SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF TPHGREENWICH HOLDNGS LLC, a Delaware limited liability company, by and among TPHS INVESTOR LLC, a Delaware limited liability company, as a Member and as the Manager, and...

Exhibit 10.4

​

SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY

OPERATING AGREEMENT

​

OF

​

TPHGREENWICH HOLDNGS LLC,

a Delaware limited liability company,

​

by and among

​

TPHS INVESTOR LLC,

a Delaware limited liability company,

as a Member and as the Manager,

​

and

​

TRINITY PLACE HOLDINGS INC.,

a Delaware corporation,

as a Member.

​

​

​

​

DATED AS OF FEBRUARY 18, 2025

​

​

​

Execution Version

TABLE OF CONTENTS

​

​

​

​

​

​

Page ii

​

​

​

​

Page iii

Execution Version

SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY

OPERATING AGREEMENT

OF TPHGREENWICH HOLDINGS LLC

THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT (together with the schedules and exhibits attached hereto and as amended and/or restated from time to time, this “Agreement”) of TPHGREENWICH HOLDINGS LLC, a Delaware limited liability company (the “Company”), is dated as of the 18^th day of February, 2025 (the “Effective Date”), by and between TPHS Investor LLC, a Delaware limited liability company (“Investor Member”), as a member and as the initial Manager, and TRINITY PLACE HOLDINGS INC., a Delaware corporation, as a member (together with its successors and assigns as permitted by Article X of this Agreement, “TPH Member”).

W I T N E S S E T H:

WHEREAS, the Company was formed as a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act, Del Code, title 6, Sections 18-101, et. seq., as amended from time to time (the “Act”) by the filing of its Certificate of Formation with the Secretary of State of the State of Delaware on January 21, 2015 (as amended or amended and restated from time to time, the “Certificate”);

WHEREAS, the TPH Member, as the sole member of the Company, executed that certain Limited Liability Company Agreement of the Company dated as of February 9, 2015 (the “Original Agreement”);

WHEREAS, pursuant to that certain Assignment and Assumption of Limited Liability Company Interests, dated as of February 14, 2024 (the “Assignment and Assumption Agreement”), the TPH Member transferred a five percent (5%) limited liability company interest in the Company to the Investor Member;

WHEREAS, the TPH Member and the Investor Member, executed that certain Amended and Restated Limited Liability Company Operating Agreement of the Company dated effective as of February 14, 2024 (the “First Amended and Restated Agreement”);

WHEREAS, the Investor Member’s affiliate, TPHS Lender, LLC, is simultaneously selling 25,862,245 shares of common stock, par value $0.01 per share, of TPH Member, to Steel IP Investments, LLC, a Delaware limited liability company, pursuant to a selling shareholder Stock Purchase Agreement (“Stock Purchase Agreement”);

WHEREAS, the TPH Member and the Investor Member desire to modify certain arrangements and agreements amongst themselves;

WHEREAS, the Members (as hereinafter defined) wish to set out their respective rights, obligations and duties regarding the Company and its assets and liabilities; and

WHEREAS, the Members hereto now desire to amend and restate in its entirety the First Amended and Restated Agreement on the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

​

​

​

Article I

DEFINITIONS; FORMATION; NAME

Section 1.1.Definitions.  Capitalized terms used herein and not otherwise defined shall have the meanings set forth on Schedule B attached hereto.

Section 1.2.Formation and Operation of the Company.  The Company has been formed as a limited liability company pursuant to the Act. The Investor Member was admitted to the Company as a member of the Company appointed as the Manager of the Company in the First Amended and Restated Agreement.

Section ▇.▇.▇▇▇▇.  The name of the Company shall be “TPHGreenwich Holdings LLC”, and all business of the Company shall be conducted under that name or under any other name as the Manager may determine from time to time; provided, however, that the words “Limited Liability Company” or the initials “L.L.C.” or “LLC” shall be included in the name where necessary.

Section 1.4.Certificate of Formation.  The Company shall exist under and shall be governed by the Act and this Agreement. The Certificate has been filed in the appropriate office of the Secretary of State of the State of Delaware. If necessary in the future, the Manager, as the designated “authorized person” within the meaning of the Act, shall execute such further documents (including amendments to the Certificate) and take such further action as shall be appropriate to comply with the requirements of law for the formation and operation of a limited liability company pursuant to the laws of the State of Delaware and to qualify the Company to do business in such other state in which the Company may elect to do business. ▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby designated as an “authorized person”, within the meaning of the Act, and has executed, delivered and filed the Certificate with the Secretary of State of the State of Delaware, and each action taken by said designated “authorized person” prior to the effective date of First Amended and Restated Agreement in furtherance of the execution, delivery and filing of the Certificate is hereby ratified and confirmed by the Manager and the Members. Upon the filing of the Certificate with the Secretary of State of the State of Delaware, the powers of ▇▇▇▇▇▇ ▇▇▇▇▇▇ as an “authorized person” ceased and the Manager thereupon became the designated “authorized person”. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate in accordance with the Act.

Section 1.5.Nature of the Company.

Section 1.5.1.Formation for Limited Purpose.  The Company shall be a limited liability company formed only for the purpose specified in Article II, and this Agreement shall not be deemed to create an agreement among the Manager or the Members with respect to any activities whatsoever other than the activities within the business purposes of the Company as specified in Article II.

Section ▇.▇.▇.▇▇▇▇▇▇▇ Power of Manager and Members to Bind Company; Limited Liability of Manager, Members, and the Company. Neither the Manager nor any Member shall have any power to bind the Company or the Manager or any other Member, as applicable, except as specifically provided in this Agreement. None of the Manager, or any Member shall be responsible for any indebtedness or obligation of any other Member or the Manager, as applicable, incurred either before or after the execution of this Agreement, except as to those joint responsibilities, liabilities, indebtedness or obligations incurred pursuant to, and as limited by, the terms of this Agreement. The Company shall not be responsible for any indebtedness or obligation of any Member or the Manager, as applicable, incurred either before or after the execution of this Agreement.

Section 1.5.3.Assets of Company Owned by Company.  The Assets shall be owned directly or indirectly by the Company as an entity, and no Member or the Manager individually shall own any interest in the Assets.

Section 1.5.4.Manager Does Not Have Ownership Interest.  The Manager shall not, by virtue of its appointment as the manager hereunder, have any ownership interest in the Company.

​

Page 2

​

Section 1.6.Further Assurances.  Each Member agrees to take such further actions and to furnish to the Manager such further information and to execute such further instruments as are reasonably requested by the Manager in connection with the furtherance of Company business.

Article II

PURPOSE; TERM

Section 2.1.Purpose.

(a)The purpose of the Company is, to (i) directly or indirectly, acquire, own, hold, finance and sell the Assets, and in connection therewith, to sell, assign, transfer, manage, develop, operate, lease, hypothecate, pledge or otherwise deal with all or any part of the Assets, (ii) own and hold one hundred percent (100%) of the direct or indirect membership, partnership or other interests in the Subsidiary Companies (the “Subsidiary Interests”), and in connection therewith, to sell, assign, transfer, operate, lease, hypothecate, pledge or otherwise deal with such Subsidiary Interests, and (iii) act as the member, managing member, partner, manager or stockholder of the Subsidiary Companies (as applicable) and in connection therewith cause the Subsidiary Companies to assign, transfer, operate, manage, hypothecate, pledge, sell and otherwise deal with the Subsidiary Company Assets (including, without limitation, the Property) owned by such Subsidiary Company. In furtherance of the foregoing purposes and businesses, the Company, and the Manager on behalf of the Company, shall have and exercise all of the powers now or hereafter conferred under the laws of the State of Delaware on limited liability companies formed under such laws and may do any and all things necessary or incidental to such purposes or businesses.

Section 2.2.Term.  The Company shall have a term commencing on the effective date of the Original Agreement and continuing in perpetuity, unless the Company is dissolved earlier pursuant to Section 9.1 (the “Term”).

Article III

PRINCIPAL OFFICE; REGISTERED AGENT

Section 3.1.Principal Office.  The principal office of the Company shall be located at the address set forth on Schedule 3.1 attached hereto. The Manager shall be responsible for maintaining at the Company’s principal place of business any records required to be maintained by the Act and by this Agreement. The Manager may change the principal office of the Company from time to time.

Section 3.2.Registered Office and Agent.  The address of the registered office of the Company for service of process on the Company in the State of Delaware is c/o Corporation Service Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the name of the registered agent of the Company at such address is Corporation Service Company. The Manager may change the registered office or registered agent of the Company from time to time in accordance with the Act.

​

Page 3

​

Article IV

DESCRIPTION OF THE TRANSACTION

Section 4.1.Transactions and Agreements. Pursuant to the Prior Stock Purchase Agreement and the Assignment and Assumption Agreement, the TPH Member assigned to the Company, and the Company agreed to acquire from the TPH Member, the Assigned Interest on the effective date of the First Amended and Restated Agreement. On the Effective Date, TPHS Lender LLC is selling 25,862,245 shares of common stock, par value $0.01 per share, of TPH Member, to Steel IP Investments, LLC pursuant to the Stock Purchase Agreement.

Section 4.2.Matters Occurring Concurrently with the Effective Date.  The parties acknowledge that the following matters are occurring concurrently with the Effective Date:

(a)the TPH Member and the Investor Member are terminating the Prior Stock Purchase Agreement except for those provisions set forth in the Termination of Prior Stock Purchase Agreement;

(b)the Company and the TPH Manager are terminating the TPH Management Agreement effective on the 45^th day following the Effective Date in form and substance attached hereto as Exhibit A;

(c)TPHS Lender LLC and Steel IP Investments, LLC are entering into the Stock Purchase Agreement;

(d)the TPH Member and/or the Investor Member are obtaining any required consents under the 77 Greenwich Mortgage Loan Documents, the 237 11^th Mortgage Loan Documents and/or the 237 11^th Mezzanine Loan Documents prior to the Effective Date; and

(e)the Company is coordinating the execution of certain agreements in connection with the Paramus Credit Agreement, including (i) a replacement guaranty, (ii) a subordination and intercreditor agreement in connection with the Investor Member Affiliate Holdco Loan Agreement, (iii) a subordination of the Investor Member Affiliate 77 Greenwich Mezz Loan Agreement, and (iv) any other required agreements, modifications or consents in connection therewith.

Article V

CAPITAL CONTRIBUTIONS, PERCENTAGE INTERESTS

Section ▇.▇.▇▇▇▇▇▇▇ Contributions.

Section 5.1.1.Initial Capital Contributions.  Concurrently with the effective date of the First Amended and Restated Agreement:

(a)The Investor Member shall be deemed to have made a capital contribution to the Company (such capital contribution, the “Investor Member Initial Capital Contribution”) in the amount set forth on Schedule A attached hereto.

(b)the TPH Member shall be deemed to have made a capital contribution to the Company (the “TPH Member Initial Capital Contribution”) in the amount set forth on Schedule A attached hereto.

Section 5.1.2.Additional Capital Contributions.

​

Page 4

​

(a)The Manager may, from time to time, call solely upon the Investor Member to make additional cash capital contributions to the Company, pro rata to the Investor Member’s Percentage Interest in such amount as the Manager determines is reasonably required to satisfy the capital needs of the Company and the Subsidiary Companies (each, an “Additional Capital Contribution”). The Manager shall do so by delivering to each Member a notice (“Capital Call Notice”; the date of the Capital Call Notice is referred to herein as the “Capital Call Notice Date”) setting forth (i) the total of all Additional Capital Contributions the Investor Member is being called to make, (ii) the date by which such Additional Capital Contribution shall be made to the Company (such date, the “Capital Contribution Date”), which date shall not be sooner than ten (10) days after the Capital Call Notice Date, and (iii) the Additional Capital Contribution to be paid by the Investor Member to which the notice is addressed, which shall equal the product of (x) the aggregate Additional Capital Contributions times (y) Investor Member’s Percentage Interest as of the Capital Call Notice Date. Notwithstanding anything herein to the contrary, the Investor Member shall have the right, but not the obligation, to make an Additional Capital Contribution in the amount set forth in the applicable Capital Call Notice or in such other amount as the Investor Member elects to make in its sole discretion.

(b)Without limiting any rights of the Manager pursuant to Section 5.1.2(a), the Manager shall have the right, in its sole discretion and without the consent or approval of any other Member, to cause the Company and/or any Subsidiary Company to borrow from time to time from the Investor Member, any Affiliate of the Investor Member or any third party, any amounts that would otherwise be covered by a Capital Call Notice pursuant to Section 5.1.2(a), in lieu of requesting an Additional Capital Contribution from the Investor Member (each such borrowing shall be referred to as “Additional Company Debt Financing”). The economic and other terms of any such Additional Company Debt Financing shall be consistent with the then-current market for debt financing having the same purpose as the then-applicable proposed Additional Company Debt Financing, in each case, as reasonably determined by the Manager; provided that a third party finance broker reasonably selected by the Manager (the “Finance Broker”) has confirmed in writing (which may be in the form of an email) that such terms are “market” prior to the incurrence of such Additional Company Debt Financing. Notwithstanding the foregoing, (i) any Additional Company Debt Financing required for the 77 Greenwich Property shall be on the same general economic terms as the Investor Member Affiliate 77 Greenwich Mezz Loan and (ii) any Additional Company Debt Financing required in connection with the 237 11th Litigation shall have an all-in interest rate that does not exceed fifteen percent (15%) per annum for the first $1,000,000 of 237 11th Financing costs incurred after the date hereof by the Company or the applicable Subsidiary Company. The Manager shall have the sole right, without the approval of any other Member, to cause the Company or the applicable Subsidiary Company to execute and deliver all of the documents evidencing, securing or otherwise memorializing any Additional Company Debt Financing, in each case, provided that such documents reflect the applicable terms provided herein and are otherwise on commercially reasonable third-party terms. For the avoidance of doubt, the TPH Member and its Affiliates may provide introductions to potential sources of capital to the Manager and/or the Finance Broker (it being agreed that the Company shall not be obligated to enter into any transaction with any such potential sources of capital). Without limiting in any manner the Manager’s right to request Additional Capital Contributions pursuant to Section 5.1.2(a) or to cause the Company and/or any Subsidiary Company to enter into Additional Company Debt Financing pursuant to Section 5.1.2(b), the Manager agrees to take into consideration the amount of transfer taxes that may be payable by the Company and/or any Subsidiary Company as a result of the funding of any Additional Capital Contributions when determining whether to request that the Investor Member funds an Additional Capital Contribution.

Section 5.1.3.Adjustments.  If the Investor Member elects to make an Additional Capital Contribution to the Company, then on the date of such Additional Capital Contribution by the Investor Member (1) the Capital Contributions of the Investor Member making such Additional Capital Contribution (for all purposes under this Agreement, including, without limitation, the making of computations under Article VII and Article IX) shall be deemed to be increased by an amount equal to one hundred percent (100%) of the Additional Capital Contribution and (2) the Percentage Interest of the Members shall be adjusted to take into consideration the increase in Investor Member’s Capital Contributions (for all purposes under this Agreement, including, without limitation, the making of computations under Article VII and Article IX). The parties acknowledge, for the avoidance of doubt, that this Section 5.1.3 shall be inapplicable with respect to any transaction contemplated by Section 5.1.2.

Page 5

​

Section ▇.▇.▇.▇▇▇▇▇▇▇ Liability of Members.

(a)Except as otherwise specifically provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort, or otherwise, shall be the debts, obligations and liabilities solely of the Company, and neither the Manager nor any Member shall be obligated personally for any such debt, obligation, or liability of the Company solely by reason of being a manager or member of the Company. In addition, except as otherwise specifically provided herein, in no event shall any Member, by reason of its admission as a member of the Company, be obligated to fund any amount beyond the Initial Capital Contribution actually made by it pursuant to Section 5.1.1 and any Additional Capital Contribution actually made by it pursuant to Section 5.1.2 or be obligated to restore any negative Capital Account balance to the Company, whether before or after liquidation of the Company under Section 9.2 whether or not any Member has a positive Capital Account.

(b)The Manager and Members acknowledge and agree that the sole remedy of the Company and the other Members for the failure of Investor Member to make an Additional Capital Contribution pursuant to this Section 5.1 shall be as expressly set forth in this Section 5.1. No Member or Manager, and no partner, employee, Affiliate, member, manager, principal (disclosed or undisclosed), shareholder, director or officer of any Member or Manager, shall have any personal liability to make such Additional Capital Contribution.

Section 5.1.5.Members Not Obligated to Make Any Capital Contributions; Manager Not Required to Make Any Capital Contributions. The Members acknowledge that (a) none of the Members has by this Agreement made any commitment or obligation of any kind or nature to make any Capital Contributions, other than the Initial Capital Contributions, and (b) the Manager shall not be required to make any capital contribution or other advance of funds to the Company.

Section ▇.▇.▇.▇▇ Right to Return of Capital Contribution.  No Member shall have the right to withdraw from the Company or to demand a return of all or any part of its Capital Contribution during the Term of the Company and any return of any such Capital Contribution shall be made solely from the distributions pursuant to the provisions of Article VII and Article IX.

Section ▇.▇.▇▇▇▇▇▇▇ Accounts; Allocations; Other Tax Matters.  The establishment of Capital Accounts and all allocations of Profits and Losses (and items of income gain, loss, deduction, and credit therefor) shall be made in accordance with Schedule E attached hereto and made a part hereof.

Section ▇.▇.▇▇ Interest on Capital.  No interest shall be paid by the Company on any Capital Contributions.

Section 5.4.Percentage Interests.  As of the Effective Date, the Percentage Interest of a Member shall be the percentage interest of such Member set forth opposite the name of such Member under the heading “Percentage Interest” on Schedule A attached hereto and made a part hereof and if, pursuant to the definition of Percentage Interest, the Percentage Interests of the Members change, then the Manager is hereby authorized and shall have the right to amend Schedule A to reflect such change. If the Percentage Interests of such Members are changed pursuant to the terms of this Agreement during any Fiscal Year, then the amount of all items allocable to such entire Fiscal Year which are to be credited or charged to, or which are to be distributed to, the Members for such entire Fiscal Year in accordance with their respective Percentage Interests shall be allocated between the portion of such Fiscal Year which precedes the date of such change (and, if there shall have been a prior change in such Fiscal Year, which commences on the date of such prior change) and the portion of such Fiscal Year which occurs on and after the date of such change (and, if there shall be a subsequent change in such Fiscal Year, which precedes the date of such subsequent change), based upon an interim closing of the books of the Company or such other permitted method selected by the Manager.

​

Page 6

​

Article VI

EXPENSES; GUARANTY CLAIMS

Section 6.1.Reimbursement of Expenses.

