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Escrow Agreement RIOC FDR JP Morgan 2010

Escrow Agreement RIOC FDR JP Morgan 2010

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Published by: rooseveltislander on Mar 31, 2010
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THIS ESCROW AGREEMENT ("Agreement") is entered into as of this __ day of March, 2010, by and among ROOSEVELT ISLAND OPERATING CORPORATION, a body corporate and politic constituting a political subdivision of the State of New York and a public benefit corporation ("RIOe'), FRANKLIN D. ROOSEVELT FOUR FREEDOMS PARK LLC, a New York limited liability company ("FDR LLC"), and lP MORGAN CHASE BANK, N.A., a ("Escrow Agent"). RIOC, FDR LLC and Escrow Agent are sometimes referred to herein as the "Parties" and individually, as a "Party."


WHEREAS, RIOC and FDR LLC have entered into that certain Development Agreement of even date herewith (the "Development Agreement") with respect to the development of a Louis Kahn-designed, public open space on an approximately 4.5 acre site at the southern point of Roosevelt Island (the "Project Site") for a memorial and open space area to be known as "Franklin D. Roosevelt Four Freedoms Park" (the "Project");

WHEREAS, pursuant to the Development Agreement, RIOC and FDR LLC have agreed to escrow certain funds privately raised by FDR LLC to facilitate construction of the Project;

WHEREAS, certain funds have been allocated by both Nev.' York City and New York State for use in the Project, such funds to be disbursed through RIOC, and

WHEREAS, the parties desire to establish this Agreement to provide for the disbursement of funds as provided herein.

NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein and for other valuable consideration in hand paid, the receipt and sufficiency of which is acknowledged by the parties, the parties agree as follows:

1. R,erow funds, C~~~'OntlY Ilt'i,~ith, FDR LT,C has deposited ~JiJ~!"§w ," /"

Agent the amount of Four Million v Hundred~liiliusand and No/lOO Dollars (~,GQQ. ~ ~ representing the amount of private funds necessary for completion of so-called "Phase I" of the /" d7 UVV"'-.._ Project pursuant to the terms of the Development Agreement (the "Escrow Funds"). Escrow ~ Agent hereby acknowledges receipt of the Escrow Funds. The Escrow Funds shall be held and (

disbursed by Escrow Agent strictly in accordance with the terms of this Agreement.

2. Public Funds. Both New York City and New York State have allocated funds to

be applied in connection with the Project. RIOC may, as funds are received from the applicable governmental agency or are otherwise ready for disbursement, wire such additional funds to Escrow Agent, which funds will be held and disbursed together with the Escrow Funds in accordance with the terms of this Agreement.

PRV 1064079.1

3. Escrow Accounts. Escrow Agent shall receive the Escrow Funds into a n011-

interest-bearing account in the name of Escrow Agent (the "Master Account") for the benefit of FDR LLC. Within one (1) Business Day (as defined herein) after receipt of the Escrow Funds, Escrow Agent shall transfer the Escrow Funds to a separate interest-bearing sub-account under

the name of Escrow Agent, as escrow agent for the benefit of FDR LLC, which account shall bear FDR LLC's tax identification number, as referenced in Section 7 hereof (the "SubAccount"). Escrow Agent shall not co-mingle any portion ofthc Escrow Funds held in the SubAccount with other funds of Escrow Agent or any other person or entity. No earlier than one (1) Business Day prior to the Escrow Agent's making a disbursement authorized under this Agreement, Escrow Agent may pursuant to written instructions transfer the required amount of Escrow Funds from the Sub-Account to the Master Account. Escrow Agent shall then make a disbursement from the Master Account in accordance with the terms of this Agreement, Escrow Agent may co-mingle any portion of the Escrow Funds that are permitted to be held in the Master Account under this Section 3 with other funds of Escrow Agent or any other person or entity. All account statements and interest reports for the Sub-Account shall be mailed to FDR LLC with a copy to RIOC at the primary address (without the need for copies) set forth in Section 12 hereof. FDR LLC shall be responsible for any taxes dne in connection with interest earned 011 the Escrow Funds in the Sub-Account, and FDR LLC's tax identification number as set forth in Section 6 shall be utilized for all tax reporting purposes related thereto. FDR LLC shall provide to Escrow Agent an executed, current IRS Form W-9 complete with its tax identification number, as referenced in Section 6 hereof.

