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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
☒
☐
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2021
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-13610
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Maryland
(State or Other Jurisdiction of Incorporation or Organization)
17950 Preston Road,
Suite 600,
Dallas,
Texas
(Address of Principal Executive Offices)
(972)
349-3200
(Registrant’s telephone number, including area code)
Securities Registered Pursuant to Section 12(b) of the Act:
75-6446078
(I.R.S. Employer Identification No.)
75252
(Zip Code)
Common Stock, $0.001 Par Value
Common Stock, $0.001 Par Value
Series L Preferred Stock, $0.001 Par Value
Series L Preferred Stock, $0.001 Par Value
(Title of each class)
CMCT
CMCT-L
CMCTP
CMCTP
(Trading symbol)
Nasdaq Global Market
Tel Aviv Stock Exchange
Nasdaq Global Market
Tel Aviv Stock Exchange
(Name of each exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T
(§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐
Smaller reporting company ☒
Accelerated filer ☐
Emerging growth company ☐
Non-accelerated filer ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting
under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Act.) Yes ☐ No ☒
As of June 30, 2021, the aggregate market value of the voting common stock held by non-affiliates of the registrant, computed by reference to the average high and low sales prices
on the Nasdaq Global Market as of the close of business on June 30, 2021, was approximately $126.1 million. The registrant does not have any nonvoting common equities.
As of March 10, 2022, the registrant had outstanding 23,369,331 shares of common stock, par value $0.001 per share.
Documents Incorporated by Reference
Part III of this Annual Report on Form 10-K incorporates by reference specified portions of Creative Media & Community Trust Corporation’s Proxy Statement for its 2022 Annual Meeting of
Stockholders, which the registrant anticipates will be filed with the Securities and Exchange Commission no later than April 30, 2022.
Table of Contents
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Item 9C
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Item 15.
Item 16.
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION
2021 ANNUAL REPORT ON FORM 10-K
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
PART I
PART II
Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Reserved
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accountant Fees and Services
PART III
Exhibits and Financial Statement Schedules
Form 10-K Summary
PART IV
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Forward-Looking Statements
This Annual Report on Form 10-K contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 (the
“Securities Act”) and Section 21E of the Securities Exchange Act of 1934, which are intended to be covered by the safe harbors created thereby. These statements
include the plans and objectives of management for future operations, including plans and objectives relating to future growth of our business and availability of
funds. Such forward-looking statements can be identified by the use of forward-looking terminology such as “may,” “will,” “project,” “target,” “expect,” “intend,”
“might,” “believe,” “anticipate,” “estimate,” “could,” “would” “continue,” “pursue,” “potential,” “forecast,” “seek,” “plan,” “should” or “goal” or the negative
thereof or other variations or similar words or phrases. Such forward-looking statements include, among others, statements about Creative Media & Community
Trust Corporation’s plans and objectives relating to future growth and strategy. The forward-looking statements expressed or implied herein are based on current
expectations that involve numerous risks and uncertainties identified in this Annual Report on Form 10-K, including, without limitation, the risks identified under
the caption “Item 1A—Risk Factors.” Assumptions relating to the foregoing involve judgments with respect to, among other things, future economic, competitive
and market conditions and future business decisions, all of which are difficult or impossible to predict accurately and many of which are beyond our control.
Although we believe that the assumptions underlying the forward-looking statements are reasonable, any of the assumptions could be inaccurate and, therefore,
there can be no assurance that the forward-looking statements expressed or implied in this Annual Report on Form 10-K will prove to be accurate. In light of the
significant uncertainties inherent in the forward-looking statements expressed or implied herein, the inclusion of such information should not be regarded as a
representation by us or any other person that our objectives and plans will be achieved. Readers are cautioned not to place undue reliance on forward-looking
statements. Forward-looking statements speak only as of the date they are made. We do not undertake to update them to reflect changes that occur after the date
they are made, except to the extent required by applicable securities laws.
Definitions
We use certain defined terms throughout this Annual Report on Form 10-K that have the following meanings:
The phrase “ADR” represents average daily rate. It is calculated as trailing 12-month room revenue divided by the number of rooms occupied. For sold
properties, ADR is presented for the Company’s period of ownership only.
The phrase “annualized rent” represents gross monthly base rent, or gross monthly contractual rent under parking and retail leases, multiplied by 12. This
amount reflects total cash rent before abatements. Where applicable, annualized rent has been grossed up by adding annualized expense reimbursements to base
rent.
The phrase “RevPAR” represents revenue per available room. It is calculated as trailing 12-month room revenue divided by the number of available
rooms. For sold properties, RevPAR is presented for the Company’s period of ownership only.
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Item 1. Business
Business Overview
PART I
Creative Media & Community Trust Corporation (formerly known as CIM Commercial Trust Corporation) and its subsidiaries (which may be referred to
in this Annual Report on Form 10-K as “we,” “us,” “our,” “our company” or the “Company”) are operated by affiliates of CIM Group, L.P. (“CIM Group” or
“CIM”). CIM is a community-focused real estate and infrastructure owner, operator, lender and developer. CIM is headquartered in Los Angeles, CA, with offices
in Atlanta, GA, Bethesda, MD, Chicago, IL, Dallas, TX, New York, NY, Orlando, FL, Phoenix, AZ, and Tokyo, Japan. CIM also maintains additional offices
across the United States, as well as in Korea, Hong Kong and the United Kingdom to support its platform. See the sections “Overview and History of CIM
Group”, “CIM Urban Partnership Agreement” and “Investment Management Agreement” in “Item 1—Business” of this Annual Report on Form 10-K.
Creative Media & Community Trust Corporation is a Maryland corporation and REIT. We primarily own and operate Class A and creative office real
assets in vibrant and improving metropolitan communities throughout the United States. We seek to acquire, operate and develop premier multifamily and creative
office assets that cater to rapidly growing industries such as technology, media and entertainment in vibrant and emerging communities throughout the United
States. We seek to apply the expertise of CIM Group to the acquisition, development and operation of top-tier multifamily properties situated in dynamic markets
with similar business and employment characteristics to its creative office investments. All of our multifamily and creative office assets are and will generally be
located in communities qualified by CIM Group as described further below.
Our current reportable segments consist of two types of commercial real estate properties, namely office and hotel, as well as a segment for our lending
business, which primarily originates loans to small businesses. As of December 31, 2021, our real estate portfolio consisted of 14 assets, all of which were fee-
simple properties. As of December 31, 2021, our 11 office properties, totaling approximately 1.3 million rentable square feet, were 77.7% occupied, our
development site was being used as a parking lot, our hotel and an ancillary parking garage. The hotel has a total of 503 rooms and had RevPAR of $73.23 for the
year ended December 31, 2021. For the year ended December 31, 2021, our office portfolio contributed approximately 58.6% of revenue from our segments,
while our hotel segment contributed approximately 19.6%, and our lending segment contributed approximately 21.8%.
Business Objectives and Growth Strategies
We are a Maryland corporation and REIT. Our portfolio of investments currently consists of Class A and creative office real assets in vibrant and
improving metropolitan communities throughout the United States. We seek to acquire, operate and develop premier multifamily and creative office assets that
cater to rapidly growing industries such as technology, media and entertainment in vibrant and emerging communities throughout the United States. We seek to
apply the expertise of CIM Group to the acquisition, development and operation of top-tier multifamily properties situated in dynamic markets with similar
business and employment characteristics to its creative office investments. All of our multifamily and creative office assets are and will generally be located in
communities qualified by CIM Group as described further below. These communities are located in areas that include traditional downtown areas and suburban
main streets, which have high barriers to entry, high population density, positive population trends and a propensity for growth. We believe that the critical mass of
redevelopment in such areas creates positive externalities, which enhance the value of real estate assets in the area. We believe that these assets will provide
greater returns than similar assets in other markets, as a result of the population growth, public commitment and significant private investment that characterize
these areas.
Our investments in multifamily and creative office assets may take different forms, including direct equity or preferred investments, real estate
development activities, side-by-side investments or co-investments with vehicles managed or owned by CIM Group and/or originating loans that are secured
directly or indirectly by properties primarily located in qualified communities (“Qualified Communities”) that meet our strategy. We intend that no investment will
exceed 10% of our gross asset value at the time of investment but management may ultimately determine to execute on more significant acquisitions.
We intend to dispose of assets that do not fit into our strategy over time and opportunistically (i.e., we do not have any specific time frame with respect to
such dispositions). Further, as a matter of prudent management, we regularly evaluate each asset within our portfolio as well as our strategy. Such review may
result in dispositions when, among other things, we believe the proceeds generated from the sale of an asset can be redeployed in one or more assets that will
generate better returns, or the market value of such asset is equal to or exceeds our view of its intrinsic value. If we dispose of any of these assets, we intend to
reinvest the proceeds in assets that fit our strategy.
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CIM Group Operations
CIM Group believes that a vast majority of the risks associated with acquiring real estate are mitigated by accumulating local market knowledge of the
community where the asset is located. As a result, CIM Group typically spends significant resources over a period of between six months and five years evaluating
communities prior to making any acquisitions. The distinct districts that CIM Group identifies through this process as targets for acquisitions are referred to as
“Qualified Communities”. Qualified Communities typically have dedicated resources to become, or are currently, vibrant communities where people can live,
work, shop and be entertained, all within walking distance or close proximity to public transportation. These areas, which include traditional downtown areas and
suburban main streets, generally have high barriers to entry, high population density, positive population trends, a propensity for growth and support for
investment. CIM Group believes that the critical mass of redevelopment in such Qualified Communities creates positive externalities, which enhance the value of
real estate assets in the area. CIM Group targets acquisitions of diverse types of real estate assets, including retail, residential, office, parking, hotel, signage and
mixed-use through CIM Group’s extensive network and its current opportunistic activities.
CIM Group seeks to maximize the value of its holdings through active onsite property management and leasing. CIM Group has extensive in-house
research, acquisition, credit analysis, development, finance, leasing and onsite property management capabilities, which leverage its deep understanding of
metropolitan communities to position properties for multiple uses and to maximize operating income. As a vertically-integrated owner and operator, CIM Group
has in-house onsite property management and leasing capabilities. Property managers prepare annual capital and operating budgets and monthly operating reports,
monitor results and oversee vendor services, maintenance and capital improvement schedules. In addition, they ensure that revenue objectives are met, lease terms
are followed, receivables are collected, preventative maintenance programs are implemented, vendors are evaluated and expenses are controlled. In addition, CIM
Group’s real assets management committee (the “Real Assets Management Committee”) reviews and approves strategic plans for each asset, including financing,
leasing, marketing and property positioning, as well as hold/sell analyses and performance tracking relative to the overall business plan. CIM Group’s
organizational structure provides for continuity through multi-disciplinary teams responsible for an asset from the time of the original investment
recommendation, through the implementation of the asset’s business plan, and any repositions or ultimate disposition activities.
CIM Group’s Investments and Development teams are separate groups that work very closely together on transactions requiring development or
redevelopment. While the Investments team is ultimately responsible for acquisition analysis, both the Investments and Development teams perform due diligence,
evaluate and determine underwriting assumptions and participate in the development management and ongoing asset management of CIM Group’s assets under
development. The Development team is also responsible for the oversight and or execution of securing entitlements and the development/repositioning process. In
instances where CIM Group is not the lead developer, CIM Group’s in-house Development team continues to provide development and construction oversight to
co-sponsors through a shadow team that oversees the progress of the development from beginning to end to ensure adherence to the budgets, schedules, quality
and scope of the project in order to maintain CIM Group’s vision for the final product. Both the Investments and Development teams interact as a cohesive team
when sourcing, underwriting, acquiring, executing and managing the business plan of an opportunistic acquisition.
Competitive Advantages
We believe that CIM Group’s experienced team and vertically-integrated and multi-disciplinary organization, coupled with its community-focused and
disciplined real estate approach, results in a beneficial competitive advantage. Additionally, CIM Group’s community-focused strategy is complemented by a
number of other competitive advantages including CIM Group’s prudent use of leverage, underwriting approach, disciplined capital deployment, and strong
network of relationships. CIM Group’s competitive advantages include:
Vertically-Integrated Organization and Team
CIM Group is managed by its senior management team, which includes all of its Principals and its three founders, Shaul Kuba, Richard Ressler and
Avraham Shemesh. CIM Group is vertically-integrated and offers Real Asset Services, including Development, Onsite Property Management and
Leasing, and Real Asset Management, including Investments, Portfolio Oversight, Partner & Co-Investor Relations and Capital Markets. These groups
are supported by Compliance, Operations, Finance, Human Resources and Legal. CIM also has an internal audit team that sits within the Operations
department.
To support CIM Group’s organic growth and related platforms, CIM Group has invested substantial time and resources in building a strong and
integrated team of over 1,000 employees and more than 570 professionals as of December 31, 2021. Each of the CIM Group’s vertically-integrated
departments is managed by a senior level executive. Department heads have been with CIM Group on average 10 or more years.. In addition to
developing a core team of principals and other senior level executives, CIM Group has proactively managed its growth through
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career development and mentoring at both the mid and junior staffing levels, and has hired ahead of its needs, thus ensuring appropriate management
and staffing. As part of this initiative, CIM Group has developed a recruiting program that hires from business schools for its associate vice president
positions in the Investments team annually. As a result, CIM Group seeks to grow organically and develop and train its investment professionals to
progress into senior management roles. It has been CIM Group’s practice to grow talent within the company to promotion to principal, rather than to hire
from the outside.
CIM Group leverages the deep operating and industry experience of its principals and professionals, as well as their extensive relationships, to source
and execute opportunistic, value add, core, debt, ground-up development and infrastructure acquisitions. Each opportunity is typically overseen by a
dedicated Investment team, including an oversight Principal, one Investment lead (vice president level and above), one associate vice president and one
associate from the Investments team. The team is assembled based on the expertise needed for the particular transaction. Additionally, the team works
closely with staff from other departments, such as Development, Onsite Property Management, Capital Markets, Real Estate Services, Legal and
Finance. The team oversees all aspects of the project from acquisition through disposition of the asset. The team conducts the underwriting and due
diligence for the transaction, presents its findings to the Investment Committee for preliminary and final approvals. As a result, all investment
professionals work across a variety of Qualified Communities and CIM Group’s knowledge base is shared across its offices.
Community Qualification
Since inception, CIM Group’s unique community qualification process has served as the foundation for all of its strategies. CIM Group targets high
barrier-to-entry markets and submarkets with high population density and applies rigorous research to qualify each submarket for potential acquisitions.
Since 1994, CIM Group has qualified 135 communities in high barrier-to-entry markets and has deployed capital in 75 of the communities. The
qualification process generally takes between six months and five years and is a critical component of our evaluation of potential acquisitions.
CIM Group examines the characteristics of a market to determine whether the district justifies the extensive efforts undertaken in reviewing and making
potential acquisitions in its Qualified Communities. Qualified Communities generally fall into one of two categories: (i) transitional metropolitan
districts and (ii) well-established, thriving metropolitan areas (typically major central business districts(“CBDs”)).
Once a community is qualified, CIM Group believes it continues to differentiate itself through the following business principles:
•
•
•
Product Non-Specific—CIM Group has extensive experience owning and operating a diverse range of property types, including retail,
residential, office, parking, hotel, signage and mixed-use, which gives CIM Group the ability to effectively execute and capitalize on its strategy.
Successful acquisitions require selecting the right markets coupled with providing the right product. CIM Group's experience with multiple asset
types does not predispose CIM Group to select certain asset types, but instead ensures that they deliver a product mix that is consistent with the
market's requirements and needs. Additionally, there is a growing trend towards developing mixed-use real estate properties in metropolitan
markets which requires a diversified platform to successfully execute.
Community-Based Tenanting—CIM Group’s strategy focuses on the entire community and the best use of assets in that community. Owning a
critical mass of key properties in an area better enables CIM Group to meet the co-tenancy needs of national retailers and office tenants and thus
optimize the value of these real estate properties. CIM Group believes that its community perspective gives it a significant competitive
advantage in attracting tenants to its retail, office and mixed-use properties and creating synergies between the different tenant types.
Local Market Leadership with North American Footprint—CIM Group maintains local market knowledge and relationships, along with a
diversified North American presence, through its 135 Qualified Communities (thus, CIM Group has the flexibility to deploy capital in its
Qualified Communities only when the market environment meets CIM Group’s underwriting standards). CIM Group does not need to acquire
assets in a given community or product type at a specific time due to its broad proprietary pipeline of opportunities.
• Deploying Capital Across the Capital Stack—CIM Group has extensive experience structuring transactions across the capital stack including
equity, preferred equity, senior debt and mezzanine positions, giving it the flexibility to structure transactions in efficient and creative ways.
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Discipline
CIM Group’s strategy relies on its sound business plan and value creation execution to produce returns, rather than financial engineering. CIM Group’s
underwriting of its potential acquisitions is performed generally both on a leveraged and unleveraged basis. Additionally, with certain exceptions, CIM
Group has generally not utilized recourse or cross-collateralized debt due to its conservative underwriting standards.
CIM Group employs multiple underwriting scenarios when evaluating potential acquisition opportunities. CIM Group generally underwrites potential
acquisitions utilizing long-term average exit capitalization rates for similar product types and long-term average interest rates. Where possible, these
long-term averages cross multiple market cycles, thereby mitigating the risk of cyclical volatility. CIM Group’s “long-term average” underwriting is
based on its belief, reinforced by its experience through multiple market cycles, that over the life of any given fund that it manages, such fund should be
able to exit its holdings at long-term historical averages. CIM Group also underwrites a “current market case” scenario, which generally utilizes current
submarket specific exit assumptions and interest rates, in order to reflect anticipated results under current market conditions. CIM Group believes that
utilizing multiple underwriting scenarios enables CIM Group to assess potential returns relative to risk within a range of potential outcomes.
Financing Strategy
We may finance our future activities through one or more of the following methods: (i) offerings of shares of our common stock, par value $0.001 per
share (“Common Stock”), preferred stock or other equity and or debt securities of the Company; (ii) credit facilities and term loans; (iii) the addition of senior
recourse or non-recourse debt using target acquisitions as well as existing assets as collateral; (iv) the sale of existing assets; and or (v) cash flows from operations.
Risk Management
As part of its risk management strategy, CIM Group continually evaluates our assets and actively manages the risks involved in our business strategies.
CIM Group’s Investments and Portfolio Oversight teams share asset management responsibilities, setting the strategy for and monitoring the performance of our
assets relative to market and industry benchmarks and internal underwriting assumptions using direct knowledge of local markets provided by CIM Group’s in-
house onsite property management, and leasing professionals. In-house onsite property management capabilities include monthly and annual budgeting and
reporting as well as vendor services management, property maintenance and capital expenditures management. Property management seeks to ensure that revenue
objectives are met, lease terms are followed, receivables are collected, preventative maintenance programs are implemented, vendors are evaluated and expenses
are controlled. The Real Assets Management Committee oversees onsite property management and consists of certain of the Oversight Principals, each of whom
has extensive experience in acquisitions, development, onsite property management and leasing, who are ultimately responsible for the performance of the asset,
and the chief compliance officer. The Oversight Principals work with each CIM Group team to ensure that every asset benefits from the full range of CIM Group’s
real estate expertise. CIM Group believes that empowering its most seasoned investment professionals to bring their breadth of experience to bear directly on
assets will optimize returns.
The Oversight Principals meet informally on a frequent basis, generally weekly, to review and discuss the performance of assets, and meet formally at
least annually to review and approve strategic plans for our assets based on their review of: financial and operational analyses, operating strategies and
agreements, tenant composition and marketing, asset positioning, market conditions affecting our assets, hold/sell analyses and timing considerations, and the
annual business plan for each asset, including its capital and operating budget.
The size, composition, and policies of the Real Assets Management Committee may change from time to time.
Regulatory Matters
Environmental Matters
Environmental laws regulate, and impose liability for, the release of hazardous or toxic substances into the environment. Under some of these laws, an
owner or operator of real estate may be liable for costs related to soil or groundwater contamination on or migrating to or from its property. In addition, persons
who arrange for the disposal or treatment of hazardous or toxic substances may be liable for the costs of cleaning up contamination at the disposal site.
These laws often impose liability regardless of whether the person knew of, or was responsible for, the presence of the hazardous or toxic substances that
caused the contamination. The presence of, or contamination resulting from, any of these substances, or the failure to properly remediate them, may adversely
affect our ability to sell or rent our property, to borrow
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using the property as collateral or create lender’s liability for us. In addition, third parties exposed to hazardous or toxic substances may sue for personal injury
damages and or property damages. For example, some laws impose liability for release of or exposure to asbestos-containing materials. As a result, in connection
with our former, current or future ownership, operation, and development of real properties, or our role as a lender for loans secured directly or indirectly by real
estate properties, we may be potentially liable for investigation and cleanup costs, penalties and damages under environmental laws.
Although many of our properties have been subjected to preliminary environmental assessments, known as Phase I assessments, by independent
environmental consultants that identify certain liabilities, Phase I assessments are limited in scope, and may not include or identify all potential environmental
liabilities or risks associated with a property. Unless required by applicable law, we may decide not to further investigate, remedy or ameliorate the liabilities
disclosed in the Phase I assessments.
Further, these or other environmental studies may not identify all potential environmental liabilities or accurately assess whether we will incur material
environmental liabilities in the future. If we do incur material environmental liabilities in the future, our business, financial condition, results of operations, cash
flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock (as defined in “Item 1A
—Risk Factors”) could be materially adversely affected.
Americans with Disabilities Act of 1990
Under the Americans with Disabilities Act of 1990, as amended (the “ADA”), all public accommodations must meet federal requirements related to
access and use by disabled persons. Although we believe that our properties, to the extent such properties are “public accommodations” as defined under the
ADA, substantially comply with present requirements of the ADA, we have not conducted an audit or investigation of all of our properties to determine our
compliance. If one or more of our properties or future properties are not in compliance with the ADA, we may be required to take remedial action which would
require us to incur additional costs to bring the property into compliance. We cannot predict the ultimate amount, if any, of the cost of compliance with the ADA
or the cost of any damages or attorney’s fees to private litigants or any fines imposed by the federal government in respect of any failure to comply with the ADA.
Competition
We compete with others engaged in the acquisition, origination, development, and operation of real estate and real estate-related assets. Our competitors
include REITs, insurance companies, pension funds, private equity funds, sovereign wealth funds, hedge funds, mortgage banks, investment banks, commercial
banks, savings and loan associations, specialty finance companies, and private and institutional investors and financial companies that pursue strategies similar to
ours. Many of our competitors may be larger than us with greater access to capital and other resources and may have other advantages over us. In addition, some
of our competitors may have higher risk tolerances or lower profitability targets than us, which could allow them to pursue new business more aggressively than
us. We believe that our relationship with CIM Group gives us a competitive advantage that allows us to operate more effectively in the markets in which we
conduct our business.
Overview and History of CIM Group
CIM Group was founded in 1994 by Shaul Kuba, Richard Ressler and Avraham Shemesh and has approximately $29.7 billion of assets owned and
operated across its vehicles as of September 30, 2021. “Assets owned and operated” represents the aggregate assets owned and operated by CIM on behalf of
partners (including where CIM contributes capital alongside for its own account) and co-investors, whether or not CIM has discretion, in each case without
duplication. CIM Group’s successful track record is anchored by CIM Group’s community-oriented approach to acquisitions as well as a number of other
competitive advantages including its prudent use of leverage, underwriting approach, disciplined capital deployment, vertically-integrated capabilities and strong
network of relationships. CIM Group has generated strong risk-adjusted returns across multiple market cycles by focusing on improved asset and community
performance, and capitalizing on market inefficiencies and distressed situations.
CIM Urban Partnership Agreement
Our subsidiary, CIM Urban Partners, L.P. (“CIM Urban”), is governed by CIM Urban’s partnership agreement (as amended and restated, the “CIM Urban
Partnership Agreement”). The general partner of CIM Urban, Urban Partners GP, LLC (“CIM Urban GP”), is an affiliate of CIM Group and has the full, exclusive
and complete right, power, authority, discretion and responsibility vested in or assumed by a general partner of a limited partnership under the Delaware Revised
Uniform Limited Partnership Act and as otherwise provided by law and is vested with the full, exclusive and complete right, power and discretion to operate,
manage and control the affairs of CIM Urban, subject to the terms of the CIM Urban Partnership Agreement.
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None of CIM Urban GP or any of its affiliates, members, stockholders, partners, managers, officers, directors, employees, agents and representatives will
have any liability in damages or otherwise to any limited partner, any investors in CIM REIT or CIM Urban, and CIM Urban will indemnify such persons from
and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, lawsuits, proceedings, costs, expenses and disbursements of any kind
which may be imposed on, incurred by or asserted against such persons in any way relating to or arising out of any action or inaction on the part of such persons
when acting on behalf of CIM Urban or any of its investments, except for those liabilities that result from such persons’ fraud, gross negligence, willful
misconduct or breach of the terms of the CIM Urban Partnership Agreement or any other agreement between such person and CIM Urban or its affiliates.
Investment Management Agreement
CIM Urban and CIM Capital, LLC, an affiliate of CIM Group (“the Operator”), are parties to an investment management agreement pursuant to which
CIM Urban engaged the Operator to provide certain services to CIM Urban (the “Investment Management Agreement”). The Operator has assigned its duties
under the Investment Management Agreement to its four wholly-owned subsidiaries: CIM Capital Securities Management, LLC, a securities manager, CIM
Capital RE Debt Management, LLC, a debt manager, CIM Capital Controlled Company Management, LLC, a controlled company manager, and CIM Capital Real
Property Management, LLC, a real property manager. The “Operator” refers to CIM Capital, LLC and its four wholly-owned subsidiaries.
CIM Urban pays asset management fees to the Operator on a quarterly basis in arrears. Prior to 2022, the fee was calculated as a percentage of the daily
average adjusted fair value of CIM Urban’s assets as described in Note 12 to our consolidated financial statements included in this Annual Report on Form 10-K.
Please see “—Fee Waiver” below for a description of the calculation of the asset management fees to the Operator since the beginning of 2022. The Operator is
responsible for the payment of all costs and expenses relating to the general operation of its management business, including administrative expenses, employment
expenses and office expenses. All costs and expenses incurred by the Operator on behalf of CIM Urban are borne by CIM Urban. In addition, CIM Urban agreed
to indemnify the Operator against losses, claims, damages or liabilities, and reimburse the Operator for its legal and other expenses, in each case incurred in
connection with any action, proceeding or investigation arising out of or in connection with CIM Urban’s business or affairs, except to the extent such losses or
expenses result from fraud, gross negligence or willful misconduct of, or a breach of the terms of the Investment Management Agreement by the Operator.
Nothing in the Investment Management Agreement limits or restricts the right of any partner, officer or employee of the Operator to engage in any other
business or to devote his time and attention in part to any other business. Nothing in the Investment Management Agreement limits or restricts the right of the
Operator to engage in any other business or to render services of any kind to any other person.
The Investment Management Agreement will remain in effect until CIM Urban is dissolved or CIM Urban and the Operator otherwise mutually agree.
Master Services Agreement
CIM Service Provider, LLC, an affiliate of CIM Group (the “Administrator”) provides, or arranges for other service providers to provide, management
and administration services (the “Base Services”) to us and our subsidiaries under the terms of a master services agreement, dated as of March 11, 2014, as
amended on May 11, 2020 (the “Master Services Agreement”). Pursuant to the Master Services Agreement, we appointed an affiliate of CIM Group as the
Administrator of CIM Urban GP (“Urban GP Administrator”). For fiscal quarters prior to April 1, 2020, we paid to the Administrator, on a quarterly basis, a base
service fee (the “Base Service Fee”) of approximately$1.0 million per year (which, for each year after 2014, was subject to an annual escalation by a specified
inflation factor beginning on January 1 of each year). On May 11, 2020, the Master Services Agreement was amended to replace the Base Service Fee with an
incentive fee (the “Prior Incentive Fee”) pursuant to which the Administrator was entitled to receive, on a quarterly basis, 15.00% of our quarterly core funds from
operations in excess of a quarterly threshold equal to 1.75% (i.e., 7.00% on an annualized basis) of our average adjusted common stockholders’ equity (i.e.,
common stockholders’ equity plus accumulated depreciation and amortization) for such quarter. The amendment was effective as of April 1, 2020. No Prior
Incentive fee was paid in 2020 or 2021. Please see “—Fee Waiver” below for a description of the calculation of the fees to the Administrator since the beginning
of 2022.
In addition, pursuant to the terms of the Master Services Agreement, the Administrator may receive compensation and or reimbursement for performing
certain services (other than the Base Services) for us and our subsidiaries. Such services performed by the Administrator and its affiliates may include accounting,
tax, reporting, internal audit, legal, compliance, risk management, IT, human resources, corporate communications, operational and on-going support in
connection with our registered public offering of our Series A Preferred Stock, par value $0.001 per share (“Series A Preferred Stock”) and Series D Preferred
Stock, par value $0.001 per share (“Series D Preferred Stock” and, together with the Series A Preferred Stock and
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Series L Preferred Stock, “Preferred Stock”). The Administrator’s compensation for such services is based on the salaries and benefits of the employees of the
Administrator and or its affiliates who performed such services (allocated based on the percentage of time spent on the affairs us and our subsidiaries).
Fee Waiver
On January 5, 2022, we and certain of our subsidiaries entered into a Fee Waiver (the “Fee Waiver”) with the Operator and the Administrator with respect
to fees that are payable to them. The Fee Waiver is effective retroactively to January 1, 2022 (the “Effective Date”). Pursuant to the Fee Waiver, the Administrator
agrees to voluntarily waive any fees in excess of those set forth in the Fee Waiver, to the extent it would otherwise have been entitled to such additional
compensation under the Master Service Agreement, and the Operator agrees to voluntarily waive any fees in excess of those set forth in the Fee Waiver, to the
extent it would otherwise have been entitled to such additional compensation under the Investment Management Agreement.
1. Base Fee: A base asset management fee (the “Base Fee”) is payable quarterly in arrears to the Operator in an amount equal to an annual rate of 1% (or
0.25% per quarter) of the average of the “Net Asset Value Attributable to Common Stockholders” as of the first and last day of the applicable quarter. Net
Asset Value Attributable to Common stockholders is defined as (a) the sum of the Company’s (1) investments in real estate at fair value, (2) cash, (3)
loans receivable at fair value and (4) the book value of the other assets of the Company, excluding deferred costs and net of other liabilities at book value,
less (b) the Company’s (i) debt at face value, (ii) outstanding preferred stock at stated value, and (iii) non-controlling interests at book value; provided,
that, non-controlling interests in any UPREIT operating partnership relating to the Company shall not be excluded.
2.
Incentive Fee: A revised incentive fee (the “Revised Incentive Fee”) is payable quarterly in arrears to the Administrator with respect to the quarterly core
funds from operations in excess of a quarterly threshold equal to 1.75% (i.e., 7.00% on an annualized basis) of the Company’s “Adjusted Common
Equity” (as defined below) for such quarter (“Excess Core FFO”) as follows: (i) no Revised Incentive Fee in any quarter in which the Excess Core FFO is
$0; (ii) 100% of any Excess Core FFO up to an amount equal to the product of (x) the average of the Adjusted Common Equity as of the first and last day
of the applicable quarter and (y) 0.4375%; and (iii) 20% of any Excess Core FFO thereafter. Revised Incentive Fees payable for any partial quarter will
be appropriately prorated.
“Adjusted Common Equity” means Common Equity plus Excluded Depreciation and Amortization. “Common Equity” means Total Stockholders’ Equity
minus Excluded Equity. “Total Stockholders’ Equity” means the amount reflected as total stockholders’ equity in accordance with GAAP on the
consolidated balance sheet of the Company and its subsidiaries as of the last day of a given quarter. “Excluded Equity” means the sum of all preferred
securities of the Company and its subsidiaries classified as permanent equity in accordance with GAAP on the consolidated balance sheet of the
Company and its subsidiaries as of the last day of a given quarter. “Excluded Depreciation and Amortization” means, for a given quarter, the amount of
all accumulated depreciation and amortization of (i) the Company and its subsidiaries and (ii) to the extent allocable to the Company and its subsidiaries,
the unconsolidated affiliates, in each case as of the last day of such quarter that corresponds to the periodic depreciation and amortization expense
calculated in each case in accordance with GAAP that is a permitted add back to net income calculated in accordance with GAAP when calculating funds
from operations.
3. Capital Gains Fee: A capital gains fee (the “Capital Gains Fee”) is payable quarterly in arrears to the Administrator in an amount equal to (i) 15% of the
cumulative aggregate realized capital gains minus the cumulative aggregate realized capital losses (in each case since the Effective Date), minus (ii) the
aggregate capital gains fees paid since the Effective Date. Realized capital gains and realized capital losses are calculated by subtracting from the sales
price of a property: (a) any costs incurred to sell such property, and (b) the current gross value of the property (meaning the property’s original acquisition
price plus any subsequent, non-reimbursed capital improvements thereon paid for by the Company).
Following the end of each quarter, the Administrator will deliver to the Company (i) a calculation of the cumulative fees earned by the Operator and the
Administrator under the methodology prescribed by the Fee Waiver (the “Fee Waiver Methodology”) from the Effective Date through the end of such quarter and
(ii) a calculation of the cumulative fees that would have been earned, in the absence of the Fee Waiver, by the Operator and the Administrator during such period
under the Master Services Agreement and the Investment Management Agreement, without giving effect to the Fee Waiver (the “Pre-Fee Waiver Methodology”).
If, in respect of any quarter, the aggregate fees that are payable under the Fee Waiver Methodology exceed the aggregate fees that would have been payable under
the Pre-Fee Waiver Methodology for the equivalent period, such quarter is deemed an “Excess Quarter”. For any quarter following an Excess Quarter, the
Company (upon the direction of the independent members of the Board) may, at its option and upon written notice to Administrator, elect to calculate all fees due
to the Administrator and the Operator in accordance with the Pre-Fee Waiver Methodology from and after such Excess Quarter. Any
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election by the Company to adopt the Pre-Fee Waiver Methodology is irrevocable, and all fees due to the Administrator and the Operator from and after such
election will be calculated in accordance with the Pre-Fee Waiver Methodology.
Other Services
CIM Management, Inc. and certain of its affiliates (collectively, the “CIM Management Entities”), all affiliates of CIM REIT and CIM Group, provide
property management, leasing, and development services to CIM Urban pursuant to various agreements.
CIM SBA Staffing, LLC, an affiliate of CIM Group (“CIM SBA”), provides personnel and resources to us pursuant to the terms of a Staffing and
Reimbursement Agreement, dated as of January 1, 2015, between CIM SBA and PMC Commercial Lending, LLC, our subsidiary. We reimburse CIM SBA for the
costs and expenses of providing such personnel and resources as expenses incurred for the lending division.
CCO Capital, LLC, a registered broker dealer and under common control with the Operator and the Administrator (“CCO Capital”), serves as our
exclusive dealer manager for our continuous public offering of Series A Preferred Stock and Series D Preferred Stock under the terms of a Second Amended and
Restated Dealer Manager Agreement, dated as of January 28, 2020, as amended by Amendment No. 1 thereto, dated as of April 9, 2020 (the “Second A&R
DMA”). Under the terms of the Second A&R DMA, we compensate CCO Capital for such services as follows: (1) an upfront dealer manager fee of up to 1.25%
of the selling price of each such share of Preferred Stock sold, (2) selling commissions of up to 7.00% of the selling price of each such share of Series A Preferred
Stock sold (with no selling commissions payable in respect of shares of Series D Preferred Stock sold) and (3) a trailing dealer manager fee that accrues daily in an
amount equal to 1/365 of 0.25% per annum of the selling price of each share of Preferred Stock sold. Prior to the amendment of the Second A&R DMA in April
2020, the selling commissions payable to CCO Capital were up to 5.50% of the selling price of each share of Series A Preferred Stock sold, rather than up to
7.00%. The Second A&R DMA permits CCO Capital to, in its sole discretion, reallow to another broker-dealer authorized by it to sell shares in the offering a
portion of the upfront dealer manager fee earned by it in respect of shares sold by such broker-dealer. We have been informed that CCO Capital generally reallows
100% of the selling commissions on sales of Series A Preferred Stock and generally reallows substantially all of the upfront dealer manager fee on sales of Series
A Preferred Stock and Series D Preferred Stock, to participating broker-dealers. On September 22, 2021, the Company entered into Amendment No. 2 to the
Second A&R DMA, pursuant to which the upfront dealer manager fee payable to the Dealer Manager was changed to up to 3.00% and the trailing dealer manager
fee with respect to the sale of shares of Series A Preferred Stock sold in the Offering on or after September 9, 2021 was eliminated.
th
From May 31, 2019 through January 27, 2020, CCO Capital served as the exclusive dealer manager for our public offering of units, each of which
consisted of one share of Series A Preferred Stock and one warrant to purchase 0.25 shares of Common Stock (“Series A Preferred Units”). Our offering of Series
A Preferred Units was terminated at the end of January 2020.
Lending Segment
Through our loans originated under the Small Business Administration (“SBA”)’s 7(a) Small Business Loan Program (“SBA 7(a) Program”), we are a
national lender that primarily originates loans to small businesses. We identify loan origination opportunities through personal contacts, internet referrals,
attendance at trade shows and meetings, direct mailings, advertisements in trade publications and other marketing methods. We also generate loans through
referrals from real estate and loan brokers, franchise representatives, existing borrowers, lawyers and accountants. In addition, as an SBA 7(a) licensee, we
originated loans as an authorized lender under the Paycheck Protection Program (“PPP”), which was enacted during the year ended December 31, 2020 and
completed during 2021. While originations under the PPP have ended we still had PPP loans outstanding as of December 31, 2021.
The PPP provides lenders who originated loans under the program with a 100% guaranty of repayment (provided certain conditions are met) and provides
small businesses with uncollateralized and unguaranteed loans at an interest rate of 1.00%. Loans originated under the PPP will be fully forgiven, subject to certain
limitations, when used by the borrower for payroll costs, interest on mortgages, rent, and utilities. For those loans that are forgiven, the SBA will remit 100% of
the remaining outstanding principal plus accrued interest to us. For those loans whose borrowers do not meet the criteria required for forgiveness, the borrower is
required to repay the remaining obligation. Upon a borrower default of any remaining balance due, if any, the SBA will remit the remaining balance due to us. The
loans that we originated under the PPP have a two-year term if originated prior to June 5, 2020 and have a five-year term if originated after June 5, 2020. We
obtained all funds to originate loans under the PPP from the Federal Reserve on a basis that correlated to the outstanding principal balance due from our borrowers
pursuant to the PPP on a dollar-for-dollar basis with a cost of funds of 0.35%.
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Seasonality
Our revenues and expenses for our hotel property are subject to seasonality during the year. Generally, our hotel revenues are greater in the first and
second quarters than the third and fourth quarters. This seasonality can be expected to cause quarterly fluctuations in revenues, segment net operating income, net
income and cash provided by operating activities. Additionally, our operating results have been and are expected to continue to be adversely affected by the effects
of the novel coronavirus (“COVID-19”). In addition, the hotel industry is cyclical and demand generally follows, on a lagged basis, key macroeconomic factors.
Tenant Concentration
Kaiser Foundation Health Plan, Incorporated (“Kaiser”), which occupied office space in one of our Oakland, California properties accounted for 30.9%
of our annualized rental income for the year ended December 31, 2021. No other tenant accounted for greater than 10.0% of our annualized rental income for the
year ended December 31, 2021.
Human Capital
We are operated by affiliates of CIM Group and, as of December 31, 2021, only have five employees. Four of such employees are in our lending segment
while one employee spends a substantial portion of the time that he devotes to us on matters relating to the lending segment. We have entered into the Master
Services Agreement with the Administrator, an affiliate of CIM Group, pursuant to which the Administrator has agreed to provide, or arrange for other service
providers to provide, management and administration services to us and our subsidiaries.
Offices
We are headquartered in Dallas, Texas.
Available Information
The public can access free of charge through the “Shareholders” section of our corporate website, www.creativemediacommunity.com, our annual reports
on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8‑K, and amendments to those reports filed with or furnished to the Securities and
Exchange Commission (the “SEC”) as soon as reasonably practicable after such material is filed with or furnished to the SEC. The information on our corporate
website is not part of this Annual Report on Form 10-K. The SEC also maintains a website at www.sec.gov that contains reports, proxy and information statements
and other information regarding our filings.
We have adopted a written code of ethics that applies to all of our directors, officers and employees, the Operator and the Administrator, including our
principal executive officer and senior financial officer, in accordance with Section 406 of the Sarbanes-Oxley Act of 2002 and the rules of the SEC promulgated
thereunder. The code of ethics, which we call our Code of Business Conduct and Ethics, is available on our corporate website, www.creativemediacommunity.com,
in the section entitled “Shareholders—Corporate Overview—Corporate Governance.” In the event that we make changes in, or provide waivers from, the
provisions of such code of ethics that the SEC requires us to disclose, we intend to disclose these events on our corporate website in such section. In the Corporate
Governance section of our corporate website, we have also posted our Audit Committee Charter, as well as our Governance Principles.
Item 1A. Risk Factors
This section sets forth certain factors that make an investment in our Company speculative or risky, including the following:
Risks Related to Our Business
•
•
The novel coronavirus (COVID-19) has negatively affected and will likely continue to negatively affect our business, financial condition, results of
operations and cash flows.
The COVID-19 pandemic has had, and may continue to have, significant impacts on workplace practices and those changes, or other office space
utilization trends, could impact our business.
• Uninsured losses or losses in excess of our insurance coverage could materially adversely affect our financial condition and cash flows, and there can be
no assurance as to future costs and the scope of coverage that may be available under insurance policies.
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•
Cyber incidents may adversely affect our business by causing a disruption to our operations, a compromise or corruption of our confidential information,
and or damage to our business relationships, all of which could negatively impact our financial results
Risks Related to Conflicts of Interest
• Neither the Master Services Agreement nor the Investment Management Agreement may be terminated by us (except in limited circumstances for cause
in the case of the Master Services Agreement) and the Master Services Agreement may be assigned by the Administrator in certain circumstances without
our consent, either or both of which may have a material adverse effect on us.
•
•
•
•
•
The Administrator and Operator are entitled to receive fees for the services they provide regardless of our performance, which may reduce their incentive
to devote time and resources to our portfolio.
The Operator may undertake transactions that are motivated, in whole or in part, by a desire to increase its compensation.
Each of the Administrator and Operator provides services to us under broad mandates, and our Board of Directors may not necessarily be involved in
each acquisition, disposition or financing decision made by the Administrator or Operator.
Certain of our directors and executive officers may face conflicts of interest related to positions they hold with the Operator, the Administrator, CIM
Group and their affiliates, which could result in decisions that are not in the best interest of our stockholders.
The business of CIM Urban is managed by Urban GP Administrator and we agreed in the Master Services Agreement to appoint an affiliate of CIM
Group as the manager of the general partner of CIM Urban.
Risks Related to Our Organizational Structure
•
•
•
•
Certain provisions of the Maryland General Corporation Law (the “MGCL”) could inhibit changes in control.
The power of the Board of Directors to revoke our REIT election without stockholder approval may cause adverse consequences to our stockholders.
The MGCL or our charter may limit the ability of our stockholders or us to recover on a claim against a director or officer who negligently causes us to
incur losses.
The liability of the Administrator and the Operator to us under the Master Services Agreement and the Investment Management Agreement, respectively,
is limited and we and CIM Urban have agreed to indemnify the Administrator and the Operator, respectively, against certain liabilities. As a result, we
could experience poor performance or losses for which neither the Administrator nor the Operator would be liable.
Risks Related to Real Estate Assets
• Our operating performance is subject to risks associated with the real estate industry.
• A significant portion of our properties, by aggregate net operating income and square feet, are located in California. We are dependent on the California
real estate market and economy, and are therefore susceptible to risks of events in the California market that could adversely affect our business, such as
adverse market conditions, changes in local laws or regulations and natural disasters.
•
•
Tenant concentration increases the risk that cash flow could be interrupted.
If a major tenant declares bankruptcy, we may be unable to collect balances due under relevant leases, which could have a material adverse effect on our
financial condition and ability to pay distributions to our stockholders.
• We may be unable to renew leases or lease vacant office space.
• A significant portion of our net operating income is expected to come from our hotel. The outbreak of a highly infectious, contagious or widespread
disease, such as COVID-19, can (and has) result in reductions in travel and adversely affect demand for hotels.
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•
Income from our long-term leases is an important source of our cash flow from operations and is subject to risks related to increases in expenses and
inflation.
Real estate-related taxes may increase, and if these increases are not passed on to tenants, our income will be reduced.
•
• We face risks associated with development, redevelopment, repositioning or construction of real estate projects.
Inflation may adversely affect our real estate operations.
•
•
• Our real estate business is subject to risks from climate change.
Supply chain disruption and increase costs in labor and materials may adversely affect our real estate operations.
Risks Related to Debt Financing
• We have incurred significant indebtedness and may incur significant additional indebtedness on a consolidated basis.
• We intend to rely in part on external sources of capital to fund future capital needs and, if we encounter difficulty in obtaining such capital, we may not be
able to meet maturing obligations or make additional acquisitions.
Increases in interest rates could increase the amount of our debt payments and adversely affect our ability to pay distributions to our stockholders.
•
• We may not be able to generate sufficient cash flow to meet our debt service obligations.
•
Lenders may require us to enter into restrictive covenants relating to our operations, which could limit our ability to make distributions on our Common
Stock or Preferred Stock.
Risks Related to Our Lending Operations
• Our lending operations expose us to a high degree of risk associated with real estate.
• Our loans secured by real estate and our real estate owned (“REO”) properties, if any, are typically illiquid and their values may decrease.
• Our lending operations have an industry concentration, which may negatively impact our financial condition and results of operations.
U.S. Federal Income and Other Tax Risks
•
REIT annual distribution requirements may force us to forgo otherwise attractive opportunities or borrow funds during unfavorable market conditions.
This could delay or hinder our ability to meet our objectives and reduce our stockholders’ overall return.
• Our property taxes could increase due to property tax rate changes or reassessment, which would impact our cash flows.
Risks Related to Our Common Stock and Preferred Stock
• We may issue shares of our Common Stock at prices below the then-current NAV per share of our Common Stock, which could materially reduce our
NAV per share of our Common Stock.
•
The existing mechanism for the dual‑listing of securities on Nasdaq and the TASE may be eliminated or otherwise altered such that we may be subject to
additional regulatory burden and additional costs.
• Our NAV is an estimate of the fair value of our assets and may not necessarily reflect realizable value.
Stockholders should carefully consider the risks described in this section and the other information included in this Annual Report on Form 10-K in
evaluating the Company and our business. The information in this section should be read in conjunction with Part II, “Item 7—Management's Discussion and
Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and related notes in Part II, “Item 8—Financial Statements
and Supplementary Data” of this Annual Report on Form 10-K. If any of the risks described in this section actually occur, our business, financial condition and
results of operations could be materially and adversely affected, actual results could differ materially from those reflected in forward-looking statements or from
our historical results and stockholders may lose all or part of their investment. Additional risks and uncertainties not presently known to us or that we currently
deem immaterial also may impair our business operations. This discussion of risk factors includes many forward-looking statements. For cautions about relying
on forward-looking statements, please refer to the section entitled “Forward-Looking Statements” immediately prior to “Item 1—Business” of this Annual Report
on Form 10-K.
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Risks Related to Our Business
Our future success depends on the performance of the Administrator and the Operator, their respective key personnel and their access to the investment
professionals of CIM Group. We may not find suitable replacements if such key personnel or investment professionals leave the employment of the
Administrator, the Operator or other applicable affiliates of CIM Group or if such key personnel or investment professionals otherwise become unavailable to
us.
We rely on the Administrator to provide management and administration services to us, and CIM Urban relies completely on the Operator to provide
CIM Urban with certain services.
Our executive officers also serve as officers or employees of the Administrator and or the Operator or other applicable affiliates of CIM Group. The
Administrator and the Operator have significant discretion as to the implementation of acquisitions and operating policies and strategies on behalf of us and CIM
Urban. Accordingly, we believe that our success depends to a significant extent upon the efforts, experience, diligence, skill and network of business contacts of
the officers and key personnel of the Administrator, the Operator and the other applicable affiliates of CIM Group. The departure of any of these officers or key
personnel could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service
obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
We also depend on access to, and the diligence, skill and network of, business contacts of the professionals within CIM Group and the information and
deal flow generated by its investment professionals in the course of their acquisitions and onsite property management and leasing activities. The departure of any
of these individuals, or of a significant number of the investment professionals or principals of CIM Group, could have a material adverse effect on our business,
financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common
Stock or Preferred Stock. We cannot guarantee that we will continue to have access to CIM Group’s investment professionals or its information and deal flow.
If we seek to internalize the management functions provided pursuant to the Master Services Agreement and the Investment Management Agreement, we
could incur substantial costs and lose certain key personnel.
The Board of Directors may determine that it is in our best interest to become self-managed by internalizing the functions performed by the Administrator
and or the Operator and to terminate the Master Services Agreement and or the Investment Management Agreement, respectively. However, we do not have the
unilateral right to terminate the Master Services Agreement and CIM Urban does not have the unilateral right to terminate the Investment Management
Agreement, and neither the Administrator nor the Operator would be obligated to enter into an internalization transaction with us. There is no assurance that a
mutually acceptable agreement with these entities as to the terms of the internalization could be reached.
The costs that would be incurred by us in any such internalization transaction are uncertain and could be substantial. Inadequate management of an
internalization transaction could cause us to incur excess costs or suffer deficiencies in our disclosure controls and procedures or our internal control over financial
reporting. An internalization transaction may divert management's attention from effectively managing our assets. Further, following any internalization of our
management functions, certain key employees may remain employees of the Administrator and the Operator or their respective affiliates instead of becoming our
employees, especially if the Administrator and the Operator are not acquired by us.
Uninsured losses or losses in excess of our insurance coverage could materially adversely affect our financial condition and cash flows, and there can be no
assurance as to future costs and the scope of coverage that may be available under insurance policies.
We carry commercial liability, special form/all risk and business interruption insurance on all of the properties in our portfolio. In addition, we carry
directors’ and officers’ insurance. While we select policy specifications and insured limits that we believe are appropriate and adequate given the relative risk of
loss, the cost of the coverage, and industry practice, there can be no assurance that we will not experience a loss that is uninsured or that exceeds policy limits.
Our business operations in California and Texas are susceptible to, and could be significantly affected by, adverse weather conditions and natural
disasters such as earthquakes, tsunamis, hurricanes, wind, blizzards, floods, landslides, drought and fires. These adverse weather conditions and natural disasters
could cause significant damage to the properties in our portfolio, the risk of which is enhanced by the concentration of our properties, by aggregate net operating
income and square feet, in California. Our insurance may not be adequate to cover business interruption or losses resulting from adverse weather or natural
disasters. We carry earthquake insurance on our properties in California in an amount and with deductibles and limitations that we deem to be
appropriate. However, the amount of our earthquake insurance coverage may not be sufficient to
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cover losses from earthquakes in California. Furthermore, we may not carry insurance for certain losses, such as those caused by war or certain environmental
conditions, such as mold or asbestos.
As a result of the factors described above, we may not have sufficient coverage against all losses that we may experience for any reason.
If we experience a loss that is uninsured or that exceeds policy limits, we could incur significant costs and lose the capital deployed in the damaged
properties as well as the anticipated future cash flows from those properties. Further, if the damaged properties are subject to recourse indebtedness, we would
continue to be liable for the indebtedness, even if the properties were irreparable. In addition, our properties may not be able to be rebuilt to their existing height or
size at their existing location under current land-use laws and policies. In the event that we experience a substantial or comprehensive loss of one of our properties,
we may not be able to rebuild such property to its existing specifications and otherwise may have to upgrade such property to meet current code requirements. Any
of the factors described above could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our
debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Cybersecurity risks and cyber incidents may adversely affect our business by causing a disruption to our operations, a compromise or corruption of our
confidential information, and or damage to our business relationships, all of which could negatively impact our financial results.
We face cybersecurity risks and risks associated with security breaches or disruptions, such as cyber-attacks or cyber intrusions over the Internet,
malware, computer viruses, attachments to emails, social engineering and phishing schemes or persons inside our organization, the Operator and or Administrator.
The risk of a security breach or disruption, particularly through cyber-attacks or cyber intrusions, has generally increased as the number, intensity and
sophistication of attempted attacks and intrusions from around the world have increased. The occurrence of a cyber incident may result in disrupted operations,
misstated or unreliable financial data, misappropriation of assets, compromise or corruption of confidential information collected in the course of conducting our
business, liability for stolen assets or information, increased cybersecurity protection and insurance costs, litigation, regulatory enforcement, damage to our tenant
and stockholder relationships, material harm to our financial condition, cash flows and the market price of our securities or other adverse effects. Our Operator’s
and Administrator’s IT networks and related systems are essential to the operations of our business and our ability to perform day-to-day operations (including
managing our building systems). Our Operator and Administrator have implemented processes, procedures and internal controls to help mitigate cyber incidents,
but these measures do not guarantee that a cyber incident involving our Operator or Administrator will not occur or that attempted security breaches or disruptions
would not be successful or damaging. A cyber incident involving our Operator’s or Administrator’s IT networks and related systems could materially adversely
impact our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of
distributions on our Common Stock or Preferred Stock.
Our Operator, Administrator and their respective affiliates, in the course of providing onsite property management, leasing, accounting and or services to
us, collect and retain certain personal information provided by our tenants and vendors. Our Operator, Administrator and their respective affiliates rely on
computer systems to process transactions and manage our business. We can provide no assurance that the data security measures designed to protect confidential
information on such systems established by our Operator, Administrator and their respective affiliates will be able to prevent unauthorized access to such personal
information. There can be no assurance that their efforts to maintain the security and integrity of the information collected and their computer systems will be
effective or that attempted security breaches or disruptions will not be successful or damaging. Even the most well protected information, networks, systems and
facilities remain potentially vulnerable because the techniques used in such attempted security breaches evolve and generally are not recognized until launched
against a target, and, in some cases, are designed not be detected and, in fact, may not be detected. Accordingly, our Operator, Administrator and their respective
affiliates may be unable to anticipate these techniques or to implement adequate security barriers or other preventative measures, and thus it is impossible for us to
entirely mitigate this risk.
If we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial results.
An effective system of internal control over financial reporting is necessary for us to provide reliable financial reports, prevent fraud and operate
successfully as a public company. As part of our ongoing monitoring of internal controls, we may discover material weaknesses or significant deficiencies in our
internal controls that we believe require remediation. If we discover such weaknesses, we will make efforts to improve our internal controls in a timely manner.
Any system of internal controls, however well designed and operated, is based in part on certain assumptions and can only provide reasonable, not absolute,
assurance that the objectives of the system are met. Any failure to maintain effective internal controls, or implement any necessary improvements in a timely
manner, could have a material adverse effect on our business, financial condition,
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results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred
Stock, or cause us to not meet our reporting obligations, which could affect our ability to maintain our listings of Common Stock and Series L Preferred Stock on
Nasdaq and the TASE. Ineffective internal controls could also cause holders of our securities to lose confidence in our reported financial information, which would
likely have a negative effect on the trading price of our securities.
The outbreak of COVID-19 negatively affected and will likely continue to negatively affect our business, financial condition, results of operations and cash
flows.
The spread of COVID-19 in the United States and the resulting restrictions on and cancellations of travel, meetings and social gatherings has impacted,
and is expected to continue to impact, the operations of our hotel in Sacramento, California. The pandemic and related restrictions depressed the net operating
income of our hotel through 2021 and, based on current expectations, it is highly likely that the net operating income of our hotel will continue to be depressed for
the first half of 2022. As a result, contributions by the hotel to our funds from operations are expected to be diminished when compared to comparable periods
prior to COVID-19.