(a)Except as set forth below in this Section 6.1, the Company shall not be required to reimburse the Manager for any expenses incurred in connection with its acting as manager hereunder. All costs and expenses incurred by the Company in connection with the operations of the Company shall be paid by the Company, and the Manager shall be entitled to reimbursement by the Company for any costs and expenditures incurred by the Manager on behalf of the Company (and not on behalf of itself) which are made or incurred other than out of funds of the Company. For the avoidance of doubt, any costs and expenses incurred by Manager on behalf of the Company (and not on behalf of itself) in connection with the 237 11th Litigation shall be paid by the Company or any applicable Subsidiary Company, and the Manager shall be entitled to reimbursement by the Company for any costs and expenditures made or incurred by the Manager on behalf of the Company (and not on behalf of itself) in connection with the 237 11th Litigation which are made or incurred other than out of funds of the Company.

(b)In the event any litigation is commenced against the Manager that arises out of the business of the Company, then the Company shall reimburse the Manager for its out-of-pocket expenses arising therefrom unless such litigation arises as a result of the fraud, misappropriation of funds, gross negligence, willful misconduct or material breach of this Agreement (beyond any applicable notice and cure period) by the Manager, its Affiliates or any Person claiming by, through or under Manager or any such Affiliate, in which event the Company shall not be obligated to so reimburse the Manager for such expenses; provided, however, in the event of litigation that is not between the Manager, on the one hand, and a Member or the Company, on the other hand, if the Manager disputes the determination that such litigation is the result of the fraud, misappropriation of funds, gross negligence, willful misconduct or material breach of this Agreement (beyond any applicable notice and cure period) by the Manager, its Affiliates or any Person claiming by, through or under Manager or any such Affiliate, then, pending the resolution by a court of competent jurisdiction of the issue of whether such litigation arose as a result of the fraud, misappropriation of funds, gross negligence, willful misconduct or material breach of this Agreement (beyond any applicable notice and cure period) by the Manager, its Affiliates or any Person claiming by, through or under Manager or any such Affiliate, the Company shall reimburse the Manager for its expenses arising out of such litigation; provided, further, that if a court of competent jurisdiction ultimately determines that such litigation arose as a result of the fraud, misappropriation of funds, gross negligence, willful misconduct or material breach of this Agreement (beyond any applicable notice and cure period) by the Manager, its Affiliates or any Person claiming by, through or under Manager

​

Page 7

​

or any such Affiliate, then the Manager shall repay to the Company any expenses reimbursed to the Manager by the Company as hereinabove provided.

Section 6.2.Reimbursement under Guaranties.

(a)Notwithstanding any other provision contained herein, the TPH Member shall be liable for any liability, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and expenses) (collectively, the “Carveout/EIA Losses”) which may be incurred from time to time by the Investor Member (or its Affiliate(s), including, without limitation, the Investor Member Guaranty Party) under any Non-Recourse Carveout Guaranty or Environmental Indemnity to the extent such Carveout/EIA Losses were caused solely by the acts or omissions of the TPH Member, the TPH Asset Manager or any of their respective Affiliates without the prior written consent of the Investor Member or any Affiliate of the Investor Member.

(b)Without duplication of clause (a) above, and notwithstanding any other provision contained herein (but subject to clause (c)), if the Investor Member (or any of its Affiliate(s), including, without limitation, the Investor Member Guaranty Party) makes a payment required under any Third Party Loan Guaranty (other than a Non-Recourse Carveout Guaranty or an Environmental Indemnity) provided to a Third Party Lender in connection with a Third Party Loan (each, a “Guaranty Payment”), the Investor Member shall be entitled to indemnification, contribution and reimbursement from the TPH Member, and the TPH Member agrees that it shall indemnify the Investor Member (and its Affiliate(s)) for, and contribute and reimburse to the Investor Member (and its Affiliate(s)), the amount of any Guaranty Payment to the extent that such Guaranty Payment is required (i) solely as a result of an act or omission of the TPH Member (or any of its Affiliates) occurring after the effective date of the First Amended and Restated Agreement without the prior written consent of the Investor Member or any Affiliate of the Investor Member or (ii) as a result of any action or omission of the TPH Member (or any of its Affiliates) that arose or occurred prior to the effective date of the First Amended and Restated Agreement, including, without limitation, any action or omission that results in a Guaranty Payment being payable under the 77 Greenwich Mortgage Loan Completion Guaranty or any Environmental Indemnity. Any contribution payment required to be made by the TPH Member under this Article VI shall be made by the TPH Member from distributions of Available Cash that otherwise would have been payable to the TPH Member. If the TPH Member fails to timely pay all or any portion of such contribution payment, the amount of such contribution payment that is not paid timely shall bear interest at a rate equal to five percent (5%) above the Prime Rate set forth in The Wall Street Journal from the expiration of such ten (10) Business Day period until satisfied from distributions of Available Cash that otherwise would have been payable to the TPH Member until paid in full to the Investor Member.

(c)Notwithstanding the terms of clauses (a) and (b), Investor Member shall only recover from TPH Member any such Carveout/EIA Losses and/or Guaranty Payments from distributions of Available Cash that otherwise would have been made to the TPH Member in accordance with Section 7.1 or Article IX. For the sake of absolute clarity, in no event shall the TPH Member (or the substituted Trust member) be responsible to the Company or any party whatsoever for repayment, clawback, contribution or reimbursement of cash related to the Carveout/EIA Losses and/or Guaranty Payments except as cash items are deducted and satisfied from distributions of Available Cash that otherwise would have been paid to the TPH Member. The last date the Company is entitled to recover from the TPH Member or its assignee, as the case may be, from any cash distributions paid to the TPH Member is the date that is six (6) months following the date that the last remaining real property (or portion thereof) held by the Company is sold.

​

Page 8

​

Article VII

DISTRIBUTIONS

Section 7.1.Distributions of Available Cash.

(a)During the period commencing on the Effective Date and ending upon the dissolution of the Company pursuant to the provisions of Article IX, the Manager shall cause the Company to make distributions of Available Cash in accordance with the provisions of this Article VII in the order of priority set forth on Schedule 7.1 attached hereto.

(b)Notwithstanding the foregoing provisions of this Section 7.1, in the event a Termination For Cause occurs, then, at the option of the Manager, the Percentage Distribution payable to the TPH Member under this Agreement shall be forfeited and any distributions that would otherwise have been made in respect thereof shall instead be distributed to the Investor Member; provided, however, the foregoing shall not limit any other right or remedy available to the Manager (or the Company or the Investor Member) at law or in equity (including, without limitation, injunctive or other equitable relief) as a result of the occurrence of such Termination For Cause.

Section 7.2.Timing and Amount of Distributions. The Manager shall cause the Company to make distributions of Available Cash to the Members at such time or times as is determined by the Manager in its sole discretion. Nothing contained in this Agreement shall in any manner be construed to imply that any Member has any claim or right whatsoever to require that distributions of Available Cash or distributions on winding up of the Company be made at any particular time or in any particular amount. The Members further agree that in determining whether to make a distribution of such Available Cash or other distribution to the Members at any time, or in determining the amount of any Available Cash or other distribution, neither the Manager nor any Member shall have any fiduciary, or trustee or other obligation or duty to any Member other than a contractual obligation or duty pursuant to the terms of Section 7.1.

Section 7.3.Distributions for Indemnities.  Notwithstanding anything set forth in this Agreement to the contrary (a) distributions otherwise payable to a Member under this Agreement shall be applied first to satisfy amounts due and payable on account of the indemnity and/or contribution obligations of such Member under this Agreement and/or any other agreement delivered by such Member to the Company or any other Member, but in each case shall be deemed distributed to such Member for purposes of this Agreement, and (b) to the extent there are any outstanding obligations of the TPH Member at the time that any distribution of Available Cash is made pursuant to this Agreement, then the Manager shall have the sole and absolute right to offset (or cause the Company to offset) any such obligations against any distribution that would otherwise be payable to the TPH Member in accordance with this Agreement, and any such amounts so offset shall be deemed distributed to the TPH Member for purposes of this Agreement.

Section 7.4.Distributions in Kind.  If any Assets shall be distributed in kind to the Members, such Assets shall be distributed to the Members entitled thereto, as tenants-in-common, in the same proportions in which such Members would have been entitled to cash distributions under Section 7.1 or as otherwise determined by the Manager.

Section 7.5.Limitations on Distributions.  No Member shall be entitled to demand and receive property other than cash in return for its Capital Contributions to the Company. Notwithstanding any provision to the contrary contained in this Agreement, the Manager shall not be required to cause the Company to make a distribution of Available Cash to the Members if such distribution would violate the Act.

​

Page 9

​

Section 7.6.Withholdings.

(a)The Manager shall (i) cause the Company to withhold from any distributions, any monetary payments provided in this Agreement or any allocations to the Members and (ii) pay over to any federal, state, local, or foreign government any and all amounts required to be so withheld pursuant to the Code or any provisions of any other federal, state, local, or foreign law. The Manager shall cause the Company to allocate any such withheld amounts to the Members, as applicable. All amounts withheld pursuant to the Code or any provision of any state, local, or foreign tax law with respect to any payment, distribution, or allocation to the Company or the Members shall be treated as amounts paid or distributed, as the case may be, to the Members with respect to which such amount was withheld pursuant to this Section 7.6 for all purposes under this Agreement.

(b)If the Manager determines, in its sole discretion, that there is insufficient Available Cash to cause the Company to fund any amounts required to be paid to any federal, state, local, or foreign government pursuant to Section 7.6(a) on behalf of any Member, the Manager may call upon such Member to make a cash capital contribution to the Company in order to fund such amounts (any cash capital contribution that is contributed pursuant to this sentence being referred to as a “Withholding Capital Contribution”); provided, however, if a Member has funded a Withholding Capital Contribution any funds contributed through such Withholding Capital Contribution shall be solely for tax purposes and such funds shall not be deemed to be a capital contribution for any other purposes under this Agreement. To the extent that any Member fails to make any capital contribution required to be made by such Member pursuant to this Section 7.6, any amounts to be withheld pursuant to this Section 7.6 shall be offset against any rights such Member may have to receive distributions or any other monetary payments provided in this Agreement.

Section 7.7.Intentionally Omitted.

Article VIII

CONTROL AND MANAGEMENT

Section 8.1.Appointment and Responsibility of the Manager.  The Investor Member shall have the sole right to designate the Manager or replace a resigning Manager hereunder pursuant to Section 8.14. Effective as of the effective date of the First Amended and Restated Agreement, the Investor Member has been designated as the Manager hereunder, to act as such, pursuant to the terms and conditions of this Agreement. The Manager shall have the sole and exclusive right to manage, control and conduct the affairs of the Company and to do any and all acts on behalf of the Company (including the exercise of rights to elect to adjust the tax basis of the Assets and to revoke such elections and to make such other tax elections as the Manager shall deem appropriate); provided, however, so long as a Termination For Cause has not occurred, the Manager shall not take any action or implement any decision on the matters set forth on Schedule C (collectively, the “Major Decisions”) without the prior written approval of the TPH Member (such approval not to be unreasonably withheld, conditioned or delayed and shall be deemed granted by the TPH Member if the Deemed Approval Requirements are satisfied). Subject to the TPH Member’s rights with respect to Major Decisions and the express provisions of this Agreement, the Manager shall have the following powers and rights:

(a)the power and authority to bind the Company with respect to all affairs of the Company within the scope of purpose set forth in Article II; and

(b)the power and authority to execute and deliver any and all documents, contracts and agreements (including, without limitation, deeds and other conveyancing documents,

​

Page 10

​

notes, loan agreements, mortgages, pledges, guarantees and other financing documents, and leases and other leasing documents) on behalf of the Company.

Section 8.2.Authority of Manager.  Subject to the TPH Member’s rights with respect to Major Decisions and the express provisions of this Agreement, the Manager shall have all the rights and powers permitted under the applicable provisions of the Act. Nothing herein contained shall impose any obligation on any Person or firm doing business with the Company to inquire as to whether or not the Manager has exceeded its authority in executing any contract, agreement, lease, mortgage, note, guaranty, loan agreement, pledge, security agreement or other evidence of indebtedness, deed, assignment, conveyance or other transfer instrument, or any other document or instrument of any kind or nature on behalf of the Company and any such Person shall be fully protected in relying upon such authority. Without limiting the generality of the foregoing but subject to the TPH Member’s rights with respect to Major Decisions and the express provisions of this Agreement, the Manager shall have the absolute power to (a) sell, exchange, lease, convey, venture, mortgage, pledge, hypothecate, or otherwise deal in or with any and all of the Assets; to cause the Company to issue any guarantees; to borrow funds to finance the conduct of Company activities, and in connection with such borrowing, to retain, hypothecate, mortgage, pledge or use so much of the revenues and other property (whether real or personal) of the Company as, in the Manager’s judgment, is necessary to satisfy the anticipated present and future obligations of the Company attributable to those activities; to repay, in whole or in part, refinance, recast, increase, modify or extend any mortgage or other secured or unsecured indebtedness, and in connection therewith, to execute for and on behalf of the Company any extensions, renewals or modifications of mortgages, pledges, security agreements or other evidences of indebtedness in lieu of such existing mortgages, pledges, security agreements or other evidences of indebtedness; to execute any and all other evidence or evidences of indebtedness; and to invest and reinvest any or all of the Assets in such other property, whether real or personal, incident to or necessary for the operations of the Company, (b) cause the Company to (i) cause each Subsidiary Company to sell, exchange, convey, venture, mortgage, pledge, hypothecate or otherwise deal in or with any and all of the assets of such Subsidiary Company (including, without limitation, the Property owned by such Subsidiary Company); (ii) cause each Subsidiary Company to own, hold, finance, operate, manage, assign, transfer, operate, renovate, develop, redevelop, subdivide, improve, lease, hypothecate, pledge, sell, and otherwise deal with all or any part of the Property; (iii) cause each Subsidiary Company to borrow funds to finance the conduct of such Subsidiary Company’s activities, and in connection with such borrowing, cause such Subsidiary Company to retain, hypothecate, mortgage, pledge or use so much of the revenues and other property (whether real or personal) of such Subsidiary Company (including, without limitation, the Property) as, in the Manager’s judgment, is necessary to satisfy the anticipated present and future obligations of such Subsidiary Company attributable to those activities; (iv) cause each Subsidiary Company to repay, in whole or in part, refinance, recast, increase, modify or extend any mortgage or other secured or unsecured indebtedness of such Subsidiary Company, and in connection therewith, to execute for and on behalf of the Company in its capacity as member, partner, managing member, manager, stockholder or beneficial owner of such Subsidiary Company any extensions, renewals or modifications (or consents thereto) of mortgages, pledges, security agreements or other evidences of indebtedness in lieu of such existing mortgages, pledges, security agreements or other evidences of indebtedness; (v) execute any and all other evidence or evidences of indebtedness of each Subsidiary Company in its capacity as member, partner, managing member, manager, stockholder or beneficial owner of each Subsidiary Company; and (vi) cause each Subsidiary Company to invest and reinvest any or all of the assets of such Subsidiary Company in such other property, whether real or personal, incident to or necessary for the operations of such Subsidiary Company, (c) cause the Company to comply with any tax law or undertaking with any tax authority, including, without limitation, to FATCA and (d) prepare, or cause the preparation of (including preparation by the TPH Member, the TPH Asset Manager, or any Third Party Property Manager) of an annual budget (the “Annual Budget”) and a business plan with respect to the Company and the Assets (the “Business Plan”), and approve such Annual Budget and Business Plan and any material modifications to such Annual Budget and Business Plan in its sole and absolute discretion (except to the extent any such modification would constitute a Major

​

Page 11

​

Decision hereunder). The initial Annual Budget and the initial Business Plan are attached as Schedule G hereto.

Section ▇.▇.▇▇▇▇ Accounts.  The Manager shall have the right to open one or more bank accounts for and in the name of the Company or any Subsidiary Company. The Manager shall designate a representative or representatives of the Manager (or other third parties as determined by the Manager from time to time) to execute checks on any such Company or Subsidiary Company bank account.

Section 8.4.Proscriptions.  Without the written consent or ratification of all of the Members, the Manager shall have no authority to expend or use Company money or property other than on the account and for the benefit of the Company or any Subsidiary Company or to pledge any of the Company’s credit or property for other than Company or Subsidiary Company purposes. However, the foregoing shall not affect the rights of the Manager as set forth in Section 8.1 and Section 8.2.

Section 8.5.Payments to Manager.  During the Term, unless specifically so provided herein, the Manager shall not be entitled to any fees or other remuneration for its services as Manager of the Company; provided, however, that the foregoing shall not affect the right of the Manager to be reimbursed for its expenses and costs as herein provided, except to the extent arising out of the fraud, misappropriation of funds, gross negligence, willful misconduct or material breach of this Agreement (beyond any applicable notice and cure period) by the Manager, its Affiliates or any Person claiming by, through or under Manager or any such Affiliate.

Section 8.6.Potential Conflicts.  The Manager shall cause so much time to be devoted to the business of the Company as, in its judgment, taking into account its responsibilities described hereunder, the conduct of the Company’s business shall reasonably require.

Section 8.7.Affiliate Transactions Not Restricted.  The Manager may cause the Company to (or cause the Company to cause a Subsidiary Company to) (a) retain the services of a professional or nonprofessional firm or entity controlled by or Affiliated with a Member or the Manager to render services or supply goods to the Company or any Subsidiary Company and may pay reasonable compensation for such services or goods, (b) enter into transactions with or otherwise deal with an entity controlled by or Affiliated with a Member or the Manager, or (c) borrow money from an Affiliate of the Company or a Member or the Manager on such terms as are determined by the Manager; provided, however, that all such transactions under clause (a), (b) and/or (c) shall be on an arm’s-length basis and at market rates.

Section 8.8.Liability of Manager.  The Manager shall not be liable to any Member, the Company or any Subsidiary Company for honest mistakes of judgment, or for any action or inaction taken in good faith for a purpose that was reasonably believed to be in the best interests of the Company or any Subsidiary Company (even if such decisions ultimately turn out to not be beneficial to the Company or any Subsidiary Company), or for losses due to such mistakes, action, or inaction, or for the negligence, dishonesty, or bad faith of any employee, broker, or other agent of the Manager, the Company or any Subsidiary Company. Without limitation of the foregoing, but subject to the Manager’s obligations with respect to Major Decisions, (a) the Manager shall be entitled to make such decisions as are determined by the Manager in its discretion and none of the Manager, Investor Member, the Company or any Subsidiary Company shall have any liability to any Member for the results of its decisions and (b) if actions by the Manager in regard to the Company, any Subsidiary Company, the Assets, any Subsidiary Company Assets or the Company’s or any Subsidiary Company’s operations, have the effect of reducing the amount of the Percentage Distribution ultimately payable to the TPH Member, the TPH Member hereby waives any right to make a claim against the Manager, the Company, any Subsidiary Company or the Investor Member in respect thereof. The Manager may consult with third-party counsel and accountants in respect of Company and Subsidiary Company affairs and be fully

​

Page 12

​

protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel or accountants. The Members shall look solely to the Assets for the return of their capital and, if the Assets remaining after payment or discharge of the debts and liabilities of the Company are insufficient to return such capital, they shall have no recourse against the Manager (or any Manager Exculpated Party) for such purpose. Notwithstanding any of the foregoing to the contrary, the provisions of this Section 8.8 shall not be construed to relieve (or attempt to relieve) the Manager of any liability by reason of its fraud, misappropriation of funds, gross negligence, willful misconduct or material breach of this Agreement (beyond any applicable notice and cure period).