4. Disbursement of Escrow Funds.

4.1 FDR LLC shall have the right to request the disbursement of portions of the Escrow Funds monthly, upon submission to RIOC of FDR LLC's Requisition Certificate in the form attached hereto as Exhibit A, together with a description of the work for which the Escrow Funds are requested, applicable lien waivers and such other back-up documentation as is required for construction requisitions pursuant to the Development Agreement (collectively, a "Requisition"). FDR LLC shall send copies of each such Requisition to Works in Progress, the construction consultant for RIOC ("RIOCs Consultant"). Such copies shall be sent to such parties at the notice addresses set forth in Section 11 hereof. For the purposes of this Section 4.1 only, FDR LLC shall not be required to send copies of Requisitions to outside counsel to RIOC in order for such notice to be effective under this Agreement.

4.2 Within ten (10) Business Days after RIOC's Consultant and RIOC have received or are deemed to have received (pursuant to Section 11 hereof) such Requisition ("RIOC's Review Period"), (a) RIOC shall promptly instruct Escrow Agent, in the form of instruction attached hereto as Exhibit B (the "Escrow Agent Instruction"), to advance the requested amount and Escrow Agent shall advance such requested amount to FDR LLC's account as provided in the Escrow Agent Instruction, or (b) RIOC shall provide FDR LLC with written notice of rejection of all of any portion of the Requisition and the basis for which such rejection is being made. For the purposes of this Agreement, a "Business Day" shall mean any day other than Saturdays, Sundays, and banking holidays in the State of New York.

4.3 During the existence of an uncured event of default by FDR LLC under the terms of the Development Agreement, RIOC may, at its option, direct the Escrow Agent, by means of an Escrow Agent Instruction, to make any or all disbursements authorized hereunder pursuant to a Requisition, directly to the construction manager, tradesman,

PRV 1064079.1

suppliers, andlor other vendors, provided the accounts for such parties arc set forth in the Escrow Agent Instruction. If the Development Agreement is terminated, RIOC may, at its option, direct the Escrow Agent, by means of an Escrow Agent Instruction, to make any and all disbursements authorized hereunder pursuant to a Requisition, to the account of RIOC or RIOC's designees. No further authorization from FDR LLC shall be necessary for any such direct disbursements.

5. Rights of the Escrow Agent. Notwithstanding any provision of this Agreement to

the contrary, Escrow Agent is hereby expressly authorized to regard and to comply with and obey any and all orders, judgments or decrees entered or issued by any court in respect of the Escrow Funds or the Sub-Account, and in case Escrow Agent obeys or complies with any such order, judgment or decree of any court, Escrow Agent shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance, notwithstanding any such order, judgment or decree be entered without jurisdiction or be subsequently reversed, modified, annulled, set aside or vacated. In case of any suit or proceeding regarding the Escrow Funds to which the Escrow Agent is or may at any time be a party, the parties agree that the non-prevailing party shall pay to Escrow Agent upon demand all reasonable out-of-pocket costs and expenses incurred by Escrow Agent in connection herewith. Escrow Agcnt shall send notice of any such withdrawal of funds to FDR LLC and RIOC. Except as set forth in the immediately preceding sentences, any escrow fee, as described in Schedule 2 attached hereto, to be charged by the Escrow Agent shall be borne by FDR LLC .

6. Interest on Escrow Funds

The Parties have provided the Escrow Agent with their respective fully executed Internal Revenue Service ("IRS") Form W-8, or W-9 andlor other required documentation. The Parties each represent that its correct TIN assigned by the IRS, or any other taxing authority, is set forth in the delivered forms.

