Exhibit 10.1

February 4, 2022

New York City REIT, Inc.

650 Fifth Avenue, 30th Floor

New York, New York 10019

New York City Operating Partnership, L.P.

650 Fifth Avenue, 30th Floor

New York, New York 10019

Re:      Payment of Fees under Section 10(c) of the Second Amended and Restated Advisory Agreement, dated as of November 16, 2018 (as amended by the First Amendment thereto, dated as of August 18, 2020, the “Advisory Agreement”), by and among New York City REIT, Inc. (the “Company”), New York City Operating Partnership, L.P. (the “Operating Partnership”) and New York City Advisors, LLC (the “Advisor”)

Ladies and Gentlemen:

This Side Letters sets forth the agreement among the parties regarding the payment of fees under Section 10(c) of the Advisory Agreement. All capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Advisory Agreement.

The Advisor and Bellevue Capital Partners, LLC (“Bellevue”), an entity which controls the Advisor, have expressed to the Company’s board of directors an interest in potentially increasing their respective ownership of shares in the Company’s Class A Common Stock, par value $0.01 per share (“Shares”), through a combination of open-market purchases and the immediate investment by the Advisor of fees earned by the Advisor under the Advisory Agreement in Shares. The Company’s Articles of Amendment and Restatement dated July 17, 2018, as amended (the “Charter”), and its Amended and Restated Rights Agreement dated August 17, 2020, as amended by Amendment No. 1 dated August 12, 2021 (as may be amended further from time to time, the “Rights Plan”), impose limits on the number of Shares that a person, individual or group may own or acquire in the absence of a waiver from the Board.

As detailed in the Company’s public filing with the Securities and Exchange Commission on Form 10-Q for the quarter ended September 30, 2021, (i) the cash flow from certain of the Company’s properties are the subject of cash traps which limit the Company’s ability to access the cash flow until the relevant breaches are cured; and (ii) the Company is required to maintain a minimum of $10 million in liquidity to satisfy other loan obligations. The cash traps aggregate approximately $3.0 million as of the date of this Side Letter and the Company has approximately $11.0 million in liquidity as of the date hereof.

To enhance the Company’s cash resources, the Advisor has expressed a willingness to immediately invest, for a period of up to six months from the date of this Side Letter, any cash payments aggregating no more than $3.0 million that the Advisor is paid under Section 10(c) of the Advisory Agreement in Shares if the Company would provide: (i) a waiver (the “Charter Ownership Waiver”) from the limitations on the ownership of the shares of the Company’s stock contained in Section 5.7 of the Charter to permit Bellevue, the Advisor and certain other Persons to, in the aggregate, Beneficially Own or Constructively Own (each as defined in the Charter) Shares in an amount up to 20% of the outstanding Shares, to the extent and on the terms to be set forth in the applicable Charter Ownership Limit Waiver Agreement (as defined below); and (ii) a further waiver from the limitations contained in Section 1.1 of the Rights Plan (“Rights Plan Ownership Waiver, and collectively with the Charter Ownership Waiver, the “Ownership Waiver”) permitting the parties to the Charter Ownership Limit Waiver Agreements to Beneficially Own (as that term is defined in the Rights Plan) Shares to the extent allowed by the Charter Ownership Waiver without being deemed an “Acquiring Person” under Section 1.1 of the Rights Plan.

The Company has previously provided a waiver to Bellevue permitting Bellevue, together with its Affiliates and Associates, to Beneficially Own (as that term is defined in the Rights Plan) up to 9.8% of the Shares then outstanding. As of the date of this Side Letter, Bellevue and their respective Affiliates and Associates Beneficially Own (as that term is defined in the Rights Plan) less than 9.8% of the outstanding Shares.

Concurrently with the execution of this Side Letter, each of Bellevue, the Advisor and certain other Persons will enter into an ownership limit waiver agreement with the Company with respect to the Charter Ownership Waiver (collectively, the “Charter Ownership Limit Waiver Agreements”) and the Company, the Advisor and Bellevue will enter into a waiver agreement with respect to the Rights Plan Ownership Waiver (the “Rights Plan Waiver Agreement,” and collectively with the Charter Ownership Limit Waiver Agreements, the “Waiver Agreements”), each effective as of the date hereof and evidencing the Ownership Waiver and the applicable terms, conditions, restrictions and limitations on the Ownership Waiver.