Loans originated by us under the SBA 7(a) Program consist primarily of loans to borrowers in the limited service hospitality sector. In 2020 and 2021,
our borrowers experienced significant reductions in cash flow as the travel and leisure industry decline caused by COVID-19 has severely impacted limited
service hospitality properties. The overwhelming majority of our borrowers received relief under the Coronavirus Aid, Relief and Economic Security Act (the
“CARES Act”), but the governmental fiscal and monetary policies implemented in the face of the pandemic have begun to wind-down or in some cases have
ceased. The travel and leisure industry has started to recover from the effects of COVID-19 in 2022. However, depending on the pace of recovery, we may
continue to have additional increases in our loan loss reserves and ultimately an increase in loan losses, and such losses may be material.
COVID-19, or any future pandemic, could also have material and adverse effects on our ability to successfully operate and on our financial condition,
results of operations and cash flows due to, among other factors:
•
•
•
•
•
•
a complete or partial closure of, or other operational issues at, one or more of our properties resulting from government or tenant action;
reduced economic activity severely impacting our tenants' businesses, financial condition and liquidity or causing one or more of our tenants to be unable
to meet their obligations to us in full, or at all, or to otherwise seek modifications of such obligations;
difficulty accessing debt and equity capital on attractive terms, or at all, and a severe disruption and instability in the global financial markets or
deteriorations in credit and financing conditions, which may affect our access to capital necessary to fund business operations or address maturing
liabilities on a timely basis or our tenants' ability to fund their business operations and meet their obligations to us;
any impairment in value of our tangible or intangible assets that could be recorded as a result of weaker economic conditions;
a general decline in business activity and demand for real estate transactions, which could adversely affect our ability or desire to grow our portfolio of
properties; and
negative impacts to the credit quality of our tenants and any related impact to tenant rent collections.
The extent to which the lingering effects of COVID-19 will continue to impact the Company’s operations and those of its tenants and business partners
will depend on future developments, which are highly uncertain and cannot be predicted with confidence, including whether there are any new outbreaks of the
virus or new variants. Nevertheless, COVID-19 presents uncertainty and risk with respect to the Company's business, financial condition, results of operations and
cash flows. Management will continue to monitor the impact of COVID-19 to the Company’s business, financial condition, results of operations, cash flow, and
occupancy.
The COVID-19 pandemic has had, and may continue to have, significant impacts on workplace practices and those changes, or other office space utilization
trends, could impact our business.
We believe closures of businesses and stay in place orders and the resulting remote working arrangements for non-essential personnel in response to the
COVID-19 pandemic has resulted in long-term changed work practices that could negatively impact us and our business. For example, the increased adoption of
and familiarity with remote work practices, and the recent increase in tenants seeking to sublease their leased space, has resulted in decreased demand for office
space. Further, prior to the onset of the COVID-19 pandemic, telecommuting, flexible work schedules, open workspaces and teleconferencing had become
increasingly common and there was an increasing trend among some businesses to utilize shared office space and co-working spaces. As a result, there has been a
general trend in office real estate for tenants to decrease the space they occupy
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per employee. Our tenants may elect to not renew their leases, or to renew them for less space than they currently occupy, which could increase vacancy, place
downward pressure on occupancy, rental rates and income and property valuation. The need to reconfigure leased office space, either in response to the COVID-
19 pandemic, to new tenants’ needs, to modify utilization or for other reasons, may impact space requirements and also may require us to spend increased amounts
for tenant improvements. If substantial reconfiguration of the tenant’s space is required, the tenant may find it more advantageous to relocate than to renew its
lease and renovate the existing space. All of these factors could have a material adverse effect on our business, financial condition, results of operations, cash flow
our or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Risks Related to Conflicts of Interest
Neither the Master Services Agreement nor the Investment Management Agreement may be terminated by us (except in limited circumstances for cause in the
case of the Master Services Agreement) and the Master Services Agreement may be assigned by the Administrator in certain circumstances without our
consent, either or both of which may have a material adverse effect on us.
We and our lending subsidiaries are parties to the Master Services Agreement pursuant to which the Administrator provides, or arranges for other service
providers to provide, management and administrative services to us and all of our direct and indirect subsidiaries. We are obligated to pay the Administrator the
Revised Incentive Fee (see “Item 1—Business—Master Services Agreement”) and market rate transaction fees for transactional and other services that the
Administrator elects to provide to us. Pursuant to the terms of the Master Services Agreement, the Administrator has the right to provide any transactional services
to us that we would otherwise engage a third-party to provide.
The Master Services Agreement renews automatically each year. The Administrator may assign the Master Services Agreement without our consent to
one of its affiliates or an entity that is a successor through merger or acquisition of the business of the Administrator. We generally may terminate the Master
Services Agreement only in the event of a material breach, fraud, gross negligence or willful misconduct by or, in certain limited circumstances, a change of
control of the Administrator that our independent directors determine to be materially detrimental to us and our subsidiaries as a whole. We do not have the right
to terminate the Master Services Agreement solely for the poor performance of our operations. In addition, CIM Urban does not have the right to terminate the
Investment Management Agreement under any circumstances.
Moreover, any removal of Urban GP Administrator as manager of CIM Urban GP pursuant to the Master Services Agreement or the CIM Urban
Partnership Agreement would not affect the rights of the Administrator under the Master Services Agreement or the Operator under the Investment Management
Agreement. Accordingly, the Administrator would continue to provide the Base Services and receive any Revised Incentive Fee, and the Administrator or the
applicable service provider would continue to provide the transactional services and receive related transaction fees, under the Master Services Agreement, and the
Operator would continue to receive the management fee under the Investment Management Agreement.
The Administrator and Operator are entitled to receive fees for the services they provide regardless of our performance, which may reduce their incentive to
devote time and resources to our portfolio.
Pursuant to the Master Services Agreement, the Administrator is entitled to receive additional fees for the provision of certain transactional and other
services at fair market rates approved by our independent directors. Additionally, the Operator is entitled to receive an asset management fee based upon our net
asset value attributable to common stockholders. See “Item 1—Business—Investment Management Agreement.” The Administrator’s and the Operator’s
entitlement to substantial non-performance based compensation might reduce their incentive to devote time and effort to seeking profitable opportunities for our
portfolio.
We may be obligated to pay the Operator quarterly incentive compensation even if we incur a net loss during a particular quarter.
The Operator is entitled to incentive compensation based on our FFO, which rewards our Operator if our quarterly pre-incentive fee FFO exceeds 1.75%
(7.0% annualized) of the Adjusted Common Equity. Our pre-incentive fee FFO for a particular quarter for incentive compensation purposes excludes the effect of
any unrealized gains, losses, or other items during that quarter that do not affect realized net income, even if these adjustments result in a net loss on our statement
of operations for that quarter. Thus, we may be required to pay the Operator incentive compensation for a fiscal quarter even if we incur a net loss for that quarter
as determined in accordance with GAAP.
The Operator may undertake transactions that are motivated, in whole or in part, by a desire to increase its compensation.
The Operator is entitled to receive an asset management fee based upon our net asset value attributable to common stockholders, which may provide an
incentive for the Operator to deploy our capital to assets that are riskier than we would
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otherwise acquire, regardless of the anticipated long-term performance of such assets. The Operator may also recommend the disposition of assets that are
beneficial to CIM Urban’s operations in order to fund such acquisitions. For a discussion of the broad discretion that may be exercised by the Operator in our
business, see “—Each of the Administrator and Operator provides services to us under broad mandates, and our Board of Directors may not necessarily be
involved in each acquisition, disposition or financing decision made by the Administrator or Operator” below.
Each of the Administrator and Operator provides services to us under broad mandates, and our Board of Directors may not necessarily be involved in each
acquisition, disposition or financing decision made by the Administrator or Operator.
Each of the Administrator, under the Master Services Agreement, and the Operator, under the Investment Management Agreement, has broad discretion
and authority over our day-to-day operations and deployment of our capital in assets. While our Board of Directors periodically reviews the performance of our
businesses, our Board of Directors does not review all activities conducted by the Administrator and the Operator, and may not review certain proposed
acquisitions, dispositions or the implementation of other strategic initiatives before they occur. In addition, in reviewing our business operations, our directors may
rely on information provided to them by the Administrator or the Operator, as the case may be. The Administrator or the Operator may cause us to enter into
significant transactions or undertake significant activities that may be difficult or impossible to unwind, exit or otherwise remediate. Each of the Administrator and
the Operator has great latitude in the implementation of our strategies, including determining the types of assets that are appropriate for us. The decisions of the
Administrator and the Operator could therefore result in losses or returns that are substantially below our expectations, which could have a material adverse effect
on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on
our Common Stock or Preferred Stock.
The Operator, the Administrator and their respective affiliates engage in real estate activities that could compete with us and our subsidiaries, which could
result in decisions that are not in the best interests of our stockholders.
The Investment Management Agreement with the Operator and the Master Services Agreement with the Administrator do not prevent the Operator or the
Administrator, as applicable, and their respective affiliates from operating additional real estate assets or participating in other real estate opportunities, some of
which could compete with us and our subsidiaries. The Operator, the Administrator and their respective affiliates operate real estate assets and participate in
additional real estate activities having objectives that overlap with our own, and may thus face conflicts in the operation and allocation of real estate opportunities
between us, on the one hand, and such other real estate operations and activities, on the other hand. Allocation of real estate opportunities is at the discretion of the
Operator and or the Administrator and there is no guarantee that this allocation will be made in the best interest of our stockholders.
There may be conflicts of interest in allocating real estate opportunities to CIM Urban and other funds, vehicles and ventures operated by the Operator.
For example, the Operator serves as the operator of private funds formed to deploy capital in real estate and real estate-related assets located in metropolitan areas
that CIM Group has already qualified. There may be a significant overlap in the assets and strategies between us and such funds, and many of the same investment
personnel will provide services to both entities. Further, the Operator and its affiliates may in the future operate funds, vehicles and ventures that have overlapping
objectives with CIM Urban and therefore may compete with CIM Urban for opportunities. The ability of the Operator, the Administrator and their officers and
employees to engage in other business activities, including the operation of other vehicles operated by CIM Group or its affiliates, may reduce the time the
Operator and the Administrator spend managing our activities.
Certain of our directors and executive officers may face conflicts of interest related to positions they hold with the Operator, the Administrator, CIM Group
and their affiliates, which could result in decisions that are not in the best interest of our stockholders.
Some of our directors and executive officers are also part-owners, officers and or directors of the Operator, the Administrator, CIM Group and or their
respective affiliates. As a result, such directors and executive officers may owe fiduciary duties to these various other entities and their equity owners that may
from time to time conflict with the duties such persons owe to us. Further, these multiple responsibilities may create conflicts of interest for these individuals if
they are presented with opportunities that may benefit us and our other affiliates. These individuals may be incentivized to allocate opportunities to other entities
rather than to us. Their loyalties to other affiliated entities could result in actions or inactions that are detrimental to our business, strategy and opportunities.
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The business of CIM Urban is managed by Urban GP Administrator and we agreed in the Master Services Agreement to appoint an affiliate of CIM Group as
the manager of the general partner of CIM Urban, and the general partner of CIM Urban may only be removed from such position under limited
circumstances as provided in the CIM Urban Partnership Agreement.
Pursuant to the Master Services Agreement, we agreed to appoint an affiliate of CIM Group as the manager of the general partner of CIM Urban. While
currently that designated entity, Urban GP Administrator, is an affiliate of CIM Group, there can be no assurances that a different entity would not be appointed
the manager of the general partner of CIM Urban in the future. Moreover, we may only remove the Urban GP Administrator as the manager of CIM Urban GP for
“cause” (as defined in the Master Services Agreement). Removal for “cause” also requires the approval of the holders of at least 66 2/3% of our outstanding shares
of Common Stock. Upon removal, a replacement manager will be appointed by the independent directors.
Subject to the limitations set forth in the governing documents of CIM Urban and CIM Urban GP, Urban GP Administrator is given the power and
authority under the Master Services Agreement to manage, to direct the management, business and affairs of and to make all decisions to be made by or on behalf
of (1) CIM Urban GP and (2) CIM Urban. Subject to the other terms of the CIM Urban Partnership Agreement, CIM Urban GP has broad discretion over the
operations of CIM Urban. Accordingly, while we own indirectly all of the partnership interests in CIM Urban, except as set forth in the Master Services
Agreement and the rights specifically reserved to limited partners by the CIM Urban Partnership Agreement and applicable law, we will have no part in the
management and control of CIM Urban.
Risks Related to Our Organizational Structure
Provisions of our charter and bylaws and the MGCL may deter takeover attempts, which may limit the opportunity of our stockholders to sell their shares at a
favorable price.
Certain provisions of the MGCL, if applied to us, and our charter and bylaws could have the effect of inhibiting a third-party from making a proposal to
acquire us or impeding a change of control under circumstances that otherwise could provide our stockholders with the opportunity to realize a premium over the
then-prevailing market price of our Common Stock.
Maryland Takeover Statutes. The Maryland Business Combination Act could restrict the power of third parties who acquire, or seek to acquire, control of
us without the approval of our Board of Directors to complete mergers and other business combinations even if such transaction would be beneficial to
stockholders. “Business combinations” between such a third-party acquirer or its affiliate and us are prohibited for five years after the most recent date on which
the acquirer becomes an “interested stockholder.” An “interested stockholder” is defined as any person who beneficially owns 10% or more of the voting power of
our outstanding voting stock or an affiliate or associate of ours who, at any time within the two-year period immediately prior to the date in question, was the
beneficial owner of 10% or more of the voting power of our then outstanding stock. If our Board of Directors approved in advance the transaction that would
otherwise give rise to the acquirer attaining such status, the acquirer would not become an interested stockholder and, as a result, it could enter into a business
combination with us. Our Board of Directors may, however, provide that its approval is subject to compliance, at or after the time of approval, with any terms and
conditions determined by it. Even after the lapse of the five-year prohibition period, any business combination with an interested stockholder must be
recommended by our Board of Directors and approved by the affirmative vote of at least:
•
•
80% of the votes entitled to be cast by stockholders; and
two-thirds of the votes entitled to be cast by stockholders other than the interested stockholder and affiliates and associates thereof.
The super-majority vote requirements do not apply if, among other considerations, the transaction complies with a minimum price and form of
consideration requirements prescribed by the statute. The statute permits various exemptions from its provisions, including business combinations that are
exempted by the Board of Directors prior to the time that an interested stockholder becomes an interested stockholder. Our Board of Directors has, by resolution,
elected to opt out of this provision of the MGCL. However, our Board of Directors may by resolution elect to repeal the foregoing opt out from the business
combination provision of the MGCL.
The Maryland Control Share Acquisition Act provides that a holder of control shares of a Maryland corporation acquired in a control share acquisition
has no voting rights with respect to the control shares except to the extent approved by a vote of two-thirds of the votes entitled to be cast on the matter. Shares
owned by the acquiror, by officers or by employees who are directors of the corporation are excluded from shares entitled to vote on the matter. Control shares are
voting shares of stock that, if aggregated with all other shares of stock owned by the acquiror or in respect of which the acquiror is able to exercise or
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direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the acquiror to exercise voting power in electing directors within
one of the following ranges of voting power:
•
•
•
one-tenth or more but less than one-third;
one-third or more but less than a majority; or
a majority or more of all voting power.
Control shares do not include shares the acquiror is then entitled to vote as a result of having previously obtained stockholder approval or shares acquired
directly from the corporation. A control share acquisition means the acquisition of issued and outstanding control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition may compel the Board of Directors of the corporation to call a special meeting of
stockholders to be held within 50 days of demand to consider the voting rights of the shares. The right to compel the calling of a special meeting is subject to the
satisfaction of certain conditions, including an undertaking to pay the expenses of the meeting. If no request for a meeting is made, the corporation may itself
present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiror does not deliver an acquiring person statement as required by the statute, then the
corporation may, subject to certain limitations and conditions, redeem for fair value any or all of the control shares, except those for which voting rights have
previously been approved. Fair value is determined, without regard to the absence of voting rights for the control shares, as of the date of any meeting of
stockholders at which the voting rights of the shares are considered and not approved or, if no meeting is held, as of the date of the last control share acquisition by
the acquiror. If voting rights for control shares are approved at a stockholders meeting and the acquiror becomes entitled to exercise or direct the exercise of a
majority of the voting power, all other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of appraisal rights may
not be less than the highest price per share paid by the acquiror in the control share acquisition.
The control share acquisition statute does not apply to (a) shares acquired in a merger, consolidation or share exchange if the corporation is a party to the
transaction or (b) acquisitions approved or exempted by the charter or bylaws of the corporation. We have elected to opt out of this provision of the MGCL,
pursuant to a provision in our bylaws. However, our Board of Directors may, by amendment to our bylaws, opt in to the control share provisions of the MGCL in
the future.
Title 3, Subtitle 8, of the MGCL permits the Board of Directors of a Maryland corporation with at least three independent directors and a class of stock
registered under the Securities Exchange Act of 1934, as amended (such as the Company), without stockholder approval and notwithstanding any contrary
provision in its charter or bylaws, to implement certain takeover defenses, including: (i) a classified board; (ii) a two-thirds vote requirement to remove a director;
(iii) limiting the filling of any vacancy on the Board of Directors to only a majority of the remaining directors in office, even if the remaining directors do not
constitute a quorum; (iv) providing the board with the sole power to fix the number of directors; and (v) requiring the holders of up to a majority of voting stock to
call a special meeting of stockholders. Our charter provides that, except as may be provided by our Board of Directors in setting the terms of any class or series of
stock, we elect to be subject to the provisions of Subtitle 8 relating to the filling of vacancies on our Board of Directors. Through provisions in our charter and
bylaws unrelated to Subtitle 8, we already (1) require a two-thirds vote for the removal of any director from the Board of Directors, (2) vest in the Board of
Directors the exclusive power to fix the number of directorships, subject to limitations set forth in our charter and bylaws, and (3) require, unless called by the
chairman of our Board of Directors, our president, our chief executive officer or our Board of Directors, the request of stockholders entitled to cast not less than a
majority of all votes entitled to be cast on a matter at such meeting to call a special meeting. We have not elected to classify our Board of Directors.
Advance notice bylaw. Our bylaws contain advance notice procedures for the introduction by a stockholder of new business and the nomination of
directors by a stockholder. These provisions could, in certain circumstances, discourage proxy contests and make it more difficult for you and other stockholders
to elect stockholder-nominated directors and to propose and, consequently, approve stockholder proposals opposed by management.
Our charter, bylaws, the partnership agreement for CIM Urban and Maryland law also contain other provisions that may delay, defer or prevent a
transaction or a change of control that might involve a premium price for our Common Stock or otherwise be in the best interest of our stockholders.
The Operator may change its acquisition process, or elect not to follow it, without stockholder consent at any time, which may adversely affect returns on our
assets.
While we are principally focused on Class A and creative office assets in vibrant and improving metropolitan communities throughout the United States
(including improving and developing such assets), we may also participate more
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actively in other CIM Group real estate strategies and product types, including, but not limited to, multi-family residential and or real estate debt, in order to
broaden our participation in CIM Group’s platform and capabilities for the benefit of all classes of stockholders. This may include, without limitation, engaging in
real estate development activities as well as investing in other product types directly, side-by-side with one or more funds of CIM Group, through direct
deployment of capital in a CIM Group real estate or debt fund, or deploying capital in or originating loans that are secured directly or indirectly by properties
primarily located in Qualified Communities that meet our strategy. Such loans may include limited and or non-recourse junior (mezzanine, B-note or 2nd lien) and
senior acquisition, bridge or repositioning loans. Stockholders will not have any approval rights with respect to any expansion or change in strategies or future
composition of our assets. Our Operator determines our policies regarding deployment of capital into real estate assets, financing, growth and debt capitalization.
Our Operator may change these and other policies without a vote of our stockholders. In addition, there can be no assurance that the Operator will follow its
acquisition process in relation to the identification and acquisition or origination of prospective assets. As a result, the nature of the composition of our assets
could change without the consent of our stockholders. Changes in the Operator’s acquisition process and or philosophy may result in, among other things, inferior
due diligence and transaction standards, which may adversely affect the performance of our assets. If we are unsuccessful in expanding into new real estate
activities or our changes in strategies or future deployment of our capital turn out to be unsuccessful, it could have a material adverse effect on our business,
financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common
Stock or Preferred Stock.
The power of the Board of Directors to revoke our REIT election without stockholder approval may cause adverse consequences to our stockholders.
Our organizational documents permit our Board of Directors to revoke or otherwise terminate our REIT election, without the approval of our
stockholders, if the Board of Directors determines that it is no longer in our best interest to continue to qualify as a REIT. In such a case, we would become subject
to U.S. federal, state and local income tax on our net taxable income and we would no longer be required to distribute most of our net taxable income to our
stockholders, which could have adverse consequences on the total return to our holders of Common Stock.
The MGCL or our charter may limit the ability of our stockholders or us to recover on a claim against a director or officer who negligently causes us to incur
losses.
The MGCL provides that a director has no liability in such capacity if he or she performs his or her duties in good faith, in a manner he or she reasonably
believes to be in our best interests and with the care that an ordinarily prudent person in a like position would use under similar circumstances. A director who
performs his or her duties in accordance with the foregoing standards should not be liable to us or any other person for failure to discharge his or her obligations as
a director.
In addition, our charter provides that our directors and officers will not be liable to us or our stockholders for monetary damages unless the director or
officer actually received an improper benefit or profit in money, property or services, or is adjudged to be liable to us or our stockholders based on a finding that
his or her action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. Our
charter and bylaws also require us, to the maximum extent permitted by Maryland law, to indemnify and, without requiring a preliminary determination of the
ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to any individual who is a present or
former director or officer and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity or any
individual who, while a director or officer and at our request, serves or has served as a director, officer, partner, trustee, member or manager of another
corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or
threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. With the approval of our Board of Directors, we may
provide such indemnification and advance for expenses to any individual who served a predecessor of the Company in any of the capacities described above and
any employee or agent of the Company or a predecessor of the Company, including our Administrator and its affiliates.
We also are permitted to purchase and we currently maintain insurance or provide similar protection on behalf of any directors, officers, employees and
agents, including our Administrator and its affiliates, against any liability asserted which was incurred in any such capacity with us or arising out of such status.
This may result in us having to expend significant funds, which could have a material adverse effect on our business, financial condition, results of operations,
cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
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The liability of the Administrator and the Operator to us under the Master Services Agreement and the Investment Management Agreement, respectively, is
limited and we and CIM Urban have agreed to indemnify the Administrator and the Operator, respectively, against certain liabilities. As a result, we could
experience poor performance or losses for which neither the Administrator nor the Operator would be liable.
Pursuant to the Master Services Agreement, the Administrator has no responsibility other than to provide its services in good faith and will not be
responsible for any action of our Board of Directors that follows or declines to follow the Administrator’s advice or recommendations. Under the terms of the
Master Services Agreement, none of the Administrator or any of its affiliates providing services under the Master Services Agreement will be liable to us, any
subsidiary of ours party to the Master Services Agreement, any governing body (including any director or officer), stockholder or partner of any such entity for
acts or omissions made pursuant to or in accordance with the Master Services Agreement, other than acts or omissions constituting fraud, willful misconduct,
gross negligence or violation of certain laws or any other intentional or criminal wrongdoing or breach of the Master Services Agreement. Moreover, the aggregate
liability of any such entities and persons pursuant to the Master Services Agreement is capped at the aggregate amount of the Base Service Fee and any transaction
fees previously paid to the Administrator in the two most recent calendar years. In addition, we have agreed to indemnify the Administrator and any of its affiliates
providing services under the Master Services Agreement, any affiliates of the Administrator and any directors, officers, stockholders, agents, subcontractors,
contractors, delegates, members, partners, shareholders, employees and other representatives of each of them from and against all actions, lawsuits, investigations,
proceedings or claims except to the extent resulting from such person’s fraud, willful misconduct, gross negligence or violation of certain laws or any other
intentional or criminal wrongdoing or breach of the Master Services Agreement.
Pursuant to the Investment Management Agreement, the Operator is not liable to CIM Urban, CIM Urban GP or any manager or director of CIM
Urban GP for, and CIM Urban has agreed to indemnify the Operator against any losses, claims, damages or liabilities to which it may become subject in
connection with, among other things, (1) any act or omission performed or omitted by it or for any costs, damages or liabilities arising therefrom, in the absence of
fraud, gross negligence, willful misconduct or a breach of the Investment Management Agreement or (2) any losses due to the negligence of any employees,
brokers, or other agents of CIM Urban.
Our operating performance is subject to risks associated with the real estate industry.
Risks Related to Real Estate Assets
Real estate assets are subject to various risks and fluctuations and cycles in value and demand, many of which are beyond our control. Certain events may
decrease cash available for distributions, as well as the value of our properties. These events include, but are not limited to:
•
•
•
•
•
•
•
•
•
•
•
adverse changes in economic and socioeconomic conditions (including as a result of COVID-19 and the emergence of new variants of the virus);
vacancies or our inability to rent space on favorable terms;
adverse changes in financial conditions of buyers, sellers and tenants of properties;
inability to collect rent from tenants;
competition from real estate investors with significant capital, including but not limited to real estate operating companies, publicly-traded REITs
and institutional investment funds;
reductions in the level of demand for office and hotel space and changes in the relative popularity of properties;
increases in the supply of office and hotel space;
fluctuations in interest rates and the availability of credit, which could adversely affect our ability, or the ability of buyers and tenants of properties,
to obtain financing on favorable terms or at all;
dependence on third parties to provide leasing, brokerage, onsite property management and other services with respect to certain of our assets;
increases in expenses, including insurance costs, labor costs, utility prices, real estate assessments and other taxes and costs of compliance with laws,
regulations and governmental policies, and our inability to pass on some or all of these increases to our tenants; and
changes in, and changes in enforcement of, laws, regulations and governmental policies, including, without limitation, health, safety, environmental,
zoning, real estate tax, federal and state laws, governmental fiscal policies and the ADA.
The outbreak of COVID-19 that began in the fourth quarter of 2019 led to an economic slowdown. During periods of economic slowdown or recession,
rising interest rates or declining demand for real estate, or the public perception that any of
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these events may occur, could result in a general decline in rents or an increased incidence of defaults under existing leases. If we cannot operate our properties so
as to meet our financial expectations, our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to
maintain our level of distributions on our Common Stock or Preferred Stock may be negatively impacted.
There can be no assurance that we will achieve our economic objectives.
A significant portion of our properties, by aggregate net operating income and square feet, are located in California. We are dependent on the California real
estate market and economy, and are therefore susceptible to risks of events in the California market that could adversely affect our business, such as adverse
market conditions, changes in local laws or regulations and natural disasters.
Because our properties in California represent a significant portion of our portfolio by aggregate net operating income and square feet, we are exposed to
greater economic risks than if we owned a more geographically diverse portfolio. We are susceptible to adverse developments in the California economic and
regulatory environments (such as business layoffs or downsizing, industry slowdowns, relocations of businesses, increases in real estate and other taxes, costs of
complying with governmental regulations or increased regulation and other factors) as well as natural disasters that occur in these areas (such as earthquakes,
floods, fires and other events). In addition, the State of California is regarded as more litigious and more highly regulated and taxed than many states, which may
reduce demand for office and hotel space in California. Any adverse developments in the economy or real estate markets in California, or any decrease in demand
for office and hotel space resulting from the California regulatory or business environments, could have a material adverse effect on our business, financial
condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or
Preferred Stock.
Capital and credit market conditions may adversely affect demand for our properties and the overall availability and cost of credit.
In periods when the capital and credit markets experience significant volatility, demand for our properties and the overall availability and cost of credit
may be adversely affected. No assurances can be given that the capital and credit market conditions will not have a material adverse effect on our business,
financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common
Stock or Preferred Stock.
In addition, we could be adversely affected by significant volatility in the capital and credit markets as follows:
•
•
the tenants in our office properties may experience a deterioration in their sales or other revenue, or experience a constraint on the availability of
credit necessary to fund operations, which in turn may adversely impact those tenants’ ability to pay contractual base rents and tenant recoveries.
Some tenants may terminate their occupancy due to an inability to operate profitably for an extended period of time, impacting our ability to
maintain occupancy levels; and
constraints on the availability of credit to tenants, necessary to purchase and install improvements, fixtures and equipment and to fund business
expenses, could impact our ability to procure new tenants for spaces currently vacant in existing office properties or properties under development.
Tenant concentration increases the risk that cash flow could be interrupted.
We are, and expect that we will continue to be, subject to a degree of tenant concentration at certain of our properties and or across multiple properties.
Kaiser, which occupies space in one of our Oakland, California properties, accounted for 30.9% of our annualized rental income for the year ended December 31,
2021. In the event that a tenant occupying a significant portion of one or more of our properties or whose rental income represents a significant portion of the
rental revenue at such property or properties were to experience financial weakness or file bankruptcy, it could have a material adverse effect on our business,
financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common
Stock or Preferred Stock.
If a major tenant declares bankruptcy, we may be unable to collect balances due under relevant leases, which could have a material adverse effect on our
financial condition and ability to pay distributions to our stockholders.
The bankruptcy or insolvency of our tenants may adversely affect the income produced by our properties. Under bankruptcy law, a tenant cannot be
evicted solely because of its bankruptcy and has the option to assume or reject any unexpired lease. If the tenant rejects the lease, any resulting claim we have for
breach of the lease (other than to the extent of any collateral securing the claim) will be treated as a general unsecured claim. Our claim against the bankrupt tenant
for unpaid and future rent will be subject to a statutory cap that might be substantially less than the remaining rent actually owed under the lease, and it is unlikely
that a bankrupt tenant that rejects its lease would pay in full amounts it owes us under the lease. Even if
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a lease is assumed and brought current, we still run the risk that a tenant could condition lease assumption on a restructuring of certain terms, including rent, that
would have an adverse impact on us. Any shortfall resulting from the bankruptcy of one or more of our tenants could adversely affect our business, financial
condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or
Preferred Stock.
In addition, the financial failure of, or other default by, one or more of the tenants to whom we have exposure could have an adverse effect on the results
of our operations. While we evaluate the creditworthiness of our tenants by reviewing available financial and other pertinent information, there can be no
assurance that any tenant will be able to make timely rental payments or avoid defaulting under its lease. If any of our tenants’ businesses experience significant
adverse changes, they may fail to make rental payments when due, exercise early termination rights (to the extent such rights are available to the tenant) or declare
bankruptcy. A default by a significant tenant or multiple tenants could cause a material reduction in our revenues and operating cash flows. In addition, if a tenant
defaults, we may incur substantial costs in protecting our asset.
We have assumed, and in the future may assume, liabilities in connection with our property acquisitions, including unknown liabilities.
In connection with the acquisition of properties, we may assume existing liabilities, some of which may have been unknown or unquantifiable at the time
of the acquisition of assets. Unknown liabilities might include liabilities for cleanup or remediation of undisclosed environmental conditions, claims of tenants or
other persons dealing with the sellers prior to our acquisition of the properties, tax liabilities, and accrued but unpaid liabilities whether incurred in the ordinary
course of business or otherwise. If the magnitude of such unknown liabilities is high, either singly or in the aggregate, it could adversely affect our business,
financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common
Stock or Preferred Stock.
We may be adversely affected by trends in the office real estate industry.
Telecommuting, flexible work schedules, open workspaces and teleconferencing are becoming more common. These practices enable businesses to
reduce their space requirements. There is also an increasing trend among some businesses to utilize shared office space and co-working spaces. A continuation of
the movement towards these practices could over time erode the overall demand for office space and, in turn, place downward pressure on occupancy, rental rates
and property valuations.
We may be unable to renew leases or lease vacant office space.
As of December 31, 2021, 20.1% of the rentable square footage of our office portfolio was available for lease, and 14.7% of the occupied square footage
of such office properties was scheduled to expire in 2022. The local economic environment may make the renewal of these leases more difficult, or renewal may
occur at rental rates equal to or below existing rental rates. As a result, portions of our office properties may remain vacant for extended periods of time. In
addition, we may have to offer substantial rent abatements, tenant improvements, concessions, early termination rights or below-market renewal options to attract
new tenants or retain existing tenants. The factors described above could have a material adverse effect on our business, financial condition, results of operations,
cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
A significant portion of our net operating income is expected to come from our hotel and, as a result, our operating performance is subject to the cyclical
nature of the lodging industry.
The performance of the lodging industry has historically been closely linked to the performance of the general economy and, specifically, growth in U.S.
gross domestic product. Fluctuations in lodging demand and, therefore, hotel operating performance, are caused largely by general economic and local market
conditions, which subsequently affect levels of business and leisure travel. For instance, increased fuel costs, natural disasters or disruptive global political events,
including terrorist activity and war, are a few factors that could affect an individual’s willingness to travel.
In addition to general economic conditions, lodging supply is an important factor that can affect the lodging industry’s performance. Industry
overbuilding and the introduction of new concepts and products such as Airbnb®, Homeaway® and VRBO® have the potential to further exacerbate the negative
impact of an economic recession. Room rates and occupancy, and thus RevPAR, tend to increase when demand growth exceeds supply growth. Further, the
success of our hotel property depends largely on the property operator’s ability to adapt to dominant trends, competitive pressures and consolidation, as well as
disruptions such as consumer spending patterns, changing demographics and the availability of labor.
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An adverse change in lodging fundamentals could result in returns that are substantially below our expectations or result in losses, which could adversely
affect our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions
on our Common Stock or Preferred Stock.
The outbreak of a highly infectious, contagious or widespread disease, such as COVID-19, could reduce travel and adversely affect demand for our hotel.
Our hotel operations are sensitive to the willingness and ability of our guests to travel. The outbreak of highly infectious, contagious or widespread
diseases or global health emergencies will likely cause decreases in both discretionary and business travel and reduce the number of guests that visit our hotel. The
degree of such a decrease will likely be worsened in the event such a disease causes a disruption in air or other forms of travel used by guests of our hotel. In the
event a person having such a disease visits or works at our hotel, the operations at our hotel will likely be disrupted.
The spread of COVID-19 in the United States and the resulting restrictions on and cancellations of travel, meetings and social gatherings has impacted
the operations of our hotel in Sacramento, California. The pandemic and related restrictions depressed the net operating income of our hotel in 2021 and, based on
current expectations, it is highly likely that the net operating income of our hotel will continue to be depressed for the first half of 2022.
The seasonality of the lodging industry may cause quarterly fluctuations in our revenues.
The lodging industry is seasonal in nature, which may cause quarterly fluctuations in our revenues, occupancy levels, room rates, operating expenses and
cash flows. Our quarterly earnings may be adversely affected by factors outside our control, including timing of holidays, weather conditions, poor economic
factors and competition in the area of our hotel. We can provide no assurances that our cash flows will be sufficient to offset any shortfalls that occur as a result of
these fluctuations. As a result, we may have to enter into short-term borrowings in certain quarters in order to make distributions to our stockholders, and we can
provide no assurances that such borrowings will be available on favorable terms, if at all. Consequently, volatility in our financial performance resulting from the
seasonality of the lodging industry could adversely affect our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service
obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
The increasing use of online travel intermediaries by consumers may adversely affect our profitability.
Some of our hotel rooms are booked through online travel intermediaries, including, but not limited to, Travelocity.com, Expedia.com and Priceline.com.
As online bookings increase, these intermediaries may demand higher commissions, reduced room rates or other significant contract concessions. Moreover, some
of these online travel intermediaries are attempting to offer hotel rooms as a commodity, by increasing the importance of price and general indicators of quality
(such as “three-star downtown hotel”) at the expense of brand identification. These intermediaries hope that consumers will develop brand loyalties to their
reservations systems rather than to particular hotels. Although most of the business for our hotel is expected to be derived from consumer direct and traditional
hotel channels, such as travel agencies, corporate accounts, meeting planners and recognized wholesale operators, if the amount of sales made through online
intermediaries increases significantly, room revenues may be lower than expected, which could adversely affect our business, financial condition, results of
operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Increased use of technology may reduce the need for business-related travel.
The increased use of teleconference and video-conference technology by businesses could result in decreased business travel as companies increase the
use of technologies that allow multiple parties from different locations to participate at meetings without traveling to a centralized meeting location. To the extent
that such technologies play an increased role in day-to-day business and the necessity for business-related travel decreases, hotel room demand may decrease,
which could adversely affect our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain
our level of distributions on our Common Stock or Preferred Stock.
We are subject to risks associated with the employment of hotel personnel, particularly with respect to unionized labor.
Our third-party manager is responsible for hiring and maintaining the labor force at our hotel. As owner of our hotel, we are responsible for and subject to
many of the costs and risks generally associated with the hotel labor force, particularly with respect to unionized labor. From time to time, hotel operations may be
disrupted as a result of strikes, lockouts, public demonstrations or other negative actions and publicity. We also may incur increased legal costs and indirect labor
costs as a result of contract disputes or other events. The resolution of labor disputes or re-negotiated labor contracts could lead to
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increased labor costs, either by increases in wages or benefits or by changes in work rules that raise hotel operating costs. We do not have the ability to affect the
outcome of these negotiations.
We may be unable to deploy capital in a way that grows our business and, even if consummated, we may fail to successfully integrate and operate acquired
properties.
We plan to deploy capital in additional real estate assets as opportunities arise. Our ability to do so on favorable terms and or successfully integrate and
operate them is subject to the following significant risks:
• we may be unable to deploy capital in additional real estate assets because of competition from real estate investors with better access to less
expensive capital, including real estate operating companies, publicly-traded REITs and investment funds;
• we may acquire properties that are not accretive to our results upon acquisition, and we may not successfully manage and lease those properties to
•
•
meet our expectations;
competition from other potential acquirers may significantly increase purchase prices;
acquired properties may be located in new markets where we may face risks associated with a lack of market knowledge or understanding of the
local economy, lack of business relationships in the area and unfamiliarity with local governmental and permitting procedures;
• we may be unable to generate sufficient cash from operations or obtain the necessary debt or equity financing to consummate a transaction on
favorable terms or at all;
• we may need to spend more money than anticipated to make necessary improvements or renovations to acquired properties;
• we may spend significant time and money on potential transactions that we do not consummate;
• we may be unable to quickly and efficiently integrate new acquisitions into our existing operations;
• we may suffer higher than expected vacancy rates and or lower than expected rental rates; and
• we may acquire properties without any recourse, or with only limited recourse, for liabilities against the former owners of the properties.
If we cannot complete real estate transactions on favorable terms, or operate acquired assets to meet our goals or expectations, our business, financial
condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or
Preferred Stock could be materially adversely affected.
We may be unable to successfully expand our operations into new markets.
The risks described in the immediately preceding risk factor that are applicable to our ability to acquire and successfully integrate and operate properties
in the markets in which our properties are located are also applicable to our ability to acquire and successfully integrate and operate properties in new markets. In
addition to these risks, we may not possess the same level of familiarity with the dynamics and market conditions of certain new markets that we may enter, which
could adversely affect our ability to expand into those markets. We may be unable to build a significant market share or achieve a desired return on our assets in
new markets. If we are unsuccessful in expanding into new markets, it could have a material adverse effect on our business, financial condition, results of
operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Certain of our properties were subject to impairment charges prior to their sales, and any of our properties may be subject to impairment charges in the
future.
We routinely evaluate our assets for impairment indicators (we recorded no impairment of long-lived assets for the years ended December 31, 2021 and
2020). The judgment regarding the existence and magnitude of impairment indicators is based on factors such as market conditions, tenant performance and lease
structure. For example, the early termination of, or default under, a lease by a tenant may lead to an impairment charge. If we determine that an impairment has
occurred, we will be required to make a downward adjustment to the net carrying value of the property, which could have a material adverse effect on our results
of operations in the period in which the impairment charge is recorded. Negative developments in the real estate market may cause management to reevaluate the
business and macro-economic assumptions used in its impairment analysis. Changes in management’s assumptions based on actual results may have a material
impact on the Company’s financial statements.
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We may obtain only limited warranties when we purchase a property and typically have only limited recourse in the event our due diligence did not identify
any issues that lower the value of our property.
The seller of a property often sells such property in “as is” condition on a “where is” basis and “with all faults,” without any warranties of merchantability
or fitness for a particular use or purpose. In addition, purchase agreements may contain only limited warranties, representations and indemnifications that survive
for only a limited period after the closing and with a cap on recoverable damages. In the event we purchase a property with a limited warranty, there will be an
increased risk that we will lose some or all of our capital in the property.
We may be unable to sell a property if or when we decide to do so, including as a result of uncertain market conditions.
Real estate assets are, in general, relatively illiquid and may become even more illiquid during periods of economic downturn. As a result, we may not be
able to sell our properties quickly or on favorable terms in response to changes in the economy or other conditions when it otherwise may be prudent to do so. In
addition, certain significant expenditures generally do not change in response to economic or other conditions, including debt service obligations, real estate taxes,
and operating and maintenance costs. This combination of variable revenue and relatively fixed expenditures may result, under certain market conditions, in
reduced earnings. Therefore, we may be unable to adjust our portfolio promptly in response to economic, market or other conditions, which could adversely affect
our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on
our Common Stock or Preferred Stock.
Some of our leases may not include periodic rental increases, or the rental increases may be less than the fair market rate at a future point in time. In
either case, the value of the leased property to a potential purchaser may not increase over time, which may restrict our ability to sell that property, or if we are
able to sell that property, may result in a sale price less than the price that we paid to purchase the property or the price that could be obtained if the rental income
was at the then-current market rate.
We expect to hold our various real properties until such time as we decide that a sale or other disposition is appropriate given our business objectives. Our
ability to dispose of properties on advantageous terms or at all depends on certain factors beyond our control, including competition from other sellers and the
availability of attractive financing for potential buyers of our properties. We cannot predict the various market conditions affecting real estate assets which will
exist at any particular time in the future. Due to the uncertainty of market conditions which may affect the disposition of our properties, we cannot assure our
stockholders that we will be able to sell such properties at a profit or at all in the future. Accordingly, the extent to which our stockholders will receive cash
distributions and realize potential appreciation on our real estate assets will depend upon fluctuating market conditions. Furthermore, we may be required to
expend funds to correct defects or to make improvements before a property can be sold. We cannot assure our stockholders that we will have funds available to
correct such defects or to make such improvements.
We may be unable to secure funds for our future long-term liquidity needs.
Our long-term liquidity needs will consist primarily of funds necessary for acquisitions of assets, development or repositioning of properties, capital
expenditures, refinancing of indebtedness, SBA 7(a) loan originations, paying distributions on our Preferred Stock or any other preferred stock we may issue, any
future repurchase and or redemption of our Preferred Stock (if we choose, or are required, to pay the redemption price in cash instead of in shares of our Common
Stock), and distributions on our Common Stock. We may not have sufficient funds on hand or may not be able to obtain additional financing to cover all of these
long-term cash requirements. The nature of our business, and the requirements imposed by REIT rules that we distribute a substantial majority of our REIT
taxable income on an annual basis in the form of dividends, may cause us to have substantial liquidity needs over the long-term. We will seek to satisfy our long-
term liquidity needs through one or more of the following methods: (i) offerings of shares of Common Stock, Preferred Stock or other equity and or debt securities
of the Company; (ii) credit facilities and term loans; (iii) the addition of senior recourse or non-recourse debt using target acquisitions as well as existing assets as
collateral; (iv) the sale of existing assets; and or (v) cash flows from operations. These sources of funding may not be available on attractive terms or at all. If we
cannot obtain additional funding for our long-term liquidity needs, our assets may generate lower cash flow or decline in value, or both, which may cause us to sell
assets at a time when we would not otherwise do so and could have a material adverse effect on our business, financial condition, results of operations, cash flow
or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Income from our long-term leases is an important source of our cash flow from operations and is subject to risks related to increases in expenses and
inflation.
We are exposed to risks related to increases in market lease rates and inflation, as income from long-term leases is an important source of our cash flow
from operations. Leases of long-term duration or which include renewal options that specify
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a maximum rate increase may result in below-market lease rates over time if we do not accurately estimate inflation or market lease rates. Provisions of our leases
designed to mitigate the risk of inflation and unexpected increases in market lease rates, such as periodic rental increases, may not adequately protect us from the
impact of inflation or unexpected increases in market lease rates. If we are subject to below-market lease rates on a significant number of our properties pursuant
to long-term leases and our operating and other expenses are increasing faster than anticipated, our business, financial condition, results of operations, cash flow or
our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock could be materially adversely
affected.
We may finance properties with lock-out provisions, which may prohibit us from selling a property or may require us to maintain specified debt levels for a
period of years on some properties.
A lock-out provision is a provision that prohibits the prepayment of a loan during a specified period of time. Lock-out provisions may include terms that
provide strong financial disincentives for borrowers to prepay their outstanding loan balance. If a property is subject to a lock-out provision, we may be materially
restricted from or delayed in selling or otherwise disposing of or refinancing such property. Lock-out provisions may prohibit us from reducing the outstanding
indebtedness with respect to any properties, refinancing such indebtedness at maturity, or increasing the amount of indebtedness with respect to such properties.
Lock-out provisions could impair our ability to take other actions during the lock-out period that could be in the best interests of our stockholders and, therefore,
may have an adverse impact on the value of our securities relative to the value that would result if the lock-out provisions did not exist. In particular, lock-out
provisions could preclude us from participating in major transactions that could result in a disposition of our assets or a change of control even though that
disposition or change of control might be in the best interests of our stockholders.
Increased operating expenses could reduce cash flow from operations and funds available to deploy capital or make distributions.
Our properties are subject to operating risks common to real estate in general, any or all of which may negatively affect us. If any property is not fully
occupied or if rents are payable (or are being paid) in an amount that is insufficient to cover operating expenses that are our responsibility under the lease, we
could be required to expend funds in excess of such rents with respect to that property for operating expenses. Our properties are subject to increases in tax rates,
utility costs, insurance costs, repairs and maintenance costs, administrative costs and other operating and ownership expenses. Our property leases may not require
the tenants to pay all or a portion of these expenses, in which event we may be responsible for these costs. If we are unable to lease properties on terms that require
the tenants to pay all or some of the properties’ operating expenses, if our tenants fail to pay these expenses as required or if expenses we are required to pay
exceed our expectations, we could have less funds available for future acquisitions or cash available for distributions to our stockholders.
The market environment may adversely affect our operating results, financial condition and ability to pay distributions to our stockholders.
Any deterioration of domestic or international financial markets could impact the availability of credit or contribute to rising costs of obtaining credit and
therefore, could have the potential to adversely affect the value of our assets, the availability or the terms of financing, our ability to make principal and interest
payments on, or refinance, any indebtedness and or, for our leased properties, the ability of our tenants to enter into new leasing transactions or satisfy their
obligations, including the payment of rent, under existing leases. The market environment also could affect our operating results and financial condition as
follows:
• Debt Markets—The debt market is sensitive to the macro environment, such as Federal Reserve policy, market sentiment, or regulatory factors
affecting the banking and commercial mortgage backed securities industries. Should overall borrowing costs increase, due to either increases in
index rates or increases in lender spreads, our operations may generate lower returns.
•
Real Estate Markets—While incremental demand growth has helped to reduce vacancy rates and support modest rental growth in recent years, and
while improving fundamentals have resulted in gains in property values, in many markets property values, occupancy and rental rates continue to be
below those previously experienced before the most recent economic downturn. If recent improvements in the economy reverse course, the
properties we acquire could substantially decrease in value after we purchase them. Consequently, we may not be able to recover the carrying amount
of our properties, which may require us to recognize an impairment charge or record a loss on sale in our earnings.
Real estate-related taxes may increase, and if these increases are not passed on to tenants, our income will be reduced.
We are required to pay property taxes for our properties, which can increase as property tax rates increase or as properties are assessed or reassessed by
taxing authorities. In California, pursuant to an existing state law commonly referred to
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as Proposition 13, all or portions of a property are reassessed to market value only at the time of “change in ownership” or completion of “new construction,” and
thereafter, annual property tax increases are limited to 2% of previously assessed values. As a result, Proposition 13 generally results in significant below-market
assessed values over time. From time to time, lawmakers and political coalitions have initiated efforts to repeal or amend Proposition 13, including by introducing
Proposition 15 on the California ballot in November 2020, which measure was not approved by voters. If successful in the future, these proposals could
substantially increase the assessed values and property taxes for our properties in California. Although some tenant leases may permit us to pass through such tax
increases to the tenants for payment, renewal leases or future leases may not be negotiated on the same basis. Tax increases not passed through to tenants could
have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to
maintain our level of distributions on our Common Stock or Preferred Stock.
We face risks associated with development, redevelopment, repositioning or construction of real estate projects.
We expect to engage in development, redevelopment, repositioning or construction of real estate projects, including, without limitation, deploying capital
in unimproved real properties, and will therefore face significant risks relating to such activities. We must rely on rental income and expense projections and
estimates of the fair market value of property upon completion of construction when agreeing upon a price at the time we acquire the property. If our projections
are inaccurate or we may pay too much for a property, our return on our assets could suffer. We may abandon any of these activities after we begin to explore them
and as a result we may lose deposits or fail to recover expenses already incurred. We may be unable to proceed with these activities because we cannot obtain
financing on favorable terms or at all. We may be unable to obtain, or face delays in obtaining, required zoning, land-use, building, occupancy, and other
governmental permits and authorizations, which could result in increased costs and could require us to abandon or substantially alter our plan for a project. We
may incur construction costs for a development project that exceed our original estimates due to increases in interest rates, which is the economic environment that
we expect to face in 2022, increased materials, labor, leasing or other costs, material shortages or supply chain delays, all of which are more likely in the current
inflationary environment, or unanticipated technical difficulties, which could make completion of the project less profitable because market rents may not increase
sufficiently to compensate for the increase in construction costs. We may even suspend development projects after construction has begun due to changes in
economic conditions or other factors, and this may result in the write-off of costs, payment of additional costs or increases in overall costs when the development
project is restarted. In addition, we will be subject to normal lease-up risks relating to newly constructed projects.
We face significant competition.
Our office portfolio competes with a number of developers, owners and operators of office real estate, many of which own properties similar to ours in
the same markets in which our properties are located. If our competitors offer space at rental rates below current market rates, or below the rental rates we
currently charge our tenants, we may lose existing or potential tenants and may not be able to replace them, and we may be pressured to reduce our rental rates
below those we currently charge or to offer more substantial rent abatements, tenant improvements, early termination rights or below-market renewal options in
order to retain tenants when our tenants’ leases expire. As a result of any of the foregoing factors, our business, financial condition, results of operations, cash flow
or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock may be materially adversely
affected.
Our hotel property competes for guests primarily with other hotels in the immediate vicinity of our hotel and secondarily with other hotels in the
geographic market of our hotel. An increase in the number of competitive hotels in these areas could have a material adverse effect on the occupancy, ADR and
RevPAR of our hotel.
War and Terrorism could harm our operating results.
The strength and profitability of our business depends on demand for and the value of our properties. The war between Russia and Ukraine and the
resulting economic sanctions imposed by many countries on Russia have led to disruption, instability and volatility in global markets and industries and are
expected to have a negative impact on the global economy. Disruption, instability, volatility and decline in global economic activity, whether caused by acts of
war, other acts of aggression or terrorism, in each case regardless where it occurs, could in turn harm the demand for and the value of our properties.
In addition, the public perception that certain locations are at greater risk for attack, such as major airports, ports, and rail facilities, may decrease the
demand for and the value of our properties near these sites. A decrease in demand could make it difficult for us to renew or re-lease our properties at these sites at
lease rates equal to or above historical rates. Terrorist attacks could have an adverse impact on our business even if they are not directed at our properties.
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Previous terrorist attacks and subsequent terrorist alerts have adversely affected the U.S. travel and hospitality industries since 2001, often
disproportionately compared to the effect on the overall economy. The extent of the impact that actual or threatened terrorist attacks in the United States or
elsewhere could have on domestic and international travel and our business in particular cannot be determined, but any such attacks or the threat of such attacks
could have a material adverse effect on travel and hotel demand and our ability to finance our hospitality business.
In addition, the terrorist attacks of September 11, 2001 have substantially affected the availability and price of insurance coverage for certain types of
damages or occurrences, and our insurance policies for terrorism include large deductibles and co-payments. Although we maintain terrorism insurance coverage
on our portfolio, the amount of our terrorism insurance coverage may not be sufficient to cover losses inflicted by terrorism and therefore could expose us to
significant losses and have a negative impact on our operations.
In connection with the ownership and operation of real estate assets, we may be liable for costs and damages related to environmental matters.
Environmental laws regulate, and impose liability for, releases of hazardous or toxic substances into the environment. Under some of these laws, an
owner or operator of real estate may be liable for costs related to soil or groundwater contamination on or migrating to or from its property. In addition, persons
who arrange for the disposal or treatment of hazardous or toxic substances may be liable for the costs of cleaning up contamination at the disposal site.
These laws often impose liability regardless of whether the person knew of, or was responsible for, the presence of the hazardous or toxic substances that
caused the contamination. The presence of, or contamination resulting from, any of these substances, or the failure to properly remediate them, may adversely
affect our ability to sell or rent our property, to borrow using the property as collateral or create lender’s liability for us. In addition, third parties exposed to
hazardous or toxic substances may sue for personal injury damages and or property damages. For example, some laws impose liability for release of or exposure
to asbestos-containing materials. As a result, in connection with our former, current or future ownership, operation, and development of real estate assets, or our
role as a lender for loans secured directly or indirectly by real estate properties, we may be potentially liable for investigation and cleanup costs, penalties and
damages under environmental laws.
Although many of our properties have been subjected to preliminary environmental assessments, known as Phase I assessments, by independent
environmental consultants that identify certain liabilities, Phase I assessments are limited in scope, and may not include or identify all potential environmental
liabilities or risks associated with a property. Unless required by applicable law, we may decide not to further investigate, remedy or ameliorate the liabilities
disclosed in the Phase I assessments.
Further, these or other environmental studies may not identify all potential environmental liabilities or accurately assess whether we will incur material
environmental liabilities in the future. If we do incur material environmental liabilities in the future, our business, financial condition, results of operations, cash
flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock could be materially
adversely affected.
Our real estate business is subject to risks from climate change.
Our real estate business is subject to risks associated with climate change. Climate change could trigger extreme weather and changes in precipitation,
temperature, and air quality, all of which may result in physical damage to, or a decrease in demand for, our properties located in the areas affected by these
conditions. Further, the assessment of the potential impact of climate change has impacted the activities of government authorities, the pattern of consumer
behavior, and other areas that impact the business environment in the United States, including, but not limited to, energy-efficiency measures, water use measures,
and land-use practices. The promulgation of policies, laws or regulations relating to climate change by governmental authorities in the U.S. and the markets in
which the Company owns real estate may require the Company to invest additional capital in our properties.
Most of our properties are located in California. To the extent that climate change impacts changes in weather patterns, our markets could experience
increases in extreme weather. For example, many of our properties are located in areas have been impacted by drought and, as such, face the risk of increased
water costs and potential fines and/or penalties for high consumption. There can be no assurances that we will successfully mitigate the risk of increased water
costs and potential fines and/or penalties for high consumption.
Climate change may also have indirect effects on our business by increasing the cost of, or decreasing the availability of, property insurance on terms we
find acceptable or at all, or by increasing the cost of energy (or water, as described above). There can be no assurance that climate change will not have a material
adverse effect on our financial condition or results of operations.
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Compliance with the ADA and fire, safety and other regulations may require us to make unanticipated expenditures that could significantly reduce the cash
available for distributions on our Common Stock or Preferred Stock.
Our properties are subject to regulation under federal laws, such as the ADA, pursuant to which all public accommodations must meet federal
requirements related to access and use by disabled persons. Although we believe that our properties substantially comply with present requirements of the ADA,
we have not conducted an audit or investigation of all of our properties to determine our compliance. If one or more of our properties or future properties are not in
compliance with the ADA, we might be required to take remedial action, which would require us to incur additional costs to bring the property into compliance.
Noncompliance with the ADA could also result in imposition of fines or an award of damages to private litigants.
Additional federal, state and local laws also may require modifications to our properties or restrict our ability to renovate our properties. We cannot
predict the ultimate amount of the cost of compliance with the ADA or other legislation.