All interest or other income earned under this Agreement shall be allocated to FDR LLC and reported, as and to the extent required by law, by the Escrow Agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned from the Escrow Funds by the FDR LLC whether or not said income has been distributed during such year. Any other tax returns required to be filed will be prepared and filed by the FDR LLC with the IRS and any other taxing authority as required by law, including but not limited to any applicable reporting or withholding pursuant to the Foreign Investment in Real Property Tax Act ("FIRPTA"). FDR LLC and RIOC acknowledge and agree that Escrow Agent shall have no responsibility for the preparation andlor filing of any tax return or any applicable FIRPT A reporting or withholding with respect to the Escrow Funds or any income earned by the Escrow Funds. FDR LLC and RIOC further acknowledge and agree that any taxes payable from the income earned on the investment of any sums held in the Escrow Funds shall be paid by FDR LLC . In the absence of written direction from the FDR LLC and RIOC , all proceeds of the Escrow Funds shall be retained in the Escrow Funds and reinvested from time to time by the Escrow Agent as provided in this Agreement. Eserow Agent shall withhold any taxes it deems appropriate, including but not limited to required withholding in the absence of proper tax documentation, and shall remit such taxes to the appropriate authorities


PRV [064079.1

7. Supplemental Escrow Provisions.

(a) The Escrow Agent shall have only those duties as are specifically and

expressly provided herein, which shall he deemed purely ministerial in nature, and no other duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and conditions of any other agreement, instrument 01' document between the Parties, in connection herewith, if any, including without limitation the Development Agreement, nor shall the Escrow Agent be required to determine if any person 01' entity has complied with any such agreements, nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto may be made in this Agreement. In the event of any conflict between the terms and provisions of this Agreement, those of the Development Agreement, any schedule or exhibit attached to this Agreement, or any other agreement among the Parties, the terms and conditions of this Agreement shall control. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through attorneys, and shall be liable only for its gross negligence or willful misconduct (as finally adjudicated in a court of competent jurisdiction) in the selection of any such attorney. The Escrow Agent may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with, 01' in reliance upon, the advice or opinion of any such counsel, accountants or other skilled persons. RIOC and FDR LLC agree that Escrow Agent shall incur no liability whatsoever in connection with its good faith performance under this Agreement, and hereby jointly [mel severally release and waive any claims each may have against Escrow Agent that may result from its performance in good faith of its obligations under this Agreement, including but not limited to, a delay in the electronic wire transfer of the Escrow Funds. Escrow Agent shall be liable only for loss or damage caused directly by its acts of gross negligence, fraud or willful misconduct while performing as escrow agent under this Agreement. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

(b) Escrow Agent may rely upon the authenticity of any signature and the

genuineness and validity of any writing received by Escrow Agent relating to this Agreement.

(c) If any disagreement between RIOC and FDR LLC results in conflicting

instructions to, or adverse claims or demands upon Escrow Agent with respect to the release of the Escrow Funds, Escrow Agent may refuse to comply with any such instruction, claim or demand during such disagreement, and Escrow Agent shall not release the Escrow Funds in connection with its refusal to comply with such instruction, claim or demand. Escrow Agent shall not be liable in any way for its failure or refusal to comply with any such conflicting instructions, adverse claims 01' demands and it may continue to refrain fr0111 acting until such conflicting instructions, adverse claims or demands have been: (i) adjusted by agreement and Escrow Agent has been notified in writing thereof by RIOC and FDR LLC; or (ii) finally determined in a court of competent jurisdiction


PRV 1064079.1

(d) Except as provided for in Section 5 hereof, Escrow Agent shall be entitled

to reimbursement of documented reasonable attorneys' fees and other documented out-of-pocket expenses incurred by it in the performance of its duties under this Agreement, which shall be paid by FDR LLC. Escrow Agent shall not take these fees and expenses from the Escrow Funds. If Escrow Agent's duties and responsibilities are increased beyond those contemplated by this Agreement, additional compensation will be allowed as agreed upon in writing by FDR LLC. Such additional compensation shall be paid by FDR LLC.

(e) Escrow Agent may resign at its sole discretion by givmg (30) days'

written notice thereof to RIOC and FDR LLC. RIOC and FOR LLC shall furnish to Escrow Agent written instructions for the release of the Escrow Funds. If Escrow Agent shall not have received such written instructions within such thirty (30) days, Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor escrow agent and upon such appointment, deliver the Escrow Funds to such successor. Escrow Agent's sole responsibility after such thirty (30) day notice period expires shall be to hold the Escrow Funds (without any obligation to reinvest the same) and to deliver the same to a designated substitute escrow agent, if any, or in accordance with the directions of a final order or judgment of a court of competent jurisdiction, at which time of delivery Escrow Agent's obligations hereunder shall cease and terminate

(f) Escrow Agent neither approves nor disapproves of this transaction, nor

does it recommend for or against this transaction, nor does it have an opinion as to the legality or validity of the transaction.

