CONTRIBUTION AND EXCHANGE AGREEMENT


 


This CONTRIBUTION AND
EXCHANGE AGREEMENT (this “Agreement”), is made and entered into as of April 15, 2014, by and between New York
Recovery Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), and New
York Recovery Advisors, LLC, a Delaware limited liability company (the “Advisor”).


 


WHEREAS, the Operating
Partnership is the operating subsidiary of New York REIT, Inc., a Maryland corporation (the “REIT”), and the
REIT is the sole general partner thereof.


 


WHEREAS, on the date
of this Agreement, the REIT is listing its shares of common stock, $0.01 par value per share, on a national securities exchange
(the “Listing”).


 


WHEREAS, in connection
with a Listing, the Advisor, as the holder of Class B Units in the Operating Partnership has the right, pursuant to Section 16.04(b)
of the Third Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated as of November 12, 2012,
and as amended up to but not including the date hereof (the “Partnership Agreement”), to make capital contributions
to the Operating Partnership in exchange for a number of OP Units in the Operating Partnership (“OP Units”).


 


WHEREAS, the Advisor
has chosen to make a capital contribution to the Operating Partnership in an amount, and for a number of OP Units, to be agreed
to in good faith by the Operating Partnership and the Advisor.


 


WHEREAS, the parties
hereto desire to consummate the contribution and exchange in accordance with the terms set forth below.


 


NOW, THEREFORE, in
consideration of the foregoing and the representations, warranties, covenants and other terms contained in this Agreement, the
parties hereto, intending to be legally bound hereby, agree as follows:


 


ARTICLE
I.

CONTRIBUTION AND EXCHANGE


 


Section 1.1.  CONTRIBUTION
TRANSACTIONS.  The Advisor hereby agrees to contribute $750,000.00 in cash (the “Cash Consideration”)
to the Operating Partnership in exchange for the consideration set forth in Section 1.2 with such contribution effective on the
date of this Agreement immediately prior to the amendment and restatement of the Partnership Agreement on the date hereof (the
“Amended Partnership Agreement”).


 


Section 1.2.  CONSIDERATION.  The
Advisor hereby irrevocably agrees to accept, in exchange for the Cash Consideration, a number of OP Units equal to 83,333, with
an aggregate value equivalent to the Cash Consideration.


 


Section 1.3.  ISSUANCE
OF OP UNITS.  The Operating Partnership shall, in exchange for the Cash Consideration contributed by the Advisor,
issue to the Advisor a number of OP Units equal to 83,333, with an aggregate value equivalent to the Cash Consideration.  No
fractional OP Units shall be issued pursuant to this Agreement.  The ownership of such OP Units by the Advisor shall
be reflected in the Amended Partnership Agreement.


 




    	 



    	 



    

 


Section 1.4.  TAX
TREATMENT OF THE EXCHANGE.  The parties hereto intend and agree to treat, for U.S. federal income tax purposes, the
contribution of the Cash Consideration in exchange for OP Units effectuated pursuant to this Agreement as contributions to a partnership
pursuant to Section 721 of the Internal Revenue Code of 1986, as amended, and no party shall maintain any position to the contrary
on any tax return or otherwise.  Furthermore, the parties hereto intend and agree that, consistent with the definition
of “Gross Asset Value” contained in the Partnership Agreement, the contribution by the Advisor of the Cash Consideration
in exchange for OP Units pursuant to the terms of this Agreement is a “book-up” event pursuant to which the Gross Asset
Value of the Operating Partnership’s assets should be adjusted to reflect the relative economic interests of the Partners,
and that such adjustment in Gross Asset Value of the Operating Partnership’s assets shall result in a corresponding adjustment,
if any, to the Capital Accounts of the Partners including, for the avoidance of doubt, the Capital Account of the Advisor.


 


ARTICLE
II.

REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP


 


The Operating Partnership
hereby represents, warrants and agrees with the Advisor that:


 


Section 2.1.  ORGANIZATION;
AUTHORITY.  The Operating Partnership is a limited partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware.  The Operating Partnership has all requisite power and authority to enter this
Agreement and to carry out the transactions contemplated hereby, and to own, lease or operate its property and to carry on its
business as presently conducted and, to the extent required under applicable law, is qualified to do business and is in good standing
in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, other
than in such jurisdictions where the failure to be so qualified would not have a material adverse effect on the financial condition
or results of operations of the Operating Partnership.


 


Section 2.2.  DUE
AUTHORIZATION.  The execution, delivery and performance of this Agreement by the Operating Partnership have been
duly and validly authorized by all necessary action of the Operating Partnership.  This Agreement and each agreement,
document and instrument executed and delivered by or on behalf of the Operating Partnership pursuant to this Agreement constitute,
or when executed and delivered will constitute, the legal, valid and binding obligation of the Operating Partnership, each enforceable
against the Operating Partnership in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws relating to creditors’ rights and general principles of equity.


 


Section 2.3.  CONSENTS
AND APPROVALS.  No consent, waiver, approval or authorization of, or filing with, any Person or governmental authority
or under any applicable laws is required to be obtained by the Operating Partnership in connection with the execution, delivery
and performance of this Agreement and the transactions contemplated hereby.


 




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Section 2.4.  NO
VIOLATION.  None of the execution, delivery or performance of this Agreement, any agreement contemplated hereby between
the parties to this Agreement and the transactions contemplated hereby between the parties to this Agreement does or will, with
or without the giving of notice, lapse of time, or both, violate, conflict with, result in a breach of, or constitute a default
under (a) the organizational documents of the Operating Partnership, (b) any term or provision of any judgment, order, writ, injunction,
or decree binding on the Operating Partnership, or (c) any other material agreement to which the Operating Partnership is a party.


 


Section 2.5.  VALIDITY
OF OP UNITS.  The issuance of the OP Units to the Advisor pursuant to this Agreement will have been duly authorized
by the Operating Partnership and, when issued against the consideration therefor, will be validly issued by the Operating Partnership,
free and clear of all Liens (other than Liens created by the Partnership Agreement).


 


ARTICLE
III.

REPRESENTATIONS AND WARRANTIES OF THE ADVISOR


 


The Advisor hereby
represents, warrants and agrees with the Operating Partnership that:


 


Section 3.1.  ORGANIZATION;
AUTHORITY.  The Advisor is a limited liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware.  The Advisor has all requisite power and authority to enter this Agreement and to
carry out the transactions contemplated hereby, and to own, lease or operate its property and to carry on its business as presently
conducted and, to the extent required under applicable law, is qualified to do business and is in good standing in each jurisdiction
in which the nature of its business or the character of its property make such qualification necessary, other than in such jurisdictions
where the failure to be so qualified would not have a material adverse effect on the financial condition or results of operations
of the Advisor.


 


Section 3.2.  DUE
AUTHORIZATION.  The execution, delivery and performance of this Agreement by the Advisor have been duly and validly
authorized by all necessary action of the Advisor.  This Agreement and each agreement, document and instrument executed
and delivered by or on behalf of the Advisor pursuant to this Agreement constitute, or when executed and delivered will constitute,
the legal, valid and binding obligation of the Advisor, each enforceable against the Advisor in accordance with its terms, subject
to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights and general principles
of equity.


 


Section 3.3.  CONSENTS
AND APPROVALS.  No consent, waiver, approval or authorization of, or filing with, any Person or governmental authority
or under any applicable laws is required to be obtained by the Advisor in connection with the execution, delivery and performance
of this Agreement and the transactions contemplated hereby.