In addition, our properties are subject to various federal, state and local regulatory requirements, such as state and local earthquake, fire and life safety
requirements. Local regulations, including municipal or local ordinances, zoning restrictions and restrictive covenants imposed by community developers may
restrict our use of our properties and may require us to obtain approval from local officials or community standards organizations at any time with respect to our
properties, including prior to acquiring a property or when undertaking renovations of any of our existing properties. If we were to fail to comply with these
various requirements, we might incur governmental fines or private damage awards. If we incur substantial costs to comply with the ADA or any other regulatory
requirements, our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of
distributions on our Common Stock or Preferred Stock could be materially adversely affected.
Inflation may adversely affect our real estate operations
Inflation increased substantially in 2021. The consumer price index for February 2022 rose 7.9% from a year ago, the highest level since January 1982.
Inflation is expected to further accelerate for the rest of 2022 as a result of the sharp spike in energy costs caused by the war that broke out between Russia and
Ukraine. Inflation is expected to cause our construction costs, maintenances costs, operating expenses and interest expenses to rise, which in turn could materially
adversely affect our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of
distributions on our Common Stock or Preferred Stock.
Supply chain disruption and increased costs in labor and materials may adversely affect our real estate operations
The construction and building industry, similar to many other industries, have been experiencing worldwide supply chain disruptions due to a multitude
of factors that are beyond our control, including, without limitation, the war between Russia and Ukraine and the residual economic effects of COVID-19.
Materials, parts and labor have also increased in cost over the past year or more, sometimes significantly and over a short period of time. This could impact our
ability to timely deliver spaces to tenants, complete tenant buildout or complete redevelopment or development projects; we may incur costs in the process that
exceeds our original estimates due to increased costs for materials or labor or other costs that are unexpected. All of these occurrences could affect our ability to
achieve the expected value of a lease, redevelopment or development, thereby adversely affecting our profitability.
Our participation in co-investments may subject us to risks that otherwise may not be present in other real estate assets.
We have entered into one and expect to continue to enter into co-investments with respect to a portion of the properties we acquire. Co-investments
involve risks generally not otherwise present with an investment in other real estate assets, such as the following:
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the risk that a co-owner may at any time have economic or business interests or goals that are or become inconsistent with our business interests or
goals;
the risk that a co-owner may be in a position to take action contrary to our instructions or requests or contrary to our policies, objectives or status as a
REIT;
the possibility that an individual co-owner might become insolvent or bankrupt, or otherwise default under the applicable mortgage loan financing
documents, which may constitute an event of default under all of the applicable mortgage loan financing documents, result in a foreclosure and the
loss of all or a substantial portion of the investment made by the co-owner, or allow the bankruptcy court to reject the agreements entered into by the
co-owners owning interests in the property;
the possibility that a co-owner might not have adequate liquid assets to make cash advances that may be required in order to fund operations,
maintenance and other expenses related to the property, which could result in the loss of current or prospective tenants and may otherwise adversely
affect the operation and maintenance of the
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property, and could cause a default under the applicable mortgage loan financing documents and may result in late charges, penalties and interest,
and may lead to the exercise of foreclosure and other remedies by the lender;
the risk that a co-owner could breach agreements related to the property, which may cause a default under, and possibly result in personal liability in
connection with, any mortgage loan financing documents applicable to the property result in a foreclosure or otherwise adversely affect the property
and the co-investment;
the risk that we could have limited control and rights, with management decisions made entirely by a third party; and
the possibility that we will not have the right to sell the property at a time that otherwise could result in the property being sold for its maximum
value.
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In the event that our interests become adverse to those of the other co-owners, we may not have the contractual right to purchase the co-investment
interests from the other co-owners. Even if we are given the opportunity to purchase such co-investment interests in the future, we cannot guarantee that we will
have sufficient funds available at the time to purchase co-investment interests from the co-owners.
We might want to sell our co-investment interests in a given property or other investment at a time when the other co-owners in such property or
investment do not desire to sell their interests. Therefore, because we anticipate that it will be much more difficult to find a willing buyer for our co-investment
interests in an investment than it would be to find a buyer for a property we owned outright, we may not be able to sell our co-investment interest in a property at
the time we would like to sell.
Our manager faces conflicts of interest relating to joint ventures or other co-investment arrangements that we may enter into with CIM or its affiliates, which
could result in a disproportionate benefit to CIM or its affiliates.
We have entered and expect to continue to enter into joint ventures or co-investments (including co-investment transactions) with CIM, its affiliates or
vehicles managed or operated by CIM for the acquisition, development or redevelopment of real estate-related assets. Since personnel of CIM involved in
managing and operating our business are also involved in the business and operations of CIM, its affiliates and other vehicles managed or operated by CIM, CIM
may face conflicts of interest in determining which real estate program should enter into any particular joint venture or co-investment. These persons also may
have a conflict in structuring the terms of the relationship between us and any affiliated co-venturer or co-owner, as well as conflicts of interests in managing the
joint venture, which may result in the co-venturer or co-owner receiving benefits greater than the benefits that we receive.
In the event we enter into joint venture or other co-investments with CIM, its affiliates or vehicles managed or operated by CIM, the Administrator may
have a conflict of interest when determining when and whether to buy or sell a particular property, or to make or dispose of another real estate-related asset. In the
event we enter into a joint venture or other co-investments with CIM, its affiliates or vehicles managed or operated by CIM that has a term shorter than ours, the
joint venture may be required to sell its properties earlier than we may desire to sell the properties. Even if the terms of any joint venture or other co-investments
between us and CIM, its affiliates or vehicle operated or managed by CIM grants us the right of first refusal to buy such properties, we may not have sufficient
funds or borrowing capacity to exercise our right of first refusal under these circumstances.
Risks Related to Debt Financing
We have incurred significant indebtedness and may incur significant additional indebtedness on a consolidated basis.
We have incurred significant indebtedness and may incur significant additional indebtedness to fund future acquisitions, development activities and
operational needs. The degree of leverage could make us more vulnerable to a downturn in business or the economy generally.
Payments of principal and interest on our borrowings may leave us with insufficient cash resources to operate our properties and or pay distributions on
our Common Stock or Preferred Stock. The incurrence of substantial outstanding indebtedness, and the limitations imposed by our debt agreements, could have
significant other adverse consequences, including the following:
•
our cash flows may be insufficient to meet our required principal and interest payments;
• we may be unable to borrow additional funds as needed or on favorable terms, which could, among other things, adversely affect our liquidity for
acquisitions or operations;
• we may be unable to refinance our indebtedness at maturity or the refinancing terms may be less favorable than the terms of our existing
indebtedness;
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• we may be forced to dispose of one or more of our properties, possibly on disadvantageous terms;
• we may violate restrictive covenants in our debt documents, which would entitle the lenders to accelerate our debt obligations;
• we may default on our obligations and the lenders or mortgagees may foreclose on our properties and take possession of any collateral that secures
their loans; and
•
our default under any of our indebtedness with cross-default provisions could result in a default on other indebtedness.
If any one of these events occurs, our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or
to maintain our level of distributions on our Common Stock or Preferred Stock may be materially adversely affected. In addition, any foreclosure on our properties
could create taxable income without the accompanying cash proceeds, which could adversely affect our ability to meet the REIT distribution requirements
imposed by the Internal Revenue Code of 1986, as amended (the “Code”).
We intend to rely in part on external sources of capital to fund future capital needs and, if we encounter difficulty in obtaining such capital, we may not be
able to meet maturing obligations or make additional acquisitions.
In order to qualify and maintain our qualification as a REIT under the Code, we are required, among other things, to distribute annually to our
stockholders at least 90% of our REIT taxable income (which does not equal net income as calculated in accordance with GAAP), determined without regard to
the deduction for dividends paid and excluding any net capital gain. Because of this dividend requirement, we may not be able to fund from cash retained from
operations all of our future capital needs, including capital needed to refinance maturing obligations or make new acquisitions.
The capital and credit markets have experienced extreme volatility and disruption as a result of the global outbreak of COVID-19. We believe that such
volatility and disruption are likely to continue into the foreseeable future. Market volatility and disruption could hinder our ability to obtain new debt financing or
refinance our maturing debt on favorable terms or at all or to raise debt and equity capital. Our access to capital will depend upon a number of factors, including:
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general market conditions;
government action or regulation, including changes in tax law;
the market’s perception of our future growth potential;
the extent of stockholder interest;
analyst reports about us and the REIT industry;
the general reputation of REITs and the attractiveness of their equity securities in comparison to other equity securities, including securities issued by
other real estate-based companies;
our financial performance and that of our tenants;
our current debt levels;
our current and expected future earnings; and
our cash flow and cash distributions, including our ability to satisfy the dividend requirements applicable to REITs.
If we are unable to obtain needed capital on satisfactory terms or at all, we may not be able to meet our obligations and commitments as they mature or
make any new acquisitions.
High interest rates may make it difficult for us to finance or refinance assets, which could reduce the number of properties we can acquire and the amount of
cash distributions we can make.
The Federal Reserve has indicated that it was on track to raise interest rates in the middle of March 2022 to, among other things, control inflation. Market
participants believe that the Federal Reserve will continue with additional interest rate increases in 2022. We run the risk of being unable to finance or refinance
our assets on favorable terms or at all. If interest rates are high, when we desire to mortgage our assets or when existing loans come due and the assets need to be
refinanced, we may not be able to, or may choose not to, finance the assets and we would be required to use cash to purchase or repay outstanding obligations. Our
inability to use debt to finance or refinance our assets could reduce the number of assets we can acquire, which could reduce our operating cash flow and the
amount of cash distributions we can make on our Common Stock or Preferred Stock. Higher costs of capital also could negatively impact our operating cash flow
and returns on our assets.
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Increases in interest rates could increase the amount of our debt payments and adversely affect our ability to pay distributions to our stockholders.
We have incurred indebtedness, and in the future may incur additional indebtedness, that bears interest at a variable rate. An increasing interest rate
environment, which is the economic environment that the Company expects to face in 2022, will result in increases in the variable rate component of our
indebtedness. As of December 31, 2021, we have $60.0 million outstanding under the 2018 revolving credit facility, $7.7 million outstanding under the SBA 7(a)
loan-backed notes and $27.1 million outstanding under our junior subordinated notes, all of which bear interest at a variable rate. We have not hedged our interest
rate with respect to variable rate indebtedness. As a result, increases in interest rates will increase the amounts payable under such indebtedness, which will reduce
our operating cash flows and could materially adversely affect our business, financial condition, results of operations, cash flow or our ability to satisfy our debt
service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock. In addition, if our existing indebtedness matures or
otherwise becomes payable during a period of rising interest rates, we could be required to liquidate one or more of our assets at times that may prevent realization
of the maximum return on such assets.
We may not be able to generate sufficient cash flow to meet our debt service obligations.
Our ability to make payments on and to refinance our indebtedness, and to fund our operations, working capital and capital expenditures, depends on our
ability to generate cash. To a certain extent, our cash flow is subject to general economic, industry, financial, competitive, operating, legislative, regulatory and
other factors, many of which are beyond our control.
We cannot assure our stockholders that our business will generate sufficient cash flow from operations or that future sources of cash will be available to
us in an amount sufficient to enable us to pay amounts due on our indebtedness or to fund our other liquidity needs.
Additionally, if we incur additional indebtedness in connection with any future deployment of capital or development projects or for any other purpose,
our debt service obligations could increase. We may need to refinance all or a portion of our indebtedness before maturity. Our ability to refinance our
indebtedness or obtain additional financing will depend on, among other things:
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our financial condition and market conditions at the time;
restrictions in the agreements governing our indebtedness;
general economic and capital market conditions;
the availability of credit from banks or other lenders; and
our results of operations.
As a result, we may not be able to refinance our indebtedness on commercially reasonable terms, or at all. If we do not generate sufficient cash flow from
operations, and additional borrowings or refinancing or proceeds of asset sales or other sources of cash are not available to us, we may not have sufficient cash to
enable us to meet all of our obligations. Accordingly, if we cannot service our indebtedness, we may have to take actions such as seeking additional equity, or
delaying any strategic acquisitions and alliances or capital expenditures, any of which could have a material adverse effect on our business, financial condition,
results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred
Stock.
Lenders may require us to enter into restrictive covenants relating to our operations, which could limit our ability to make distributions on our Common Stock
or Preferred Stock.
In connection with providing us financing, a lender could impose restrictions on us that affect our distribution and operating policies and our ability to
incur additional debt. Loan documents we enter into may contain covenants that limit our ability to further mortgage the property or discontinue insurance
coverage. These or other limitations imposed by a lender may adversely affect our flexibility and limit our ability to pay distributions on our Common Stock or
Preferred Stock.
Interest-only indebtedness may increase our risk of default and ultimately may reduce our funds available for distribution to our stockholders.
We may finance some of our property acquisitions using interest-only mortgage indebtedness. During the interest-only period, the amount of each
scheduled payment will be less than that of a traditional amortizing mortgage loan. The principal balance of the mortgage loan will not be reduced (except in the
case of prepayments) because there are no scheduled monthly payments of principal during this period. After the interest-only period, we will be required either to
make scheduled payments of amortized principal and interest or to make a lump-sum or “balloon” payment at maturity. These required payments will increase the
amount of our scheduled payments and may increase our risk of default under the related mortgage loan. If the
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mortgage loan has an adjustable interest rate, the amount of our scheduled payments also may increase at a time of rising interest rates. Increased payments and
substantial principal or balloon payments will reduce the funds available for distribution to our stockholders because cash otherwise available for distribution will
be required to pay principal and interest associated with these mortgage loans.
Our ability to make a balloon payment at maturity is uncertain and may depend upon our ability to obtain additional financing or our ability to sell the
property. At the time the balloon payment is due, we may or may not be able to refinance the loan on terms as favorable as the original loan or sell the property at
a price sufficient to make the balloon payment. The effect of a refinancing or sale could affect the rate of return to stockholders and the projected time of
disposition of our assets. In addition, payments of principal and interest made to service our debts may leave us with insufficient cash to pay the distributions that
we are required to pay to maintain our qualification as a REIT. Any of these results would have a significant, negative impact on the value of our securities.
We may in the future enter into hedging transactions that could expose us to contingent liabilities in the future and materially adversely impact our financial
condition and results of operations.
Subject to maintaining our qualification as a REIT, we may in the future enter into hedging transactions that could require us to fund cash payments in
certain circumstances (e.g., the early termination of the hedging instrument caused by an event of default or other early termination event, or the decision by a
counterparty to request margin securities it is contractually owed under the terms of the hedging instrument), which could in turn result in economic losses to us.
In addition, certain of the hedging instruments that we may enter into could involve additional risks if they are not traded on regulated exchanges,
guaranteed by an exchange or our clearing house, or regulated by any U.S. or foreign governmental authorities. It cannot be assured that a liquid secondary market
will exist for hedging instruments that we may enter into in the future, and we may be required to maintain a position until exercise or expiration, which could
result in significant losses.
We intend to record any derivative and hedging transactions we enter into in accordance with GAAP. However, we may choose not to pursue, or fail to
qualify for, hedge accounting treatment relating to such derivative instruments. As a result, our operating results may suffer because losses, if any, on these
derivative instruments may not be offset by a change in the fair value of the related hedged transaction or item. Any losses sustained as a result of our hedging
transactions would be reflected in our results of operations, and our ability to fund these obligations will depend on the liquidity of our assets and access to capital
at the time, and the need to fund these obligations could have a material adverse effect on our business, financial condition, results of operations, cash flow or our
ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
We may be adversely affected by the potential discontinuation of the London Interbank Offered Rate (“LIBOR”).
In July 2017, the Financial Conduct Authority in the United Kingdom (the “FCA”), which regulates LIBOR, announced that it intends to stop compelling
banks to submit rates for the calculation of LIBOR after December 31, 2021. On March 5, 2021, the FCA announced that the 1-week and 2-month U.S. dollar
LIBOR settings will cease publication after December 31, 2021 and the overnight 1, 3, 6 and 12 months U.S. dollar LIBOR settings will cease publication after
June 30, 2023. However, the FCA has indicated it will not compel panel banks to continue to contribute to LIBOR after the end of 2021 and the Federal Reserve
Board, the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation have encouraged banks to cease entering into new contracts
that use U.S. dollar LIBOR as a reference rate no later than December 31, 2021. To identify a successor rate for U.S. dollar LIBOR, the Alternative Reference
Rates Committee (“ARRC”), a U.S.-based group convened by the U.S. Federal Reserve Board and the Federal Reserve Bank of New York, was formed. On July
29, 2021, the ARRC formally recommended the Secured Overnight Financing Rate (“SOFR”) as its preferred alternative rate for LIBOR for use in derivatives and
other financial contracts currently indexed to LIBOR. SOFR is a measure of the cost of borrowing cash overnight, collateralized by U.S. Treasury securities, and is
based on directly observable U.S. Treasury-backed repurchase transactions. The ARRC has proposed a paced market transition plan to SOFR from LIBOR. There
are significant differences between LIBOR and SOFR, such as LIBOR being an unsecured lending rate while SOFR is a secured lending rate, and SOFR is an
overnight rate while LIBOR reflects term rates at different maturities. Although SOFR is the ARRC’s recommended replacement rate, it is also possible that
lenders may instead choose alternative replacement rates that may differ from LIBOR in ways similar to SOFR. The transition from LIBOR to SOFR or other
alternative reference rates may also introduce operational risks in our accounting, financial reporting, loan servicing, liability management and other aspects of our
business. However, we cannot reasonably estimate the impact of the transition at this time. Although there have been a few issuances utilizing SOFR or the
Sterling Over Night Index Average, an alternative reference rate that is based on transactions, it is unknown whether these alternative reference rates will attain
market acceptance as replacements for LIBOR.
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When LIBOR is discontinued, the interest rate for any of our indebtedness that is indexed to LIBOR at the time of discontinuation will be based on a
replacement rate or an alternate base rate as specified in the applicable documentation governing such indebtedness or as otherwise agreed by us and the
applicable lender. Such an event would not affect our ability to borrow or maintain already outstanding borrowings, but the replacement rate or alternate base rate
could be higher or more volatile than LIBOR prior to its discontinuance. For instance, as of December 31, 2021, we had $60.0 million of outstanding indebtedness
that was indexed to LIBOR under our revolving credit facility, which allows us to borrow up to $209.5 million, subject to a borrowing base calculation.
Additionally, as of December 31, 2021, we had $27.1 million of junior subordinated notes and $7.7 million of SBA 7(a) loan-backed notes that were indexed to
LIBOR. The full impact of the expected transition away from LIBOR is unclear, but these changes could have a material adverse effect on our business, financial
condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or
Preferred Stock.
Our lending operations expose us to a high degree of risk associated with real estate.
Risks Related to Our Lending Operations
The performance and value of our loans depends upon many factors beyond our control. The ultimate performance and value of our loans are subject to
risks associated with the ownership and operation of the properties which collateralize our loans, including the property owner’s ability to operate the property
with sufficient cash flow to meet debt service requirements. The performance and value of the properties collateralizing our loans may be adversely affected by:
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changes in national or regional economic conditions;
changes in real estate market conditions due to changes in national, regional or local economic conditions or property market characteristics;
competition from other properties;
changes in interest rates and the condition of the debt and equity capital markets;
the ongoing need for capital repairs and improvements;
increases in real estate tax rates and other operating expenses (including utilities);
adverse changes in governmental rules and fiscal policies; acts of God, including earthquakes, hurricanes, fires and other natural disasters; pandemic
outbreaks and other global health emergencies (including as a result of the outbreak of COVID-19 that began in the fourth quarter of 2019);
disruptive global political events, including terrorist activity and war (including the war between Russia and Ukraine, which has led to disruption,
instability and volatility in global markets and industries); or a decrease in the availability of or an increase in the cost of insurance;
adverse changes in zoning laws;
the impact of environmental legislation and compliance with environmental laws; and
other factors that are beyond our control or the control of the commercial property owners.
In the event that any of the properties underlying our loans experience any of the foregoing events or occurrences, the value of, and return on, such loans
may be negatively impacted, which in turn could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability
to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
There are significant risks related to loans originated under the SBA 7(a) Program.
Many of the borrowers under our SBA 7(a) Program are privately-owned businesses. There is typically no publicly available information about these
businesses; therefore, we must rely on our own due diligence to obtain information in connection with our decisions. Our borrowers may not meet net income,
cash flow and other coverage tests typically imposed by banks. A borrower’s ability to repay its loan may be adversely impacted by numerous factors, including a
downturn in its industry or other negative local or macro-economic conditions. Deterioration in a borrower’s financial condition and prospects may be
accompanied by deterioration in the collateral for the loan. In addition, small businesses typically depend on the management talents and efforts of one person or a
small group of people for their success. The loss of services of one or more of these persons could have an adverse impact on the operations of the small
business. Small companies are typically more vulnerable to customer preferences, market conditions and economic downturns and often need additional capital to
maintain the business, expand or compete. These factors may have an impact on the ultimate recovery of our loans receivable from such businesses. Loans to
small businesses, therefore, involve a high degree of business and financial risk, which can result in substantial losses and accordingly should be considered
speculative. The factors described above could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to
satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
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Our loans secured by real estate and our REO properties are typically illiquid and their values may decrease.
Our loans secured by real estate and our real estate acquired through foreclosure are typically illiquid. Therefore, we may be unable to vary our portfolio
promptly in response to changing economic, financial and investment conditions. As a result, the fair market value of these assets may decrease in the future and
losses may result. The illiquid nature of our loans may adversely affect our ability to dispose of such loans at times when it may be advantageous or necessary for
us to liquidate such assets, which in turn could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to
satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Our lending operations have an industry concentration, which may negatively impact our financial condition and results of operations.
A majority of our revenue from the lending operations is generated from loans collateralized by hospitality properties. As of December 31, 2021, our
loans subject to credit risk were 99.8% concentrated in the hospitality industry. Any factors that negatively impact the hospitality industry, including the outbreak
of COVID-19 that began in the fourth quarter of 2019, recessions, severe weather events (such as hurricanes, blizzards, floods, etc.), depressed commercial real
estate markets, travel restrictions, bankruptcies or other political or geopolitical events or the introduction of new concepts and products such as Airbnb®,
Homeaway® and VRBO®, could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our
debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Establishing loan loss reserves entails significant judgment and may negatively impact our results of operations.
We have a quarterly review process to identify and evaluate potential exposure to loan losses. The determination of whether significant doubt exists and
whether a loan loss reserve is necessary requires judgment and consideration of the facts and circumstances existing at the evaluation date. Additionally, further
changes to the facts and circumstances of the individual borrowers, the limited service hospitality industry and the economy may require the establishment of
additional loan loss reserves and the effect to our results of operations would be adverse. If our judgments underlying the establishment of our loan loss reserves
are not correct, our results of operations may be negatively impacted.
Whenever our borrowers experience significant operating difficulties and we are forced to liquidate the collateral underlying the loans, losses may be
relatively substantial and could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt
service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Our SBA 7(a) Program loans are subject to delinquency, foreclosure and loss, any or all of which could result in losses.
Our loans originated pursuant to the SBA 7(a) Program are collateralized by income-producing properties and typically have personal guarantees. These
loans are predominantly to operators of limited service hospitality properties. As a result, these operators are subject to risks associated with the hospitality
industry, including the outbreak of COVID-19 that began in the fourth quarter of 2019, recessions, severe weather events, depressed commercial real estate
markets, travel restrictions, bankruptcies or other political or geopolitical events.
Our SBA 7(a) loans that have real estate as collateral are subject to risks of delinquency and foreclosure. The ability of a borrower to repay a loan
secured by an income-producing property typically is dependent primarily upon the successful operation of such property rather than upon the existence of
independent income or assets of the borrower. If the net operating income of and or cash flow from the property is reduced, the borrower’s ability to repay the loan
may be impaired. Net operating income of and or cash flow from an income-producing property can be affected by, among other things, tenant mix, success of
tenant businesses, onsite property management decisions, property location and condition, competition from comparable types of properties, changes in laws that
increase operating expenses or limit rents that may be charged, any need to address environmental contamination at the property, the occurrence of any uninsured
casualty at the property, changes in national, regional or local economic conditions and or specific industry segments, declines in regional or local real estate
values, declines in regional or local rental or occupancy rates, increases in interest rates, real estate tax rates and other operating expenses, changes in
governmental rules, regulations and fiscal policies, including environmental legislation, acts of God, terrorism, social unrest and civil disturbances.
In the event of a loan default, we will bear a risk of loss of principal to the extent of any deficiency between the value of the collateral multiplied by our
percentage ownership and the unguaranteed portion of the principal and accrued interest on the loan. In the event of the bankruptcy of the borrower, the loan to
such borrower will be deemed collateralized only to the extent of the value of the underlying property at the time of the bankruptcy (as determined by the
bankruptcy court). In
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addition to losses related to collateral deficiencies, during the foreclosure process we may incur costs related to the protection of our collateral including unpaid
real estate taxes, legal fees, franchise fees, insurance and operating shortfalls to the extent the property is being operated by a court-appointed receiver.
Foreclosure and bankruptcy are complex and sometimes lengthy processes that are subject to federal and state laws and regulations. An action to
foreclose on a property is subject to many of the delays and expenses of other lawsuits if the defendant raises defenses or counterclaims. In the event of a default
by a mortgagor, these restrictions, among other things, may impede our ability to foreclose on or sell the mortgaged property or to obtain proceeds sufficient to
repay all amounts due under the note. Further, borrowers have the option of seeking federal bankruptcy protection which could delay the foreclosure process. In
conjunction with the bankruptcy process, the terms of the loan agreements may be modified. Typically, delays in the foreclosure process will have a negative
impact on our results of operations and or financial condition due to direct and indirect costs incurred and possible deterioration of the value of the collateral. After
foreclosure has been completed, a lack of funds or capital may force us to sell the underlying property resulting in a lower recovery even though developing the
property prior to a sale could result in a higher recovery.
As a result of the factors described above, defaults on SBA 7(a) Program loans could have a material adverse effect on our business, financial condition,
results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred
Stock.
Curtailment of our ability to utilize the SBA 7(a) Program by the federal government could adversely affect our results of operations.
We are dependent upon the federal government to maintain the SBA 7(a) Program. There can be no assurance that the program will be maintained or that
loans will continue to be guaranteed at current levels. In addition, there can be no assurance that our SBA lending subsidiary, First Western SBLC, Inc. (“First
Western”) will be able to maintain its status as a “Preferred Lender” under PLP (as defined below) or that we can maintain our SBA 7(a) license.
If we cannot continue originating and selling government guaranteed loans at current levels of profitability, we could experience a decrease in future
servicing spreads and earned premiums. From time-to-time the SBA has reached its internal budgeted limits and ceased to guarantee loans for a stated period of
time. In addition, the SBA may change its rules regarding loans or Congress may adopt legislation or fail to approve a budget that would have the effect of
discontinuing, reducing availability of funds for, or changing loan programs. Non-governmental programs could replace government programs for some
borrowers, but the terms might not be equally acceptable. If these changes occur, the volume of loans to small businesses that now qualify for government
guaranteed loans could decline, as could the profitability of these loans.
First Western has been granted national preferred lender program (“PLP”) status and originates, sells and services small business loans and is authorized
to place SBA guarantees on loans without seeking prior SBA review and approval. Being a national lender, PLP status allows First Western to expedite loans since
First Western is not required to present applications to the SBA for concurrent review and approval. The loss of PLP status could have a material adverse effect on
our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on
our Common Stock or Preferred Stock.
We operate in a competitive market for real estate opportunities and future competition for commercial real estate collateralized loans may limit our ability to
originate or dispose of our target loans and could also affect the yield of these loans.
We are in competition with a number of entities for the types of commercial real estate collateralized loans that we may originate. These entities include,
among others, debt funds, specialty finance companies, savings and loan associations, banks and financial institutions. Some of these competitors may be
substantially larger and have considerably greater financial, technical and marketing resources than we do. Some of these competitors may also have a lower cost
of funds and access to funding sources that may not be available to us currently. In addition, many of our competitors may not be subject to operating constraints
associated with REIT qualification or maintenance of exclusions from registration under the Investment Company Act. Furthermore, competition may further limit
our ability to generate desired returns. Due to this competition, we may not be able to take advantage of attractive opportunities from time to time, and can offer no
assurance that we will be able to identify and deploy our capital in a manner consistent with our objective. We cannot guarantee that the competitive pressures we
face will not have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service
obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
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We may be subject to lender liability claims.
In recent years, a number of judicial decisions have upheld the right of borrowers to sue lending institutions on the basis of various evolving legal
theories, collectively termed “lender liability.” Generally, lender liability is founded on the premise that a lender has either violated a duty, whether implied or
contractual, of good faith and fair dealing owed to the borrower or has assumed a degree of control over the borrower resulting in the creation of a fiduciary duty
owed to the borrower or our other creditors or stockholders. There can be no assurance that that such claims will not arise or that we will not be subject to
significant liability if a claim of this type did arise.
U.S. Federal Income and Other Tax Risks
Failure to qualify and maintain our qualification as a REIT would have significant adverse consequences to us and the value of our securities.
We believe that we are organized and qualify as a REIT and intend to operate in a manner that will allow us to continue to qualify as a REIT. However,
we cannot guarantee that we are qualified as such, or that we will remain qualified as such in the future. This is because qualification as a REIT involves the
application of highly technical and complex provisions of the Code as to which there are only limited judicial and administrative interpretations and involves the
determination of facts and circumstances not entirely within our control. Future legislation, new regulations, administrative interpretations or court decisions may
significantly change the tax laws or the application of the tax laws with respect to qualification as a REIT for federal income tax purposes or the federal income
tax consequences of such qualification.
If we fail to qualify as a REIT, we could face serious tax consequences that could substantially reduce our funds available for payment of distributions to
our stockholders for each of the years involved because:
• we would not be allowed a deduction for dividends paid to stockholders in computing our taxable income and would be subject to federal income tax
at regular corporate rates;
• we also could be subject to increased state and local taxes; and
•
unless we are entitled to relief under statutory provisions, we could not elect to be subject to be taxed as a REIT for four taxable years following the
year during which we are disqualified.
Any such corporate tax liability could be substantial and would reduce our cash available for, among other things, our operations and distributions to
stockholders. As a result of these factors, our failure to qualify as a REIT could have a material adverse effect on our business, financial condition, results of
operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock. If we
fail to qualify as a REIT for federal income tax purposes and are able to avail ourselves of one or more of the relief provisions under the Code in order to maintain
our REIT status, we might nevertheless be required to pay certain penalty taxes for each such failure.
Dividends payable by REITs do not qualify for the reduced tax rates available for some dividends.
Income from “qualified dividends” payable to U.S. stockholders that are individuals, trusts and estates are generally subject to tax at preferential rates.
Dividends payable by REITs, however, generally are not eligible for the preferential tax rates applicable to qualified dividend income. Although these rules do not
adversely affect the taxation of REITs or dividends payable by REITs, to the extent that the preferential rates continue to apply to regular corporate qualified
dividends, investors that are individuals, trusts and estates may perceive investments in REITs to be relatively less attractive than investments in the stocks of non-
REIT corporations that pay dividends, which could materially and adversely affect the value of the shares of REITs, including the per share trading price of our
securities. However, under the Tax Cuts and Jobs Act of 2017 (the “Tax Cuts and Jobs Act”) for taxable years prior to 2026, non-corporate U.S. stockholders of
REITs may deduct up to 20% of any “qualified REIT dividends.” A qualified REIT dividend is defined as any dividend from a REIT that is not a capital gain
dividend or a dividend attributable to dividend income from U.S. corporations or certain non-U.S. corporations. A non-corporate U.S. stockholder’s ability to
claim a deduction equal to 20% of qualified REIT dividends received may be limited by the stockholder’s particular circumstances.
Our ownership of and relationship with our taxable REIT subsidiaries will be limited, and a failure to comply with the limits would jeopardize our REIT
status and may result in the application of a 100% excise tax.
Subject to certain restrictions, a REIT may own up to 100% of the stock of one or more taxable REIT subsidiaries (“TRSs”). A TRS may hold assets and
earn income that would not be qualifying assets or income if held or earned directly by the REIT. Both the subsidiary and the REIT must jointly elect to treat the
subsidiary as a TRS. A corporation of which a TRS directly or indirectly owns more than 35% of the voting power or value of the stock will automatically be
treated as a TRS. Overall, no more than 20% of the value of a REIT’s assets may consist of stock or securities of one or more TRSs. A TRS
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generally will pay income tax at regular corporate rates on any taxable income that it earns. In addition, the TRS rules limit the deductibility of interest paid or
accrued by a TRS to its parent REIT to assure that the TRS is subject to an appropriate level of corporate taxation. The rules also impose a 100% excise tax on
certain transactions between a TRS and its parent REIT that are not conducted on an arm’s-length basis.
Our TRSs are subject to normal corporate income taxes. We continuously monitor the value of our investments in TRSs for the purpose of ensuring
compliance with the rule that no more than 20% of the value of our assets may consist of TRS stock and securities (which is applied at the end of each calendar
quarter). The aggregate value of our TRS stock and securities was less than 20% of the value of our total assets (including our TRS stock and securities) as of
December 31, 2021. In addition, we scrutinize all of our transactions with our TRSs for the purpose of ensuring that they are entered into on arm’s-length terms in
order to avoid incurring the 100% excise tax described above. There are no distribution requirements applicable to the TRSs and after-tax earnings may be
retained. There can be no assurance, however, that we will be able to comply with the 20% limitation on ownership of TRS stock and securities on an ongoing
basis so as to maintain REIT status or to avoid application of the 100% excise tax imposed on certain non-arm’s-length transactions.
We may be subject to adverse legislative or regulatory tax changes that could increase our tax liability or reduce our operating flexibility, including changes
resulting from the recently passed Tax Cuts and Jobs Act.
In recent years, numerous legislative, judicial and administrative changes have been made in the provisions of U.S. federal income tax laws applicable to
investments similar to an investment in shares of our capital stock. Additional changes to the tax laws are likely to continue to occur, and we cannot assure our
stockholders that any such changes will not adversely affect our taxation and our ability to continue to qualify as a REIT or the taxation of a stockholder. Any such
changes could have an adverse effect on an investment in our shares or on the market value or the resale potential of our assets. Our stockholders are urged to
consult with their tax advisors with respect to the impact of recent legislation on their investment in our shares and the status of legislative, regulatory or
administrative developments and proposals and their potential effect on an investment in our shares or on our ability to continue to qualify as a REIT. Even
changes that do not impose greater taxes on us could potentially result in adverse consequences to our stockholders. Although REITs generally receive better tax
treatment than entities taxed as regular corporations, it is possible that future legislation (such as a decrease in corporate tax rates) would result in a REIT having
fewer tax advantages, and it could decrease the attractiveness of the REIT structure relative to companies that are not organized as REITs. As a result, our charter
provides our Board of Directors with the power, under certain circumstances, to revoke or otherwise terminate our REIT election and cause us to be taxed as a
regular corporation, without the vote of our stockholders. Our Board of Directors has fiduciary duties to us and our stockholders and could only cause such
changes in our tax treatment if it determines in good faith that such changes are in the best interests of our stockholders.
In addition, the Tax Cuts and Jobs Act makes significant changes to the U.S. federal income tax rules for taxation of individuals and businesses, generally
effective for taxable years beginning after December 31, 2017. In addition to reducing corporate and individual tax rates, the Tax Cuts and Jobs Act eliminates or
restricts various deductions. Many of the changes applicable to individuals are temporary and apply only to taxable years beginning after December 31, 2017 and
before January 1, 2026. The Tax Cuts and Jobs Act makes numerous large and small changes to the tax rules that do not affect the REIT qualification rules directly
but may otherwise affect us or our stockholders and could impact the geographic markets in which we operate as well as our tenants in ways, both positive and
negative, that are difficult to anticipate. For example, the limitation in the Tax Cuts and Jobs Act on the deductibility of certain state and local taxes may make
operating in jurisdictions that impose such taxes at higher rates less desirable than operating in jurisdictions imposing such taxes at lower rates.
While the changes in the Tax Cuts and Jobs Act generally appear to be favorable with respect to REITs, the extensive changes to non-REIT provisions in
the Code may have unanticipated effects on us or our stockholders. Moreover, certain provisions of the Tax Cuts and Jobs Act give rise to issues needing
clarification and unintended consequences that will have to be revisited in subsequent tax legislation or administrative guidance. At this point, it is not clear if or
when Congress or the Internal Revenue Service will resolve these issues.
In certain circumstances, we may be subject to certain federal, state and local taxes as a REIT, which would reduce our cash available for distribution to our
stockholders.
Even if we qualify and maintain our status as a REIT, we may be subject to certain federal, state and local taxes. For example, net income from the sale of
properties that are “dealer” properties sold by a REIT (a “prohibited transaction” under the Code) will be subject to a 100% excise tax, and some state and local
jurisdictions may tax some or all of our income because not all states and localities treat REITs the same as they are treated for federal income tax purposes. Any
federal, state or local taxes we pay will reduce our cash available for distribution to our stockholders. Moreover, as discussed above, our TRSs are generally
subject to corporate income taxes and excise taxes in certain cases. Additionally, if we are not able to make
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sufficient distributions to eliminate our REIT taxable income, we may be subject to tax as a corporation on our undistributed REIT taxable income. We may also
decide to retain income we earn from the sale or other dispositions of our properties and pay income tax directly on such income. In that event, our stockholders
would be treated as if they earned that income and paid the tax on it directly. However, stockholders that are tax-exempt, such as charities or qualified pension
plans, would have no benefit from their deemed payment of such tax liability.
REIT annual distribution requirements may force us to forgo otherwise attractive opportunities or borrow funds during unfavorable market conditions. This
could delay or hinder our ability to meet our objectives and reduce our stockholders’ overall return.
In order to qualify as a REIT, we must distribute annually to our stockholders at least 90% of our REIT taxable income (which does not equal net income
as calculated in accordance with GAAP), determined without regard to the deduction for dividends paid and excluding any net capital gain. We will be subject to
U.S. federal income tax on our undistributed taxable income and net capital gain and to a 4% nondeductible excise tax on any amount by which dividends we pay
with respect to any calendar year are less than the sum of (i) 85% of our ordinary income, (ii) 95% of our capital gain net income and (iii) 100% of our
undistributed income from prior years.
Further, to maintain our qualification as a REIT, we must ensure that we meet the REIT gross income tests annually and that at the end of each calendar
quarter, at least 75% of the value of our assets consists of cash, cash items, government securities and qualified REIT real estate assets, including certain mortgage
loans and certain kinds of mortgage-related securities. The remainder of our investment in securities (other than government securities, qualified real estate assets
and stock of a TRS) generally cannot include more than 10% of the outstanding voting securities of any one issuer or more than 10% of the total value of the
outstanding securities of any one issuer. In addition, in general, no more than 5% of the value of our assets (other than government securities, qualified real estate
assets and stock of a TRS) can consist of the securities of any one issuer, no more than 20% of the value of our total assets can be represented by securities of one
or more TRSs and no more than 25% of the value of our total assets can be represented by certain debt securities of publicly offered REITs. If we fail to comply
with these requirements at the end of any calendar quarter, we must correct the failure within 30 days after the end of the calendar quarter or qualify for certain
statutory relief provisions to avoid losing our REIT qualification and suffering adverse tax consequences.
The foregoing requirements could cause us to distribute amounts that otherwise would be spent on deploying capital in real estate assets and it is possible
that we might be required to borrow funds, possibly at unfavorable rates, or sell assets to fund these dividends or make taxable stock dividends. Although we
intend to make distributions sufficient to meet the annual distribution requirements and to avoid U.S. federal income and excise taxes on our earnings, it is
possible that we might not always be able to do so.
Non-U.S. stockholders may be subject to U.S. federal withholding tax and may be subject to U.S. federal income tax upon the disposition of our shares.
Gain recognized by a non-U.S. stockholder upon the sale or exchange of shares of our capital stock generally will not be subject to U.S. federal income
taxation unless such stock constitutes a “U.S. real property interest” (“USRPI”) under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”).
Shares of our capital stock will not constitute a USRPI so long as we are a “domestically-controlled qualified investment entity.” A domestically-controlled
qualified investment entity includes a REIT if at all times during a specified testing period, less than 50% in value of such REIT’s stock is held directly or
indirectly by non-U.S. stockholders. We believe that we are a domestically-controlled qualified investment entity. However, because our capital stock is and will
be freely transferable (other than restrictions on ownership and transfer that are intended to, among other purposes, assist us in maintaining our qualification as a
REIT for federal income tax purposes as described in the risk factor “The share transfer and ownership restrictions applicable to REITs and contained in our
charter may inhibit market activity in our shares of stock and restrict our business combination opportunities”), no assurance can be given that we are or will be a
domestically-controlled qualified investment entity.
Even if we do not qualify as a domestically-controlled qualified investment entity at the time a non-U.S. stockholder sells or exchanges shares of our
capital stock, gain arising from such a sale or exchange would not be subject to U.S. taxation under FIRPTA as a sale of a USRPI if: (i) the class of shares of
capital stock sold or exchanged is “regularly traded,” as defined by applicable U.S. Treasury regulations, on an established securities market, and (ii) such non-
U.S. stockholder owned, actually or constructively, 10% or less of the outstanding shares of such class of capital stock at all times during the shorter of the five-
year period ending on the date of the sale and the period that such non-U.S. stockholder owned such shares. If the class of shares of capital stock sold or
exchanged is not “regularly traded,” gain arising from such sale or exchange would not be subject to U.S. taxation under FIRPTA as a sale of a USRPI if: (A) on
the date the shares were acquired by the non-U.S. stockholder, such shares did not have a fair market value greater than the fair market value on that date of 5% of
the “regularly traded” class
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of our outstanding shares of capital stock with the lowest fair market value, and (B) the test in clause (A) is also satisfied as of the date of any subsequent
acquisition by such non-U.S. stockholder of additional shares of the same non-“regularly traded” class of our capital stock, including all such shares owned as of
such date by such non-U.S. stockholder. Complex constructive ownership rules apply for purposes of determining the amount of shares held by a non-U.S.
stockholder for these purposes.
Complying with REIT requirements may limit our ability to hedge our liabilities effectively and may cause us to incur tax liabilities.
The REIT provisions of the Code may limit our ability to hedge our liabilities. Any income from a hedging transaction we enter into to manage risk of
interest rate changes, price changes or currency fluctuations with respect to borrowings made or to be made to acquire or carry real estate assets or to offset certain
other positions, if properly identified under applicable U.S. Treasury regulations, does not constitute “gross income” for purposes of the 75% or 95% gross income
tests. To the extent that we enter into other types of hedging transactions, the income from those transactions will likely be treated as non-qualifying income for
purposes of one or both of the gross income tests. As a result of these rules, we may need to limit our use of advantageous hedging techniques or implement those
hedges through a TRS. This could increase the cost of our hedging activities because our TRSs would be subject to tax on gains or expose us to greater risks
associated with changes in interest rates than we would otherwise want to bear. In addition, losses in a TRS generally will not provide any tax benefit, except for
being carried forward against future taxable income of such TRS.
Our property taxes could increase due to property tax rate changes or reassessment, which would impact our cash flows.
We will be required to pay some state and local taxes on our properties. The real property taxes on our properties may increase as property tax rates
change or as our properties are assessed or reassessed by taxing authorities. Therefore, the amount of property taxes we pay in the future may increase
substantially. If the property taxes we pay increase and if any such increase is not reimbursable under the terms of our lease, then our cash flows will be impacted,
which in turn could have a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service
obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
REIT stockholders can receive taxable income without cash distributions.
Under certain circumstances, REITs are permitted to pay required dividends in shares of their stock rather than in cash. If we were to avail ourselves of
that option, our stockholders could be required to pay taxes on such stock distributions without the benefit of cash distributions to pay the resulting taxes.
The share transfer and ownership restrictions applicable to REITs and contained in our charter may inhibit market activity in our shares of stock and restrict
our business combination opportunities.
In order to continue to qualify as a REIT, five or fewer individuals, as defined in the Code, may not own, actually or constructively, more than 50% in
value of our issued and outstanding shares of stock at any time during the last half of each taxable year, other than the first year for which a REIT election is made.
Attribution rules in the Code determine if any individual or entity actually or constructively owns our shares of stock under this requirement. Additionally, at least
100 persons must beneficially own our shares of stock during at least 335 days of a taxable year for each taxable year, other than the first year for which a REIT
election is made. To help ensure that we meet these tests, among other purposes, our charter restricts the acquisition and ownership of our shares of stock.
Our charter, with certain exceptions, authorizes our directors to take such actions as are necessary and advisable to preserve our qualification as a REIT.
Unless exempted by the Board of Directors, for as long as we continue to qualify as a REIT, our charter prohibits, among other limitations on ownership and
transfer of shares of our stock, any person from beneficially or constructively owning (applying certain attribution rules under the Code) more than 6.25% (in
value or in number of shares, whichever is more restrictive) of the aggregate of our outstanding shares of capital stock and more than 6.25% (in value or in number
of shares, whichever is more restrictive) of our Common Stock. The Board of Directors, in its sole discretion and upon receipt of certain representations and
undertakings, may exempt a person (prospectively or retrospectively) from the ownership limits. However, the Board of Directors may not, among other
limitations, grant an exemption from these ownership restrictions to any proposed transferee whose ownership, direct or indirect, in excess of the 6.25% ownership
limit would result in the termination of our qualification as a REIT. These restrictions on transfer and ownership will not apply, however, if the Board of Directors
determines that it is no longer in our best interest to continue to qualify as a REIT or that compliance with the restrictions is no longer required in order for us to
continue to so qualify as a REIT.
These ownership limits could delay or prevent a transaction or a change in control that might involve a premium price for our capital stock or otherwise
be in the best interest of our stockholders.
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Risks Related to Our Common Stock and Preferred Stock
There is no public market for our Series A Preferred Stock or Series D Preferred Stock, and we do not expect any such market to develop.
There is no public market for the Series A Preferred Stock or Series D Preferred Stock, and we currently have no plan to list any of these securities on a
securities exchange or to include any of these shares for quotation on any national securities market. Additionally, our charter contains restrictions on the
ownership and transfer of our securities, and these restrictions may inhibit your ability to sell the Series A Preferred Stock or Series D Preferred Stock promptly or
at all. If you are able to sell shares of Series A Preferred Stock or Series D Preferred Stock, you may only be able to sell them at a substantial discount from the
price you paid. Therefore, you should purchase the Series A Preferred Stock and Series D Preferred Stock only as a long term investment.
Neither the Series A Preferred Stock nor the Series D Preferred Stock has been rated.
We have not obtained, and currently do not intend to obtain, a rating for the Series A Preferred Stock or Series D Preferred Stock, and it is likely that
neither the Series A Preferred Stock nor Series D Preferred Stock will ever be rated. No assurance can be given, however, that one or more rating agencies will not
independently determine to issue such a rating or that we will not elect in the future to obtain such a rating. Such a rating, if issued, may adversely affect the
market price and or liquidity of the Series A Preferred Stock or Series D Preferred Stock. Ratings only reflect the views of the rating agency or agencies issuing
the ratings and such ratings could be revised downward, placed on negative outlook or withdrawn entirely at the discretion of the issuing rating agency if, in its
judgment, circumstances so warrant. While ratings do not reflect market prices or the suitability of a security for a particular investor, such downward revision or
withdrawal of a rating could have an adverse effect on the market price and or liquidity of the Series A Preferred Stock or Series D Preferred Stock.
We may issue shares of our Common Stock at prices below the then-current NAV per share of our Common Stock, which could materially reduce our NAV
per share of our Common Stock.
Any sale or other issuance of shares of our Common Stock by us at a price below the then-current NAV per share will result in an immediate reduction of
our NAV per share. This reduction would occur as a result of a proportionately greater decrease in a stockholder’s interest in our earnings and assets than the
increase in our assets resulting from such issuance. For example, if we issue a number of shares of Common Stock equal to 5% of our then-outstanding shares at a
2% discount from NAV, a holder of our Common Stock who does not participate in that offering to the extent of its proportionate interest in the Company will
suffer NAV dilution of up to 0.1%, or $1 per $1,000 of NAV. Currently, the trading price of our Common Stock is substantially below our NAV.
Changes in market conditions could adversely affect the market prices of our Common Stock and Series L Preferred Stock.
The market value of our Common Stock and Series L Preferred Stock, as with other publicly traded equity securities, will depend on various market
conditions, which may change from time to time. In addition to the economic environment and future volatility in the securities and credit markets in general, the
market conditions described in the risk factor “We intend to rely in part on external sources of capital to fund future capital needs and, if we encounter difficulty in
obtaining such capital, we may not be able to meet maturing obligations or make additional acquisitions” may affect the value of our Common Stock.
The market value of our Common Stock is based, among other things, upon the market’s perception of our growth potential and our current and potential
future earnings and cash dividends and our capital structure. Consequently, our Common Stock or our Series L Preferred Stock may trade at prices that are higher
or lower than our NAV per share of Common Stock or the stated value of the Series L Preferred Stock of $28.37 (the “Series L Preferred Stock Stated Value”),
subject to adjustment. If our future earnings or cash distributions are less than expected, the market prices of our Common Stock or Series L Preferred Stock could
decline.
Further, increases in interest rates, which is widely expected to occur in 2022, may result in a decline in the market price of our Common Stock and
Series L Preferred Stock. We believe that one of the factors that will influence the market price of our Common Stock or the Series L Preferred Stock will be the
distribution yield on the Common Stock or the Series L Preferred Stock, as the case may be (as a percentage of the market price of our Common Stock or Series L
Preferred Stock, as the case may be) relative to market interest rates.
An increase in market interest rates may lead potential purchasers of our Common Stock and Series L Preferred Stock to seek a higher annual dividend
rate from other investments. Potential purchasers of our Common Stock or Series L Preferred Stock may expect a higher distribution rate on their investment.
Higher market interest rates would not, however, result in more funds for us to pay distributions and, to the contrary, would likely increase our borrowing costs
and potentially decrease funds
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available for distributions, and higher interest rates will not change the distribution rate on our Series L Preferred Stock. Thus, higher market interest rates could
cause the market price of our Common Stock and Series L Preferred Stock to decline.
Our Common Stock ranks, with respect to dividends, junior to our Series A Preferred Stock, Series D Preferred Stock and, except to the extent of the Initial
Dividend (as defined below), our Series L Preferred Stock.
The rights of the holders of shares of our Common Stock to receive dividends rank junior to those of the holders of shares of our Series A Preferred
Stock, Series D Preferred Stock and, except to the extent of the Initial Dividend, the Series L Preferred Stock.
The “Initial Dividend” for a given fiscal year is a minimum annual amount of dividends on the Common Stock that is announced by us at the end of the
prior fiscal year, provided that we are under no obligation to pay any portion of the Initial Dividend unless and until our Board of Directors authorizes and we
declare any such dividend. While there are no limitations on the maximum amount of the Initial Dividend that can be paid in a particular year, it is our intention
that we will not announce an Initial Dividend for any given year that, based on the information then reasonably available to us at the time of announcement, we
believe will cause us to be unable to make a future distribution on our Series L Preferred Stock or on any other outstanding share of preferred stock.
On December 29, 2021, we announced an Initial Dividend on shares of our Common Stock for fiscal year 2022 in the aggregate amount of $7,010,799.
We must declare and pay dividends on our Common Stock equal to the Initial Dividend prior to declaring and paying any distributions on our Series L Preferred
Stock.
Unless full cumulative dividends on shares of our Series A Preferred Stock and Series D Preferred Stock for all past dividend periods have been declared
and paid (or set apart for payment), we will not declare or pay dividends with respect to any shares of our Common Stock for any period.
Our Common Stock ranks, with respect to rights upon liquidation, dissolution or winding up of the Company, junior to the Series A Preferred Stock, Series D
Preferred Stock and, other than to a limited extent, the Series L Preferred Stock.
Upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of Preferred Stock are entitled to receive
a liquidation preference equal to the applicable stated values of such shares, plus all accrued but unpaid dividends on such shares, prior and in preference to any
distribution to the holders of shares of our Common Stock. The stated value of the Series A Preferred Stock is $25.00 per share, subject to adjustment (the “Series
A Preferred Stock Stated Value”), the stated value of the Series D Preferred Stock is $25.00 per share, subject to adjustment (the “Series D Preferred Stock Stated
Value”), and the Series L Preferred Stock Stated Value is $28.37, subject to adjustment. However, notwithstanding the foregoing, holders of our Common Stock
are entitled to receive, prior to our payment to holders of Series L Preferred Stock of any accrued and unpaid distributions on the Series L Preferred Stock, an
amount equal to the amount of any unpaid Initial Dividend.
Holders of our securities may be required to recognize taxable income in excess of any cash or other distributions received from us, and non-U.S. stockholders
could be subject to withholding tax on such amounts.
The agreement governing our warrants to purchase 0.25 shares of Common Stock, subject to adjustment upon the occurrence of certain events specified
in such agreement (“Series A Preferred Warrants”), provides that adjustments may be made to the exercise price or the number of shares of Common Stock
issuable upon exercise of the Series A Preferred Warrants. In certain cases, such an adjustment could result in the recognition of a taxable dividend to holders of
Common Stock, Series A Preferred Stock or Series A Preferred Warrants even if such holders do not receive any cash or other distribution from us.
The redemption price of shares of Preferred Stock may be paid, in our sole discretion in cash or in shares of Common Stock, which ranks junior to our
Preferred Stock (other than to the Series L Preferred Stock to the extent of the Initial Dividend).
We have the right, at our option and in our sole discretion, to pay the redemption price of shares of Preferred Stock, whether redeemed at our option or at
the option of a holder, in cash or in shares of Common Stock. The redemption price of shares of our Series A Preferred Stock and Series D Preferred Stock may be
paid, in our sole discretion, in cash in U.S. dollars (“USD”) or in equal value through the issuance of shares of Common Stock, based on the volume‑weighted
average price of our Common Stock for the 20 trading days prior to the redemption. The redemption price of shares of our Series L Preferred Stock may be paid,
in our sole discretion, (1) in cash in Israeli New Shekels (“ILS”), at the then-current exchange rate determined in accordance with the Articles Supplementary
defining the terms of the Series L Preferred Stock, (2) in equal value through the issuance of shares of Common Stock, with such value of Common Stock to be
deemed the lower of (a) our NAV per share of our Common Stock as most recently published by the Company as of the effective date of redemption and (b) the
volume-weighted average price of our Common Stock, determined in accordance with the Articles Supplementary defining the
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terms of the Series L Preferred Stock, or (3) in a combination of cash, in ILS, and our Common Stock, based on the conversion mechanisms set forth in (a) and
(b), respectively.
The rights of the holders of shares of our Common Stock as to distributions rank junior to the rights of the holders of shares of our Series A Preferred
Stock, Series D Preferred Stock and, except to the extent of the Initial Dividend, our Series L Preferred Stock. Unless full cumulative dividends on shares of our
Preferred Stock for all past dividend periods have been declared and paid (or set apart for payment), we will not declare or pay dividends with respect to any
shares of our Common Stock for any period.
The rights of the holders of shares of our Common Stock upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company also
rank junior to the rights of the holders of Series A Preferred Stock and Series D Preferred Stock and, to the extent of the Series L Preferred Stock Stated Value,
holders of Series L Preferred Stock. However, holders of our Common Stock are entitled to receive a distribution equal to the aggregate amount of any unpaid
Initial Dividend prior to our payment of any accrued and unpaid dividends on shares of Series L Preferred Stock.
We have the option to redeem shares of Preferred Stock under certain circumstances without the consent of their holders.
From and after the fifth anniversary of the date of original issuance of any share of our Preferred Stock, we have the right (but not the obligation) to
redeem such share at a redemption price equal to 100% of the stated value of such share, plus any accrued but unpaid dividends in respect of such share as of the
effective date of the redemption. However, if for any given quarter the conditions specified in the Articles Supplementary defining the terms of the Series L
Preferred Stock are not met, or we are in arrears on dividends in respect of the Series L Preferred Stock, we will not be able to exercise our redemption right in
respect of the Series L Preferred Stock.
