Date,
as applicable), then:
(I) subject to Section 6(b)(iii)(4), the General Acquisition
Costs allocated to such Pre-Construction Site shall be equal to the product of (x) the ZSF
of such Development Site, multiplied by (y) the $/ZSF of the other Pre-Construction
Sites in such Pre-Construction Site's new category as of the day before the applicable
GAC Reallocation Date;
(2) the difference (whether positive or negative) between (x)
the General Acquisition Costs previously allocated to such Pre-Construction Site, less
(y) the General Acquisition Costs allocated to such Pre-Construction Site in accordance
with Section 6(b)(iii)(l) shall be referred to herein as a "Use Change Difference";
(3) with respect to each Pre-Construction Site (including
the Pre-Construction Site for which the building category has changed (the "Changed
Site"», the "Use-Change Share;' shall equal the quotient of (x) the General Acquisition
Costs allocated to the applicable Pre-Construction Site as of the day before the
applicable GAC Reallocation Date (provided, that, for purposes of this subclause (x), the
General Acquisition Costs of the Changed Site shall be deemed to be equal to the
General Acquisition Costs of the Changed Site as determined pursuant to Section
6(b)(iii)( I) as if Section 6(b)(iii)( I) were not subject to Section 6(b)(iii)(4) divided by
(y) the aggregate sum of General Acquisition Costs reflected on the General Allocation
Schedule with respect to all Pre-Construction Sites as of the day before the applicable
GAC Reallocation Date (provided, that, for purposes of calculating such aggregate sum
of General Acquisition Costs, the General Acquisition Costs of the Changed Site shall
be deemed to be equal to the General Acquisition Costs of such Changed Site as
determined pursuant to Section 6(b)(iii)(l) as if Section 6(b)(iii)(l) were not subject to
Section 6(b)(iii)(4);
(4) the General Acquisition Costs allocated to each PreConstruction Site (including the Changed Site) shall be credited by an amount equal to
the product of (x) the applicable Pre-Construction Site's Use-Change Share multiplied
by (y) the Use Change Difference; and
(5) the $/ZSF for each such Pre-Construction Site (including
the Changed Site) shall be amended accordingly.
(iv) If, as of a GAC Reallocation Date, the Substantial Completion
Date has occurred with respect to a Development Site (a "Substantially Completed Site") .
II
us\GURKOGE\7521838.1

 and the building on such Substantially Completed Site contains more or less ZSF than the
amount of ZSF theretofore indicated on the General Allocation Schedule, then:

(l) subject to Section 6(b)(iv)(4), the General Acquisition
Costs allocated to such Substantially Completed Site shall be equal to the product of (x)
the ZSF actually contained in the building on such Substantially Completed Site
multiplied by (y) the $/ZSF reflected on the General Allocation Schedule with respect to
Pre-Construction Sites in the same building category as the Substantially Completed Site
as of the day before the applicable GAC True-Up Date;
(2) the difference (whether positive or negative) between (x)
the General Acquisition Costs previously allocated to such Substantially Completed Site,
less (y) the General Acquisition Costs allocated to such Substantially Completed Site in
accordance with Section 6(b)(iv)(l) shall b<? referred to herein as a "Completion
Difference";
(3) with respect to each Pre-Construction Site and such
Substantially Completed Site (each, a "Relevant Site"), the "Completion Difference
Share" shall equal the quotient of (x) the General Acquisition Costs allocated to the
applicable Relevant Site as of the day before the applicable GAC Reallocation Date
(provided, that, for purposes of this subclause (x), the General Acquisition Costs of such
Substantially Completed Site shall be deemed to be equal to the General Acquisition
Costs of such Substantially Completed Site as determined pursuant to Section 6(b)(iv)(l)
as if Section 6(b)(iv)(l) were not subject to Section 6(b)(iv)(4)) divided by (y) the
aggregate sum of Genera'l Acquisition Costs reflected on the General Allocation
Schedule with respect to all Relevant Sites as of the day before the applicable GAC
Reallocation Date (provided, that, for purposes of calculating such aggregate sum of
General Acquisition Costs, the General Acquisition Costs of the Substantially
Completed Site shall be deemed to be equal to the General Acquisition Costs of the
Substanthilly Completed Site as determined pursuant to Section 6(b)(iv)(l) as if Section
6(b)(iv)(l) were not subject to Section 6(b)(iv)(4)); and
(4) the General Acquisition Costs allocated to each Relevant
Site shall be credited by an amount equal to the product of (x) the applicable Relevant
Site' s Completion Difference Share multiplied by (y) the Completion Difference; and
(5) the $/ZSF for each such Relevant Site shall be amended
accordingly.
(c) As used herein, "Qualified Costs" means all costsactually paid or
reasonably expected to be paid by A YDC or any Affiliate thereof (other than the Site
Owners) in connection with the Project to the extent such costs are not costs that are
already included in the General Acquisition Costs reflected on the General Allocation
Schedule ("Previously Counted GAC"), including: (i) increases in the Previously
12
us\GURKOGE\7521838, I

 Counted GAC that are particularly identified on the General Allocation Schedule; (ii) all
costs with respect to any infrastructure and LIRR improvements within the Project (other
than infrastructure improvements incurred solely with respect to the Arena) to the extent
that such costs are not reimbursed by ESDC or the City and to the extent such costs are
not Previously Counted GAC; (iii) master planning expenses with respect to the Project
to the extent such costs are not Previously Counted GAC; (iv) interest paid on any
financing outstanding with respect to the Project other than in connection with a
Financing Transaction to the extent such interest is not Previously Counted GAC; (v) all
other soft costs related to the development of the Project (other than Soft Costs paid by
Site Owners) that are not included in the foregoing to the extent such costs are not
Previously Counted GAC; (vi) on account of AYDC's extensive internal real estate
capabilities (which include development, construction management, legal, financing,
investment management, and cost control, that reduce AYDC's need for external
consultants such as owner's representatives in the management of construction,
construction attorneys), an amount equal to five percent (5%) of the total costs that
AYDC and its Affiliates (other than the Site Owners) have actually paid or reasonably
expect to pay with respect to the Project to the extent such costs are not Previously
Counted GAC; (vii) any other costs that may be agreed upon by AYDC and the City to
the extent such costs are not Previously Counted GAC; and (viii) to the extent that any of
the foregoing expenses are paid prior to the Title Vesting Date, annually compounded
interest accruing at ten percent (10%) on each such expense (to the extent such expense is
paid for with the capital of AYDC or an Affiliate thereof), each from the date such
expense was paid through the Title Vesting Date.
(d) If AYDC desires to amend the General Allocation Schedule in
accordance with Section 6(b)(i), then the notice that AYDC sends to the City pursuant to
Section 6(b) shall be accompanied by a certification from AYDC (a "Qualified Costs
Certification") that AYDC or its Affiliates have in fact incurred, or reasonably expect to
incur the Qualified Costs that AYDC desires to add to the General Allocation Schedule.
The Qualified Costs Certification shall contain a legend in not less than 14 point font
bold upper case letters as follows: "THIS IS A TIME SENSITIVE QUALIFIED
COSTS CERTIFICATION AND, PURSUANT TO SECTION 6(d) OF THE
MASTER PARTICIPATION AGREEMENT, THE CITY SHALL NOT BE
ENTITLED TO RESPOND TO THIS QUALIFIED COSTS CERTIFICATION
AFTER THE DATE WHICH IS TWENTY (20) DAYS FOLLOWING THE DATE
HEREOF. IF THE CITY DOES NOT SO RESPOND TO THIS
ACKNOWLEDGMENT WITH A QUALIFIED COSTS OBJECTION NOTICE
WITHIN SUCH TWENTY (20) DAYS, THEN THE AYDC SHALL BE '
ENTITLED TO AMEND THE GENERAL ALLOCATION SCHEDULE TO
INCLUDE THE QUALIFIED COSTS SET FORTH HEREIN IN ACCORDANCE
WITH SECTION 6(b)(i) OF THE MASTER PARTICIPATION AGREEMENT."
If, within twenty (20) days after receiving the Qualified Costs Certification, the City does
not respond by delivering to the AYDC a notice requesting an audit of the AYDC's
13
us\GURKOGE\75218J8.1