(g) Upon making complete disposition of the Escrow Funds in accordance

with this Agreement, Escrow Agent shall be deemed fully released and discharged from any and all duties and obligations under this Agreement, without the need that any other documentation be executed by RIOC 01' FDR LLC.

(h) During the term of this Agreement, Escrow Funds shall be invested into

lP Morgan Money Market Fund , or a successor or similar investment offered by the Escrow Agent, as instructed in writing by FDR LLC and RIOC and as shall be acceptable to the Escrow Agent. FDR LLC and RIOC acknowledge receipt of a prospectus for the above referenced money market fund. The Escrow Agent will provide compensation on balances in the Escrow Funds at a rate based upon market conditions. Written investment instructions, if any, shall specify the type and identity of the investments to be purchased and/or sold. The Escrow Agent is hereby authorized to execute purchases and sales of investments through the facilities of its own trading or capital markets operations or those of any affiliated entity. The Escrow Agent or any of its affiliates may receive compensation with respect to any investment directed hereunder including without limitation charging an agency fee in connection with each transaction. FDR LLC and RIOC recognize and agree that the Escrow Agent will not provide supervision, recommendations or advice relating to either the investment of moneys held in the Sub-Account or the purchase, sale, retention or other disposition of any investment described herein. The Escrow Agent shall not have any liability for any loss sustained as a result of any investment in an investment made pursuant to the terms of this Agreement or as a result of any liquidation of any investment prior to its maturity 01' for the failure of FDR LLC ancI RIOC to give the Escrow Agent instructions to invest or reinvest the Escrow Funds The Escrow Agent shall have the right


PRV 1064079.1

to liquidate any investments held in order to provide funds necessary to make required payments under this Agreement. In absence of written instructions from thc FDR LLC and RIOC, the Escrow Agent shall invest Escrow Funds into JP Morgan Money Market Deposit Account ("MMOA"). The rate of return on an MMOA varies from time to time based upon market conditions

(i) FDR LLC hereby certifies that it is aware that the Federal Deposit

Insurance Corporation ("FDIC") insurance coverages apply only to an aggregate maximum amount of $250,000 for each individual depositor's cumulative accounts at the same or related institution.

CD FDR LLC understands that Escrow Agent assumes no responsibility for,

110r will FDR LLC hold Escrow Agent liable for, any loss caused by an increase in the SubAccount that causes the aggregate amount of FDR LLC's cumulative accounts at the same or related institution to exceed $250,000, and that such excess amount is not insured by the FDIC.

8, Collateral Assignment.

FDR LLC hereby collaterally assigns and pledges to RIOC, pursuant to the terms of the Development Agreement, all of its right, title and interest in the Escrow Funds and the SubAccount for the sole purpose described in (and subject to) the terms of Section 11 of the Development Agreement.

9. Indemnity. The parties acknowledge and agree that Escrow Agent is acting solely

as escrow agent at their request and for their convenience, that Escrow Agent shall not be deemed to be the agent of FDR LLC 01' RIOC, and that Escrow Agent shall not be liable to any other party for any action or omission on its part taken or made in good faith, and 110t in disregard of this Agreement, but shall be liable for its gross negligence and willful misconduct. FOR LLC shall indemnify and hold Escrow Agent harmless from and against all losses, damages, claims, liabilities, penalties, judgments, settlements, litigation, investigations, costs or expenses (including, without limitation, the fees and expenses of outside counsel) (collectively "Losses") arising out of or in connection with (a) the Escrow Agent's execution and performance of this Agreement, tax reporting or withholding, the enforcement of any rights or remedies under or in connection with this Agreement, or as may arise by reason of any act, omission or error of the indemnitee, except in the case of any indenmitee to the extent that such Losses are finally adjudicated by a court of competent jurisdiction to have been primarily caused by the gross negligence or willful misconduct of such indemnitee, or (b) its following any instructions or other directions, whether joint or singular, from the Parties, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. The provisions of this Section 9 shall survive the termination of this Agreement.

