As filed with the Securities and Exchange Commission on May 5, 2014

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



 

AMENDMENT NO. 1
TO SCHEDULE TO



 

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934



 

NEW YORK REIT, INC.

(Name of Subject Company (Issuer) and Filing Person (Issuer))



 

COMMON STOCK, PAR VALUE $0.01 PER SHARE

(Title of Class of Securities)

64976L109

(CUSIP Number of Class of Securities)

Nicholas S. Schorsch
Chief Executive Officer and Chairman of the Board of Directors
405 Park Avenue
New York, New York
(212) 415-6500

(Name, address, and telephone number of person authorized to
receive notices and communications on behalf of filing persons)



 

With copies to:

 
Peter M. Fass, Esq.
Proskauer Rose LLP
Eleven Times Square
New York, New York 10036-8299
Tel: (212) 969-3000
Fax: (212) 969-2900 		  Michael J. Choate, Esq.
Proskauer Rose LLP
Three First National Plaza
70 West Madison, Suite 3800
Chicago, Illinois 60602-4242
Tel: (312) 962-3567
Fax: (312) 962-3551


 

CALCULATION OF FILING FEE

 
Transaction Valuation (a)   Amount of Filing Fee (b)
$250,000,000   $32,200

(a) The transaction valuation is estimated solely for purposes of calculating the filing fee. This amount is based upon the offer to purchase up to 23,255,814 shares of common stock of New York REIT, Inc. at a price of $10.75 per share.
(b) The amount of the filing fee, calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, as modified by Fee Rate Advisory No. 1 for fiscal year 2014, equals $128.80 per million dollars of the value of the transaction.
þ Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

     
Amount Previously Paid:   $32,200   Form or Registration No:   005-87383
Filing Party:   New York REIT, Inc.   Date Filed:   April 15, 2014
o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

o third-party tender offer subject to Rule 14d-l.
x issuer tender offer subject to Rule 13e-4.
o going-private transaction subject to Rule 13e-3.
o amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer. o

If applicable, check the appropriate box below to designate the appropriate rule provision relied upon:

o Rule 13e-4(i) (Cross-Border Issuer Tender Offer).
o Rule 14d-l(d) (Cross-Border Third-Party Tender Offer).
 

 

 
 

SCHEDULE TO

This Amendment No. 1 (“ Amendment No. 1 ”) amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission on April 15, 2014 (together with Amendment No. 1, the “ Schedule TO ”). The Schedule TO relates to the offer by New York REIT, Inc., a Maryland corporation that qualifies as a real estate investment trust for U.S. federal income tax purposes (the “ Company ”), to purchase up to 23,255,814 shares of its common stock, par value $0.01 per share (the “ Shares ”), at a price of $10.75 per Share (net to the tendering stockholder in cash, less any applicable withholding taxes and without interest). The Company’s offer is being made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 15, 2014, as amended, and in the related Letter of Transmittal, copies of which are attached to this Schedule TO. This Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) under the Securities Exchange Act of 1934, as amended.

Items 1 through 11.

The information in the Offer to Purchase, Amendment No. 1 thereto and the related Letter of Transmittal, copies of which are attached to this Schedule TO as Exhibits (a)(i), (a)(xi) and (a)(ii), respectively, is incorporated by reference in answer to Items 1 through 11 of this Tender Offer Statement on Schedule TO.

Item 12. Exhibits

See Exhibit Index immediately following the signature page.

Item 13. Information Required by Schedule 13E-3.

Not applicable.

 
 

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.

 
  NEW YORK REIT, INC.
    

By:

/s/ Nicholas S. Schorsch

Name: Nicholas S. Schorsch
Title:   Chief Executive Officer and Chairman of the Board of Directors

Dated: May 5, 2014

 
 