 books and records as are relevant to.the Qualified Costs Certification (a "Qualified Costs
Audit Notice"), then AYDC shall be permitted to amend the General Allocation Schedule
to include the"Qualified Costs set forth in the Qualified Costs Certification in accordance
with Section 6(b)(i). If the City timely delivers a Qualified Costs Audit Notice, then the
NYEDC or the City Comptroller may inspect, review and copy, at the AYDC's offices in
the Brooklyn, New York (or such other office as may be reasonably designated by
AYDC), the AYDC's or any Site Owner's books and records as are relevant to Qualified
Costs Certification. Subject to any provision of applicable Laws, the NYCEDC and the
City Comptroller shall treat all information within such books and records in accordance
with Section 13(i). If, within thirty (30) days after delivering a Qualified Costs Audit
Notice to AYDC, the City fails to deliver to A YDC a notice (a "Qualified Costs Contest
Notice") stating the City's belief that all or any portion of the costs reflected in the
Qualified Costs Certification are not Qualified Costs, then AYDC shall amend the
General Allocation Schedule to include the Qualified Costs set forth in the Qualified
Costs Certification in accordance with Section 6(b)(i). If the City tiinely
a
Qualified Costs Contest Notice, then the City and AYDC shall attempt in good faith, to
resolve the disagreement set forth therein, and upon such resolution, the City shall amend
the General Allocation Schedule to include the Qualified Costs agreed to by the parties in
accordance with Section 6(b)(i). If the parties fail to resolve such dispute within thirty
(30) days after the City's delivery of a Qualified Costs Contest Notice, then, at any time
prior to the resolution of such dispute, either party, upon written notice to the other party,
may submit such dispute to be resolved by an arbitration conducted in accordance with
the Commercial Arbitration Rule (Expedited Procedures) of the American Arbitration
Association; and, upon the conclusion of such arbitration, AYDC shall be permitted to
amend the General Allocation Schedule to include the Qualified Costs determined by the
arbitration in accordance with Section 6(b )(i). Each party shall bear its own costs and
expenses with respect to the arbitration; provided, however, that the costs of the
arbitration shall be borrie by the losing party of such arbitration.
(e) The "Site-Specific Share", with respect to any Participating Site for
which Site-Specific Costs are incurred, is a percentage equal to: (i) the zoning square feet
of such Participating Site; divided by (ii) the aggregate zoning square feet of all portions
of the Project for which such Site-Specific Costs are incurred.
(f) The "Site-Specific Costs", with respect to any portion of the Project, is
equal to: (i) the cost of any interest, fees, taxes, materials, goods, or services (in each
case, other than General Acquisition Costs) incurred by AYDC or any Affiliate thereof
(other than the Site Owners) with respect to such portion of the Project; plus (ii) to the
extent any of the foregoing expenses are incurred prior to the Title Vesting Date,
annually compounded interest accruing at ten percent (l 0%) on each such expense (to the
extent such expense is paid for with the capital of AYDC or an Affiliate thereof), each
from the date such expense was incurred through the Title yesting Date.

14
us\GURKOG E\7 521838. 1

 (g) "Site Owner's Equity" means, with respect to each Participating Site
and as of any particular date, an amount equal to: (i) the Participating Site's General
Acquisition Costs incurred prior to such date which shall be deemed contributed or
attributed to the applicable Site Owner on the Title Vesting Date regardless of whether
the Title Vesting Date precedes the date that such Site Owner was formed; plus (ii) the
applicable Site-Specific Share of any applicable Site-Specific Costs incurred prior to such
date which shall be deemed contributed or attributed to the applicable Site Owner on the
Title Vesting Date regardless of whether the Title Vesting Date precedes the date that
such Site Owner was formed; plus (iii) the aggregate amount of all capital contributions
paid in by Third Parties and AYDC or A YDC Affiliates to the Site Owner in respect of
common equity interests prior to such date.
7.

Net Proceeds.

(a) "Reporting Year" means, with respect to each Participating Site: (i) the
period commencing on the applicable Substantial Completion Date and ending on
December 31 of the year of the Substantial Completion Date; and (ii) each period
commencing on January 1 of each year thereafter and ending on December 31 of such
year; provided that the last Reporting Year for such Participation Site shall end on the
qate this Agreement terminates with respect to such Participating Site.
(b) "Operating Proceeds" means, with respect to each Participating Site in
each Reporting Year, the gross revenues before expenses received by the Site Owner
(other than Transaction Proceeds) during such Reporting Year.
(c) "Net Operating Proceeds" means, with respect to each Participating Site
in each Reporting Year, all Operating Proceeds received by the Site Owner during such
Reporting Yearless the amount of such Operating Proceeds actually applied to: (i) repay
any principal in respect of any indebtedness incurred by the Site Owner, pay any
Qualified Interest owed thereon during such Reporting Year and pay all other amounts
(including any contingent interest or so-called "kicker" payments) reasonably owed by
the Site Owner, on account of such indebtedness, out of such Operating Proceeds; (ii) pay
.for normal, customary or otherwise reasonable operating or capital expenses paid by the
Site Owner in connection with the Participating Site during the Reporting Year (including
all taxes, utility charges, fees and insurance); and (iii) fund reasonable reserves for any
normal, customary or otherwise reasonable purpose in connection with the Participating
Site as reasonably determined by the Site Owner of the Participating Site.
(d) "Sales Proceeds" means, with respect to all or any portion of a
Participating Site that has been Transferred, all gross proceeds received by the Site
Owner in connection with the Transfer of all or any portion of the Participating Site.
(e) "Net Sales Proceeds" means, with respect to all or any portion ofa
Participating Site that has been Transferred, (1) all Sales Proceeds received by the Site
15
uslGU RKOGEI752 1838 I

 Owner in connection with such Transfer, less (2) the sum of: (i) all costs incurred by the
Site Owner in connection with the Transfer, including all marketing expenses, brokerage
fees, taxes (other than income taxes), accounting costs and legal fees; and (ii) the
aggregate amount of principal in respect of any indebtedness incurred by the Site Owner,
accrued but unpaid Qualified Interest owed thereon, and all other amounts (including any
contingent interest or so-called "kicker" payments) reasonably required to be paid by the
Site Owner on account of such indebtedness in connection with the Transfer.
(f) "Financing Proceeds" means, with respect to any Participating Site that
is subject to a Financing Transaction, any gross proceeds received by the Site Owner in
connection with the Financing Transaction.
(g) "Net Financing Proceeds" means, with respect to each Participating Site
that is subject to a Financing Transaction, (1) all Financing Proceeds received by the Site
Owner in connection with such Financing Transaction, less (2) the sum of: (i) all costs
incurred by the Site Owner in connection with the applicable Financing Transaction,
including all expenses, brokerage fees, taxes (other than income taxes), accounting costs
and' legal fees; and (ii) the aggregate amount of principal in respect of any indebtedness
incurred by the Site Owner and repaid in connection with the Financing Transaction,
accrued but unpaid Qualified Interest owed thereon, and all other amounts (including any
contingent interest or so-called "kicker" payments) paid by the Site Owner on account of
such indebtedness in connection with the Financing Transaction.
(h) By way of illustration only, a "kicker payment" would include a
payment owed by a Site Owner to a Third Party lender, other than a payment of Qualified
Interest or a repayment of principal, on account of the amount of Operating Proceeds,
Sales Proceeds or Financing Proceeds realized in connection with a Participating Site.
(i) "Casualty Proceeds" means, with respect to all or any portion of a
Participating Site that is damaged by a casualty, any insurance proceeds received by the
Site Owner as a result of such casualty.
(j) "Net Casualty Proceeds" means, with respect to all or any portion of a
PartiCipating Site that is damaged by a casualty, all Casualty Proceeds received by the
Site Owner in connection with such casualty, after deducting: (i) the costs incurred by the
Site Owner in obtaining such Casualty Proceeds; (ii) any amount of such Casualty
Proceeds applied by the Site Owner towards repairing or reconstructing the portion of the
Project affected by such casualty; and (iii) any payments that must be made to a
Mortgagee in connection with such casualty.

(k) "Condemnation Proceeds" means, with respect to all or any portion of a
Participating Site that is subject to a taking by an exercise of power of eminent domain,
any proceeds received by the Site Owner as a result of the taking.
16
us\GURKOGE\752 I838,I

 (I) "Net Condemnation Proceeds" means, with respect to all or any portion
of a Participating Site that is subject to a taking by an exercise of power of eminent
domain, all Condemnation Proceeds received by the Site Owner in connection with such
taking, after deducting: (i) the costs incurred by the Site Owner in obtaining such
Condemnation Proceeds; (ii) any amount of such Condemnation Proceeds applied by the
Site Owner towards repairing or reconstructing the portion of the Project affected by such
taking; and (iii) any payments that must be made to a Mortgagee in connection with such
taking.

(m) "Net Transaction Proceeds" means, with respect to each
Participating Site, any (i) Net Sales Proceeds; (ii) Net Financing Proceeds; (iii) Net
Casualty Proceeds; or (iv) Net Condemnation Proceeds.
(n) "Net Proceeds" means any Net Operating Proceeds or any Net
Transaction Proceeds, as applicable.
8.

IRR; Return Hurdles.

