Second Amendment to Operating Agreement of Park at Highlands LLC between Al Feld and Wellsford Park Highlands Corp.

Summary

This amendment to the operating agreement of Park at Highlands LLC is made between Al Feld and Wellsford Park Highlands Corp. It waives certain incentive fee provisions for Feld, allows the company to continue as a single-member LLC after Feld transfers his interest to WPHC, and confirms that the rest of the operating agreement remains in effect. The amendment is effective as of December 31, 1997, and is binding on both parties.

EX-10.105 5 ex10-105.txt 2ND AMEND. OP. AGMT-PARK AT HIGHLANDS 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 AL FELD, an individual ("Feld"), and WELLSFORD PARK HIGHLANDS CORP., a Colorado corporation ("WPHC"). RECITALS A. Feld 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, Feld 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, Feld 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 Feld. Accordingly, Feld 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. Feld 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 Feld's 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. [SIGNATURE PAGE FOLLOWS] [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 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/ Al Feld -------------------- Al Feld WELLSFORD PARK HIGHLANDS CORP., a Colorado corporation By: /s/ David M. Strong ------------------------ David M. Strong, Vice President