Amendment No. 3 to Credit Agreement, dated as of October 22, 2021, among Trinity Place Holdings Inc., as borrower, each subsidiary of Borrower listed on the signature pages thereto, as a guarantor, the lenders party thereto, and Trimont Real Estate Advisors, LLC, as administrative agent

Exhibit 10.5

EXECUTION VERSION

Amendment NO. 3 to credit agreement

This AMENDMENT NO. 3 TO CREDIT AGREEMENT (this “Amendment”) is entered into as of October 22, 2021, among TRINITY PLACE HOLDINGS INC., a Delaware corporation, as Borrower (the “Borrower”), each Subsidiary of the Borrower listed on the signature pages hereto, as a Guarantor, THE LENDERS PARTY HERETO and TRIMONT REAL ESTATE ADVISORS, LLC, as administrative agent (together with its permitted successors in such capacity, the “Administrative Agent”). Unless otherwise defined herein, each capitalized term used in this Amendment (including the recitals) and not defined herein shall be defined in accordance with the Credit Agreement.

RECITALS:

WHEREAS, Borrower, each Subsidiary of the Borrower listed on the signature pages hereto, the Administrative Agent and the Lenders are parties to that certain Credit Agreement, dated as of December 19, 2019 (as (i) amended by that certain Amendment No. 1 to Credit Agreement, dated as of January 30, 2020, by and between Borrower, the Administrative Agent and the Initial Lender, (ii) amended by that certain letter, dated as of January 30, 2020, from Borrower as consented to by the Initial Lender and acknowledged by the Administrative Agent, (iii) amended by that certain Amendment No. 2 to Credit Agreement, dated as of December 22, 2020, by and between Borrower, the Administrative Agent and the Initial Lender, and (iv) as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and

WHEREAS, the Borrower, the Lenders and the Administrative Agent desire to amend the Credit Agreement in accordance with the terms of this Amendment.

WHEREAS, in consideration of the promises and the mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1 AMENDMENTS TO CREDIT AGREEMENT

Effective as of the Amendment No. 3 Effective Date (as defined below):

1.       Notwithstanding anything to the contrary set forth in the Credit Agreement or in any other Loan Document, (a) Borrower shall no longer be entitled to request or receive any Borrowing and (b) the Lenders shall have no further obligation to make any additional Advances.

2.       On or prior to May 1, 2023, Borrower shall have prepaid the Outstanding Principal Balance in an aggregate amount equal to no less than $7,000,000. Failure to comply with the immediately preceding sentence shall constitute an Event of Default.

3.       Section 5.04(c) of the Credit Agreement is hereby deleted in its entirety and replaced with the following:

“Minimum Liquidity. Liquidity at any time to be less than $4,000,000 (the “Minimum Liquidity Amount”); provided, that from and after the occurrence of Final Completion (as defined in that certain Master Loan Agreement, dated as of the date hereof, by and between TPHGreenwich Owner LLC, as borrower and Macquarie PF, Inc., as lender (“Senior Lender”) (as the same may be amended, the “Master Loan Agreement”)), the Minimum Liquidity Amount shall be reduced to $3,000,000; provided, further, that, for the period prior to May 1, 2023, for so long as Senior Lender is holding the Letter of Credit (as defined in the Master Loan Agreement) in an amount at least equal to the Required L/C Amount (as defined in the Master Loan Agreement), the Required L/C Amount shall count towards Borrower’s satisfaction of the Minimum Liquidity Amount.

SECTION 2 MISCELLANEOUS

2.1.       Conditions to Effectiveness of this Amendment. This Amendment (including, without limitation, the amendments to the Credit Agreement described in Section 1 hereof), shall become effective upon receipt by the Administrative Agent of this Agreement, duly executed and delivered by each applicable Loan Party and each other Person party thereto (the “Amendment No. 3 Effective Date”).