(a) "IRR" means, as of a date and with respect to a Site Owner, a specified
internal rate of return, as that term is understood and applied within the commercial real
estate business community, on all Site Owner's Equity in the applicable Participating
Site. Such specified internal rate of return on any Site Owner's Equity shall be
calculated as of any given date by accounting for: (i) all distributions to such Site Owner
of Net Proceeds in respect of the common equity interests of such Site Owner, where all
such amounts under this clause (i) are treated as capital inflows; and (ii) all contributions
or deemed contributions of Site Owner's Equity, where all such amounts under this
clause (ii) are treated as capital outflows. For purposes of this definition, any Site
Owner's Equity shall be deemed contributed, and each such distribution of Net Proceeds
received by such Site Owner in respect of the common equity interests of such Site
Owner shall be deemed to have been received, as of the date actually contributed or
distributed or deemed contributed or distributed, regardless of whether such date was
before or after the date of this Agreement or, in the case of Site Owner's Equity, prior to
the date of formation of such Site Owner.
(b) "Initial Return Hurdle", with respect to a Participating Site, shall be
satisfied with respect to such Participating Site on any particular date, if and only if,
when taking into account all Net Proceeds received, on or prior to such date, by the Site
Owner, the Site Owner has achieved an IRR, as of such date, of more than fifteen percent
(15%);
(c) "Intermediate Return Hurdle", with respect to a Participating Site, shall
be satistied with respect to such Participating Site on any particular date, if and only if,
when taking into account all Net Proceeds received, on or prior to such date, by the Site
Owner, the Site Owner has achieved an IRR, as of such date, of more than seventeen and
17
uslGUR KOGEI752 1838 I

 one-half percent (17.5%); and
(d) "Final Return Hurdle", with respect to a Participating Site, shall be
satisfied with respect to such Participating Site on any particular date, if and only if,
when taking into account all Net Proceeds received, on or prior to such date, by the Site
Owner, the Site Owner has achieved an IRR, as of such date, of greater than twenty
percent (20%).
9.

City Share; City Participation Payments; Termination.

(a) "City Share" means, with respect to any Net Proceeds received by a Site
Owner as of any particular date:
(i) if the Initial Return Hurdle is not satisfied, zero;

(ii) if the Initial Return Hurdle is satisfied but the Intermediate
Return Hurdle is not satisfied, five percent (5%) of the Net Proceeds (other than Net
Proceeds to be distributed on such date in order to satisfy the Initial Return Hurdle) until
the Intermediate Return Hurdle is satisfied;
(iii) if the Intermediate Return Hurdle is satisfied but the Final
Return Hurdle is not satisfied, twenty percent (20%) of the Net Proceeds (other than Net
Proceeds to be distributed on such date in order to satisfy the Initial Return Hurdle or the .
Intermediate Return Hurdle) until the Final Return Hurdle is satisfied; and

(iv) if the Final Return Hurdle is satisfied, fifty percent (50%) of the
Net Proceeds (other than Net Proceeds to be distributed on such date in order to satisfy
the Initial Return Hurdle, the Intermediate Return Hurdle or the Final Return Hurdle).
(b) "City Participation Payments", with respect to a Participating Site, is
equal to the aggregate amount paid to the City under this Agreement with respect to a
. Participating Site. For illustration purposes, Exhibit H is a pro forma spreadsheet
demonstrating how City Participation Payments will be calculated using relevant
assumptions with respect to a Participating Site.
(c) On each date that is 120 days after the last day of each Reporting Year
for each Participating Site (each, a "Reporting Date"), until the earlier of (i) the
Participating Site's Expiration Date, or (ii) the date the Outstanding City Balance with
respect to such Participating Site has been reduced to zero, the applicable Site Owner
shall pay to the City an amount equal to the City Share (if any) of the Net Operating
Proceeds received by the Site Owner within the immediately preceding Reporting Year;
provided that in no case shall the City be entitled to receive in the aggregate under this
Agreement an amount which is greater than the Outstanding City Balance with respect to
such Participating Site.
18
usIGURKOGE\7521838.1

 (d) On each Transaction Date for each Participating Site, until the
Outstanding City Balance with respect to such Participating Site is reduced to zero, the
applicable Site Owner will pay to the City an amount equal to the City Share (if any) of
the Net Transaction Proceeds received by the Site Owner on such Transaction Date;
provided that in no case shall the City be entitled to receive in the aggregate under this
Agreement an amount greater than the Outstanding City Balance with respect to such
Participating Site.
(e) If the Construction Commencement Date of the Development Site that
contains the Site 5 Development Rights has not occurred on or prior to the date (the "Site
5 Deadline") that is ten (10) years after the Project Effective Date, then on the Site 5
Deadline, either:
(i) the Site Owner of such Development Site shall convey to the
City the Site 5 Development Rights, and such Site Owner shall be deemed to have made
a City Participation Payment to the City in an amount equal to Appraised Value of the
Site 5 Development Rights, as such value shall accrue with interest compounding
annually at the Primary Rate from the Title Vesting Date to until the Site 5 Deadline (the
"Site 5 Development Rights Value"); or
(ii) if either (x) the Site Owner cannot effectively transfer the
Development Rights to the City through a zoning lot merger and associated zoning lot
development agreement, (y) the Site Owner is prohibited from transferring the Site 5
Development Rights to the City or (z) the Site owner otherwise so elects in a written
notice delivered to the City prior to the Site 5 Deadline, then the Site Owner shall pay to
the City an amount equal to the Site 5 Development Rights Value, and such payment
shall be deemed to be a City Participation Payment for all purposes of this Agreement.

10.

Certi fication of Financial Information.

(a) On each Reporting Date for each Participating Site, the Site Owner of
such Participating Site shall deliver to the City an "Annual Statement" certifying, as of
the expiration of the immediately preceding Reporting Year, the values of: (i) the
applicable Site Owner's Equity and the components thereof; (ii) the Net Operating
Proceeds received by the Site Owner during such Reporting Year; (iii) the Net
Transaction Proceeds received by the Site Owner during such Reporting Year; and (iv)
the Outstanding City Balance with respect to such Participating Site.
(b) Upon reasonable prior written notice to the AYDC and the applicable
Site Owner, the New York City Economic Development Corporation (the "NYCEDC") or the
City Comptroller may inspect, review and copy, at the AYDC's offices in the Brooklyn,
New York (or such other office as may be reasonably designated by AYDC), the
AYDC's or any Site Owner's books and records as are relevant to an Annual Statement.
Subject to any provision of applicable Laws, the NYCEDC and the City Comptroller
19
us\GURKOGE\7521838.1

 shall treat all information within such books and records in accordance with Section

l1Ul
(c) Each Annual Statement shall be conclusive unless the EDC or the City
delivers to AYDC an Annual Statement Contest Notice within one hundred eighty (180)
days after the delivery of the Annual Statement. If the EDC or City timely delivers an
Annual Statement Contest Notice, then: (i) the City and AYDC shall attempt, in good
faith, to resolve the disagreement set forth therein; and (ii) the Annual Statement shall not
be deemed to be conclusive until such disagreement is resolved.
(d) If any conclusive Annual Statement reveals that any Site Owner failed
to pay to the City the full amount of any City Participation Payment required to be paid
pursuant to Section 9 then: (i) the Site Owner shall promptly pay to the City any amounts
that were revealed to have been underpaid together with interest on such amounts at the
Regular Accrual Rate from the date such payments became due to the date such payments
are actually made; and (ii) all amounts paid by the Site Owner to the City (other than
interest paid pursuant to subclause (i) of this Section IO(d)) shall be credited against the
Participating Site's Outstanding City Balance as of the date such amounts are actually
paid.
(e) Ifany conclusive Annual Statement reveals that a Site Owner paid to
the City any amount that is greater than the City Participation Payment required to be
paid pursuant to Section 9, then any amounts so paid by the Site Owner to the City shall
be credited against the Participating Site's Outstanding City Balance as of the date such
amounts were so paid.
11.

Estoppels; Subordination:

(a) The City shall, within thirty (30) days after its receipt of written notice
(which notice may not be given more often than four (4) times in any twelve month
period) from any Site Owner, execute, acknowledge and deliver to the Site Owner, or to
any other Person reasonably requested by the Site Owner, a written statement from the
City certifying, as of the date thereof: (i) that this Agreement is unmodified and in full
force and effect (or if there are modifications, that this Agreement, as modified, is in full
force and effect, stating the date of each such modification and providing a copy thereof,
if requested); and (ii) the date on which the applicable Site Owner executed a Joinder;
(iii) if such statement is delivered prior to the Participating Site's Substantial Completion
Date, the Participating Site's Contributed Property Value, PILOT Value, MRT Value and
Sales Tax Value; (iv) if the statement is delivered on or after the Participating Site's
Substantial Completion Date, the Outstanding City Balance with respect to the
Participating Site; (v) the dates on which this Agreement expired with respect to any
portions of the Participating Site; (vi) a description of the Participating Site that remains
subject to this Agreement; (vii) whether there are currently any disputes between the City
20
lIs\GURKOGE\752 I 838.I

 and the Site Owner with respect to any matters arising under this Agreement; (viii)
whether the Site Owner has, to the best of the City's knowledge and subject to the City's
rights in Section IO(c), fully performed all ofthe covenants, agreements and obligations
to be performed by the Site Owner under this Agreement; and (ix) any other factual
information as may be reasonably requested.
(b) All City Participation Payments owed with respect to any Participating
Site are fully and completely subject and subordinate to the principal and Qualified
Interest and fees due on each and every mortgage that has been or may be recorded
against such Participating Site at any time and to the prior payment in full in cash of all
such amounts due under any such mortgage, and the City will take no action to enforce
any of its rights hereunder in any manner which interferes with such rights of any
Mortgagee. This Section II (b) shall be self-operative and no further instrument of
subordination shall be required to make the interest of any Mortgagee superior to the
interest of the City hereunder. Without limiting the foregoing, the City shall execute and
deliver promptly any agreement that any Site Owner or any Mortgagee may reasonably
request to confirm such subordination and to confirm the termination of the Agreement as
to any Participating Site upon the entry ofajudgment of foreclosure and sale, deed in lieu
of foreclosure or other similar enforcement action commenced by a Mortgagee with
respect to any mortgage on all or any portion of the Participating Site.
12.