In consideration of the Company’s grant of the Ownership Waiver, the Company, the Operating Partnership and the Advisor agree that from the date of this Side Letter until August 4, 2022, the Advisor shall immediately invest all fees received by the Advisor under Section 10(c)(i)-(ii) of the Advisory Agreement in Shares at a price determined at each issuance in accordance with Section 10(c)(iii) of the Advisory Agreement (the “Share Price”) until the Company has issued Shares having an aggregate value of THREE MILLION DOLLARS ($3,000,000); provided that, notwithstanding the above, the Share Price at any issuance may not be less than the “Minimum Price” as defined in Section 312.04(h) of the New York Stock Exchange Listed Company Manual (the “Listed Company Manual”); and provided further, that in no event shall the Company be required to issue any Shares under this Side Letter if doing so would otherwise require the Company to seek shareholder approval under Section 312 of the Listed Company Manual or any subsequent rules and regulations of the New York Stock Exchange. The issuance of Shares pursuant to this paragraph shall also be subject to the provisions of the Waiver Agreements.

Except as expressly modified hereby, the terms of the Advisory Agreement shall remain in full force and effect as written.

Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice, report or other communication is required by the Advisory Agreement, and shall be given by being delivered by hand, by courier or overnight carrier or by registered or certified mail to the addresses set forth below:

Any party may at any time give notice in writing to the other parties of a change in its address for the purposes of this Side Letter.

This Side Letter shall not be amended, supplemented, terminated, or discharged, in whole or in part, except by an instrument in writing signed by the parties hereto, or their respective successors or assignees. The provisions of this Side Letter shall be construed and interpreted in accordance with the laws of the State of New York as at the time in effect, without regard to the principles of conflicts of laws thereof.

The provisions of this Side Letter are independent of and severable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

Except for the Waiver Agreements, this Side Letter contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.

Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Side Letter shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

This Side Letter may be executed (including by facsimile transmission) with counterpart signature pages or in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.

If you are in agreement with the foregoing, please indicate the same by signing below.

Agreed and accepted as of the date first written above.

Exhibit 10.2 

OWNERSHIP LIMIT WAIVER AGREEMENT

THIS OWNERSHIP LIMIT WAIVER AGREEMENT (this “Agreement”), dated as of February 4, 2022, is between New York City REIT, Inc., a Maryland corporation (the “Company”), and Edward M. Weil, Jr.(“Mr. Weil”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Company’s charter, as amended and restated through the date hereof and as presently in effect (the “Charter”).

RECITALS

WHEREAS, as of the date hereof, 13,282,930 shares of the Company’s Class A common stock (the “Common Stock”) are issued and outstanding.

WHEREAS, Section 5.7 of the Charter contains a limitation on the ownership of Shares, which prohibits any Person from Beneficially Owning or Constructively Owning more than 9.8% in value of the aggregate of the outstanding Shares (the “Overall Limit”) and not more than 9.8% (in value or in number of shares, whichever is more restrictive) of any class or series of Shares (the “Series Limit,” and collectively with the Overall Limit, the “Aggregate Share Ownership Limit”), except as otherwise waived by the Company. These restrictions are designed to ensure the Company’s continued qualification as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the “Code”).

WHEREAS, concurrently with the execution of this Agreement the Company is filing a “Certificate of Notice” that will reduce each of the Overall Limit and the Series Limit to 7%.

WHEREAS, concurrently with the execution of this Agreement, Bellevue Capital Partners, LLC (“Bellevue”) has entered into an “Ownership Limit Waiver Agreement” as of the date hereof that provides Bellevue with an ownership limit waiver effective as of the Determination Date (as defined below), allowing Bellevue to be an Excepted Holder (the “Bellevue Waiver”).