Section 8.9.Restrictions on Duties.  Notwithstanding anything to the contrary contained in this Agreement or otherwise applicable provision of law or equity, the Manager and each Member agrees that, to the fullest extent permitted by the Act, neither the Manager nor any Member shall have any duties or obligations (including fiduciary duties) to the Company, any Member, or any other Person except as expressly set forth in this Agreement.

Section 8.10.Indemnification of Manager.  The Company agrees to indemnify the Manager and each Manager Exculpated Party (including, without limitation, any individual designated as a principal of the “Sponsor” with respect to the condominium located at the 77 Greenwich Property) to the fullest extent permitted by law and to save and hold them harmless from and in respect of all (a) fees, costs and expenses paid in connection with or resulting from any claim, action, or demand against the Company, the Manager, or any Manager Exculpated Party (including, without limitation, any individual designated as a principal of the “Sponsor” with respect to the condominium located at the 77 Greenwich Property) that arises out of or in any way relates to the Company or any Subsidiary Company, or any of their respective properties, businesses, or affairs (including, without limitation, any claim, action or demand arising out of or with respect to that certain Condominium Offering Plan (File No. CD18-1079) for the 77 Greenwich Property, first accepted for filing on April 24, 2019, as amended, or the applicable Manager Exculpated Party’s involvement as a principal of the “Sponsor” with respect to the condominium located at the 77 Greenwich Property) and (b) such claims, actions, and demands and any losses or damages resulting from such claims, actions, and demands, including amounts paid in settlement or compromise (if recommended by attorneys for the Company) of any such claim, action, or demand; provided, however, that the Company shall not indemnify or hold harmless the Manager or a Manager Exculpated Party with respect to any of the foregoing which arises from the fraud, misappropriation of funds, gross negligence, willful misconduct or material breach of this Agreement (beyond any applicable notice and cure period) by the Manager or such Manager Exculpated Party, in which event the Company shall not be obligated to so reimburse the Manager (or the Manager Exculpated Party) seeking indemnification or to be held harmless. If a claim is raised against the Manager as to which the Manager reasonably believes that it is entitled to indemnification as aforesaid, then, pending any determination as to whether the Manager is in fact entitled to such indemnification, the Manager shall have the right to utilize the Assets to reimburse the Manager for the cost of defending against such claim, including, without limitation, the cost of legal counsel in connection therewith; provided, however, that if it is eventually determined that the Manager was not entitled to such indemnification, then the Manager shall promptly reimburse the Company for any payments made to it on account of such indemnification.

Section 8.11.Non-Liability.  Notwithstanding anything to the contrary contained in this Agreement, no direct or indirect partner, officer, director, shareholder, member, manager, employee, agent, or Affiliate of (i) the Manager (any such Person, a “Manager Exculpated Party”) or (ii) either Member shall have any liability of any kind or nature arising out of this Agreement.

Section 8.12.Temporary Investments.  The Manager may temporarily invest funds of the Company on hand which exceed the Company’s immediate cash needs in such investments as the Manager may determine appropriate.

​

Page 13

​

Section 8.13.The 237 11^th Litigation.  TPH Member acknowledges that (a) as of the Effective Date, the Manager continues to prosecute a settlement or other disposition of the 237 11^th Litigation (each, a “237 11^th Litigation Disposition”) and (b) Section 6(d)(xxv) of the Prior Stock Purchase Agreement shall continue to apply with respect to any 237 11^th Litigation Disposition. Without limiting the foregoing, in connection with any 237 11^th Litigation Disposition, TPH Member shall promptly execute and deliver any settlement agreement or related documentation reasonably requested by Manager related to such 237 11^th Litigation Disposition; provided that no such settlement agreement or related documentation shall impose on TPH Member or the Trust any obligations or liability with respect to the 237 11^th Litigation Disposition, or otherwise. The parties acknowledge that for purposes of this Section, the term “TPH Member” shall refer only to Trinity Place Holdings Inc.

Section 8.14.Resignation of Manager.  Notwithstanding anything to the contrary contained herein, the Manager may resign at any time for any reason or for no reason and, in the event of such resignation, the Investor Member shall promptly designate another Affiliate of the Investor Member to act as manager of the Company.

Section 8.15.Right of Manager to Delegate Duties.  The Manager shall have the right to delegate all or a portion of its duties and responsibilities under this Agreement from time to time to any third party property manager or asset manager and/or to other third parties as are determined by the Manager from time to time. Any expenses arising from any such delegation shall be expenses of the Company.

Section 8.16.Intentionally Omitted.

Section ▇.▇▇.▇▇▇ Subsidiary Companies.  Without limiting the other provisions of this Article VIII, the Members acknowledge and agree that the Manager shall be vested with the power and authority to cause the Company to cause one or more Subsidiary Companies to be formed and, in connection therewith to do the following:

(a)cause any such Subsidiary Company to be admitted as a member, managing member, partner, or other beneficial owner of another Subsidiary Company;

(b)cause the Company (on its own behalf or on behalf of another Subsidiary Company) to transfer title to a Subsidiary Company Asset to one or more newly-formed Subsidiary Companies (and, in respect thereof, execute and deliver (and from time to time amend or modify) the Subsidiary Company Operating Agreement of any such Subsidiary Company in such form and on such terms as is determined by the Manager in its discretion);

(c)cause any such Subsidiary Company to take such actions and/or enter any agreements of any kind or nature as determined by the Manager in its discretion; and

(d)without limiting the foregoing, directly or indirectly, admit additional members to a Subsidiary Company on such terms as is determined by the Manager in its discretion (including, without limitation, admitting so-called “springing members”, “independent members”, “independent managers”, and/or “independent directors” to a Subsidiary Company in connection with the requirements of a Third Party Lender making a Third Party Loan to a Subsidiary Company and admitting a third party as a member, partner, or other beneficial owner of interests in such Subsidiary Company and granting such third party a promote or other incentive fee on such arms-length terms as are determined by the Manager in its discretion).

​

Page 14

​

Article IX

DURATION

Section 9.1.Dissolution Events.  The Company shall dissolve and its affairs shall be wound-up upon the earliest to occur of:

(a)the last day of the Term;

(b)the sale, transfer or other disposition of all or substantially all of the Assets and the distribution of all proceeds thereof, and the determination of the Manager to dissolve the Company;

(c)the entry of a decree of judicial dissolution of the Company under the Act;

(d)the determination of the Manager to dissolve the Company; or

(e)the happening of any of the events set forth in Section 18-801(a)(4) of the Act.

Section 9.2.Liquidation and Termination.

(a)Upon dissolution of the Company, the Manager shall act as liquidating trustee of the Company (in such capacity, the “Liquidating Manager”) and shall proceed to wind up the affairs of the Company, liquidate the remaining Assets and wind-up the business of the Company. The Liquidating Manager shall cause a full accounting of the Assets and liabilities of the Company to be taken and shall cause the Assets to be liquidated and the business to be wound up as promptly as possible by either or both of the following methods: (i) selling the Assets and distributing the net proceeds therefrom in accordance with Section 9.2(b) or (ii) if the Liquidating Manager shall so determine, distributing the Assets in kind in accordance with Section 9.2(b).

(b)The proceeds of liquidation shall be applied in the following order of priority: (i) first, to the satisfaction of debts and liabilities (including expenses of liquidation) of the Company (whether by payment or the reasonable provision for payment thereof), if any, in the order of priority provided by the Act (including any reserve the Liquidating Manager determines necessary to provide for any contingent, conditional or unmatured liabilities or obligations of the Company to third parties to be held and disbursed as directed by the Liquidating Manager, by an escrow agent selected by the Liquidating Manager and at the expiration of such period as the Liquidating Manager may deem advisable and in accordance with the Act, the balance remaining in such reserve shall be distributed as provided herein) and (ii) second, to the Members, in accordance with Section 7.1.

(c)The Company shall terminate when (i) all of the Assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company, shall have been distributed to the Members in the manner provided for in this Agreement and (ii) the Certificate shall have been canceled in the manner required by the Act.

Section 9.3.Rights and Obligations of Manager and Members during Winding Up Period.  During the period of the winding up of the affairs of the Company, the rights and obligations of the Manager and Members set forth in this Agreement with respect to the management of the Company shall continue.

​

Page 15

​

Section 9.4.Integrity of Manager and Members/Waiver of Other Rights.  Neither the Manager nor any Member shall retire, resign, or withdraw from the Company except as expressly permitted under this Agreement. Except as otherwise consented to by the Manager, each Member shall, to the fullest extent permitted by law, (a) maintain its existence as a legal entity throughout the Term of this Agreement and during any wind-up period and (b) not terminate or dissolve without concurrently being reconstituted or reincorporated. The Members agree that (x) the Members have no right (and hereby waive any right) under Section 18-604 of the Act to withdraw or resign and receive the fair value of their limited liability company interests in the Company and (y) the Members have no right (and hereby waive any right) under the first sentence of Section 18-606 of the Act.

Section ▇.▇.▇▇▇▇ Liquidation Liability.  If (a) either (i) the Company is in the process of winding-up its affairs, liquidating the remaining Assets and dissolving the Company or (ii) the Company has been liquidated and dissolved and (b) an unknown liability arises for which adequate reserves were not or have not been established, then the Manager shall have the right to deliver a Capital Call Notice to the Investor Member for the funding of such liability, which amount shall be contributed solely by the Investor Member pro rata based on the distributions of Available Cash that were made to the Investor Member under the last applicable subclause of Section 7.1(a) until an amount has been contributed that is equal to the amount distributed under such last applicable subclause of Section 7.1(a) and then any remaining amounts shall be contributed under the previous subclause of Section 7.1(a) and so on until the required amount has been contributed by the Investor Member. In addition, the Members acknowledge and agree that if the Company has been dissolved and liquidated, and any action is required to be taken (or decision made) with respect to the Company after such dissolution, then the Manager shall control all such decisions as if the Company had not been dissolved and as if the Members were members of the Company pursuant to the provisions of this Agreement. For the avoidance of doubt, the Members and Manager acknowledge and agree that the provisions of this Section 9.5 shall survive any dissolution of the Company.

Article X

TRANSFER OF INTEREST IN THE COMPANY

Section 10.1.Transfer Right; Consent Requirement for Transfer of Interest by Members.  Except as otherwise provided in this Article X:

(a)Investor Member is hereby granted an irrevocable right to require that all of the TPH Member’s interests in the Company be transferred into a Delaware statutory trust (the “Trust”, and the transaction establishing the Trust, the “Trust Transaction”), at any time after the date that is 90 days following the Effective Date (the “Trust Outside Date”). The Trust, if created, shall be established for the benefit of the TPH Member’s shareholders of record as of the effective date of the Trust Agreement (and not for the benefit of TPH Member itself) and shall contain, among other things, provisions acceptable to Investor Member and TPH Member regarding the treatment of the Trust. The Trust’s trust agreement shall be in the form attached to this Agreement as Exhibit B (the “Trust Agreement”). Except as provided in the Trust Agreement regarding changes in the Trustees, no modification to the form of Trust Agreement shall be made by TPH Member without Investor Member’s prior written consent (which consent may be granted or withheld in Investor Member’s sole and absolute discretion). Additionally, any transfer by the TPH Member of its interests in the Company into the Trust, whether or not demanded by the Investor Member (or otherwise transferred by TPH Member of its own volition) is expressly permitted by this Agreement following the Trust Outside Date and shall in no case require the consent of the Manager or be in contravention of any provisions of this Article X so long as such conveyance is made solely pursuant to the Trust Agreement, upon not less than 15 Business Days’ prior written notice to Investor Member (in order to permit the Company to provide required notices to the lenders under the 237 11^th Mortgage Loan and

​

Page 16

​

under the 237 11^th Mezz Loan (the “237 11^th Lenders”)), and only for so long as the form of Trust Agreement has not been modified from the form attached to this Agreement as Exhibit B (it being acknowledged, for the avoidance of doubt, that the Trust Transaction shall be implemented solely through the Trust Agreement); provided that the TPH Member shall not initiate or consummate the Trust Transaction prior to the sale of the 237 11^th Property without Manager’s prior written consent (which consent shall be granted so long as 237 11^th Lenders “know your client” diligence has been satisfactorily completed under the 237 11^th Mortgage Loan Documents), it being acknowledged for the avoidance of doubt, that nothing set forth in this proviso is intended to restrict Investor Member from causing the Trust Transaction to be consummated at any time after the Trust Outside Date in accordance with the next sentence of this clause (a). In connection with any consummation of the Trust Transaction, TPH Member shall cause to be executed and delivered to the 237 11^th Lenders a certificate of the Trust in the form attached hereto as Exhibit C. TPH Member hereby agrees that if the Trust Transaction has not been consummated (including, without limitation, by execution and delivery by all parties thereto of the Trust Agreement) on or prior to the Trust Outside Date, then the Investor Member shall have the right to cause the consummation of the Trust Transaction at any time after the Trust Outside Date. In connection therewith, the TPH Member hereby grants to the Investor Member a power of attorney to take such actions as shall be necessary to cause the Trust Transaction to be consummated in accordance with the terms of this clause (a). Such power of attorney shall be coupled with an interest and shall be irrevocable. Such power of attorney shall include, without limitation, the Investor Member’s right to execute and deliver on behalf of the TPH Member and each other party to the Trust Agreement, all documents necessary or appropriate to consummate the Trust Transaction, including, without limitation, the Trust Agreement. By operation of this Section 10.1(a) and without any required further action or amendment to this Agreement, at the time of transfer of the TPH Member’s interests in the Company to the Trust, the Trust shall become the successor and substitute Member of the Company and replace TPH Member in all respects, and become an assignee of the Agreement, subject to any and all of the rights and obligations of the TPH Member. Furthermore, solely by operation of this Agreement and the substitution of the Trust member, the former substituted TPH Member shall upon such substitution and upon consummation of the Trust Transaction have no further obligation or liability under this Agreement whatsoever in its capacity as TPH Member under this Agreement, all such obligations and liabilities being expressly retained by the Trust in its capacity as successor TPH Member.

(b)Except as otherwise provided in Section 10.1(a), without first obtaining the consent of the Manager, no Member shall, directly or indirectly, (i) sell, transfer, assign, or otherwise dispose of its direct or indirect right, title or interest in the Company, or any portion thereof or any interest therein (including, without limitation, its rights to receive distributions of Available Cash), to any other Person or (ii) permit such Member’s right, title or interest in the Company (including, without limitation, its rights to receive distributions of Available Cash) to be encumbered, hypothecated, or pledged as collateral security for any obligation in favor of any other Person (any of the foregoing under clause (i) or clause (ii), a “Transfer”).

(c)Except as otherwise provided in Section 10.1(a) and 10.1(b), any Transfer in contravention of any of the provisions of this Article X shall be void and ineffective, and shall not bind, or be recognized by, the Company.

(d)If the Manager’s consent is required to a Transfer, and any Member requests the consent of the Manager to a Transfer, the Manager may withhold its consent in its sole and absolute discretion.

​

Page 17

​

Section 10.2.Permitted Transfers.  Notwithstanding anything to the contrary contained in this Agreement, including, without limitation, the provisions of Section 10.1:

(a)Investor Member (in its capacity as a Member and as the initial Manager of the Company) shall have the right, without the consent of the Manager or any other Member, to freely Transfer (i) its direct right, title or interest in the Company, or any portion thereof or any interest therein, and the right to cause each applicable purchaser, transferee or assignee to be admitted as an additional or substitute Member after complying with the requirements of Section 10.3 below or (ii) the stock, partnership interest, limited liability company interest, or other beneficial interest in Investor Member or any corporation, partnership, limited liability company, or other entity that directly or indirectly holds an interest in Investor Member, in the case of each of clause (i) and clause (ii), to any Person that is Controlled by the Investor Member Parent or any Affiliate thereof;

(b)Any other direct or indirect Transfer by Investor Member of a direct right, title or interest in the Company, or any portion thereof or interest therein, including without limitation, any Transfer of direct or indirect interests in Investor Member, shall not be made without the prior written consent of the Manager, which consent shall not be unreasonably withheld, conditioned or delayed; and

(c)At any time after the date that is 90 days following the Effective Date, Transfers of direct or indirect interests in the TPH Member shall be permitted without the consent or approval of any Member, the Manager or other party (it being acknowledged, for the avoidance of doubt, this sentence refers to Trinity Place Holdings Inc. as TPH Member and there shall be no limitation on Transfers in Trinity Place Holdings Inc. other than as agreed by Steel IP Investments, LLC in the Stock Purchase Agreement and this subsection(c)). Notwithstanding the foregoing (and notwithstanding anything to the contrary set forth elsewhere in this Agreement), no Transfers of direct or indirect interests in the Trust member in its capacity as successor TPH Member or otherwise shall be permitted following the consummation of the Trust Transaction, any such subsequent Transfers being deemed null and void and without force or effect other than involuntary transfers by operation of law including estate transfers, and without limitation other court-ordered transfers (it being acknowledged, for the avoidance of doubt, that after consummation of the Trust Transaction, the Trust shall be the TPH Member). If Investor Member determines to Transfer less than its entire direct limited liability company interest in the Company to a transferee in accordance with the terms of this Agreement (a “Partial Transferee”), then, if requested by the Manager or Investor Member, the TPH Member will consent to an amendment to this Agreement to accommodate the requirements of such Partial Transferee, provided, however, that such amendment does not materially adversely affect the rights of the TPH Member hereunder.