Notices.

(a)
Subject to Section 12(c), all notices from the City to AYDC or any
Site Owner required or permitted by any provision of this Agreement shall be directed to
the Site Owner at the address set forth in the Site Owner's Joinder and to the AYDC as
follows:
c/o Forest City Ratner Companies
One Metrotech Center
Brooklyn, New York 1120 I
Attention: General Counsel
with a copy to:

Atlantic Yards Development Company, LLC
c/o Forest
Ratner Companies
50 Public Square
Cleveland, Ohio 44113
Attention: General Counsel .

with a copy to:

Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
Attention: Stephen Lefkowitz, Esq.

21
LJs\GURKOGE\752 I 838.I

 Subject to Section 12(c), all notices from AYDC to the City required or
permitted by any provision of this Agreement shall be directed to the City as follows:
The City of New York
City Hall
New York, New York 10007
Attention: Deputy Mayor for Economic Development
New York City Economic Development Corporation
110 William Street
New York New York 10038
Attention: [President]
with a copy to:

New York City Law Department
100 Church Street
New York, New York 10007

Attention: Chief, Economic Development Division
(b) Subject to Section 12(c), whenever it is provided in this Agreement that
a notice, demand, request, consent, approval, or other communication (each, a "Notice")
shall or may be given to or served upon either party by the other, and whenever either
party shall desire to give or serve upon the other any Notice with respect hereto, each
Notice given hereunder by either party shall be written and, any Laws to the contrary
notwithstanding, shall be effective for any purpose if sent, given or served by hand
delivery, or by registered or certified mail, return receipt requested, postage prepaid, or
via a nationally recognized next day courier service (such as Federal Express or other
reputable overnight national courier service) addressed to the party intended to be
notified at the address set forth above. Either party may, at any time, or from time to
time, notify the other in writing of a substitute address for that provided under this
Section 12, and thereafter notices shall be directed to the substitute address. All Notices
shall be deemed given on the date evidenced by the postal service return receipt or the
delivery receipt of the hand delivery service or nationally recognized next day courier
service that delivered such Notice. Notices hand delivered shall be deemed given on the
day delivered (or first refused for delivery). The attorneys for the respective parties are
hereby authorized to send notices on behalf oftheir.respective clients.
(c) In each case where (i) one party to this Agreement (the "Initiating
Party") sends a Notice (an "Initiating Notice") to the other party (the "Responsive
Party"), and (ii) the Responsive Party's failure to deliver a written response to the
Initiating Notice (a "Responsive Notice") would waive any of the Responsive Party ' s
rights hereunder, the Initiating Notice shall include the addressees) to which the
Responsive Party shall send its Responsive Notice, and the Responsive Party shall send
the Responsive Notice to such address(es). The Initiating Party's failure to include such
addressees) in the Initiating Notice shall not render such Initiating Notice ineffective.
22
us\GURKOGE\75 21838.I

 However, if the Initiating Party fails to include such addressees) in the Initiating Notice,
then the Responsive Party shall not be deemed to have waived any of its rights hereunder
by virtue of its failure to timely deliver a Responsive Notice to such Initiating Notice.
13.

Miscellaneous.

(a) Capitalized terms used but not otherwise defined herein or on Exhibit A
. have the meaning ascribed thereto in the MGPP. Definitions in this Agreement apply
equally to both the singular and plural fOnTIS of the defined terms, as applicable. The
definitions set forth herein and in Exhibit A shall apply throughout this Agreement in its
entirety. The words "include" and "including" shall be deemed to be followed by the
. phrase "but not limited to". The terms, "herein", "hereof' and "hereunder" and other
words of similar import refer to this Agreement as a whole and n.ot to any particular
Section, paragraph or subdivision. The word "or" shall be deemed inclusive of "and".
(b) Except for the definitions of the MGPP that are incorporated herein, this
Agreement embodies the entire understanding between the parties with respect to the
subject matter hereof, and all prior agreements, understandings and statements, oral or
written, with respect thereto are merged in this Agreement.
(c) Except as otherwise provided herein, this Agreement may not be
modified or terminated, nor may any provision hereof be waived, orally or in any manner
other than by an agreement in writing signed by the City, AYDC and each Site Owner, or
their respective successors, administrators and assigns. The City will make such
amendments to this Agreement and agree to changes in the ownership structure, in each
case with respect to any Participating Site, as may be reasonably requested by any lender
in connection with mezzanine debt financing for such Participating Site; provided,
however, that the rights of the City hereunder shall not be reduced, but the mezzanine
debt financing will be treated analogously to indebtedness incurred by a Site Owner
hereunder, including that the interest payments owed with respect to such mezzanine debt
financing shall be treated analogously to the treatment of Qualified Interest payments
hereunder.
(d) Each party represents and warrants to the other party that this
Agreement has been duly authorized, executed and delivered by such party.
(e) Ifany provision of this Agreement or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of
this Agreement, or the application of such provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected thereby and
each provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by Laws.
(f) This Agreement shall be construed under the laws of New York State,

23
usIGURKOGE\752 1838. 1

 without giving effect to any principles of conflicts of laws.
(g) EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ONE PARTY
AGAINST THE OTHER, OR AS TO ANY MATTERS ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT.
(h) Notwithstanding anything to the contrary contained herein, in the event
of any default by a Site Owner hereunder, the City shall look only to the Site Owner and
no other property or assets of the AYDC, or either of the AYDC ' s or Site Owner' s
agents, officers, directors, shareholders, partners or principals, disclosed or undisclosed,
shall be subject to levy, execution or other enforcement procedure for the satisfaction of
the City' s remedies under or with respect to this Agreement. The City in any event
hereby waives any right to collect from AYDC or any Site Owner or to seek specific
performance for any indirect, consequential, special or punitive damages whatsoever,
whether or not AYDC or such Site Owner was or should have been aware of the
probability or magnitude of such damages.
(i) The City represents that it does not have and agrees that it will not assert
any claims or causes of action against any disclosed or undisclosed officer, director,
employee, trustee, shareholder, partner, principal, parent, subsidiary or other affiliate of
the Site Owners, including, without limitation, AYDC, Forest City Ratner Companies
and Forest City Enterprises, Inc. or any officer, director, employee, trustee, shareholder,
partner or principal of any such parent, subsidiary or other affiliate (collectively, other
than the Site Owners, "AYDC Parties"), arising out of or in connection with this
Agreement or the transactions contemplated hereby. The City agrees: (i) to look solely to
the Site Owner of a Participating Site for the satisfaction of any liability or obligation
arising under this Agreement with respect to such Participating Site, or for the
performance of any of the covenants, warranties or other agreements contained herein
with respect to that Site Owner' s Participating Site; and (ii) not to sue or otherwise seek
to enforce any personal obligation against any other Site Owner or any AYDC Party with
respect to any matters arising out of or in connection with this Agreement or the
transactions contemplated hereby with respect to such Participating Site. Without
limiting the generality of the foregoing provisions of this Section 13(i), the City hereby
unconditionally and irrevocably waives any and all claims and causes of action of any
nature whatsoever it may now or hereafter have against the AYDC Parties, and hereby
unconditionally and irrevocably releases and discharges the AYDC Parties from any and
all liab'ility whatsoever which may now or hereafter accrue in favor of the City against
the AYDC Parties, in connection with or arising out of this Agreement or the transactions
contemplated hereby. The provisions of this Section 13(i) shall survive the termination
or expiration of this Agreement.

U) AYDC hereby advises the City that certain information furnished by
24
us1GlJ RKOGE1752 183 8. 1

 AYDC, the Site Owners and their Affiliates (as applicable, the "Disclosing Parties") in
accordance with the terms of this Agreement may contain trade secrets, the disclosure of
which could cause harm to the Disclosing Parties' competitive position. Subject to all .
applicable Laws, including the Freedom of Information Law (Article 6 of the New York
State Public Officers Law) ("FOIL"), the City will use reasonable efforts to maintain the
confidentiality of all information provided by any Disclosing Party pursuant to the terms
of this Agreement and which are not, to the City's knowledge, otherwise in the public
domain or obtained from third party sources on a non-confidential basis; provided,
however that the foregoing shall not restrict the City from making any disclosure of such
information as the City deems necessary or desirable to any other agency or
instrumentality of the State of New York, and/or to the respective board of directors of
each, the staff members of such directors, and/or to the City's employees, legal, financial
and other professional advisors and/or to comply with any applicable Laws, provided that
the City shall in each case inform the party to which such disclosure is made that such
information is confidential and shall inform such party of the confidentiality provisions of
this Agreement. In the event that the City is required by subpoena, court order or other
similar process to disclose such information or if the City receives any written FOIL
request seeking disclosure of the materials described in this Section 13(i), the City shall,
prior to complying with such subpoena, court order or similar process or FOIL request,
provide the Disclosing Party with written notice so that the Disclosing Party shall have an
opportunity to seek, at such Disclosing Party's sole cost and expense, a protective order
or other appropriate remedy. If the Disclosing Party does not obtain a protective order or
other remedy to preclude the disclosure of the requested materials, the Disclosing Parties
hereby acknowledge that the City may disclose such requested materials, but shall
comply with such subpoena, court order, similar process or FOIL request by providing
the minimum of such requested materials being sought as advised by the City's legal
counsel and the governmental or judicial authority requiring such compliance. The City
shall not have any liability of any nature for a breach or failure to comply with this
Section 13(i).
(k) Subject to this Section 13(k), this Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their successors and assigns. If the
Interim Developer assigns an Interim Lease in its entirety, then (i) AYDC shall assign to
the Interim Lease assignee (the "Assignee") all of AYDC's right, title and interest in this
Agreement to the extent this Agreement relates to the real estate leased pursuant to such
Interim Lease (the "Interim Site"); (ii) such Assignee shall assume all of AYDC's
obligations hereunder to the extent this Agreement relates to such Interim Site; and (iii)
following such assignment and assumption, neither AYDC nor any of its Affiliates shall
have any obligation with respect to such Interim Site.
(I) Nothing contained herein is intended to be for, or to inure to, the benefit
of any Person other than the City, the AYDC, the Site Owners and their respective
successors and assigns. No Person other than the City, the AYDC and the Site Owners is