WHEREAS, concurrently with the execution of this Agreement, New York City Advisors, LLC (the “Advisor”) has entered into an “Ownership Limit Waiver Agreement” as of the date hereof that provides Advisor with an ownership limit waiver effective as of the Determination Date (as defined below), allowing Advisor to be an Excepted Holder (the “Advisor Waiver” and together with the Bellevue Waiver, the “Bellevue and Advisor Waivers”).

WHEREAS, as of the Determination Date (as defined below), Mr. Weil will be treated as Beneficially Owning or Constructively Owning Shares held by each of Bellevue and the Advisor.

WHEREAS, as of the day immediately prior to the Determination Date (as defined below), Mr. Weil actually owns 12,210 shares of the Common Stock;

WHEREAS, Mr. Weil has requested a waiver of the Aggregate Share Ownership Limit with respect to the Bellevue and Advisor Waivers;

WHEREAS, this Ownership Limit Waiver (as defined below) shall be effective as of the date of this Agreement (the “Determination Date”).

WHEREAS, pursuant to Section 5.7(ii)(g)(I) of the Charter, the Company has adopted resolutions approving Mr. Weil’s exemption from the Aggregate Share Ownership Limit on the terms and conditions hereinafter set forth.

NOW, THEREFORE, the parties, intending to be legally bound, in reliance on the representations set forth in the Certificate (as defined below), hereby agree as follow:

AGREEMENT

1. WAIVER OF OWNERSHIP LIMIT

1.1      The Company hereby waives the application of the Aggregate Share Ownership Limit contained in Section 5.7(ii)(a)(I)(A)(1) of the Charter to permit Mr. Weil to Beneficially Own or Constructively Own shares of Common Stock (collectively, the “Exempt Stock”), subject to an increased Series Limit for the Common Stock of 20% and an increased Overall Limit of 20% (the “Excepted Holder Limit”) from and after the Determination Date (collectively the “Ownership Limit Waiver”), solely as a result of the Bellevue and Advisor Waivers.

1.2      The Ownership Limit Waiver and Excepted Holder Limit granted by this Section 1 is granted solely to Mr. Weil. Any Transfer of the Exempt Stock held by Mr. Weil shall cause any such shares to no longer be subject to this Ownership Limit Waiver and any such Shares shall be subject to the Aggregate Share Ownership Limit as of the date of such Transfer.

1.3       The Ownership Limit Waiver and Excepted Holder Limit granted by this Section 1 only grant Mr. Weil the right to Beneficially Own or Constructively Own Shares up to the Excepted Holder Limit. As of the day immediately prior to Determination Date, Mr. Weil actually owns 12,210 shares of Common Stock, and shall not, so long as this Agreement remains in place, acquire, directly or indirectly, any additional Shares, or Beneficially Own or Constructively Own Shares, other than by reason of the actual ownership of Shares by Bellevue or the Advisor and the actual ownership of 12,210 shares of Common Stock by Mr. Weil as of the day immediately prior to the Determination Date.

1.4       Except as specifically provided in Section 1.1, this Agreement does not waive any restrictions or limitations set forth in Section 5.7 of the Charter as they apply to Mr. Weil or other Shares Beneficially Owned or Constructively Owned by any person, other than Mr. Weil. For the avoidance of doubt, this Agreement also does not modify Section 5.7(ii)(a)(I)(B) and (II) of the Charter in any respect.

2. LIMITATIONS AND OTHER MATTERS

2.1       In no event shall the Ownership Limit Waiver permit any Individual’s Beneficial Ownership or Constructive Ownership of Shares to exceed, at any time, the Aggregate Share Ownership Limit of Section 5.7(i) of the Charter as determined without regard to any provisions of this Agreement, unless and to the extent such Individual is an Excepted Holder. For the purpose of this Agreement, “Individual” has the meaning provided in Section 542(a)(2) of the Code, as modified by Section 856(h)(3) of the Code.