Section 10.3.Additional Transfer Related Requirements.  If a Member proposes to make a Transfer (the “Transferor”) to another Person (the “Transferee”) in accordance with the terms hereof (i.e., in compliance with, and subject to the restrictions provided in Section 10.1 and Section 10.2), no such Transfer shall be made or shall be effective until:

(a)if such Transfer is a Transfer of a Member’s direct limited liability company interest in the Company, the Transferee shall have agreed in writing, which may be by execution of a counterpart signature page to this Agreement, with a duplicate original delivered to the Manager, to assume and be bound by this Agreement and all the obligations of the Transferor with respect to the direct limited liability company interest in the Company transferred arising from and after the date of such transfer, and to be subject to all the restrictions to which the Transferor is subject under the terms of this Agreement;

​

Page 18

​

(b)all required consents to such Transfer of any Third Party Lender or other Person or entity, if any, shall have been obtained in writing and delivered to the Manager;

(c)in respect of a Transfer by either Member, the Transferee shall have delivered all documents and instruments reasonably requested by the Manager or the non-transferring Member, including, without limitation, (i) all necessary withholding tax documentation, if applicable, (ii) a certificate in favor of the Company and the Manager containing the representations, warranties and covenants set forth in Section 11.1, if applicable, or Section 11.2, if applicable, (iii) the documents required under Section 10.3(a) (if applicable) and Section 10.3(b) (if applicable) above, and (iv) if such Transfer is a direct Transfer of a Member’s limited liability company interest in the Company, any other documents or instruments reasonably requested by the Manager or the non-transferring Member to evidence the assignment by Transferor of its direct limited liability company interest in the Company and the assumption by Transferee of the Transferor’s obligations and duties hereunder arising from and after the effective date of such Transfer; and

(d)to the extent a direct or indirect Transferee is subject to the fractions rule of Section 514(c)(9)(E) of Code, the Manager shall have the right to amend this Agreement to provide allocations for U.S. federal income tax purposes that comply with the requirements of such section and the Treasury Regulations promulgated thereunder.

The failure of any Transferee, including a Transferee by operation of law or otherwise, to fulfill the requirements set forth in the previous sentence shall entitle the Manager to exercise any remedies available to it or the Company at law or in equity, including, without limitation, the remedy of injunction.

Section 10.4.Involuntary Transfers.

(a)In the event any Member shall be adjudged bankrupt, enter into proceedings for reorganization or into an assignment for the benefit of creditors, have a receiver appointed to administer such Member’s interest in the Company, be the subject of a voluntary or involuntary petition for bankruptcy, apply to any court for protection from its creditors or have its interest in the Company seized by a judgment creditor (such Member being referred to as a “Bankrupt Member” as the case may be), the personal representative or trustee (or successor-in-interest) of Bankrupt Member shall be an assignee of such Member’s interest in the Company having the rights set forth in Section 10.6 and shall not become an additional or substitute Member unless and until the conditions set forth in Section 10.3 are satisfied; and any such Member’s successor-in-interest shall be liable for all of its obligations as a Member as the case may be.

(b)If following the Effective Date either (i) the TPH Member does not timely provide any requested information, documentation or waiver, as applicable, pursuant to a request by the Company for FATCA purposes or (ii) in the reasonable discretion of the Manager, the ongoing participation of the TPH Member in the Company would cause the Company to be non-compliant with FATCA, the Manager may, in its sole discretion, and in addition to all other remedies available at law or in equity, immediately or at such other time or times (x) prohibit in whole or in part the TPH Member from participating in additional capital contributions to the Company and/or (y) deduct from the TPH Member’s account and retain amounts sufficient to indemnify and hold harmless the Company, the Manager, any Manager Exculpated Party, and/or any executor, heir, assign, successor, or other legal representative of any of the foregoing Persons, from any and all withholding taxes, interest, penalties and other losses, or liabilities suffered by any such Person on account of TPH Member’s failure to timely provide any requested information, documentation, or waiver to the Company.

​

Page 19

​

Section 10.5.Dissolution or Termination of Members.  In the event of the dissolution of a Member that is a corporation, partnership, or limited liability company or the termination of a Member that is a trust, the successors-in-interest of the dissolved or terminated Member shall, for the purposes of winding up the affairs of the dissolved or terminated Member, have the rights of an assignee of such Member’s interest in the Company, as described in Section 10.6, and shall not become additional or substituted Members as the case may be unless and until the conditions set forth in Section 10.3 are satisfied.

Section 10.6.Status of Assignee.  Any Person who acquires all or any portion of the direct limited liability company interest of a Member in the Company in any manner shall not be a Member of the Company, unless and until all of the applicable conditions set forth in this Article X are satisfied. Unless and until such conditions are satisfied, such Person shall, to the extent of the interest acquired, be entitled only to the transferor Member’s rights, if any, in the Profits, Losses, other items of income, gain, loss and deduction, Available Cash, and other distributions to the Members pursuant to this Agreement, subject to the liabilities and obligations of the transferor Member hereunder; but such Person shall have no right to participate in the management of the business and affairs of the Company and shall be disregarded in determining whether the approval, consent or any other action has been given or taken by the Members.

Article XI

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 11.1.Representations and Warranties of the TPH Member.  The TPH Member represents and warrants to each of the other Members as follows, as of the date hereof:

(a)The TPH Member is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware and duly authorized and qualified to do all things required of it under this Agreement and any agreement executed in connection with the transactions herein contemplated.

(b)The TPH Member is duly authorized to enter into, join in, and deliver this Agreement. The Person executing this Agreement on behalf of the TPH Member is duly authorized to do so. The TPH Member has the capacity and authority to enter into this Agreement executed by such TPH Member, and to consummate the transactions herein or therein provided. Nothing prohibits or restricts the right or ability of such TPH Member to close the transaction contemplated under this Agreement, and to carry out the terms hereof or thereof. None of this Agreement or any agreement, document or instrument executed or to be executed in connection with this Agreement, breaches, invalidates, cancels, makes inoperative or interferes with, or results in the acceleration or maturity of, any contract, agreement, lease or easement to which the TPH Member is a party.

(c)[Intentionally Omitted].

(d)The TPH Member is Controlled by a board of directors comprised of the individuals listed on Schedule 11.1(d) attached hereto.

(e)This Agreement constitutes the legal, valid, and binding obligations of the TPH Member, as applicable, enforceable against the TPH Member, as applicable, in accordance with their respective terms, subject to (i) bankruptcy, insolvency, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether considered in a proceeding at law or in equity).

​

Page 20

​

(f)Other than as set forth on Schedule 11.1(f) attached hereto, there are no consents or approvals of governmental authorities or third parties that are required for the execution and delivery of this Agreement by the TPH Member. The execution of this Agreement by the TPH Member shall not constitute a default under any material contract or agreement to which such TPH Member is bound. To the TPH Member’s knowledge, no agreement or obligation exists that has the effect of materially restricting the ability of the TPH Member to perform the obligations under this Agreement.

(g)There is no litigation, action, or proceeding pending or, to the knowledge of the TPH Member, threatened in writing, to which the TPH Member is party that, if adversely determined, could have a material adverse effect on, or enjoin, restrict, or otherwise prevent, the consummation of the transactions contemplated by this Agreement, or the ability of any of the foregoing parties to perform its obligations under this Agreement.

(h)[Intentionally Omitted].

(i)The TPH Member is not (and, for so long as the TPH Member owns an equity interest in the Company, will not be) and is not acting on behalf of (and, for so long as the TPH Member owns an equity interest in the Company, will not be acting on behalf of) (i) an “employee benefit plan” within the meaning of Section 3(3) of ERISA, subject to Title I of ERISA, (ii) a “plan” within the meaning of, and subject to, Section 4975 of the Code, or (iii) an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA, of any such employee benefit plan or plan. None of the transactions contemplated by this Agreement are in violation of any state statutes applicable to the TPH Member that regulate the investments of, and fiduciary obligations with respect to, governmental plans and that are similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.

(j)To the TPH Member’s knowledge, no funds used by the TPH Member in connection with the transactions contemplated hereby are funds of any pension, retirement or similar fund.

(k)[Intentionally Omitted].

(l)Neither the TPH Member, nor, to the TPH Member’s actual knowledge, any Person who owns any direct or indirect equity interest in or controls the TPH Member is (i) identified on any Governmental List, or otherwise qualifies as a Prohibited Person or (ii) in violation of any applicable law, rule or regulation relating to anti-money laundering or anti-terrorism, including, without limitation, any applicable law, rule, or regulation related to transacting business with Prohibited Persons or the requirements of any Anti-Terrorism Law. No funds or assets directly invested in the TPH Member constitute the property of or are beneficially owned, directly or indirectly, by any Person which is (A) identified on any Governmental List, or otherwise qualifies as a Prohibited Person or (B) in violation of any applicable law, rule or regulation relating to anti-money laundering or anti-terrorism, including, without limitation, any applicable law, rule, or regulation related to transacting business with Prohibited Persons or the requirements of any Anti-Terrorism Law.

(m)The TPH Member has implemented procedures to ensure that (i) no Person who now or hereafter owns any direct or indirect equity interest in the TPH Member is a Prohibited Person or is directly or indirectly controlled by a Prohibited Person and/or (ii) no funds or assets invested directly in the TPH Member constitute the property of or shall be beneficially owned, directly or indirectly, by any Prohibited Person.

​

Page 21

​

(n)The TPH Member is a “United States person” within the meaning of Code Section 7701(a)(30).

Section 11.2.Representations and Warranties of the Investor Member.  The Investor Member represents and warrants to the TPH Member as follows:

(a)The Investor Member is duly formed, validly existing, and in good standing under the laws of the State of Delaware and duly authorized and qualified to do all things required of it under this Agreement and any agreement executed in connection with the transactions herein contemplated.

(b)The Investor Member is duly authorized to enter into, join in, and deliver this Agreement. The Person executing this Agreement on behalf of the Investor Member is duly authorized to do so. The Investor Member has the capacity and authority to enter into this Agreement and to consummate the transactions herein or therein provided. Nothing prohibits or restricts the right or ability of the Investor Member to close the transaction contemplated under this Agreement and to carry out the terms hereof. None of this Agreement, any agreement, document, or instrument executed or to be executed in connection with this Agreement by the Investor Member, or anything provided in or contemplated by this Agreement, or any such other agreement, document or instrument, does now or shall hereafter breach, invalidate, cancel, make inoperative, or interfere with, or result in the acceleration or maturity of, any contract, agreement, lease, easement, right, or interest, affecting or relating to the Investor Member.

(c)This Agreement constitutes the legal, valid and binding obligations of the Investor Member enforceable against the Investor Member in accordance with its terms, subject to (i) bankruptcy, insolvency, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether considered in a proceeding at law or in equity).

(d)There are no consents or approvals of governmental authorities or third parties that are required for the execution and delivery of this Agreement by the Investor Member; the execution of this Agreement by the Investor Member shall not constitute a default under any material contract or agreement to which any of the Investor Member is bound; and no agreement or obligation exists that that has the effect of restricting the ability of the Investor Member to perform its obligations under this Agreement.

(e)There is no litigation, action or proceeding pending or, to the best knowledge of the Investor Member, threatened, to which the Investor Member is a party that, if adversely determined, could have a material adverse effect on, or enjoin, restrict, or otherwise prevent the consummation of any of the transactions contemplated by this Agreement, or the ability of the Investor Member to perform its obligations under this Agreement.

Section 11.3.Covenants of the TPH Member.

(a)The TPH Member covenants and agrees to reasonably cooperate with the Manager by providing any requested information within its possession or control that the Manager may reasonably require from time to time in order to ensure compliance by the Company and any Subsidiary Company with any Applicable Entity Disclosure Laws.

​

Page 22

​

(b)The TPH Member covenants and agrees to (i) cooperate with the Manager by providing any requested tax forms or other documentation it has or can readily generate that will enable the Manager to cause the Company to comply with any tax law or undertaking by any tax authority including, without limitation, FATCA and (ii) provide such information and/or documentation concerning itself and its direct and indirect beneficial owners (if any), as and when requested by the Company, the Manager, or any of the Company’s other agents, as the Company or any of its agents, in its sole discretion, determines is necessary or advisable for the Company to comply with its obligations under FATCA.

(c)The TPH Member covenants and agrees to (i) provide the Company, the Manager, and the Company’s other agents, from time to time in order to comply with the provisions of FATCA and avoid the imposition of U.S. federal withholding tax, with any information and/or documentation regarding the TPH Member, which information and/or documentation (A) may include, but is not limited to, information and/or documentation relating to or concerning the TPH Member and its jurisdiction of formation and income tax status and (B) shall be certified by the TPH Member under penalties of perjury and (ii) cooperate with the Company, the Manager, and the Company’s other agents in connection with the disclosure of any such information and/or documentation to the Internal Revenue Service, other governmental agencies of the United States, or to any applicable jurisdiction under the terms of a relevant intergovernmental agreement (including any implementing legislation enacted as a result thereof) and to certain withholding agents.

(d)The TPH Member covenants and agrees to waive any provision of law of any non-U.S. jurisdiction that would, absent a waiver, prevent the Company’s compliance with FATCA including, without limitation, the TPH Member’s provision of any requested information and/or documentation.

For the avoidance of doubt, the TPH Member acknowledges that (i) the Manager will determine in its sole discretion, whether and how to comply with FATCA, and any such determinations shall include, without limitation, an assessment of the possible burden to the Members, the Company and the Manager of timely collecting information and/or documentation and (ii) the TPH Member shall have no claim against the Company, the Manager, any Manager Exculpated Party or any executor, heir, assign, successor or other legal representative of any of the foregoing Persons, for any damages or liabilities attributable to any FATCA compliance related determinations.

Section 11.4.Securities Laws Representations.  The following provisions shall apply in respect of the acquisition of the limited liability company interests in the Company by a Member or the issuance of the limited liability company interests in the Company to a Member, as applicable:

(a)No registration statement relating to the limited liability company interests in the Company or otherwise has been or shall be filed with the United States Securities and Exchange Commission under the Securities Act of 1933, as amended, or with any other governmental or regulatory agency under any securities laws or so-called “blue-sky” laws of any state (together with the Securities Act of 1933, as same may be amended from time to time, the “Securities Laws”).

(b)Each Member represents and warrants to each other Member, to the Manager and to the Company that:

(i)Such Member has the power and authority to execute and comply with the terms and provisions hereof.

​

Page 23

​

(ii)Such Member’s interest in the Company has been or will be acquired solely by and for the account of such Member for investment purposes only and is not being purchased for subdivision, fractionalization, resale or distribution; such Member has no contract, undertaking, agreement or arrangement with any Person to sell, transfer or pledge to such Person or anyone else such Member’s interest in the Company (or any portion thereof); and such Member has no present plans or intentions to enter into any such contract, undertaking or arrangement.

(iii)Such Member’s interest in the Company has not and will not be registered under the Securities Act of 1933, as amended, or the Securities Laws of any state, and cannot be sold or transferred without compliance with the registration provisions of said Securities Act of 1933, as amended, and the applicable state Securities Laws, or compliance with exemptions, if any, available thereunder. Such Member understands that neither the Company nor any Member nor the Manager has any obligation or intention to register the limited liability company interests under any Securities Laws, or to file the reports to make public the information required by Rule 144 under the Securities Act of 1933, as amended.

(iv)Such Member expressly represents that (A) it has such knowledge and experience in financial and business matters in general, and in investments of the type to be made by the Company in particular; (B) it is capable of evaluating the merits and risks of an investment in the Company; (C) its financial condition is such that it has no need for liquidity with respect to its investment in the Company to satisfy any existing or contemplated undertaking or indebtedness; (D) it is able to bear the economic risk of its investment in the Company for an indefinite period of time, including the risk of losing all of such investment, and loss of such investment would not materially adversely affect it; and (E) it has either secured independent tax advice with respect to the investment in the Company, upon which it is solely relying or it is sufficiently familiar with the income taxation of partnerships and limited liability companies that it has deemed such independent advice unnecessary.

(v)Such Member acknowledges that the Manager has made all documents pertaining to the transaction available and has allowed it an opportunity to ask questions and receive answers thereto and to verify and clarify any information contained in the documents. Such Member is aware of the provisions of this Agreement providing for additional capital contributions and dilution of its interest in the Company.

(vi)Such Member has relied solely upon the documents submitted to it and independent investigations made by it and its legal and other representatives in making the decision to purchase its limited liability company interest in the Company and is not relying on any representation made by any other Member, the Company, or the Manager other than the representations as are specifically set forth in this Agreement.

(vii)Such Member expressly acknowledges that (A) no federal or state agency has reviewed or passed upon the adequacy or accuracy of the information set forth in the documents submitted to such Member or made any finding or determination as to the fairness for investment, or any recommendation or endorsement of an investment in the Company; (B) there are restrictions on the transferability of such Member’s limited liability company interest in the Company; (C) there will be no public market for the limited liability company interest of such Member, and, accordingly, it may not be possible for such Member to liquidate its investment in the Company; and (D) any anticipated federal or state income tax

​

Page 24

​

benefits applicable to such Member’s limited liability company interest in the Company may be lost through changes in or adverse interpretations of, existing laws and regulations.

Article XII

BOOKS AND RECORDS; FINANCIAL STATEMENTS;

TAXATION; PARTNERSHIP AUDIT PROCEDURES

Section 12.1.Maintenance of Books and Records; Financial Statements.  At all times during the continuance of the Company, the Manager shall keep or cause to be kept, at the principal office referred to in Article III, full and complete books of account pertaining to the Company. The books of account shall be maintained, and the financial statements shall be prepared, in accordance with an accrual basis of accounting used for U.S. federal income tax purposes, unless otherwise determined by the Manager. The Manager shall be permitted to delegate the foregoing responsibilities to an asset manager or other third party retained by the Company, and in such event, the Manager shall not have any liability or obligation to any of the Members if such asset manager or other third party fails to perform such obligations.

Section 12.2.Access to Books of Account.  The Manager and each Member shall have the right at all reasonable times during usual business hours to audit, examine, and make copies or extracts of or from the books of account of the Company and receive such commercially reasonable and necessary information regarding the Company as shall be reasonably requested by such Member. Such rights may be exercised through any agent or employee of the Manager and such Member designated by it or by independent certified public accountants designated by the Manager and such Member.

Section 12.3.Taxation.

(a)The taxable year of the Company shall be the same as its Fiscal Year, unless the Manager shall determine otherwise (subject to compliance with applicable laws).

(b)The Manager and the Members intend that the Company shall be treated as a “partnership” for U.S. federal, state, and local income and franchise tax purposes and agree to take all actions, including the amendment of this Agreement and the execution of other documents, as may be required to qualify for and receive such treatment as a “partnership” for U.S. federal, state, and local income and franchise tax purposes. All elections by the Company for U.S. federal, state, and local income and franchise tax purposes shall be determined by the Manager on a basis consistent with the terms of this Agreement, except where law provides that the election shall be made by all the Members.