25
lIsIGURKOGEI7;21838. J

 entitled, as a consequence of any term, condition, covenant or agreement contained in this
Agreement to seek, claim or recover damages or any other legal or equitable remedy
hereunder.
(m) This Agreement may be executed in any number of counterparts
each of which shall be deemed an original and all of which shall constitute one and the
same agreemerit with the same effect as if all parties had signed the same signature page.

[Signature Page Follows]

26
us\GU RKOGE\7521838 .1

 IN WITNESS WHEREOF, the City and AYDC have executed this Agreement as
- of the date and year first above written.

CITY:

Name: Robert C. Lieber
Title: Deputy Mayor for Economic
Development

AYDC:
ATLANTIC YARDS DEVELOPMENT
COMPANY, LLC, a Delaware limited liability
company

By:
Name:
Title: Authorized Signatory

Signature Page to Participation Agreement

 IN WITNESS WHEREOF, the City and AYDC have executed this Agreement as
of the date and year fIrst above written.

CITY:
THE CITY OF NEW YORK
By:
Name: Robert C. Lieber
Title: Deputy Mayor for Economic
Development
Approved as to form:

Acting Corporation Counsel

AYDC:

ATLANTIC YARDS DEVELOPMENT
COMPANY, LLC, a Delaware limited liability
company
, By:

David T"Rp:r1iner

TItle: Autlionzeo Signatory

Signature Page to Participation Agreement

 Exhibit A
Additional Definitions
"Affiliate" means, with respect to any designated Person, any other Person that
Controls, is Controlled by, or is under common Control with, such designated Person.
"Affiliate Loan" means any loan made by an Affiliate of Forest City Enterprises to
a Site Owner.
"Affiliate Loan Fees" means, with respect to any Affiliate Loan, the sum of all
fees, charges, "kicker" payments and other amounts (other than stated annual interest
payments) that are payable by the applicable Site Owner with respect to such Affiliate
Loan.
"Amortized Annual Fee Amount" means, with respect to any Affiliate Loan, the
yearly amount of all Affiliate Loan Fees if such Affiliate Loan Fees were to be amortized
on a straight-line basis over the term of the Affiliate Loan.
"Annual Statement Contest Notice" means, with respect to any Annual Statement,
a written notice from the City to A YDC: (i) notifying AYDC that the City disagrees with
the Annual Statement; (ii) specifying the amounts by which the City believes that any
figures set forth in the Annual Statement are incorrect; and (iii) specifying in reasonable
detail the basis for the City's disagreement.
"Arena Block" means the area portrayed on Exhibit B-4.
"Arena Block City Property" means each parcel of real property currently owned
by the City that is located within the Arena Block.
"Arena Block Streets" means the streets that are located within the area portrayed
on Exhibit B-4.
"Block 1129" means the area portrayed on Exhibit B-5.
"Block 1129 Streets" means the streets that are located within the area portrayed
on Exhibit B-5.
"City Participation Payment" means, with respect to each Participating Site, any
payment to the City of any Net Proceeds in accordance with this Agreement.
"Control" (and with correlative meaning, "Controlled by" and "under common
Control with") means ownership or voting control, directly or indirectly, of fifty percent
(50%) or more of the voting stock, partnership interests or other beneficial ownership
interests of the entity in question.
A-I
us1GURKOGE17521838.1

 "Effective Annual Payments" means, with respect to an Affiliate Loan, the sum of:
(i) the stated annual interest payments owed with respect to such Affiliate Loan; plus (ii)
the Amortized Annual Fee Amount.
"Effective Interest" means, with respect to any Affiliate Loan, a percentage equal
.to: (i) the Effective Annual Payments owed by the Site Owner with respect to the
Affiliate Loan; divided by (ii) the outstanding principal balance of the Affiliate Loan.
"GAC Reallocation Date" means any GAC True-Up Date or any Substantial
Completion Date.
"GAC True-Up Date" means each of the following: (i) the Title Vesting Date; (ii)
the first Construction Commencement Date to occur with respect to any Participating
Site; (iii) the date of the commencement of the LIRR Yard Construction; (iv) the
Substantial Completion Date of the LIRR Yard Construction; (v) the date of the
commencement of the LIRR Platform Construction; and (vi) the Substantial Completion
Date of the LIRR Platform Construction.
"Financing Transaction" means, with respect to each Participating Site, a
transaction consummated after the applicable Substantial Completion Date whereby: (i)
the Site Owner receives cash from a lender in exchange for a security interest in the Site
Owner's direct interest in the Participating Site; and (ii) such security interest is all or
.
substantially all of the lender's collateral for such financing.
"Laws" means all laws, statutes, ordinances, rules, orders, regulations and
requirements (present, future, ordinary, extraordinary, foreseen or unforeseen) of any
federal, state and local governments and of any and all departments and bureaus, public
or quasi-public authority, and of the New York Board of Underwriters, the New York
Fire Insurance Rating Organization and any other entity performing similar functions, at
any time duly in force.
"LIRR Platform Construction" means the construction of a new platform over the
LIRR Yard.
"LIRR Yard Construction" means the construction of a new storage yard on the
LIRR Yard.
"Mortgagee" means the holder of any mortgage recorded against a Participating
Site.
"Participating Site" means any Development Site, other than an Exempt Site,
"Person" shall mean not only a natural person, corporation or other legal entity,
but also two or more natural persons, corporations or other legal entities acting jointly as
a firm, partnership, unincorporated association, consortium, joint venture or otherwise.
A-2
lIs\GURKOGE\7521838.1

 "Qualified Interest" means: (i) any interest owed on any indebtedness where a
majority of the lenders of the original principal amount loaned with respect to such
indebtedness at the time it was incurred were Third Parties; or (ii) any Effective Interest
owed with respect to an Affiliate Loan to the extent that such Effective Interest does not
exceed an annual rate of fifteen percent (15%), compounded monthly.
"Substantially Complete" means, with respect to any portion of the Project, that
such portion of the Project has been substantially completed, as reasonably determined by
the applicable Site Owner's architects, in accordance with (i) the provisions of the
MGPP, (ii) the approved plans with respect to such portion of the Project, and (iii) all
applicable Laws, except for minor details of construction, decoration and mechanical
adjustments, if any, the non-completion of which does not materially interfere with the
use of such portion of the Project as intended by the MGPP, or which in accordance with
good construction practices should be completed after the completion of other work with
respect to the Project.
"Substantial Completion Date" means: (i) with respect to each Participating Site,
the date that all portions of the Project to be developed on such Participating Site are
Substantially Complete; and (ii) with respect to any other portion of the Project, the date
on which such portion of the Project is Substantially Complete.
"Third Party" means, as of a date, any Person that is not an Affiliate of AYDC as
of such date.
"Title Vesting Date" means the date on which Il1terim Developer and the ESDC
enter into the first Interim Lease.
"Tower B 1" means the tower to be constructed
Exhibit B-4.

10

the area so designated on

"Transaction Date" means any date on which a Site Owner receives any Net
Transaction Proceeds.
"Trade Costs" means the cost of all labor and materials supplied by the contractor
and subcontractors.
"Transfer" means, with respect to all or any portion of a Participating Site
(including any condominium units, but not including easements and similar
encumbrances): (i) the transfer of all or any portion of such Participating Site to a Third
Party; or (ii) a foreclosure, deed in lieu of foreclosure or other similar enforcement action
commenced by a Mortgagee with respect to any mortgage or other security interest on all
or any portion of the Participating Site.