We may suffer from delays in deploying capital, which could adversely affect our ability to pay distributions to our stockholders and the value of our securities.
We could suffer from delays in deploying capital, particularly if the capital we raise (including in our current equity offerings described in “Item 7—
Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Sources and Uses of Funds”)
outpaces our Operator’s ability to identify acquisitions and or close on them. Such delays, which may be caused by a number of factors, including competition in
the market for the same real estate opportunities, may adversely affect our ability to pay distributions to our stockholders and or the value of their overall returns
on investment in our securities.
The cash distributions received by holders of our Preferred Stock and Common Stock may be less frequent or lower in amount than expected by such holders.
Our Board of Directors will determine the amount and timing of distributions on our Preferred Stock and Common Stock. In making this determination,
our Board of Directors will consider all relevant factors, including the amount of cash resources available for distributions, capital spending plans, cash flow,
financial position, applicable requirements of the MGCL and any applicable contractual restrictions. We cannot assure you that we will be able to consistently
generate sufficient available cash flow to fund distributions on our Preferred Stock and Common Stock, nor can we assure you that sufficient cash will be
available to make distributions on our Preferred Stock and Common Stock (in each case, even to the extent of the Initial Dividend). While holders of Preferred
Stock are entitled to receive, if, as and when authorized by our Board of Directors and declared by us out of legally available funds, cumulative cash dividends on
each share of Preferred Stock at a specified rate, we cannot predict with certainty the timing of the payment of such distributions and we may be unable to pay or
maintain such distributions over time.
Our ability to redeem shares of our Preferred Stock, or to pay distributions on our Preferred Stock and Common Stock, may be limited by Maryland law.
Under applicable Maryland law, a corporation may redeem, or pay distributions on, stock as long as, after giving effect to the redemption or distribution,
the corporation is able to pay its debts as they become due in the usual course (the equity solvency test) and its total assets exceed the sum of its total liabilities
plus, unless its charter permits otherwise, the amount that would be needed, if the corporation were to be dissolved at the time of the redemption or distribution, to
satisfy the preferential rights upon dissolution of stockholders when preferential rights on dissolution are superior to those whose stock is being redeemed or on
which the distributions are being paid (the balance sheet solvency test). If the Company is insolvent at any time we are required to redeem any shares of our
Preferred Stock, or at any time we are required to make a distribution on our Preferred Stock or Common Stock, the Company may not be able to effect such
redemption or distribution.
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Holders of our securities are subject to inflation risk.
Inflation is the reduction in the purchasing power of money resulting from the increase in the price of goods and services. Inflation risk is the risk that the
inflation-adjusted, or “real,” value of an investment in our Common Stock and Preferred Stock, or the income from that investment, will be worth less in the
future. As discussed under “Inflation may adversely affect our Real Estate Operations,” the United States is currently experiencing a high level of inflation. As
inflation occurs, the real value of our Common Stock and Preferred Stock and distributions payable on such shares may decline because the rate of distribution
will remain the same (with respect to our Preferred Stock) or may not rise with the pace of inflation (with respect to our Common Stock).
The transfer and ownership restrictions applicable to our securities may impair the ability of stockholders to receive shares of our Common Stock upon
exercise of the Series A Preferred Warrants and, if the Company elects to pay the redemption price in shares of Common Stock, upon redemption of the
Preferred Stock.
Our charter contains restrictions on ownership and transfer of the Preferred Stock and Common Stock that are intended to assist us in maintaining our
qualification as a REIT for federal income tax purposes as described in the risk factor “The share transfer and ownership restrictions applicable to REITs and
contained in our charter may inhibit market activity in our shares of stock and restrict our business combination opportunities.” Additionally, the agreement
governing the Series A Preferred Warrants provides that such Series A Preferred Warrants may not be exercised to the extent such exercise would result in the
holder’s beneficial or constructive ownership of more than 6.25%, in number or value, whichever is more restrictive, of our outstanding shares of Common Stock
immediately after giving effect to the issuance of such shares. These restrictions may impair the ability of stockholders to receive shares of our Common Stock
upon exercise of the Series A Preferred Warrants and, if the Company elects to pay the redemption price in shares of Common Stock, upon redemption of the
Preferred Stock.
The terms of our Preferred Stock do not contain any financial covenants, other than, with respect to the Series L Preferred Stock, a limited restriction on our
ability to issue shares of preferred stock.
Other than as described below, the terms of our Preferred Stock do not limit our ability to incur indebtedness or make distributions or contain any other
restrictive financial covenants. The Preferred Stock ranks subordinate to all of our existing and future debt and liabilities. Our future debt agreements may restrict
our ability to pay distributions to preferred stockholders or to redeem shares of preferred stock in the event of a default under such debt agreements or in other
circumstances. In addition, (i) while the Series A Preferred Stock and Series D Preferred Stock rank senior to our Common Stock with respect to payment of
dividends and distributions upon liquidation, dissolution or winding-up, we are allowed to pay dividends on our Common Stock so long as we are current in the
payment of dividends on shares of our Series A Preferred Stock and Series D Preferred Stock, and (ii) while the Series L Preferred Stock ranks senior to our
Common Stock with respect to payment of distributions, except to the extent of the Initial Dividend, and amounts payable upon our liquidation, dissolution or
winding-up, to the extent of the Series L Preferred Stock Stated Value, we are allowed to pay dividends on our Common Stock so long as we are current in the
payment of the dividends on shares of our Preferred Stock. Further, the terms of our Series A Preferred Stock and Series D Preferred Stock do not restrict our
ability to repurchase shares of our Common Stock so long as we are current in the payment of dividends on shares of our Series A Preferred Stock and Series D
Preferred Stock. Such dividends on or repurchases of our Common Stock may reduce the amount of cash on hand to pay the redemption price of our Series A
Preferred Stock or Series D Preferred Stock in cash (if we so choose).
Until November 21, 2022, we are prohibited from issuing any shares of preferred stock ranking senior to or on parity with the Series L Preferred Stock
with respect to the payment of dividends, other distributions, liquidation, and or dissolution or winding up of the Company unless the Series L Preferred Stock
Minimum Fixed Charge Coverage Ratio, calculated in accordance with the Articles Supplementary describing the Series L Preferred Stock, is equal to or greater
than 1.25:1.00. Our good faith determination of an applicable Series L Preferred Stock Minimum Fixed Charge Coverage Ratio is binding absent manifest error
for purposes of this restriction. As of December 31, 2021, we were in compliance with the Series L Preferred Stock Minimum Fixed Charge Coverage Ratio. In
order to maintain our compliance with the Minimum Fixed Charge Coverage Ratio, we issued to the Operator 203,349 shares of Common Stock and 287,199
shares of Series A Preferred Stock, and to the Administrator 11,273 shares of Series A Preferred Stock, in lieu of cash management fees payable to such entities
for fees related to the year ending December 31, 2020 and issued an aggregate of 270,209 shares of Series A Preferred stock as payment, in lieu of cash, for all
asset management fees owed to the Operator in respect of fees incurred during the year ended December 31, 2021. It is likely that we will pay the remainder of
asset management fees owed to the Operator with respect to the year ended December 31, 2021 in shares of Series A Preferred stock and it is likely that we will
seek to pay some or part of the asset management fees payable to the Operator during the year ended December 31, 2022 in shares of Series A Preferred Stock.
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Holders of our Preferred Stock have no voting rights with respect to such shares.
The terms of our Preferred Stock do not entitle holders to voting rights. Our Common Stock is currently the only class of our capital stock that carries any
voting rights. Unless and until a holder of our Preferred Stock acquires shares of Common Stock upon the redemption of such shares, such holder will have no
rights with respect to the shares of our Common Stock issuable upon redemption of our Preferred Stock. If, at our discretion, a holder of our Preferred Stock is
issued shares of our Common Stock upon redemption, such holder will be entitled to exercise the rights of holders of our Common Stock only as to matters for
which the record date occurs after the effective date of redemption.
The ownership percentage in the Company of a holder may become diluted if we issue new shares of Common Stock or other securities, and issuances of
additional preferred stock or other securities by us may further subordinate the rights of the holders of our Preferred Stock or Common Stock (which holders
of Preferred Stock may become upon receipt of redemption payments in shares of Common Stock). Additionally, future issuances of Common Stock, including
shares issued in exchange for consideration, upon redemption of Preferred Stock or upon exercise of any Series A Preferred Warrants, may cause the market
price of our Common Stock to drop significantly, even if our business is doing well.
Our Board of Directors is authorized, without stockholder approval, to cause us to issue additional shares of Common Stock or to raise capital through the
issuance of shares of preferred stock and equity or debt securities convertible into Common Stock, preferred stock, options, warrants and other rights, on such
terms and for such consideration as our Board of Directors in its sole discretion may determine. Any such issuance could result in dilution of the equity of our
stockholders. In addition, our Board of Directors may, in its sole discretion, authorize us to issue Common Stock or other equity or debt securities to persons from
whom we purchase properties, as part or all of the purchase price of the property, or from whom we receive services (including the Operator or the Administrator),
as part or all of the payment for such services. Our Board of Directors, in its sole discretion, may determine the price of any Common Stock or other equity or debt
securities issued in consideration of such properties or services provided, or to be provided, to us.
We may make redemption payments under the terms of our Preferred Stock in shares of our Common Stock. Although the dollar amounts of such
payments are unknown, the number of shares of our Common Stock to be issued in connection with such payments may fluctuate based on the price of our
Common Stock. Any sales or perceived sales in the public market of shares of our Common Stock issuable upon such redemption payments could adversely affect
prevailing market prices of shares of our Common Stock. The existence of our Preferred Stock may encourage short selling by market participants because the
possibility that redemption payments will be made in shares of our Common Stock could depress the market price of shares of our Common Stock. Further, any
such issuance could result in dilution of the equity of our stockholders.
Our charter also authorizes our Board of Directors, without stockholder approval, to classify or reclassify any unissued shares of Common Stock and
preferred stock into other classes or series of stock and to amend our charter to increase or decrease the aggregate number of shares of stock or the number of
shares of stock of any class or series that are authorized by the charter to be issued. Our Board of Directors may, without stockholder approval, designate and issue
one or more classes or series of preferred stock in addition to our Preferred Stock and equity or debt securities convertible into preferred stock and to set the voting
powers, conversion or other rights, preferences, restrictions, limitations as to dividends or other distributions and qualifications or terms or conditions of
redemption of each class or series of shares so issued. If any additional preferred stock is publicly offered, the terms and conditions of such preferred stock (or
other equity or debt securities convertible into preferred stock) will be set forth in a registration statement registering the issuance of such preferred stock or equity
or debt securities convertible into preferred stock. Because our Board of Directors has the power to establish the preferences and rights of each class or series of
preferred stock, it may afford the holders of any class or series of preferred stock preferences, powers, and rights senior to the rights of holders of our Preferred
Stock or Common Stock. If we ever create and issue additional preferred stock or equity or debt securities convertible into preferred stock with a distribution
preference over our Preferred Stock or Common Stock, payment of any distribution preferences of such new outstanding preferred stock would reduce the amount
of funds available for the payment of distributions on our Preferred Stock and Common Stock, as applicable. Further, holders of preferred stock are normally
entitled to receive a preference payment if we liquidate, dissolve, or wind up before any payment is made to the holders of our Common Stock, likely reducing the
amount the holders of our Common Stock would otherwise receive upon such an occurrence. In addition, under certain circumstances, the issuance of additional
preferred stock may delay, prevent, render more difficult or tend to discourage, a merger, tender offer, or proxy contest, the assumption of control by a holder of a
large block of our securities, or the removal of incumbent management.
No stockholders have rights to buy additional shares of stock or other securities if we issue new shares of stock or other securities. We may issue
Common Stock, convertible debt or preferred stock pursuant to subsequent public offerings or private placements. Investors in our Common Stock who do not
participate in any future stock issuances will experience dilution in the percentage of the issued and outstanding stock they own. In addition, depending on the
terms and pricing of any
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future offerings and the value of our assets, such investors may experience dilution in the book value and fair market value of, and the amount of distributions paid
on, their shares of Common Stock, if any.
The listing of our Common Stock and Series L Preferred Stock on more than one stock exchange may result in price variations that could adversely affect
liquidity of the market for our Common Stock and or Series L Preferred Stock.
Our Common Stock and Series L Preferred Stock are listed on Nasdaq and the TASE. The dual‑listing of our Common Stock and Series L Preferred
Stock may result in price variations of our securities between the two exchanges due to a number of factors. First, trading in our securities on these markets takes
place in different currencies (USD on Nasdaq and ILS on the TASE). In addition, the exchanges are open for trade at different times of the day and on different
days. For example, Nasdaq opens generally during U.S. business hours, Monday through Friday, while the TASE opens generally during Israeli business hours,
Sunday through Thursday. The two exchanges also observe different public holidays. Differences in the trading schedules, as well as volatility in the exchange rate
of the two currencies, among other factors, may result in different trading prices for our Common Stock and Series L Preferred Stock on the two exchanges. Any
decrease in the trading price of our Common Stock and Series L Preferred Stock in one market could cause a decrease in the trading price of such security on the
other market.
The dual-listing may adversely affect liquidity and trading prices for our Common Stock and Series L Preferred Stock on one or both of the exchanges as
a result of circumstances that may be outside of our control. For example, transfers by holders of our securities from trading on one exchange to the other could
result in increases or decreases in liquidity and or trading prices on either or both of the exchanges. In addition, holders could seek to sell or buy our Series L
Preferred Stock or Common Stock to take advantage of any price differences between the two markets through a practice referred to as arbitrage. Any arbitrage
activity could create unexpected volatility in both the prices of and volumes of our Series L Preferred Stock and Common Stock available for trading on either
exchange.
The existing mechanism for the dual‑listing of securities on Nasdaq and the TASE may be eliminated or otherwise altered such that we may be subject to
additional regulatory burden and additional costs.
The existing Israeli regulatory regime provides a mechanism for the dual‑listing of securities traded on Nasdaq and the TASE that does not impose any
significant regulatory burden or significant costs on us. If this dual‑listing regime is eliminated or otherwise altered such that we are unable or unwilling to comply
with the regulatory requirements, we may incur additional costs and we may consider delisting of our Series L Preferred Stock and or Common Stock from the
TASE.
Our NAV is an estimate of the fair value of our assets and may not necessarily reflect realizable value.
The determination of estimated NAV involves a number of subjective assumptions, estimates and judgments that may not be accurate or complete.
Neither the Financial Industry Regulatory Authority nor the SEC provides rules on the methodology we must use to determine our estimated NAV per share. We
believe there is no established practice among public REITs for calculating estimated NAV. Different firms using different property-specific, general real estate,
capital markets, economic and other assumptions, estimates and judgments could derive an estimated NAV that is significantly different from our estimated NAV.
Our estimated NAV, as determined by us from time to time, is calculated by relying in part on appraisals of our real estate assets and the assets of our
lending segment. However, valuations of these assets do not necessarily represent the price at which a willing buyer would purchase such assets; therefore, there
can be no assurance that we would realize the values underlying our estimated NAVs if we were to sell our assets and distribute the net proceeds to our
stockholders. The values of our assets and liabilities, and therefore our NAV, are likely to fluctuate over time based on changes in value, investment activities,
capital activities, indebtedness levels, and other various activities.
We may be unable to pay or maintain cash distributions or increase distributions to stockholders over time.
General Risk Factors
Several factors may affect the availability and timing of cash distributions to our stockholders. Distributions are based primarily on anticipated cash flow
from operations over time. The amount of cash available for distributions is affected by many factors, including the performance of our existing assets, including
the selection of tenants and the amount of rental income, our operating expense levels, opportunities for acquisition identified by our Operator, the availability of
financing arrangements as well as many other variables. We may not always be in a position to pay distributions to our stockholders and the amount of any
distributions we do make may not increase over time. In addition, our actual results may differ significantly from the assumptions used by our Board of Directors
in establishing our distribution policy. There also is a risk that we may not have sufficient cash flow from operations to fund distributions required to qualify as a
REIT or maintain our REIT status.
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We have paid, and may in the future pay, some or all of our distributions to stockholders from sources other than cash flow from operations, including
borrowings, proceeds from asset sales or the sale of our securities, which may reduce the amount of capital we ultimately deploy in our real estate operations
and may negatively impact the value of our Common Stock.
To the extent that cash flow from operations has been or is insufficient to fully cover our distributions to our stockholders, we have paid, and may in the
future pay, some or all of our distributions from sources other than cash flow from operations. Such sources may include borrowings, proceeds from asset sales or
the sale of our securities. We have no limits on the amounts we may use to pay distributions from sources other than cash flow from operations. The payment of
distributions from sources other than cash provided by operating activities may reduce the amount of proceeds available for acquisitions and operations or cause
us to incur additional interest expense as a result of borrowed funds. This may negatively impact the market price of our Common Stock.
Distributions at any point in time may not reflect the current performance of our properties or our current operating cash flow.
We may make distributions from any source, including the sources described in the risk factor above. Because the amount we pay in distributions may
exceed our earnings and our cash flow from operations, distributions may not reflect the current performance of our properties or our current operating cash flow.
Changes in accounting standards may adversely impact our financial condition and or results of operations.
We are subject to the rules and regulations of the U.S. Financial Accounting Standards Board (the “FASB”) related to generally accepted accounting
principles in the United States (“GAAP”). Various changes to GAAP are constantly being considered, some of which could materially impact our reported
financial condition and or results of operations. Also, to the extent publicly traded companies in the United States would be required in the future to prepare
financial statements in accordance with International Financial Reporting Standards instead of the current GAAP, this change in accounting standards could
materially affect our financial condition or results of operations.
Item 1B. Unresolved Staff Comments
None.
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Item 2. Properties
As of December 31, 2021, our real estate portfolio consisted of 14 assets, all of which were fee-simple properties. As of December 31, 2021, our 11 office
properties, totaling approximately 1.3 million rentable square feet, were 77.7% occupied, our one development site being used as a parking lot and our one hotel
with an ancillary parking garage, which has a total of 503 rooms, had RevPAR of $73.23 for the year ended December 31, 2021.
Office Portfolio Detail by Classification, Address, Market, and Submarket as of December 31, 2021
Classification / Market / Address
Stabilized Portfolio
Sub-Market
Rentable
Square Feet % Occupied % Leased
(1)
Annualized Rent
(in thousands)
Annualized Rent
Per Occupied
Square Foot
Oakland, CA
1 Kaiser Plaza
San Francisco, CA
1130 Howard Street
Los Angeles, CA
11620 Wilshire Boulevard
11600 Wilshire Boulevard
8944 Lindblade Street
(3)
8960 & 8966 Washington Boulevard
1037 N Sycamore Avenue
(3)
Austin, TX
3601 S Congress Avenue
1021 E 7th Street
Total Stabilized Portfolio
(4)
Value Add Properties
Los Angeles, CA
4750 Wilshire Boulevard
9460 Wilshire Boulevard
Total Value Add Properties
Development Pipeline Properties
Oakland, CA
2 Kaiser Plaza
(2)
Total Development Pipeline Properties
Total Office Portfolio
Lake Merritt
537,811
86.5 %
86.5 % $
22,210 $
South of Market
21,194
100.0 %
100.0 %
1,819
West Los
Angeles
West Los
Angeles
West Los
Angeles
West Los
Angeles
Hollywood
South
East
196,227
57,737
80.3 %
86.3 %
80.3 %
88.2 %
7,980
100.0 %
100.0 %
24,448
4,900
227,853
11,180
1,089,330
100.0 %
— %
86.9 %
100.0 %
85.9 %
100.0 %
— %
96.6 %
100.0 %
88.0 %
Mid-Wilshire
Beverly Hills
140,332
97,745
238,077
21.6 %
67.2 %
40.3 %
21.6 %
72.6 %
42.5 %
Lake Merritt
N/A
N/A
N/A
N/A
N/A
N/A
7,813
2,741
525
1,405
—
8,735
563
45,811
1,500
6,900
8,400
N/A
N/A
47.75
85.83
49.61
55.02
65.79
57.47
—
44.13
50.36
48.98
49.45
105.06
87.55
N/A
N/A
1,327,407
77.7 %
79.9 % $
54,211 $
52.57
(1)
(2)
Based on leases signed as of December 31, 2021.
2 Kaiser Plaza Parking Lot is a 44,642 square foot parcel of land currently being used as a surface parking lot. We are entitled to develop an office
building with a maximum of 800,000 rentable square feet. Alternatively, we are also evaluating a multifamily development, which can be constructed by
right.
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(3)
(4)
The three buildings making up 8960 & 8966 Washington Boulevard and 8944 Lindblade Street were formerly known as Lindblade Media Center.
3601 S Congress Avenue consists of twelve buildings.
Hotel Portfolio Summary as of December 31, 2021
Property
Sheraton Grand Hotel
Total Hotel (1 Property)
(2)
Other Ancillary Property within Hotel Portfolio
Market
Sacramento, CA
%
Occupied
(1)
Revenue Per
Available
Room
53.6 % $
53.6 % $
73.23
73.23
Rooms
503
503
Property
Sheraton Grand Hotel Parking Garage & Retail
Total Ancillary Property (1 Property)
Market
Sacramento, CA
Rentable
Square
Feet
(Retail)
%
Occupied
(Retail)
%
Leased
(Retail)
(3)
Annualized
Rent (Parking
and Retail)
(in thousands)
9,453
9,453
100.0 %
100.0 %
100.0 % $
100.0 % $
625
625
(1)
(2)
(3)
Represents trailing 12-month occupancy as of December 31, 2021, calculated as the number of occupied rooms divided by the number of available
rooms.
The Sheraton Grand Hotel is part of the Sheraton franchise and is managed by Sheraton Operating Corporation, a subsidiary of Marriott International,
Inc.
Based on leases commenced as of December 31, 2021.
Office Portfolio—Top 5 Tenants by Annualized Rental Revenue as of December 31, 2021
Property
1 Kaiser Plaza
9460 Wilshire
Boulevard
3601 S Congress
Avenue
9460 Wilshire
Boulevard
Lindblade Media
Center
Tenant
Kaiser Foundation Health Plan,
Inc.
MUFG Union Bank, N.A.
F45 Training Holdings, Inc.
3 Arts Entertainment, Inc.
Westwood One, Inc.
Total for Top Five Tenants
All Other Tenants
Vacant
Total Office Portfolio
Credit
Rating
(S&P /
Moody’s /
Fitch)
AA- / - /
AA-
A / Aa3 / A
- / - / -
- / - / -
- / - / -
Lease
Expiration
Annualized
Rent
(in thousands)
% of
Annualized
Rent
Rentable
Square
Feet
% of
Rentable
Square
Feet
2025 - 2027
(1)
$
16,729
30.9 %
366,777
27.6 %
2029
2030
2026
2025
3,755
2,279
2,274
1,930
26,967
27,244
—
54,211
$
6.9 %
4.2 %
4.2 %
3.6 %
49.8 %
50.2 %
— %
100.0 %
27,569
44,171
27,112
32,428
498,057
533,186
296,164
1,327,407
2.1 %
3.3 %
2.0 %
2.4 %
37.4 %
40.3 %
22.3 %
100.0 %
(1)
From and after February 28, 2023 with respect to the rentable square feet expiring in 2025, and February 28, 2025 with respect to rentable square feet
expiring in 2027, the tenant has the right to terminate all or any portions of its lease with us, effective as of any date specified by the tenant in a written
notice given to us at least 15 months prior to the termination, in each case in exchange for a termination penalty. The amount of such termination
penalties is dependent on a variety of factors, including but not limited
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to the date of the termination notice, the amount of the square feet to be terminated and the location within the building of the space to be terminated.
Office Portfolio—Diversification by Industry as of December 31, 2021
Industry
Health Care and Social Assistance
Professional, Scientific, and Technical Services
Arts, Entertainment, and Recreation
Finance and Insurance
Real Estate and Rental and Leasing
Retail Trade
Public Administration
Information
Manufacturing
Administrative and Support and Waste Management and Remediation
Services
Other
Vacant
Total Office
Annualized
Rent
(in thousands)
% of
Annualized
Rent
22,341
9,566
5,430
4,720
4,386
1,617
1,355
936
801
616
2,443
—
54,211
41.3 %
17.6 %
10.0 %
8.7 %
8.1 %
3.0 %
2.5 %
1.7 %
1.5 %
1.1 %
4.5 %
— %
100.0 %
Rentable
Square
Feet
465,747
173,462
89,902
45,974
90,312
36,943
28,689
13,589
24,849
10,927
50,849
296,164
1,327,407
% of Rentable
Square Feet
35.0 %
13.1 %
6.8 %
3.5 %
6.8 %
2.8 %
2.2 %
1.0 %
1.9 %
0.8 %
3.8 %
22.3 %
100.0 %
$
$
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Office Portfolio—Lease Expiration as of December 31, 2021
Year of Lease
Expiration
(1)
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
Total Occupied
Vacant
Total Office
Square Feet
of Expiring
Leases
% of Square
Feet
Expiring
Annualized
Rent
(in thousands)
% of Annualized
Rent
Expiring
Annualized Rent
Per Occupied
Square Foot
150,961
108,279
58,011
407,665
72,612
113,532
15,335
30,342
74,506
—
1,031,243
296,164
1,327,407
14.7 % $
10.5 %
5.6 %
39.6 %
7.0 %
11.0 %
1.5 %
2.9 %
7.2 %
— %
100.0 % $
7,202
5,640
3,058
19,492
4,501
5,629
994
3,916
3,779
—
54,211
13.3 % $
10.4 %
5.6 %
36.0 %
8.3 %
10.4 %
1.8 %
7.2 %
7.0 %
— %
100.0 % $
47.71
52.09
52.71
47.81
61.99
49.58
64.82
129.06
50.72
—
52.57
(1)
Includes 5,785 square feet of month-to-month leases as of December 31, 2021.
Property Indebtedness as of December 31, 2021
Property
1 Kaiser Plaza
Total/Weighted Average
Outstanding
Principal
Balance
(in thousands)
$
$
97,100
97,100
Interest
Rate
4.14%
4.14%
Maturity
Date
7/1/2026
Balance Due
At Maturity
Date
(in thousands)
$
$
97,100
97,100
Prepayment/
Defeasance
(1)
(1)
Loan is generally not prepayable prior to April 1, 2026.
Item 3. Legal Proceedings
We are not currently involved in any material pending or threatened legal proceedings nor, to our knowledge, are any material legal proceedings currently
threatened against us, other than routine litigation arising in the ordinary course of business. In the normal course of business, we are periodically party to certain
legal actions and proceedings involving matters that are generally incidental to our business. While the outcome of these legal actions and proceedings cannot be
predicted with certainty, in management’s opinion, the resolution of these legal proceedings and actions will not have a material adverse effect on our business,
financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common
Stock or Preferred Stock.
Item 4. Mine Safety Disclosures
Not applicable.
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PART II
Item 5. Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Marketplace Designation, Sales Price Information and Holders
Shares of our Common Stock trade on Nasdaq, under the ticker symbol “CMCT”, and on the TASE, under the ticker symbol “CMCT-L.”
On March 10, 2022, there were approximately 387 holders of record of our Common Stock, excluding stockholders whose shares were held by brokerage
firms, depositories and other institutional firms in “street name” for their customers. The closing price of our Common Stock on March 10, 2022 was $8.05 as
reported on Nasdaq.
Approximately 58.7% of shares of our Common Stock as of March 10, 2022 were held by stockholders that are not our affiliates.
Holders of our Common Stock are entitled to receive dividends, if, as and when authorized by the Board of Directors and declared by us out of legally
available funds. In determining our dividend policy, the Board of Directors considers many factors including the amount of cash resources available for dividend
distributions, capital spending plans, cash flow, our financial position, applicable requirements of the MGCL, any applicable contractual restrictions, and future
growth in NAV and cash flow per share prospects. Consequently, the dividend rate on a quarterly basis does not necessarily correlate directly to any individual
factor. There can be no assurance that the future dividends declared by our Board of Directors will not differ materially from historical dividend levels. Risks
inherent in our ability to pay dividends are further described in “Item 1A—Risk Factors” of this Annual Report on Form 10-K.
Securities Authorized for Issuance Under Equity Compensation Plans
The following table provides information as of December 31, 2021 with respect to shares of our Common Stock, either under options or in respect of
restricted stock awards that may be issued under existing equity compensation plans, all of which have been approved by our stockholders.
Plan Category
Equity incentive plan
Number of shares of Common
Stock to be issued upon exercise
of outstanding options
Weighted average exercise price
of outstanding options
Number of shares of Common Stock remaining
available for future issuances under equity
compensation plans (all in restricted shares of
Common Stock)
—
N/A
49,770
Recent Sales of Unregistered Securities and Use of Proceeds
On November 9, 2021, we issued to the Operator an aggregate of 180,871 shares of our Series A Preferred Stock as payment, in lieu of cash, for $4.5
million of asset management fees owed to the Operator under the Investment Management Agreement for the second and third quarters of 2021. Such securities
were issued pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act. We will pay the asset management fees for the fourth
quarter of 2021, and it is likely we will seek to pay some or part of the year ending December 31, 2022 asset management fees, in shares of Series A Preferred
Stock. Shares of Series A Preferred Stock may be redeemed at our option or at the option of the holder for a redemption price payable in cash or shares of
Common Stock as described in Note 9 to the consolidated financial statements included in this Annual Report on Form 10-K.
Item 6. Reserved
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
This section includes many forward-looking statements. For cautions about relying on such forward-looking statements, please see “Forward-Looking
Statements” at the beginning of this report immediately prior to “Item 1—Business” in this Annual Report on Form 10-K.
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Overview
The following discussion focuses on recent developments expected to have current and future impacts on the results of our business, trends and
uncertainties within our industry and business model that may impact our financial results, our recent results of operations, and our liquidity and capital resources.
You should read the following discussion in conjunction with the consolidated financial statements and notes thereto included elsewhere in this Annual
Report on Form 10-K.
Executive Summary
Business Overview
Creative Media & Community Trust is a Maryland corporation and REIT. We primarily own and operate Class A and creative office real assets in vibrant
and improving metropolitan communities throughout the United States. We seek to acquire, operate and develop premier multifamily and creative office assets
that cater to rapidly growing industries such as technology, media and entertainment in vibrant and emerging communities throughout the United States. We seek
to apply the expertise of CIM Group to the acquisition, development and operation of top-tier multifamily properties situated in dynamic markets with similar
business and employment characteristics to its creative office investments. All of our multifamily and creative office assets are and will generally be located in
communities qualified by CIM Group as described further below. These communities are located in areas that include traditional downtown areas and suburban
main streets, which have high barriers to entry, high population density, positive population trends and a propensity for growth. We believe that the critical mass of
redevelopment in such areas creates positive externalities, which enhance the value of real estate assets in the area. We believe that these assets will provide
greater returns than similar assets in other markets, as a result of the population growth, public commitment and significant private investment that characterize
these areas.
We are operated by affiliates of CIM Group. CIM is a community-focused real estate and infrastructure owner, operator, lender and developer. CIM is
headquartered in Los Angeles, CA, with offices in Atlanta, GA, Bethesda, MD, Chicago, IL, Dallas, TX, New York, NY, Orlando, FL, Phoenix, AZ, and Tokyo,
Japan. CIM also maintains additional offices across the United States, as well as in Korea, Hong Kong and the United Kingdom to support its platform.
COVID-19
In March 2020, the World Health Organization declared the outbreak of COVID-19 a pandemic. Since then, COVID-19 has spread worldwide, causing
significant disruptions to the U.S. and world economies. During the early part of 2021, the U.S. and world economies initially showed signs of recovery from the
impact of COVID-19 as vaccination rates increased, virus caseloads declined and businesses, schools and public services began to reopen. However, the
emergence of variant strains of COVID-19 in the second half of 2021 and the concomitant disruption to the global supply chain have disrupted the recovery of the
U.S. and world economies. As a result, there continues to be uncertainty regarding the continued impact of COVID-19 on the U.S. and international economies.
Additionally, the spread of COVID-19 in the United States and the resulting restrictions on travel, meetings and social gatherings that have been
implemented from time to time have impacted, and are expected to continue to impact, the operations of our hotel in Sacramento, California. For the year ended
December 31, 2021, our hotel segment net operating income was $1.9 million. Based on current expectations, we anticipate that the net operating income of our
hotel for 2022 will be lower as compared to pre-COVID-19 levels for the comparable periods. As a result, contributions by the hotel to our funds from operations
during such periods will be diminished.
Our loans originated and serviced under the SBA 7(a) Small Business Loan Program through December 31, 2021 consist primarily of loans to borrowers
in the limited service hospitality sector. Certain of our borrowers experienced significant reductions in cash flows as COVID-19 caused reductions in travel.
However, the substantial majority of our borrowers received relief under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) during the
year ended December 31, 2020 through subsidy in the form of six months of monthly loan payments made on the borrower’s behalf pursuant to Section 1112 of
the CARES Act. Section 1112 of the CARES Act was extended and, beginning February 1, 2021, the CARES Act provided up to an additional five months of
subsidy of scheduled principal and interest payments (up to $9,000 per month, per loan). Those subsidies were not extended further.
The extent to which COVID-19 will continue to impact our operations and those of our tenants, business partners and borrowers will depend on future
developments, which are highly uncertain and cannot be predicted with confidence, including the scope, severity and duration of any future COVID-19 outbreaks
and actions taken to contain the pandemic or mitigate its impact, the distribution and acceptance of vaccines and their impact on the timing and speed of economic
recovery, the spread
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of new variants of COVID-19 and concerns regarding additional surges of COVID-19 as a result thereof, the impacts on the U.S. and international economies and
the extent to which federal, state and local governments provide relief or assistance to those affected by COVID-19. We cannot predict the significance, extent or
duration of any adverse impact of COVID-19 on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service
obligations or to maintain our level of distributions on its Common Stock or Preferred Stock. However, our business, financial condition, results of operations, and
liquidity have been adversely affected and will likely continue to be adversely affected during 2022.
Properties
As of December 31, 2021, our real estate portfolio consisted of 14 assets, all of which were fee-simple properties. As of December 31, 2021, our eleven
office properties, totaling approximately 1.3 million rentable square feet, were 77.7% occupied, our one development site was being used as a parking lot, and our
one hotel with an ancillary parking garage, which has a total of 503 rooms, had RevPAR of $73.23 for the year ended December 31, 2021.
Rental Rate Trends
Office Statistics: The following table sets forth occupancy rates and annualized rent per occupied square foot across our office portfolio as of the
specified periods:
(1)
Occupancy
Annualized rent per occupied square foot
(1)(2)
As of December 31,
2021
2020
$
77.7 %
52.57
$
79.3 %
50.94
(1)
(2)
The information presented in this table represents historical information as of the date indicated without giving effect to any property sales occurring
thereafter.
Represents gross monthly base rent under leases commenced as of the specified periods, multiplied by twelve. This amount reflects total cash rent before
abatements. Total abatements, representing lease incentives in the form of free rent, for the years ended December 31, 2021 and 2020 were $1.5 million
and $1.6 million, respectively. Where applicable, annualized rent has been grossed up by adding annualized expense reimbursements to base rent.
Annualized rent for certain office properties includes rent attributable to retail.
Over the next four quarters, we expect to see expiring cash rents as set forth in the table below:
Expiring Cash Rents:
(1)
Expiring square feet
Expiring rent per square foot
(2)
March 31,
2022
For the Three Months Ended
June 30,
2022
September 30,
2022
December 31,
2022
$
29,832
59.27 $
12,979
64.10 $
51,424
43.35 $
56,726
41.83
(1)
(2)
Month-to-month tenants occupying a total of 5,785 square feet are included in the expiring leases in the first quarter listed.
Represents gross monthly base rent, as of December 31, 2021, under leases expiring during the periods above, multiplied by twelve. This amount reflects
total cash rent before abatements. Where applicable, annualized rent has been grossed up by adding annualized expense reimbursements to base rent.
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During the year ended December 31, 2021, we executed leases with terms longer than 12 months totaling 99,139 square feet. The table below sets forth
information on certain of our executed leases during the year ended December 31, 2021, excluding space that was vacant for more than one year, month-to-month
leases, leases with an original term of less than 12 months, related party leases, and space where the previous tenant was a related party:
Twelve Months Ended December 31, 2021
15
50,828 $
48.32 $
52.66
Number of
(1)
Leases
Rentable
Square Feet
New Cash
Rents per Square
Foot
(2)
Expiring Cash
Rents per Square
Foot
(2)
(1)
(2)
Based on the number of tenants that signed leases.
Cash rents represent gross monthly base rent, multiplied by twelve. This amount reflects total cash rent before abatements. Where applicable, annualized
rent has been grossed up by adding annualized expense reimbursements to base rent.
Fluctuations in submarkets, buildings and terms of leases cause large variations in these numbers and make predicting the changes in rent in any specific
period difficult. Our rental and occupancy rates are impacted by general economic conditions, including the pace of regional and economic growth, and access to
capital. Therefore, we cannot give any assurance that leases will be renewed or that available space will be re-leased at rental rates equal to or above the current
market rates. Additionally, decreased demand and other negative trends or unforeseeable events that impair our ability to timely renew or re lease space could have
a material adverse effect on our business, financial condition, results of operations, cash flow or our ability to satisfy our debt service obligations or to maintain
our level of distributions on our Common Stock or Preferred Stock.
Hotel Statistics: The following table sets forth the occupancy, ADR and RevPAR for our hotel in Sacramento, California for the specified periods:
Occupancy
ADR
RevPAR
Lending Segment
For the Year Ended
December 31,
2021
2020
$
$
53.6 %
136.51
73.23
$
$
32.3 %
144.36
46.60
Through our loans originated under the SBA 7(a) Program, we are a national lender that primarily originates loans to small businesses. Additionally, as
an SBA 7(a) licensee, we originated loans under the PPP. During 2021 the lending segment benefited from a temporary increase in the SBA guarantee support
from a maximum of 75% per loan to 90% per loan and higher market premiums. In addition, there was an increase in interest income resulting from an increase in
our average outstanding lending portfolio during 2021 compared to the prior year. As a result of the conclusion of the enhanced government support provided by
the CARES Act, the SBA guaranty support has now reverted back to 75% from 90% as of October 1, 2021 for loans approved after September 30, 2021. This will
likely cause future loan originations to decline and the premiums achieved on sales of the guaranteed portion of our SBA 7(a) loans to decrease, in each case
possibly by a material amount.
2021 Results of Operations
Net Loss
Total revenues
Total expenses
Net loss
Year Ended
December 31,
2021
$
$
$
90,926 $
88,785 $
(851) $
2020
$
(dollars in thousands)
77,208 $
92,945 $
(15,015) $
Change
%
13,718
(4,160)
14,164
17.8 %
(4.5)%
(94.3)%
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Net loss decreased to $851,000, or by $14.2 million, for the year ended December 31, 2021, compared to $15.0 million for the year ended December 31,
2020, primarily due to the increases in net operating income at our lending and hotel segments.
Funds from Operations
We believe that funds from operations (“FFO”), a non-GAAP measure, is a widely recognized and appropriate measure of the performance of a REIT and
that it is frequently used by securities analysts, investors and other interested parties in the evaluation of REITs, many of which present FFO when reporting their
results. FFO represents net income (loss) attributable to common stockholders, computed in accordance with GAAP, which reflects the deduction of redeemable
preferred stock dividends accumulated, excluding gains (or losses) from sales of real estate, impairment of real estate, and real estate depreciation and
amortization. We calculate FFO in accordance with the standards established by the National Association of Real Estate Investment Trusts (the “NAREIT”).
Like any metric, FFO should not be used as the only measure of our performance because it excludes depreciation and amortization and captures neither
the changes in the value of our real estate properties that result from use or market conditions nor the level of capital expenditures and leasing commissions
necessary to maintain the operating performance of our properties, all of which have real economic effect and could materially impact our operating results. Other
REITs may not calculate FFO in accordance with the standards established by the NAREIT; accordingly, our FFO may not be comparable to the FFOs of other
REITs. Therefore, FFO should be considered only as a supplement to net income (loss) as a measure of our performance and should not be used as a supplement to
or substitute measure for cash flows from operating activities computed in accordance with GAAP. FFO should not be used as a measure of our liquidity, nor is it
indicative of funds available to fund our cash needs, including our ability to pay dividends.
FFO attributable to common stockholders was $133,000 for the year ended December 31, 2021, an increase of $12.2 million compared to $(12.1) million
for the year ended December 31, 2020. The increase was primarily due to an increase of $14.4 million in segment net operating income resulting from improved
performance at the lending and hotel segments for the year ended December 31, 2021, compared to the year ended December 31, 2020.
The following table sets forth a historical reconciliation of net loss attributable to common stockholders to FFO attributable to holders of our Common
Stock:
Net loss attributable to common stockholders
Depreciation and amortization
Impairment of real estate
Gain on sale of depreciable assets
FFO attributable to common stockholders
(1) (2)
(1) (2)
Year Ended December 31,
2020
2021
(in thousands)
$
$
(19,979) $
20,112
—
—
133 $
(33,467)
21,406
—
—
(12,061)
(1)
(2)
During the year ended December 31, 2020, we recognized $281,000 of loss on early extinguishment of debt. Such losses are included in, and have the
effect of reducing, net (loss) income attributable to common stockholders and FFO attributable to common stockholders, because loss on early
extinguishment of debt is not an adjustment prescribed by NAREIT.
During the years ended December 31, 2021 and 2020, we recognized $113,000 and $72,000, respectively, of redeemable preferred stock redemptions and
$253,000 and $377,000 respectively, of redeemable preferred stock deemed dividends. Such amounts are included in, and have the effect of reducing, net
(loss) attributable to common stockholders and FFO attributable to common stockholders, because redeemable preferred stock redemptions are not an
adjustment prescribed by NAREIT.
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Summary Segment Results
During the years ended December 31, 2021 and 2020, we operated in three segments: office and hotel properties and lending. Set forth and described
below are summary segment results for our operating segments.
Revenues:
Office
Hotel
Lending
Expenses:
Office
Hotel
Lending
Non-Segment Revenue and Expenses:
Interest and other income
Asset management and other fees to related parties
Expense reimbursements to related parties—corporate
Interest expense
General and administrative
Transaction costs
Depreciation and amortization
Loss on early extinguishment of debt
(Provision) benefit for income taxes
Revenues
Year Ended
December 31,
2021
2020
$
(dollars in thousands)
Change
%
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
53,289 $
17,849 $
19,787 $
23,778 $
15,969 $
4,117 $
1 $
(9,030) $
(2,050) $
(9,005) $
(4,581) $
(143) $
(20,112) $
— $
(2,992) $
55,468 $
13,314 $
8,322 $
23,975 $
14,123 $
6,365 $
104 $
(9,793) $
(2,243) $
(10,547) $
(4,212) $
— $
(21,406) $
(281) $
722 $
(2,179)
4,535
11,465
(197)
1,846
(2,248)
(103)
763
193
1,542
(369)
(143)
1,294
281
(3,714)
(3.9)%
34.1 %
137.8 %
(0.8)%
13.1 %
(35.3)%
(99.0)%
(7.8)%
(8.6)%
(14.6)%
8.8 %
100.0 %
(6.0)%
(100.0)%
(514.4)%
Office Revenue: Office revenue includes rental revenue, expense reimbursements and lease termination income from office properties. Office revenue
decreased by 3.9% for the year ended December 31, 2021 compared to the year ended December 31, 2020. The decrease is primarily due to lower revenues at an
office property in Beverly Hills, California, an office property in Los Angeles, California and an office property in Oakland, California, all due to decreases in
occupancy as compared to the prior year, partially offset by an increase in revenues at an office property in Austin, Texas due to an increase in occupancy and an
increase in revenues related to another office property in Austin, Texas that was purchased in November 2020.
Hotel Revenue: Hotel revenue increased by 34.1% for the year ended December 31, 2021 compared to the year ended December 31, 2020. The increase
is due to increases in occupancy, ADR, and food, beverage, and other sundry services during 2021 as compared to the prior year primarily as a result of easing
travel restrictions related to COVID-19 (see “—COVID-19” above).
Lending Revenue: Lending revenue represents revenue from our lending subsidiaries, including interest income on loans and other loan related fee
income. Lending revenue increased by 137.8% for the year ended December 31, 2021 compared to the year ended December 31, 2020. The increase is primarily
due to an increase in premium income from the sale of the guaranteed portion of our SBA 7(a) loans, which benefited from an increase in the SBA guaranty
support from a maximum of 75% per loan to 90% per loan and higher market premiums. In addition, there was an increase in interest income resulting from an
increase in our average outstanding lending portfolio during 2021 compared to the prior year. As a result of the conclusion of the enhanced government support
provided by the CARES Act, the SBA guaranty support has now reverted back to 75% from 90% as of October 1, 2021 for loans approved after September 30,
2021. This will likely cause future loan originations to decline and the premiums achieved on sales of the guaranteed portion of our SBA 7(a) loans to decrease, in
each case possibly by a material amount.
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Interest and Other Income: Interest and other income represents revenue generated outside of our reportable segments. Interest and other income
decreased by $103,000 for the year ended December 31, 2021 compared to the year ended December 31, 2020. The decrease is due to higher cash average
balances in our interest bearing accounts during the year ended December 31, 2020 as compared to the year ended December 31, 2021.
Expenses
Office Expenses: Office expenses remained relatively unchanged for the year ended December 31, 2021 compared to the year ended December 31,
2020.
Hotel Expenses: Hotel expenses increased by 13.1% for the year ended December 31, 2021 compared to the year ended December 31, 2020, primarily
as a result of increased occupancy and food, beverage and other sundry services during 2021 as compared to the prior year as a result of easing travel restrictions
related to COVID-19 (see “—COVID-19” above).
Lending Expenses: Lending expenses represent expenses from our lending subsidiaries, including interest expense, general and administrative expenses
and expense reimbursements to related parties. Lending expenses decreased by 35.3% for the year ended December 31, 2021 compared to the year ended
December 31, 2020 primarily due to an increase in allocated expenses incurred during the year ended December 31, 2020 related to the one-time retirement
payment to our former president, a decrease in allocated executive time resulting in a reduction in allocated payroll during the year ended December 31, 2021, a
reduction in the provision for loan losses of $362,000 due to an increase in the general reserve made during the year ended December 31, 2020 and a reduction in
interest expense of $460,000 resulting from a reduction to principal outstanding on our SBA 7(a) loan backed notes.
Asset Management and Other Fees to Related Parties: Asset management fees and other fees to related parties, which have not been allocated to our
operating segments decreased by 7.8% for the year ended December 31, 2021 compared to the year ended December 31, 2020. Asset management fees totaled
$9.0 million for the year ended December 31, 2021 compared to $9.5 million for the year ended December 31, 2020. Asset management fees were calculated
based on a percentage of the daily average adjusted fair value of CIM Urban’s assets, which are appraised in the fourth quarter of each year. The lower fees reflect
a decrease in the adjusted fair value of CIM Urban’s assets in the year ended December 31, 2021 as compared to the year ended December 31, 2020 primarily due
to a decrease in the aggregate fair value of CIM Urban’s investments in real estate resulting from valuation changes at the end of 2020. We expect asset
management fees and other fees to related parties to decrease during the year ended December 31, 2022, when compared to the year ended December 31, 2021, as
a result of the Fee Waiver.
We paid a Base Service Fee to the Administrator, a related party, which totaled $282,000 for the year ended December 31, 2020. On May 11, 2020, the
Master Services Agreement was amended to replace the Base Service Fee with the Prior Incentive Fee effective as of April 1, 2020. The Administrator did not
earn any Prior Incentive Fee during the year ended December 31, 2021. Based on the expected performance of the Company for 2022, we do not anticipate that
any Revised Incentive Fee will be payable in respect of the year ended December 31, 2022.
Expense Reimbursements to Related Parties—Corporate: The Administrator received compensation and or reimbursement for performing certain
services (other than the Base Services) for us and our subsidiaries that are not covered by the Base Service Fee or the Prior Incentive Fee, as the case may be.
Expense reimbursements to related parties—corporate decreased by 8.6% for the year ended December 31, 2021 compared to the year ended December 31, 2020,
primarily due to reductions in allocated payroll.
Interest Expense: Interest expense, which has not been allocated to our operating segments, decreased by 14.6% for the year ended December 31, 2021
compared to the year ended December 31, 2020. The decrease is primarily due to a lower average outstanding principal balance on our 2018 Credit Facility during
the year ended December 31, 2021 compared to the year ended December 31, 2020, partially offset by an increase in interest expense on our revolving credit
facility resulting from the 2018 Credit Facility Modification which was in effect from September 2020 through August 2021. Although we do not know how much
variable rate indebtedness we will incur in 2022, we expect our interest expense to increase in 2022 as a result of expected increases in interest rates. We expect
that such increases will be partially offset by expected increases in interest income earned on our loans receivable (which earn interest at a variable rate).
General and Administrative Expenses: General and administrative expenses, which have not been allocated to our operating segments, increased by
8.8% for the year ended December 31, 2021 compared to the year ended December 31, 2020. The increase is primarily due to an increase in legal and consulting
fees. We expect general and administrative expenses to decrease during the year ended December 31, 2022, when compared to the year ended December 31, 2021,
as a result of cost saving measures implemented by our Administrator and the nonrecurring nature of some of the 2021 legal expenses.
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Transaction Costs: Transaction costs were $143,000 for the year ended December 31, 2021, an increase of 100.0% compared to the year ended
December 31, 2020, due to abandoned project costs incurred in 2021 related to potential real estate transactions.
Depreciation and Amortization Expense: Depreciation and amortization expense decreased by 6.0% for the year ended December 31, 2021 compared to
the year ended December 31, 2020 primarily as a result of fully depreciating certain tenant improvement assets during 2021.
Loss on Early Extinguishment of Debt: Loss on early extinguishment of debt was $0 for the year ended December 31, 2021 compared to $281,000 for
the year ended December 31, 2020. The loss on early extinguishment of debt of $281,000 for the year ended December 31, 2021 was related to the write off of a
portion of the deferred financing costs for the 2018 Credit Facility as a result of the reduction in total borrowing capacity in connection with the 2018 Credit
Agreement Modification.
(Provision) benefit for Income Taxes: Provision for income taxes was $3.0 million for the year ended December 31, 2021 compared to a benefit for
income taxes of $722,000 for the year ended December 31, 2020. The change is primarily is due to an increase in taxable income at our taxable REIT subsidiaries
during the year ended December 31, 2021 resulting principally from the operations of our lending division.
Cash Flow Analysis
Our cash flows from operating activities are primarily dependent upon the real estate assets owned, occupancy level of our real estate assets, the rental
rates achieved through our leases, the ADR of our hotel, the collectability of rent and recoveries from our tenants, and loan related activity, many of which were
negatively impacted by the effects of COVID-19 during the years ended December 31, 2021 and 2020. Our cash flows from operating activities are also impacted
by fluctuations in operating expenses and other general and administrative costs. Net cash provided by operating activities increased by $33.5 million for the year
ended December 31, 2021, as compared to the same period in 2020. The increase was primarily due to the net proceeds from sale of guaranteed loans net of loan
fundings, held for sale, which resulted in a $14.4 million increase, and the decrease in net loss of $14.2 million for the year ended December 31, 2021, as
compared to the same period in 2020 as a result of increased hotel and lending segment net operating income.
Our cash flows from investing activities are primarily related to property acquisitions and dispositions, expenditures for the development or repositioning
of properties, capital expenditures and cash flows associated with loans originated at our lending segment. Net cash used in investing activities was $12.7 million
for the year ended December 31, 2021 compared to $38.3 million for the year ended December 31, 2020. The decrease in cash used in investing activities was
primarily due to a decrease in additions to investments in real estate and acquisitions of real estate of $13.9 million, collectively, mainly as a result of the
development of an office building at 3601 S Congress Avenue which was completed during 2020. Additionally, we had an increase of $22.7 million in principal
collected on loans receivable partially offset by an increase in cash used to fund loans of $10.9 million during the year ended December 31, 2021 as compared to
2020, both primarily as a result of the PPP originations and collection of principal on the related loans.
Our cash flows from financing activities are generally impacted by borrowings and capital activities. Net cash used in financing activities for the year
ended December 31, 2021 was $43.6 million compared to cash provided by financing activities of $33.2 million for the year ended December 31, 2020. The
change was due to $100.3 million increase in payment of unsecured revolving lines of credit, revolving credit facilities, mortgages payable, term notes and
principal on SBA 7(a) loan-backed notes, a $42.1 million decrease in proceeds from unsecured revolving lines of credit, revolving credit facilities and term notes,
as well as a $12.1 million decrease in proceeds from issuance of preferred stock partially offset by net proceeds of $76.9 million from issuance of Common Stock
related to the Rights Offering (as defined below) during the year ended December 31, 2021.
Liquidity and Capital Resources
General
On a short-term basis, our principal demands for funds will be for the acquisition of assets, development or repositioning of properties, or re-leasing of
space in existing properties, capital expenditures, interest and principal on current and any future debt financings, SBA 7(a) loan originations, and paying
distributions on our Preferred Stock and Common Stock. We may finance our future activities through one or more of the following methods: (i) offerings of
shares of Common Stock, preferred stock or other equity and or debt securities of the Company; (ii) credit facilities and term loans; (iii) the addition of senior
recourse or non-recourse debt using target acquisitions as well as existing assets as collateral; (iv) the sale of existing assets; and or (v) cash flows from operations.
With respect to the $100.0 million outstanding under the 2018 revolving credit facility as of March 10, 2022 that is scheduled to mature in October 2022, we
expect to extend its maturity to October
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2023, subject to satisfying certain conditions, and/or refinance such indebtedness. Based on our projected performance and current capital market conditions, we
expect that we can implement either or both options. In November 2022, holders of the Series L Preferred Stock will have the right to require us to redeem all or
any of the shares of Series L Preferred Stock held by such holders. At the same time, we will also have the right to redeem any or all shares of our Series L
Preferred Stock. The redemption price, whether the redemption is at the request of a holder or by us, will be equal to 100% of the stated value of the Series L
Preferred Stock plus any accrued and unpaid dividend. We can pay the redemption price, at our option and in our sole discretion, either in cash or in equal value
through the issuance of shares of our Common Stock. We do not know whether holders of Series L Preferred Stock will exercise their redemption rights and, if so,
in what amounts. We are currently actively evaluating our options with respect to whether we will exercise our redemption right with respect to any or all shares of
Series L Preferred Stock as well as other alternatives.
Our long-term liquidity needs will consist primarily of funds necessary for acquisitions of assets, development or repositioning of properties, or re-leasing
of space in existing properties, capital expenditures, refinancing of indebtedness, SBA 7(a) loan originations, paying distributions on our Preferred Stock or any
other preferred stock we may issue, any future repurchase and or redemption of our Preferred Stock (if we choose, or are required, to pay the redemption price in
cash instead of in shares of our Common Stock) and distributions on our Common Stock. Additionally, our outstanding commitments to fund loans were $32.6
million as of December 31, 2021, substantially all of which reflect prime-based loans to be originated by our subsidiary engaged in SBA 7(a) Small Business Loan
Program lending. The majority of these commitments have government guarantees of 90% (although the government guarantee has now reverted to 75%) and we
believe that we will be able to sell the guaranteed portion of these loans in a liquid secondary market upon fully funding these loans. Since some commitments are
expected to expire without being drawn upon, total commitment amounts do not necessarily represent future cash requirements.
We may not have sufficient funds on hand or may not be able to obtain additional financing to cover all of our long-term cash requirements. The nature of
our business, and the requirements imposed by REIT rules that we distribute a substantial majority of our REIT taxable income on an annual basis in the form of
dividends, may cause us to have substantial liquidity needs over the long-term. While we will seek to satisfy such needs through one or more of the methods
described in the first paragraph of this section, our ability to take such actions is highly uncertain and cannot be predicted, and could be affected by various risks
and uncertainties, including, but not limited to, the effects of COVID-19 and other risks detailed in “Item 1A—Risk Factors” of this Annual Report on Form 10-K.