2.2        For the Ownership Limit Waiver to be effective, Mr. Weil must execute a counterpart signature page to this Agreement and complete and make the representations and covenants set forth in the Certificate of Representations and Covenants, the form of which is attached hereto as Exhibit A (the “Certificate”), and must deliver such Certificate to the Company. Except as otherwise determined by the Company, the Ownership Limit Waiver shall cease to be effective upon any breach of the representations or covenants set forth herein or in the Certificate. In addition, if the Ownership Limit Waiver ceases to be effective as a result of the operation of the preceding sentence, the Shares of the Company that would otherwise be in excess of the Aggregate Share Ownership Limit shall be deemed to have been transferred to a Trust in accordance with 5.7(ii)(a)(II) of the Charter.

2.3       Mr. Weil shall deliver to the Company, at such times as may reasonably be requested by the Company (it being acknowledged that the Company may reasonably make such request on at least a calendar quarterly basis), a certificate signed by Mr. Weil to the effect that Mr. Weil has complied and expects to continue to comply with its representations and covenants set forth in this Agreement and the Certificate. If so requested by the Company, Mr. Weil will reasonably cooperate with the Company in investigating any direct or indirect relationship that Mr. Weil may have with the Company’s tenants or “independent contractors” (within the meaning of Section 856(d)(3) of the Code).

2.4       This Ownership Limit Waiver shall automatically be deemed to have been revoked (prospectively or, as necessary in order to protect the Company’s qualification as a real estate investment trust under the Code, retroactively) without any further action if the Company determines, in its sole discretion, that the Company’s ability to qualify and maintain its qualification as a real estate investment trust pursuant to Section 856 et seq. of the Code is reasonably likely to be jeopardized by the Ownership Limit Waiver, or in fact the Ownership Limit Waiver would jeopardize such qualification. The Company shall promptly notify Mr. Weil in the event that it has been determined that the Ownership Limit Waiver has been revoked pursuant to this Section 2.4.

3. TERM

3.1       The term of this Agreement shall commence as of the Determination Date, and shall terminate on the earliest of (i) the earliest date on which Mr. Weil neither Beneficially Owns nor Constructively Owns Shares in excess of the Aggregate Share Ownership Limit; (ii) the earliest date on which any of the conditions set forth in Sections 1 or 2 of this Agreement are no longer true or accurate, or otherwise have been violated; (iii) the earliest date on which any of the representations, warranties, agreements, or undertakings made by Mr. Weil in the Certificate (without giving effect to any qualifications as to knowledge) are no longer true, as of such date; (iv) the earliest date on which the Company makes the determination set forth in Section 2.4 of this Agreement; (v) the earliest date on which Mr. Weil acquires actual ownership of any additional Shares in excess of the number of Shares that Mr. Weil actually owns as of the day immediately prior to the Determination Date; or (vi) the earliest date on which either of the Bellevue Waiver or Advisor Waiver has been terminated.

4. MISCELLANEOUS

4.1       All questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Maryland, without giving effect to any choice of law or conflict of law provision (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Maryland.

4.2       This Agreement may be signed by the parties in separate counterparts, each of which when so signed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

4.3       All references to any Code provision shall be deemed to include any successor provisions of the Code and any regulatory, judicial or administrative amendment or interpretation of such statutory provisions.

4.4       The Recitals to this Agreement are incorporated into and are deemed a part of this Agreement.

[Signature Page Follows]

Each of the parties has, to the extent it is an entity, caused this Agreement to be signed by its duly authorized officers as of the date set forth in the introductory paragraph hereof.

[Signature Page to Ownership Limit Waiver Agreement]

Exhibit 10.3
 

OWNERSHIP LIMIT WAIVER AGREEMENT

THIS OWNERSHIP LIMIT WAIVER AGREEMENT (this “Agreement”), dated as of February 4, 2022, is between New York City REIT, Inc., a Maryland corporation (the “Company”), and New York City Advisors, LLC (the “Advisor”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Company’s charter, as amended and restated through the date hereof and as presently in effect (the “Charter”).

RECITALS

WHEREAS, as of the date hereof, 13,282,930 shares of the Company’s Class A common stock (the “Common Stock”) are issued and outstanding.