 


Section 3.4.  NO
VIOLATION.  None of the execution, delivery or performance of this Agreement, any agreement contemplated hereby between
the parties to this Agreement and the transactions contemplated hereby between the parties to this Agreement does or will, with
or without the giving of notice, lapse of time, or both, violate, conflict with, result in a breach of, or constitute a default
under (a) the organizational documents of the Advisor, (b) any term or provision of any judgment, order, writ, injunction, or decree
binding on the Advisor, or (c) any other material agreement to which the Advisor is a party.


 




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ARTICLE
IV.

GENERAL PROVISIONS


 


Section 4.1.  DEFINITIONS.  Capitalized
terms used herein that are not otherwise defined herein shall have the meaning ascribed to them in the Partnership Agreement.


 


Section 4.2.  COUNTERPARTS.  This
Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each party and delivered to each other party.


 


Section 4.3.  ENTIRE
AGREEMENT; THIRD-PARTY BENEFICIARIES.  This Agreement, including, without limitation, the exhibits and schedules
hereto, constitute the entire agreement and supersede each prior agreement and understanding, whether written or oral, among the
parties regarding the subject matter of this Agreement.  This Agreement is not intended to confer any rights or remedies
on any Person other than the parties hereto.


 


Section 4.4.  GOVERNING
LAW.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, regardless
of any Laws that might otherwise govern under applicable principles of conflicts of laws thereof.


 


Section 4.5.  ASSIGNMENT.  This
Agreement shall be binding upon, and shall be enforceable by and inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and assigns; provided, however, that this Agreement may not be assigned (including by
operation of law) by either party without the prior written consent of the other party and any attempted assignment without such
consent shall be null and void and of no force and effect.


 


Section 4.6.  JURISDICTION.  The
parties hereto hereby (a) submit to the exclusive jurisdiction of any state or federal court sitting in Borough of Manhattan, City
of New York, State of New York, with respect to any dispute arising out of this Agreement or any transaction contemplated hereby
to the extent such courts would have subject matter jurisdiction with respect to such dispute, and (b) irrevocably waive, and agree
not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment or execution, that the action is brought in an
inconvenient forum, or that the venue of the action is improper.


 


Section 4.7.  SEVERABILITY.  Each
provision of this Agreement will be interpreted so as to be effective and valid under applicable law, but if any provision is held
invalid, illegal or unenforceable under applicable law in any jurisdiction, then such invalidity, illegality or unenforceability
will not affect any other provision, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been included herein.


 




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Section 4.8.  DESCRIPTIVE
HEADINGS.  The descriptive headings herein are inserted for convenience only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.


 


Section 4.9.  NO
PERSONAL LIABILITY CONFERRED.  This Agreement shall not create or permit any personal liability or obligation on
the part of any officer, director, partner, member, employee or shareholder of the parties hereto.


 


Section 4.10.  FURTHER
ASSURANCES.  Each of the parties shall, without further consideration, take such action and execute and deliver such
documents as may be necessary to carry out this Agreement.


 


Section 4.11.  AMENDMENTS.  This
Agreement may be amended, supplemented or otherwise modified only by written instrument signed by all the parties hereto.


 


[SIGNATURE PAGE FOLLOWS]


 




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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be signed by their respective duly authorized officers or representatives as of
the date first written above.


 


	 	NEW YORK RECOVERY OPERATING PARTNERSHIP, L.P.
	 	 	 
	 	By:	NEW YORK REIT, INC., Its general partner
	 	 	 
	 	By:	/s/ Nicholas S. Schorsch	 
	 	 	Name: Nicholas S. Schorsch
	 	 	Title: Chief Executive Officer and
	 	 	Chairman of the Board of Directors
	 	 	 
	 	NEW YORK RECOVERY ADVISORS, LLC
	 	 	 
	 	By:	New York Recovery Special Limited Partnership, LLC its
	 	Member
	 	 	 
	 	By:	American Realty Capital III, LLC
	 	its Managing Member
	 	 	 
	 	By:	/s/ William M. Kahane	 
	 	Name:	William M. Kahane
	 	Title:	Authorized Signatory




 



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