Exhibit List

 
  (a)(i)*   Offer to Purchase, dated April 15, 2014.
 (a)(ii)*   Letter of Transmittal.
 (a)(iii)*   Notice of Guaranteed Delivery.
 (a)(iv)*   Letter to Stockholders of the Company (other than DTC Participants).
 (a)(v)*   Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees and DTC Participants.
 (a)(vi)*   Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.
 (a)(vii)*   Notice of Withdrawal of Tender for Individual Investors.
(a)(viii)*   Notice of Withdrawal of Tender for Brokers, Dealers, Banks, Trust Companies and other Nominees and DTC Participants.
(a)(ix)   Press Release, dated April 15, 2014 ( previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference ).
  (a)(x)*   Advertisement in the Wall Street Journal, dated April 15, 2014.
(a)(xi)   Amendment No. 1 to the Offer to Purchase
(a)(xii)   Press Release, dated May 5, 2014
(b)(i)   Second Amended and Restated Credit Agreement, dated as of April 14, 2014 by and among New York Recovery Operating Partnership, L.P., as borrower, New York REIT, Inc. as the REIT and guarantor, the lenders party thereto and Capital One, National Association, as administrative agent (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference).
(b)(ii)   Listing Note Agreement, dated April 15, 2014, by and between New York Recovery Operating Partnership, L.P. and New York Recovery Special Limited Partnership, LLC (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference).
(d)(i)   2010 Stock Option Plan (previously filed as an exhibit to Post-Effective Amendment No. 1 to the Company's Registration Statement on Form S-11 filed with the SEC on March 2, 2011, and incorporated by reference herein).
(d)(ii)   Employee and Director Incentive Restricted Share Plan (previously filed as an exhibit to Post-Effective Amendment No. 1 to the Company's Registration Statement on Form S-11 filed with the SEC on March 2, 2011, and incorporated by reference herein).
(d)(iii)   First Amendment to Employee and Director Incentive Restricted Share Plan, dated as of April 15, 2014 (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference) .
(d)(iv)   Amended and Restated Advisory Agreement (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference) .
(d)(v)   2014 Advisor Multi-Year Outperformance Agreement, dated April 15, 2014 (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference) .
(d)(vi)   Amended and Restated Distribution Reinvestment and Direct Stock Purchase Plan (previously filed as Appendix A to the Form S-3D filed with the SEC on November 26, 2013, and incorporated by reference herein).
(d)(vii)   First Amendment to Distribution Reinvestment Plan, adopted on March 30, 2014 (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference) .
(d)(viii)   Fourth Amended and Restated Agreement of Limited Partnership of New York Recovery Operating Partnership, L.P., dated April 15, 2014 (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference).
(d)(ix)   Contribution and Exchange Agreement dated as of April 15, 2014 by and between New York Recovery REIT Operating Partnership, L.P. and New York Recovery Advisors, LLC (previously filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on April 15, 2014 and incorporated herein by reference) .

 
 

 
(d)(x)   Second Amendment to Employee and Director Incentive Restricted Share Plan, dated as of April 29, 2014.
(g)   None.
(h)   None.

* Previously filed with this Schedule TO.

Exhibit (a)(xi)

Amendment No. 1
 
to
 
Offer to Purchase for Cash

By
NEW YORK REIT, INC.
Up to 23,255,814 Shares of its Common Stock
at a Purchase Price of $10.75 per Share

THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 12:00 MIDNIGHT, EASTERN TIME, ON MAY 12, 2014, UNLESS THE OFFER IS
EXTENDED OR WITHDRAWN

Reference is made to that certain Offer to Purchase, dated April 15, 2014 (the “ Offer to Purchase ”), pursuant to which New York REIT, Inc., a Maryland corporation that qualifies as a real estate investment trust for U.S. federal income tax purposes (the “ Company ”), invited its stockholders to tender up to 23,255,814 shares of our common stock, par value $0.01 per share (the “ Shares ”), for purchase by the Company at a price of $10.75 per Share, net to the tendering stockholder in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions described in the Offer to Purchase and in the related letter of transmittal. The Company amends the Offer to Purchase as follows:

1. The second sentence of the third full paragraph on page ii of the Offer to Purchase is deleted in its entirety.
2. The last sentence of the last paragraph under the heading “How will we pay for the Shares?” on page 4 (carrying over to page 5) of the Offer to Purchase is deleted in its entirety.
3. The first bullet under the heading “What are the most significant conditions to the Offer?” on page 5 of the Offer to Purchase is deleted in its entirety.
4. The second bullet under the heading “Forward-Looking Statements” on page 7 of the Offer to Purchase is deleted in its entirety.
5. The penultimate paragraph on page 9 of the Offer to Purchase is amended and restated as follows:

THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED, BUT IS, HOWEVER, SUBJECT TO A NUMBER OF OTHER TERMS AND CONDITIONS. SEE SECTION 7 .

6. The penultimate paragraph on page 11 of the Offer to Purchase is amended and restated as follows:

The Offer is not conditioned on any minimum number of Shares being tendered, but is, however, subject to certain other conditions set forth in Section 7 .

7. The first paragraph under the heading “5. Purchase of Shares and Payment of Purchase Price” on page 18 of the Offer to Purchase is amended and restated as follows:

On the terms and subject to the conditions of the Offer, promptly following the Expiration Date, we will accept for payment and pay for (and thereby purchase) up to 23,255,814 Shares (or such greater amount as we may elect to purchase, subject to applicable law) properly tendered at the Purchase Price and not properly withdrawn, with appropriate adjustments to avoid the purchase of fractional Shares.

8. The first bullet under the heading “7. Conditions of the Offer” on page 21 of the Offer to Purchase is deleted.
9. The fourth sentence of the first paragraph under the heading “9. Source and Amounts of Funds” on page 25 of the Offer to Purchase is deleted in its entirety.

 
 

10. The third paragraph on page 28 of the Offer to Purchase is amended and restated as follows:

Restricted Share Plan. The Company has an employee and director incentive restricted share plan (the “RSP”), which provides the Company with the ability to grant awards of restricted shares to the directors, officers and employees of the Company (if we ever have employees), our Advisor, any affiliate of the Company, and certain consultants to the Company, our Advisor or any affiliate of the Company. The total number of common shares granted under the RSP may not exceed 10% of the Company’s shares of common stock on a fully diluted basis at any time.