WHEREAS, Section 5.7 of the Charter contains a limitation on the ownership of Shares, which prohibits any Person from Beneficially Owning or Constructively Owning more than 9.8% in value of the aggregate of the outstanding Shares (the “Overall Limit”) and not more than 9.8% (in value or in number of shares, whichever is more restrictive) of any class or series of Shares (the “Series Limit,” and collectively with the Overall Limit, the “Aggregate Share Ownership Limit”), except as otherwise waived by the Company. These restrictions are designed to ensure the Company’s continued qualification as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the “Code”).

WHEREAS, concurrently with the execution of this Agreement the Company is filing a “Certificate of Notice” that will reduce each of the Overall Limit and the Series Limit to 7%.

WHEREAS, the Advisor has requested a waiver of the Aggregate Share Ownership Limit.

WHEREAS, this Ownership Limit Waiver (as defined below) shall be effective as of the date of this Agreement (the “Determination Date”).

WHEREAS, pursuant to Section 5.7(ii)(g)(I) of the Charter, the Company has adopted resolutions approving the Advisor’s exemption from the Aggregate Share Ownership Limit on the terms and conditions hereinafter set forth.

NOW, THEREFORE, the parties, intending to be legally bound, in reliance on the representations set forth in the Certificate (as defined below), hereby agree as follow: 

AGREEMENT

1. WAIVER OF OWNERSHIP LIMIT

1.1       The Company hereby waives the application of the Aggregate Share Ownership Limit contained in Section 5.7(ii)(a)(I)(A)(1) of the Charter to permit the Advisor to Beneficially Own or Constructively Own shares of Common Stock (collectively, the “Exempt Stock”), subject to an increased Series Limit for the Common Stock of 20% and an increased Overall Limit of 20% (the “Excepted Holder Limit”) from and after the Determination Date, and provided that the Advisor may only itself purchase and itself actually own up to 2.5% of Common Stock (the “Advisor Actual Ownership Limit”) (collectively the “Ownership Limit Waiver”).

1.2        The Ownership Limit Waiver and Excepted Holder Limit granted by this Section 1 is granted solely to the Advisor. Any Transfer of the Exempt Stock held by the Advisor shall cause any such shares to no longer be subject to this Ownership Limit Waiver and any such Shares shall be subject to the Aggregate Share Ownership Limit as of the date of such Transfer.

1.3       The Ownership Limit Waiver and Excepted Holder Limit granted by this Section 1 only grant the Advisor the right to Beneficially Own or Constructively Own Shares up to the Excepted Holder Limit. The Advisor shall not directly or indirectly acquire Shares in excess of the Excepted Holder Limit.

1.4       Except as specifically provided in Section 1.1, this Agreement does not waive any restrictions or limitations set forth in Section 5.7 of the Charter as they apply to the Advisor or other Shares Beneficially Owned or Constructively Owned by any person, other than the Advisor. For the avoidance of doubt, this Agreement also does not modify Section 5.7(ii)(a)(I)(B) and (II) of the Charter in any respect.

2. LIMITATIONS AND OTHER MATTERS

2.1       In no event shall the Ownership Limit Waiver permit any Individual’s Beneficial Ownership or Constructive Ownership of Shares to exceed, at any time, the Aggregate Share Ownership Limit of Section 5.7(i) of the Charter as determined without regard to any provisions of this Agreement, unless and to the extent such Individual is an Excepted Holder. For the purpose of this Agreement, “Individual” has the meaning provided in Section 542(a)(2) of the Code, as modified by Section 856(h)(3) of the Code.

2.2        For the Ownership Limit Waiver to be effective, the Advisor must execute a counterpart signature page to this Agreement and complete and make the representations and covenants set forth in the Certificate of Representations and Covenants, the form of which is attached hereto as Exhibit A (the “Certificate”), and must deliver such Certificate to the Company. Except as otherwise determined by the Company, the Ownership Limit Waiver shall cease to be effective upon any breach of the representations or covenants set forth herein or in the Certificate. In addition, if the Ownership Limit Waiver ceases to be effective as a result of the operation of the preceding sentence, the Shares of the Company that would otherwise be in excess of the Aggregate Share Ownership Limit shall be deemed to have been transferred to a Trust in accordance with 5.7(ii)(a)(II) of the Charter.

