HAVE EITHER BEEN WAIVED OR TAKEN PLACE
SIMULTANEOUSLY HEREWITH AND SAID CLAUSES ARE DELETED FROM SAID SECTION 6.02.
UNTIL THE CONVERSION DATE, AND EXCEPT AS PROVIDED IN THIS AMENDMENT TO THE
CONTRARY, THE OPERATING AGREEMENT (AND NOT THE CONDOMINIUM DECLARATION) SHALL
GOVERN THE MEMBERS' RESPECTIVE RIGHTS AND OBLIGATIONS WITH RESPECT TO THE
PROJECT.
6.
SIGNAGE.
SECTION 5.10 (C) OF THE AGREEMENT IS AMENDED AND
RESTATED AS FOLLOWS: ALL MATTERS RELATING TO SIGNAGE SHALL BE SUBJECT TO THE
TERMS OF THE GROUND LEASE (INCLUDING WITHOUT LIMITATION DUO) AND THE CONDOMINIUM
DECLARATION.
7.
CONDOMINIUM DECLARATION.
SECTION 15 OF THE AMENDMENT IS HEREBY
DELETED AND THE MEMBERS ACKNOWLEDGE THAT THE NYTC MEMBER RIGHT OF FIRST OFFER TO
LEASE IS IN ACCORDANCE WITH THE CONDOMINIUM DECLARATION.
8.
ROOFTOP SPACE.
SIMULTANEOUSLY HEREWITH, FC MEMBER WILL MAKE A
PAYMENT TO NYTC MEMBER OF $469,758.92.
IN CONSIDERATION OF SUCH PAYMENT, 10,000
SQUARE FEET OF FAR LOCATED ON THE ROOF OF THE IMPROVEMENTS AND MORE PARTICULARLY
DESIGNATED ON THE PLANS (AS DEFINED IN THE CONDOMINIUM DECLARATION) SHALL BECOME
A FC SPECIAL LIMITED COMMON ELEMENT AS DEFINED IN THE CONDOMINIUM DECLARATION.
9.
ASSIGNMENT OF FC MEMBER INTEREST.
NYTC MEMBER HEREBY CONSENTS TO
THE ASSIGNMENT BY ORIGINAL FC MEMBER TO FC MEMBER.
FROM AND AFTER THE DATE
HEREOF (BUT WITHOUT LIMITING FC MEMBER'S ASSUMPTION OF ALL OBLIGATIONS AND
LIABILITIES OF ORIGINAL FC MEMBER UNDER THE OPERATING AGREEMENT, INCLUDING THOSE
ACCRUING PRIOR TO THE DATE HEREOF), "FC MEMBER" SHALL MEAN FC EIGHTH AVE., LLC.
AS A RESULT OF THE ASSIGNMENT, INGREDUS SITE 8 SOUTH LLC IS NO LONGER A MEMBER
OF FC MEMBER.
FROM AND AFTER THE DATE HEREOF, ALL REFERENCES IN THE OPERATING
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AGREEMENT TO "ING BANK," "ING ENTITY" AND "ING VASTGOED" AND ALL PROVISIONS
APPLICABLE TO OR BENEFITING SUCH PARTIES ARE HEREBY DELETED.
10.
OPERATING AGREEMENT RATIFIED.
IN ALL OTHER RESPECTS, EXCEPT AS
MODIFIED HEREBY, THE OPERATING AGREEMENT REMAINS UNMODIFIED AND IN FULL FORCE
AND EFFECT.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and date first above written.
FC EIGHTH AVE., LLC, a Delaware limited
liability company
By:
FC 42 Hotel LLC, a Delaware limited
liability company, its managing member
By:
FCDT Corp., a New York
corporation, its managing member
By:
/s/ David L. Berliner
Name: David L. Berliner
Title: Sr. Vice President
NYT REAL ESTATE COMPANY LLC, a New York
limited liability company
By:
/s/ Kenneth Richieri
Name: Kenneth Richieri
Title: Manager