A-3
uslGURKOGEI752 I 838. I

 Exhibit B-l

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us\GURKOGE\7521838. 1

 Exhibit B-4
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us\GURKOGE\7521838.1

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us\GU RKOGE\752 1838"I

 Exhibit 
General Allocation Schedule

EXHIBIT C: GENERAL ALLOCATION SCHEDULE
Atlantic Yards General Acquisition Costs by 
December 16, 2009

1 Total Prolected AY Site Acquisition Costs 51.217 4
2 Carry through Title Vesting 113.4

3 General Acquisition Costs 31.33013 

 

 

 

 

 

of GAG SIZSF as
Total all or GAC GAC 8 01 Condo
(In 5000,0003) 61st GAC SIZSF 3
Phase]
4 Tower 1 . Office 528.356 560 2 $114 38%
5 Tower 2 . 50130120 Rental 402 201 327.031 46.8 143 47%
6 Tower 3 - 50130120 Rental 350 175 265.664 40 9 143 47%
7 Tower4 - 30120 Rental 887 179 673.806 173 6 258 85%
8 Phase 1 Total 1.639 555 1.815.057 5321.5 5177
Phase II
9 Tower 5 - 50130120 Rental 389 195 294.480 342.1 5143 47%
10 Tower 5 Condo 173 207.177 52 8 303 100%
11 Towers Condo 316 - 409.698 124.2 303 100%
12 Tower 7 - 50130120 Rental 499 250 377.726 54 14.3 47%
13 Tower 7 . Condo 185 . 209.825 63 6 303 100%
14 Tower 8 50130120 Rental 480 240 363.680 52.0 143 47%
15 Tower 8 - Condo 107 - 111.360 33 8 303 100%
16 Tower 9 . 50130120 Rental 426 213 323.221 48.2 143 47%
17 Tower 9 . Condo 185 . 212.398 64 4 303 100%
18 Tower 10 . 50130120 Rental 602 301 444.434 63.6 143 47%
19 Tower 11 . Condo 1 200 - 320.404 97 1 303 100%
20 Tower 12 . Condo 192 . 307.355 93.2 303 100%
21 Tower 13 - 50130120 Rental 414 207 313.964 44.9 143 47%
22 Tower 14 - 80120 343 72 260.470 67 1 258 55%
23 Tower 15 . 50130120 Rental 433 217 304.411 43 5 143 47%
24 Phase 11 Total 4.946 1.695 4.461.044 $952.5 $214
4
25 Retail 200.090 56.9 264 94%
26 Total 6.585 2,250 6,476,191 $1,330.11 5205
Totals by Program:
27 50/30/20 Rental 3.035.033 434.0 143 47%
28 80/20 Renta' 934.276 240.7 258 85%
29 Condo 3 1.778.436 539 0 303 100%
30 011106 528.356 60.2 114 38%
31 Retail 200.090 56 9 284 94%
32 Total 6.476.191 31.33011 5205

 

 

 

Notes:

(1) Block 1 129 buildings

(2) Retail space cam?ea? 1n pro formats of 

13} All Market Rental balldl'ngs would receive 5 GAO allocation per ZSF equal to 92 5% of Condo buildings' GAO
allocation per ZSF

C?l



EXHIBIT C: GENERAL ALLOCATION SCHEDULE

Detail of 10% Carry on Equity Spent through Title Vesting Date

December 14. 2009

 

 

 

 

 

 

 

 

 

 

In millions of dollars Projected
2009 2008
Paid During FY (1) 2003 2004 2005 2006 2007 2008 [Thru 552) (Oct. - Jan.) 12)
Land Acquisition Costs $83.8 $78.2 316.5 $1.5 33.9 3114.1
MTA LC/Breakup Fee - - - - - 91.0
Land Taxes. Interest. Closing Costs 8.5 17.9 18.8 10.5 3.8 - 
lnfrastucture/LlRR/LlRR Related Infrastructure 11.1 15.6 22.2 44.9 15.1 32.8
Masterplanning 15.8 20.7 19.0 13.3 12.4 15.0
Direct Building 10.8 3.3 6.2 2.9 (7.3) -
Finanang Fees 15 0.4 (0.2) 0.3 2.0 1.1
Development Costs 6.2 6.9 19.0 15.9 - 5.7
Arena Land Sale - - - - - (91 
Reduction of Payables - - - - - 10.8
Subtotal - - 137.7 143.1 101.4 99.3 29.9 178.5
Gramercy Land Loan (46.4) (66.1) (44.0) - 13.3 23.3 
Public Party Contribution - - - (47.4) (20.1) (32.5)
Subtotal - (46.4) (86.1) (44.0] (47.4) (6.8) (9.2)
Total Eguity Prior to Adiustments - - 91.3 77.1 57.3 41.8 23.1 170.3
Adjustment:
Equity Spent in FY 03 04 4.2 34.0 (38.2) - - - -
Total Egon! Sgent after Adjustments 4.2 34.0 53.1 77.1 57.3 41.8 23.1 170.3
BOP Equity Balance - 4.4 40.6 100.3 191.3 270 6 341.6 388.3
Total AY Equity Expended this Period 4.2 34.0 53.1 77.1 57.3 41.8 23.1 170.3
EOP Equity Balance 4.2 38.4 93.6 177.4 248.6 312.4 364.7 558.5
Average Balance 2.1 21 4 67.1 138.9 219.9 291.5 353.2 473.4
Carry Earned on Average Balance 10.00% 0.2 2.1 6.7 13.9 22.0 29.2 23.5 15.8 
EOP Equity Balance with Carry 4.4 40.6 100.3 191.3 270.6 341.6 388.3 574.3
Total Equity Spent 2003 - 2009 Without Carry 460.9
Carry 111D
Total Equity Spent 2003 - 2009 With Carry 574.3

Notes:
(1) FCE ?scal year runs from February 1 - January 31

(2) Includes master closing. currently anticipated to be 12/23/09, and title vesting, currendy anticipated to be 1/23/09

(3) Included in "Land Acquisih'on Coats? above

(4) Balance of arena land funded at vacant possession Amount subject to change.

(5) Assumes paydown of land loan at master closing. Amount subject to change due to ongoing negotiations
(6) 2003 and 2004 amounts are included in the 2005 toml. therefore these equity numbers are backed out of the 2005 equity total to avoid double counting

(7) Eight months of can)! (February 1 - September 30)
Four months of carry (October 1 - January 31)

1

EXHIBIT C: GENERAL ALLOCATION SCHEDULE

Atlantic Yards Site Acquisition Costs

December 15. 2010

 

 

 

 

 

 

 

 

 

 

First Taking Second Taking
(Arena and Elk (Blks 1120, 1121,
3's in millions except per SF Full Build and 1128)
Land and Land Loan Interest 4990 379.2 119.8 
MTA LC - 86.0 3 (86.0)
Infrastructure 380.5 126 3 254.3
LIRR Related Infrastructure 333.9 156.9 177.0
Masterplanning 100.5 1 00.5 -
Development Costs 88.0 88.0 
MTA Interest 935 - 93.5
AY 8. Arena Gross SAC 1,495.4 936.9 558.5
4
Public Subsidies (154.0) (154.0) -
AY 8. Arena SAC Less Subsidies 1,341.4 782.9 558.5
Arena Land Sale (1241)
A

AY SAC 1,217.4 

AY Million Zoning SF 6.48

AY SAC per ZSF $188

Nores:

 

1. Includes 580 mm for MTA Land and 839.8 mm condemnation LC for second taking
2. Excludes 820 mm for water main. 520 mm in corresponding targeted additional subsidy also deleted
3. includes 833.3 mm for block 1129 infrastructure not required for arena opening
4. Assumes 3285 mm in total subsidy less 87 31 mm in subsidy allocated to the arena. 520 mm in

sub3Idy for water main has been deleted along with corresponding costs.



EXHIBIT C: GENERAL ALLOCATION SCHEDULE
Atlantic Yards Site Acquisition Costa - First Taking

December 15. 2010

 

 

 

 

 

 

 

 

 

 

 

 


hcurred Through Projected 10/1l09 Total
5's in millions except per SF 9130109 through Completion First Taking
Land and Land Loan Interest 278.4 100.8 379.2
MTA LC - 86.0 86.0
Infrastructure 57.3 69.0 126.3
Related Infrastructure 77.3 79.6 156.9
Masterplanning 95.6 4.9 100.5
Development Costs 55.9 32.1 88.0
MTA Interest - - -
AY 8. Arena Gross SAC 564.5 372.4 936.9
Land
Site Aoqu-sition Condemnation LC 209.4 57.6 267.0
Interest and Carrying Costs 69.0 23.2 92.2
MTA Land 20.0 20.0
Total 278.4 100.8 379.2
Infrastructure
Uulity Revocation 16.9 9.9 3 26.8
Demolition 11.1 11.1 3 22.2
Environmental Remediation 9.8 13.1 3 22.9
Other Infrastructure Costs 19.5 - 19.5
Parking - 1.6 1.6
Block 1129 Infrastructure - 33.3 4 33.3
Total 57.3 89.0 126.3
8? Related Infrastructure
Temp Yard 53.9 11.9 3 65.7
Canton Avenue Bridge 13.1 3 13.1
Yard Stage 2a 42.7 3 42.7
81 Other Yard Costs 23.4 12.0 35 5
Total URR 8. Related lnfrastructue 77.3 79.6 156.9

 

Notes:

 

1 Additional 55 mm MTA LC is posted and returned within this Dme frame
2. Includes Yard Related Infrastructure

3. Included in Infrastructure Trust Account and monitored by Merritt 8. Harris in connection with arena PILOT

Bond ?nancing See detail on next two pages
4. See detail on block 1129 infrastructure Costs not required for arena opening