10, Disbursement to RIOC. If FOR LLC has failed to timely reimburse RIOC for any

amounts which it is obligated to reimburse RIOC under the Development Agreement (taking into consideration any applicable notice and cure periods as set forth therein), RIOC may submit a requisition to Escrow Agent (with a copy to FOR LLC) for the amount of such reimbursement from the Escrow Funds.


PRV 1064079.1

11. Notices. (a) Whenever it is provided in the Agreement that a notice, demand,

request or other communication shall have given or may be given to or be served upon any of the parties by the other and whenever either of the parties shall desire to give or serve upon the other any notice, demand, request or other communication with respect to the provisions of this Agreement, each such notice, demand, request 01' other communication shall be in writing and, any law or statute to the contrary notwithstanding, shall be effective for any purpose if given or served to each of the other parties as follows:

(1) if to RIOC, by (i) certified 01' registered United States mail, return receipt requested, postage pre-paid, (ii) by facsimile transmission, (iii) by personal delivery, (iv) by nationally recognized expedited delivery service providing evidence of delivery, or (v) bye-mail. Written notices to RIOC shall be addressed to the President of Roosevelt Island Operating Corporation of the State of New York, 591 Main Street, Roosevelt Island, New York, 10044, Telephone No. (212) 832-4540, Facsimile No. (212)832-4582, E-mail address: sshane@rioc.com (or to such other addressees) as RIOC may from time to time designate by notice given to the City as provided for in this subparagraph), with a further copy to: Roosevelt Island Operating Corporation of the State of New York, 591 Main Street, Roosevelt Island, New York, ] 0044, Attention: Chief Financial Officer, with a further copy to: Roosevelt Island Operating Corporation of the State of New York, 591 Main Street, Roosevelt Island, New York, 10044, Attention: General Counsel, with a further copy to: Carter Ledyard & Milburn LLP, 2 Wall Street, New York, New York 10005, Attention: Barbara Brown, Esq.

(2) if to the City, by delivering or by mailing (by registered or certified mail, postage prepaid, return receipt requested) such notice to the City addressed to the Commissioner of New York City Parks and Recreation, The Arsenal, Central Park, 830 Fifth Avenue, New York, N.Y. 10021, with a copy to the New York City Law Department, 100 Church Street, New York, N.Y. AU: Chief, Economic Development Division, and with a copy to New York City Economic Development Corporation, Attention: General CounseL

(3) if to FDR LLC and/or the Institute: William J. vanden Heuvel, Allen & Company, 711 5th Avenue, New York, New York 10022, with a copy to: Sally Minard, Franklin D. Roosevelt Four Freedoms Park LLC, 133 East 62nd Street, New York, New York 10065, with a further copy to: Gina Pollara, Franklin D. Roosevelt Four Freedoms Park LLC; 147 West 35th Street, Suite 601, New York, New York 10001, with a further copy to: Edwards Angell Palmer & Dodge LLP, Attention: Thomas J. Freed, Three Stamford Plaza, 301 Tressel' Boulevard, Stamford, Connecticut 06901.


PRV 1064079.1

(4) if to Escrow Agent: JP Morgan Chase Bank, N.A, Escrow Scrvices4 New York Plaza, 21st Floor, New York, NY 10004, Attention: Ilona Kandarova/ Andy Jacknick, Facsimile: (212) 623"6168.

(5) If to RIOC's Consultant: Debra Inwald, Principal, AlA, LEED

AP, Works-in-Progress Associates, 33 Rector Street, 14th Floor, New York, New York 10006

(b) Any such notice shall be deemed to have been given either at the time of personal

delivery or, in the case of expedited delivery service or certified or registered United States mail, as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of facsimile transmission, upon receipt.

(c) The parties may, from time to time, specify any new or different address in the

United States as their address for purpose of receiving notice under this Agreement by giving fifteen (15) days written notice to the other party sent in accordance herewith. The parties agree to mutually designate individuals as their respective representatives for the purposes of receiving notices under this Agreement. Additional individuals may be designated in writing by the parties for purposes of implementation and administration/billing, resolving issues and problems and/or for dispute resolution.