2.2.       Representations and Warranties. To induce the other parties hereto to enter into this Amendment, each Loan Party represents and warrants to the Administrative Agent and each of the Lenders that, as of the Amendment No. 3 Effective Date and immediately after giving effect to this Amendment:

(a)    This Amendment has been duly executed and delivered by each Loan Party, and constitutes the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party, in accordance with its terms, except to the extent that the enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law). The Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party, in accordance with its terms, except to the extent that the enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

(b)    The execution and delivery by each Loan Party of this Amendment, and the performance of its obligations hereunder and the other transactions contemplated by this Amendment, are within the corporate, limited liability company or partnership powers of such Loan Party, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene Organization Documents of such Loan Party, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any Material Contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could reasonably be expected to result in a Material Adverse Effect.

(c)    The representations and warranties of each Loan Party contained in Article IV of the Credit Agreement as amended by this Amendment, and the representations and warranties in each other Loan Document are true and correct in all material respects (except to the extent that any representation or warranty that is qualified by materiality shall be true and correct in all respects) on and as of the Amendment No. 3 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality, in all respects) as of such earlier date, except to the extent that failure of a representation or warranty to be true and correct does not result from a breach of a covenant under the Credit Agreement, and except that for purposes of Section 3.02 of the Credit Agreement, the representations and warranties contained in Section 4.01(g) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (b) and (c), respectively, of Section 5.03 of the Credit Agreement and the items listed on any schedule shall be reasonably acceptable to the Required Lenders.

(d)    No Default or Event of Default has occurred or is continuing under the Credit Agreement.

2.3       Acknowledgments and Affirmations of the Loan Parties. Each Loan Party hereby acknowledges the terms of this Amendment and confirms and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby and thereby, (ii) to the extent applicable, its guarantee of the Obligations and (iii) its grant of Liens on the Collateral to secure the Obligations pursuant to the Security Agreement; provided that, on and after the effectiveness of this Amendment, each reference in the Security Agreement and in each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as amended hereby. Except as herein otherwise specifically provided, all provisions of the Credit Agreement shall remain in full force and effect and be unaffected hereby. This Amendment is a Loan Document.

2.4        Counterparts; Integration. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Amendment together with the Credit Agreement and the other Loan Documents, constitute the entire agreement among the parties hereto and thereto regarding the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, regarding such subject matter. Delivery of an executed counterpart to this Amendment or any other Loan Document by facsimile transmission or by electronic mail shall be as effective as delivery of a manually executed counterpart hereof.

2.5       Jurisdiction, Etc.; Governing Law. Sections 9.14 (Jurisdiction, Etc.) and 9.15 (Governing Law) of the Credit Agreement are hereby incorporated by reference into this Amendment, mutatis mutandis.

2.6       Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

2.7       Payment of Expenses. The Borrower agrees to pay and reimburse, pursuant to Section 9.04 of the Credit Agreement, the Administrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment.

2.8       Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Borrower or the Guarantors under the Credit Agreement or any other Loan Document, and, except as expressly set forth herein, shall not alter, modify, amend or in any way affect any of the other terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Person to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply and be effective only with respect to the provisions amended herein of the Credit Agreement. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of similar import shall mean and be a reference to the Credit Agreement as amended by this Amendment and each reference in any other Loan Document shall mean the Credit Agreement as amended hereby. This Amendment shall constitute a Loan Document.

2.9       Release of Claims. Each Loan Party hereby releases, acquits and forever discharges Administrative Agent and each of the Lenders (collectively, the “Lender Parties”) from any and all claims, demands, debts, actions, causes of action, suits, defenses, offsets against the Indebtedness and Obligations of the Loan Parties and liabilities of any kind or character whatsoever, known or unknown, suspected or unsuspected, in contract or in tort, at law or in equity, including without limitation, such claims and defenses as fraud, mistake, duress, usury and any other claim of so-called “lender liability”, which the Loan Parties ever had, now have or might hereafter have against the Lender Parties, jointly or severally, for or by reason of any matter, cause or thing whatsoever occurring prior to the date hereof in respect of (i) the Lender Parties’ administration of the Facility and the Loans, (ii) the Loan Documents, (iii) this Agreement, (iv) the Collateral and (v) the Indebtedness and Obligations of the Loan Parties.

[Signature pages follow.]

IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the date first above written.