(c)TPH Member shall have the Accountants provide assistance in the preparation of U.S. federal, state, and local tax returns required of the Company for calendar years 2024 and 2025, as applicable, and shall file the same, or cause the same to be filed on a timely basis (including extensions). TPH Member shall deliver to the Members, or cause to be delivered to the Members, copies of such U.S. federal, state, and local income and franchise tax returns of the Company in final draft form at least 30 days prior to the date of the filing of such tax returns, and the Manager shall have the right to review and provide comments to the tax returns during the 20-day period following the receipt of such returns. TPH Member have the right to reasonable information regarding the Company, including financial information, to facilitate such filings. The Manager and the Members shall consult in good faith to resolve any material issues arising as a result of the Manager’s review of the tax returns and, if they are unable to do so, the disputed items shall be resolved by a nationally recognized accounting firm (other than the Accountants) that is acceptable to the Manager and the Members. The costs and expenses of (i) the Accountants in connection with the preparation and revision of the U.S. federal, state, and local income and franchise tax returns and (ii) the firm resolving any dispute

​

Page 25

​

resolution, shall be borne by the Company. The Members acknowledge, for the avoidance of doubt, that the Manager shall be responsible for preparing and filing the Company’s tax returns after the 2024 and 2025 tax years. The Manager shall not adopt a new method of accounting or otherwise change an historical tax practice from that taken in the 2024 and 2025 tax years without the written approval of TPH Member.

(d)For the tax years ending December 31, 2024 and December 31, 2025, the Company agrees to make a valid election to opt out of the Bipartisan Budget Act (BBA) centralized partnership audit regime pursuant to Section 6221(b) of the Code. TPH Member shall have the Accountants complete and file the necessary forms, including Schedule B-2 of Form 1065, and provide all required information to ensure that such election is valid.

(e)To the extent that both (i) taxable income is allocated to the TPH Member pursuant to this Agreement, and (ii) Available Cash exists which would otherwise have been duly distributable to the TPH Member pursuant to Section 7.1(a) had the Manager not withheld such distribution (the “Withheld Distribution Amount”), then the Company shall ensure that a distribution of such Available Cash in an amount equal to the lesser of (x) the Withheld Distribution Amount, and (y) the amount sufficient to pay any federal or state tax due from and payable by TPH Member as a direct result of its taxable income from the Company, calculated at the stated corporate income tax rate multiplied by the taxable income allocated to TPH Member be made to the TPH Member. Such distribution shall be otherwise treated as a distribution of Available Cash to the TPH Member under Section 7.1(a).

Section 12.4.Partnership Audits.

(a)Partnership Representative.  The Manager shall designate a partnership representative of the Company (the “Partnership Representative”), within the meaning of Section 6223(a) of the Code, as amended by the Revised Partnership Audit Procedures, as well as for purposes of any state, local, or non-U.S. tax law.

(i)The Partnership Representative will inform the Members of any tax examination of the Company within ten (10) business days of receipt of actual notice from the applicable taxing authority of such tax examination and provide to the Members reasonable non-privileged information regarding same.

(ii)The Members shall have the right to consult with the Partnership Representative regarding any tax audit, including, but not limited to, discussions on the strategy, approach, and potential outcomes of the tax audit.

(iii)The Partnership Representative shall notify the Members upon the receipt of a notice of final partnership adjustment, and shall make any relevant elections taking into account the best interests of the Company, current Members and former Members to comply with the Revised Partnership Audit Procedures. The Partnership Representative shall have all of the rights and powers of a partnership representative as set forth in the Revised Partnership Audit Procedures, although the Partnership Representative shall not settle, agree, or otherwise resolve any tax audit without first consulting with the Members and obtaining the written consent of TPH Member (which consent shall not be unreasonably withheld, conditioned, or delayed) before settling, agreeing, or otherwise resolving any tax audit relating to the tax return relating to 2024.

​

Page 26

​

(iv)If the Company pays any imputed adjustment amount under Code Section 6225, as amended by the Revised Partnership Audit Procedures, the Manager shall allocate the amount of the payment among the Members (including any former Members) for the “reviewed year” to which such liability relates in a manner that reflects the current or former Members’ respective interests in the Company for that reviewed year. Such apportionment of liability shall also take into account the extent to which the Company’s imputed underpayment was modified by adjustments under Section 6225(c) of the Code (to the extent approved by the IRS) and attributable to (x) a particular Member’s tax classification, tax rates, tax attributes, the character of tax items to which the adjustment relates, and similar factors, or (y) the Member’s filing of an amended return for the Member’s taxable year that includes the end of the Company’s reviewed year and payment of required tax liability in a manner that complies with Section 6225(c)(2) of the Code. Each Member (or former Member) for the reviewed year hereby agrees to pay such amount to the Company, and any amount so contributed to the Company shall not be treated as a Capital Contribution. Any amount not paid under the preceding sentence by a Member (or former Member) at the time requested by the Manager shall accrue interest at a rate equal to the lower of the fifteen percent (15%) per annum, compounded monthly, or the maximum rate of interest permitted by applicable law until paid, and such Member (or former Member) shall also be liable to the Company for any damages resulting from a delay in making such payment beyond the date such payment is requested by the Manager. To the extent that any Member fails to make any contribution required pursuant to this paragraph, such amounts shall be applied to and reduce the next distributions or any other monetary payments otherwise payable to the Member under this Agreement.

(v)The Members agree to cooperate in good faith, including by timely providing information, making elections and filing amended returns and paying any tax due with such amended returns, each as reasonably requested by the Partnership Representative. The Members agree to file all U.S. federal, state, and local tax returns on a basis consistent with any returns filed by the Company and the terms of this Agreement.

(vi)All information related to tax audits shall be treated as confidential in the manner provided in Section 13.13, and shall not be disclosed to any third party without the prior written consent of the Manager, except as required by law.

(vii)The provisions contained in this Section 12.4(a) shall survive the dissolution of the Company, the withdrawal of any Member or the transfer of any Member’s interest in the Company.

(b)Indemnification of the Partnership Representative.  The Company shall bear any reasonable expenses, including fees and disbursements of counsel, of the Partnership Representative incurred pursuant to their acting as such. The Company shall indemnify, defend, and hold the Partnership Representative harmless from and against any loss, liability, damage, cost, or expense (including reasonable attorneys’ fees and costs) sustained or incurred as a result of their acting as the Partnership Representative hereunder, provided that the foregoing shall not insulate the Partnership Representative from liability for any action constituting fraud, misappropriation of funds, gross negligence, willful misconduct or a material breach of this Agreement (beyond any applicable notice and cure period). The provisions contained in this Section 12.4(b) shall survive the dissolution of the Company, the withdrawal of any Member, or the transfer of any Member’s interest in the Company.

​

Page 27

​

Article XIII

MISCELLANEOUS

Section 13.1.Other Agreements Superseded.  This Agreement supersedes in its entirety all prior agreements between the Manager and the Members, and their respective Affiliates, pertaining to the subject matter of this Agreement. If any Affiliate of the TPH Member, the Manager, or Investor Member has executed a term sheet or other agreement pertaining to the subject matter of this Agreement (including, without limitation, that certain (i) Indicative Term Sheet dated August 24, 2023, executed by TPHS Lender LLC, TPHS Lender II LLC and the TPH Member, (ii) Indicative Term Sheet dated December 1, 2023, executed by TPHS Lender LLC, TPHS Lender II LLC and the TPH Member), and (iii) Letter of Intent, dated October 21, 2024, executed by TPHS Lender, LLC, TPH Member and Steel Partners Holdings, Inc., as extended by that certain Extension of Exclusivity Period dated November 12, 2024 (and as further extended, amended or otherwise modified), such parties have each executed this Agreement to confirm that such term sheet or other agreement has been superseded hereby as hereinabove provided.

Section 13.2.Counterpart Execution; Execution by Facsimile Transmission/.PDF Format; Effectiveness.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same Agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tie” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. The parties hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of the signature, and hereby agree that such electronically transmitted or signed signatures shall be conclusive proof, admissible in judicial proceedings, of the parties’ execution of this Agreement. This Agreement shall become effective on the Effective Date.

Section 13.3.Integration, Modification and Waiver.  This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and all understandings and agreements heretofore or simultaneously had between the parties are merged in and are contained in this Agreement. This Agreement may not be waived, changed, modified, or discharged orally, but only by an agreement in writing signed by the party against whom any waiver, change, modification, or discharge is sought. Failure on the part of the Manager or any Member to complain of any act or failure to act by the Manager or any Member or to declare the Manager or any Member in default, irrespective of how long such failure continues, shall not constitute a waiver by the Manager or such Member of its rights hereunder. The giving of consent (to the extent any such consent is required) by the Manager or any Member in any one instance shall not limit or waive the necessity to obtain the Manager’s or such Member’s consent in any future instance.

Section 13.4.Headings.  The captions or titles and the table of contents contained in or appended to this Agreement are for convenience of reference only and shall not be deemed a part of the context of this Agreement.

Section 13.5.Severability.  If any term or provision of this Agreement or the application thereof to any Person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement

​

Page 28

​

or the application of such term or provision to Persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any payments required to be made under this Agreement shall be in excess of the amounts allowed by law, the amounts of such payments shall be reduced to the maximum amounts allowable by law.

Section 13.6.Meaning of “hereof”, etc.  The terms “hereof”, “herein”, “hereunder” and “hereinafter” and words of similar import, shall be construed to refer to this Agreement as a whole, and not to any particular paragraph or provision, unless expressly so stated.

Section 13.7.Number and Gender.  All words or terms used in this Agreement, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require.

Section 13.8.Information Requests.  Each Member shall, at the request of the Manager, promptly supply reasonable evidence or information reasonably requested to confirm such Member’s compliance with the transfer or other restrictions contained herein, including, without limitation, the restrictions on transfers and changes of control herein provided.

Section 13.9.Governing Law.  This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware (without regard for conflict of laws principles).

Section 13.10.WAIVER OF JURY TRIAL.  THE PARTIES HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR ANY CLAIM, COUNTERCLAIM, OR OTHER ACTION ARISING IN CONNECTION HEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY THE PARTIES, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY EACH OTHER PARTY, AS APPLICABLE. THE PROVISIONS OF THIS Section 13.10 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

Section 13.11.VENUE AND JURISDICTION.  THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY OVER ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE MANAGER AND INVESTOR MEMBER ▇▇▇, AT THEIR DISCRETION, ELECT THE STATE OF NEW YORK, NEW YORK COUNTY, OR THE UNITED STATES OF AMERICA, SOUTHERN DISTRICT OF NEW YORK, AS THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO SUCH VENUE AS BEING AN INCONVENIENT FORUM. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THE ACT REQUIRES THAT A SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT BE SUBMITTED TO THE COURT OF CHANCERY OR ANY OTHER COURT OF THE STATE OF DELAWARE, THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURT WITH RESPECT TO SUCH SUIT, ACTION OR PROCEEDING. THE PROVISIONS OF THIS SECTION 13.11 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

​

Page 29

​

Section ▇▇.▇▇.▇▇ Third Party Beneficiaries.  Except as provided for herein, this Agreement is for the sole benefit of the parties hereto and the Company, and nothing herein, express or implied, shall give or be construed to give to any Person, other than the parties hereto, and the Company, any legal or equitable rights hereunder.

Section 13.13.Confidentiality.  The parties agree to keep the terms and provisions of this Agreement confidential and not to disclose the terms thereof to third parties other than (a) their auditors, attorneys, investors, accountants, and other Persons having similar need to be cognizant of such terms, (b) as required by any applicable law, rule, or regulation, including as to enable the Manager to cause the Company to comply with any tax law or undertaking with any tax authority, including, without limitation, FATCA, (c) as necessary or appropriate for the TPH Member or its Affiliates to comply with the Securities Act or the Exchange Act and applicable state securities laws, (d) as may be required by obligations pursuant to any listing agreement with any national securities exchange, or (e) to the extent that the TPH Member or its Affiliate is a public company making such disclosures consistent with the TPH Member’s or such Affiliate’s past practices that are customary for public companies; provided that, in the case of any disclosure described in the foregoing clauses (a) through (e) made (or to be made) by the TPH Member and/or its Affiliates: (x) neither the Investor Member Parent nor any of its Affiliates other than the Investor Member, the Company and the Subsidiary Companies, shall be named in such disclosure without the prior written approval of the Manager (which shall not be unreasonably withheld, in the case of clauses (c) and (d)) and (y) the TPH Member shall deliver to the Manager not less than three (3) Business Days’ prior written notice of any such disclosure that names the Investor Member, the Company and/or any Subsidiary Company.

Section 13.14.Other Business; Competition; Etc.  Notwithstanding any duty otherwise existing at law or in equity, the Manager and each of the Members understands and acknowledges that Affiliates of the Manager or Members may be interested, directly or indirectly, in various other businesses and undertakings not included in the Company or any Subsidiary Company and such businesses and undertakings may compete, either directly or indirectly, with the conduct of the business of the Company or any Subsidiary Company. The Manager and Members hereby agree that (a) the creation of the Company or any Subsidiary Company and the assumption by each of the Manager or Members of its duties hereunder shall be without prejudice to its rights (or the rights of its Affiliates) to have such other interests and activities and to receive and enjoy profits or compensation therefrom; (b) the Manager and each Member waives any rights it might otherwise have to share or participate in such other interests or activities of the Manager or the other Members or their Affiliates; (c) the Manager and each Member consents to the pursuit of other ventures by the Manager and the other Members, even if such other ventures are competitive with the business of the Company or any Subsidiary Company, (d) neither the Manager nor any Member or Affiliate of the Manager or Member shall be obligated to present any particular investment opportunity to the Company, even if such opportunity is of a character which, if presented to the Company or any Subsidiary Company, could be taken by the Company or any Subsidiary Company, and (e) the Manager and each Member and each Affiliate of the Manager or each Member shall have the right to take for its own account or to recommend to others, any such particular investment opportunity.

Section 13.15.Notices.  Any notice or request required or permitted to be given hereunder (each, a “Notice” or a “notice”) and any approval by the Manager or any Member shall be in writing and shall be (as elected by the Manager or Member giving such notice or granting such approval) (a) transmitted by certified or registered mail, return receipt requested, postage prepaid, (b) transmitted by personal delivery, (c) transmitted by nationally recognized overnight courier service, or (d) transmitted by email. Except as otherwise specified herein, all notices and other communications shall be deemed to have been duly given (i) three (3) Business Days after the date of posting if transmitted by certified or registered mail, (ii) the date of delivery if transmitted by personal delivery, (iii) the first Business Day after the date of posting if delivered by recognized national overnight courier service, or (iv) if transmitted by email, on the day of sending such email, if sent before 5:00 p.m. New York time on a Business Day (and otherwise, on the next Business Day). The

​

Page 30

​

Manager and any Member may change its address for purposes hereof by notice given to the other Members. Notices hereunder shall be directed to the parties at their respective addresses set forth on Schedule 13.15 attached hereto.

Section 13.16.Successors and Assigns.  This Agreement shall be binding upon and, subject to the restrictions on transfer set forth in Article X, shall inure to the benefit of the successors and assigns of the parties hereto.

Section ▇▇.▇▇.▇▇▇▇▇▇.  Each party to this Agreement represents and warrants to each other party to this Agreement that it has not dealt with any Person acting as a broker, finder or like agent in connection with this Agreement or the transactions contemplated hereby, other than ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇. Each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ have separately executed fee waiver agreements with the TPH Member evidencing the waiver and acceptance of any fees earned in connection with this Agreement and have each automatically and irrevocably waived any right to seek any further compensation in connection with any brokerage commission, finder’s fee, fee for service or other like payment in connection with this Agreement. The execution and delivery of such fee waiver agreements and this Agreement by a party is conclusive evidence that such party has relied on the foregoing representation and warranty. Each party to this Agreement shall indemnify and hold each other party to this Agreement, and such other party’s members, partners, shareholders, officers, employees, Affiliates, and agents (as the case may be), harmless from and against any damage, loss, cost, or expense (including, without limitation, reasonable attorneys’ fees and costs incurred in the enforcement of the foregoing indemnity) arising out of the falsity of the foregoing representation and warranty. The provisions of this Section 13.17 shall survive the expiration or termination of this Agreement.

Section 13.18.Approvals.  To the fullest extent permitted by law and notwithstanding any other provision of this Agreement, any agreement contemplated in this Agreement, or applicable provisions of law or equity or otherwise, the Members and Manager agree as follows:

(a)unless otherwise specifically stated herein any approval or consent, to be effective for any purpose, shall be in writing;

(b)whenever in this Agreement a decision, determination, exercise of a right, election, judgment, or approval right of a Person shall be subject to a “good faith” or other express standard, the Person shall act under such express standard and shall not be subject to any other or different standard;

(c)whenever in this Agreement a matter, arrangement or thing is to be satisfactory or not satisfactory to a Person or a Person is permitted or required to make a decision or determination, exercise a right given to it to approve or disapprove a matter, or make an election or judgment (whether in any such instance, such matter, decision, determination, exercise of a right, election, judgment, or approval right is in such Person’s “discretion” or “sole discretion” or under a grant of similar authority or latitude), then the decision, determination, exercise of a right, election, judgment, approval right, or election to withhold an approval, of such Person shall (except as is otherwise specifically herein provided) be in the sole and absolute discretion of such Person, shall be final and conclusive, and such Person shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Person and shall not be subject to any other or different standard;

(d)to the extent that, at law or in equity, a Person has duties (including fiduciary duties) and liabilities under this Agreement in respect of the Company or to any Member, the Person

​

Page 31

​

acting under this Agreement shall not be liable to the Company or to any Member if such Person has carried out its duties in its good faith reliance on the express terms and provisions of this Agreement; and

(e)the provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of the Person; and

(f)except with respect to modifying the Major Decisions, the Investor Member may amend, supplement or otherwise modify the terms of this Agreement without the consent of the TPH Member.

Section 13.19.Limitation on Right to Acquire Third Party Loan.  The TPH Member hereby covenants and agrees that no TPH Restricted Party shall enter into any direct or indirect agreement with any Third Party Lender with respect to any Third Party Loan, any Property, any Subsidiary Company Asset or any Asset until the date which is one (1) year after any foreclosure, deed in lieu, conveyance, or other direct or indirect transfer pursuant to which a Third Party Lender acquires a direct or indirect ownership interest in an Asset or Subsidiary Company Asset (the foregoing restriction to include any brokerage, commission, fee, participation, management, servicing, or other agreement pursuant to which a TPH Restricted Party provides services to or receives from or with respect to the Property).

(a)This Section 13.19 shall survive the termination of this Agreement.