If we cannot obtain funding for our long-term liquidity needs, our assets may generate lower cash flows or decline in value, or both, which may cause us to sell
assets at a time when we would not otherwise do so which could have a material adverse effect on our business, financial condition, results of operations, cash
flow or our ability to satisfy our debt service obligations or to maintain our level of distributions on our Common Stock or Preferred Stock.
Sources and Uses of Funds
Mortgages
We have one mortgage loan agreement with an outstanding balance of $97.1 million as of December 31, 2021.
Revolving Credit Facilities
In October 2018, we entered into the 2018 revolving credit facility that, as amended, allows us to borrow up to $209.5 million, subject to a borrowing
base calculation. As of December 31, 2021 and 2020, the variable interest rate was 2.15% and 2.20%, respectively. The 2018 revolving credit facility matures in
October 2022 and provides for one one-year extension option under certain conditions, including providing notice of the election and paying an extension fee of
0.15% of each lender’s commitment being extended on the effective date of such extension. We expect to extend its maturity to October 2023, subject to satisfying
certain conditions, and/or refinance such indebtedness. Based on our projected performance and current capital market conditions, we expect that we can
implement either or both options. As of March 10, 2022, December 31, 2021, and December 31, 2020, $100.0 million, $60.0 million and $166.5 million,
respectively, was outstanding under the 2018 Credit Facility and approximately $77.6 million, $117.6 million, and $28.0 million, respectively, was available for
future borrowings.
In May 2020, to further enhance our liquidity position and maintain financial flexibility, we entered into the 2020 unsecured revolving credit facility (the
“2020 Credit Facility”) pursuant to which we can borrow up to a maximum of $10.0 million. Outstanding advances under the 2020 Credit Facility bear interest at
the rate of 1.00%. The 2020 Credit Facility matures in May 2022. As of both March 10, 2022 and December 31, 2021, no amounts were outstanding under the
2020 Credit Facility and $10.0 million was available for future borrowings.
In June 2020, we commenced borrowing funds from the Federal Reserve through the PPPLF. Advances under the PPPLF carry an interest rate of 0.35%,
are made on a dollar-for-dollar basis based on the amount of loans originated under the
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PPP and are secured by loans made by us under the PPP. The PPPLF contains customary covenants but is not subject to any financial covenants. The maturity date
of PPPLF borrowings is the same as the maturity date of the loans pledged to secure the extension of credit, generally two years. At maturity, both principal and
accrued interest are due. The maturity date of a PPPLF borrowing will be accelerated if, among other things, we have been reimbursed by the SBA for a loan
forgiveness (to the extent of the forgiveness), we have received payment from the SBA representing exercise of the loan guarantee or we have received payment
from the underlying borrower (to the extent of the payment received). We borrowed money under the PPPLF to finance all the loans we originated under the PPP.
As of December 31, 2021, $5.0 million was outstanding under the PPPLF.
Other Financing Activity
On May 30, 2018, we completed a securitization of the unguaranteed portion of certain of our SBA 7(a) loans receivable with the issuance of $38.2
million of unguaranteed SBA 7(a) loan-backed notes. The SBA 7(a) loan-backed notes mature on March 20, 2043, with monthly payments due as payments on the
collateralized loans are received. Based on the anticipated repayments of our collateralized SBA 7(a) loans, at issuance, we estimated the weighted average life of
the SBA 7(a) loan-backed notes to be approximately two years. The SBA 7(a) loan-backed notes bear interest at the lower of the one-month LIBOR plus 1.40% or
the prime rate less 1.08%. The outstanding balance of SBA 7(a) loan-backed notes on March 10, 2022, December 31, 2021, and December 31, 2020, was $6.5
million, $7.7 million and $14.2 million, respectively.
We have junior subordinated notes with a variable interest rate that resets quarterly based on the three-month LIBOR plus 3.25%, with quarterly
interest‑only payments. The junior subordinated balance is due at maturity on March 30, 2035. The junior subordinated notes may be redeemed at par at our
option. The aggregate principal balance of the junior subordinated notes was $27.1 million as of December 31, 2021.
As an SBA 7(a) licensee, we are an authorized lender under the PPP and originated loans under the program. As of December 31, 2021, we had $5.1
million outstanding in PPP loans. We expect that all of the outstanding PPP loans will be forgiven, either in part or in full, by the SBA or be repaid by the
borrower, including both principal and accrued interest.
Securities Offerings
We conducted a continuous public offering of Series A Preferred Units from October 2016 through January 2020, where each Series A Preferred Unit
consisted of one share of Series A Preferred Stock and one Series A Preferred Warrant. During the tenure of the offering, we issued 4,603,287 Series A Preferred
Units and received net proceeds of $105.2 million after commissions, fees and allocated costs.
The Series A Preferred Warrants are exercisable beginning on the first anniversary of the date of their original issuance until and including the fifth
anniversary of the date of such issuance. At the time of issuance, the exercise price of each Series A Preferred Warrant was equal to a 15.0% premium to the per
share estimated NAV of our Common Stock most recently published and designated as the applicable NAV by us at the time of issuance. However, in accordance
with the terms of the Series A Preferred Warrants, the exercise price of each Series A Preferred Warrant issued prior to the Reverse Stock Split was automatically
adjusted to reflect the effect of the Reverse Stock Split and, in the discretion of our Board of Directors, the exercise price and the number of shares issuable upon
exercise of each Series A Preferred Warrant issued prior to the Special Dividend was adjusted to reflect the effect of the Special Dividend. As of December 31,
2021, there were 4,541,852 Series A Preferred Warrants to purchase 1,178,125 shares of Common Stock outstanding.
Since February 2020, we have conducted a continuous public offering of up to approximately $785.0 million of our Series A Preferred Stock and Series
D Preferred Stock. We intend to use the net proceeds from the offering for general corporate purposes, acquisitions of shares of our Common Stock and Preferred
Stock, whether through one or more tender offers, share repurchases or otherwise, and acquisitions consistent with our acquisition and asset management
strategies. As of December 31, 2021, we had issued 7,557,916 shares of Series A Preferred Stock and 56,857 shares of Series D Preferred Stock and received
aggregate net proceeds of $172.2 million after commissions, fees and allocated costs.
On March 16, 2020, we established an “at the market” (“ATM”) program through which we may, from time to time in our discretion, offer and sell shares
of Common Stock having an aggregate offering price of up to $25.0 million through an investment banking firm acting as the sales agent. Sales of Common Stock
under the ATM program may be made directly on or through Nasdaq, among other methods. We intend to use the net proceeds from shares sold under the ATM
program, if any, for general corporate purposes, acquisitions of shares of our Preferred Stock, whether through one or more tender offers, share repurchases or
otherwise, and acquisitions consistent with our acquisition and asset management strategies. As of March 10, 2022, no sales of Common Stock have been made
under the ATM program.
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During the twelve months ended December 31, 2021, we conducted the Rights Offering pursuant to which we issued an aggregate of 8,521,589 shares of
Common Stock at a subscription price of $9.25 per share for aggregate gross proceeds of $78.8 million before issuance costs of $1.9 million.
Dividends on and Redemptions of Preferred Stock
Holders of Series A Preferred Stock, Series D Preferred Stock and Series L Preferred Stock are entitled to receive, if, as and when authorized by our
Board of Directors, and declared by us out of legally available funds, cumulative cash dividends on each share at an annual rate of 5.50% of the Series A Preferred
Stock Stated Value (i.e., the equivalent of $0.34375 per share per quarter), 5.65% of the Series D Preferred Stock Stated Value (i.e., the equivalent of $0.35313 per
share per quarter), and 5.50% of the Series L Preferred Stock Stated Value (i.e., the equivalent of $1.56035 per share per year), respectively. However, if we fail to
timely declare distributions or fail to timely pay any distribution on the Series L Preferred Stock, the annual dividend rate of the Series L Preferred Stock will
temporarily increase by 1.00% per year, up to a maximum annual rate of 8.50% of the Series L Preferred Stock Stated Value. Dividends on each share of Preferred
Stock begin accruing on, and are cumulative from, the date of issuance. Prior to the payment of any distributions on Series L Preferred Stock in respect of a given
year, we must first declare and pay dividends on the Common Stock in respect of such year in an aggregate amount equal to the Initial Dividend announced by our
Board of Directors at the end of the prior fiscal year. On December 29, 2021, we announced an Initial Dividend on shares of our Common Stock for fiscal year
2022 in the aggregate amount of $7,010,799,
We expect to pay dividends on the Series A Preferred Stock and Series D Preferred Stock in arrears on a monthly basis, and on the Series L Preferred
Stock in arrears on a yearly basis, unless our results of operations, our general financing conditions, general economic conditions, applicable requirements of the
MGCL or other factors make it imprudent to do so. The timing and amount of dividends declared and paid on our Preferred Stock will be determined by our Board
of Directors, in its sole discretion, and may vary from time to time.
Holders of our Common Stock are entitled to receive dividends, if, as and when authorized by the Board of Directors and declared by us out of legally
available funds. In determining our dividend policy, the Board of Directors considers many factors including the amount of cash resources available for dividend
distributions, capital spending plans, cash flow, our financial position, applicable requirements of the MGCL, any applicable contractual restrictions, and future
growth in NAV and cash flow per share prospects. Consequently, the dividend rate on a quarterly basis does not necessarily correlate directly to any individual
factor.
From the date of issuance until the fifth anniversary of the date of issuance, holders of Series A Preferred Stock and Series D Preferred Stock may require
us to redeem such shares at a discount to the Series A Preferred Stated Value and Series D Preferred Stated Value, respectively. From and after the fifth
anniversary of the date of original issuance of any share of our Preferred Stock, we generally (subject to certain conditions) have the right (but not the obligation)
to redeem, and the holder of such share may require us to redeem, such share at a redemption price equal to 100% of the stated value of such share, plus any
accrued but unpaid dividends in respect of such share as of the effective date of the redemption. The redemption price in respect of any share of Preferred Stock,
whether redeemed at our option or at the option of a holder, may be paid in cash or in shares of Common Stock in our sole discretion. During the year ended
December 31, 2021, we redeemed 223,295 shares of Series A Preferred Stock and no shares of Series D Preferred Stock and Series L Preferred Stock.
Off Balance Sheet Arrangements
As of December 31, 2021, we did not have any off-balance sheet arrangements.
Critical Accounting Policies and Estimates and Recently Issued Accounting Pronouncements
The discussion and analysis of our historical financial condition and results of operations is based upon our consolidated financial statements, which have
been prepared in accordance with GAAP. The preparation of financial statements in accordance with GAAP requires us to make estimates and assumptions that
affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. While we believe that our estimates are based on reasonable assumptions and judgments at the time
they are made, some of our assumptions, estimates and judgments will inevitably prove to be incorrect. As a result, actual results could differ from our estimates,
and those differences could be material.
We believe the following critical accounting policy, among others, affects our more significant estimates and assumptions used in preparing our
consolidated financial statements. For a discussion of recently issued accounting literature, see Note 2 to our consolidated financial statements included in this
Annual Report on Form 10-K.
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Recoverability of Investments in Real Estate
As described in Note 2 to the consolidated financial statements included in this Annual Report on Form 10-K, investments in real estate are evaluated for
impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If, and when, such events or
changes in circumstances are present, the recoverability of assets to be held and used is measured by a comparison of the carrying amount to the future
undiscounted cash flows expected to be generated by the assets and its eventual disposition. If the undiscounted cash flows are less than the carrying amount of the
assets, an impairment is recognized to the extent the carrying amount of the assets exceeds the estimated fair value of the assets. Assets held for sale are reported
at the lower of the asset’s carrying amount or fair value, less cost to sell.
Our process for evaluating real estate impairment requires management to make significant assumptions related to certain inputs, including rental rates,
lease-up period, occupancy, estimated holding periods, capital expenditures, growth rates, market discount rates and terminal capitalization rates. These inputs
require a subjective evaluation based on the specific property and market. Changes in the assumptions could have a significant impact on either the fair value, the
amount of impairment charge, if any, or both.
FINRA Estimated Per Share Value
We have prepared an estimate of the per share value of each of our Series A Preferred Stock and Series D Preferred Stock as of December 31, 2021 in
order to assist broker-dealers that are participating in our public offering of Series A Preferred Stock and Series D Preferred Stock in meeting their obligations
under applicable FINRA rules. This estimate utilizes the fair values of our investments in real estate and certain lending assets as well as the carrying amounts of
our other assets and liabilities, in each case as of December 31, 2021 (the “Calculated Assets and Liabilities”). Specifically, we divided (i) the fair values of our
investments in real estate and certain lending assets and the carrying amounts of our other assets less the carrying amounts of our liabilities, in each case as of
December 31, 2021, by (ii) the number of shares of Series A Preferred Stock and Series D Preferred Stock outstanding as of that date. The fair values of our
investments in real estate and certain lending assets were determined with material assistance from third-party appraisal firms engaged to value our investments in
real estate and certain lending assets, in each case in accordance with standards set forth by the American Institute of Certified Public Accountants. We believe our
methodology of determining the Calculated Assets and Liabilities conforms to standard industry practices and is reasonably designed to ensure it is reliable.
The terms of the Series A Preferred Stock and Series D Preferred Stock expressly provide that the amount that a holder of Series A Preferred Stock or
Series D Preferred Stock, as the case may be, would be entitled to receive upon the redemption of the Series A Preferred Stock or Series D Preferred Stock, as the
case may be, or our liquidation would be equal to the Series A Preferred Stock Stated Value or Series D Preferred Stock Stated Value, as the case may be, plus, in
each case, all accumulated, accrued and unpaid dividends thereon (the “Maximum Value”), subject to any applicable redemption fee in the case of a redemption by
such holder. As a result, in no event would a holder of Series A Preferred Stock or Series D Preferred Stock, as the case may be, be entitled to receive an amount
greater than the Maximum Value upon the redemption of such shares or our liquidation. Accordingly, although the estimated value of the Series A Preferred Stock
and Series D Preferred Stock, calculated based on the Calculated Assets and Liabilities as described above, exceeded the Maximum Value, we determined that the
estimated value of each of the Series A Preferred Stock and Series D Preferred Stock, as of December 31, 2021, was equal to $25.00 per share, plus accrued and
unpaid dividends.
Dividends
As of December 31, 2021, there were 8,126,597 and 7,903,302 shares of Series A Preferred Stock issued and outstanding, respectively, 56,857 shares of
Series D Preferred Stock issued and outstanding, 8,080,740 and 5,387,160 shares of Series L Preferred Stock issued and outstanding, respectively, and 23,369,331
shares of Common Stock issued and outstanding.
Holders of Preferred Stock are entitled to receive, if, as and when authorized by our Board of Directors, and declared by us out of legally available funds,
cumulative cash dividends as follows:
Series A Preferred Stock
Series D Preferred Stock
Series L Preferred Stock
(1)
Annual Rate of Dividend (as a % of stated value)
5.50%
5.65%
5.50%
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(1)
If we fail to timely declare distributions or fail to timely pay distributions on the Series L Preferred Stock, the annual dividend rate of the Series L
Preferred Stock will temporarily increase by 1.0% per year, up to a maximum rate of 8.5% per annum.
Dividends on each share of Preferred Stock begin accruing on, and are cumulative from, the date of issuance. Prior to the payment of any distributions on
Series L Preferred Stock in respect of a given year, we must first declare and pay dividends on the Common Stock in respect of such year in an aggregate amount
equal to the Initial Dividend announced by our Board of Directors at the end of the prior fiscal year. On December 29, 2021, we announced an Initial Dividend on
shares of our Common Stock for fiscal year 2022 in the aggregate amount of $7,010,799.
We expect to timely pay dividends on the Preferred Stock in arrears on a monthly basis, unless our results of operations, our general financing conditions,
general economic conditions, applicable requirements of the MGCL or other factors make it imprudent to do so. The timing and amount of dividends declared and
paid on our Preferred Stock will be determined by our Board of Directors, in its sole discretion, and may vary from time to time.
Holders of our Common Stock are entitled to receive dividends, if, as and when authorized by the Board of Directors and declared by us out of legally
available funds. In determining our dividend policy, the Board of Directors considers many factors including the amount of cash resources available for dividend
distributions, capital spending plans, cash flow, our financial position, applicable requirements of the MGCL, any applicable contractual restrictions, and future
growth in NAV and cash flow per share prospects. Consequently, the dividend rate on a quarterly basis does not necessarily correlate directly to any individual
factor.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
The fair value of our mortgage payable is sensitive to fluctuations in interest rates. Discounted cash flow analysis is generally used to estimate the fair
value of our mortgage payable, using a rate of 3.22% and 3.38% as of December 31, 2021 and 2020, respectively. As of both December 31, 2021 and 2020, our
mortgage payable had a book value of $97.1 million and a fair value of $100.8 million.
Our future income, cash flow and fair values relevant to financial instruments are dependent upon prevalent market interest rates. Market risk refers to the
risk of loss from adverse changes in market prices and interest rates. We are exposed to market risk in the form of changes in interest rates and the potential impact
such changes may have on the cash flows from our floating rate debt or the fair values of our fixed rate debt. As of December 31, 2021 and 2020 (excluding
premiums, discounts, and deferred loan costs), $102.1 million (or 50.2%) and $111.6 million (or 34.0%) of our debt, respectively, was fixed rate mortgage loans,
and $101.4 million (or 49.8%) and $216.3 million (or 66.0%), respectively, was floating rate borrowings. Based on the level of floating rate debt outstanding as of
December 31, 2021 and 2020, a 50 basis point change in LIBOR would result in an annual impact to our earnings of approximately $507,000 and $1.1 million,
respectively. We calculate interest rate sensitivity by multiplying the amount of floating rate debt by the respective change in rate. The sensitivity analysis does not
take into consideration possible changes in the balances or fair value of our floating rate debt.
Item 8. Financial Statements and Supplementary Data
The information required by this Item is incorporated herein by reference to the Financial Statements and Auditors’ Report beginning on page F-1.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
As of December 31, 2021, we carried out an evaluation, under the supervision and with the participation of our management, including our Principal
Executive Officer and Principal Financial Officer, regarding the effectiveness of the design and operation of our disclosure controls and procedures (as defined in
Rules 13a-15I and 15d-15(e) under the Exchange Act) at the end of the period covered by this report. Based on that evaluation, the Chief Executive Officer and
Chief Financial Officer concluded, as of that time, that our disclosure controls and procedures were effective in ensuring that information required to be disclosed
by us in the reports that we file or submit to the SEC under the Exchange Act is recorded, processed, summarized and reported within the time periods specified
by the SEC’s rules and forms and include controls and procedures designed to ensure the information required to be disclosed by us in such reports is accumulated
and communicated to
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management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Management’s Report on Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the
Exchange Act. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. We reviewed the results of management’s
assessment with the Audit Committee of the Board of Directors.
Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2021. In making this assessment, management
used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control—Integrated Framework (2013). Based
on their assessment, management determined that as of December 31, 2021, our internal control over financial reporting was effective based on those criteria.
The effectiveness of our internal control over financial reporting as of December 31, 2021 has been audited by Deloitte & Touche, LLP, an independent
registered public accounting firm as stated in their report which appears herein.
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the Board of Directors of Creative Media & Community Trust Corporation
Opinion on Internal Control over Financial Reporting
We have audited the internal control over financial reporting of Creative Media & Community Trust Corporation (formerly, CIM Commercial Trust Corporation)
(the “Company”) as of December 31, 2021, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of
Sponsoring Organizations of the Treadway Commission (COSO). In our opinion, the Company maintained, in all material respects, effective internal control over
financial reporting as of December 31, 2021, based on criteria established in Internal Control — Integrated Framework (2013) issued by COSO.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial
statements as of and for the year ended December 31, 2021, of the Company and our report dated March 16, 2022, expressed an unqualified opinion on those
financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal
control over financial reporting, included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Management's Report on
Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our
audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S.
federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding
of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of
internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit
provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial
reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in
accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with
the policies or procedures may deteriorate.
/s/ Deloitte & Touche LLP
Los Angeles, CA
March 16, 2022
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Limitations on the Effectiveness of Controls
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls or our internal controls
will prevent all errors and fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control
system’s objectives will be met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be
considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all
control issues and instances of fraud, if any, have been detected. These inherent limitations include the realities that judgments in decision making can be faulty,
and that breakdowns can occur because of simple error or mistake. Controls can also be circumvented by the individual acts of some persons, by collusion of two
or more people, or by management override of the controls. The design of any system of controls is based in part upon certain assumptions about the likelihood of
future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may
become inadequate because of changes in conditions or deterioration in the degree of compliance with associated policies or procedures. Because of the inherent
limitations in a cost effective control system, misstatements due to error or fraud may occur and not be detected.
Changes in Internal Control Over Financial Reporting
There have been no changes in our internal control over financial reporting that occurred during the quarter ended December 31, 2021 that have
materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
None.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
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Table of Contents
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Information required by this Item regarding our directors and executive officers, and corporate governance, including information with respect to
beneficial ownership reporting compliance, will appear in the Proxy Statement we will deliver to our stockholders in connection with our 2022 Annual Meeting of
Stockholders. Such information is incorporated herein by reference. Information relating to the registrant’s Code of Business Conduct and Ethics that applies to its
employees, including its senior financial officers, is included in Part I of this Annual Report on Form 10-K under “Item 1––Business—Available Information.”
Item 11. Executive Compensation
The information required by this Item will appear in the Proxy Statement we will deliver to our stockholders in connection with our 2022 Annual
Meeting of Stockholders. Such information is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this Item regarding security ownership of certain beneficial owners and management will appear in the Proxy Statement we
will deliver to our stockholders in connection with our 2022 Annual Meeting of Stockholders. Such information is incorporated herein by reference. Information
relating to securities authorized for issuance under our equity compensation plans is included in Part II of this Annual Report on Form 10-K under “Item 5—
Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.”
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this Item will appear in the Proxy Statement we will deliver to our stockholders in connection with our 2022 Annual
Meeting of Stockholders. Such information is incorporated herein by reference.
Item 14. Principal Accountant Fees and Services
The information required by this Item will appear in the Proxy Statement we will deliver to our stockholders in connection with our 2022 Annual
Meeting of Stockholders. Such information is incorporated herein by reference.
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Item 15. Exhibits and Financial Statement Schedules
(a) 1. Financial Statements
PART IV
The list of the financial statements filed as part of this Annual Report on Form 10-K is set forth on page F-1 herein.
2. Financial Statement Schedules
The list of the financial statement schedules filed as part of this Annual Report on Form 10-K is set forth on page F-1 herein.
Note: Other schedules are omitted because of the absence of conditions under which they are required or because the required information is given in the
financial statements or notes thereto.
3. Exhibits
The following documents are included or incorporated by reference in this Annual Report on Form 10-K:
Exhibit No.
Document
3.1 Articles of Amendment and Restatement of PMC Commercial Merger Sub, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current
Report on Form 8-K filed with the SEC on May 2, 2014).
3.1(a) Articles of Amendment (Name Change) (incorporated by reference to Exhibit 3.4 to the Registrant's Current Report on Form 8-K filed with the SEC
on May 2, 2014).
3.1(b) Articles of Amendment (Reverse Stock Split) (incorporated by reference to Exhibit 3.5 to the Registrant's Current Report on Form 8-K filed with
the SEC on May 2, 2014).
3.1(c) Articles of Amendment (Par Value Decrease) (incorporated by reference to Exhibit 3.6 to the Registrant's Current Report on Form 8-K filed with the
SEC on May 2, 2014).
3.1(d) Articles of Amendment (Reverse Stock Split) (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with
the SEC on September 6, 2019).
3.1(e) Articles of Amendment (Par Value Decrease) (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with
the SEC on September 6, 2019).
3.1(f) Articles of Amendment (Name Change) (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the
SEC on March 10, 2022).
3.2 Articles Supplementary to the Articles of Amendment and Restatement of CIM Commercial Trust Corporation, designating the Series A Preferred
Stock (incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed with the SEC on October 27, 2016).
3.3 Amendment No. 1 to the Articles Supplementary to the Articles of Amendment and Restatement of CIM Commercial Trust Corporation,
designating the Series A Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the
SEC on January 31, 2020).
3.4 Articles Supplementary to the Articles of Amendment and Restatement of CIM Commercial Trust Corporation, designating the Series D Preferred
Stock (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on January 31, 2020).
3.5 Articles Supplementary to the Articles of Amendment and Restatement of CIM Commercial Trust Corporation, designating the Series L Preferred
Stock (incorporated by reference to Exhibit 4.1 to the Registrant's Pre-Effective Amendment No. 4 to the Form S-11 Registration Statement (333-
218019) filed with the SEC on November 15, 2017).
*3.6 Bylaws of CIM Commercial Trust Corporation
*4.1 Description of Securities of CIM Commercial Trust Corporation.
4.2 Purchase Agreement among PMC Commercial Trust, PMC Preferred Capital Trust-A and Taberna Preferred Funding I, Ltd. dated March 15, 2005
(incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q filed with the SEC on May 10, 2005).
4.3 Junior Subordinated Indenture between PMC Commercial Trust and JPMorgan Chase Bank, National Association as Trustee dated March 15, 2005
(incorporated by reference to Exhibit 10.2 to the Registrant's Quarterly Report on Form 10-Q filed with the SEC on May 10, 2005).
4.4 Amended and Restated Trust Agreement among PMC Commercial Trust, JPMorgan Chase Bank, National Association, Chase Bank USA, National
Association and The Administrative Trustees Named Herein dated March 15, 2005 (incorporated by reference to Exhibit 10.3 to the Registrant's
Quarterly Report on Form 10‑Q filed with the SEC on May 10, 2005).
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4.5 Floating Rate Junior Subordinated Note due 2035 (incorporated by reference to Exhibit 10.5 to the Registrant's Quarterly Report on Form 10-Q filed
with the SEC on May 10, 2005).
4.6 Warrant Agreement, dated June 28, 2016, between CIM Commercial Trust Corporation and American Stock Transfer & Trust Company, LLC
(incorporated by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-11/A filed with the SEC on June 29, 2016).
4.7 First Amendment to Warrant Agreement, dated November 6, 2019, between CIM Commercial Trust Corporation and American Stock Transfer &
Trust Company, LLC (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on
November 8, 2019).
4.8 Form of Warrant Certificate (incorporated by reference to Exhibit 4.4 to the Registrant’s Registration Statement on Form S-11 filed with the SEC on
June 29, 2016).
+10.1 2015 Equity Incentive Plan (incorporated by reference to Annex A to the Registrant's Definitive Proxy Statement related to its 2015 annual meeting
of stockholders, as filed with the SEC on April 17, 2015).
+10.2 Amended and Restated Executive Employment Contract with Barry N. Berlin dated August 30, 2013 (incorporated by reference to Exhibit 10.2 to
the Registrant's Current Report on Form 8-K filed with the SEC on August 30, 2013).
10.3 Master Services Agreement dated March 11, 2014 by and among PMC Commercial Trust, certain of its subsidiaries, and CIM Service
Provider, LLC (incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the SEC on March 11, 2014).
10.4 Service Agreement, dated as of August 7, 2014, by and among CIM Commercial Trust Corporation and CIM Service Provider, LLC, under the
Master Services Agreement dated March 11, 2014, by and among PMC Commercial Trust, certain of its subsidiaries, and CIM Service
Provider, LLC (incorporated by reference to Exhibit 10.8 to the Registrant's Quarterly Report on Form 10-Q filed with the SEC on August 11,
2014).
10.5 Form of Indemnification Agreement for directors and officers of CIM Commercial Trust Corporation (incorporated by reference to Exhibit 10.9 to
the Registrant's Quarterly Report on Form 10-Q filed with the SEC on August 11, 2014).
10.6 Staffing and Reimbursement Agreement, dated as of January 1, 2015, by and among CIM SBA Staffing, LLC, PMC Commercial Lending, LLC and
CIM Commercial Trust Corporation (incorporated by reference to Exhibit 10.15 to the Registrant's Annual Report on Form 10-K filed with the SEC
on March 16, 2015).
10.7 Investment Management Agreement, dated as of December 10, 2015, between CIM Urban Partners, L.P. and CIM Investment Advisors, LLC
(incorporated by reference to Exhibit 10.16 to the Registrant's Annual Report on Form 10-K filed with the SEC on March 15, 2016).
10.8 Assignment Agreement, dated as of January 1, 2019, by and among CIM Capital, LLC (formerly known as CIM Investment Advisors, LLC), CIM
Capital Controlled Company Management, LLC, CIM Capital RE Debt Management, LLC, CIM Capital Real Property Management, LLC and CIM
Capital Securities Management, LLC (incorporated by reference to Exhibit 10.12 to the Registrant's Annual Report on Form 10-K filed with the
SEC on March 18, 2019).
10.9 Second Amended and Restated Dealer Manager Agreement, dated as of January 28, 2020, by and among CIM Commercial Trust Corporation, CIM
Service Provider, LLC and CCO Capital, LLC (incorporated by reference to Exhibit 10.11 to the Registrant’s Annual Report on Form 10-K filed
with the SEC on March 16, 2020).
10.10 Amendment No. 1, dated as of April 9, 2020, to Second Amended and Restated Dealer Manager Agreement, dated as of January 28, 2020, by and
among CIM Commercial Trust Corporation, CIM Service Provider, LLC and CCO Capital, LLC (incorporated by reference to Exhibit 1.1 to the
Registrant’s Current Report on Form 8 K filed with the SEC on April 9, 2020).
10.11 Second Amended and Restated Agreement of Limited Partnership of CIM Urban Partners, L.P., dated as of December 22, 2005, by and among CIM
Urban Partners GP, Inc. and CIM Urban REIT, LLC (incorporated by reference to Exhibit 10.17 to the Registrant's Annual Report on Form 10-K
filed with the SEC on March 16, 2015).
10.12 Credit Agreement, dated as of October 30, 2018, by and among certain subsidiary borrowers of CIM Commercial Trust Corporation, JPMorgan
Chase Bank, N.A., as administrative agent, Bank of America, as syndication agent, and the other lenders party thereto (incorporated by reference to
Exhibit 10.12 to the Registrant’s Registration Statement on Form S-11 (Reg. No. 333-232232) filed with the SEC on October 2, 2019).
10.13 Modification Agreement, dated as of September 2, 2020, among certain subsidiary borrowers of CIM Commercial Trust Corporation, each Lender
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (incorporated by reference to Exhibit 10.1 to the Registrant’s Current
Report on Form 8‑K filed with the SEC on September 3, 2020).
10.14 Lease Agreement, dated as of June 29, 2009, by and among CIM/Oakland 1 Kaiser Plaza, LP and Kaiser Foundation Health Plan, Inc, as amended
by the First Amendment to Lease, dated as of June 15, 2012, as further amended by the Second Amendment to Lease, dated as of December 16,
2013, as further amended by the Third Amendment to Lease, dated as of July 8, 2015, and as further amended by the Fourth Amendment to Lease,
dated as of November 18, 2015 (incorporated by reference to Exhibit 10.16 to the Registrant’s Annual Report on Form 10-K filed with the SEC on
March 16, 2020).
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10.15 Equity Distribution Agreement, dated as of March 16, 2020, by and among CIM Commercial Trust Corporation, CIM Capital, LLC, CIM Service
Provider, LLC and Ladenburg Thalmann & Co. Inc. (incorporated by reference to Exhibit 1.1 to the Registrant’s Current Report on Form 8‑K filed
with the SEC on March 16, 2020).
10.16 Amendment No. 2, dated as of September 22, 2021, to Second Amended and Restated Dealer Manager Agreement, dated as of January 28, 2020, by
and among CIM Commercial Trust Corporation, CIM Service Provider, LLC and CCO Capital, LLC (incorporated by reference to Exhibit 1.1 to the
Registrant's Current Report on 8-K filed with the SEC on September 24, 2021)
10.17 Fee Waiver, dated January 5, 2022, by and among CIM Commercial Trust Corporation, CIM Service Provider, LLC, CIM Capital, LLC, CIM
Capital Securities Management, LLC, CIM Capital Controlled Company Management, LLC, CIM Capital RE Debt Management, LLC, CIM
Capital Real Property Management, LLC, CIM Urban Partners, L.P., PMC Funding Corp. and PMC Properties, Inc.
16.1 Letter from BDO USA, LLP dated November 9, 2020 (incorporated by reference to Exhibit 16.1 to the Registrant's Current Report on Form 8-K
filed with the SEC on November 9, 2020).
*21.1 Subsidiaries of the Registrant.
*23.1 Consent of Deloitte & Touche, LLP.
*24.1 Powers of Attorney (included on signature page).
*31.1 Section 302 Officer Certification-Chief Executive Officer.
*31.2 Section 302 Officer Certification-Chief Financial Officer.
*32.1 Section 906 Officer Certification-Chief Executive Officer.
*32.2 Section 906 Officer Certification-Chief Financial Officer.
* Filed herewith.
+ Management contract or compensatory plan
(b) Exhibits
The exhibits listed in Item 15(a) are incorporated by reference or attached hereto.
(c) Excluded Financial Statements
None.
Item 16. Form 10-K Summary
None.
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Table of Contents
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SIGNATURES
Creative Media & Community Trust Corporation
Dated: March 16, 2022
Dated: March 16, 2022
By:
By:
/s/ DAVID THOMPSON
David Thompson
Chief Executive Officer
/s/ NATHAN D. DEBACKER
Nathan D. DeBacker
Chief Financial Officer
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David Thompson and
Nathan D. DeBacker and each of them severally, his true and lawful attorney-in-fact with power of substitution and resubstitution to sign in his name, place and
stead, in any and all capacities, to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the
Securities Exchange Act of 1934 and any rules, regulations and requirements of the U.S. Securities and Exchange Commission in connection with this Annual
Report on Form 10-K and any and all amendments hereto, as fully for all intents and purposes as he might or could do in person, and hereby ratifies and confirms
all said attorneys-in-fact and agents, each acting alone, and his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
Signature
/s/ David Thompson
David Thompson
/s/ Nathan D. DeBacker
Nathan D. DeBacker
/s/ Douglas Bech
Douglas Bech
/s/ Marcie L. Edwards
Marcie L. Edwards
/s/ Kelly Eppich
Kelly Eppich
/s/ Frank Golay
Frank Golay
/s/ Shaul Kuba
Shaul Kuba
/s/ Richard Ressler
Richard Ressler
/s/ Avraham Shemesh
Avraham Shemesh
Title
Chief Executive Officer (Principal Executive
Officer)
Chief Financial Officer (Principal Financial
Officer and Principal Accounting Officer)
Director
Director
Director
Director
Director
Director
Director
73
Date
March 16, 2022
March 16, 2022
March 16, 2022
March 16, 2022
March 16, 2022
March 16, 2022
March 16, 2022
March 16, 2022
March 16, 2022
Table of Contents
Financial Statements
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
TABLE OF CONTENTS
Report of Independent Registered Public Accounting Firm (PCAOB ID No. 34)
Consolidated Balance Sheets as of December 31, 2021 and 2020
Consolidated Statements of Operations for the Years Ended December 31, 2021 and 2020
Consolidated Statements of Equity for the Years Ended December 31, 2021 and 2020
Consolidated Statements of Cash Flows for the Years Ended December 31, 2021 and 2020
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020 and for the Years Ended December 31, 2021 and 2020
Schedule III—Real Estate and Accumulated Depreciation
Schedule IV—Mortgage Loans on Real Estate
F-1
Page
Number
F-2
F-4
F-5
F-6
F-8
F-9
F-43
F-45
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the Board of Directors of Creative Media & Community Trust Corporation
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Creative Media & Community Trust Corporation (formerly, CIM Commercial Trust
Corporation) (the “Company”) as of December 31, 2021 and 2020, the related consolidated statements of operations and comprehensive (loss) income, equity and
cash flows, for each of the two years in the period ended December 31, 2021, and the related notes and schedules (collectively referred to as the “financial
statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2021 and
2020, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2021, in conformity with accounting
principles generally accepted in the United States of America.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal
control over financial reporting as of December 31, 2021, based on criteria established in Internal Control — Integrated Framework (2013) issued by the
Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 16, 2022, expressed an unqualified opinion on the Company’s
internal control over financial reporting.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements
based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance
with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to
assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such
procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the
accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe
that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current-period audit of the financial statements that was communicated or required to be
communicated to the audit committee and that (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially
challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements,
taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or
disclosures to which it relates.
Investments in Real Estate – Evaluation of Impairment Indicators and Undiscounted Cash Flows – Refer to Note 2 to the consolidated financial
statements
Critical Audit Matter Description
The Company’s evaluation of investments in real estate for impairment involves an initial assessment of each real estate asset to determine whether events or
changes in circumstances exist that may indicate that the carrying amounts of each investment in real estate is no longer recoverable. Possible indications of
impairment may include changes in real estate market conditions, property performance, and additional property valuation assumptions including discount and
terminal capitalization rates. When events or changes in circumstances exist, the Company evaluates its investment in real estate for impairment by comparing
undiscounted future cash flows expected to be generated over the life of each asset to the respective carrying amount. If the carrying amount of an asset exceeds
the undiscounted future cash flows, an analysis is performed to determine the fair value of the asset.
F-2
Table of Contents
The Company makes significant assumptions to evaluate investments in real estate for possible indications of impairment. Changes in these assumptions could
have a significant impact on the investment in real estate identified for further analysis. For those investments in real estate where indications of impairment have
been identified, the Company makes significant estimates and assumptions to determine whether the undiscounted future cash flows expected to be generated over
the life of the asset exceed the carrying amount of the investment in real estate. Management concluded that the carrying value of the assets were recoverable and
therefore were not subjected to a discounted cash flow analysis. Estimates and assumptions used for the undiscounted future cash flows of the office property
include rental rates, lease-up period, growth rates, hold period, and terminal capitalization rates.
We identified the determination of impairment indicators for investments in real estate and certain assumptions used for the undiscounted future cash flows of the
properties as a critical audit matter because of (1) the significant assumptions management makes when determining whether events or changes in circumstances
have occurred indicating that the carrying amounts of investments in real estate assets may not be recoverable and (2) for those investments in real estate where
indications of impairment have been identified, the significant estimates and assumptions management makes to evaluate whether the undiscounted future cash
flows expected to be generated over the life of the asset exceed the carrying amount of the property, including those related to rental rates, lease-up period, growth
rates, hold period, and terminal capitalization rates. This required a high degree of auditor judgment and an increased extent of effort, including the need to involve
our fair value specialists, when performing audit procedures to evaluate (1) whether management appropriately identified impairment indicators and (2) the
reasonableness of management’s assumptions related to rental rates, lease-up period, growth rates, hold period, and terminal capitalization rates for the
undiscounted future cash flows analysis.
How the Critical Audit Matter Was Addressed in the Audit
• We tested the effectiveness of controls over (1) management’s identification of possible circumstances that may indicate that the carrying amounts of
investments in real estate are no longer recoverable and (2) the undiscounted cash flows, including review of the underlying inputs.
• We evaluated the accuracy and relevance of factors utilized in the Company’s qualitative assessment for a sample of properties.
• We performed corroborating inquiries with management, including property accounting, leasing and portfolio oversight to determine whether factors
were identified in the current period that may be an impairment indicator or whether factors were identified in the current period that may result in a
change to assumptions used in the undiscounted cash flow models.
• We evaluated whether the assumptions used in the Company’s undiscounted model relating to rental rates, lease-up period, growth rates, hold period, and
terminal capitalization rates were consistent with evidence obtained in other areas of the audit.
• With the assistance of our fair value specialists, we evaluated the undiscounted cash flow analysis, including office asset estimates of rental rates, lease-
up periods, growth rates, hold period and terminal capitalization rates by (1) evaluating the source of information and assumptions used by management
and (2) testing the mathematical accuracy of the undiscounted cash flow analysis.
• We evaluated the reasonableness of management’s undiscounted cash flow analysis by comparing management’s projections to the Company’s historical
results and external market sources.
/s/ Deloitte & Touche LLP
Los Angeles, CA
March 16, 2022
We have served as the Company’s auditor since 2020.
F-3
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
(In thousands, except share and per share amounts)
ASSETS
Investments in real estate, net
Cash and cash equivalents
Restricted cash
Loans receivable, net
Accounts receivable, net
Deferred rent receivable and charges, net
Other intangible assets, net
Other assets
TOTAL ASSETS
LIABILITIES, REDEEMABLE PREFERRED STOCK, AND EQUITY
LIABILITIES:
Debt, net
Accounts payable and accrued expenses
Intangible liabilities, net
Due to related parties
Other liabilities
Total liabilities
COMMITMENTS AND CONTINGENCIES (Note 13)
REDEEMABLE PREFERRED STOCK: Series A cumulative redeemable preferred stock, $0.001 par value;
36,000,000 shares authorized; 1,633,965 and 1,631,965 shares issued and outstanding, respectively, as of
December 31, 2021 and 2,008,256 and 2,007,856 shares issued and outstanding, respectively, as of December 31,
2020; liquidation preference of $25.00 per share, subject to adjustment
EQUITY:
Series A cumulative redeemable preferred stock, $0.001 par value; 36,000,000 shares authorized; 6,492,632 and
6,271,337 shares issued and outstanding, respectively, as of December 31, 2021 and 4,484,376 and 4,377,762
shares issued and outstanding, respectively, as of December 31, 2020; liquidation preference of $25.00 per
share, subject to adjustment
Series D cumulative redeemable preferred stock, $0.001 par value; 32,000,000 shares authorized; 56,857 shares
issued and outstanding as of December 31, 2021 and 19,145 shares issued and outstanding as of December 31,
2020; liquidation preference of $25.00 per share, subject to adjustment
Series L cumulative redeemable preferred stock, $0.001 par value; 9,000,000 shares authorized; 8,080,740 and
5,387,160 shares issued and outstanding, respectively, as of December 31, 2021 and 8,080,740 and 5,387,160
shares issued and outstanding as of December 31, 2020; liquidation preference of $28.37 per share, subject to
adjustment
Common stock, $0.001 par value; 900,000,000 shares authorized; 23,369,331 and 14,827,410 shares issued and
outstanding as of December 31, 2021 and December 31, 2020, respectively
Additional paid-in capital
Distributions in excess of earnings
Total stockholders’ equity
Noncontrolling interests
Total equity
TOTAL LIABILITIES, REDEEMABLE PREFERRED STOCK, AND EQUITY
December 31,
2021
2020
497,984 $
22,311
11,340
73,543
3,396
36,095
5,251
10,946
660,866 $
201,145 $
26,751
237
4,541
16,861
249,535
506,040
33,636
10,013
83,135
1,737
35,956
6,313
8,787
685,617
324,313
20,327
587
6,706
9,733
361,666
37,782
45,837
156,431
108,729
1,396
473
152,834
24
866,746
(804,227)
373,204
345
373,549
660,866 $
152,834
15
794,127
(778,519)
277,659
455
278,114
685,617
$
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
F-4
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
(In thousands, except per share amounts)
Year Ended December 31,
2020
2021
REVENUES:
Rental and other property income
Hotel income
Interest and other income
Total Revenues
EXPENSES:
Rental and other property operating
Asset management and other fees to related parties
Expense reimbursements to related parties—corporate
Expense reimbursements to related parties—lending segment
Interest
General and administrative
Transaction costs
Depreciation and amortization
Loss on early extinguishment of debt (Note 6)
Impairment of real estate (Note 3)
Total Expenses
Gain on sale of real estate (Note 3)
INCOME (LOSS) BEFORE PROVISION (BENEFIT) FOR INCOME TAXES
Provision (benefit) for income taxes
NET (LOSS) INCOME
Net loss (income) attributable to noncontrolling interests
NET (LOSS) INCOME ATTRIBUTABLE TO THE COMPANY
Redeemable preferred stock dividends declared or accumulated (Note 9)
Redeemable preferred stock deemed dividends (Note 9)
Redeemable preferred stock redemptions (Note 9)
NET (LOSS) INCOME ATTRIBUTABLE TO COMMON STOCKHOLDERS
NET (LOSS) INCOME ATTRIBUTABLE TO COMMON STOCKHOLDERS PER SHARE:
Basic
Diluted
WEIGHTED AVERAGE SHARES OF COMMON STOCK OUTSTANDING:
Basic
Diluted
$
$
$
$
52,838 $
16,722
21,366
90,926
39,272
9,030
2,050
1,921
9,413
6,844
143
20,112
—
—
88,785
—
2,141
2,992
(851)
1
(850)
(18,763)
(253)
(113)
(19,979) $
(1.04) $
(1.04) $
19,187
19,187
54,823
11,882
10,503
77,208
37,544
9,793
2,243
3,491
11,415
6,772
—
21,406
281
—
92,945
—
(15,737)
(722)
(15,015)
(1)
(15,016)
(18,002)
(377)
(72)
(33,467)
(2.27)
(2.27)
14,748
14,748
The accompanying notes are an integral part of these consolidated financial statements.
F-5
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Consolidated Statements of Equity
(In thousands, except share and per share amounts)
Years Ended December 31, 2021 and 2020
Common Stock
(1)
Preferred Stock
Balances, December 31, 2019
Distributions to noncontrolling interests
Stock-based compensation expense
Issuance of shares of Common Stock in
exchange for asset management fees
Issuance of Series A Preferred Warrants
Common dividends ($0.300 per share)
Dividends to holders of Series A
Preferred Stock ($1.719 per share)
Issuance of Series D Preferred Stock
Dividends to holders of Series D
Preferred Stock ($1.648 per share)
Dividends to holders of Series L
Preferred Stock ($1.560 per share)
Reclassification of Series A Preferred
Stock to permanent equity
Redeemable Preferred Stock deemed
dividends
Redemption of Series A Preferred
Stock
Net (loss) income
Shares
14,602,149 $
—
21,912
203,349
—
—
—
—
—
—
—
—
—
—
Balances, December 31, 2020
14,827,410 $
Par
Value
15
—
—
—
—
—
—
—
—
—
—
—
—
—
15
Distributions
in Excess
of Earnings
Total
Stockholders’
Equity
Non-
controlling
Interests
277,690 $
—
222
505 $
(51)
—
Par
Value
223,467 $
—
—
Additional
Paid - in
Capital
794,825 $
—
222
—
—
—
—
473
—
—
2,359
28
—
—
(17)
—
—
Shares
8,224,254 $
—
—
—
—
—
—
19,145
—
—
1,570,421
38,837
(3,354)
—
—
—
(740,617) $
—
—
—
—
(4,431)
(9,579)
—
(21)
2,359
28
(4,431)
(9,579)
456
(21)
(8,406)
(8,406)
—
(377)
35,483
(377)
Total
Equity
278,195
(51)
222
2,359
28
(4,431)
(9,579)
456
(21)
(8,406)
35,483
(377)
—
—
—
—
—
—
—
—
—
(29,753)
—
9,784,067 $
(741)
—
262,036 $
64
—
794,127 $
(72)
(15,016)
(778,519) $
(749)
(15,016)
277,659 $
—
1
455 $
(749)
(15,015)
278,114
(Continued)
F-6
Table of Contents
Balances, December 31, 2020
Contributions to noncontrolling
interests
Distributions to noncontrolling
interests
Stock-based compensation expense
Common dividends ($0.300 per
share)
Dividends to holders of Series A
Preferred Stock ($1.375 per share)
Issuance of Series D Preferred Stock
Dividends to holders of Series D
Preferred Stock ($1.413 per share)
Dividends to holders of Series L
Preferred Stock ($1.560 per share)
Reclassification of Series A
Preferred Stock to permanent
equity
Redeemable Preferred Stock deemed
dividends
Redemption of Series A Preferred
Stock
Issuance of Common Stock
Net loss
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Consolidated Statements of Equity (Continued)
(In thousands, except share and per share amounts)
Common Stock
Preferred Stock
Years Ended December 31, 2021 and 2020
Shares
14,827,410 $
Par
Value
15
Shares
9,784,067 $
Par
Value
Additional
Paid-in
Capital
Distributions
in Excess of
Earnings
Total
Stockholders’
Equity
Non-
controlling
Interests
Total
Equity
262,036 $
794,127 $
(778,519) $
277,659 $
455 $
278,114
—
—
20,332
—
—
—
—
—
—
—
—
8,521,589
—
—
—
—
—
—
—
—
—
—
—
—
9
—
24
—
—
—
—
—
37,712
—
—
—
—
—
—
—
923
—
—
—
—
220
—
—
(30)
—
—
—
—
—
—
—
220
(5,732)
(5,732)
(10,289)
—
(10,289)
893
(65)
(65)
(8,406)
(8,406)
2,006,456
50,508
(4,702)
—
—
—
—
(253)
45,806
(253)
9
(118)
—
—
—
—
—
—
—
—
(112,881)
—
—
11,715,354 $
(2,806)
—
—
310,661 $
219
76,912
—
866,746 $
(113)
—
(850)
(804,227) $
(2,700)
76,921
(850)
373,204 $
—
—
(1)
345 $
9
(118)
220
(5,732)
(10,289)
893
(65)
(8,406)
45,806
(253)
(2,700)
76,921
(851)
373,549
Balances, December 31, 2021
23,369,331 $
The accompanying notes are an integral part of these consolidated financial statements.
F-7
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(In thousands)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net (loss) income
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation and amortization, net
Loss on early extinguishment of debt
Amortization of deferred loan costs
Amortization of premiums and discounts on debt
Unrealized premium adjustment
Amortization of deferred costs and accretion of fees on loans receivable, net
(Recoveries) write-offs of uncollectible receivables
Deferred income taxes
Stock-based compensation
Loans funded, held for sale to secondary market
Proceeds from sale of guaranteed loans
Principal collected on loans subject to secured borrowings
Commitment fees remitted and other operating activity
Changes in operating assets and liabilities:
Accounts receivable
Other assets
Accounts payable and accrued expenses
Deferred leasing costs
Other liabilities
Due to related parties
Net cash provided by operating activities
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to investments in real estate
Acquisition of real estate
Loans funded
Principal collected on loans
Other investing activity
Net cash (used in) provided by investing activities
CASH FLOWS FROM FINANCING ACTIVITIES:
Payment of unsecured revolving lines of credit, revolving credit facilities, mortgages payable, term notes and principal on
SBA 7(a) loan-backed notes
Proceeds from unsecured revolving lines of credit, revolving credit facilities and term notes
Payment of principal on secured borrowings
Payment of deferred preferred stock offering costs
Payment of deferred costs
Payment of common dividends
Proceeds from issuance of Common Stock
Payment of Common Stock offering costs
Net proceeds from issuance of Series A Preferred Warrants
Net proceeds from issuance of Preferred Stock
Payment of preferred stock dividends
Redemption of Preferred Stock
Year Ended December 31,
2021
2020
$
(851) $
(15,015)
20,188
—
1,068
(61)
2,930
(622)
(82)
72
220
(96,991)
109,000
1,786
(2,559)
(1,519)
(1,340)
2,574
(1,669)
7,128
7,009
46,281
(4,047)
(2,933)
(36,299)
30,584
—
(12,695)
(157,910)
35,396
(1,786)
(1,149)
(1)
(3,979)
78,825
(1,900)
—
29,829
(18,045)
(2,755)
21,085
281
1,192
(84)
1,281
(410)
2,622
(995)
222
(28,131)
25,722
3,695
(935)
(419)
1,233
(1,080)
(1,838)
(274)
4,675
12,827
(14,731)
(6,131)
(25,393)
7,884
51
(38,320)
(57,584)
77,516
(3,695)
(943)
(983)
(4,431)
—
—
28
41,958
(16,536)
(2,084)
(Continued)
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows (Continued)
(In thousands)
Noncontrolling interests’ distributions
Noncontrolling interests’ contributions
Net cash (used in) provided by financing activities
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS AND RESTRICTED CASH
CASH AND CASH EQUIVALENTS AND RESTRICTED CASH:
Beginning of period
End of period
RECONCILIATION OF CASH AND CASH EQUIVALENTS AND RESTRICTED CASH TO THE CONSOLIDATED
BALANCE SHEETS:
Cash and cash equivalents
Restricted cash
Total cash and cash equivalents and restricted cash
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for interest
Federal income taxes paid
SUPPLEMENTAL DISCLOSURES OF NONCASH INVESTING AND FINANCING ACTIVITIES:
Accrued capital expenditures, tenant improvements and real estate developments
Accrued deferred costs
Accrued preferred stock offering costs
Accrual of dividends payable to preferred stockholders
Accrual of dividends payable to common stockholders
Preferred stock offering costs offset against redeemable preferred stock
Reclassification of Series A Preferred Stock from temporary equity to permanent equity
Reclassification of loans receivable, net to real estate owned
Reclassification of Series A Preferred Stock from permanent equity to accounts payable and accrued expenses
Redeemable preferred stock deemed dividends
Accrued Redeemable Preferred Stock fees
Equity-based payment for management fees
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
Year Ended December 31,
2021
2020
(118)
9
(43,584)
(9,998)
43,649
33,651 $
22,311 $
11,340
33,651 $
8,463 $
2,900 $
2,127 $
— $
161 $
12,051 $
1,753 $
400 $
45,806 $
— $
48 $
253 $
638 $
(51)
—
33,195
7,702
35,947
43,649
33,636
10,013
43,649
10,315
273
267
125
675
11,343
—
583
35,483
174
25
377
493
9,174 $
7,400
F-8
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020
1. ORGANIZATION AND OPERATIONS
Creative Media & Community Trust Corporation (formerly known as CIM Commercial Trust Corporation) (the “Company”), is a Maryland corporation
and real estate investment trust (“REIT”). The Company’s portfolio of investments currently consists of Class A and creative office real assets in vibrant and
improving metropolitan communities throughout the United States. The Company seeks to acquire, operate and develop premier multifamily and creative office
assets that cater to rapidly growing industries such as technology, media and entertainment in vibrant and emerging communities throughout the United States.
The Company seeks to apply the expertise of CIM Group, L.P. (“CIM Group”) to the acquisition, development and operation of top-tier multifamily properties
situated in dynamic markets with similar business and employment characteristics to its creative office investments. The Company was originally organized in
1993 as PMC Commercial Trust (“PMC Commercial”), a Texas real estate investment trust.
The Company’s common stock, $0.001 par value per share (“Common Stock”), is currently traded on the Nasdaq Global Market (“Nasdaq”) under the
ticker symbol “CMCT”, and on the Tel Aviv Stock Exchange (the “TASE”) under the ticker symbol “CMCT-L.” The Company’s Series L preferred stock, $0.001
par value per share (“Series L Preferred Stock”), is currently traded on Nasdaq and on the TASE, in each case under the ticker symbol “CMCTP.” The Company
has authorized for issuance 900,000,000 shares of common stock and 100,000,000 shares of preferred stock (“Preferred Stock”).
The Company filed Articles of Amendment (the “Reverse Stock Split Amendment”) to effectuate a one-for-three reverse stock split of the Company’s
Common Stock, effective on September 3, 2019 (the “Reverse Stock Split”). Pursuant to the Reverse Stock Split Amendment, every three shares of Common
Stock issued and outstanding immediately prior to the effective time of the Reverse Stock Split were converted into one share of Common Stock, par value $0.003
per share. In connection with the Reverse Split Amendment, the Company filed Articles of Amendment to revert the par value of the Common Stock issued and
outstanding from $0.003 per share to $0.001 per share, effective as of September 3, 2019, following the effective time of the Reverse Split Amendment. All
Common Stock and per share of Common Stock amounts set forth in this Annual Report on Form 10-K have been adjusted to give retroactive effect to the
Reverse Stock Split, unless otherwise stated.
The Company conducted a continuous public offering of Series A Preferred Units from October 2016 through January 2020, where each Series A
Preferred Unit consisted of one share of Series A Preferred Stock, par value $0.001 per share, of the Company (collectively, the “Series A Preferred Stock”) with
an initial stated value of $25.00 per share, subject to adjustment (the “Series A Preferred Stock Stated Value”), and one warrant (collectively, the “Series A
Preferred Warrants”) to purchase 0.25 of a share of Common Stock, subject to adjustment (Note 10). Proceeds and expenses from the sale of the Series A
Preferred Units were allocated to the Series A Preferred Stock and Series A Preferred Warrants using their relative fair values on the date of issuance.