Exhibit (a)(xii)

     [GRAPHIC MISSING]

FOR IMMEDIATE RELEASE

New York REIT, Inc.
Announces Satisfaction of Tender Offer Financing Condition

New York, New York, May 5, 2014 – New York REIT, Inc. (“NYRT” or the “Company”) (NYSE: NYRT), announced today that it had satisfied the Credit Facility Condition (as defined in the Company’s Offer to Purchase, dated April 15, 2014, with respect to the Tender Offer), as a result of its successfully borrowing $68 million under its existing revolving credit facility.

NYRT intends to use the borrowed funds to fund a portion of the purchase of up to 23,255,814 shares of its common stock that may be tendered pursuant to the Company’s previously announced tender offer (the “Tender Offer”) and to pay fees and expenses related to the Tender Offer. The Tender Offer, however, remains subject to the other conditions described in the Offer to Purchase.

Important Notice

This press release is for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any shares of NYRT. The full details of the Tender Offer, including complete instructions on how to tender shares, are included in the Offer to Purchase, the Letter of Transmittal and related materials, which NYRT previously distributed to stockholders and are filed with the SEC. Stockholders are urged to read carefully the Offer to Purchase, the Letter of Transmittal and other related materials because they contain important information, including the terms and conditions of the Tender Offer. Stockholders may obtain free copies of the Offer to Purchase, the Letter of Transmittal and other related materials filed by NYRT with the SEC at the SEC’s website at www.sec.gov or by contacting American National Stock Transfer, LLC, the information agent for the Tender Offer, at (877) 373-2522 (toll-free).

About NYRT

NYRT is a publicly traded Maryland corporation listed on the NYSE and is a New York City focused Real Estate Investment Trust (REIT) that acquires income-producing commercial real estate, including office and retail properties, in New York City. Additional information about NYRT can be found on its website at www.nyrt.com. NYRT may disseminate important information regarding it and its operations, including financial information, through social media platforms such as Twitter, Facebook and LinkedIn.

Important Notice

The statements in this press release that are not historical facts may be forward-looking statements. These forward-looking statements involve risks and uncertainties that could cause the outcome to be materially different. In addition, words such as “will,” “should,” “may,” “anticipate,” “believe,” “expect” and “intend” indicate a forward-looking statement, although not all forward-looking statements include these words.

Contacts

 
Anthony J. DeFazio
DDCworks
tdefazio@ddcworks.com
(484) 342-3600 		  Gregory W. Sullivan, CFO and COO
New York REIT, Inc.
gsullivan@arlcap.com
(212) 415-6500
Andrew G. Backman, Managing Director
Investor Relations / Public Relations
RCS Capital Corporation
abackman@rcscapital.com
(917) 475-2135

Exhibit (d)(x)

SECOND AMENDMENT TO
EMPLOYEE AND DIRECTOR
INCENTIVE RESTRICTED SHARE PLAN OF
AMERICAN REALTY CAPITAL NEW YORK RECOVERY REIT, INC.

WHEREAS , New York REIT, Inc. (f/k/a American Realty Capital New York Recovery REIT, Inc.) (the “ Company ”) maintains the Employee and Director Incentive Restricted Share Plan of American Realty Capital New York Recovery REIT, Inc. (the “ Plan ”);

WHEREAS , pursuant to Section 9 of the Plan, the Board of Directors of the Company (the “Board”) may at any time amend the Plan; and

WHEREAS , the Company desires to amend the Plan as set forth herein;

NOW, THEREFORE , pursuant to Section 9 of the Plan, effective as of April 29, 2014:

1.  The name of the Plan is hereby amended to be the “Employee and Director Incentive Restricted Share Plan of New York REIT, Inc.”

2.  All references in the Plan to “American Realty Capital New York Recovery REIT, Inc.” are hereby replaced with “New York, REIT, Inc.”.

3.  Section 1.2 of the Plan is hereby amended by deleting the defined terms “Director Shares” and “Retainer”.

4.  The last sentence of Section 2 of the Plan is hereby deleted in its entirety.

5.  The last two sentences of the last paragraph of Section 4.2 of the Plan are hereby deleted in their entirety.

6.  The first sentence of Section 5.2(a) of the Plan is hereby amended in its entirety to read as follows:

“The Committee may grant one or more Awards of Restricted Shares to any Participant.”

7.  Section 6 of the Plan is hereby amended in its entirety to read as follows:

“SECTION 6. [RESERVED].”

IN WITNESS WHEREOF , the Board has approved the amendment to the Plan as set forth herein and authorized the undersigned officer of the Company to execute this amendment and the undersigned has caused this amendment to be executed this 29th day of April, 2014.

NEW YORK REIT, INC.

By: /s/ Nicholas S. Schorsch

Name: Nicholas S. Schorsch
Title: Chief Executive Officer and
Chairman of the Board of Directors