Section ▇▇.▇▇.▇▇ Right to Partition.  The Members, on behalf of themselves and their successors and assigns, if any, hereby specifically renounce, waive, and forfeit all rights, whether arising under contract or statute or by operation of law to seek, bring or maintain any action in any court of law or equity for partition of the Company, any Asset, any Subsidiary Company Assets, any Subsidiary Company, or any interest which is considered to be Company or Subsidiary Company property, regardless of the manner in which title to such property may be held.

Section ▇▇.▇▇.▇▇▇▇▇ Counsel.  The Manager and Investor Member have engaged Dechert LLP as legal counsel to the Manager, the Investor Member and the Company (“Investor Member Legal Counsel”), and the TPH Member has engaged ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as legal counsel to the TPH Member (“TPH Legal Counsel” and together with Investor Member Legal Counsel, collectively, “Legal Counsel”). Investor Member Legal Counsel has not been engaged to protect or represent the interests of the TPH Member vis-à-vis the Company, the Manager, the Investor Member, or the preparation of this Agreement (or any document referenced herein) and no other legal counsel has been engaged by the Manager, the Investor Member or the Company to act in such capacity. TPH Legal Counsel has not been engaged to protect or represent the interests of the Investor Member vis-à-vis the TPH Member, or the preparation of this Agreement (or any document referenced herein) and no other legal counsel has been engaged by the TPH Member to act in such capacity. The TPH Member further agrees that (i) none of this Agreement, the transactions and Company operations contemplated hereby, or Investor Member Legal Counsel’s representation of the Company (whether now or in the future) shall be deemed or is intended to create an attorney/client or other relationship between Investor Member Legal Counsel and the TPH Member and (ii) in the event of a dispute between the TPH Member, on the one hand, and the Manager or Investor Member, on the other hand, Investor Member Legal Counsel may represent the Manager, the Investor Member, or one or more equityholders thereof, or the Company. The Investor Member also agrees that (i) none of this Agreement, the transactions and Company operations contemplated hereby, or TPH Legal Counsel’s representation of the Company (whether now or in the future) shall be deemed or is intended to create an attorney/client or other relationship between TPH Legal Counsel and the Investor Member and (ii) in the event of a dispute between the Investor

​

Page 32

​

Member, on the one hand, and the TPH Member, on the other hand, TPH Legal Counsel may represent the TPH Member, or one or more equityholders thereof. Nothing in this Section 13.21 shall be deemed to create a right under this Agreement on the part of the TPH Member to approve the Manager’s, Investor Member’s or the Company’s selection of legal counsel to the Manager, Investor Member, or the Company. The TPH Member represents and warrants that it has the level of knowledge and sophistication (either alone or with the assistance of its own counsel) necessary to provide its informed consent to the provisions of this Section 13.21, without additional guidance or information from Investor Member Legal Counsel, the Manager, the Investor Member or the Company. Notwithstanding the provisions of Section 13.21, it is intended that Legal Counsel shall be entitled to obtain enforcement of this Section 13.21.

Section 13.22.Prevailing Party Fees.  In the event of any litigation arising out of this Agreement, the Prevailing Party (as hereinafter defined) shall be entitled to receive from the losing party an amount equal to the Prevailing Party’s costs incurred in such litigation, including, without limitation, the prevailing party’s attorneys’ fees, costs and disbursements. For purposes of this Section 13.22, (a) the term “Prevailing Party” shall be deemed to be that party who obtains substantially the result sought, whether by settlement, mediation, judgment, or otherwise and (b) the term “attorneys’ fees” shall include, without limitation, the actual attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal, and any other legal proceeding, including mediation and arbitration. The provisions of this Section 13.22 shall survive the termination of this Agreement.

Section ▇▇.▇▇.▇▇▇▇▇▇▇ Liability of TPH Member. Notwithstanding anything to the contrary contained herein, but expressly excluding Section 6.2, in no event shall the TPH Member, by reason of its admission as a member of the Company or otherwise, or the Trust as a substitute Member, have any liability beyond its interest in the Company and the sole recourse of the Company, Investor Member, the Manager or any other Person against the TPH Member for any default, breach, obligation, reimbursement, clawback, payment(s) or liability of the TPH Member under this Agreement shall be to the TPH Member’s interest in the Company. For the avoidance of doubt, with respect to any other provision of this Agreement other than Section 6.2, no other assets of the TPH Member shall be subject to any claim by the Company, the Investor Member, the Manager or any other Person. No partner, employee, Affiliate, member, manager, principal (disclosed or undisclosed), shareholder, director or officer of the TPH Member shall have any personal liability under this Agreement. The provisions of this Section 13.23 shall survive the termination of this Agreement.

Section 13.24.Amendment and Restatement; Confirmation of Release of Certain Obligations.  This Agreement amends, restates, and supersedes in its entirety the First Amended and Restated Agreement. Without limiting the foregoing, the terms set forth in, and obligations existing under, Section 11.5 of the First Amended and Restated Agreement are each hereby deemed automatically, irrevocably and permanently released in their entirety and of no further force or effect, with any obligation of any Person under such Section (including, the obligations of the Company, the Manager, and each of the Investor Fund Entities (as defined in the First Amended and Restated Agreement) (collectively, the “Released Persons”)), whether or not accrued, satisfied, or outstanding on the Effective Date being hereby automatically, irrevocably, and permanently released in their entirety and of no further force or effect. The TPH Member acknowledges, for the avoidance of doubt that neither it, nor any of its Affiliates, nor any of their respective direct or indirect shareholders, officers, directors, and/or employees shall have any rights, claims, or remedies of any type or nature against any Released Person with respect to the terms of, or any obligations set forth in, Section 11.5 of the First Amended and Restated Agreement, all of such rights, claims, or remedies being automatically, irrevocably, and permanently waived and released.

​

[REMAINDER OF ▇▇▇▇ INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]

​

​

Page 33

Execution Version

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

​

​

​

​

​

Schedule A

PERCENTAGE INTERESTS AND INITIAL CAPITAL CONTRIBUTIONS

​

​

​

​

Schedule A - Page 1

​

Schedule B

DEFINED TERMS

The following terms (whether or not underscored) when used in this Agreement, including its preamble, recitals, exhibits, and schedules, shall, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):

“237 11th Litigation” has the meaning given to such term in the TPH Management Agreement.

“237 11th Mezz Loan” means the “Loan” as defined in the 237 11th Mezz Loan Agreement..

“237 11th Mezz Loan Agreement” means that certain Mezzanine Loan Agreement, dated as of June 10, 2021, between ▇▇▇ ▇^▇▇ ▇▇▇▇▇▇ Owner, LLC, as borrower, and Natixis, New York Branch, as a co-lender, and Natixis, New York Branch, as agent for one or more co-lenders, as amended, restated, supplemented and/or otherwise modified from time to time.

“237 11th Mezz Loan Documents” means the “Loan Documents” as defined in the 237 11th Mezz Loan Agreement..

“237 11th Mezz Loan Guaranty” means means that certain Guaranty of Recourse Obligations (DK) (Mezzanine Loan), dated as of the effective date of the First Amended and Restated Agreement, made by the Investor Fund Entities in favor of Lexington 11^th Street, LLC, as amended, restated, supplemented and/or otherwise modified from time to time.

“237 11th Mortgage Loan” means the “Loan” as defined in the 237 11th Mortgage Loan Agreement.

“237 11th Mortgage Loan Agreement” means that certain Loan Agreement, dated as of June 10, 2021, between ▇▇▇ ▇^▇▇ ▇▇▇▇▇▇ Fee Owner, LLC, as borrower, and Natixis, New York Branch, as a co-lender, and Natixis, New York Branch, as agent for one or more co-lenders, as amended, restated, supplemented and/or otherwise modified from time to time.

“237 11th Mortgage Loan Documents” means the “Loan Documents” as defined in the 237 11th Mortgage Loan Agreement.

“237 11th Mortgage Loan Guaranty” means that certain Guaranty of Recourse Obligations (DK), dated as of the effective date of the First Amended and Restated Agreement, made by the Investor Fund Entities in favor of Natixis, New York Branch, as a co-lender, and Natixis, New York Branch, as agent for one or more co-lenders, as amended, restated, supplemented and/or otherwise modified from time to time.

“77 Greenwich Mortgage Loan” means the “Loan” as defined in the 77 Greenwich Mortgage Loan Agreement.

“77 Greenwich Mortgage Loan Agreement” means, collectively, that certain (i) Amended and Restated Building Loan Agreement, dated as of October 22, 2021, between TPHGreenwich Owner LLC, as borrower, and Macquarie PF Inc., as lender, (ii) Master Loan Agreement, dated as of October 22, 2021, between TPHGreenwich Owner LLC, as borrower, and Macquarie PF Inc., as lender, and (iii) Project Loan Agreement, dated as of October 22, 2021, between TPHGreenwich Owner LLC, as borrower, and

​

Schedule B - Page 1

​

Macquarie PF Inc., as lender, in each case, as amended, restated, supplemented and/or otherwise modified from time to time.

“77 Greenwich Mortgage Loan Completion Guaranty” means that certain Guaranty of Payment and Completion, dated as of the effective date of the First Amended and Restated Agreement, by the Investor Fund Entities to and for the benefit of MPF Greenwich Lender LLC (as successor-in-interest to Macquarie PF Inc.), as lender and as administrative agent, and for the benefit of the Lender Parties (as defined therein), as amended, restated, supplemented and/or otherwise modified from time to time.

“77 Greenwich Mortgage Loan Documents” means the “Loan Documents” as defined in the 77 Greenwich Mortgage Loan Agreement.

“77 Greenwich Mortgage Loan Environmental Indemnity” means that certain Environmental Indemnification Agreement, dated as of the effective date of the First Amended and Restated Agreement, by the Investor Fund Entities and TPHGreenwich Owner LLC to and for the benefit of MPF Greenwich Lender LLC (as successor-in-interest to Macquarie PF Inc.), as lender and as administrative agent, and for the benefit of the Lender Parties (as defined therein), as amended, restated, supplemented and/or otherwise modified from time to time.

“77 Greenwich Mortgage Loan Guaranty” means each of (i) that certain Interest Guaranty, dated as of the effective date of the First Amended and Restated Agreement, by the Investor Fund Entities to and for the benefit of MPF Greenwich Lender LLC (as successor-in-interest to Macquarie PF Inc.), as lender and as administrative agent, and for the benefit of the Lender Parties (as defined therein), as amended, restated, supplemented and/or otherwise modified from time to time, (ii) that certain Recourse Guaranty Agreement, dated as of the effective date of the First Amended and Restated Agreement, by the Investor Fund Entities to and for the benefit of MPF Greenwich Lender LLC (as successor-in-interest to Macquarie PF Inc.), as lender and as administrative agent, and for the benefit of the Lender Parties (as defined therein), as amended, restated, supplemented and/or otherwise modified from time to time and (iii) the 77 Greenwich Mortgage Loan Completion Guaranty.

“Accountants” means BDO USA, LLP or such other firm of independent certified public accountants as is appointed by the Manager pursuant to the provisions hereof.

“Act” is defined in the first whereas clause.

“Additional Capital Contribution” is defined in Section 5.1.2(a).

“Additional Company Debt Financing” is defined in Section 5.1.2(b).

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

“Agreement” is defined in the preamble.

“Annual Budget” is defined in Section 8.2.

“Anti-Terrorism Law” means (a) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. Law No. 107-56, 115 Stat. 296 (2001); (b) the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et. seq. (2003); (c) the Trading with the Enemy Act, 50 U.S.C. App. §§ 1 et. seq. (2003); and (d) other similar laws

​

Schedule B - Page 2

​

enacted or promulgated from time to time; in each case, together with any executive orders, rules or regulations promulgated thereunder, including, without limitation, temporary regulations, all as amended or otherwise modified from time to time.

“Applicable Entity Disclosure Laws” means (a) the Corporate Transparency Act (31 U.S.C. § 5336), enacted as part of the National Defense Authorization Act for Fiscal Year 2021, as amended, and the rules and regulations promulgated thereunder, (b) the New York LLC Transparency Act, enacted by the State of New York as Senate Bill 995B/Assembly Bill 3484A, and made effective December 21, 2024, as amended, and the rules and regulations promulgated thereunder, and (c) any rules or regulations promulgated from time to time in respect of the laws described in clauses (a) and (b), and any similar statute, rule or regulation now or hereafter existing in any jurisdiction applicable to the Company or to any Subsidiary Company from time to time.

“Assets” means any asset of the Company, including, without limitation, the Subsidiary Interests and the indirect interests in the Property.

“Assigned Interest” is defined in the Assignment and Assumption Agreement.

“Assignment and Assumption Agreement” is defined in the third whereas clause.

“Available Cash” means, as determined by the Manager, cash paid to or in the possession of, the Company from whatever source (including, without limitation, Paramus Net Sale Proceeds (which shall be distributed to the Investor Member in accordance with the terms of Schedule 7.1) and any other cash received from the sale of Assets and cash received from a Subsidiary Company) after deducting therefrom (a) all funds necessary to pay for the currently payable expenses incurred in connection with the normal operations of the Company in accordance with and subject to the terms hereof, including, without limitation, expenses under Article VI, subject to the provisions of said Article VI, (b) the payment of all currently payable debt service, reserve and escrow amounts for all Outstanding Loans when and as they become due and payable and/or are required to be reserved or escrowed, (c) the payment of all other currently payable obligations of the Company and the Subsidiary Companies to third parties, including, without limitation, obligations in connection with the Assets and the Subsidiary Company Assets, and (d) an amount equal to the Working Capital Reserve.

“Bankrupt Member” is defined in Section 10.4(a).

“Business Day” means a day of the year on which banks are open for business in the State of New York other than a (a) Saturday, (b) Sunday or (c) legal holiday in the State of New York.

“Business Plan” is defined in Section 8.2.

“Capital Accounts” is defined in Section E.1 of Schedule E.

“Capital Call Notice” is defined in Section 5.1.4(a).

“Capital Call Notice Date” is defined in Section 5.1.4(a).

“Capital Contribution” means (a) with respect to the Investor Member, the sum of the Investor Member Initial Capital Contribution, any Additional Capital Contributions and other capital contributions made (or deemed made) by the Investor Member to the Company and (b) with respect to the TPH Member, the sum of the TPH Member Initial Capital Contribution, and other capital contributions made (or deemed

​

Schedule B - Page 3

​

made) by the TPH Member to the Company, as each of the foregoing under clause (a) and/or (b) may be adjusted (proportionately or disproportionately), from time to time, in accordance with the terms of this Agreement.

“Capital Contribution Date” is defined in Section 5.1.4(a).

“Carveout/EIA Losses” is defined in Section 6.2(a).

“Certificate” is defined in the first whereas clause.

“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute thereto.

“Company” is defined in the preamble.

“Control” (including, with correlative meaning, the terms “Controlled by” and “under common Control with”), means, with respect to any Person, possession, directly or indirectly, through one or more intermediaries, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract.

“Deemed Approval Requirements” means, with respect to any applicable Major Decision for which the TPH Member’s approval is requested under Section 8.1, that (a) the Manager shall have sent the TPH Member a written request for approval with respect to such Major Decision in accordance with the applicable terms and conditions of this Agreement, (b) the TPH Member shall have failed to either approve or deny such request within five (5) Business Days after receipt of the foregoing initial notice, (c) the Manager shall have submitted a second request for approval with respect to such Major Decision in accordance with the applicable terms and conditions of this Agreement and (d) the TPH Member shall have failed to respond to such second notice with a disapproval within five (5) Business Days after receipt of the foregoing second notice.

“Delisting” is defined in the Prior Stock Purchase Agreement.

“Deregistration” is defined in the Stock Purchase Agreement.

“Effective Date” is defined in the preamble.

“Environmental Indemnity” means an environmental indemnity or similar agreement that a Third Party Lender requires a third party execute and deliver in favor of such Third Party Lender in connection with a Third Party Loan.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“FATCA” means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.

“Finance Broker” is defined in Section 5.1.2(b).

“Fiscal Year” means any period of twelve (12) consecutive calendar months ending on December 31 of any calendar year, unless otherwise designated by the Manager. Notwithstanding the foregoing, the

​

Schedule B - Page 4

​

Members hereby acknowledge that (a) the Fiscal Year for 2023 shall commence on the Effective Date and end on December 31, 2023 and (b) the Fiscal Year for the year of dissolution of the Company shall commence on the immediately preceding January 1 and end on the date on which all of the proceeds of liquidation are distributed pursuant to Article IX.

“First Amended and Restated Agreement” is defined in the preamble.

“Governmental List” means (a) the List of Specially Designated Nationals and Blocked Persons promulgated by OFAC from time to time and (b) any other similar list (including, without limitation, any list of Prohibited Persons) promulgated by any governmental authority from time to time.

“Herein” is defined in Section 13.6.

“Hereinafter” is defined in Section 13.6.

“Hereof” is defined in Section 13.6.

“Hereunder” is defined in Section 13.6.

“Initial Capital Contributions” means (a) with respect to a Member, as the context requires, either the Investor Member Initial Capital Contribution or the TPH Member Initial Capital Contribution made by such Member and (b) with respect to all Members, the Investor Member Initial Capital Contribution and the TPH Member Initial Capital Contribution, collectively.

“Inter-Member Loan” is defined in Section 5.1.3.

“Investor Fund Entities” is defined in Section 11.5.5.

“Investor Fund Entities Guaranty” is defined in Section 11.5.5.

“Investor Member” is defined in the preamble.

“Investor Member Affiliate 77 Greenwich Mezz Loan” means the “Loan” as defined in the Investor Member Affiliate 77 Greenwich Mezz Loan Agreement.

“Investor Member Affiliate 77 Greenwich Mezz Loan Agreement” means that certain Amended and Restated Mezzanine Loan Agreement, dated as of October 22, 2021, by and among TPHGreenwich Subordinate Mezz LLC (“MezzCo”), as borrower, TPHGreenwich Mezz LLC (“MezzCo Additional Pledgor”), as additional pledgor, TPHS Lender II LLC, as lender, and TPHS Lender II LLC, as administrative agent, as amended by that certain First Amendment to Amended and Restated Mezzanine Loan Agreement and Loan Documents, dated as of November 30, 2022, among TPHS Lender II LLC, as lender, TPHS Lender II LLC, as administrative agent, MezzCo, MezzCo Additional Pledgor and the TPH Member, as further amended by that certain Second Amendment to Amended and Restated Mezzanine Loan Agreement and Loan Documents, dated as of the date hereof, among TPHS Lender II LLC, as lender, TPHS Lender II LLC, as administrative agent, MezzCo and the TPH Member, and as the same may be further amended, restated, supplemented or modified from time to time.

“Investor Member Affiliate 77 Greenwich Mezz Loan Documents” means the “Loan Documents” as defined in the Investor Member Affiliate 77 Greenwich Mezz Loan Agreement.