Since February 2020, the Company has been conducting a continuous public offering of Series A Preferred Stock and Series D preferred stock, par value
$0.001 per share (the “Series D Preferred Stock”), with an initial stated value of $25.00 per share, subject to adjustment (the “Series D Preferred Stock Stated
Value”). The selling price of the Series A Preferred Stock in the offering has been, and is expected to continue to be, $25.00 per share and the selling price of the
Series D Preferred Stock was $25.00 per share for all sales that occurred from the beginning of the offering to and including June 28, 2020 and is expected to be,
and since June 29, 2020, has been, $24.50 per share through the end of the life of the offering.
During the year ended December 31, 2021, the Company conducted a rights offering (the “Rights Offering”) pursuant to which the Company issued an
aggregate of 8,521,589 shares of Common Stock at a subscription price of $9.25 per share for aggregate gross proceeds of $78.8 million before issuance costs of
$1.9 million.
The Company has qualified and intends to continue to qualify as a REIT, as defined in the Internal Revenue Code of 1986, as amended.
2. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation—The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally
accepted in the United States (“GAAP”).
F-9
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Principles of Consolidation—The consolidated financial statements include the accounts of the Company and its subsidiaries. All intercompany
transactions and balances have been eliminated in consolidation. In determining whether the Company has controlling interests in an entity and the requirement to
consolidate the accounts in that entity, the Company analyzes its investments in real estate in accordance with standards set forth in GAAP to determine whether
they are variable interest entities (“VIEs”), and if so, whether the Company is the primary beneficiary. The Company’s judgment with respect to its level of
influence or control over an entity and whether the Company is the primary beneficiary of a VIE involves consideration of various factors, including the form of
the Company’s ownership interest, the Company’s voting interest, the size of the Company’s investment (including loans), and the Company’s ability to participate
in major policy-making decisions. The Company’s ability to correctly assess its influence or control over an entity affects the presentation of these investments in
real estate on the Company’s consolidated financial statements. As of December 31, 2021, the Company has determined that the trust formed for the benefit of the
note holders (the “Trust”) for the securitization of the unguaranteed portion of certain of the Company’s SBA 7(a) loans receivable is considered a VIE. Applying
the consolidation requirements for VIEs, the Company determined that it is the primary beneficiary based on its power to direct activities through its role as
servicer and its obligations to absorb losses and right to receive benefits.
Investments in Real Estate—Investments in real estate are stated at depreciated cost. Depreciation and amortization are recorded on a straight-line basis
over the estimated useful lives as follows:
Buildings and improvements
Furniture, fixtures, and equipment
Tenant improvements
15 - 40 years
3 - 5 years
Lesser of useful life or lease term
The fair value of real estate acquired is recorded to acquired tangible assets, consisting primarily of land, land improvements, building and improvements,
tenant improvements, furniture, fixtures, and equipment, and identified intangible assets and liabilities, consisting of the value of acquired above-market and
below-market leases, in-place leases and ground leases, if any, based in each case on their respective fair values. Loan premiums, in the case of above-market rate
loans, or loan discounts, in the case of below-market rate loans, are recorded based on the fair value of any loans assumed in connection with acquiring the real
estate.
Capitalized Project Costs
The Company capitalizes project costs, including pre-construction costs, interest expense, property taxes, insurance, and other costs directly related and
essential to the development, redevelopment, or construction of a project, while activities are ongoing to prepare an asset for its intended use. Costs incurred after
a project is substantially complete and ready for its intended use are expensed as incurred. Improvements and replacements are capitalized when they extend the
useful life, increase capacity, or improve the efficiency of the asset. Ordinary repairs and maintenance are expensed as incurred.
Recoverability of Investments in Real Estate—The Company continually monitors events and changes in circumstances that could indicate that the
carrying amounts of its real estate assets may not be recoverable. Investments in real estate are evaluated for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may not be recoverable. If, and when, such events or changes in circumstances are present, the
recoverability of assets to be held and used requires significant judgment and estimates and is measured by a comparison of the carrying amount to the future
undiscounted cash flows expected to be generated by the assets and their eventual disposition. If the undiscounted cash flows are less than the carrying amount of
the assets, an impairment is recognized to the extent the carrying amount of the assets exceeds the estimated fair value of the assets. The process for evaluating
real estate impairment requires management to make significant assumptions related to certain inputs, including rental rates, lease-up period, occupancy, estimated
holding periods, capital expenditures, growth rates, market discount rates and terminal capitalization rates. These inputs require a subjective evaluation based on
the specific property and market. Changes in the assumptions could have a significant impact on either the fair value, the amount of impairment charge, if any, or
both. Any asset held for sale is reported at the lower of the asset’s carrying amount or fair value, less costs to sell. When an asset is identified by the Company as
held for sale, the Company will cease recording depreciation and amortization of the asset. The Company did not recognize any impairment of long-lived assets
during the years ended December 31, 2021 and 2020 (Note 3).
Cash and Cash Equivalents—Cash and cash equivalents include short-term liquid investments with initial maturities of three months or less.
F-10
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Restricted Cash—The Company’s mortgage loan and hotel management agreements provide for depositing cash into restricted accounts reserved for
capital expenditures, free rent, tenant improvement and leasing commission obligations. Restricted cash also includes cash required to be segregated in connection
with certain of the Company’s loans receivable.
Loans Receivable—The Company’s loans receivable are carried at their unamortized principal balance less unamortized acquisition discounts and
premiums, deferred origination fees, retained loan discounts and loan loss reserves. Acquisition discounts or premiums, origination fees and retained loan
discounts are amortized as a component of interest and other income using the effective interest method over the life of the respective loans, or on a straight-line
basis when it approximates the effective interest method. All loans were originated pursuant to programs sponsored by the Small Business Administration (the
“SBA”). The programs consist of loans originated under the SBA 7(a) Small Business Loan Program (the “SBA 7(a) Program”) and, commencing with the quarter
ended June 30, 2020, the Paycheck Protection Program (the “PPP”).
Pursuant to the SBA 7(a) Program, the Company sells the portion of the loan that is guaranteed by the SBA. Upon sale of the SBA guaranteed portion of
the loans, which are accounted for as sales, the unguaranteed portion of the loan retained by the Company is recorded at fair value and a discount is recorded as a
reduction in basis of the retained portion of the loan. Unamortized retained loan discounts were $9.6 million and $7.8 million as of December 31, 2021 and 2020,
respectively.
At the closing of the merger between CIM Urban REIT, LLC (“CIM REIT”), an affiliate of CIM Group, and certain of its subsidiaries and PMC
Commercial Trust, the predecessor to the Company, the carrying value of the Company’s loans was adjusted to estimated fair market value and acquisition
discounts of $33.9 million were recorded, which are being accreted to interest and other income using the effective interest method. Acquisition discounts of
$381,000 and $492,000 remained as of December 31, 2021 and 2020, respectively.
A loan receivable is generally classified as non-accrual (a “Non-Accrual Loan”) if (i) it is past due as to payment of principal or interest for a period of 60
days or more, (ii) any portion of the loan is classified as doubtful or is charged-off or (iii) the repayment in full of the principal and or interest is in doubt.
Generally, loans are charged-off when management determines that the Company will be unable to collect any remaining amounts due under the loan agreement,
either through liquidation of collateral or other means. Interest income, included in interest and other income, on a Non-Accrual Loan is recognized on the cost
recovery basis.
Loan Loss Reserves—On a quarterly basis, and more frequently if indicators exist, the Company evaluates the collectability of its loans receivable. The
Company’s evaluation of collectability involves significant judgment, estimates, and a review of the ability of the borrower to make principal and interest
payments, the underlying collateral and the borrowers’ business models and future operations. For the years ended December 31, 2021 and 2020, the Company
recorded net impairment losses of $19,000 and a net recovery of $16,000, respectively, on its loans receivable. There were no material loans receivable subject to
credit risk which were considered to be impaired as of December 31, 2021 or 2020. The Company considers a loan to be impaired when the Company does not
expect to collect all of the contractual interest and principal payments as scheduled in the loan agreements. The Company also establishes a general loan loss
reserve when available information indicates that it is probable a loss has occurred based on the carrying value of the portfolio and the amount of the loss can be
reasonably estimated. Significant judgment is required in determining the general loan loss reserve, including estimates of the likelihood of default and the
estimated fair value of the collateral. The general loan loss reserve includes those loans, which may have negative characteristics which have not yet become
known to the Company. In addition to the reserves established on loans not considered impaired that have been evaluated under a specific evaluation, the
Company establishes the general loan loss reserve using a consistent methodology to determine a loss percentage to be applied to loan balances. These loss
percentages are based on many factors, primarily cumulative and recent loss history and general economic conditions. For the years ended December 31, 2021 and
2020, the Company has loan loss reserves of $943,000 and $885,000, respectively.
Deferred Rent Receivable and Charges—Deferred rent receivable and charges consist of deferred rent, deferred leasing costs, deferred offering costs
(Note 9) and other deferred costs. Deferred leasing costs, which represent lease commissions and other direct costs associated with the acquisition of tenants, are
capitalized and amortized on a straight-line basis over the terms of the related leases. Deferred offering costs represent direct costs incurred in connection with the
Company’s offerings of Series A Preferred Units, and, after January 2020, Series A Preferred Stock and Series D Preferred Stock, excluding costs specifically
identifiable to a closing, such as commissions, dealer-manager fees, and other offering fees and expenses. Generally, for a specific issuance of securities, issuance-
specific offering costs are recorded as a reduction of proceeds raised on the issuance date and offering costs incurred but not directly related to a specifically
identifiable closing of a security are deferred. Deferred offering costs are first allocated to each issuance of a security on a pro-rata basis equal to the
F-11
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
ratio of the number of securities issued in a given issuance to the maximum number of securities that are expected to be issued in the related offering. In the case
of the Series A Preferred Units, which were issued prior to February 2020, the issuance-specific offering costs and the deferred offering costs allocated to such
issuance were further allocated to the Series A Preferred Stock and Series A Preferred Warrants issued in such issuance based on the relative fair value of the
instruments on the date of issuance. The deferred offering costs allocated to the Series A Preferred Stock and Series A Preferred Warrants are reductions to
temporary equity and permanent equity, respectively.
As of December 31, 2021 and 2020, deferred rent receivable and charges, net consist of the following:
Deferred rent receivable
Deferred leasing costs, net of accumulated amortization of $8,971 and $7,742, respectively
Deferred offering costs
Other deferred costs
Deferred rent receivable and charges, net
$
$
December 31, 2021
December 31, 2020
(in thousands)
20,870 $
8,453
6,281
491
36,095 $
20,470
8,950
6,046
490
35,956
Noncontrolling Interests—Noncontrolling interests represent the interests in various properties owned by third parties.
Redeemable Preferred Stock—Beginning on the date of original issuance of any given shares of Series A Preferred Stock or Series D Preferred Stock,
and from and after the fifth anniversary date of the original issuance of the Series L Preferred Stock, the holder of such shares has the right to require the Company
to redeem such shares, subject to certain limitations as discussed in Note 9. The Company records the activity related to the Series A Preferred Warrants, Series D
Preferred Stock and Series L Preferred Stock in permanent equity. In the event a holder of Series A Preferred Stock requests redemption of such shares and such
redemption takes place prior to the first anniversary of the date of original issuance, the Company is required to pay such redemption in cash. As a result, the
Company records issuances of Series A Preferred Stock in temporary equity. On the first anniversary of the date of original issuance of a particular share of Series
A Preferred Stock, the Company reclassifies such share of Series A Preferred Stock from temporary equity to permanent equity because the feature giving rise to
temporary equity classification, the requirement to satisfy redemption requests in cash, lapses on the first anniversary date.
Purchase Accounting for Acquisition of Investments in Real Estate—The Company applies the acquisition method to all acquired real estate assets.
The purchase consideration of the real estate, which includes the transaction costs incurred in connection with such acquisitions, is recorded at fair value to the
acquired tangible assets, consisting primarily of land, land improvements, building and improvements, tenant improvements, and furniture, fixtures, and
equipment, and identified intangible assets and liabilities, consisting of the value of acquired above-market and below-market leases, in-place leases and ground
leases, if any, based in each case on their relative fair values. Loan premiums, in the case of above-market rate loans, or loan discounts, in the case of below-
market rate loans, are recorded based on the fair value of any loans assumed in connection with acquiring the real estate.
The fair value of the tangible assets of an acquired property is determined by valuing the property as if it were vacant, and the “as-if-vacant” value is then
allocated to land (or acquired ground lease if the land is subject to a ground lease), land improvements, building and improvements, and tenant improvements
based on management’s determination of the relative fair values of these assets. Management determines the as-if-vacant fair value of a property using methods
similar to those used by independent appraisers. Factors considered by management in performing these analyses include an estimate of carrying costs during the
expected lease-up periods considering current market conditions and costs to execute similar leases. In estimating carrying costs, management includes real estate
taxes, insurance and other operating expenses, and estimates of lost rental revenue during the expected lease-up periods based on current market demand.
Management also estimates costs to execute similar leases, including leasing commissions, legal, and other related costs.
In allocating the purchase consideration of the identified intangible assets and liabilities of an acquired property, above-market, below-market, and in-
place lease values are recorded based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference
between (i) the contractual amounts to be paid pursuant
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
to the in-place leases and (ii) management’s estimate of fair market lease rates for the corresponding in-place leases measured over a period equal to the remaining
non-cancelable term of the lease, and for below-market leases, over a period equal to the initial term plus any below-market fixed-rate renewal periods. Acquired
above-market and below-market leases are amortized and recorded to rental and other property income over the initial terms of the respective leases.
The aggregate value of other acquired intangible assets, consisting of in-place leases and tenant relationships, is measured by the estimated cost of
operations during a theoretical lease-up period to replace in-place leases, including lost revenues and any unreimbursed operating expenses, plus an estimate of
deferred leasing commissions for in-place leases. The value of in-place leases is amortized to expense over the remaining non-cancelable periods of the respective
leases. If a lease is terminated prior to its stated expiration, all unamortized amounts relating to that lease are written-off.
Revenue Recognition—At the inception of a revenue-producing contract, the Company determines if a contract qualifies as a lease and if not, then as a
customer contract. Based on this determination, the appropriate treatment in accordance with GAAP is applied to the contract, including its revenue recognition.
Revenue from leasing activities
The Company operates as a lessor of real estate assets. When the Company enters into a contract or amends an existing contract, the Company evaluates
if the contracts meet the definition of a lease using the following criteria:
• One party (lessor) must hold an identified asset;
•
•
The counterparty (lessee) must have the right to obtain substantially all of the economic benefits from the use of the asset throughout the period of
the contract; and
The counterparty (lessee) must have the right to direct the use of the identified asset throughout the period of the contract.
The Company determined that the Company’s contracts with its tenants explicitly identify the premises and that any substitution rights to relocate tenants
to other premises within the same building stated in the contract are not substantive. Additionally, so long as payments are made timely under such contracts, the
Company’s tenants have the right to obtain substantially all the economic benefits from the use of the identified asset and can direct how and for what purpose the
premises are used to conduct their operations. Therefore, the contracts with the Company’s tenants constitute leases.
All leases are classified as operating leases and minimum rents are recognized on a straight-line basis over the terms of the leases when collectability is
probable and the tenant has taken possession or controls the physical use of the leased asset. The excess of rents recognized over amounts contractually due
pursuant to the underlying leases is recorded as deferred rent. If the lease provides for tenant improvements, the Company determines whether the tenant
improvements, for accounting purposes, are owned by the tenant or the Company. When the Company is the owner of the tenant improvements, the tenant is not
considered to have taken physical possession or have control of the physical use of the leased asset until the tenant improvements are substantially completed.
When the tenant is considered the owner of the improvements, any tenant improvement allowance that is funded is treated as an incentive. Lease incentives paid to
tenants are included in other assets and amortized as a reduction to rental revenue on a straight-line basis over the term of the related lease. Lease incentives of
$4.0 million and $4.0 million are presented net of accumulated amortization of $2.7 million and $2.4 million as of December 31, 2021 and 2020, respectively.
Reimbursements from tenants, consisting of amounts due from tenants for common area maintenance, real estate taxes, insurance, and other recoverable
costs, are recognized as revenue and are included in rental and other property income in the period the expenses are incurred, with the corresponding expenses
included in rental and other property operating expense. Tenant reimbursements are recognized and presented on a gross basis when the Company is primarily
responsible for fulfilling the promise to provide the specified good or service and control that specified good or service before it is transferred to the tenant. The
Company has elected not to separate lease and non-lease components as the pattern of revenue recognition does not differ for the two components, and the non-
lease component is not the primary component in the Company’s leases.
In addition to minimum rents, certain leases, including the Company’s parking leases with third-party operators, provide for additional rents based upon
varying percentages of tenants’ sales in excess of annual minimums. Percentage rent is recognized once lessees’ specified sales targets have been met.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
For the years ended December 31, 2021 and 2020, the Company recognized rental income as follows:
Rental and other property income
Fixed lease payments
Variable lease payments
(2)
(1)
Rental and other property income
Year Ended December 31,
2020
2021
(in thousands)
$
$
45,773 $
7,065
52,838 $
50,245
4,578
54,823
(1)
(2)
Fixed lease payments include contractual rents under lease agreements with tenants recognized on a straight-line basis over the lease term, including
amortization of acquired above-market leases, below-market leases and lease incentives.
Variable lease payments include expense reimbursements billed to tenants and percentage rent, net of bad debt expense from the Company’s operating
leases plus cash payments from tenants deemed not probable of collections.
Collectability of Lease-Related Receivables
The Company continually reviews whether collection of lease-related receivables, including any straight-line rent, and current and future operating
expense reimbursements from tenants is probable. The determination of whether collectability is probable takes into consideration the tenant’s payment history,
the financial condition of the tenant, business conditions in the industry in which the tenant operates and economic conditions in the area in which the property is
located. Upon the determination that the collectability of a receivable is not probable, the Company will record a reduction to rental and other property income and
a decrease in the outstanding receivable. Revenue from leases where collection is deemed to be not probable is recorded on a cash basis until collectability
becomes probable. Management’s estimate of the collectability of lease-related receivables is based on the best information available at the time of estimate. The
Company does not use a general reserve approach. As of December 31, 2021 and 2020, the Company had identified certain tenants where collection was no longer
considered probable and decreased outstanding receivables by $579,000 and $1.9 million, respectively, across all operating leases.
Revenue from lending activities
Interest income included in interest and other income is comprised of interest earned on loans and the Company’s short-term investments and the
accretion of loan discounts. Interest income on loans is accrued as earned with the accrual of interest suspended when the related loan becomes a Non-Accrual
Loan (as defined below).
Revenue from hotel activities
The Company recognizes revenue from hotel activities separate from its leasing activities. At contract inception, the Company assesses the goods and
services promised in its contracts with customers and identifies a performance obligation for each promise to transfer to the customer a good or service (or bundle
of goods or services) that is distinct. To identify the performance obligations, the Company considers all of the goods or services promised in the contract
regardless of whether they are explicitly stated or implied by customary business practices. Various performance obligations of hotel revenues can be categorized
as follows:
•
•
cancellable and noncancelable room revenues from reservations and
ancillary services including facility usage and food or beverage.
Cancellable reservations represent a single performance obligation of providing lodging services at the hotel. The Company satisfies its performance
obligation and recognizes revenues associated with these reservations over time as services are rendered to the customer. The Company satisfies its performance
obligation and recognizes revenues associated with noncancelable reservations at the earlier of (i) the date on which the customer cancels the reservation or (ii)
over time as services are rendered to the customer.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Ancillary services include facilities usage and providing food and beverage. The Company satisfies its performance obligation and recognizes revenues
associated with these services at a point in time when the good or service is delivered to the customer.
At inception of a contract with a customer for hotel goods and services, the contractual price is equivalent to the transaction price as there are no elements
of variable consideration to estimate.
The Company presents hotel revenues net of sales, occupancy, and other taxes.
Below is a reconciliation of the hotel revenue from contracts with customers to the total hotel segment revenue disclosed in Note 16:
Hotel properties
Hotel income
Rental and other property income
Interest and other income
Hotel revenues
Tenant recoveries outside of the lease agreements
Year Ended December 31,
2020
2021
(in thousands)
$
$
16,722 $
1,070
57
17,849 $
11,882
1,353
79
13,314
Tenant recoveries outside of the lease agreements are related to construction projects in which the Company’s tenants have agreed to fully reimburse the
Company for all costs related to construction. These services include architectural, permit expediter and construction services. At inception of the contract with the
customer, the contractual price is equivalent to the transaction price as there are no elements of variable consideration to estimate. While these individual services
are distinct, in the context of the arrangement with the customer, all of these services are bundled together and represent a single package of construction services
requested by the customer. The Company satisfies its performance obligation and recognizes revenues associated with these services over time as the construction
is completed. No amounts were recognized for tenant recoveries outside of the lease agreements for the years ended December 31, 2021 and 2020. As of
December 31, 2021, there were no remaining performance obligations associated with tenant recoveries outside of the lease agreements.
Premiums and Discounts on Debt— Premiums and discounts on debt are accreted or amortized to interest expense using the effective interest method
or on a straight-line basis over the respective term of the debt, which approximates the effective interest method.
Stock-Based Compensation Plans—The Company has issued and continue to issue restricted shares under stock-based compensation plans described
more fully in Note 8. The Company uses fair value recognition provisions to account for all awards granted, modified or settled.
Earnings per Share (“EPS”)—Basic EPS is computed by dividing net income attributable to common stockholders by the weighted-average number of
shares of Common Stock outstanding for the period. Net income attributable to common stockholders includes a deduction for dividends due to preferred
stockholders. Diluted EPS is computed by dividing net income attributable to common stockholders by the weighted average number of shares of Common Stock
outstanding adjusted for the dilutive effect, if any, of securities such as stock-based compensation awards, warrants, including the Series A Preferred Warrants and
preferred stock, including the Series A Preferred Stock, Series D Preferred Stock and Series L Preferred Stock, whose redemption is payable in shares of Common
Stock or cash, at the discretion of the Company. The dilutive effect of stock-based compensation awards and warrants, including the Series A Preferred Warrants,
is reflected in the weighted average diluted shares calculation by application of the treasury stock method. The dilutive effect of preferred stock, including the
Series A Preferred Stock, Series D Preferred Stock and Series L Preferred Stock, whose redemption is payable in shares of Common Stock or cash, at the
discretion of the Company, is reflected in the weighted average diluted shares calculation by application of the if-converted method.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Distributions—Distributions on the Company’s Series A Preferred Stock, Series D Preferred Stock, Series L Preferred Stock and Common Stock are
recorded when they are authorized by its Board of Directors and declared by the Company.
Assets Held for Sale and Discontinued Operations—In the ordinary course of business, the Company may periodically enter into agreements to
dispose of its assets. Some of these agreements are non-binding because either they do not obligate either party to pursue any transactions until the execution of a
definitive agreement or they provide the potential buyer with the ability to terminate without penalty or forfeiture of any material deposit, subject to certain
specified contingencies, such as completion of due diligence at the discretion of such buyer. The Company does not classify assets that are subject to such non-
binding agreements as held for sale.
The Company classifies assets as held for sale, if material, when they meet the necessary criteria, which include: a) management commits to and actively
embarks upon a plan to sell the assets, b) the assets to be sold are available for immediate sale in their present condition, c) the sale is expected to be completed
within one year under terms usual and customary for such sales and d) actions required to complete the plan indicate that it is unlikely that significant changes to
the plan will be made or that the plan will be withdrawn. The Company generally believes that it meets these criteria when the plan for sale has been approved by
its management, having the authority to approve the sale, there are no known significant contingencies related to the sale and management believes it is probable
that the sale will be completed within one year.
Assets held for sale are recorded at the lower of cost or estimated fair value less cost to sell. In addition, if the Company were to determine that the asset
disposal associated with assets held for sale or disposed of represents a strategic shift, the revenues, expenses and net gain (loss) on dispositions would be recorded
in discontinued operations for all periods presented through the date of the applicable disposition.
Derivative Financial Instruments—As part of risk management and operational strategies, from time to time, the Company may enter into derivative
contracts with various counterparties. All derivatives are recognized on the balance sheet at their estimated fair value. Accounting for changes in the fair value of a
derivative instrument depends on the intended use of the derivative instrument and the designation of the derivative instrument. The change in fair value of the
derivative instrument that is designated as a hedge is recorded as other comprehensive income. The changes in fair value for derivative instruments that are not
designated as hedges or that do not meet the hedge accounting criteria are recorded as a gain or loss to operations.
Income Taxes—The Company has elected to be taxed as a REIT under the provisions of the Code. To the extent the Company qualifies for taxation as a
REIT, it generally will not be subject to a federal corporate income tax on its taxable income that is distributed to its stockholders. The Company may, however,
be subject to certain federal excise taxes and state and local taxes on its income and property. If the Company fails to qualify as a REIT in any taxable year, it will
be subject to federal income taxes at regular corporate rates and will not be able to qualify as a REIT for four subsequent taxable years. In order to remain
qualified as a REIT under the Code, the Company must satisfy various requirements in each taxable year, including, among others, limitations on share ownership,
asset diversification, sources of income, and the distribution of at least 90% of its taxable income within the specified time in accordance with the Code.
The Company has wholly-owned taxable REIT subsidiaries (“TRS’s”) which are subject to federal income taxes. The income generated from the taxable
REIT subsidiaries is taxed at normal corporate rates. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences
between the carrying amounts of existing assets and liabilities and their respective tax bases.
The Company has established a policy on classification of penalties and interest related to audits of its federal and state income tax returns. If incurred,
the Company’s policy for recording interest and penalties associated with audits will be to record such items as a component of general and administrative
expense. Penalties, if incurred, will be recorded in general and administrative expense and interest paid or received will be recorded in interest expense or interest
income, respectively, in the Company’s consolidated statements of operations.
ASC 740, Income Taxes, provides guidance for how uncertain tax positions should be recognized, measured, presented, and disclosed in the financial
statements. ASC 740 requires the evaluation of tax positions taken or expected to be taken in the course of preparing the Company’s tax returns to determine
whether the tax positions are “more likely than not” of being sustained by the applicable tax authority. Tax positions not deemed to meet the more-likely-than-not
threshold would be recorded as a tax benefit or expense in the current period. The Company has reviewed all open tax years and concluded that the application of
ASC 740 resulted in no material effect to its consolidated financial position or results of operations.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Use of Estimates—The preparation of consolidated financial statements in conformity with GAAP requires management to make certain estimates and
assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the consolidated financial
statements, and the reported amounts of revenues and expenses during the reporting period. The Company bases such estimates on historical experience,
information available at the time, and assumptions the Company believes to be reasonable under the circumstances and at such time, including the impact of
extraordinary events such as COVID-19. Actual results could differ from those estimates.
Concentration of Credit Risk—Financial instruments that subject us to credit risk consist primarily of cash and cash equivalents and interest rate swap
agreements. The Company has its cash and cash equivalents on deposit with what it believes to be high-quality financial institutions. Accounts at each institution
are insured by the Federal Deposit Insurance Corporation up to $250,000. Management routinely assesses the financial strength of its tenants and, as a
consequence, believes that its accounts receivable credit risk exposure is limited.
The majority of the Company’s revenues are earned from properties located in California. The Company is subject to risks incidental to the ownership
and operation of commercial real estate. These include, among others, the risks normally associated with changes in the general economic climate in the
communities in which the Company operates, trends in the real estate industry, changes in tax laws, interest rate levels, availability of financing, and the potential
liability under environmental and other laws.
Segment Information—Segment information is prepared on the same basis that the Company’s management reviews information for operational
decision-making purposes. The Company reportable segments for the years ended December 31, 2021 and 2020 consist of two types of commercial real estate
properties, namely office and hotel, as well as a segment for its lending business. The products for the Company’s office segment primarily include rental of office
space and other tenant services, including tenant reimbursements, parking, and storage space rental. The products for the Company’s hotel segment include
revenues generated from the operations of hotel properties and rental income generated from a garage located directly across the street from the hotel. The income
from the Company’s lending segment includes premium income recognized from the sale of the government guaranteed portion of loans receivable, income from
the yield on its loans receivable and other related fee income earned on its loans receivable.
Recently Issued Accounting Pronouncements—In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards
Update (“ASU”) No. 2016-13, Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, which was subsequently
amended by ASU No. 2018-19, Codification Improvements to Topic 326, Financial Instruments - Credit Losses (“ASU 2018-19”) in November 2018.
Subsequently, the FASB issued ASU No. 2019-04, ASU No. 2019-05, ASU No. 2019-10, ASU No. 2019-11 and ASU No. 2020-02 to provide additional guidance
on the credit losses standard. ASU 2016-13 and the related updates improve financial reporting requiring more timely recognition of credit losses on loans and
other financial instruments that are not accounted for at fair value through net income, including loans held-for-investment, held-to-maturity debt securities, net
investment in leases and other such commitments. ASU 2016-13 requires that financial assets measured at amortized cost be presented at the net amount expected
to be collected, through an allowance for credit losses that is deducted from the amortized cost basis. The amendments in ASU 2016-13 require the Company to
measure all expected credit losses based upon historical experience, current conditions, and reasonable and supportable forecasts that affect the collectability of the
financial assets and eliminates the “incurred loss” methodology under current GAAP. ASU 2018-19 clarified that receivables arising from operating leases are not
within the scope of Topic 326. Instead, impairment of receivables arising from operating leases should be accounted for in accordance with ASU No. 2016-02,
Leases (Topic 842). For smaller reporting companies, public entities that are not SEC filers, and entities that are not public business entities, the ASU is effective
for annual reporting periods (including interim reporting periods within those periods) beginning after December 15, 2022. Early adoption is permitted for annual
reporting periods (including interim reporting periods within those periods) beginning after December 15, 2018. The Company has not yet adopted ASU 2016-13
and the related updates and remains in the process of evaluating the impact of adoption of this new accounting guidance on its consolidated financial statements.
On April 10, 2020, the FASB issued a question-and-answer document (the “Q&A”) to address stakeholder questions on the application of the lease
accounting guidance for lease concessions related to the effects of COVID-19. The lease modification guidance in Topic 842, Leases, (or Topic 840, Leases)
would require the Company to determine, on a lease by lease basis, if a lease concession was the result of a new arrangement reached with the tenant (treated
within the lease modification accounting framework) or if a lease concession was made pursuant to the enforceable rights and obligations of the existing lease
agreement (precluded from applying the lease modification accounting framework). However, the Q&A provides
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
that the Company may bypass the lease by lease analysis if certain criteria are met, and instead elect to either consistently apply, or consistently not apply, the
lease modification framework to groups of leases with similar characteristics and similar circumstances. As described below, the Company has elected not to apply
the lease modification guidance to concessions related to the effects of COVID-19 that do not result in a substantial increase in the Company’s rights as lessor,
including concessions that result in the total payments required by the modified lease being substantially the same as or less than the total payments required by
the original lease.
3. INVESTMENTS IN REAL ESTATE
Investments in real estate consist of the following:
Land
Land improvements
Buildings and improvements
Furniture, fixtures, and equipment
Tenant improvements
Work in progress
Investments in real estate
Accumulated depreciation
Net investments in real estate
December 31,
2021
2020
(in thousands)
$
$
141,236 $
2,644
454,431
4,398
29,733
10,260
642,702
(144,718)
497,984 $
139,397
2,611
450,741
4,969
31,414
8,073
637,205
(131,165)
506,040
For the years ended December 31, 2021 and 2020, the Company recorded depreciation expense of $16.9 million and $17.7 million, respectively.
2021 Transactions—During the year ended December 31, 2021, the Company acquired a 100% fee-simple interest in the following property from an
unrelated third-party. The purchase was accounted for as an asset acquisition.
Property
1037 North Sycamore, Los Angeles, CA
Asset
Type
Office
Date of
Acquisition
Square Feet
Purchase
(1)
Price
(in thousands)
July 13, 2021
4,900
$
2,900
(1)
Transaction costs that were capitalized as a component of the assets acquired and liabilities assumed in connection with the acquisition of this property
totaled $33,000, which are not included in the purchase price above.
There were no dispositions during the year ended December 31, 2021.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
2020 Transactions—During the year ended December 31, 2020, the Company acquired a 100% fee-simple interest in the following property from an
unrelated third-party. The purchase was accounted for as an asset acquisition.
Property
1021 East 7th Street, Austin, TX
Asset
Type
Office
Date of
Acquisition
Square Feet
Purchase
(1)
Price
(in thousands)
November 30, 2020
11,180
$
6,079
(1)
Transaction costs that were capitalized as a component of the assets acquired and liabilities assumed in connection with the acquisition of this property
totaled $51,000, which are not included in the purchase price above.
There were no dispositions during the year ended December 31, 2020.
The results of operations of the properties the Company acquired have been included in the consolidated statements of operations from the date of
acquisition. The purchase price of the acquisitions completed during the years ended December 31, 2021 and 2020 were less than 10% of the Company’s total
assets as of the respective most recent annual consolidated financial statements filed at or prior to the date of acquisition. The following table summarizes the
purchase price allocation of the aforementioned acquisitions during the years ended December 31, 2021 and 2020.
Land
Land improvements
Buildings and improvements
Tenant improvements
Acquired in-place leases
Acquired above-market leases
Acquired below-market leases
(1)
(2)
(3)
Net assets acquired
Year Ended December 31,
2021
2020
(in thousands)
1,839 $
33
1,061
—
—
—
—
2,933 $
4,976
9
534
190
408
18
(5)
6,130
$
$
(1)
(2)
(3)
Acquired in-place leases have a weighted average amortization period of 3 years for the 2020 acquisition.
Acquired above-market leases have a weighted average amortization period of 3 years for the 2020 acquisition.
Acquired below-market leases have a weighted average amortization period of 3 years for the 2020 acquisition.
Property Concentrations—Kaiser Foundation Health Plan, Incorporated (“Kaiser”), which occupied space in one of the Company’s Oakland, California
properties accounted for 30.9% of its annualized rental income for the year ended December 31, 2021.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
4. LOANS RECEIVABLE
Loans receivable consist of the following:
SBA 7(a) loans receivable, subject to credit risk
SBA 7(a) loans receivable, subject to loan-backed notes
SBA 7(a) loans receivable, Paycheck Protection Program
SBA 7(a) loans receivable, subject to secured borrowings
SBA 7(a) loans receivable, held for sale
Loans receivable
Deferred capitalized costs, net
Loan loss reserves
Loans receivable, net
December 31,
2021
2020
(in thousands)
$
$
42,103 $
18,050
5,050
6,857
1,200
73,260
1,226
(943)
73,543 $
32,226
23,631
14,484
8,786
4,009
83,136
884
(885)
83,135
SBA 7(a) Loans Receivable, Subject to Credit Risk—Represents the unguaranteed portions of loans originated under the SBA 7(a) Program which
were retained by the Company.
SBA 7(a) Loans Receivable, Subject to Loan-Backed Notes—Represents the unguaranteed portions of loans originated under the SBA 7(a) Program
which were transferred to a trust and are held as collateral in connection with a securitization transaction. The proceeds received from the transfer are reflected as
loan-backed notes payable (Note 6). These loans are subject to credit risk.
SBA 7(a) Loans Receivable, Paycheck Protection Program—As an SBA 7(a) licensee, the Company originated loans under the PPP. As of
December 31, 2021, a significant portion of these loans have been either forgiven or repaid, and the Company expects that all of the outstanding PPP loans will be
forgiven, either in part or in full, by the SBA or be repaid by the borrower, including both principal and accrued interest.
SBA 7(a) Loans Receivable, Subject to Secured Borrowings—Represents the government guaranteed portions of loans originated under the SBA 7(a)
Program which were sold with the proceeds received from the sale reflected as secured borrowings—government guaranteed loans. There is no credit risk
associated with these loans since the SBA has guaranteed payment of the principal.
SBA 7(a) Loans Receivable, Held for Sale— Represents the government guaranteed portion of loans held for sale at the end of the period or that had
been sold but in respect of which proceeds had not been received as of the end of the period.
Other
As of December 31, 2021 and 2020, the Company’s loans subject to credit risk were 99.8% and 99.1%, respectively, concentrated in the hospitality
industry. As of December 31, 2021 and 2020, 100.0% and 98.8%, respectively, of the Company’s loans subject to credit risk were current. The Company classifies
loans with negative characteristics in substandard categories ranging from special mention to doubtful. As of December 31, 2021 and 2020, $1.1 million and $1.4
million, respectively, of loans subject to credit risk were classified in substandard categories.
F-20
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
5. OTHER INTANGIBLE ASSETS AND LIABILITIES
A schedule of our intangible assets and liabilities and related accumulated amortization and accretion as of December 31, 2021 and 2020, is as follows:
Intangible assets:
Acquired in-place leases, net of accumulated amortization of $9,030 and $9,228, respectively, with an average
useful life of 9 and 8 years, respectively
Acquired above-market leases, net of accumulated amortization of $27 and $15, respectively, both with an
average useful life of 6 years
Trade name and license
Total intangible lease assets, net
Intangible lease liabilities:
Acquired below-market leases, net of accumulated amortization of $1,134 and $1,786, respectively, with an
average useful life of 5 and 4 years, respectively
As of December 31,
2021
2020
(in thousands)
$
$
$
2,266 $
28
2,957
5,251 $
3,316
40
2,957
6,313
237 $
587
Amortization of the acquired above-market leases is recorded as a reduction to rental and other property income, and amortization of the acquired in-
place leases is included in depreciation and amortization in the accompanying consolidated statements of operations. Amortization of the acquired below-market
leases is recorded as an increase to rental and other property income in the accompanying consolidated statements of operations.
During the years ended December 31, 2021 and 2020, the Company recognized amortization related to its intangible assets and liabilities as follows:
Acquired above-market lease amortization
Acquired in-place lease amortization
Acquired below-market lease amortization
Year Ended December 31,
2020
2021
(in thousands)
12 $
1,050 $
350 $
10
1,364
700
$
$
$
A schedule of future amortization and accretion of acquired intangible assets and liabilities as of December 31, 2021, is as follows:
Years Ending December 31,
2022
2023
2024
2025
2026
Thereafter
Assets
Acquired
Above-Market
Leases
Acquired
In-Place
Leases
(in thousands)
Liabilities
Acquired
Below-Market
Leases
$
$
12 $
10
5
1
—
—
28 $
813 $
470
374
171
123
315
2,266 $
(236)
(1)
—
—
—
—
(237)
F-21
Table of Contents
6. DEBT
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
The following table summarizes the debt balances as of December 31, 2021 and 2020, and the debt activity for the year ended December 31, 2021 (in
thousands):
Balances as of
December 31, 2020
Debt Issuances &
Assumptions
Repayments
Accretion &
(Amortization)
Balances as of
December 31, 2021
During the Year Ended December 31, 2021
Mortgage Payable:
Outstanding Balance
Deferred debt issuance costs — Mortgage
Payable
Total Mortgage Payable
Secured Borrowings – Government
Guaranteed Loans:
Outstanding Balance
Unamortized premiums
Total Secured Borrowings—Government
Guaranteed Loans
Other Debt:
2018 revolving credit facility
2020 unsecured revolving credit facility
Junior subordinated notes
SBA 7(a) loan-backed notes
Borrowed funds from the Federal Reserve
through the Paycheck Protection Program
Liquidity Facility
Deferred debt issuance costs — other
Discount on junior subordinated notes
Total Other Debt
Total Debt, Net
$
$
97,100 $
— $
(147)
96,953
8,457
457
8,914
166,500
—
27,070
14,230
14,484
(2,155)
(1,683)
218,446
324,313 $
—
—
—
—
—
25,000
—
—
—
10,396
—
—
35,396
35,396 $
— $
—
—
(1,786)
—
(1,786)
(131,500)
—
—
(6,560)
(19,850)
—
—
(157,910)
(159,696) $
— $
27
27
—
(152)
(152)
—
—
—
—
—
1,166
91
1,257
1,132 $
97,100
(120)
96,980
6,671
305
6,976
60,000
—
27,070
7,670
5,030
(989)
(1,592)
97,189
201,145
Mortgage Payable—The mortgage payable is secured by a deed of trust on a property and assignments of rents receivable. As of December 31, 2021,
the Company’s mortgage payable had a fixed interest rate of 4.14% per annum, with monthly payments of interest only, due on July 1, 2026. The loan is
nonrecourse.
Secured Borrowings—Government Guaranteed Loans—Secured borrowings—government guaranteed loans represent sold loans which are treated as
secured borrowings because the loan sales did not meet the derecognition criteria provided for in ASC 860-30, Secured Borrowing and Collateral. These loans
included cash premiums that are amortized as a reduction to interest expense over the life of the loan using the effective interest method and are fully amortized
when the underlying loan is repaid in full. As of December 31, 2021, the Company’s secured borrowings-government guaranteed loans included $4.0 million of
loans sold for a premium and excess spread, with a variable rate, reset quarterly, based on prime rate with weighted average coupon rate of 3.89%, and $2.6
million of loans sold for an excess spread, with a variable rate, reset quarterly, based on prime rate with weighted average coupon rate of 1.56%.
2018 Revolving Credit Facility—In October 2018, the Company entered into a secured revolving credit facility with a bank syndicate that, as amended,
allows the Company to borrow up to $209.5 million, subject to a borrowing base calculation (the “2018 revolving credit facility”). In September 2020, the 2018
revolving credit facility was amended (the “2018 Credit Facility Modification”) to remedy the effect that COVID-19 had on the Company’s ability to borrow
under the 2018 revolving
F-22
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
credit facility during the period from September 2, 2020 through August 14, 2021 (the “Deferral Period”). The 2018 revolving credit facility bore interest during
the Deferral Period at (A) the base rate plus 1.05% or (B) LIBOR plus 2.05% and (ii) bears interest after the Deferral Period, at (A) the base rate plus 0.55% or (B)
LIBOR plus 1.55%. As of December 31, 2021 and 2020, the variable interest rate was 2.15% and 2.20%, respectively. The 2018 revolving credit facility is also
subject to an unused commitment fee of 0.15% or 0.25% depending on the amount of aggregate unused commitments. The 2018 revolving credit facility is
secured by deeds of trust on certain of the Company’s properties. The 2018 revolving credit facility contains customary covenants and is not subject to any
financial covenants (though the amount the Company may borrow under the 2018 revolving credit facility is determined by a borrowing base calculation). The
2018 revolving credit facility matures in October 2022 and provides for one one-year extension option under certain conditions, including providing notice of the
election and paying an extension fee of 0.15% of each lender’s commitment being extended on the effective date of such extension. As of December 31, 2021 and
2020, $60.0 million and $166.5 million, respectively, was outstanding under the 2018 revolving credit facility, and approximately $117.6 million and $28.0
million, respectively, was available for future borrowings.
2020 Unsecured Revolving Credit Facility—In May 2020, the Company entered into an unsecured revolving credit facility with a bank (the “2020
unsecured revolving credit facility”) pursuant to which the Company can borrow up to a maximum of $10.0 million. Outstanding advances under the 2020
unsecured revolving credit facility bear interest at the rate of 1.00%. The Company also pays a revolving credit facility fee of 1.12% with each advance under the
2020 unsecured revolving credit facility, which fee is subject to a cap of $112,000 in the aggregate. The 2020 unsecured revolving credit facility contains certain
customary covenants including a maximum leverage ratio and a minimum fixed charge coverage ratio, as well as certain other conditions. The 2020 unsecured
revolving credit facility matures in May 2022. As of December 31, 2021, no amounts were outstanding under the 2020 unsecured revolving credit facility and
$10.0 million was available for future borrowings.
Junior Subordinated Notes—The Company has junior subordinated notes with a variable interest rate which resets quarterly based on the three-month
LIBOR plus 3.25%, with quarterly interest only payments. The junior subordinated balance is due at maturity on March 30, 2035. The junior subordinated notes
may be redeemed at par at the Company’s option.
SBA 7(a) Loan-Backed Notes—On May 30, 2018, the Company completed a securitization of the unguaranteed portion of certain of its SBA 7(a) loans
receivable with the issuance of $38.2 million of unguaranteed SBA 7(a) loan-backed notes. The SBA 7(a) loan-backed notes are secured by deeds of trust or
mortgages and are collateralized solely by the right to receive payments and other recoveries attributable to the unguaranteed portions of certain of the Company’s
SBA 7(a) loans receivable. The SBA 7(a) loan-backed notes mature on March 20, 2043, with monthly payments due as payments on the collateralized loans are
received. Based on the anticipated repayments of the Company’s collateralized SBA 7(a) loans, at issuance, the Company estimated the weighted average
remaining life of the SBA 7(a) loan-backed notes to be approximately two years. The SBA 7(a) loan-backed notes bear interest at the lower of the one-month
LIBOR plus 1.40% or the prime rate less 1.08%. As of December 31, 2021 and 2020, the variable interest rate was 1.49% and 1.55%, respectively. The Company
reflects the SBA 7(a) loans receivable as assets on its consolidated balance sheets and the SBA 7(a) loan-backed notes as debt on its consolidated balance sheets.
The restricted cash on the Company’s consolidated balance sheets included funds related to the Company’s SBA 7(a) loan-backed notes of $1.9 million and $1.2
million, as of December 31, 2021 and 2020, respectively.
Paycheck Protection Program Liquidity Facility—In June 2020, the Company commenced borrowing funds from the Federal Reserve through the PPP
Liquidity Facility (the “PPPLF”) to finance all the loans the Company originated under the PPP. Advances under the PPPLF carry an interest rate of 0.35%, are
made on a dollar-for-dollar basis based on the amount of loans originated under the PPP and are secured by loans made by the Company under the PPP. The
PPPLF contains customary covenants but is not subject to any financial covenants. The maturity date of PPPLF borrowings is the same as the maturity date of the
loans pledged to secure the extension of credit, generally two years. At maturity, both principal and accrued interest are due. The maturity date of a PPPLF
borrowing will be accelerated if, among other things, the Company has been reimbursed by the SBA for a loan forgiveness (to the extent of the forgiveness), the
Company has received payment from the SBA representing exercise of the loan guarantee or the Company has received payment from the underlying borrower (to
the extent of the payment received). As of December 31, 2021 and 2020, $5.0 million and $14.5 million, respectively, was outstanding under the PPPLF. As the
PPP has ended, no new extensions of credit may be made under the PPPLF.
Deferred debt issuance costs, which represent legal and third-party fees incurred in connection with the Company’s borrowing activities, are capitalized
and amortized to interest expense on a straight-line basis over the life of the related loan, approximating the effective interest method. Deferred debt issuance costs
are presented net of accumulated amortization and are a reduction to total debt.
F-23
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
As of December 31, 2021 and 2020, accrued interest and unused commitment fees payable of $467,000 and $564,000, respectively, are included in
accounts payable and accrued expenses.
Future principal payments on the Company’s debt (face value) as of December 31, 2021 are as follows:
Years Ending December 31,
Mortgage Payable
Secured Borrowings
Principal
(1)
2018 Revolving
Credit Facility
(in thousands)
Other
(1) (2)
Total
2022
2023
2024
2025
2026
Thereafter
$
$
— $
—
—
—
97,100
—
97,100 $
380 $
391
402
414
426
4,658
6,671 $
60,000 $
—
—
—
—
—
60,000 $
2,446 $
1,598
1,613
1,704
452
31,957
39,770 $
62,826
1,989
2,015
2,118
97,978
36,615
203,541
(1)
Principal payments on secured borrowings and SBA 7(a) loan-backed notes, which are included in Other, are generally dependent upon cash flows
received from the underlying loans. The Company’s estimate of their repayment is based on scheduled payments on the underlying loans. The Company’s
estimate will differ from actual amounts to the extent the Company experiences prepayments and or loan liquidations or charge-offs. No payment is due
unless payments are received from the borrowers on the underlying loans.
(2)
Represents the junior subordinated notes, SBA 7(a) loan-backed notes, and borrowed funds from the Federal Reserve through the PPPLF.
7. STOCK-BASED COMPENSATION PLANS
On April 3, 2015, the Company’s board of directors (the “Board of Directors”) unanimously approved the Company’s 2015 Equity Incentive Plan (the
“2015 Equity Incentive Plan”), which was approved by the Company’s stockholders. Under the 2015 Equity Incentive Plan, the Company granted awards of
restricted shares of Common Stock to each of the independent members of the Board of Directors. A summary of the Company’s restricted shares as of
December 31, 2021 and 2020 and the changes during the years ended is as follows:
Balance, December 31, 2019
Granted
Vested
Balance, December 31, 2020
Granted
Vested
Balance, December 31, 2021
Number
of
Shares
(1)
Weighted
Average Grant
Date Fair Value
Per Share
(1)
3,880 $
21,912 $
(3,880) $
21,912 $
20,332 $
(21,912) $
20,332 $
56.66
10.04
56.66
10.04
10.82
10.04
10.82
(1)
Amounts have been adjusted to give retroactive effect to the Reverse Stock Split.
Compensation expense related to these restricted shares of Common Stock is recognized over the vesting period, and generally vests based on one year of
continuous service. The Company recorded compensation expense related to these
F-24
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
restricted shares of Common Stock in the amount of $220,000 and $222,000 for the years ended December 31, 2021 and 2020, respectively.
As of December 31, 2021, there was $73,000 of total unrecognized compensation expense related to shares of Common Stock which will be recognized
ratably over the remaining vesting period. The estimated fair value of restricted shares vested during 2021 and 2020 was $220,000 and $220,000, respectively.
8. EARNINGS PER SHARE (“EPS”)
The computations of basic EPS are based on the Company’s weighted average shares outstanding. Outstanding Series A Preferred Warrants were not
included in the computation of diluted EPS for the years ended December 31, 2021 and 2020 because their impact was either anti-dilutive or such warrants were
not exercisable during such periods (Note 10). No shares of Series D Preferred Stock outstanding as of December 31, 2021 and December 31, 2020 had a dilutive
effect. Outstanding shares of Series L Preferred Stock were not included in the computation of diluted EPS for the years ended December 31, 2021 and 2020
because such shares were not redeemable during such periods.
EPS for the year-to-date period may differ from the sum of quarterly EPS amounts due to the required method for computing EPS in the respective
periods. In addition, EPS is calculated independently for each component and may not be additive due to rounding.
The following table reconciles the numerator and denominator used in computing the Company’s basic and diluted per-share amounts for net (loss)
income attributable to common stockholders for the years ended December 31, 2021 and 2020:
Numerator:
Net (loss) income attributable to common stockholders
Redeemable preferred stock dividends declared on dilutive shares
Diluted net (loss) income attributable to common stockholders
Denominator:
Basic weighted average shares of Common Stock outstanding
Effect of dilutive securities—contingently issuable shares
Diluted weighted average shares and common stock equivalents outstanding
Net (loss) income attributable to common stockholders per share:
Basic
Diluted
F-25
Year Ended December 31,
2021
2020
(in thousands, except per share amounts)
$
$
$
$
(19,979) $
—
(19,979) $
19,187
—
19,187
(1.04) $
(1.04) $
(33,467)
(1)
(33,468)
14,748
—
14,748
(2.27)
(2.27)
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
9. REDEEMABLE PREFERRED STOCK
The table below provides information regarding the issuances, reclassifications and redemptions of each class of the Company’s preferred stock in
permanent equity during the years ended December 31, 2021 and 2020 (dollar amounts in thousands):
Preferred Stock
Balances, December 31, 2019
Issuance of Series D Preferred
Stock
Reclassification of Series A
Preferred Stock to permanent
equity
Redemption of Series A
Preferred Stock
Balances, December 31, 2020
Issuance of Series D Preferred
Stock
Reclassification of Series A
Preferred Stock to permanent
equity
Redemption of Series A
Preferred Stock
Balances, December 31, 2021
Series A
Shares
2,837,094 $
Amount
Shares
Amount
Series D
70,633
— $
—
—
19,145
1,570,421
38,837
—
(29,753)
4,377,762 $
(741)
108,729
—
19,145 $
—
—
37,712
2,006,456
50,508
—
(112,881)
6,271,337 $
(2,806)
156,431
—
56,857 $
—
1,396
—
473
—
—
473
923
—
Series L
Shares
5,387,160 $
Total
Amount
Shares
Amount
152,834
8,224,254 $
223,467
—
—
—
5,387,160 $
—
—
—
5,387,160 $
—
—
19,145
473
1,570,421
38,837
—
152,834
(29,753)
9,784,067 $
(741)
262,036
—
—
37,712
923
2,006,456
50,508
—
152,834
(112,881)
11,715,354 $
(2,806)
310,661
As of December 31, 2021, the Company had issued in registered public offerings 7,557,916 shares of Series A Preferred Stock, 4,603,287 Series A
Preferred Warrants and 56,857 shares of Series D Preferred Stock and received gross proceeds of $190.3 million ($188.2 million of which was allocated to the
Series A Preferred Stock, $761,000 of which was allocated to the Series A Preferred Warrants, and $1.4 million of which was allocated to the Series D Preferred
Stock) and, additionally, had issued 568,681 shares of Series A Preferred Stock as payment for services to the Administrator, for which no cash proceeds were
received. In connection with such issuance, costs specifically identifiable to the offering of Series A Preferred Stock, Series A Preferred Warrants and Series D
Preferred Stock, such as commissions, dealer manager fees and other offering fees and expenses, totaled $15.9 million ($15.7 million of which was allocated to the
Series A Preferred Stock, $142,000 of which was allocated to the Series A Preferred Warrants, and $35,000 of which was allocated to the Series D Preferred
Stock). In addition, as of December 31, 2021, non-issuance-specific costs related to this offering totaled $8.0 million. As of December 31, 2021, the Company has
reclassified and allocated $1.7 million, $5,000 and $13,000 from deferred charges to Series A Preferred Stock, Series A Preferred Warrants and Series D Preferred
Stock, respectively, as a reduction to the gross proceeds received. Such reclassification was based on the cumulative number of securities issued relative to the
maximum number of securities expected to be issued under the offering. As of December 31, 2021, there were 7,903,302 shares of Series A Preferred Stock
outstanding, 4,541,852 Series A Preferred Warrants to purchase 1,178,125 shares of Common Stock outstanding, and 56,857 shares of Series D Preferred Stock
outstanding. As of December 31, 2021, 223,295 shares of Series A Preferred Stock and no shares of Series D Preferred Stock have been redeemed.
Series A Preferred Stock—The Company conducted a continuous public offering of Series A Preferred Units from October 2016 through January 2020,
where each Series A Preferred Unit consisted of one share of Series A Preferred Stock, par value $0.001 per share, of the Company with an initial stated value of
$25.00 per share, subject to adjustment, and one warrant to purchase 0.25 of a share of Common Stock. Proceeds and expenses from the sale of the Series A
Preferred Units were allocated to the Series A Preferred Stock and Series A Preferred Warrants using their relative fair values on the date of issuance.
Since February 2020, the Company has been conducting a continuous public offering with respect to shares of the Company’s Series A Preferred Stock,
which, since such time, is no longer being issued as a unit with an accompanying Series A Preferred Warrant.
F-26
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Net proceeds from the issuance of shares of Series A Preferred Stock are initially recorded in temporary equity at an amount equal to the gross proceeds
allocated to such shares of Series A Preferred Stock minus the costs specifically identifiable to the issuance of such shares and the non-issuance specific offering
costs allocated to such shares. If the net proceeds from the issuance of shares of Series A Preferred Stock are less than the redemption value of such shares at the
time they are issued, or if the redemption value of such shares subsequently becomes greater than the carrying value of such shares, an adjustment is recorded to
increase the carrying amount of such shares to their redemption value as of the balance sheet date. Such adjustment is considered a deemed dividend for purposes
of calculating basic and diluted EPS. During the years ended December 31, 2021 and December 31, 2020, the Company recorded redeemable preferred stock
deemed dividends of $253,000 and $377,000, respectively, related to such adjustments.
On the first anniversary of the issuance of a particular share of Series A Preferred Stock, the Company reclassifies such share of Series A Preferred Stock
from temporary equity to permanent equity because the feature giving rise to temporary equity classification, the requirement to satisfy redemption requests in
cash, lapses on the first anniversary date. As of December 31, 2021, the Company had reclassified an aggregate of $146.2 million in net proceeds from temporary
equity to permanent equity.