2.3       The Advisor shall deliver to the Company, at such times as may reasonably be requested by the Company (it being acknowledged that the Company may reasonably make such request on at least a calendar quarterly basis), a certificate signed by an authorized officer of the Advisor to the effect that the Advisor has complied and expects to continue to comply with its representations and covenants set forth in this Agreement and the Certificate. If so requested by the Company, the Advisor will reasonably cooperate with the Company in investigating any direct or indirect relationship that the Advisor may have with the Company’s tenants or “independent contractors” (within the meaning of Section 856(d)(3) of the Code).

2.4       This Ownership Limit Waiver shall automatically be deemed to have been revoked (prospectively or, as necessary in order to protect the Company’s qualification as a real estate investment trust under the Code, retroactively) without any further action if the Company determines, in its sole discretion, that the Company’s ability to qualify and maintain its qualification as a real estate investment trust pursuant to Section 856 et seq. of the Code is reasonably likely to be jeopardized by the Ownership Limit Waiver, or in fact the Ownership Limit Waiver would jeopardize such qualification. The Company shall promptly notify the Advisor in the event that it has been determined that the Ownership Limit Waiver has been revoked pursuant to this Section 2.4.

2.5       In no event shall the Advisor actually purchase or own Shares in excess of the Advisor Actual Ownership Limit.

3. TERM

3.1       The term of this Agreement shall commence as of the Determination Date, and shall terminate on the earliest of (i) the earliest date on which the Advisor neither Beneficially Owns nor Constructively Owns Shares in excess of the Aggregate Share Ownership Limit due to the Advisor’s sale or other disposition of Exempt Stock; (ii) the earliest date on which any of the conditions set forth in Sections 1 or 2 of this Agreement are no longer true or accurate, or otherwise have been violated; (iii) the earliest date on which any of the representations, warranties, agreements, or undertakings made by the Advisor in the Certificate (without giving effect to any qualifications as to knowledge) are no longer true, as of such date; (iv) the earliest date on which the Company makes the determination set forth in Section 2.4 of this Agreement; or (v) Bellevue Capital Partners, LLC is no longer the beneficial owner of 100% of the outstanding interests of the Advisor.

4. MISCELLANEOUS

4.1       All questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Maryland, without giving effect to any choice of law or conflict of law provision (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Maryland.

4.2       This Agreement may be signed by the parties in separate counterparts, each of which when so signed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

4.3       All references to any Code provision shall be deemed to include any successor provisions of the Code and any regulatory, judicial or administrative amendment or interpretation of such statutory provisions.

4.4       The Recitals to this Agreement are incorporated into and are deemed a part of this Agreement.

[Signature Page Follows]

Each of the parties has caused this Agreement to be signed by its duly authorized officers as of the date set forth in the introductory paragraph hereof.

THE COMPANY

New York City REIT, Inc.

Name: Christopher J. Masterson

Title: Chief Financial Officer and Treasurer

THE ADVISOR

New York City Advisors, LLC

Name: Michael Anderson

Title: Authorized Signatory

Signature Page to Ownership Limit Waiver Agreement]

Exhibit 10.4

WAIVER AGREEMENT

THIS WAIVER AGREEMENT (this “Agreement”), dated as of February 4, 2022, is among New York City REIT, Inc., a Maryland corporation (the “Company”), Bellevue Capital Partners, LLC (“Bellevue”) and New York City Advisors, LLC (the “Advisor”), the Company’s advisor and an entity controlled by Bellevue. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Rights Agreement (as defined below).

RECITALS

WHEREAS, the Company is a party to an Amended and Restated Rights Agreement, dated as of August 17, 2020, as amended by Amendment No. 1, dated as of August 12, 2021 (as amended, the “Rights Agreement”).

WHEREAS, under Section 1.1 of the Rights Agreement, a Person is deemed to be an “Acquiring Person” if and when a Person who or which, together with all Affiliates and Associates of the Person, is or becomes on or after the Close of Business on August 17, 2020 the Beneficial Owner of 4.9% or more of the shares of Common Stock then outstanding (the “Ownership Threshold”), subject to certain exceptions.