​

Schedule B - Page 5

​

“Investor Member Affiliate Holdco Loan” means the “Loan” as defined in the Investor Member Affiliate Holdco Loan Agreement.

“Investor Member Affiliate Holdco Loan Agreement” means that certain Amended and Restated Credit Agreement, dated as of the effective date of the First Amended and Restated Agreement, by and among the Company, as borrower, certain subsidiaries of the Company from time to time party thereto, as guarantors, the lenders from time to time party thereto, and Mount Street (Georgia) LLP, as administrative agent, as amended, restated, supplemented and/or otherwise modified from time to time.

“Investor Member Affiliate Holdco Loan Documents” means the “Loan Documents” as defined in the Investor Member Affiliate Holdco Loan Agreement.

“Investor Member Guaranty Party” means the Investor Member and/or any Affiliate of the Investor Member that executes a Third Party Loan Guaranty. As of the effective date of the First Amended and Restated Agreement, each of (i) ▇.▇. ▇▇▇▇▇▇▇▇ & Co., a New York limited partnership, (ii) Davidson Kempner Distressed Opportunities Fund LP, a Delaware limited partnership, (iii) Davidson Kempner Distressed Opportunities International Ltd., a Cayman Islands exempted company, (iv) Davidson Kempner International, Ltd., a BVI business company, (v) Davidson Kempner Institutional Partners, L.P., a Delaware limited partnership and (vi) Davidson Kempner Partners, a New York limited partnership, shall constitute an Investor Member Guaranty Party.

“Investor Member Initial Capital Contribution” is defined in Section 5.1.1(a).

“Investor Member Initial Distribution Amount” means, as of any date of determination, the sum of the following amounts: (a) all amounts due under the Investor Member Affiliate Holdco Loan Documents and the Investor Member Affiliate 77 Greenwich Mezz Loan Documents (including, without limitation, all principal at par, interest (accrued and/or payable-in-kind, in each case, before and after the effective date of the First Amended and Restated Agreement, at the non-default rate specified in the Investor Member Affiliate Holdco Loan Documents and the Investor Member Affiliate 77 Greenwich Mezz Loan Documents, as applicable), fees (other than late fees), charges, and protective and additional loan advances, together with interest accrued on such protective and/or additional loan advances at the applicable non-default rate specified in the Investor Member Affiliate Holdco Loan Documents and the Investor Member Affiliate 77 Greenwich Mezz Loan Documents, as applicable, and all reasonable attorneys’ fees of the administrative agent and lenders thereof incurred after the the effective date of the First Amended and Restated Operating Agreement); (b) all Additional Company Debt Financing provided by the Investor Member or an Affiliate of the Investor Member (including, without limitation, all principal at par, interest (accrued and/or payable-in-kind, at the non-default rate specified in the applicable loan documents for such Additional Company Debt Financing), fees (other than late fees), charges, and protective and additional loan advances, together with non-default interest accrued on such protective and/or additional loan advances at the non-default rate specified in the applicable loan documents for such Additional Company Debt Financing, and all reasonable attorneys’ fees of the lender under such Additional Company Debt Financing); (c) the Investor Member Initial Capital Contribution, plus any mortgage recording taxes paid by the Investor Member or an Affiliate thereof on or about the effective date of the First Amended and Restated Agreement in respect of the 77 Greenwich Mortgage Loan (to the extent any funds escrowed for the payment of such mortgage recording taxes are not returned to the Investor Member or such Affiliate by the applicable escrow agent); and (d) all Additional Capital Contributions made by the Investor Member (i) related to the 77 Greenwich Property, a rate of return the same as the economics set forth from time to time in the Investor Member Affiliate 77 Greenwich Mezz Loan Documents, and (ii) for any other reason or related to any Asset other than the 77 Greenwich Property, a market rate of return on such Additional

​

Schedule B - Page 6

​

Capital Contribution as reasonably determined by the Manager in accordance with Section 5.1.2). The parties acknowledge that Available Cash to repay that portion of the Investor Member Initial Distribution Amount under clauses (c) and (d) of the immediately preceding sentence shall not exist until all amounts described under clauses (a) and (b) of the immediately preceding sentence shall have been repaid in full to the parties entitled to receive such payments, and each of the 77 Greenwich Mortgage Loan, the 237 11th Mortgage Loan and the 237 11th Mezz Loan have all been repaid in full, in each case, in accordance with the terms of the 77 Greenwich Mortgage Loan Documents, the 237 11th Mortgage Loan Documents and the 237 11th Mezz Loan Documents, respectively. For the avoidance of doubt, nothing herein shall be deemed or construed to constitute a waiver of any default or event of default under the Investor Member Affiliate Holdco Loan or the Investor Member Affiliate 77 Greenwich Mezz Loan, or a waiver of any default interest that may be charged by the applicable lender under the Investor Member Affiliate Holdco Loan Documents or the Investor Member Affiliate 77 Greenwich Mezz Loan Documents.

“Investor Member Legal Counsel” is defined in Section 13.21.

“Investor Member Parent” means Davidson Kempner Capital Management LP.

“Legal Counsel” is defined in Section 13.21.

“Liquidating Manager” is defined in Section 9.2(a).

“Major Decisions” is defined in Section 8.1.

“Manager” means, TPHS Investor LLC, a Delaware limited liability company, and subsequent the Effective Date, such entity as is designated to be the Manager by the Investor Member pursuant to the terms of Section 8.14.

“Manager Exculpated Party” is defined in Section 8.11.

“Members” means the Investor Member and the TPH Member, together with any Person who becomes a substituted or additional member of the Company as herein provided, and who is listed as a member of the Company in the books and records of the Company, in such Person’s capacity as a member of the Company. Each such party is referred to herein as a “Member”.

“Non-Recourse Carveout Guaranty” means a guaranty of so-called “recourse carveout” provisions including, without limitation, fraud, misrepresentation, misappropriation or misapplication of funds, misapplication of rents after default, waste, gross negligence and willful misconduct, that a Third Party Lender requires a third party execute and deliver in favor of such Third Party Lender in connection with a Third Party Loan.

“Notice” is defined in Section 13.15.

“OFAC” means the U.S. Department of the Treasury Office of Foreign Assets Control, and any successor thereto.

“Original Agreement” is defined in the second whereas clause.

“Outstanding Loan” means any loan obligation of the Company that has not been satisfied, including, without limitation, any loan obligation to any Affiliate of any Member or Manager. The parties

​

Schedule B - Page 7

​

acknowledge that the Third Party Loans, the Investor Member Affiliate 77 Greenwich Mezz Loan and the Investor Member Affiliate Holdco Loan are Outstanding Loans for purposes of this Agreement.

“Paramus Credit Agreement” has the meaning given to such term in the Prior Stock Purchase Agreement.

“Paramus Net Sale Proceeds” means all net proceeds received by the Paramus Property Owner in connection with the Paramus Property Sale (less all reasonable out-of-pocket transaction expenses reasonably approved by the Investor Member and any amounts payable in satisfaction of the Paramus Property Owner’s existing obligations under the Paramus Credit Agreement in accordance with the terms thereof).

“Paramus Property” means the land and improvements located thereon known generally as “▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇” which are owned by the Paramus Property Owner.

“Paramus Property Owner” means TPH Route 17 LLC, a Delaware limited liability company.

“Paramus Property Sale” has the meaning given to such term in the Prior Stock Purchase Agreement.

“Partial Transferee” is defined in Section 10.2.

“Partnership Representative” is defined in Section 12.4(a).

“Percentage Distribution” means any right of the TPH Member to receive distributions under clause (ii) of Schedule 13.23(ii).

“Percentage Interest” means, with respect to any Member and as of any date of determination, the percentage obtained by dividing (a) the total Capital Contributions made to the Company by such Member by (b) the total Capital Contributions made to the Company by all Members as of such date, as same may be adjusted (proportionately or disproportionately) as of any date pursuant to the terms of this Agreement (it being acknowledged that on the Effective Date, the Percentage Interest of each Member shall be the percentage interest set forth opposite the name of such Member under the heading “Percentage Interest” on Schedule A attached hereto and made a part hereof); provided, however, solely for purposes of calculating Percentage Interests, Withholding Capital Contribution shall not be deemed to be a Capital Contribution.

“Person” means any natural person, partnership, corporation, limited liability company and any other form of business or legal entity.

“Prior Stock Purchase Agreement” means that certain Stock Purchase Agreement, dated as of January 5, 2024, by and between the TPH Member, TPHS Lender LLC and the Investor Member, as amended, restated, supplemented and/or otherwise modified from time to time, and terminated on the Effective Date, pursuant to the Termination of Prior Stock Purchase Agreement.

“Profits and Losses” is defined in Schedule E.

“Prohibited Person” means any Person who is (a) designated by the United States federal government as a terrorist or as a suspected terrorist, whether on a Governmental List, or otherwise or (b) otherwise subject to trade, anti-money laundering or anti-terrorism restrictions under United States federal or state law from time to time, including, without limitation, under any Anti-Terrorism Law.

​

Schedule B - Page 8

​

“Property” means, collectively, (i) those certain residential condominium units and the retail condominium unit relating to that certain residential condominium building known as ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Condominium, located at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ and State of New York, and more particularly described on Schedule H-1 attached hereto and made a part hereof (such condominium units together with the related common interests, the “77 Greenwich Property”), and (ii) that certain real property, known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, located in the Borough of Brooklyn, County of New York, City and State of New York, and more particularly described on Schedule H-2 attached hereto and made a part hereof, together with that certain mixed-use building located thereon containing residential apartment units, retail/commercial space and a parking garage, and other improvements erected thereon (the “237 11th Property”).

“Regulatory Allocations” is defined in Section E.5 of Schedule E.

“Revised Partnership Audit Procedures” means the provisions of Subchapter C of Subtitle A, Chapter 63 of the Code, as amended by P.L. 114-74, the Bipartisan Budget Act of 2015 (together with any subsequent amendments thereto, Treasury Regulations promulgated thereunder, and published administrative interpretations thereof).

“Securities Laws” is defined in Section 11.4(a).

“Stock Purchase Agreement” is defined in the fifth whereas clause.

“Subsidiary 237 11th Mezz Borrower” means ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Owner, LLC, a Delaware limited liability company.

“Subsidiary 77 Greenwich Additional Pledgor” means TPHGreenwich Mezz LLC, a Delaware limited liability company.

“Subsidiary 77 Greenwich Mezz Borrower” means TPHGreenwich Subordinate Mezz LLC, a Delaware limited liability company.

“Subsidiary Company Assets” means with respect to each Subsidiary Company, the assets of such Subsidiary Company (including, without limitation, the Property) owned by such Subsidiary Company, and with respect to all the Subsidiary Companies, the assets of all of the Subsidiary Companies.

“Subsidiary Companies” means (a) the Subsidiary Property Owners, (b) the Subsidiary 77 Greenwich Mezz Borrower, (c) the Subsidiary 77 Greenwich Additional Pledgor, (d) the Subsidiary 237 11th Mezz Borrower, (e) the Subsidiary Former Property Owners and (f) any partnership, corporation, limited liability company, or other form of business or legal entity that is, directly or indirectly, formed by the Company from time to time and in which the Company holds a direct or indirect ownership, beneficial, management, or other interest (including, without limitation, a partnership, corporation, limited liability company, or other form of business entity that is formed to act as manager, member, general partner, limited partner, stockholder, or beneficial owner of any other, directly or indirectly, wholly-owned partnership, corporation, limited liability company, or other form of business or legal entity); and each of them is from time to time referred to as a “Subsidiary Company”.

“Subsidiary Company Operating Agreements” means, collectively, the limited liability company operating agreement, limited partnership agreement, or any similar agreement or other document or instrument governing the formation, operation, and/or existence of any Subsidiary Company and all amendments, restatements, supplements and/or modifications thereof (the terms and provisions of which,

​

Schedule B - Page 9

​

subject to any applicable provisions relating to Major Decisions, in each case, shall be decided in the sole discretion of the Manager). Each such limited liability company operating agreement, limited partnership agreement, or other document or instrument is referred to herein, from time to time, individually, as a “Subsidiary Company Operating Agreement”.

“Subsidiary Former Property Owners” means, collectively, the entities listed on Schedule J attached hereto under the heading “Former Property Owner”; from time to time, individually, as a “Subsidiary Former Property Owner”.

“Subsidiary Property Owners” means, collectively, the entities listed on Schedule J attached hereto under the heading “Property Owner”; from time to time, individually, as a “Subsidiary Property Owner”.

“Term” is defined in Section 2.2.

“Termination For Cause” means (a) the termination of the TPH Management Agreement with Cause (as defined in the TPH Management Agreement) in accordance with the terms of the TPH Management Agreement; (b) the TPH Member’s failure to cause the consummation of the Trust Transaction on or prior to Trust Outside Date (which establishment and consummation shall include the conveyance to the Trust of all of the TPH Member’s interest in, to, and under the Company); (c) the taking by the TPH Member, by any trustee, or by any beneficiary of the Trust of any action that breaches the terms of the Trust’s agreement of trust or other organizational and/or governing documents in any material respect and in a manner that has an adverse impact on the Company; and/or (d) the TPH Member, the Trust, or any beneficiary or trustee of the Trust takes any action that incurs or would be expected to incur a New York State or New York City real property transfer tax that is payable by the Company and/or any Subsidiary Company that is not reimbursed by the Trust. The parties acknowledge, for the avoidance of doubt that the terms of clauses (b), (c), and (d) are intended to be effective after termination of the TPH Management Agreement.

“Termination of Prior Stock Purchase Agreement” means that certain Partial Termination of Stock Purchase Agreement, dated as of the Effective Date, by and between the TPH Member, TPHS Lender LLC and the Investor Member.

“Third Party Lender” means (a) a lender making a Third Party Loan to the Company and/or (b) a lender making a Third Party Loan to a Subsidiary Company. As of the Effective Date, (i) the Third Party Lender with respect to the 77 Greenwich Mortgage Loan is Macquarie PF Inc., (ii) the Third Party Lender with respect to the 237 11th Mortgage Loan is each of Natixis, New York Branch and Blue Foundry Bank, and (iii) the Third Party Lender with respect to the 237 11th Mezz Loan is Lexington 11th Street, LLC.

“Third Party Loan” means (a) a loan made to the Company that is secured by a lien on the Subsidiary Interests or the other assets of the Company or that is senior to other indebtedness of the Company or (b) a loan made to any or all of the Subsidiary Companies that is secured by a lien on the Subsidiary Company Assets of such Subsidiary Company (including, without limitation, a lien on any or all of the Property owned by such Subsidiary Company). As of the Effective Date, each of the 77 Greenwich Mortgage Loan, the 237 11th Mortgage Loan and the 237 11th Mezz Loan is a Third Party Loan.

“Third Party Loan Guaranty” means a guaranty made in connection with a Third Party Loan in favor of a Third Party Lender, including, without limitation, any Non-Recourse Carveout Guaranty or Environmental Indemnity. The parties acknowledge that each of the 77 Greenwich Mortgage Loan Guaranty, the 77 Greenwich Mortgage Loan Environmental Indemnity, the 237 11th Mortgage Loan

​

Schedule B - Page 10

​

Guaranty and the 237 11th Mezz Loan Guaranty is a Third Party Loan Guaranty for purposes of this Agreement.

“Third Party Property Manager” means a property manager which is not an Affiliate of a Member and which is retained by any Subsidiary Company to act as property manager of a Property. The parties acknowledge that, as of the Effective Date, (i) FirstService Residential New York, Inc., a New York corporation, is the Third Party Property Manager for the 77 Greenwich Property and (ii) FirstService Residential New York, Inc., a New York corporation, is the Third Party Property Manager for the 237 11th Property.

“TPH Asset Manager” means TPH Asset Manager LLC, a Delaware limited liability company, as asset manager under the TPH Management Agreement.

“TPH Legal Counsel” is defined in Section 13.21.

“TPH Management Agreement” means the Asset Management Agreement, dated as of the effective date of the First Amended and Restated Agreement, between the TPH Asset Manager, as manager, and the Company, as company, as same may be hereafter amended or modified.

“TPH Member” is defined in the preamble.

“TPH Member Dissolution Event” is defined in Section 11.5.2.

“TPH Member Initial Capital Contribution” is defined in Section 5.1.1(b).

“TPH Restricted Party” means (a) the TPH Member, (b) any Affiliate of the TPH Member or (d) any entity in which the TPH Member owns or holds any direct or indirect beneficial or management interest.

“Transfer” is defined in Section 10.1.

“Transferee” is defined in Section 10.3.

“Transferor” is defined in Section 10.3.

“Treasury Regulations” is defined in Schedule E.

“Trust” is defined in Section 10.1(a).

“Withholding Capital Contribution” is defined in Section 7.6(b).

“Working Capital Reserve” means a reserve for the working capital and other needs of the Company and/or the Subsidiary Companies as is determined by the Manager in good faith (it being agreed and acknowledged that the Working Capital Reserve may include a reserve for future anticipated liabilities of the Company and/or Subsidiary Companies if so determined by the Manager in good faith). The parties acknowledge that the Manager has determined that the amount of the initial Working Capital Reserve shall be $0.

​

​

Schedule B - Page 11

​

Schedule C

MAJOR DECISIONS

A “Major Decision” means any of the following circumstances or events:

​

​

Schedule C - Page 1

​

Schedule D

INTENTIONALLY OMITTED

​

​

Schedule D - Page 1

​

Schedule E

TAX MATTERS

I.Defined Terms:  As used in this Schedule E, the following terms shall have the following meaning (and any capitalized term not defined in this Schedule E shall have the meaning ascribed thereto in the Agreement to which this Schedule E is attached):

“Adjusted Capital Account Deficit” means, with respect to any member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:

(i)credit to such Capital Account any amount that such Member is deemed to be obligated to restore pursuant to the penultimate sentences in Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

(ii)debit to such Capital Account the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6).

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulation Section 1.704-(1)(b)(2)(ii)(d) and shall be interpreted and applied consistently therewith.

“Book Value” means, with respect to any Asset, such Asset’s adjusted basis as of the relevant date for U.S. federal income tax purposes, except as follows:

(a)The initial Book Value of any asset contributed by a Member to the Company shall be the fair market value of such asset as of the time of such contribution.

(b)The Book Value of the Assets shall be adjusted, at the election of the Investor Member, to equal their respective fair market values as of the following times:

(i)the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis capital contribution;

(ii)the distribution by the Company to a Member of more than a de minimis amount of any Asset of the Company including cash as consideration for an interest in the Company;

(iii)the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g); and

(iv)the grant of an interest in the Company of more than a de minimis amount as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a Member capacity, or by a new Member acting in a Member capacity or in anticipation of becoming a Member.