Series D Preferred Stock—Since February 2020, the Company has been conducting a continuous public offering with respect to shares of its Series D
Preferred Stock, par value $0.001 per share, subject to adjustment. The selling price of the Series D Preferred Stock was $25.00 per share for all sales that
occurred from the beginning of the offering to and including June 28, 2020 and is expected to be, and since June 29, 2020, has been, $24.50 per share through the
end of the life of the offering. Shares of Series D Preferred Stock are recorded in permanent equity at the time of their issuance.
Series L Preferred Stock—On November 21, 2017, the Company issued 8,080,740 shares of Series L Preferred Stock having an initial stated value of
$28.37 per share (“Series L Preferred Stock Stated Value”), subject to adjustment. The Company received gross proceeds of $229.3 million from the sale of the
Series L Preferred Stock, which was reduced by issuance-specific offering costs, such as commissions, dealer manager fees, and other offering fees and expenses,
totaling $15.9 million, a discount of $2.9 million, and non-issuance-specific costs of $2.5 million. These fees have been recorded as a reduction to the gross
proceeds in permanent equity.
On October 22, 2019, the Company commenced a tender offer for the purchase of up to 2,693,580 shares of Series L Preferred Stock (the “Tender
Offer”), representing one-third of the then-outstanding shares of Series L Preferred Stock. The Tender Offer was oversubscribed, and pursuant to the terms of the
Tender Offer, shares of Series L Preferred Stock were accepted for purchase on a pro rata basis. The Company repurchased 2,693,580 shares of Series L Preferred
Stock at a purchase price of $29.12 per share, as converted to and paid in ILS. The shares of Series L Preferred Stock accepted for payment by the Company were
restored to the status of authorized but unissued shares of preferred stock without designation as to class or series.
Until the fifth anniversary of the date of original issuance of the Series L Preferred Stock, the Company is prohibited from issuing any shares of preferred
stock ranking senior to or on parity with the Series L Preferred Stock with respect to the payment of dividends, other distributions, liquidation, and or dissolution
or winding up of the Company unless the Minimum Fixed Charge Coverage Ratio, calculated in accordance with the Articles Supplementary describing the Series
L Preferred Stock, is equal to or greater than 1.25:1.00. As of December 31, 2021 and 2020, the Company was in compliance with the Series L Preferred Stock
Minimum Fixed Charge Coverage Ratio.
Refer to Note 12 for a discussion of certain payments the Company has made in shares of Common Stock and in shares of Preferred Stock and may make
in shares of Preferred Stock in lieu of cash payments in order to remain in compliance with the Series L Preferred Stock Minimum Fixed Charge Coverage Ratio.
Dividends—With respect to the payment of dividends, the Series A Preferred Stock ranks senior to the Series L Preferred Stock and the Common Stock,
and on parity with the Series D Preferred Stock. The Series L Preferred Stock ranks senior to the Common Stock (except with respect to and only to the extent of
the Initial Dividend) and junior to the Series A Preferred Stock, Series D Preferred Stock and Common Stock (with respect to and only to the extent of the Initial
Dividend). With respect to the distribution of amounts upon liquidation, dissolution or winding-up, the Series A Preferred Stock ranks on parity with the Series D
Preferred Stock and Series L Preferred Stock, to the extent of the Series L Preferred Stock Stated Value, and otherwise ranks senior to the Series L Preferred Stock
and the Common Stock. With respect to the distribution of amounts upon liquidation, dissolution or winding-up, the Series L Preferred Stock ranks senior to the
Common Stock, both (i) to the extent of the Series L Preferred Stock Stated Value and (ii) following payment to holders of the Common Stock of an
F-27
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
amount equal to any unpaid Initial Dividend, to the extent of any accrued and unpaid dividends on the Series L Preferred Stock, on parity with the Series A
Preferred Stock and Series D Preferred Stock, to the extent of the Series L Preferred Stock Stated Value and junior to the Series A Preferred Stock, Series D
Preferred Stock and Common Stock (to the extent of the Initial Dividend), in all instances with respect to any accrued and unpaid dividends on the Series L
Preferred Stock.
Holders of Series A Preferred Stock are entitled to receive, if, as and when authorized by the Company’s Board of Directors, and declared by the
Company out of legally available funds, cumulative cash dividends on each share of Series A Preferred Stock at an annual rate of 5.50% of the Series A Preferred
Stock Stated Value (i.e., the equivalent of $0.34375 per share per quarter) (the “Series A Dividend”). Holders of Series D Preferred Stock are entitled to receive, if,
as and when authorized by the Company’s Board of Directors, and declared by the Company out of legally available funds, cumulative cash dividends on each
share of Series D Preferred Stock at an annual rate of 5.65% of the Series D Preferred Stock Stated Value (i.e., the equivalent of $0.35313 per share per quarter)
(the “Series D Dividend”). Dividends on each share of Series A Preferred Stock and Series D Preferred Stock begin accruing on, and are cumulative from, the date
of issuance.
The Company expects to pay the Series A Dividend and Series D Dividend in arrears on a monthly basis in accordance with the foregoing provisions,
unless the Company’s results of operations, general financing conditions, general economic conditions, applicable requirements of the MGCL or other factors
make it imprudent to do so. The timing and amount of the Series A Dividend and the Series D Dividend will be determined by the Company’s Board of Directors,
in its sole discretion, and may vary from time to time.
Holders of Series L Preferred Stock are entitled to receive, if, as and when authorized by the Company’s Board of Directors, and declared by the
Company out of legally available funds, cumulative cash dividends on each share of Series L Preferred Stock at an annual rate of 5.50% of the Series L Preferred
Stock Stated Value (i.e., the equivalent of $1.56035 per share per year). Dividends on each share of Series L Preferred Stock began accruing on, and are
cumulative from, the date of issuance.
The Company expects to pay dividends on the Series L Preferred Stock in arrears on an annual basis in accordance with the foregoing provisions, unless
the Company’s results of operations, general financing conditions, general economic conditions, applicable requirements of the MGCL or other factors make it
imprudent to do so. If the Company fails to timely declare distributions or fails to timely pay distributions on the Series L Preferred Stock, the annual dividend rate
of the Series L Preferred Stock will temporarily increase by 1.00% per year, up to a maximum rate of 8.50% per annum. However, prior to the payment of any
distributions on Series L Preferred Stock in respect of a given year, the Company must first declare and pay dividends on the Common Stock in respect of such
year in an aggregate amount equal to the Initial Dividend announced by the Company’s Board of Directors at the end of the prior fiscal year. On December 29,
2021, the Company announced an Initial Dividend on shares of its Common Stock for fiscal year 2021 in the aggregate amount of $7,010,799.
During the year ended December 31, 2021, the Company paid $9.6 million, $50,000 and $8.4 million of cash dividends on its Series A Preferred Stock,
Series D Preferred Stock and Series L Preferred Stock, respectively. During the year ended December 31, 2020, the Company paid $8.1 million, $12,000 and $8.4
million of cash dividends on its Series A Preferred Stock, Series D Preferred Stock and Series L Preferred Stock, respectively.
Redemptions—The Company’s Series A Preferred Stock and Series D Preferred Stock are redeemable at the option of the holder or the Company. The
redemption schedule of the Series A Preferred Stock and Series D Preferred Stock allows redemptions at the option of the holder of Series A Preferred Stock or
Series D Preferred Stock from the date of original issuance of any such shares at the Series A Preferred Stock Stated Value or Series D Preferred Stock Stated
Value, respectively, less a redemption fee applicable prior to the fifth anniversary of the issuance of such shares, plus accrued and unpaid dividends. The Company
has the right to redeem the Series A Preferred Stock or Series D Preferred Stock after the fifth anniversary of the date of original issuance of such shares at the
Series A Preferred Stock Stated Value or Series D Preferred Stock Stated Value, respectively, plus accrued and unpaid dividends. At the Company’s discretion, the
redemption price will be paid in cash or in Common Stock based on the volume weighted average price of the Company’s Common Stock for the 20 trading days
prior to the redemption; provided that the redemption price of any shares of Series A Preferred Stock redeemed prior to the first anniversary of the date of original
issuance of such shares must be paid in cash.
From and after the fifth anniversary of the date of original issuance of the Series L Preferred Stock, each holder will have the right to require the
Company to redeem, and the Company will also have the option to redeem (subject to certain conditions), such shares of Series L Preferred Stock at a redemption
price equal to the Series L Preferred Stock Stated Value, plus, provided certain conditions are met, all accrued and unpaid distributions. Notwithstanding the
foregoing, a holder of
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
shares of the Company’s Series L Preferred Stock may require the Company to redeem such shares at any time prior to the fifth anniversary of the date of original
issuance of the Series L Preferred Stock if (1) the Company does not declare and pay in full the distribution on the Series L Preferred Stock for any annual period
prior to such fifth anniversary or (2) the Company does not declare and pay all accrued and unpaid distributions on the Series L Preferred Stock for all past
dividend periods prior to the applicable holder redemption date. The applicable redemption price payable upon redemption of any Series L Preferred Stock will be
made, in the Company’s sole discretion, in the form of (A) cash in ILS at the then-current currency exchange rate determined in accordance with the Articles
Supplementary defining the terms of the Series L Preferred Stock, (B) in equal value through the issuance of shares of Common Stock, with the value of such
Common Stock to be deemed the lower of (i) the NAV per share of the Company’s Common Stock as most recently published by the Company as of the effective
date of redemption and (ii) the volume-weighted average price of the Company’s Common Stock, determined in accordance with the Articles Supplementary
defining the terms of the Series L Preferred Stock, or (C) in a combination of cash in ILS and the Company’s Common Stock, based on the conversion
mechanisms set forth in (A) and (B), respectively.
10. STOCKHOLDERS’ EQUITY
Dividends
Holders of the Company’s Common Stock are entitled to receive dividends, if, as and when authorized by the Board of Directors and declared by the
Company out of legally available funds. In determining the Company’s dividend policy, the Board of Directors considers many factors including the amount of
cash resources available for dividend distributions, capital spending plans, cash flow, the Company’s financial position, applicable requirements of the MGCL, any
applicable contractual restrictions, and future growth in NAV and cash flow per share prospects. Consequently, the dividend rate on a quarterly basis does not
necessarily correlate directly to any individual factor. Cash dividends per share of Common Stock paid in respect of the years ended December 31, 2021 and 2020
consist of the following:
Declaration Date
September 7, 2021
June 7, 2021
March 5, 2021
December 2, 2020
September 2, 2020
June 3, 2020
March 2, 2020
Payment Date
September 29, 2021
June 30, 2021
March 30, 2021
December 29, 2020
September 29, 2020
June 29, 2020
March 25, 2020
Type
Regular Quarterly
Regular Quarterly
Regular Quarterly
Regular Quarterly
Regular Quarterly
Regular Quarterly
Regular Quarterly
$
$
$
$
$
$
$
Cash Dividend Per
Share of Common Stock
0.075
0.075
0.075
0.075
0.075
0.075
0.075
On December 9, 2021, the Company declared a cash dividend of $0.075 per share of its Common Stock, which was paid on January 5, 2022 to
stockholders of record at the close of business on December 20, 2021.
On March 8, 2022, the Company declared a cash dividend of $0.085 per share of its Common Stock, to be paid on April 1, 2022 to stockholders of record
at the close of business on March 19, 2022.
Rights Offering
During the year ended December 31, 2021, the Company conducted the Rights Offering pursuant to which the Company issued an aggregate of
8,521,589 shares of Common Stock at a subscription price of $9.25 per share for aggregate gross proceeds of $78.8 million. Offering costs of $1.9 million were
incurred in connection with the Rights Offering and recorded as a reduction to additional paid-in capital.
Series A Preferred Warrants
Prior to February 2020, the Series A Preferred Stock was sold as a unit that included one share of Series A Preferred Stock and one Series A Preferred
Warrant that could be exercised to purchase 0.25 of a share of Common Stock. The Series A Preferred Warrants are exercisable beginning on the first anniversary
of the date of their original issuance until and including the fifth anniversary of the date of such issuance. At the time of issuance, the exercise price of each Series
A Preferred Warrant was at a 15.0% premium to the per share estimated NAV of the Company’s Common Stock then most recently published and designated as
the applicable NAV. However, in accordance with the terms of the Series A Preferred Warrants, the exercise
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
price of each Series A Preferred Warrant issued prior to the Reverse Stock Split was automatically adjusted to reflect the effect of the Reverse Stock Split and, in
the discretion of the Company’s Board of Directors, the exercise price and the number of shares issuable upon exercise of each Series A Preferred Warrant issued
prior to the Special Dividend was adjusted to reflect the effect of the Special Dividend.
Proceeds and expenses from the sale of the Series A Preferred Units were allocated to the Series A Preferred Stock and Series A Preferred Warrants using
their relative fair values on the date of issuance. As of December 31, 2021, there were 4,541,852 Series A Preferred Warrants outstanding to purchase 1,178,125
shares of Common Stock in connection with the Company’s offering of Series A Preferred Units and allocated net proceeds of $610,000 to the warrants
outstanding as of December 31, 2021 , after specifically identifiable offering costs and allocated general offering costs, to the Series A Preferred Warrants in
permanent equity.
11. FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company determines the estimated fair value of financial assets and liabilities utilizing a hierarchy of valuation techniques based on whether the
inputs to a fair value measurement are considered to be observable or unobservable in a marketplace. The hierarchy for inputs used in measuring fair value is as
follows:
Level 1 Inputs—Quoted prices in active markets for identical assets or liabilities
Level 2 Inputs—Observable inputs other than quoted prices in active markets for identical assets and liabilities
Level 3 Inputs—Unobservable inputs
In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, for disclosure purposes, the
level within which the fair value measurement is categorized is based on the lowest level input that is significant to the fair value measurement.
Management’s estimation of the fair value of the Company’s financial instruments is based on a Level 3 valuation in the fair value hierarchy established
for disclosure of how a company values its financial instruments. In general, quoted market prices from active markets for the identical financial instrument (Level
1 inputs), if available, should be used to value a financial instrument. If quoted prices are not available for the identical financial instrument, then a determination
should be made if Level 2 inputs are available. Level 2 inputs include quoted prices for similar financial instruments in active markets for identical or similar
financial instruments in markets that are not active (i.e., markets in which there are few transactions for the financial instruments, the prices are not current, price
quotations vary substantially, or in which little information is released publicly). There is limited reliable market information for the Company’s financial
instruments and the Company utilizes other methodologies based on unobservable inputs for valuation purposes since there are no Level 1 or Level 2 inputs
available. Accordingly, Level 3 inputs are used to measure fair value.
In general, estimates of fair value may differ from the carrying amounts of the financial assets and liabilities primarily as a result of the effects of
discounting future cash flows. Considerable judgment is required to interpret market data and develop estimates of fair value. Accordingly, the estimates presented
are made at a point in time and may not be indicative of the amounts the Company could realize in a current market exchange.
The following describes the methods the Company uses to estimate the fair value of the Company’s financial assets and liabilities.
Debt—The carrying amounts of the Company’s secured borrowings—government guaranteed loans, SBA 7(a) loan-backed notes, 2018 revolving credit
facility and borrowed funds from the Federal Reserve through the PPPLF approximate their fair values, as the interest rates on these securities are variable and
approximate current market interest rates. The Company determines the fair value of mortgage notes payable and junior subordinated notes by performing
discounted cash flow analyses using an appropriate market discount rate. The Company calculates the market discount rate for its mortgage notes payable by
obtaining period-end treasury or swap rates, as applicable, for maturities that correspond to the maturities of the Company’s debt and then adding an appropriate
credit spread. These credit spreads take into account factors such as the Company’s credit standing, the maturity of the debt, whether the debt is secured or
unsecured, and the loan-to-value ratios of the debt. When estimating the fair value of the Company’s mortgages payable as of December 31, 2021 and 2020, the
Company used a rate of 3.22% and 3.38%, respectively. The rate used to estimate the fair value of the Company’s junior subordinated notes was 4.46% and 4.49%
as of December 31, 2021 and 2020, respectively.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Loans Receivable—The Company determines the fair value of loans receivable by performing a present value analysis for the anticipated future cash
flows using an appropriate market discount rate taking into consideration the credit risk and using an anticipated prepayment rate. The value of the government
guaranteed portions of loans held for sale is based primarily on the anticipated proceeds to be received upon sale. The following summarizes the ranges of
discount rates and prepayment rates used to arrive at the estimated fair values of the Company’s loans receivable:
SBA 7(a) loans receivable, subject to credit risk
SBA 7(a) loans receivable, subject to loan-backed notes
SBA 7(a) loans receivable, subject to secured borrowings
SBA 7(a) loans receivable, paycheck protection program
Year Ended December 31,
2021
2020
Discount Rate
6.25% - 8.25%
5.75% - 7.75%
7.00% - 7.75%
1.00%
Prepayment Rate
5.00% - 17.50%
5.00% - 17.50%
5.00% - 17.50%
N/A
Discount Rate
6.50% - 8.25%
5.50% - 8.00%
7.00% - 7.75%
1.00%
Prepayment Rate
4.00% - 17.50%
4.88% - 17.50%
5.00% - 17.50%
N/A
Other Financial Instruments—The carrying amounts of the Company’s cash and cash equivalents, restricted cash, accounts receivable, accounts
payable, and accrued expenses approximate their fair values due to their short-term maturities at December 31, 2021 and 2020. Due to the short-term maturities of
these instruments, Level 1 inputs are utilized to estimate the fair value of these financial instruments.
The estimated fair values of those financial instruments which are not recorded at fair value on a recurring basis on the Company’s consolidated balance
sheets are as follows:
Assets:
SBA 7(a) loans receivable, paycheck protection program
SBA 7(a) loans receivable, subject to loan-backed notes
SBA 7(a) loans receivable, subject to credit risk
SBA 7(a) loans receivable, subject to secured borrowings
SBA 7(a) loans receivable, held for sale
Liabilities:
Mortgage payable
Junior subordinated notes
(1)
(1)
December 31, 2021
December 31, 2020
Carrying
Amount
Estimated
Fair Value
Carrying
Amount
Estimated
Fair Value
Level
(in thousands)
$
$
$
$
$
$
$
4,903 $
18,077 $
42,416 $
6,891 $
1,256 $
5,050 $
19,635 $
44,399 $
6,976 $
1,355 $
14,089 $
23,606 $
32,509 $
8,822 $
4,109 $
14,484
24,850
32,397
8,914
4,527
3
3
3
3
3
97,100 $
27,070 $
100,838 $
24,378 $
97,100 $
27,070 $
100,799
24,236
2, 3
3
(1)
The carrying amounts for the mortgage payable and junior subordinated notes represents the principal outstanding amounts, excluding deferred debt
issuance costs and discounts.
12. RELATED-PARTY TRANSACTIONS
Asset Management and Other Fees to Related Parties
Asset Management Fees—CIM Urban and CIM Capital, LLC, an affiliate of CIM REIT and CIM Group (“CIM Capital”), have an investment
management agreement, pursuant to which CIM Urban engaged CIM Capital to provide certain services to CIM Urban (the “Investment Management
Agreement”). CIM Capital has assigned its duties under the Investment Management Agreement to its four wholly-owned subsidiaries: CIM Capital Securities
Management, LLC, a securities manager, CIM Capital RE Debt Management, LLC, a debt manager, CIM Capital Controlled Company Management, LLC, a
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
controlled company manager, and CIM Capital Real Property Management, LLC, a real property manager. The “Operator” refers to CIM Capital and its four
wholly-owned subsidiaries.
CIM Urban pays asset management fees to the Operator on a quarterly basis in arrears. The fee is calculated as a percentage of the daily average adjusted
fair value of CIM Urban’s assets:
Daily Average Adjusted Fair
Value of CIM Urban’s Assets
From Greater of
(in thousands)
— $
500,000 $
1,000,000 $
1,500,000 $
4,000,000 $
To and Including
500,000
1,000,000
1,500,000
4,000,000
20,000,000
Quarterly Fee
Percentage
0.2500%
0.2375%
0.2250%
0.2125%
0.1000%
$
$
$
$
$
Asset management fees are included in asset management and other fees to related parties in the accompanying consolidated statements of operations.
In lieu of cash payment of the asset management fee, the Company has issued to the Operator shares of its Common Stock and shares of its Series A
Preferred Stock. The Company has issued shares of its Series A Preferred Stock to the Operator as payment for the quarterly asset management fee for the year
ended December 31, 2021. Subject to applicable laws and regulations under Nasdaq and the TASE and the agreement of the Operator, it is likely that the Company
will seek to pay some or part of the asset management fees for part of 2022 in shares of Series A Preferred Stock.
Property Management Fees and Reimbursements—CIM Management, Inc. and certain of its affiliates (collectively, the “CIM Management Entities”),
all affiliates of CIM REIT and CIM Group, provide property management, leasing, and development services to CIM Urban. Property management fees earned by
the CIM Management entities and onsite management costs incurred on behalf of CIM Urban are included in rental and other property operating expenses in the
accompanying consolidated statements of operations. Leasing commissions earned are capitalized to deferred charges on the accompanying consolidated balance
sheets. Construction management fees are capitalized to investments in real estate on the accompanying consolidated balance sheets.
Administrative Fees and Expenses—The Company and its subsidiaries have a master services agreement (the “Master Services Agreement”) with CIM
Service Provider, LLC (the “Administrator”), an affiliate of CIM Group, pursuant to which the Administrator provides, or arranges for other service providers to
provide, management and administration services to the Company and its subsidiaries. Pursuant to the Master Services Agreement, the Company appointed an
affiliate of CIM Group as the administrator of Urban Partners GP, LLC. Under the Master Services Agreement, for fiscal quarters prior to April 1,2020, the
Company paid a base service fee (the “Base Service Fee”) to the Administrator initially set at $1.0 million per year (subject to an annual escalation by a specified
inflation factor beginning on January 1, 2015), payable quarterly in arrears. On May 11, 2020, the Master Services Agreement was amended to replace the Base
Service Fee with an incentive fee (the “Prior Incentive Fee”) pursuant to which the Administrator was entitled to receive, on a quarterly basis, 15.00% of the
Company’s quarterly core funds from operations in excess of a quarterly threshold equal to 1.75% (i.e., 7.00% on an annualized basis) of the Company’s average
adjusted common stockholders’ equity (i.e., common stockholders’ equity plus accumulated depreciation and amortization) for such quarter. The amendment was
effective as of April 1, 2020. Please see “—Fee Waiver” below for how the fees paid to the Administrator has been calculated since the beginning of 2022. The
Base Service Fee is included in asset management and other fees to related parties in the accompanying consolidated statements of operations.
In addition, pursuant to the terms of the Master Services Agreement, the Administrator may receive compensation and or reimbursement for performing
certain services for the Company and its subsidiaries that are not covered by the Base Service Fee or the Prior Incentive Fee, as the case may be. During the years
ended December 31, 2021 and 2020, such services performed by the Administrator and its affiliates included accounting, tax, reporting, internal audit, legal,
compliance, risk management, IT, human resources, corporate communications, operational and on-going support in connection with the Company’s offering of
Preferred Stock. The Administrator’s compensation is based on the salaries and benefits of the employees of the Administrator and or its affiliates who performed
these services (allocated based on the percentage of time
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
spent on the affairs of the Company and its subsidiaries). The expense for such services is included in expense reimbursements to related parties—corporate in the
accompanying consolidated statements of operations.
Lending Segment Expenses—The Company has a Staffing and Reimbursement Agreement with CIM SBA Staffing, LLC (“CIM SBA”), an affiliate of
CIM Group, and the Company’s subsidiary, PMC Commercial Lending, LLC. The agreement provides that CIM SBA will provide personnel and resources to the
Company and that the Company will reimburse CIM SBA for the costs and expenses of providing such personnel and resources. The expense for such services is
included in expense reimbursements to related parties—lending segment in the accompanying consolidated statements of operations.
Offering-Related Fees—CCO Capital, LLC (“CCO Capital”) became the exclusive dealer manager for the Company’s public offering of the Series A
Preferred Units effective as of May 31, 2019. CCO Capital is a registered broker dealer and is under common control with the Operator and the Administrator. The
Company’s offering of the Series A Preferred Units ended at the end of January 2020. On January 28, 2020, the Company entered into the Second Amended and
Restated Dealer Manager Agreement, pursuant to which CCO Capital acts as the exclusive dealer manager for the Company’s public offering of its Series A
Preferred Stock and Series D Preferred Stock. Thereunder, the Company agreed to compensate CCO Capital, as the dealer manager for the offering, as follows: (1)
an upfront dealer manager fee of up to 1.25% of the selling price of each share of Preferred Stock sold, (2) selling commissions of up to 5.50% of the selling price
of each share of Series A Preferred Stock sold (with no selling commissions payable in respect of shares of Series D Preferred Stock sold) and (3) a trailing dealer
manager fee that accrues daily in an amount equal to 1/365 of 0.25% per annum of the selling price of each share of Preferred Stock sold. CCO Capital, in its
sole discretion, may reallow to another broker-dealer authorized by it to sell shares in the offering a portion of the upfront dealer manager fee earned by it in
respect of shares sold by such broker-dealer.
th
On April 9, 2020, the Company entered into Amendment No. 1 to the Second Amended and Restated Dealer Manager Agreement, pursuant to which the
selling commissions were increased from up to 5.50% to up to 7.00% of the selling price of each share of Series A Preferred Stock sold thereafter. The Company
has been informed that CCO Capital generally reallows 100% of the selling commissions on sales of Series A Preferred Stock and generally reallows substantially
all of the upfront dealer manager fee on sales of Series A Preferred Stock and Series D Preferred Stock, to participating broker-dealers.
On September 22, 2021, the Company entered into Amendment No. 2 to the Second Amended and Restated Dealer Manager Agreement, pursuant to
which the upfront dealer manager fee payable to the Dealer Manager was changed to up to 3.00% and the trailing dealer manager fee with respect to the sale of
shares of Series A Preferred Stock sold in the Offering on or after September 9, 2021 was eliminated.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
The Company recorded fees and expense reimbursements as shown in the table below for services provided by related parties related to the services
described above during the periods indicated:
Asset Management Fees:
(1)
Asset management fees
Property Management Fees and Reimbursements:
Property management fees
Onsite management and other cost reimbursement
Leasing commissions
Construction management fees
Administrative Fees and Expenses:
(2)
Base service fee
Expense reimbursements to related parties - corporate
Lending Segment Expenses:
Expense reimbursements to related parties - lending segment
Offering-Related Fees:
Upfront dealer manager and trailing dealer manager fees
Non-issuance specific offering costs
(4)
(5)
(3)
Year Ended December 31,
2020
2021
(in thousands)
$
$
$
$
$
$
$
$
$
$
9,030 $
1,641 $
2,687 $
162 $
226 $
— $
2,050 $
1,921 $
690 $
106 $
9,511
1,670
3,356
112
344
282
2,243
3,491
1,149
99
(1) The Company issued to the Operator an aggregate of 270,209 shares of its Series A Preferred Stock, in lieu of cash payment of the asset management fees
incurred during the year ended December 31, 2021. The Company issued to the Operator 203,349 shares of its Common Stock and 287,199 shares of Series A
Preferred Stock in lieu of cash payment of the asset management fees incurred during the year ended December 31, 2020.
(2) For the year ended December 31, 2020, the Company issued to the Administrator 11,273 shares of our Series A Preferred Stock, in lieu of cash as payment of
the Base Service Fee for the first quarter of 2020.
(3) Expense reimbursements to related parties - lending segment do not include personnel costs capitalized to deferred loan origination costs of $347,000 and
$136,000 for the years ended December 31, 2021 and 2020, respectively.
(4) Represents fees earned by CCO Capital and allocated to Series A Preferred Stock and Series D Preferred Stock.
(5) As of December 31, 2021 and 2020, $2.0 million and $1.5 million, respectively, was included in deferred costs as reimbursable expenses incurred pursuant to
the Master Services Agreement and the then applicable dealer manager agreement with CCO Capital. These non-issuance specific costs are allocated against
the gross proceeds from the sale of the Series A Preferred Stock and the Series D Preferred Stock on a pro rata basis for each issuance as a percentage of the
total offering.
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
As of December 31, 2021 and 2020, due to related parties consisted of the following:
Asset management fees
Property management fees and reimbursements
Expense reimbursements - corporate
Expense reimbursements - lending segment
Upfront dealer manager and trailing dealer manager fees
Non-issuance specific offering costs
Other amounts due to the CIM Management Entities and certain of its affiliates
Total due to related parties
Fee Waiver
December 31,
2021
2020
(in thousands)
2,244 $
320
692
341
638
143
163
4,541 $
2,386
1,662
647
690
493
668
160
6,706
$
$
On January 5, 2022, the Company and certain of its subsidiaries entered into a Fee Waiver (the “Fee Waiver”) with the Operator and the Administrator
with respect to fees that are payable to them. The Fee Waiver is effective retroactively to January 1, 2022 (the “Effective Date”). Pursuant to the Fee Waiver, the
Administrator agrees to voluntarily waive any fees in excess of those set forth in the Fee Waiver, to the extent it would otherwise have been entitled to such
additional compensation under the Master Service Agreement, and the Operator agrees to voluntarily waive any fees in excess of those set forth in the Fee Waiver,
to the extent it would otherwise have been entitled to such additional compensation under the Investment Management Agreement (the “Existing Methodology).
1. Base Fee: A base asset management fee (the “Base Fee”) is payable quarterly in arrears to the Operator in an amount equal to an annual rate of 1% (or
0.25% per quarter) of the average of the “Net Asset Value Attributable to Common Stockholders” as of the first and last day of the applicable quarter. Net
Asset Value Attributable to Common stockholders is defined as (a) the sum of the Company’s (1) investments in real estate at fair value, (2) cash, (3)
loans receivable at fair value and (4) the book value of the other assets of the Company, excluding deferred costs and net of other liabilities at book value,
less (b) the Company’s (i) debt at face value, (ii) outstanding preferred stock at stated value, and (iii) non-controlling interests at book value; provided,
that, non-controlling interests in any UPREIT operating partnership relating to the Company shall not be excluded.
2.
Incentive Fee: An incentive fee (the “Revised Incentive Fee”) is payable quarterly in arrears to the Administrator with respect to the quarterly core funds
from operations in excess of a quarterly threshold equal to 1.75% (i.e., 7.00% on an annualized basis) of the Company’s “Adjusted Common Equity” (as
defined below) for such quarter (“Excess Core FFO”) as follows: (i) no Incentive Fee in any quarter in which the Excess Core FFO is $0; (ii) 100% of
any Excess Core FFO up to an amount equal to the product of (x) the average of the Adjusted Common Equity as of the first and last day of the
applicable quarter and (y) 0.4375%; and (iii) 20% of any Excess Core FFO thereafter. Revised Incentive Fees payable for any partial quarter will be
appropriately prorated.
“Adjusted Common Equity” means Common Equity plus Excluded Depreciation and Amortization. “Common Equity” means Total
Stockholders’ Equity minus Excluded Equity. “Total Stockholders’ Equity” means the amount reflected as total stockholders’ equity in accordance with
GAAP on the consolidated balance sheet of the Company and its subsidiaries as of the last day of a given quarter. “Excluded Equity” means the sum of
all preferred securities of the Company and its subsidiaries classified as permanent equity in accordance with GAAP on the consolidated balance sheet of
the Company and its subsidiaries as of the last day of a given quarter. “Excluded Depreciation and Amortization” means, for a given quarter, the amount
of all accumulated depreciation and amortization of (i) the Company and its subsidiaries and (ii) to the extent allocable to the Company and its
subsidiaries, the unconsolidated affiliates, in each case as of the last day of such quarter that corresponds to the periodic depreciation and amortization
expense calculated in each case in accordance with GAAP that is a permitted add back to net income calculated in accordance with GAAP when
calculating funds from operations.
F-35
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CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
3. Capital Gains Fee: A capital gains fee (the “Capital Gains Fee”) is payable quarterly in arrears to the Administrator in an amount equal to (i) 15% of the
cumulative aggregate realized capital gains minus the cumulative aggregate realized capital losses (in each case since the Effective Date), minus (ii) the
aggregate capital gains fees paid since the Effective Date. Realized capital gains and realized capital losses are calculated by subtracting from the sales
price of a property: (a) any costs incurred to sell such property, and (b) the current gross value of the property (meaning the property’s original acquisition
price plus any subsequent, non-reimbursed capital improvements thereon paid for by the Company).
Following the end of each quarter, the Administrator will deliver to the Company (i) a calculation of the cumulative fees earned by the Operator and the
Administrator under the methodology prescribed by the Fee Waiver (the “Fee Waiver Methodology”) from the Effective Date through the end of such quarter and
(ii) a calculation of the cumulative fees that would have been earned, in the absence of the Fee Waiver, by the Operator and the Administrator during such period
under the Master Services Agreement and the Investment Management Agreement, without giving effect to the Fee Waiver (the “Pre-Fee Waiver Methodology”).
If, in respect of any quarter, the aggregate fees that are payable under the Fee Waiver Methodology exceed the aggregate fees that would have been payable under
the Pre-Fee Waiver Methodology for the equivalent period, such quarter is deemed an “Excess Quarter”. For any quarter following an Excess Quarter, the
Company (upon the direction of the independent members of the Board) may, at its option and upon written notice to Administrator, elect to calculate all fees due
to the Administrator and the Operator in accordance with the Pre-Fee Waiver Methodology from and after such Excess Quarter. Any election by the Company to
adopt the Pre-Fee Waiver Methodology is irrevocable, and all fees due to the Administrator and the Operator from and after such election will be calculated in
accordance with the Pre-Fee Waiver Methodology.
Other
During the year ended December 31, 2020, the Company’s President, Jan F. Salit, retired effective as of September 16, 2020. Mr. Salit received a
$450,000 payment, representing one year of his base salary, upon the satisfaction of certain conditions specified therein, including the execution of an agreement
with the Company that contains, among other things, mutual release and non-disparagement provisions. Related to this payment, $287,000 was borne by the
Company based on the time that Mr. Salit devoted to the Company relative to other matters relating to CIM Group.
On October 1, 2015, an affiliate of CIM Group entered into a five-year lease renewal with respect to a property owned by the Company, which was
terminated in October 2020. For the years ended December 31, 2021 and 2020, the Company recorded rental and other property income related to this tenant of $0
and $87,000, respectively.
On May 15, 2019, CIM Group entered into an approximately 11-year lease for approximately 32,000 rentable square feet with respect to a property
owned by the Company. The lease was amended on August 7, 2019 to reduce the rentable square feet to approximately 30,000 rentable square feet. For the years
ended December 31, 2021 and 2020, the Company recorded rental and other property income related to this tenant of $1.5 million.
13. COMMITMENTS AND CONTINGENCIES
Loan Commitments—Commitments to extend credit are agreements to lend to a customer when the terms established in the contract are met. The
Company’s outstanding commitments to fund loans were $32.6 million as of December 31, 2021, the majority of which are for prime-based loans to be originated
by the Company’s subsidiary engaged in SBA 7(a) Small Business Loan Program lending, the government guaranteed portion of which is intended to be sold.
Commitments generally have fixed expiration dates. Since some commitments are expected to expire without being drawn upon, total commitment amounts do
not necessarily represent future cash requirements.
General—In connection with the ownership and operation of real estate properties, the Company has certain obligations for the payment of tenant
improvement allowances and lease commissions in connection with new leases and renewals. the Company had a total of $8.1 million in future obligations under
leases to fund tenant improvements and other future construction obligations as of December 31, 2021. As of December 31, 2021, $2.5 million was funded to
reserve accounts included in restricted cash on the Company’s consolidated balance sheet for these tenant improvement obligations in connection with the
mortgage loan agreement entered into in June 2016.
Employment Agreements—The Company has an employment agreement with one of its officers. Under certain circumstances, this employment
agreement provides for (1) severance payment equal to the annual base salary paid to the
F-36
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
officer and (2) death and disability payments in an amount equal to two times and one time, respectively, the annual base salary paid to the officer.
Litigation—The Company is not currently involved in any material pending or threatened legal proceedings nor, to the Company’s knowledge, are any
material legal proceedings currently threatened against the Company, other than routine litigation arising in the ordinary course of business. In the normal course
of business, the Company is periodically party to certain legal actions and proceedings involving matters that are generally incidental to the Company’s business.
While the outcome of these legal actions and proceedings cannot be predicted with certainty, in management’s opinion, the resolution of these legal proceedings
and actions will not have a material adverse effect on the Company’s business, financial condition, results of operations, cash flow or the Company’s ability to
satisfy its debt service obligations or to maintain its level of distributions on Common Stock or Preferred Stock.
In September 2018, the Company filed a lawsuit against the City and County of San Francisco seeking a refund of the $11.8 million in penalties, interest
and legal fees paid by the Company for real property transfer tax allegedly due for a transaction in a prior year. The Company disputed that such penalties, interest
and legal fees were payable but, in order to contest the asserted tax obligations, the Company had to pay such amounts to the City and County of San Francisco in
August 2017. The Company has been vigorously pursuing this litigation and intends to continue to do so.
A subsidiary of the Company is a defendant in a lawsuit in connection with injuries sustained by a third-party contractor at a property previously owned
by such subsidiary. While it is possible that a loss may be incurred, the Company is unable to estimate a range of potential losses due to the complexity and current
status of the lawsuit. However, the Company maintains insurance coverage to mitigate the impact of adverse exposures in lawsuits of this nature and do not expect
this lawsuit to have a material adverse effect on the Company’s business, financial condition, results of operations, cash flow or the Company ability to satisfy its
debt service obligations or to maintain the level of distributions on the Company’s Common Stock or Preferred Stock.
SBA Related—If the SBA establishes that a loss on an SBA guaranteed loan is attributable to significant technical deficiencies in the manner in which
the loan was originated, funded or serviced under the PPP or the SBA 7(a) Small Business Loan Program, the SBA may seek recovery of the principal loss related
to the deficiency from the Company. As of December 31, 2021, the Company serviced an aggregate of $262.4 million of the guaranteed portion of SBA 7(a) loans
. With respect to the guaranteed portion of SBA loans that have been sold, the SBA will first honor its guarantee and then seek compensation from the Company in
the event that a loss is deemed to be attributable to technical deficiencies. Based on historical experience, the Company does not expect that this contingency is
probable to be asserted. However, if asserted, it could have a material adverse effect on the Company’s business, financial condition, results of operations, cash
flow or the Company’s ability to satisfy its debt service obligations or to maintain its level of distributions on Common Stock or Preferred Stock.
Environmental Matters—In connection with the ownership and operation of real estate properties, the Company may be potentially liable for costs and
damages related to environmental matters, including asbestos-containing materials. The Company has not been notified by any governmental authority of any
noncompliance, liability, or other claim in connection with any of the properties, and the Company is not aware of any other environmental condition with respect
to any of the properties that management believes will have a material adverse effect on the Company’s business, financial condition, results of operations, cash
flow or the Company’s ability to satisfy its debt service obligations or to maintain its level of distributions on Common Stock or Preferred Stock.
F-37
Table of Contents
14. LEASES
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Future minimum rental revenue under long-term operating leases as of December 31, 2021, excluding tenant reimbursements of certain costs, are as
follows (in thousands):
Years Ending December 31,
2022
2023
2024
2025
2026
Thereafter
15. INCOME TAXES
$
$
Total
44,521
42,101
40,059
24,022
17,246
32,937
200,886
The Company has elected to be taxed as a REIT under the Code. To qualify as a REIT, the Company must meet a number of organizational and
operational requirements, including a requirement that the Company distributes at least 90% of its taxable income to its stockholders. As a REIT, the Company
generally will not be subject to corporate level federal income tax on net income that is currently distributed to stockholders.
The Company has wholly-owned TRS’s which are subject to federal and state income taxes. The income generated from the TRS’s is taxed at normal
corporate rates.
The provision for income taxes results in effective tax rates that differ from federal and state statutory rates. A reconciliation of the provision for income
tax attributable to the TRSs’ income from continuing operations computed at federal statutory rates to the income tax provision reported in the financial statements
is as follows:
(Loss) income from continuing operations before income taxes for TRSs
Expected federal income tax (benefit) provision
State income taxes
Change in valuation allowance
Other
Income tax (benefit) provision
F-38
Year Ended December 31,
2020
2021
(in thousands)
9,242 $
1,941 $
(40)
(273)
1,364
2,992 $
(7,995)
(1,679)
(1,562)
2,605
(86)
(722)
$
$
$
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
The components of the Company’s net deferred tax asset, which are included in other assets, are as follows:
Deferred tax assets:
Net operating losses
Secured borrowings—government guaranteed loans
Other
Total gross deferred tax assets
Valuation allowance
Deferred tax liabilities:
Loans receivable
Deferred tax asset, net
December 31,
2021
2020
(in thousands)
$
$
2,367 $
64
153
2,584
(2,370)
214
(96)
(96)
118 $
2,645
96
160
2,901
(2,643)
258
(67)
(67)
191
The net operating loss carryforwards as of December 31, 2021 and 2020 were generated by TRSs and are available to offset future taxable income of
these TRSs.
The decrease in the valuation allowance recorded in 2021 was $273,000.
The periods subject to examination for the Company’s federal and state income tax returns are 2018 through 2021. As of December 31, 2021 and 2020,
no reserves for uncertain tax positions have been established and the Company does not anticipate any material changes in the amount of unrecognized tax
benefits recorded to occur within the next 12 months.
The Tax Cuts and Jobs Act of 2017, signed into law in late December 2017, made sweeping changes to provisions of the Code applicable to businesses.
The CARES Act, signed into law in March 2020, made additional changes to provisions on the Code applicable to the businesses. Management has reviewed these
statutory changes and determined that the impact to the Company’s consolidated financial statements is not material.
16. SEGMENT DISCLOSURE
The Company’s reportable segments during the years ended December 31, 2021 and 2020 consist of two types of commercial real estate properties,
namely, office and hotel, as well as a segment for the Company’s lending business. Management internally evaluates the operating performance and financial
results of the segments based on net operating income. The Company also has certain general and administrative level activities, including public company
expenses, legal, accounting, and tax preparation that are not considered separate operating segments. The reportable segments are accounted for on the same basis
of accounting as described in Note 2.
For the Company’s real estate segments, the Company defines net operating income (loss) as rental and other property income and expense
reimbursements less property related expenses, and excludes non-property income and expenses, interest expense, depreciation and amortization, corporate related
general and administrative expenses, gain (loss) on sale of real estate, gain (loss) on early extinguishment of debt, impairment of real estate, transaction costs, and
provision (benefit) for income taxes. For the Company’s lending segment, the Company defines net operating income as interest income net of interest expense
and general overhead expenses.
F-39
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
The net operating income (loss) of the Company’s segments for the years ended December 31, 2021 and 2020 is as follows:
Office:
Revenues
Property expenses:
Operating
General and administrative
Total property expenses
Segment net operating income—office
Hotel:
Revenues
Property expenses:
Operating
General and administrative
Total property expenses
Segment net operating income (loss)—hotel
Lending:
Revenues
Lending expenses:
Interest expense
Expense reimbursements to related parties—lending segment
General and administrative
Total lending expenses
Segment net operating income—lending
Total segment net operating income
F-40
Year Ended December 31,
2020
2021
(in thousands)
$
53,289 $
55,468
23,431
347
23,778
29,511
17,849
15,841
128
15,969
1,880
19,787
408
1,921
1,788
4,117
15,670
47,061 $
23,485
490
23,975
31,493
13,314
14,059
64
14,123
(809)
8,322
868
3,491
2,006
6,365
1,957
32,641
$
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
A reconciliation of the Company’s segment net operating income to net income attributable to the Company for the years ended December 31, 2021 and
2020 is as follows:
Total segment net operating income
Interest and other income
Asset management and other fees to related parties
Expense reimbursements to related parties—corporate
Interest expense
General and administrative
Transaction costs
Depreciation and amortization
Loss on early extinguishment of debt
Impairment of real estate
Gain on sale of real estate
Income before provision for income taxes
(Provision) benefit for income taxes
Net (loss) income
Net loss (income) attributable to noncontrolling interests
Net (loss) income attributable to the Company
Year Ended December 31,
2020
2021
(in thousands)
47,061 $
1
(9,030)
(2,050)
(9,005)
(4,581)
(143)
(20,112)
—
—
—
2,141
(2,992)
(851)
1
(850) $
32,641
104
(9,793)
(2,243)
(10,547)
(4,212)
—
(21,406)
(281)
—
—
(15,737)
722
(15,015)
(1)
(15,016)
$
$
The condensed assets for each of the segments as of December 31, 2021 and 2020, along with capital expenditures and loan originations for the years
ended December 31, 2021 and 2020 are as follows:
Condensed assets:
Office
Hotel
Lending
Non-segment assets
Total assets
2021
December 31,
(in thousands)
2020
$
$
449,843 $
101,308
96,729
12,986
660,866 $
472,544
100,285
94,626
18,162
685,617
F-41
Table of Contents
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements as of December 31, 2021 and 2020
and for the Years Ended December 31, 2021 and 2020 (Continued)
Capital expenditures
and loan originations:
(1)
Office
Hotel
Total capital expenditures
Loan originations
Total capital expenditures and loan originations
Year Ended December 31,
2020
2021
(in thousands)
$
$
5,714 $
193
5,907
133,290
139,197 $
8,514
821
9,335
53,524
62,859
(1)
Represents additions and improvements to real estate investments, excluding acquisitions. Includes the activity for dispositions through their respective
disposition dates.
17. SUBSEQUENT EVENTS
Property Acquisitions
In February 2022, the Company and a co-investor acquired from an unrelated third-party a 100% fee-simple interest in an office property located in the
Echo Park neighborhood of Los Angeles, California for a purchase price of $51.0 million, which excludes transaction costs of $51,000 that were incurred in
connection with this acquisition. The property has approximately 97,564 square feet of office space and 2,760 square feet of retail space. The Company owns
approximately 44% of this property. The Company plans to undertake a capital improvement program to renovate and modernize the building into creative office
space as well as a limited number of multifamily units.
In February 2022, the Company acquired from an unrelated third-party a 100% fee-simple interest in a 11,318 square feet land site with a 3,752 square
feet building located in Los Angeles, California for a purchase price of $2.3 million, which excludes transaction costs of $8,000 that were incurred in connection
with this acquisition. The Company intends to pursue entitlements for residential use and develop into multifamily units.
Dividend Declaration
On March 8, 2022, the Company declared a cash dividend of $0.085 per share of its Common Stock, to be paid on April 1, 2022 to stockholders of record
at the close of business on March 19, 2022.
On March 8, 2022, the Company declared a quarterly cash dividend of $0.34375 per share of the Series A Preferred Stock for the second quarter of 2022.
The dividend will be payable as follows: $0.114583 per share to be paid on May 16, 2022 to Series A Preferred Stockholders of record on May 5, 2022; $0.114583
per share to be paid on June 15, 2022 to Series A Preferred Stockholders of record on June 5, 2022; and $0.114583 per share to be paid on July 15, 2022 to Series
A Preferred Stockholders of record on July 5, 2022. For shares of Series A Preferred Stock issued during the second quarter of 2021, the dividend will be prorated
from the date of issuance, and the monthly dividend payments will reflect such proration, as applicable.
On March 8, 2022, the Company declared a quarterly cash dividend of $0.353125 per share of the Series D Preferred Stock for the second quarter of
2022. The dividend will be payable as follows: $0.117708 per share to be paid on May 16, 2022 to Series D Preferred Stockholders of record on May 5, 2022;
$0.117708 per share to be paid on June 15, 2022 to Series D Preferred Stockholders of record on June 5, 2022; and $0.117708 per share to be paid on July 15,
2022 to Series D Preferred Stockholders of record on July 5, 2022. For shares of Series D Preferred Stock issued during the second quarter of 2021, the dividend
will be prorated from the date of issuance, and the monthly dividend payments will reflect such proration, as applicable.
Fee Waiver
On January 5, 2022, the Company and certain of its subsidiaries entered into the Fee Waiver with the Operator and the Administrator with respect to fees
that are payable to them. The Fee Waiver is effective retroactively to January 1, 2022. See Note 12 “Related-Party Transactions— Fee Waiver.”
F-42
Schedule III—Real Estate and Accumulated Depreciation
December 31, 2021
(in thousands)
Encumbrances
Land
Initial Cost
Building
and
Improvements
Net
Improvements
(Write-Offs)
Since
Acquisition
Gross Amount at Which Carried
(2)
Land
Building
and
Improvements
Total
Acc.
Deprec.
Year Built /
Renovated
Year of
Acquisition
(1) $
9,569
$
18,593
$
12,532
$
9,569
$
31,125
$
40,694
$
8,857
1918 / 2001 &
2020
$
97,100
9,261
113,619
19,048
9,261
132,667
141,928
52,113
1970 / 2008
—
10,931
110
3,153
10,931
3,263
14,194
42
N/A
2007
2008
2015
(1)
(1)
(1)
(1)
(1)
(1)
—
—
3,477
18,522
2,090
3,477
20,612
24,089
6,584
1955
2010
7,672
16,633
6,342
1,839
8,290
52,199
4,976
51,999
28,985
11,568
1,094
10,480
76,730
733
6,457
7,672
58,456
66,128
17,940
1976
5,375
16,633
34,360
50,993
6,367
1984 / 2014
(101)
6,342
11,467
17,809
2,198
1930 & 1957 /
2010
48
1,839
1,142
2,981
14
2000 / 2021
131
8,290
10,611
18,901
1,297
1930 / 2016 &
2017
1,681
52,199
78,411
130,610
8,738
1959 / 2008
—
4,976
733
5,709
113
1972 / 2001
2010
2014
2014
2021
2017
2018
2020
(1)
3,497
107,447
(99)
3,497
107,348
110,845
36,612
2001
2008
—
97,100
6,550
141,236
$
$
10,996
450,876
$
$
275
50,590
$
6,550
141,236
$
11,271
501,466
$
17,821
642,702
$
3,843
144,718
2001
2008
Property Name,
City and State
Office
3601 S Congress Avenue
Austin, TX
1 Kaiser Plaza
Oakland, CA
2 Kaiser Plaza Parking
Lot
Oakland, CA
11600 Wilshire
Boulevard
Los Angeles, CA
11620 Wilshire
Boulevard
Los Angeles, CA
4750 Wilshire Boulevard
Los Angeles, CA
Lindblade Media Center
Los Angeles, CA
1037 N Sycamore
Los Angeles, CA
1130 Howard Street
San Francisco, CA
9460 Wilshire Boulevard
Los Angeles, CA
1021 E 7th Street
Austin, TX
Hotel
Sheraton Grand Hotel
Sacramento, CA
Sheraton Grand Hotel
Parking & Retail
Sacramento, CA
(1)
(2)
These properties collateralize the revolving credit facility, which had a $60.0 million outstanding balance as of December 31, 2021.
The aggregate gross cost of property included above for federal income tax purposes approximates $695.1 million (unaudited) as of December 31, 2021.
F-43
Schedule III—Real Estate and Accumulated Depreciation (Continued)
December 31, 2021
(in thousands)
The following table reconciles the Company’s investments in real estate from January 1, 2020 to December 31, 2021:
Investments in Real Estate
Balance, beginning of period
Additions:
Improvements
Property acquisitions
Deductions:
Assets held for sale
Asset sales
Impairment
Retirements
Balance, end of period
Year Ended December 31,
2020
2021
(in thousands)
$
637,205 $
629,262
5,907
2,933
—
—
—
(3,343)
642,702 $
9,335
5,709
—
—
—
(7,101)
637,205
$
The following table reconciles the accumulated depreciation from January 1, 2020 to December 31, 2021:
Accumulated Depreciation
Balance, beginning of period
Additions: depreciation
Deductions:
Assets held for sale
Asset sales
Retirements
Balance, end of period
Year Ended December 31,
2020
2021
(in thousands)
$
$
(131,165) $
(120,555)
(16,896)
—
—
3,343
(144,718) $
(17,711)
—
—
7,101
(131,165)
F-44
Schedule IV—Mortgage Loans on Real Estate
December 31, 2021
(dollars in thousands, except footnotes)
Geographic
Dispersion of
Collateral
Number
of
Loans
Size of Loans
From
To
Interest Rate
Final
Maturity
Date Range
Carrying
Amount of
(1)
Mortgages
Principal
Amount of
Loans Subject
to Delinquent
Principal or
“Interest”
(2) (3)
:
SBA 7(a) Loans - States 2% or greater
Texas
Ohio
Indiana
Michigan
Florida
Illinois
West Virginia
Pennsylvania
Louisiana
New Mexico
Virginia
Colorado
Kentucky
Alabama
North Carolina
South Carolina
(4)
Other
Government guaranteed portions
SBA 7(a) loans, subject to secured
(5)
borrowings
(6)
Paycheck Protection Program loans, net
General reserves
(7)
10
70
100
10
90
50
20
310
90
100
110
320
130
30
60
270
1
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
980
890
970
970
1,070
530
870
690
590
770
650
520
420
480
350
390
510
4.75%
4.75%
4.75%
4.75%
5.00%
5.00%
4.75%
5.00%
5.00%
4.75%
5.00%
4.75%
5.00%
5.00%
5.25%
5.00%
4.75%
to
to
to
to
to
to
to
to
to
to
to
to
to
to
to
to
to
6.00%
6.00%
6.00%
6.00%
6.00%
6.00%
6.00%
6.00%
6.00%
6.00%
5.75%
5.50%
6.00%
5.75%
6.00%
6.00%
6.00%
05/22/23 —
03/26/37 —
05/14/36 —
10/10/33 —
06/29/32 —
09/08/39 —
09/25/31 —
03/05/40 —
11/22/31 —
11/17/34 —
02/27/43 —
11/16/39 —
01/04/41 —
07/27/25 —
09/08/32 —
11/06/40 —
03/29/22 —
08/20/46
12/07/46
08/26/46
10/27/46
08/19/46
10/15/46
09/20/46
11/29/43
02/22/46
08/09/46
09/08/46
09/15/45
10/29/46
09/10/46
09/30/46
07/30/44
12/14/46
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
21
23
16
20
12
11
6
4
6
5
5
4
6
7
7
4
42
199
$
$
$
7,861
7,672
6,873
5,859
5,173
2,278
2,107
2,077
1,801
1,720
1,640
1,515
1,498
1,473
1,358
1,308
9,415
1,199
6,671
4,903
(858)
73,543
(8)
$
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
85
—
—
—
—
85
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Excludes general reserves of $858,000 since not specifically identified.
Includes $359,000 of loans with subordinate lien positions.
Interest rates are variable at spreads over the prime rate unless otherwise noted.
Includes a loan with a retained face value of $85,000, a valuation reserve of $85,000 and a fixed interest rate of 6.00%.
Represents the government guaranteed portions of the Company’s SBA 7(a) loans detailed above retained by us. As there is no risk of loss to us related to
these portions of the guaranteed loans, the geographic information is not presented as it is not meaningful.
Represents the guaranteed portion of SBA 7(a) loans which were sold with the proceeds received from the sale reflected as secured borrowings. For
Federal income tax purposes, these proceeds are treated as sales and reduce the carrying value of loans receivable.
PPP loans are 100% guaranteed. As there is no risk of loss to us related to these loans, the geographic information is not presented as it is not meaningful.
Face value of these loans is $5.1 million.
For Federal income tax purposes, the aggregate cost basis of the Company’s loans was approximately $66.4 million (unaudited).