12. No Modification. This Agreement is being entered into to implement the

disbursement of private funds under the Development Agreement and shall not (nor shall it be deemed to) amend, modify or supersede the Development Agreement nor act as a waiver of any rights, obligations or remedies set forth therein; provided, however, that Escrow Agent may rely upon this Agreement in its actions with respect to the Escrow Funds.

13. Counterparts. This Agreement may be executed in counterparts, each of which

shall be an original, but such counterparts together shall constitute but one and the same instrument. All signatures need not appear on the same counterpart.

14. Governing Law. This Agreement shall be governed by and construed and

interpreted in accordance with the laws of State of New York without giving effect to principles of conflicts of laws. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.

15. Amendment. This Agreement may not be amended except by written instrument

duly executed by all parties.

16. Captions. The captions in this Agreement are for convenience only and shall not

be construed in interpreting any term of provision hereof.

17. Successor and Assigns. FDR LLC may not assign its interest in this Agreement

without the prior written consent of RIOC, which may be withheld in RIOC's sole discretion, subject to the terms of the Development Agreement. Whenever in this Agreement either of the


PRV 1064079.1

parties hereto is referred to, such reference shall be deemed to include the successors and permitted assigns of such party.

18. Severability. In case anyone or more of the provisions contained in this

Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, but this Agreement shall be reformed and construed and enforced to the maximum extent permitted by applicable law.

19. Entire Contract. This Agreement and the Development Agreement constitute the

entire agreement among the parties hereto with respect to the subject matter hereof and shall supersede and take the place of any other instruments purporting to be an agreement of the parties hereto relating to the subject matter hereof.

20. Termination. This Agreement shall automatically terminate and be of no further

force and effect (except as to provisions surviving such termination) upon the disbursement by Escrow Agent ofthe entirety of the Escrow Funds.

21. Force Majeure. No patty to this Agreement is liable to any other party for losses

due to, or if it is unable to perform its obligations under the terms of this Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control.

22. Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by

Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 200 1 ("USA PA TRIOT Act") requires the Escrow Agent to implement reasonable procedures to verify the identity of any person that opens a new account with it. Accordingly, the Parties acknowledge that Section 326 of the USA PATRIOT Act and the Escrow Agent's identity verification procedures require the Escrow Agent to obtain information which may be used to confirm the Parties identity ineluding without limitation name, address and organizational documents ("identifying information"). The Parties agree to provide the Escrow Agent with and consent to the Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent.

23. Security Procedures. (a) In the event funds transfer instructions are given

whether in writing, by facsimile or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on schedule 1 hereto ("Schedule 1 "), and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person 01' persons so designated. Each funds transfer instruction shall be executed by an authorized signatory, a list of such authorized signatories is set forth on Schedule 1. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in Schedule 1, the Escrow Agent is hereby authorized to seek confirmation of such instructions by telephone call-back to anyone or more of FDR LLC or RIOC executive officers, ("Executive Officers"), as the case may be, which shall include the titles of President, Vice President or General Counsel, as the Escrow Agent may select. Such "Executive Officer" shall deliver to the Escrow Agent a fully executed


PRV [064079.1

incumbency certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. The Escrow Agent and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by FOR LLC and RIOC to identify (a) the beneficiary, (b) the beneficiary's bank, or (c) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank 01' an intermediary bank designated. The Parties acknowledge that these security procedures are commercially reasonable.

[Signatures on Next Page)


PRV 1064079.1

IN WITNESS WHEREOF, the undersigned have executed this Agreement as an instrument under seal as of the date first set forth above.


By: _

Stephen H. Shane

President and Chief Executive Officer



ame: Ilona Kandarova Title: Vice President

PRY 1064079.1

IN WITNESS WHEREOF, the undersigned have executed this Agreement as an instrument under seal as of the date first set forth above.


By: ~-----------------

Sally Minard

President and CEO



BY:-&~~~~~-L~~~~-- _

Steph n H. Shane

President and Chief Executive Officer


By: ---- _

Name: Ilona Kandarova

Title: Vice President

PRY 1064079.1



[ attached hereto]

PRY 1064079.1




You are hereby requested to instruct JP Morgan Chase Bank, N.A. ("JP Morgan") to disburse funds from the XXXXX project account of the escrow fund created pursuant to that certain Escrow Agreement dated as of March _,2010, between JP Morgan, FDR LLC and RIOC, in the following amount, to the following patty, and for the following purpose:






FDR LLC hereby certifies that:

(a) This Requisition is in the form of requisition required by the Escrow Agreement.