04



EXHIBIT C: GENERAL ALLOCATION SCHEDULE
Atlantic Yards Site Acquisition Costs

First Taking - Infrastructure and LIRR Costs Required for Arena Opening

Coss from 10I1I09 through Completion
December 15. 2010

Arena Block
Costs Required for Arena Open'mg to be Incurred After 10I1I09 

 

 

 

 

 

 

 

 

 

 

 

 

Utilities
(Reina rider) 2.353.400
Excav SOE song Flatbush [prev AddIA't) 3.193.417
Sewer extensmn nonh and ByPass 1.270.613
Extend eastside WM to 119 531.378
C0 for Temp utilities for holdouts 50,000
Utilities Trades: 7.298.906
General Conditions .- CM Fee 875.857
Bonds 91.235
Insurance 91235
Permits 72.988
Construction Contingency 421.500
Contingency 421.500
Utilities Hard Costs 9.273.133
Base 129000
Consultants 50.000
Reimbursables 20.000
Preconstruction Services 50.000
Owner's 278,194
Ra 'road Protective Insurance 24.667
Utilities Soft Costs 551.961
Sub-Total Propct Costs 9.824.994
Deve'opment Contngency 27.593
Total Utilities Costs 9.852.587
Demolition
Arena (Is! taking) 9.993.509
Demolition Trades 9.993.569
Insurance 124,920
Construction Contingency 505 924
Contingency 505.924
Demolition Hard Costs 11,130,337
Demolition Costs 11.130.337
Environmental Remediation
Groundwater Remediaton 750.000
UST Remediation 75.000
Arena Block - Arena 8.969.325
LIRR Yard 351.009
Env. Remediation Trades 10,175,334
Bonds 127.192
Insurance 127 192
Permits 101.753
Construction Contingency 526.574
Contingency 528.574
Env. Remediation Hard Costs 1.409.284
Base 90.272
Owner's TestnulSurvey 1.381 163
Env. Remediation Soft Cass 1.451.440
Sub-Total Project Costs 13.036.058
Deve'opment Cont ngency 72.572
To_tal Environmental Remediation Costs 13.108330

 

 

 

 





Atlantic Yards Site Acquisition Costs

First Taking Infrastructure and LIRR Costs Required for Arena Opening

Costs from 10/1/09 through Completion

December 15. 2010

Arena Block

Temporary Yard Relocation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Traces 8 Other Hard Costs 3.551.330
Deadheading 8.307.180
Subtotal 11.058.516
Total Temporary Yard 11.858.516
Carlton Avenue Bridge

Trades 10,790.000

CA8 Trades 10.790.000
Bonds 134.675
Insurance 134.875
Construction Contingency 552.983
Desert-Scope Contingency 552.988

CAB Hard Costs 12,165,725
A36 Base 750.000

Reimbursables 20.000
Owner's Testhurvey 107.900

CAB Soft Costs 977,900
Sub.Total Pro)ect Costs 13.043.625

Deve oprnent Contngency 43.895
Total CAB Costs 13.087.520

LIRR Yard . Stage 23

Trades 35.599921

Stage 2a Trades 35.599321
Bonds 444.999
Insurance 444,999
Construction Contingency 1.524.490
Desngcope Contingency 1.824.490
Stage 2a Hard Costs 40,136,911
Base 1.500.000

Reimbursabies 50.000
Program Manager 500.000
Owner's 355.999
Stage 2a Sol! Costs 2.405.999
Sub-Total Propct Costs 42.544.910
Deve opment Cont'ngency 120 300
Total LIRR Stage 2a Costs 42,665,210
Total CAB and Stage 2a LIRR 55.752.730
[Surface Parking 1,578,404
Total Arena Block 103.201.2114

Reconciliation to P05

Total 103281.204
Less incurred in October (2,785,665:
Remaining 100,495,539

 

Costs for this scope of work will be funded into the infrastructure
Trust Account in connection with Arena Bond Financing. Work
will monitored and certi?ed by Merritt 6 Harris. Merritt Harris

will also approve requisitions.





EXHIBIT C: GENERAL ALLOCATION SCHEDULE

Atlantic Yards Site Acquisition Costs

First Taking -- Infrastructure Costs Not Required for Arena Opening

Costs from 10/1/09 through Completion
December 1 5, 2010

Block 1129 Infrastructure

 

 

 

 

 

 

 

Environmental Remediation - Ground Water Remediation 750.000
Environmental Remediation - Soil 12,803,906
Open Space Landscaping 6,455,592
Sitework (Street Trees) 497.250
Mitigation 1,900,000
Demolition 4,938,060
TT Monitoring 300.000
Subtotal 27,644.807
General Conditions CM Fee 1.062.341
Bonds 280.084
Insurance 345.560
Permits 224,067
Construction Contingency 1,477,843
Design/Scope Contingency 1,477,843
Total Infrastructure Hard Costs 32,512,546
Base 352,780
Consultants 322,780
Reimbursables 25.000
Preconstruction Services 50.000
Owner's TestingISurvey 6.318
Total Infrastructure Soft Costs 756,877
Development Contingency 37.844
Total infrastructure Costs for Block 1129 33,307,267

 



EXHIBIT C: GENERAL ALLOCATION SCHEDULE
A?amic Yards Site Acquisition Costs
Second Taking

Detail of lnfrash'uctu?e, URR. 11d LIRR Relaed Costs

December 15. 2010

 

 

 

 

Infrastructure
Infrastructue
Utilities 8.348.228
Envronmental Remedia?on 23.460380
Open Space Lamscapmg 16,195,608
Site work ijka streetscape) 3.107.987
Mtigahon :?ra Roadway Recor?guration) 1.800130
?adorn 3 MEP 131.568.7011)
Demolition 3.949.576
Subtotal Trades 188.439.459
General CM Fee 17,106,460
Bonds 2.311.124
nsuranoe 2.360.493
Permts 1.848.899
Construction Contingency 10.331.212
Design'Soope Contingency 10,331,212

232123753-

Semces 14.779321
Owners ?esting'Survey 675100
Ownefs 'estinnguvey 5.116.450
Soft Costs 20,570,501
Sub-Total Project Costs 253.299.1150
Development Contngency 1.006.753

Letal Second Taking Infrastructure Costs 254,306.11 1

 

 

Rernamder of URR and URR Relaed Infrastructure

 

 

 

 

 

 

 

 

Remainder of Permanent Yard
Trades 82,532.12
General CM Fee 18,329,580
Bonds 1.056.696
-nsuranoe 1.056.696
Contingency 12,875,346
Desm' Contingency 5.248.031
Total LRR Hard Costs 121.099.373
Deadleadingl'l?EAlether Soft (2056 11.183.413
Sub-Total Prone! Costs 132,292,786
Development Contngency 30.606
Total Remainder of Permanent Yad 132,323,591
URR Yard Related Infrastructure 
Trades 33.354537
URR Yard Related lntrastruaure 33.351537
4.660.635
Bonds 416.032
nsurance 416.932
Construczion Comingency 3.885.604
Design-Some 1? 1.132.932
Total Hard Costs 44,686,741
LIRR Yard Related Infrastructure ??86,741
Tot. Remainder of Perm. Yard and Yard Related lntra_strume 177.010.1132

 

 

 

 

i

1. 





 

 

Exhibit D?l

 

 

 

 

 

 

 

 

 

 

 

 

 

Annual PILOT Basehnes

5mm 0-1

a 491051119111

Anna! not 53mm cam

became: 16 2009

Tax 0130: 2 13 05311

cuss 4 1:1 61231
may 4661131 Rae 3033400000011 v01 111010000 1104112) 2010 2011 2012 2013 2014 2015 2010 2011 2010 2013 2020 2021 (31
mg 01m Lot 4mm. mmvu. mu. M11111 mmyu Amount 14) 0-0 25-10 2531. 253'. 2510 3% 310 30 31. 31s 33'. 315

0 B1 2.030415 2. .475 213.1 323.001 213.140 44401 279.146 290.261 301 376 312492 323.607 333 315 343.314 363 614 364222 375.149 306.403 397.995
?Wu?0'2 4301.005 1.142350 404.370 330.035 121.231 411.744 121.291 225.727 330.163 434.599 539.035 555 206 571.062 559.010 606.605 624.009 643.635 662944
222033 210.513 20.704 30.357 25.401 5.470 25.401 26.050 20219 29.500 30.957 31006 32.042 33.320 34.042 35.030 36,964 33.073
Anna 010011 7.234113 3.303340 770.020 033.330 425310 407.000 420.310 542.030 033.750 170.013 033.30 320400 343010 316453 1.005733 1.035325 1.007.003 1.000.013
010a: 1123 7322050 2.443.302 041.151 375.124 200.302 114.742 2011302 433.000 017.753 730433 315124 1.004370 1.034510 1.003.545 1.031.511 1.130431 1.104350 1.130200
511 253'. 1,900,515 512.325 210200 243.731 65.096 170.606 66.096 109.167 154436 199.110 243.731 251095 258.627 266.336 214.370 202.609 291.007 299.320
012 253'. 1900515 612.325 210230 243.701 65.096 170.606 55.096 109.767 154436 199.110 243.701 251096 250.627 266.356 274.373 202609 291 007 299m
013 2511 1900515 012325 210200 243.701 55.096 170.606 65.096 109.767 154.436 199.110 243.761 251095 256.627 266 336 274.370 252.609 291.007 299.320
014 253. 1.900.515 612.325 210.200 243.701 65.096 170.606 65.096 109.757 154430 199.110 243.751 251.096 250.627 265.306 274.370 202.609 291 007 299.320
Wan? 13.5171 0.433 1011377 723 300 520 103 100302 333