(a)The Book Value of any Asset distributed to any Member shall be adjusted to equal the fair market value of such Asset on the date of distribution as determined by the Manager.

​

Schedule E - Page 1

​

(b)The Book Value of the Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such Assets pursuant to Section 734(b) or Section 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to (i) Treasury Regulation Section 1.704-1(b)(2)(iv)(m) and (ii) subparagraph (f) of the definition of “Profits” and “Losses” or Section E.3(g) of this Schedule E; provided, however, that Book Values shall not be adjusted pursuant to this subparagraph (b) to the extent an adjustment pursuant to subparagraph (f) (ii)(b) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (b).

(c)If the Book Value of an Asset has been determined or adjusted pursuant to clause (ii)(a), (ii)(b) or (b) above, such Book Value shall thereafter be adjusted by the Depreciation taken into account with respect to such Asset for purposes of computing Profits and Losses.

The foregoing definition of Book Value is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(iv) and shall be interpreted and applied consistently therewith.

“Company Minimum Gain” has the same meaning as the term “partnership minimum gain” in Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).

“Depreciation” means, for each Fiscal Year or part thereof, an amount equal to the depreciation, amortization, or other cost recovery deductions allowable for U.S. federal income tax purposes with respect to an Asset for such year or other period, except if the Book Value of an Asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning of such year, Depreciation shall be an amount which bears the same ratio to such Book Value as the U.S. federal income tax depreciation, amortization or other cost recovery deduction for such year bears to such adjusted tax basis; provided, however, that if the adjusted basis for U.S. federal income tax purposes of an Asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Book Value using any reasonable method selected by the Manager.

“Member Nonrecourse Debt” has the same meaning as the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

“Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulation Section 1.704-2(i)(3).

“Member Nonrecourse Deductions” has the same meaning as the term “partner nonrecourse deductions” set forth in Treasury Regulation Sections 1.704-2(i)(1) and 1.704-2(i)(2).

“Nonrecourse Deductions” has the meaning set forth in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2(c).

“Nonrecourse Liability” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(3).

“Profits” and “Losses” means, for each Fiscal Year or other applicable period, an amount equal to the Company’s taxable income or loss for such period determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant

​

Schedule E - Page 2

​

to Code Section 703(a)(1) shall be included in taxable income or loss) with the following adjustments (without duplication):

(a)any income of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses” shall be added to such taxable income or loss;

(b)any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as such pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses” shall be subtracted from such taxable income or loss;

(c)Depreciation for such period shall be taken into account in lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss;

(d)gain or loss resulting from any disposition of any Asset with respect to which gain or loss is recognized for U.S. federal income tax purposes shall be computed with reference to the Book Value of the property disposed of, rather than the adjusted tax basis of such property;

(e)if the Book Value of any Asset is adjusted pursuant to the provisions of clause (b) or (c) of the definition of Book Value, such adjustment shall be treated as Profit or Loss, as the case may be, recognized by the Company;

(f)to the extent an adjustment to the adjusted tax basis of any Asset pursuant to Section 734(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the Asset) or loss (if the adjustment decreases the basis of the Asset) from the disposition of such Asset and shall be taken into account for purposes of computing Profits or Losses; and

(g)notwithstanding any other provision of this definition, any items that are specially allocated pursuant to II.Section E.3 or II.Section E.4 of this Schedule E shall not be taken into account in computing Profits or Losses.

The amounts of the items of Company income, gain, loss or deduction available to be specially allocated pursuant to II.Section E.3 or II.Section E.4 of this Schedule E shall be determined by applying rules analogous to those set forth in subparagraphs (a) through (f) above.

“Treasury Regulations” means the regulations issued under the Code, in effect as of the Effective Date, as same may be amended, restated, revised or otherwise reissued from time to time.

▇▇.▇▇▇ Provisions.

Section ▇.▇.▇▇▇▇▇▇▇ Accounts.  The Company shall maintain capital accounts (“Capital Accounts”) for each Member in accordance with the following provisions:

E.1.1.Positive Adjustments.  Each Member’s Capital Account shall be increased by:

​

Schedule E - Page 3

​

(a)the amount of its Capital Contributions to the Company, including the Book Value of Capital Contributions of property contributed by a Member to the Company (net of liabilities securing such contributed property that the Company is considered to assume or take subject to); and

(b)the amount of Profits and items of income or gain allocated to it pursuant to this Agreement, including, without limitation, Section E.2, Section E.3, and Section E.4.

E.1.2.Negative Adjustments.  Each Member’s Capital Account shall be decreased by:

(a)the amount of Losses and items of loss or deduction allocated to it pursuant to this Agreement, including without limitation Section E.2, Section E.3, and Section E.4; and

(b)all amounts of money and the Book Value of property distributed to a Member by the Company (net of liabilities securing such distributed property that such Member is considered to assume or take subject to) pursuant to Article VII and Article IX.

E.1.3.Additional Adjustments.  Except as otherwise provided in this Agreement, whenever it is necessary to determine the Capital Account of any Member for purposes of this Agreement, the Capital Account of the Member shall be determined after giving effect to the allocation for the Company’s current year to date of gross income, net income, net gains, and net losses under this Agreement. Loans by any Member to the Company shall not be considered Capital Contributions. Any Member, including any substitute Member, who shall receive an interest in the Company or whose interest in the Company shall be increased by means of a transfer to him of all or part of the interest of another Member, shall succeed to the Capital Account (or portion thereof) corresponding to the interest in the Company which was transferred.

E.1.4.Compliance with Treasury Regulations.  The foregoing provisions of this Section E.1 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulations. In the event the Manager shall determine that, in order to comply with these regulations, it is prudent to modify the manner in which the Capital Accounts are maintained, or the amount of any increases or decreases thereto, the Manager may make such modification, provided that it is not likely to have a material effect on the amounts distributed to any Person pursuant to Article IX upon the dissolution of the Company. The Manager also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(q) and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Treasury Regulation Section 1.704-1(b).

Section E.2.Allocations of Profits and Losses.  Except as otherwise provided in this Agreement, Profits and Losses (and, to the extent necessary, individual items of income, gain, loss, deduction, or credit) of the Company shall be allocated among the Members in a manner such that, after giving effect to the special allocations set forth in Section E.3 and Section E.4, the Capital Account of each Member, immediately after making such allocation, is, as nearly as possible, equal (proportionately) to (i) the distributions that would be made to such Members pursuant to Section 7.1 if the Company were dissolved, its affairs wound up and its Assets sold for cash equal to their Book Value, all Company liabilities

​

Schedule E - Page 4

​

were satisfied (limited with respect to each Nonrecourse Liability to the Book Value of the Assets securing such Nonrecourse Liability), and the net Assets of the Company were distributed in accordance with Section 7.1 to the Members immediately after making such allocation, minus (ii) such Member’s share of Company Minimum Gain and Member Nonrecourse Debt Minimum Gain, computed immediately prior to the hypothetical sale of Assets.

Section E.3.Special Allocations.  Notwithstanding the provisions of Section E.2, the following special allocations shall be made:

(a)Minimum Gain Chargeback.  Except as otherwise provided in Treasury Regulation Section 1.704-2(f), notwithstanding any other provision of this Schedule E, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This II.Section E.3(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(b)Member Minimum Gain Chargeback.  Except as otherwise provided in Treasury Regulation Section 1.704-2(i)(4), notwithstanding any other provision of this Schedule E, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount determined in accordance with Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This II.Section E.3(b) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c)Qualified Income Offset.  In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible, provided that an allocation pursuant to this II.Section E.3(c) shall be made only if and to the extent that the Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Schedule E have been tentatively made as if this II.Section E.3(c) were not in this Agreement.

(d)Gross Income Allocation.  In the event any Member has an Adjusted Capital Account Deficit at the end of any Fiscal Year, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this II.Section E.3(d) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all

​

Schedule E - Page 5

​

other allocations provided for in this Schedule E have been made as if II.Section E.3(c) and this II.Section E.3(d) were not in this Agreement.

(e)Nonrecourse Deductions.  Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Members in proportion to their respective Percentage Interests.

(f)Member Nonrecourse Deductions.  Any Member Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(1).

(g)Section 754 Adjustments.  To the extent an adjustment to the adjusted tax basis of any Asset, pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2) or Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the Asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in accordance with their interests in the Company in the event Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was made in the event Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) applies.

(h)Loss Limitation.  Losses allocated pursuant to II.Section E.2 thereof shall not exceed the maximum amount of Losses that can be allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Fiscal Year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to II.Section E.2, the limitation set forth in this II.Section E.3(h) shall be applied on a Member by Member basis and Losses not allocated to any Member as a result of such limitation shall be allocated to the other Members in accordance with the positive balances in such Member’s Capital Accounts so as to allocate the maximum permissible Losses to each Member under Treasury Regulation Section 1.704-1(b)(2)(ii)(d).

(i)Depreciation Recapture.  If Profits to be allocated pursuant to II.Section E.2 or items of gross income to be allocated pursuant to II.Section E.3(a) includes income treated as ordinary income or “unrecaptured section 1250 gain” (as defined in Section 1(h)(6) of the Code) for U.S. federal income tax purposes because it is attributable to the recapture of Depreciation, such Profits or items of gross income shall be allocated to the Members, to the extent possible, in proportion to their prior Depreciation allocations which gave rise to such recapture.

Section E.4.Curative Allocations.  The allocations set forth in II.Section E.3(a) through II.Section E.3(h) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this II.Section E.4. Therefore, notwithstanding any other provision of this Schedule E (other than the Regulatory Allocations), the Manager shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner it determines appropriate so that, after such offsetting, allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to II.Section E.2 and II.Section E.3(h)3(i).

​

Schedule E - Page 6

​

Section E.5.Other Allocation Rules.

(a)Allocations With Respect to Transferred Interests.  Any Profit or Loss allocable to an interest in the Company which has been transferred during any year shall be allocated among the Persons who were holders of such interest during such year pursuant to any method under the Code or Treasury Regulations agreed upon by the Members.

(b)Excess Non-Recourse Liabilities.  Solely for purposes of allocating “excess nonrecourse liabilities” of the Company among the Members, within the meaning of Treasury Regulation Section 1.752-3(a)(3), the Members agree that their respective interests in the Profits of the Company are equal to their respective Percentage Interests, unless otherwise agreed upon by all of the Members.

(c)The allocation and capital account provisions of this Schedule E are intended to comply with Section 514(c)(9)(E) of the Code and Treasury Regulations promulgated pursuant to such section, and shall be interpreted and applied in a manner consistent with such provisions. No allocation shall be made that would violate Section 514(c)(9)(E) of the Code.

(d)The Members are aware of the income tax consequences of the allocations made by this Schedule E and hereby agree to be bound by the provisions of this Schedule E in reporting their shares of the Company income, gain, loss, and deduction for income tax purposes.

Section E.6.Qualified Liabilities. All liabilities of the Company and the Subsidiary Companies that are treated for federal income tax purposes as contributed to the Company in connection with the issuance of an interest in the Company to the Investor Member shall be treated by the Company and the Members as “qualified liabilities” of the TPH Member within the meaning of Treasury Regulation Section 1.707-5(a)(6).

Section ▇.▇.▇▇▇ Allocations.

(a)Except as otherwise provided by this Section E.7, each item of income, gain, loss, deduction and credit of the Company shall be allocated, for U.S. federal, state, and local income and franchise tax purposes, among the Members in accordance with the allocation of such items for Capital Account purposes under this Schedule E.

(b)Each Member’s distributive share of the income, gain, loss, deductions and credit with respect to any Asset which has a Book Value which differs from its adjusted tax basis shall be allocated among the Members in a manner which takes into account such difference in accordance with Section 704(c) of the Code, and the principles thereof, in a manner determined by the Manager.

(c)The tax allocations made pursuant to this Section E.7 are solely for tax purposes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items of income, gain, loss, or deduction, or distributions pursuant to any provision under this Agreement.

​

​

Schedule E - Page 7

​

Schedule F

INTENTIONALLY OMITTED

​

​

Schedule F - Page 1

​

Schedule G

INITIAL ANNUAL BUDGET AND BUSINESS PLAN

(attached)

​

​

Schedule G - Page 1

​

Schedule H-1

DESCRIPTION OF 77 GREENWICH PROPERTY

The Condominium Units (hereinafter referred to as the “Units”) in the building (hereinafter referred to as the “Building”) known as ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Condominium and by the Street Number ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ and State of New York, said Units being designated and described as (SEE SCHEDULE A-1) in a Declaration dated as of September 27, 2019 made by TPHGreenwich Owner LLC, pursuant to Article 9-B of the Real Property Law of the State of New York (hereinafter referred to as the “Condominium Act”) establishing a Plan for Condominium Ownership of the Building and the land (hereinafter referred to as the “Land”) upon which the building is situated (which land is more particularly described below), which Declaration was recorded in the City Register’s Office on March 19, 2020 as CRFN 2020000099654, as amended and restated pursuant to the terms of that certain Amended and Restated Declaration of Condominium dated June 9, 2021 and recorded September 20, 2021 as CRFN 2021000370641 (which Declaration and Amendments (if applicable) thereto are hereinafter collectively referred to as the “Declaration”). The Units are also designated as Tax Lots (SEE SCHEDULE A-1) in Block 19 of the County of New York on the Tax Map of the Real Property Assessment Department and on the Floor Plans of the Building, certified by FXCollaborative Architects LLC on August 16, 2021 and filed with the Real Property Assessment Department on August 26, 2021 as Condominium Plan No. 2989 and also filed in the City Register’s Office on March 19, 2020 as Map No. CRFN 2020000099655 as amended by Condominium Plan No. 2989-A and also filed in the City Register’s Office on September 20, 2021 as Map No. CRFN 2021000370642 and on December 3, 2021 as Map No. CRFN 2021000475662.

TOGETHER with an undivided (SEE SCHEDULE A-1) interest in the Common Elements (as such term is defined in the Declaration).

The land area on which the building containing the unit is erected is described as follows:

ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, County, City and State of New York, being bounded and described as follows:

BEGINNING at a point on the westerly side of Trinity Place, distant 111 feet 2-1/2 inches southerly from the corner formed by the intersection of the southerly side of ▇▇▇▇▇▇ Street with the westerly side of Trinity Place;

RUNNING THENCE southerly along the westerly side of Trinity Place, 173 feet, 1 inch to land now or late of ▇. ▇. ▇▇▇▇▇▇▇▇▇;

THENCE westerly along the same, 70 feet 6 inches to the easterly side of Greenwich Street;

THENCE northerly along the easterly side of Greenwich Street, 175 feet, 4-3/4 inches to a point;

THENCE easterly along a line which forms an exterior angle of 98 degrees 21 minutes 30 seconds with the easterly side of Greenwich Street, 97 feet 1-1/4 inches to the westerly side of Trinity Place the point or place of BEGINNING.

​

Schedule H-1 - Page 1

​

(SCHEDULE A-1)

​

​

​

Schedule H-1 - Page 2

​

​

​

​

​

Schedule H-1 - Page 3

​

SCHEDULE H-2

DESCRIPTION OF 237 11TH PROPERTY

ALL that certain plot, piece or parcel of land situate, lying and being in the Borough of Brooklyn, County of Kings, State of New York bounded and described as follows:

​

BEGINNING at the corner formed by the intersection of the northwesterly side of 4th Avenue and the southeasterly side of 11th Street;

​

RUNNING THENCE northwesterly along the southeasterly side of 11th Street, 105 feet 9 inches to a point;

​

THENCE TURNING and running easterly, on a line parallel with 4th Avenue, 120 feet 0 inches to a point;

​

THENCE TURNING and running southeasterly, on a line parallel with 10th Street, 105 feet 9 inches to the northwesterly side of 4th Avenue;

​

THENCE TURNING and running southwesterly along the northwesterly side of 4th Avenue, 120 feet 0 inches to the point and place of BEGINNING.

​

​

Schedule H-2 - Page 1

​

Schedule I

INTENTIONALLY OMITTED

​

​

Schedule I - Page 1

​

Schedule J

SUBSIDIARY PROPERTY OWNERS

​

​

​

​

Schedule J - Page 1

​

SCHEDULE 3.1

PRINCIPAL PLACE OF BUSINESS

c/o Davidson Kempner Capital Management LP

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇.

New York, New York 10022

​

​

​

Schedule 3.1 - Page 1

​

SCHEDULE 7.1

DISTRIBUTIONS OF AVAILABLE CASH

(i)first, one hundred percent (100%) to the Investor Member, until the Investor Member has received the Investor Member Initial Distribution Amount in full; and

(ii)second, (A) ninety-five percent (95%) to the TPH Member, and (B) five percent (5%) to the Investor Member (provided, however, that any Paramus Net Sale Proceeds shall be paid one hundred percent (100%) to Investor Member).

​

​

Schedule 7.1 - Page 1

​

SCHEDULE 11.1(d)

BOARD OF DIRECTORS

(i) ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Chairman), (ii)▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇, (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, and (v) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

SCHEDULE 11.1(f)

REQUIRED CONSENTS

1.Consent by MPF Greenwich Lender LLC, a Delaware limited liability company

2.Consent by TPHS Lender II LLC, a Delaware limited liability company

3.Consent by TPHS Lender LLC, a Delaware limited liability company

4.Consent by ▇▇▇▇▇▇▇, New York Branch

5.Consent by Lexington 11th Street, LLC, a Delaware limited liability company

​

​

Schedule 11.1(f) - Page 1

​

SCHEDULE 13.15

NOTICE ADDRESSES

To the Manager or Investor Member, at:

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇.

New York, New York 10022

Attention: ▇▇▇▇▇▇ ▇▇▇▇▇

Email: ▇▇▇▇▇▇@▇▇▇.▇▇▇

​

with copies at the same time to:

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇.

New York, New York 10022

Attention: ▇▇▇▇ ▇▇▇▇

Email:  ▇▇▇▇▇@▇▇▇.▇▇▇

and:

Dechert LLP

▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇

New York, New York 10036

Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.

Email: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

​

To the TPH Member:

Trinity Place Holdings Inc.

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

3rd Floor, Suite 3C

New York, New York 10173

Attention: Chief Financial Officer

Email: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇

​

with a copy at the same time to:

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP

▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇

New York, New York 10036

Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.

Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

​

​

Page 1

​

EXHIBIT A

TERMINATION AGREEMENT (ASSET MANAGEMENT AGREEMENT)

​

(See attached)

​

Page 2

​

EXHIBIT B

TRUST AGREEMENT

​

(See attached)

​

Page 3

​

EXHIBIT C

FORM OF TRUST CERTIFICATE

​

(See attached)

Page 4