(b) This Requisition (together with all documentation submitted herewith) complies in all respects with the terms and provisions of that certain (i) Development Agreement dated March _,2010 between FDR LLC and RIOC, and (ii) Funding Agreement between the City of New York and RIOC.

(c) The expenditure for which amounts are being requisitioned represents a proper charge against the monies in the xxxxx project account, and has not been included in any previous requisition.

PRV 1064171.1




DATE: __


Roosevelt Island Operating Corporation hereby instructs JP Morgan Chase Bank, N.A. to release unto [Franklin D. Roosevelt Four Freedoms Park LLC] [Roosevelt Island Operating Corporation] the amount of $ , which amount shall be wired to account

number pursuant to the wiring instructions set forth below.

Wiring Instructions:


By: ___



PRY 1064079.1


Tdt'pholll' Numher(sJ alld alil/tori=ed signa/lifers) (or Persoll(s) Designated (0 gh'e FUlids Transfer lllstmc(iolls

r. S cJ~ lVL l~ 2, ~\~Ii, ThUMA..

Telephone Number ,-<-Sl!lO' "'-'1!~/

(1.16J 4 &-6 -61,r: ~~?;) ~ 4--~~3_L_ ;/ ~/

If to FDR LLC :


If to RIOC:

Name Telephone Number

J. Mun e shwa r 18 gd ba rry 212 - 8 .;>.3 24:.-=..4±..S1l4uO'-_-'- _

Telephone Numher{s} for Call-Backs and

Person(s) Designated to Confirm Funds Transfer Instructions

If to FDR U.C:


J. gClj~ ~~ 2. 6i\~ < 'Pt>(lattA.


If to RIOC:

~ Telephone Number

Stephen H. Shane 212-832-4540


2. Steven Chironis 212-832-4540


3. ..Mune.slliIat: .Iagdba rry 212 - 83 2 -45"1J.L _


Telephone call backs shall be made to both Parties if joint instructions are required pursuant to the agreement. All funds transfer instructions must include the signature of the person(s) authorizing said funds transfer

and must not be the same person confirming said transfer.

PRY 10}II02.4



Based upon our current understanding of your proposed transaction, our fee proposal is as follows:

Account Acceptance Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Waived

Encompassing review, negotiation and execution of governing documentation, opening of the account, and completion of all due diligence documentation. Payable upon closing.

Annual Administration Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ Waived

The Administration Fee covers our usual and customary ministerial duties, including record keeping, distributions, document compliance and such other duties and responsibilities expressly set forth in the governing documents for each transaction.

Extraordinary Services and Out-of Pocket Expenses

Any additional services beyond our standard services as specified above, and all reasonable out-of-pocket expenses including attorney's or accountant's fees and expenses will be considered extraordinary services for which related costs, transaction charges, and additional fees will be billed at the Bank's then standard rate. Disbursements, receipts, investments or tax reporting exceeding 25 items per year may be treated as extraordinary services thereby incurring additional charges.

Disclosure & Assumptions

• Please note that the fees quoted are based on a review of the transaction documents provided and an internal due diligence review. lPMorgan reserves the right to revise, modify, change and supplement the fees quoted herein if the assumptions underlying the activity in the account, level of balances, market volatility or conditions or other factors change from those used to set our fees.

• The parties acknowledge and agree that they are permitted by U.S. law to make up to six (6) preauthorized withdrawals or telephonic transfers from a lPMorgan Chase Bank money market deposit account ("MMDA") per calendar month 01' statement cycle or similar period. If the MMDA can be accessed by checks, drafts, bills of exchange, notes and other financial instruments, then no more than three (3) of these six (6) transfers may be made by an Item. The Escrow Agent is required by U.S. law to reserve the right to require at least seven (7) days notice prior to a withdrawal from a money market deposit account.

• Payment of the invoice is due upon receipt.


To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person or entity that opens an account. We may ask for information that will enable us to meet the requirements of the Act.

PRV 1064079.1

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