1400-:

111mvawmaaxmxuw

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(2)516ca1yezmmury1 mmaonwzmomaoem 1.2mm971u1e30.2u10



D?l

1

Exhibit 

Pro Forma PILOT Value Calculation

Exhibit 0-2

Master Participation Agreement
PILOT Bene?t - Illustrative Example
December '16, 2009

Building Eleven

 

 

 

PILOT Payments Commence: 2/1/2010

Regular Accrual Rate 6.25%

Building Substantial Completion Date Jun-13 1

Tax Year Ending Jun-10 Jun-11 Jun-12 Jun-13
Actual Tax Calculation (from Exhibit 26,942 109,767 154,438 199,110
Less: PILOT annually) (1) (1) (1) (1)
Value of PILOT Bene?t 26,941 109,766 154.437 199.109
Ci '5 PILOT Account

BOP PILOT Value - 26,941 138,391 301,478
PILOT Value Contributed this Period 26,941 109,766 154,437 199,109
Return Earned this Period Regular Accrual Rate) - 1,684 8,649 18,842
EOP PILOT Value 26,941 138,391 301,478 519,429
Note:

(1) After substantial completion. outstanding PILOT Value would continue to accrue at regular accrual rate until Expiration Date

(2) First year pro-rated for partial tax year (Feb I - June 30)

1

Exhibit E
Form of Memorandum
Dated as of

, 20_

N_a_m_e_an_d_A_d_d_re_s_s_o_f_S_it_e_ _I_[
.
I_. Owner:
Execution Date of Joinder:

J

---.J

_ _ _ _ _,20_

Description of the Participating The Premises, as defined in that certain Agreement of
Site:
Development Lease, dated as of [
J, 200[ ], by and,among
the New York State Urban Development Corporation d/b/a
the Empire State Development Corporation ("ESDC") and
the Site Owner, and as more particularly described on
Schedule 1 attached hereto and made a part hereof (the
"Participating Site").
Memorandum of Master
Participation Agreement:

Reference is hereby made to that certain Master Participation
Agreement, dated as of December [ J, 2009, by and among
Atlantic Yards Development Company, LLC, a Delaware
limited liability company ("AYDC"), The City of New York
(the "City") and each Affiliate of AYDC that executes a
Joinder pursuant to Section 2 thereof (each, a Site Owner"), .
as the same may be amended from time to time (the
"Agreement").
Pursuant to Section 2 of the Agreement, the Site Owner set
forth above has executed a Joinder to the Agreement as of
the date hereof. Accordingly, this instrument, executed
pursuant to Section 2(b) of the Agreement, is intended to be
and is entered into as a memorandum thereof for the purpose
of recordation and the giving of notice of the Agreement with
respect to the Participating Site, and shall not, in any event,
be construed to change, vary, modify or interpret the
Agreement or any of the terms, covenants or conditions
thereof. All of the terms, covenants and conditions contained
in the Agreement are hereby incorporated herein·by reference
with like effect as if set forth herein verbatim.
Particular notice is hereby given of the right of the City to
payment of a share of proceeds from the sale of all or part of
the Participating Site or a financing or refinancing, in certain
circumstances described in the Agreement, which, if not paid
when due, the City will be entitled to payment thereof out of

Exhibit E-l
us\GURKOGE\752 1838. I

 the Participating Site.
This Memorandum shall constitute an encumbrance against
the Participating Site and a lien for any amounts determined
to be due to the City in accordance with the Master
Participation Agreement.
This Memorandum may be executed in counterparts.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

Exhibit E-2
usIGURKOGEI75218J8. 1

 IN WITNESS WHEREOF, the City and Site Owner have executed this Memorandum as
of the date and year first above written.
THE CITY OF NEW YORK

By:

Name:
Title:
Approved as to Form:

Acting Corporation Counsel
[SITE OWNER]

By:
Name:
Title:

Exhibit E-3
us\GURKOGE\ 7521838. 1

 ACKNOWLEDGMENT
STATE OF NEW YORK

}

55

..

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 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 OFNEW YORK

}

55

..
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 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 E-4
us\GURKOGE\752 1838 I

 SCHEDULE I (to Memorandum)

Legal Description of Participating Site

KOG 

Exhibit F
Form of Memorandum Release
THIS TERMINATION OF MEMORANDUM OF AGREEMENT, dated as of the _ day
of
, 20_ (this "Termination") by and between The City of New York (the "City") and
[
] ("Site Owner") a Site Owner that is party to that certain Master Participation
Agreement, dated as of December [ ], 2009, by arid among Atlantic Yards Development
Company, LLC, a Delaware limited liability company ("AYDC"), the City of New York (the
"City") and each Affiliate of AYDC that executes a Joinder pursuant to Section 2 thereof (as
may be amended from time to time, the "Agreement"). '

WHEREAS, Site Owner, as a Site Owner of the Participating Site more particularly
described on Schedule 1 attached hereto (the "Participating Site"), executed a Joinder to
the Agreement in accordance with Section 2 of the Agreement; and
WHEREAS, pursuant to Section 2 of the Agreement, the Site Owner and the City
recorded a Memorandum of the Agreement (the "Memorandum") for the purpose of
recordation and the giving of notice of the Agreement with respect to the Participating Site;
NOW, THEREFORE, Landlord and Tenant declare as follows:
1.
Memorandum of Agreement. The Memorandum was recorded in the office
of the Register of The City of New York on
, 20_, bearing City Register
File No. (CFRN)
_
2.
Expiration of Agreement. Pursuant to Section 1(b) of the Agreement, the
Expiration Date has occurred with respect to the Participating Site.
3.
Termination of Memorandum of Agreement. In connection with the
Expiration Date occurring with respect to the Participating Site, the Memorandum is of
n'o further force and effect and the parties hereto wish to terminate the Memorandum
pursuant to the recordation of this Termination.
4.
Definitions. Capitalized terms used but not otherwise defined herein have
the meaning ascribed thereto in the Agreement.
5.

Counterparts. This Termination may be executed in counterparts.

[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

Exhibit F-l
lIs\G URKOGE\7;21838. 1

 IN WITNESS WHEREOF, the City and Site Owner have executed this Termination of
Memorandum as of the date and year first above written.
THE CITY OF NEW YORK

By:
Name:
Title:
Approved as to Form:

Acting Corporation Counsel
[SITE OWNER]

By:
Name:
Title:

Exhibit F-2
usIGURKOGE\7S21838.1

 ACKNOWLEDGMENT
STATE OF NEW YORK

}

55

..

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 ofsatisfactory 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

}

55

..
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 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 F-3
us1GURKOGE17521838.1

 SCHEDULE I (to Termination of Memorandum of Agreement)
.Legal Description of Participating Site

F-4
us\GURKOGE\7521838 .1

 Exhibit G
Form of Joinder
Reference is hereby made to that certain Master Participation Agreement, dated
December _, 2009, by and among Atlantic Yards Development Company, LLC, a Delaware
limited liability company ("AYDC"), The City of New York (the "City") and each Affiliate of
AYDC that executes a Joinder pursuant to Section 2 thereof, as the same may be amended from
time to time (the "Agreement"). All capitalized terms used but not otherwise defined in this
Joinder shall have the meaning given to such terms in the PILOT Agreement.
By execution of this joinder (this "Joinder"), the undersigned (the "Site Owner") hereby
agrees to become a party to the Agreement as a "Site Owner" thereunder and to be bound and
governed by the terms and conditions of the Agreement applicable to the Site Owner as a "Site
Owner" thereunder. The Site Owner acknowledges and agrees that the City shall have the right,
subject to certain limitations in the Agreement, to directly enforce the Site Owner's obligations
under the Agreement.
The Site Owner represents and warrants that it has (i) received and reviewed a complete
copy of the Agreement (including all exhibits thereto) and such other information requested by
the Site Owner with respect to the rights and obligations of a "Site Owner" under the Agreement,
and (ii) had the opportunity to ask questions about the Agreement and the rights and obligations
of a "Site Owner" under the Agreement, and that all such questions have been answered to the
Site Owner's satisfaction.
The address for the Site Owner for any notice, demand or request pursuant to the terms of
this Joinder and the Agreement is as follows:

With copies to:

0-1
us\GURKOGE\7521838.1

 IN WITNESS WHEREOF, the Site Owner has executed this Joinder as of this _ day of
_ _ _ _ _,20_,

. By:
Name:
As Its:

_

--,----------

G-2
us\GURKOGE\752 1838. I

 EMN

armpinumx

Exhibit 

Pro Forma City Participation Payment Calculation

I IAULE - DLL WI FOR GL1 I

 

 

 

 

 

 

 

 

 

 

 

 

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