WHEREAS, the Rights Agreement grants the Board of Directors or a committee thereof, the authority to permit a Person to exceed the Ownership Threshold without being deemed an Acquiring Person by means of a written waiver or agreement, provided that (x) the Person does not, prior to the waiver or agreement, exceed the Ownership Threshold and complies in all material respects with the terms and the conditions of the waiver or agreement and (y) the waiver or agreement remains in full force and effect.

WHEREAS, the Company previously granted Bellevue a waiver from the Rights Agreement permitting Bellevue to Beneficially Own, together with all of its Affiliates and Associates, up to 9.8% of the shares of Common Stock then outstanding.

WHEREAS, as of the date hereof, Bellevue, together with all of its Affiliates and Associates, including the Advisor, Beneficially Owns less than 9.8% of the outstanding shares of Common Stock.

WHEREAS, Section 5.7 of the Charter contains limitations on the ownership of shares of the Company’s stock, which prohibit any Person from Beneficially Owning or Constructively Owning (each as defined in the Charter) more than 9.8% in value of the aggregate of the outstanding shares of the Company’s stock (the “Overall Limit”) or more than 9.8% (in value or in number of shares, whichever is more restrictive) of any class or series of shares of the Company’s stock (the “Series Limit,” and collectively with the Overall Limit, the “Aggregate Share Ownership Limit”), except as otherwise waived by the Company.

WHEREAS, Bellevue and the Advisor have expressed to the Board of Directors an interest in potentially increasing their respective ownership of shares of Common Stock through a combination of open-market purchases and the investment in shares of Common Stock by the Advisor of fees earned by the Advisor under the Second Amended and Restated Advisory Agreement, dated as of November 16, 2018 (as amended by the First Amendment thereto, dated as of August 18, 2020, the “Advisory Agreement”), by and among the Company, the Operating Partnership and the Advisor.

WHEREAS, to enhance the Company’s cash resources, the Advisor has expressed a willingness to, by entering into a side letter (the “Side Letter”) with the Company and the Operating Partnership, invest, for a period of up to six months, any cash payments aggregating no more than $3.0 million that the Advisor is paid under Section 10(c) of the Advisory Agreement in shares of Common Stock if the Company would provide: (i) a waiver (the “Charter Ownership Waiver”) from the Aggregate Share Ownership Limit contained in Section 5.7 of the Charter to permit Bellevue, the Advisor and certain other Persons to, Beneficially Own or Constructively Own (each as defined in the Charter) shares of Common Stock in an amount up to 20% of the outstanding shares of Common Stock (subject to certain constraints for each such Person on the total actual ownership of shares of Common Stock by such Persons that equals 20% of the outstanding shares of Common Stock in the aggregate), to the extent and on the terms to be set forth in the applicable Charter Ownership Limit Waiver Agreement (as defined below); and (ii) a further waiver from the limitations contained in Section 1.1 of the Rights Agreement (“Rights Plan Ownership Waiver,” and collectively with the Charter Ownership Waiver, the “Ownership Waiver”) permitting the parties to the Charter Ownership Limit Waiver Agreements to Beneficially Own shares of Common Stock to the extent allowed by the Charter Ownership Waiver without being deemed an “Acquiring Person” under Section 1.1 of the Rights Agreement.

WHEREAS, the Board of Directors has adopted resolutions approving, among other things, a change in the Ownership Threshold consistent with Bellevue and the Advisor’s request on the terms and conditions hereinafter set forth and has determined that doing so is in the best interest of the Company.

WHEREAS, concurrent with the execution of this Agreement, the Company and the Operating Partnership will enter into the Side Letter with the Advisor.

WHEREAS, concurrent with the execution of this Agreement, the Company will enter into separate ownership limit waiver agreements (collectively, the “Charter Ownership Limit Waiver Agreements”) with each Person set forth in Annex A (each, an “Excluded Person”) with respect to the Charter Ownership Waiver.

WHEREAS, this waiver shall become effective as of the date of this Agreement (the “Determination Date”).

