SECOND AMENDMENT TO OPERATING AGREEMENT
OF PARK AT HIGHLANDS LLC
THIS SECOND AMENDMENT TO OPERATING AGREEMENT OF PARK AT HIGHLANDS LLC (this
"Second Amendment") is made as of the 31st day of December, 1997 by and between
XX XXXX, an individual ("Xxxx"), and WELLSFORD PARK HIGHLANDS CORP., a Colorado
corporation ("WPHC").
RECITALS
X. Xxxx and WPHC constitute all of the members (collectively, the
"Members") of Park at Highlands LLC, a Colorado limited liability company (the
"Company"), which is governed by that certain Operating Agreement of Park at
Highlands LLC dated as of April 27, 1995, as amended by First Amendment dated
December 29, 1995 (the "Operating Agreement").
B. The Members now desire to further amend the Operating Agreement as set
forth herein.
C. Capitalized terms not otherwise defined herein shall have the
definitions set forth in the Operating Agreement.
NOW, THEREFORE, for and in consideration of the above recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Xxxx and WPHC hereby agree to amend the Operating Agreement as
follows:
1. No Acceleration of Incentive Fee. In consideration of the early funding of
the Final Closing Capital Contribution and the early payment of the
Construction Loan by WPHC, Xxxx agrees, for himself and his heirs, personal
representatives, successors and assigns, that the acceleration of the
payment of a portion of the Incentive Fee and the calculation of the
Incentive Fee as equal to the Target Fee, all as provided for in Paragraph
4 of Exhibit P to the Operating Agreement, are hereby irrevocably waived by
Xxxx. Accordingly, Xxxx and WPHC agree that Paragraph 4 of Exhibit P to the
Operating Agreement is hereby deleted in its entirety and shall be void.
2. Single-Member LLC. Xxxx and WPHC hereby agree that, notwithstanding any
provisions to the contrary in the Operating Agreement, the Company shall
continue in existence and its business shall be continued after the
transfer to WPHC of all of Xxxx'x interest in the Company pursuant to the
Call Option. The Articles of Organization shall be amended to permit
continuation of the Company as a single- member limited liability company
and, upon such amendment to the Articles of Organization, the Operating
Agreement shall be and hereby is amended to conform thereto.
3. Full Force and Effect. The Operating Agreement, as specifically amended
herein, is hereby ratified by the Members and shall remain in full force
and effect.
4. Counterparts. This Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which, when
taken together, shall constitute one agreement binding on the parties
hereto, notwithstanding that all the parties may not have signed the same
counterpart. Signature pages from one counterpart may be removed and
attached to another counterpart to create one fully- executed document.
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IN WITNESS WHEREOF, the parties hereto, being all of the Members of the
Company, have executed this Amendment as of the date first written above.
By: /s/ Xx Xxxx
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Xx Xxxx
WELLSFORD PARK HIGHLANDS CORP.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Vice President
