Exhibit 10.60
SECOND AMENDMENT TO THE LIMITED
LIABILITY COMPANY OPERATING AGREEMENT
OF
WELLSFORD/WHITEHALL GROUP, L.L.C.
This SECOND AMENDMENT (this "Second Amendment") to the LIMITED LIABILITY
COMPANY OPERATING AGREEMENT of WELLSFORD/WHITEHALL GROUP, L.L.C. is made as of
March 5, 2004, by and among WHWEL Real Estate Limited Partnership, a Delaware
limited partnership ("WHWEL"), Wellsford Commercial Properties Trust, a Maryland
real estate investment trust ("WCPT"), WXI/WWG Realty, L.L.C., a Delaware
limited liability company ("Whitehall XI"), W/W Group Holdings, L.L.C., a
Delaware limited liability company ("Holding Co."), and WP Commercial, L.L.C., a
Delaware limited liability company ("Management Co.").
RECITALS
WHEREAS, WHWEL, WCPT, Whitehall XI, Holding Co. and the additional Members
set forth on Schedule 1 annexed thereto are parties to the Limited Liability
Company Operating Agreement of Wellsford/Whitehall Group, L.L.C., dated as of
May 28, 1999, as amended by that certain First Amendment to the Limited
Liability Company Operating Agreement of Wellsford/Whitehall Group, L.L.C.,
dated as of December 21, 2000, by and among WHWEL, WCPT, Whitehall XI, Holding
Co. and Management Co. (as amended, the "Operating Agreement"). Capitalized
terms used but not defined in this Second Amendment shall have the meanings
given to such terms in the Operating Agreement;
WHEREAS, the parties hereto agree to amend the Operating Agreement as set
forth in this Second Amendment;
NOW, THEREFORE, in order to carry out their intent as expressed above and
in consideration of the mutual agreements hereinafter contained, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
ARTICLE I.
AMENDMENT TO THE OPERATING AGREEMENT
The Operating Agreement is hereby amended as follows:
Section 1.1. Section 5.2(f) of the Operating Agreement is hereby deleted in
its entirety and replaced with the following:
"(f) Notwithstanding anything contained herein to the contrary,
after the Capital Commitments are fully funded or expire, the
Whitehall Group and WCPT will, within 20 days after receipt of notice
of a Mandatory Capital Call delivered by the Manager, fund or cause to
be funded on a 'revolving' basis up to $8 million for Necessary
Expenditures (i.e. amounts funded under this provision may be returned
and redrawn again later). Such amounts will be funded 65% by the
Members of the Whitehall Group and 35% by WCPT and Mandatory Capital
Calls may be made at any time prior to March 31, 2005 for the funding
of such amounts. Fundings of the $8 million for Necessary Expenditures
will be contributed as Subordinated Preferred Equity, and will accrue
dividends at the rate of LIBOR plus 500 basis points (5%) per annum.
Such Subordinated Preferred Equity will be senior in priority to the
Membership Units and will be paid prior to any distributions made on
the account of the Membership Units."
ARTICLE II.
MISCELLANEOUS
Section 2.1. Headings and Captions. All headings and captions contained in
this Second Amendment are inserted for convenience only and shall not be deemed
a part of this Second Amendment.
Section 2.2. Variance of Pronouns. All pronouns and all variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or entity may require.
Section 2.3. Counterparts. This Second Amendment may be executed in two or
more counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement.
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Section 2.4. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
Section 2.5. Invalidity. Every provision of this Second Amendment is
intended to be severable. The invalidity and unenforceability of any particular
provision of this Second Amendment in any jurisdiction shall not affect the
other provisions hereof, and this Second Amendment shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
Section 2.6. Ratification of Operating Agreement. Except as expressly set
forth herein, the parties hereby ratify the Operating Agreement (as amended
hereby) and agree that the Operating Agreement continues in full force and
effect, provided that no party shall be relieved of any liability accruing under
the Operating Agreement prior to giving effect to this Second Amendment.
[Signatures follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the day and year first above written.
WHWEL REAL ESTATE LIMITED PARTNERSHIP
By: WHATR Gen-Par, Inc., General Partner
By: /s/ Thomas D. Ferguson II
---------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
WXI/WWG REALTY, L.L.C.
By: /s/ Thomas D. Ferguson II
---------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
W/W GROUP HOLDINGS, L.L.C.
By: /s/ Thomas D. Ferguson II
---------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
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WELLSFORD COMMERCIAL PROPERTIES TRUST
By: /s/ Jeffrey H. Lynford
---------------------------------
Name: Jeffrey H.Lynford
Title: Chairman
WP COMMERCIAL, L.L.C.
By: /s/ Thomas D. Ferguson II
---------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
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JOINDER
Under power of attorney granted to the Manager pursuant to Section 12.1(b)
of the Operating Agreement, as amended by the Second Amendment, the Manager
hereby executes on behalf of each of the undersigned this Joinder to the Second
Amendment.
DOMINIC J. SARACENO
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
KURT W. SARACENO
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
INGEBORG E. SARACENO
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
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HEIDI A. SARACENO-LAWLOR
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
LEAS A. SARACENO
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
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STEPHEN DAVIS
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
EDWARD WERNER
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
CARLETON G. TARPINIAN
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
GEORGE MCLAUGHLIN, III
By: WP Commercial, L.L.C.
By: /s/ Thomas D. Ferguson II
-----------------------------------
Name: Thomas D. Ferguson II
Title: Vice President
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