NOW, THEREFORE, the parties, for good and other valuable consideration, hereby agree as follow:

AGREEMENT

1. WAIVER OF EXISTING OWNERSHIP THRESHOLD AND REVISED THRESHOLD

1.1        

The Company hereby waives the application against each Excluded Person of the existing Ownership Threshold (the “Ownership Threshold Waiver”) contained in Section 1.1 of the Rights Agreement and each Excluded Person shall be permitted, at its discretion, to Beneficially Own shares of the Common Stock in excess of the Ownership Threshold to the maximum extent allowed by the applicable Charter Ownership Limit Waiver Agreement (the “Revised Threshold”).

1.2        The Ownership Threshold Waiver and Revised Threshold granted by this Section 1 are granted solely for the benefit of the Excluded Persons and may not be assigned or transferred, including by operation of law or in connection with a merger, consolidation, transfer of equity interests, by any Excluded Person without prior written consent of the Company.

1.3       In the event an Excluded Person Beneficially Owns, together with all of its Affiliates and Associates, more than the Ownership Threshold but not exceeding the Revised Threshold, as of the date on which the Charter Ownership Limit Waiver Agreement is terminated (the “Termination Date”), the Excluded Person shall be deemed to be a “Grandfathered Stockholder” as defined in Section 1.1 of the Rights Agreement with respect to shares of Common Stock Beneficially Owned as of the Close of Business on the Termination Date (the “Termination Date Percentage”); provided, however, that if the Excluded Person becomes, after the Close of Business on the Termination Date, the Beneficial Owner of any additional shares of Common Stock (other than shares of Common Stock acquired solely as a result of corporate action of the Company not caused, directly or indirectly, by the Excluded Person) at any time such that the Excluded Person’s Beneficial Ownership, together with its Affiliates and Associates, thereby exceeds the Termination Date Percentage based on the shares of Common Stock then outstanding, then the Grandfathered Stockholder shall be deemed an Acquiring Person, unless any further waiver is granted by the Board of Directors to the Excluded Person; provided, further, that upon the first decrease of the Excluded Person’s Beneficial Ownership below the Termination Date Percentage, the Excluded Person shall no longer be considered a Grandfathered Stockholder and clause (vi) of Section 1.1 of the Rights Agreement shall have no further force or effect with respect to the Excluded Person.

1.4       Except as specifically provided in this Section 1, all of the terms and provisions of the Rights Agreement shall remain in full force and effect.

2. REPRESENTATIONS OF THE EXCLUDED PERSONS

2.1       As of the Determination Date, Bellevue, together with all of its Affiliates and Associates, Beneficially Owns less than 9.8% of the outstanding shares of Common Stock.

2.2        Each Excluded Person understands that the Common Stock remains subject to the restrictions and limitations set forth in the Charter Ownership Limit Waiver Agreements.

3. TERM

3.1       The term of this Agreement shall commence as of the Determination Date and shall be conterminous with the Charter Ownership Limit Waiver Agreement.

4. MISCELLANEOUS

4.1       All questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Maryland, without giving effect to any choice of law or conflict of law provision (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Maryland.

4.2        All notices or other communications given pursuant this Agreement shall be in writing, including by email or by verifiable facsimile transmission, and if sent to Bellevue, shall be delivered to:

Bellevue Capital Partners, LLC

222 Bellevue Avenue
Newport, Rhode Island 02840

Attention: Michael Anderson
Email: manderson@ar-global.com

if to the Company, shall be delivered to:

New York City REIT, Inc.

650 Fifth Avenue, 30^th Floor

New York, New York 10019

Attention: Legal Department

Fax No. (646) 861-7743

if to the Advisor, shall be delivered to:

New York City Advisors, LLC

650 Fifth Avenue, 30^th Floor

New York, New York 10019

Attention: Legal Department

Fax No. (646) 861-7743

4.3       This Agreement may be signed by the parties in separate counterparts, each of which when so signed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

4.4       The Recitals to this Agreement are incorporated into and are deemed a part of this Agreement.

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Each of the parties has caused this Agreement to be signed by its duly authorized officers as of the date set forth in the introductory paragraph hereof.