F-45
Schedule IV—Mortgage Loans on Real Estate (Continued)
December 31, 2021
(in thousands)
Balance, beginning of period
Additions during period:
New loans
Other - deferral of loan origination costs
Other - accretion of loan discounts, net of amortization of deferred origination costs
Deductions during period:
Collections of principal
Foreclosures
Cost of mortgages sold, net
Other - bad debt expense
Balance, end of period
F-46
Year Ended December 31,
2021
2020
$
83,135 $
68,079
133,290
2,559
1,424
(32,370)
—
(114,437)
(58)
73,543 $
$
53,524
382
933
(11,580)
(174)
(27,609)
(420)
83,135
Exhibit 3.6
BYLAWS
of
PMC COMMERCIAL MERGER SUB, INC. ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of PMC Commercial Merger Sub, Inc. (the “Corporation”) in the State
of Maryland shall be located at such place as the Board of Directors may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional offices, including a principal executive office, at
such places as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the principal executive office of the Corporation or at such
other place as shall be set in accordance with these Bylaws and stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of stockholders for the election of Directors and the transaction of any
business within the powers of the Corporation shall be held on the date and at the time and place set by the Board of Directors.
Section 3. SPECIAL MEETINGS.
(a)
General. Each of the chairman of the Board of Directors, president, chief executive officer and Board of Directors may
call a special meeting of the stockholders. Subject to subsection (b) of this Section 3, a special meeting of the stockholders shall also
be called by the secretary of the Corporation to act on any matter that may properly be considered at a meeting of stockholders upon
the written request of stockholders entitled to cast not less than a majority of all the votes entitled to be cast on such matter at such
meeting. Except as provided in subsection (b)(4) of this Section 3, a special meeting of stockholders shall be held on the date and at
the time and place set by the chairman of the Board of Directors, chief executive officer, president or Board of Directors, whoever
has called the meeting.
(b) Stockholder Requested Special Meetings.
(1) Any stockholder of record seeking to have stockholders request a special meeting shall, by sending written notice to
the secretary (the “Record Date Request Notice”) by
1
registered mail, return receipt requested, request the Board of Directors to fix a record date to determine the stockholders entitled to
request a special meeting (the “Request Record Date”). The Record Date Request Notice shall set forth the purpose of the meeting
and the matters proposed to be acted on at it, shall be signed by one or more stockholders of record as of the date of signature (or
their agents duly authorized in a writing accompanying the Record Date Request Notice), shall bear the date of signature of each
such stockholder (or such agent) and shall set forth all information relating to each such stockholder and each matter proposed to be
acted on at the meeting that would be required to be disclosed in connection with the solicitation of proxies for the election of
directors in an election contest (even if an election contest is not involved), or would otherwise be required in connection with such a
solicitation, in each case pursuant to Regulation 14A (or any successor provision) under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). Upon receiving the Record Date Request
Notice, the Board of Directors may fix a Request Record Date. The Request Record Date shall not precede and shall not be more
than ten days after the close of business on the date on which the resolution fixing the Request Record Date is adopted by the Board
of Directors. If the Board of Directors, within ten days after the date on which a valid Record Date Request Notice is received, fails
to adopt a resolution fixing the Request Record Date, the Request Record Date shall be the close of business on the tenth day after
the first date on which a Record Date Request Notice is received by the secretary.
(2) In order for any stockholder to request a special meeting to act on any matter that may properly be considered at a
meeting of stockholders, one or more written requests for a special meeting (collectively, the “Special Meeting Request”) signed by
stockholders of record (or their agents duly authorized in a writing accompanying the request) as of the Request Record Date
entitled to cast not less than a majority (the “Special Meeting Percentage”) of all of the votes entitled to be cast on such matter at
such meeting shall be delivered to the secretary. In addition, the Special Meeting Request shall (a) set forth the purpose of the
meeting and the matters proposed to be acted on at it (which shall be limited to those lawful matters set forth in the Record Date
Request Notice received by the secretary), (b) bear the date of signature of each such stockholder (or such agent) signing the Special
Meeting Request, (c) set forth (i) the name and address, as they appear in the Corporation’s books, of each stockholder signing such
request (or on whose behalf the Special Meeting Request is signed), (ii) the class, series and number of all shares of stock of the
Corporation which are owned (beneficially or of record) by each such stockholder and (iii) the name and address of the nominee
holder for, and number of, shares owned by such stockholder beneficially but not of record by such stockholder, (d) be sent to the
secretary by registered mail, return receipt requested, and (e) be received by the secretary within sixty (60) days after the Request
Record Date. Any requesting stockholder (or agent duly authorized in a writing accompanying the revocation of the Special Meeting
Request) may revoke his, her or its request for a special meeting at any time by written revocation delivered to the secretary.
(3) The secretary shall inform the requesting stockholders of the reasonably estimated cost of preparing and mailing or
delivering the notice of the meeting (including the Corporation’s proxy materials). The secretary shall not be required to call a special
meeting upon stockholder request and such meeting shall not be held unless, in addition to the documents required by paragraph (2)
of this Section 3(b), the secretary receives payment of such reasonably estimated cost prior to the preparation and mailing or delivery
of such notice of the meeting.
2
(4) In the case of any special meeting called by the secretary upon the request of stockholders (a “Stockholder Requested
Meeting”), such meeting shall be held at such place, date and time as may be designated by the Board of Directors; provided,
however, that the date of any Stockholder Requested Meeting shall be not more than ninety (90) days after the record date for such
meeting (the “Meeting Record Date”); and provided further that if the Board of Directors fails to designate, within ten (10) days
after the date that a valid Special Meeting Request is actually received by the secretary (the “Delivery Date”), a date and time for a
Stockholder Requested Meeting, then such meeting shall be held at 2:00 p.m., local time, on the ninetieth (90th) day after the
Meeting Record Date or, if such ninetieth (90th) day is not a Business Day (as defined below), on the first preceding Business Day;
and provided further that in the event that the Board of Directors fails to designate a place for a Stockholder Requested Meeting
within ten (10) days after the Delivery Date, then such meeting shall be held at the principal executive office of the Corporation. In
fixing a date for a Stockholder-Requested Meeting, the Board of Directors may consider such factors as it deems relevant,
including, without limitation, the nature of the matters to be considered, the facts and circumstances surrounding any request for the
meeting and any plan of the Board of Directors to call an annual meeting or a special meeting. In the case of any Stockholder
Requested Meeting, if the Board of Directors fails to fix a Meeting Record Date that is a date within thirty (30) days after the
Delivery Date, then the close of business on the thirtieth (30th) day after the Delivery Date shall be the Meeting Record Date. The
Board of Directors may revoke the notice for any Stockholder Requested Meeting in the event that the requesting stockholders fail
to comply with the provisions of paragraph (3) of this Section 3(b).
(5) If written revocations of the Special Meeting Request have been delivered to the secretary and the result is that
stockholders of record (or their agents duly authorized in writing), as of the Request Record Date, entitled to cast less than the
Special Meeting Percentage have delivered, and not revoked, requests for a special meeting on the matter to the secretary: (i) if the
notice of meeting has not already been delivered, the secretary shall refrain from delivering the notice of the meeting and send to all
requesting stockholders who have not revoked such requests written notice of any revocation of a request for a special meeting on
the matter, or (ii) if the notice of meeting has been delivered and if the secretary first sends to all requesting stockholders who have
not revoked requests for a special meeting on the matter written notice of any revocation of a request for the special meeting and
written notice of the Corporation’s intention to revoke the notice of the meeting or for the chairman of the meeting to adjourn the
meeting without action on the matter, (A) the secretary may revoke the notice of the meeting at any time before ten (10) days before
the commencement of the meeting or (B) the chairman of the meeting may call the meeting to order and adjourn the meeting without
acting on the matter. Any request for a special meeting received after a revocation by the secretary of a notice of a meeting shall be
considered a request for a new special meeting.
(6) The chairman of the Board of Directors, chief executive officer, president or Board of Directors may appoint
regionally or nationally recognized independent inspectors of elections to act as the agent of the Corporation for the purpose of
promptly performing a ministerial review of the validity of any purported Special Meeting Request received by the secretary. For the
purpose of permitting the inspectors to perform such review, no such purported Special Meeting Request shall be deemed to have
been received by the secretary until the earlier of
(i) ten (10) Business Days after actual receipt by the secretary of such purported request and
3
such date as the independent inspectors certify to the Corporation that the valid requests received by the secretary represent,
(ii)
as of the Request Record Date, stockholders of record entitled to cast not less than the Special Meeting Percentage. Nothing
contained in this paragraph (6) shall in any way be construed to suggest or imply that the Corporation or any stockholder shall not
be entitled to contest the validity of any request, whether during or after such ten (10) Business Day period, or to take any other
action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto, and the
seeking of injunctive relief in such litigation).
(7) For purposes of these Bylaws, “Business Day” shall mean any day other than a Saturday, a Sunday or a day on
which banking institutions in New York City are authorized or obligated by law, regulation or executive order to close.
Section 4. NOTICE. Not less than ten (10) nor more than ninety (90) days before each meeting of stockholders, the secretary
shall give to each stockholder entitled to vote at such meeting and to each stockholder not entitled to vote who is entitled to notice of
the meeting notice in writing or by electronic transmission stating the time and place of the meeting and, in the case of a special
meeting or as otherwise may be required by any statute, the purpose for which the meeting is called, by mail, by presenting it to such
stockholder personally, by leaving it at the stockholder’s residence or usual place of business, by electronic transmission or by any
other means permitted by Maryland law. If mailed, such notice shall be deemed to be given when deposited in the United States mail
addressed to the stockholder at the stockholder’s address as it appears on the records of the Corporation, with postage thereon
prepaid. If transmitted electronically, such notice shall be deemed to be given when transmitted to the stockholder by an electronic
transmission to any address or number of the stockholder at which the stockholder receives electronic transmissions. The
Corporation may give a single notice to all stockholders who share an address, which single notice shall be effective as to any
stockholder at such address, unless such stockholder objects to receiving such single notice or revokes a prior consent to receiving
such single notice. Failure to give notice of any meeting to one or more stockholders, or any irregularity in such notice, shall not
affect the validity of any meeting fixed in accordance with this Article II or the validity of any proceedings at any such meeting.
Subject to Section 11(a) of this Article II, any business of the Corporation may be transacted at an annual meeting of
stockholders without being specifically designated in the notice, except such business as is required by any statute to be stated in
such notice. No business shall be transacted at a special meeting of stockholders except as specifically designated in the notice. The
Corporation may postpone or cancel a meeting of stockholders by making a public announcement (as defined in Section 11(c)(3) of
this Article II) of such postponement or cancellation prior to the meeting. Notice of the date, time and place to which the meeting is
postponed shall be given not less than ten days prior to such date and otherwise in the manner set forth in this section.
Section 5. ORGANIZATION AND CONDUCT. Every meeting of stockholders shall be conducted by an individual appointed
by the Board of Directors to be chairman of the meeting or, in the absence of such appointment or appointed individual, by the
chairman of the Board of Directors or, in the case of a vacancy in the office or absence of the chairman of the Board of Directors, by
one of the following officers present at the meeting in the following order: the vice
4
chairman of the Board of Directors, if there is one, the chief executive officer, the president, the vice presidents in their order of rank
and seniority, the secretary or, in the absence of such officers, a chairman chosen by the stockholders by the vote of a majority of the
votes cast by stockholders present in person or by proxy. The secretary, or, in the secretary’s absence, an assistant secretary, or, in the
absence of both the secretary and assistant secretaries, an individual appointed by the Board of Directors or, in the absence of such
appointment, an individual appointed by the chairman of the meeting shall act as secretary. In the event that the secretary presides at
a meeting of stockholders, an assistant secretary, or, in the absence of all assistant secretaries, an individual appointed by the Board
of Directors or the chairman of the meeting, shall record the minutes of the meeting. The order of business and all other matters of
procedure at any meeting of stockholders shall be determined by the chairman of the meeting. The chairman of the meeting may
prescribe such rules, regulations and procedures and take such action as, in the discretion of the chairman and without any action by
the stockholders, are appropriate for the proper conduct of the meeting, including, without limitation, (a) restricting admission to the
time set for the commencement of the meeting; (b) limiting attendance at the meeting to stockholders of record of the Corporation,
their duly authorized proxies and such other individuals as the chairman of the meeting may determine; (c) limiting participation at
the meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter, their duly authorized proxies
and other such individuals as the chairman of the meeting may determine; (d) limiting the time allotted to questions or comments;
(e) determining when and for how long the polls should be opened and when the polls should be closed;
(f) maintaining order and security at the meeting; (g) removing any stockholder or any other individual who refuses to comply
with meeting procedures, rules or guidelines as set forth by the chairman of the meeting; (h) concluding a meeting or recessing or
adjourning the meeting, whether or not a quorum is present, to a later date and time and at a place announced at the meeting; and (i)
complying with any state and local laws and regulations concerning safety and security. Unless otherwise determined by the
chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section 6. QUORUM. At any meeting of stockholders, the presence in person or by proxy of stockholders entitled to cast a
majority of all the votes entitled to be cast at such meeting on any matter shall constitute a quorum; but this section shall not affect
any requirement under any statute or the charter of the Corporation (the “Charter”) for the vote necessary for the approval of any
matter. If such quorum is not established at any meeting of the stockholders, the chairman of the meeting may adjourn the meeting
sine die or from time to time to a date not more than one hundred twenty (120) days after the original record date without notice
other than announcement at the meeting. At such adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally notified.
The stockholders present either in person or by proxy, at a meeting which has been duly called and at which a quorum has
been established, may continue to transact business until adjournment, notwithstanding the withdrawal from the meeting of enough
stockholders to leave fewer than would be required to establish a quorum.
Section 7. VOTING. A plurality of all the votes cast at a meeting of stockholders duly called and at which a quorum is present
shall be sufficient to elect a Director. Each share entitles the holder thereof to vote for as many individuals as there are Directors to
be elected and for
5
whose election the holder is entitled to vote. A majority of the votes cast at a meeting of stockholders duly called and at which a
quorum is present shall be sufficient to approve any other matter which may properly come before the meeting, unless more than a
majority of the votes cast is required by statute or by the Charter. Unless otherwise provided by statute or by the Charter, each
outstanding share of stock, regardless of class, entitles the holder thereof to cast one vote on each matter submitted to a vote at a
meeting of stockholders.
Section 8. PROXIES. A holder of record of shares of stock of the Corporation may cast votes in person or by proxy executed
by the stockholder or by the stockholder’s duly authorized agent in any manner permitted by law. Such proxy or evidence of
authorization of such proxy shall be filed with the secretary of the Corporation before or at the meeting. No proxy shall be valid
more than eleven months after its date unless otherwise provided in the proxy.
Section 9. VOTING OF SHARES BY CERTAIN HOLDERS. Stock of the Corporation registered in the name of a corporation,
limited liability company, partnership, joint venture, trust or other entity, if entitled to be voted, may be voted by the president or a
vice president, managing member, manager, general partner or trustee thereof, as the case may be, or a proxy appointed by any of the
foregoing individuals, unless some other person who has been appointed to vote such stock pursuant to a bylaw or a resolution of the
governing body of such corporation or other entity or agreement of the partners of a partnership presents a certified copy of such
bylaw, resolution or agreement, in which case such person may vote such stock. Any trustee or fiduciary, in such capacity, may vote
stock registered in such trustee’s or fiduciary’s name, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at any meeting and shall not be
counted in determining the total number of outstanding shares entitled to be voted at any given time, unless they are held by it in a
fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding shares at
any given time.
The Board of Directors may adopt by resolution a procedure by which a stockholder may certify in writing to the
Corporation that any shares of stock registered in the name of the stockholder are held for the account of a specified person other
than the stockholder. The resolution shall set forth the class of stockholders who may make the certification, the purpose for which
the certification may be made, the form of certification and the information to be contained in it; if the certification is with respect
to a record date, the time after the record date within which the certification must be received by the Corporation; and any other
provisions with respect to the procedure which the Board of Directors considers necessary or desirable. On receipt by the
Corporation of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the
certification, the holder of record of the specified stock in place of the stockholder who makes the certification.
Section 10. INSPECTORS. The Board of Directors or the chairman of the meeting may appoint, before or at the meeting, one
or more inspectors for the meeting and any successor to the inspector. Except as otherwise provided by the chairman of the meeting,
the inspectors, if any, shall (i) determine the number of shares of stock represented at the meeting, in person or by proxy, and the
validity and effect of proxies, (ii) receive and tabulate all votes, ballots or
6
consents, (iii) report such tabulation to the chairman of the meeting, (iv) hear and determine all challenges and questions arising in
connection with the right to vote, and (v) do such acts as are proper to fairly conduct the election or vote. Each such report shall be
in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is
more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof.
Section 11. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER PROPOSALS BY
STOCKHOLDERS.
(a)
Annual Meetings of Stockholders. (1) Nominations of individuals for election to the Board of Directors and the
proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders (i) pursuant to the
Corporation’s notice of meeting,
(ii) by or at the direction of the Board of Directors or (iii) by any stockholder of the Corporation who was a stockholder of record
both at the time of giving of notice by the stockholder as provided for in this Section 11(a) and at the time of the annual meeting,
who is entitled to vote at the meeting in the election of each individual so nominated or on any such other business and who has
complied with this Section 11(a).
(2) For any nomination or other business to be properly brought before an annual meeting by a stockholder pursuant to
clause (iii) of paragraph (a)(1) of this Section 11, the stockholder must have given timely notice thereof in writing to the secretary of
the Corporation and any such other business must otherwise be a proper matter for action by the stockholders. To be timely, a
stockholder’s notice shall set forth all information required under this Section 11 and shall be delivered to the secretary at the
principal executive office of the Corporation not earlier than the one hundred fiftieth (150th) day nor later than 5:00 p.m., Eastern
Time, on the one hundred twentieth (120th) day prior to the first anniversary of the date of the proxy statement (as defined in Section
11(c)(3) of this Article II) for the preceding year’s annual meeting; provided, however, that in connection with the Corporation’s first
annual meeting or in the event that the date of the annual meeting is advanced or delayed by more than thirty (30) days from the first
anniversary of the date of the preceding year’s annual meeting, in order for notice by the stockholder to be timely, such notice must
be so delivered not earlier than the one hundred fiftieth (150th) day prior to the date of such annual meeting and not later than 5:00
p.m., Eastern Time, on the later of the one hundred twentieth (120th) day prior to the date of such annual meeting, as originally
convened, or the tenth day following the day on which public announcement of the date of such meeting is first made. The public
announcement of a postponement or adjournment of an annual meeting shall not commence a new time period for the giving of a
stockholder’s notice as described above.
(3) Such stockholder’s notice shall set forth:
(i) as to each individual whom the stockholder proposes to nominate for election or reelection as a Director (each,
a “Proposed Nominee”), all information relating to the Proposed Nominee that would be required to be disclosed in connection with
the solicitation of proxies for the election of the Proposed Nominee as a Director in an election contest (even if an election contest is
not involved), or would otherwise be required in connection with such
7
solicitation, in each case pursuant to Regulation 14A (or any successor provision) under the Exchange Act;
(ii) as to any other business that the stockholder proposes to bring before the meeting, a description of such
business, the stockholder’s reasons for proposing such business at the meeting and any material interest in such business of such
stockholder or any Stockholder Associated Person (as defined below), individually or in the aggregate, including any anticipated
benefit to the stockholder or the Stockholder Associated Person therefrom;
(iii) as to the stockholder giving the notice, any Proposed Nominee and any Stockholder Associated Person,
(A)
the class, series and number of all shares of stock or other securities of the Corporation (collectively, the
“Company Securities”), if any, which are owned (beneficially or of record) by such stockholder, Proposed Nominee or Stockholder
Associated Person, the date on which each such Company Security was acquired and the investment intent of such acquisition, and
any short interest (including any opportunity to profit or share in any benefit from any decrease in the price of such stock or other
security) in any Company Securities of any such person,
such stockholder, Proposed Nominee or Stockholder Associated Person,
(B)
the nominee holder for, and number of, any Company Securities owned beneficially but not of record by
(C)
whether and the extent to which such stockholder, Proposed Nominee or Stockholder Associated
Person, directly or indirectly (through brokers, nominees or otherwise), is subject to or during the last six months has engaged in
any hedging, derivative or other transaction or series of transactions or entered into any other agreement, arrangement or
understanding (including any short interest, any borrowing or lending of securities or any proxy or voting agreement), the effect or
intent of which is to (I) manage risk or benefit of changes in the price of Company Securities for such stockholder, Proposed
Nominee or Stockholder Associated Person or (II) increase or decrease the voting power of such stockholder, Proposed Nominee or
Stockholder Associated Person in the Corporation disproportionately to such person’s economic interest in the Company Securities
and
(D)
any substantial interest, direct or indirect (including, without limitation, any existing or prospective
commercial, business or contractual relationship with the Corporation), by security holdings or otherwise, of such stockholder,
Proposed Nominee or Stockholder Associated Person, in the Corporation, other than an interest arising from the ownership of
Company Securities where such stockholder, Proposed Nominee or Stockholder Associated Person receives no extra or special
benefit not shared on a pro rata basis by all other holders of the same class or series;
referred to in clauses (ii) or (iii) of this paragraph (3) of this Section 11(a) and any Proposed Nominee,
(iv) as to the stockholder giving the notice, any Stockholder Associated Person with an interest or ownership
8
current name and business address, if different, of each such Stockholder Associated Person and any Proposed Nominee and
(A)
the name and address of such stockholder, as they appear on the Corporation’s stock ledger, and the
(B)
the investment strategy or objective, if any, of such stockholder and each such Stockholder Associated
Person who is not an individual and a copy of the prospectus, offering memorandum or similar document, if any, provided to
investors or potential investors in such stockholder and each such Stockholder Associated Person;
the name and address of any person who contacted or was contacted by the stockholder giving the notice or any
Stockholder Associated Person about the Proposed Nominee or other business proposal prior to the date of such stockholder’s notice;
and
(v)
(vi) to the extent known by the stockholder giving the notice, the name and address of any other stockholder
supporting the nominee for election or reelection as a Director or the proposal of other business on the date of such stockholder’s
notice.
(4) Such stockholder’s notice shall, with respect to any Proposed Nominee, be accompanied by a certificate executed by
the Proposed Nominee (i) certifying that such Proposed Nominee (a) is not, and will not become, a party to any agreement,
arrangement or understanding with any person or entity other than the Corporation in connection with service or action as a Director
that has not been disclosed to the Corporation and (b) will serve as a Director of the Corporation if elected; and (ii) attaching a
completed Proposed Nominee questionnaire (which questionnaire shall be provided by the Corporation, upon request, to the
stockholder providing the notice and shall include all information relating to the Proposed Nominee that would be required to be
disclosed in connection with the solicitation of proxies for the election of the Proposed Nominee as a Director in an election contest
(even if an election contest is not involved), or would otherwise be required in connection with such solicitation, in each case
pursuant to Regulation 14A (or any successor provision) under the Exchange Act and the rules thereunder, or would be required
pursuant to the rules of any national securities exchange on which any securities of the Corporation are listed or over-the-counter
market on which any securities of the Corporation are traded).
(5) Notwithstanding anything in this subsection (a) of this Section 11 to the contrary, in the event that the number of
Directors to be elected to the Board of Directors is increased, and there is no public announcement of such action at least one
hundred thirty (130) days prior to the first anniversary of the date of the proxy statement (as defined in Section 11(c)(3) of this
Article
II) for the preceding year’s annual meeting, a stockholder’s notice required by this Section 11(a) shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary at the principal
executive office of the Corporation not later than 5:00 p.m., Eastern Time, on the tenth day following the day on which such public
announcement is first made by the Corporation.
(6) For purposes of this Section 11, “Stockholder Associated Person” of any stockholder shall mean (i) any person acting
in concert with such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by
such stockholder
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(other than a stockholder that is a depositary) and (iii) any person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such stockholder or such Stockholder Associated Person.
(b)
Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of individuals for election to the
Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected only (i) by or at the
direction of the Board of Directors or (ii) provided that the special meeting has been called in accordance with Section 3(a) of this
Article II for the purpose of electing Directors, by any stockholder of the Corporation who is a stockholder of record both at the time
of giving of notice provided for in this Section 11 and at the time of the special meeting, who is entitled to vote at the meeting in the
election of each individual so nominated and who has complied with the notice procedures set forth in this Section 11. In the event
the Corporation calls a special meeting of stockholders for the purpose of electing one or more individuals to the Board of Directors,
any stockholder may nominate an individual or individuals (as the case may be) for election as a Director as specified in the
Corporation’s notice of meeting, if the stockholder’s notice, containing the information required by paragraphs (a)(3) and (4) of this
Section 11, is delivered to the secretary at the principal executive office of the Corporation not earlier than the one hundred twentieth
(120th) day prior to such special meeting and not later than 5:00 p.m., Eastern Time, on the later of the ninetieth (90th) day prior to
such special meeting or the tenth day following the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. The public announcement of a
postponement or adjournment of a special meeting shall not commence a new time period for the giving of a stockholder’s notice as
described above.
(c)
General. (1) If information submitted pursuant to this Section 11 by any stockholder proposing a nominee for election
as a Director or any proposal for other business at a meeting of stockholders shall be inaccurate in any material respect, such
information may be deemed not to have been provided in accordance with this Section 11. Any such stockholder shall notify the
Corporation of any inaccuracy or change (within two (2) Business Days of becoming aware of such inaccuracy or change) in any
such information. Upon written request by the secretary or the Board of Directors, any such stockholder shall provide, within five (5)
Business Days of delivery of such request (or such other period as may be specified in such request), (A) written verification,
satisfactory, in the discretion of the Board of Directors or any authorized officer of the Corporation, to demonstrate the accuracy of
any information submitted by the stockholder pursuant to this Section 11, and (B) a written update of any information (including, if
requested by the Corporation, written confirmation by such stockholder that it continues to intend to bring such nomination or other
business proposal before the meeting) submitted by the stockholder pursuant to this Section 11 as of an earlier date. If a stockholder
fails to provide such written verification or written update within such period, the information as to which written verification or a
written update was requested may be deemed not to have been provided in accordance with this Section 11.
(2) Only such individuals who are nominated in accordance with this Section 11 shall be eligible for election by
stockholders as Directors, and only such business shall be conducted at a meeting of stockholders as shall have been brought before
the meeting in accordance with this
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Section 11. The chairman of the meeting shall have the power to determine whether a nomination or any other business
proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with this Section 11.
(3) For purposes of this Section 11, “the date of the proxy statement” shall have the same meaning as “the date of the
company’s proxy statement released to shareholders” as used in Rule 14a-8(e) promulgated under the Exchange Act, as interpreted
by the Securities and Exchange Commission from time to time. “Public announcement” shall mean disclosure (A) in a press release
reported by the Dow Jones News Service, Associated Press, Business Wire, PR Newswire or other widely circulated news or wire
service or (B) in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to the
Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 11, a stockholder shall also comply with all applicable
requirements of state law and of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in
this Section 11. Nothing in this Section 11 shall be deemed to affect any right of a stockholder to request inclusion of a proposal in,
or the right of the Corporation to omit a proposal from, any proxy statement filed by the Corporation with the Securities and
Exchange Commission pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act. Nothing in this Section 11 shall
require disclosure of revocable proxies received by the stockholder or Stockholder Associated Person pursuant to a solicitation of
proxies after the filing of an effective Schedule 14A by such stockholder or Stockholder Associated Person under Section 14(a) of
the Exchange Act.
Section 12. VOTING BY BALLOT. Voting on any question or in any election may be viva voce unless the presiding officer
shall order that voting be by ballot or otherwise.
Section 13. TELEPHONE MEETINGS. The Board of Directors or chairman of the meeting may permit one or more
stockholders to participate in a meeting by means of a conference telephone or other communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation in a meeting by these means constitutes presence in
person at the meeting.
Section 14. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision of the Charter or these Bylaws,
Title 3, Subtitle 7 of the Maryland General Corporation Law, or any successor statute (the “MGCL”), shall not apply to any
acquisition by any person of shares of stock of the Corporation. This section may be repealed, in whole or in part, at any time,
whether before or after an acquisition of control shares and, upon such repeal, may, to the extent provided by any successor bylaw,
apply to any prior or subsequent control share acquisition.
Section 15. STOCKHOLDERS’ CONSENT IN LIEU OF MEETING. Any action required or permitted to be taken at any
meeting of stockholders may be taken without a meeting (a) if a unanimous consent setting forth the action is given in writing or by
electronic transmission by each stockholder entitled to vote on the matter and filed with the minutes of proceedings of the
stockholders or (b) if the action is advised, and submitted to the stockholders for approval, by the Board of Directors and a consent in
writing or by electronic transmission of stockholders entitled to cast not less than the minimum number of votes that would be
necessary to authorize or take the action at a meeting of stockholders is delivered to the Corporation in accordance with the
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MGCL. The Corporation shall give notice of any action taken by less than unanimous consent to each stockholder not later than ten
days after the effective time of such action.
ARTICLE III DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation shall be managed under the direction of its
Board of Directors.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at any special meeting called for that
purpose, a majority of the entire Board of Directors may establish, increase or decrease the number of Directors; provided that the
number thereof shall never be less than the minimum number required by the MGCL, nor more than twenty-five (25); and further
provided that the tenure of office of a Director shall not be affected by any decrease in the number of Directors. A Director shall be
an individual at least 21 years of age who is not under legal disability.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of Directors shall be held immediately
after and at the same place as the annual meeting of stockholders, no notice other than this Bylaw being necessary. In the event such
meeting is not so held, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the Board of Directors. The Board of Directors may provide, by resolution, the time and place for the
holding of regular meetings of the Board of Directors without other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by or at the request of the
chairman of the Board of Directors, the chief executive officer, the president or a majority of the Directors then in office. The
person or persons authorized to call special meetings of the Board of Directors may fix any place as the place for holding any
special meeting of the Board of Directors called by them. The Board of Directors may provide, by resolution, the time and place for
the holding of special meetings of the Board of Directors without other notice than such resolution.
Section 5. NOTICE. Notice of any special meeting of the Board of Directors shall be delivered personally or by telephone,
electronic mail, facsimile transmission, United States mail or courier to each Director at his or her business or residence address.
Notice by personal delivery, telephone, electronic mail or facsimile transmission shall be given at least twenty four
(24) hours prior to the meeting. Notice by United States mail shall be given at least three (3) days prior to the meeting. Notice by
courier shall be given at least two (2) days prior to the meeting. Telephone notice shall be deemed to be given when the Director or
his or her agent is personally given such notice in a telephone call to which the Director or his or her agent is a party. Electronic mail
notice shall be deemed to be given upon transmission of the message to the electronic mail address given to the Corporation by the
Director. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the
number given to the Corporation by the Director and receipt of a completed answer-back indicating
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receipt. Notice by United States mail shall be deemed to be given when deposited in the United States mail properly addressed, with
postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or delivered to a courier properly
addressed. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of the Board of
Directors need be stated in the notice, unless specifically required by statute or these Bylaws.
Section 6. QUORUM. A majority of the Directors shall constitute a quorum for transaction of business at any meeting of the
Board of Directors, provided that, if less than a majority of such Directors are present at such meeting, a majority of the Directors
present may adjourn the meeting from time to time without further notice, and provided further that if, pursuant to applicable law,
the Charter or these Bylaws, the vote of a majority or other percentage of a particular group of Directors is required for action, a
quorum must also include a majority or such other percentage of such group.
The Directors present at a meeting which has been duly called and at which a quorum has been established may continue to
transact business until adjournment, notwithstanding the withdrawal from the meeting of enough Directors to leave fewer than
required to establish a quorum.
Section 7. VOTING. The action of a majority of the Directors present at a meeting at which a quorum is present shall be the
action of the Board of Directors, unless the concurrence of a greater proportion is required for such action by applicable law, the
Charter or these Bylaws. If enough Directors have withdrawn from a meeting to leave fewer than required to establish a quorum, but
the meeting is not adjourned, the action of the majority of that number of Directors necessary to constitute a quorum at such meeting
shall be the action of the Board of Directors, unless the concurrence of a greater proportion is required for such action by applicable
law, the Charter or these Bylaws.
Section 8. ORGANIZATION. At each meeting of the Board of Directors, the chairman of the Board of Directors or, in the
absence of the chairman, the vice chairman of the Board of Directors, if any, shall act as chairman of the meeting. In the absence of
both the chairman and vice chairman of the Board of Directors, the chief executive officer or in the absence of the chief executive
officer, the president or in the absence of the president, a Director chosen by a majority of the Directors present, shall act as chairman
of the meeting. The secretary or, in his or her absence, an assistant secretary of the Corporation, or in the absence of the secretary and
all assistant secretaries, an individual appointed by the chairman of the meeting, shall act as secretary of the meeting.
Section 9. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a conference telephone or other
communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a
meeting by these means shall constitute presence in person at the meeting.
Section 10. CONSENT BY DIRECTORS WITHOUT A MEETING. Any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a
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meeting if a consent in writing or by electronic transmission to such action is given by each Director and is filed with the
minutes of proceedings of the Board of Directors.
Section 11. RATIFICATION. The Board of Directors or the stockholders may ratify and make binding on the Corporation any
action or inaction by the Corporation or its officers to the extent that the Board of Directors or the stockholders could have
originally authorized the matter. Moreover, any action or inaction questioned in any stockholders’ derivative proceeding or any
other proceeding on the ground of lack of authority, defective or irregular execution, adverse interest of a Director, officer or
stockholder, non-disclosure, miscomputation, the application of improper principles or practices of accounting or otherwise, may be
ratified, before or after judgment, by the Board of Directors or by the stockholders, and if so ratified, shall have the same force and
effect as if the questioned action or inaction had been originally duly authorized, and such ratification shall be binding upon the
Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned
action or inaction.
Section 12. VACANCIES. If for any reason any or all the Directors cease to be Directors, such event shall not terminate the
Corporation or affect these Bylaws or the powers of the remaining Directors hereunder. Except as may be provided by the Board of
Directors in setting the terms of any class or series of preferred stock, any vacancy on the Board of Directors may be filled only by a
majority of the remaining Directors, even if the remaining Directors do not constitute a quorum. Any Director elected to fill a
vacancy shall serve for the remainder of the full term of the class in which the vacancy occurred and until a successor is elected and
qualifies.
Section 13. COMPENSATION. Directors shall not receive any stated salary for their services as Directors, but, by resolution of
the Directors, Directors may receive compensation per year and/or per meeting and/or per visit to real property or other facilities
owned, leased or to be acquired by the Corporation and for any service or activity they performed or engaged in as Directors.
Directors may be reimbursed for expenses of attendance, if any, at each annual, regular or special meeting of the Board of Directors
or of any committee thereof and for their expenses, if any, in connection with each property visit and any other service or activity
they performed or engaged in as Directors; but nothing herein contained shall be construed to preclude any Directors from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 14. RESIGNATION OF DIRECTORS. Any Director of the Corporation may resign at any time by delivering his or her
resignation to the Board of Directors, the chairman of the board or the secretary. Any resignation shall take effect immediately upon
its receipt or at such later time specified in the resignation. The acceptance of a resignation shall not be necessary to make it effective
unless otherwise stated in the resignation.
Section 15. RELIANCE. Each Director and officer of the Corporation shall, in the performance of his or her duties with
respect to the Corporation, be entitled to rely on any information, opinion, report or statement, including any financial statement or
other financial data, prepared or presented by an officer or employee of the Corporation whom the Director or officer reasonably
believes to be reliable and competent in the matters presented, by a lawyer,
14
certified public accountant or other person, as to a matter which the Director or officer reasonably believes to be within the person’s
professional or expert competence, or, with respect to a Director, by a committee of the Board of Directors on which the Director
does not serve, as to a matter within its designated authority, if the Director reasonably believes the committee to merit confidence.
Section 16. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS. The Directors shall have no responsibility to devote their full time to the affairs of the Corporation. Any Director, officer,
employee or agent of the Corporation, in his or her personal capacity or in a capacity as an affiliate, employee, or agent of any other
person, or otherwise, may have business interests and engage in business activities similar to or in addition to or in competition with
those of or relating to the Corporation, except as set forth in a written agreement between the Corporation and such Director, officer,
employee or agent of the Corporation; provided that such Director, officer, employee or agent complies with the applicable terms of
the then existing conflicts of interest policy of the Corporation.
Section 17. EMERGENCY PROVISIONS. Notwithstanding any other provision in the Charter or these Bylaws, this Section 16
shall apply during the existence of any catastrophe, or other similar emergency condition, as a result of which a quorum of the Board
of Directors under Article III of these Bylaws cannot readily be obtained (an “Emergency”). During any Emergency, unless
otherwise provided by the Board of Directors, (i) a meeting of the Board of Directors or a committee thereof may be called by any
Director or officer by any means feasible under the circumstances; (ii) notice of any meeting of the Board of Directors during such
an Emergency may be given less than 24 hours prior to the meeting to as many Directors and by such means as may be feasible at
the time, including publication, television or radio; and (iii) the number of Directors necessary to constitute a quorum shall be one-
third of the entire Board of Directors.
ARTICLE IV COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint from among its members
an Executive Committee, an Audit Committee and other committees, composed of one or more Directors, to serve at the pleasure
of the Board of Directors.
Section 2. POWERS. The Board of Directors may delegate to committees appointed under Section 1 of this Article IV any of
the powers of the Board of Directors, except as prohibited by law.
Section 3. MEETINGS. Notice of committee meetings shall be given in the same manner as notice for special meetings of the
Board of Directors. The presence of a majority of the members of the committee shall constitute a quorum for the transaction of
business at any meeting of the committee. The act of a majority of the committee members present at a meeting shall be the act of
such committee. The Board of Directors may designate a chairman of any committee, and such chairman or, in the absence of a
chairman, any two members of any committee (if there are
15
at least two members of the committee) may fix the time and place of its meeting unless the Board shall otherwise provide. In the
absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a
quorum, may appoint another Director to act in the place of such absent member.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Board of Directors may participate in a meeting by
means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other
at the same time.
Participation in a meeting by these means shall constitute presence in person at the meeting.
Section 5. CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or permitted to be taken at any
meeting of a committee of the Board of Directors may be taken without a meeting, if a consent in writing or by electronic
transmission to such action is given by each member of the committee and is filed with the minutes of proceedings of such
committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of Directors shall have the power at any time to change the
membership of any committee, to fill any vacancy, to designate an alternate member to replace any absent or disqualified member or
to dissolve any such committee.
ARTICLE V OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall include a president, a secretary and a treasurer and
may include a chairman of the Board of Directors, a vice chairman of the Board of Directors, a chief executive officer, one or more
vice presidents, a chief investment officer, a chief operating officer, a chief financial officer, a chief legal officer, a chief accounting
officer, one or more assistant secretaries and one or more assistant treasurers. In addition, the Board of Directors may from time to
time elect such other officers with such powers and duties as it shall deem necessary or desirable. The officers of the Corporation
shall be elected annually by the Board of Directors, except that the chief executive officer or president may from time to time
appoint one or more vice presidents, assistant secretaries, assistant treasurers or other officers. Each officer shall hold office until his
or her successor is elected and qualifies or until his or her death, or his or her resignation or removal in the manner hereinafter
provided. Any two or more offices except president and vice president may be held by the same person. Election of an officer or
agent shall not of itself create contract rights between the Corporation and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be removed, with or without cause,
by the Board of Directors if in its judgment the best interests of the Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed. Any officer of the Corporation may resign at any time by
delivering his or her resignation to the Board of Directors, the chairman of the Board of Directors, the chief executive officer, the
president or the secretary. Any resignation shall take effect immediately upon its receipt or at such later time specified in the
resignation. The
16
acceptance of a resignation shall not be necessary to make it effective unless otherwise stated in the resignation. Such resignation
shall be without prejudice to the contract rights, if any, of the Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the Board of Directors for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Board of Directors may designate a chief executive officer. The chief
executive officer shall have general responsibility for implementation of the policies of the Corporation, as determined by the
Board of Directors, and for the management of the business and affairs of the Corporation. He or she may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the Board
of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise
executed; and in general shall perform all duties incident to the office of chief executive officer and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 5. CHIEF INVESTMENT OFFICER. The Board of Directors may designate a chief investment officer. The chief
investment officer shall have the responsibilities and duties as determined by the Board of Directors or the chief executive officer.
Section 6. CHIEF OPERATING OFFICER. The Board of Directors may designate a chief operating officer. The chief
operating officer shall have the responsibilities and duties as determined by the Board of Directors or the chief executive officer.
Section 7. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a chief financial officer. The chief
financial officer shall have the responsibilities and duties as determined by the Board of Directors or the chief executive officer.
Section 8. CHIEF LEGAL OFFICER. The Board of Directors may designate a chief legal officer. The chief legal officer shall
have the responsibilities and duties as determined by the Board of Directors or the chief executive officer.
Section 9. CHIEF ACCOUNTING OFFICER. The Board of Directors may designate a chief accounting officer. The chief
accounting officer shall have the responsibilities and duties as determined by the Board of Directors or the chief executive officer.
Section 10. CHAIRMAN OF THE BOARD. The Board of Directors may designate from among its members a chairman of the
Board of Directors, who shall not, solely by reason of these Bylaws, be an officer of the Corporation. The Board of Directors may
designate the chairman of the Board of Directors as an executive or non-executive chairman. The chairman of the Board of
Directors shall preside over the meetings of the Board of Directors and of the stockholders at which he or she shall be present. The
chairman of the Board of Directors shall perform such other duties as may be assigned to him or her by these Bylaws the Board of
Directors.
17
Section 11. PRESIDENT. In the absence of a chief executive officer, the president shall in general supervise and control all of
the business and affairs of the Corporation. In the absence of a designation of a chief operating officer by the Board of Directors, the
president shall be the chief operating officer. He or she may execute any deed, mortgage, bond, contract or other instrument, except
in cases where the execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer
or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to
the office of president and such other duties as may be prescribed by the Board of Directors from time to time.
Section 12. VICE PRESIDENTS. In the absence of the president or in the event of a vacancy in such office, the vice president
(or in the event there be more than one vice president, the vice presidents in the order designated at the time of their election or, in
the absence of any designation, then in the order of their election) shall perform the duties of the president and when so acting shall
have all the powers of and be subject to all the restrictions upon the president; and shall perform such other duties as from time to
time may be assigned to such vice president by the chief executive officer, president or Board of Directors. The Board of Directors
may designate one or more vice presidents as executive vice president, senior vice president or vice president for particular areas of
responsibility.
Section 13. SECRETARY. The secretary shall (a) keep the minutes of the proceedings of the stockholders, the Board of
Directors and committees of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the
seal of the Corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by
such stockholder; (e) have general charge of the stock transfer books of the Corporation; and (f) in general perform such other duties
as from time to time may be assigned to him or her by the chief executive officer, president or Board of Directors.
Section 14. TREASURER. The treasurer shall have the custody of the funds and securities of the Corporation, shall keep full
and accurate accounts of receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors
and in general perform such other duties as from time to time may be assigned to him or her by the chief executive officer, the
president or the Board of Directors. In the absence of a designation of a chief financial officer by the Board of Directors, the
treasurer shall be the chief financial officer of the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for
such disbursements, and shall render to the president and Board of Directors, at the regular meetings of the Board of Directors or
whenever it may so require, an account of all his or her transactions as treasurer and of the financial condition of the Corporation.
Section 15. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be
18
assigned to them by the secretary or treasurer, respectively, or by the chief executive officer, president or Board of Directors.
Section 16. COMPENSATION. The compensation of the officers shall be fixed from time to time by or under the authority of
the Board of Directors and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also
a Director.
ARTICLE VI CONTRACTS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any officer or agent to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the Corporation and such authority may be general or confined to specific
instances. Any agreement, deed, mortgage, lease or other document shall be valid and binding upon the Corporation when duly
authorized or ratified by action of the Board of Directors and executed by an authorized person.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such officer or agent of the Corporation in such manner as
shall from time to time be determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited or invested from time to time to
the credit of the Corporation as the Board of Directors, the chief executive officer, president chief financial officer, treasurer or any
other officer designated by the Board of Directors may determine.
ARTICLE VII STOCK
Section 1. CERTIFICATES. Except as may be otherwise provided by the Board of Directors, stockholders of the Corporation
are not entitled to certificates representing the shares of stock held by them. In the event that the Corporation issues shares of stock
represented by certificates, such certificates shall be in such form as prescribed by the Board of Directors or a duly authorized
officer, shall contain the statements and information required by the MGCL and shall be signed by the officers of the Corporation in
any manner permitted by the MGCL. In the event that the Corporation issues shares of stock without certificates, to the extent then
required by the MGCL, the Corporation shall provide to the record holders of such shares a written statement of the information
required by the MGCL to be included on stock certificates. There shall be no differences in the rights and obligations of stockholders
based on whether or not their shares are represented by certificates.
Section 2. TRANSFERS. All transfers of shares of stock shall be made on the books of the Corporation, by the holder of the
shares, in person or by his or her attorney, in such manner as the Board of Directors or any officer of the Corporation may prescribe
and, if such shares are certificated, upon surrender of certificates duly endorsed. The issuance of a new certificate upon the transfer
of certificated shares is subject to the determination of the Board of Directors that
19
such shares shall no longer be represented by certificates. Upon the transfer of any uncertificated shares, the Corporation shall
provide to the record holders of such shares, to the extent then required by the MGCL, a written statement of the information
required by the MGCL to be included on stock certificates.
The Corporation shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof and,
accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or on the part of any other
person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the laws of the State
of Maryland.
Notwithstanding the foregoing, transfers of shares of any class or series of stock will be subject in all respects to the
Charter and all of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer of the Corporation may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, destroyed, stolen or
mutilated, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, destroyed, stolen or mutilated;
provided, however, if such shares have ceased to be certificated, no new certificate shall be issued unless requested in writing by
such stockholder and the Board of Directors has determined that such certificates may be issued. Unless otherwise determined by an
officer of the Corporation, the owner of such lost, destroyed, stolen or mutilated certificate or certificates, or his or her legal
representative, shall be required, as a condition precedent to the issuance of a new certificate or certificates, to give the Corporation a
bond in such sums as it may direct as indemnity against any claim that may be made against the Corporation.
Section 4. FIXING OF RECORD DATE. The Board of Directors may set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting of stockholders or determining stockholders entitled to
receive payment of any dividend or the allotment of any other rights, or in order to make a determination of stockholders for any
other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be
not more than ninety (90) days and, in the case of a meeting of stockholders, not less than ten (10) days, before the date on which the
meeting or particular action requiring such determination of stockholders of record is to be held or taken.
When a record date for the determination of stockholders entitled to notice of and to vote at any meeting of stockholders
has been set as provided in this section, such record date shall continue to apply to the meeting if adjourned or postponed, except if
the meeting is adjourned or postponed to a date more than 120 days after the record date originally fixed for the meeting, in which
case a new record date for such meeting may be determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its principal office or at the office of its counsel, accountants or
transfer agent, an original or duplicate stock ledger containing the name and address of each stockholder and the number of shares of
each class held by such stockholder.
20
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors may authorize the Corporation to issue
fractional stock or authorize the issuance of scrip, all on such terms and under such conditions as it may determine. Notwithstanding
any other provision of the Charter or these Bylaws, the Board of Directors may issue units consisting of different securities of the
Corporation. Any security issued in a unit shall have the same characteristics as any identical securities issued by the Corporation,
except that the Board of Directors may provide that for a specified period securities of the Corporation issued in such unit may be
transferred on the books of the Corporation only in such unit.
The Board of Directors shall have the power, from time to time, to fix the fiscal year of the Corporation by a duly adopted
resolution.
ARTICLE VIII ACCOUNTING YEAR
Section 1. AUTHORIZATION. Dividends and other distributions upon the stock of the Corporation may be authorized
by the Board of Directors, subject to the provisions of law and the Charter. Dividends and other distributions may be paid in cash,
property or stock of the Corporation, subject to the provisions of law and the Charter.
ARTICLE IX DISTRIBUTIONS
Section 2. CONTINGENCIES. Before payment of any dividends or other distributions, there may be set aside out of any
assets of the Corporation available for dividends or other distributions such sum or sums as the Board of Directors may from time to
time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends, for repairing or maintaining
any property of the Corporation or for such other purpose as the Board of Directors shall determine, and the Board of Directors may
modify or abolish any such reserve.
Subject to the provisions of the Charter, the Board of Directors may from time to time adopt, amend, revise or terminate
any policy or policies with respect to investments by the Corporation, as it shall deem appropriate in its sole discretion.
ARTICLE X INVESTMENT POLICY
ARTICLE XI SEAL
21
Section 1. SEAL. The Board of Directors may authorize the adoption of a seal by the Corporation. The seal shall contain the
name of the Corporation and the year of its incorporation
22
and the words “Incorporated Maryland.” The Board of Directors may authorize one or more duplicate seals and provide for the
custody thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or required to affix its seal to a document, it shall be
sufficient to meet the requirements of any law, rule or regulation relating to a seal to place the word “(SEAL)” adjacent to the
signature of the person authorized to execute the document on behalf of the Corporation.
ARTICLE XII INDEMNIFICATION AND ADVANCE OF
EXPENSES
To the maximum extent permitted by Maryland law in effect from time to time, the Corporation shall indemnify and, without
requiring a preliminary determination of the ultimate entitlement to indemnification, shall pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to (a) any individual who is a present or former Director or officer of the Corporation
and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity or
(b) any individual who, while a Director or officer of the Corporation and at the request of the Corporation, serves or has served as a
director, officer, trustee, member, manager or partner of another corporation, real estate investment trust, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to, or
witness in, the proceeding by reason of his or her service in that capacity. The rights to indemnification and advance of expenses
provided by the Charter and these Bylaws shall vest immediately upon election of a Director or officer. The Corporation may, with
the approval of its Board of Directors, provide such indemnification and advance for expenses to an individual who served a
predecessor of the Corporation in any of the capacities described in (a) or (b) above and to any employee or agent of the Corporation
or a predecessor of the Corporation. The indemnification and payment or reimbursement of expenses provided in these Bylaws shall
not be deemed exclusive of or limit in any way other rights to which any person seeking indemnification or payment or
reimbursement of expenses may be or may become entitled under any bylaw, resolution, insurance, agreement or otherwise.
Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the Charter or these
Bylaws inconsistent with this Article, shall apply to or affect in any respect the applicability of the preceding paragraph with respect
to any act or failure to act which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII WAIVER OF NOTICE
Whenever any notice of a meeting is required to be given pursuant to the Charter or these Bylaws or pursuant to applicable
law, a waiver thereof in writing or by electronic transmission, given by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted
at nor the purpose of any meeting need be set forth in the waiver of notice of such meeting, unless specifically required by statute.
The attendance of any person at any meeting
23
shall constitute a waiver of notice of such meeting, except where such person attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting has not been lawfully called or convened
The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision of these Bylaws and to
make new Bylaws.
ARTICLE XIV AMENDMENT OF BYLAWS
ARTICLE XV
EXCLUSIVE FORUM FOR CERTAIN LITIGATION
Unless the Corporation consents in writing to the selection of an alternative forum, the Circuit Court for Baltimore City,
Maryland, or, if that Court does not have jurisdiction, the United States District Court for the District of Maryland, Northern Division,
shall be the sole and exclusive forum for (a) any Internal Corporate Claim, as such term is defined in the MGCL, other than any
action arising under federal securities laws, including, without limitation, (i) any derivative action or proceeding brought on behalf of
the Corporation, (ii) any action asserting a claim of breach of any duty owed by any director or officer or other employee of the
Corporation to the Corporation or to the stockholders of the Corporation or (iii) any action asserting a claim against the Corporation
or any director or officer or other employee of the Corporation arising pursuant to any provision of the MGCL, the Charter or these
bylaws, or (b) any other action asserting a claim against the Corporation or any director or officer or other employee of the
Corporation that is governed by the internal affairs doctrine None of the foregoing actions, claims or proceedings may be brought in
any federal or state court sitting outside the State of Maryland unless the Corporation consents in writing to such court.
Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United
States of America, shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint
asserting a cause of action arising under the Securities Act of 1933, as amended.
24
Description of Securities
Exhibit 4.1
The following is a summary description of certain important terms of our securities. The description of our securities is not complete and is qualified in its
entirety by reference to the provisions of our charter, bylaws and, with respect to our Series A Warrants (as defined in “Series A Warrants” below), the terms of the
agreement governing such warrants and the global warrant certificate and the applicable provisions of the Maryland General Corporation Law (the “MGCL”). Our
charter, bylaws and agreements governing the terms of our securities are filed with, or are incorporated by reference into, our Annual Report on Form 10-K.
Unless the context otherwise requires, references to “the Company” “us,” “we” and “our” are solely to CIM Commercial Trust Corporation and not to any of its
subsidiaries or affiliates.
General
Our charter provides that we may issue up to 900,000,000 shares of our common stock, par value $0.001 per share (our “Common Stock”), and up to
100,000,000 shares of our preferred stock, par value $0.001 per share, of which 36,000,000 shares are classified as our Series A Preferred Stock (our “Series A
Preferred Stock”), 32,000,000 shares are classified as our Series D Preferred Stock (our “Series D Preferred Stock”), and 9,000,000 shares are classified as our
Series L Preferred Stock (our “Series L Preferred Stock”). Our charter authorizes our board of directors (our “Board of Directors”), with the approval of a majority
of our entire Board of Directors and without stockholder approval, to amend our charter to increase or decrease the aggregate number of shares of stock or the
number of shares of stock of any class or series that we are authorized to issue.
As of March 10, 2022, there were 23,369,331 shares of Common Stock, 6,642,298 shares of Series A Preferred Stock, 22,170 shares of Series D Preferred
Stock, 5,387,160 shares of Series L Preferred Stock and 4,541,852 Series A Warrants (as defined in “Series A Warrants” below) issued and outstanding.
Under applicable Maryland law, our stockholders are not generally liable for our debts or obligations solely as a result of their status as stockholders.
For a description of relevant provisions of our charter and bylaws that may have an effect of delaying, deferring or preventing a change in control of the
Company, please see “Certain Provisions of the MGCL and Our Charter and Bylaws” below.
Common Stock
Ranking. Except with respect to the Series L Preferred Stock to the extent of the Initial Dividend (as defined in “Series L Preferred Stock” below), holders of
shares of our Common Stock have no preference, conversion, exchange, sinking fund or redemption rights and have no preemptive rights to subscribe for any
securities of our Company. Our charter provides that our common stockholders generally have no appraisal rights unless our Board of Directors determines
prospectively that appraisal rights will apply to one or more transactions in which holders of our Common Stock would otherwise be entitled to exercise appraisal
rights. Subject to the provisions of our charter regarding the restrictions on ownership and transfer of our stock (see “Certain Provisions of the MGCL and Our
Charter and Bylaws-Restrictions on Ownership and Transfer” below), holders of our Common Stock will have equal dividend, liquidation and other rights.
Dividends. Subject to the preferential rights of our preferred stock and any other class or series of our capital stock and to the provisions of our charter regarding
the restrictions on ownership and transfer of our capital stock (see “Certain Provisions of the MGCL and Our Charter and Bylaws-Restrictions on Ownership and
Transfer” below), holders of shares of our Common Stock are entitled to receive dividends and other distributions on such shares if, as and when authorized by our
Board of Directors out of funds legally available therefor and declared by us and to share ratably in the assets of our Company legally available for distribution to
our stockholders in the event of our liquidation, dissolution or winding up after payment or establishment of reserves for all known debts and liabilities of our
Company.
Voting Rights. Subject to the provisions of our charter regarding the restrictions on ownership and transfer of our capital stock (see “Certain Provisions of the
MGCL and Our Charter and Bylaws-Restrictions on Ownership and Transfer” below) and except as may otherwise be specified in the terms of any class or series
of our capital stock, each outstanding share of our Common Stock entitles the holder to one vote on all matters submitted to a vote of stockholders, including the
election of directors, and, except as provided with respect to any other class or series of stock, the holders of shares of Common Stock will
possess the exclusive voting power. There is no cumulative voting in the election of our directors. A plurality of all the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to elect a director. Each share of Common Stock entitles the holder thereof to vote for as many
individuals as there are directors to be elected and for whose election the holder is entitled to vote. A majority of the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to approve any other matter which may properly come before the meeting, unless more than a majority
of the votes cast is required by the MGCL or by our charter.
Listing. Our Common Stock is traded on the Nasdaq Global Market (“Nasdaq”), under the ticker symbol “CMCT,” and on the Tel Aviv Stock Exchange (the
“TASE”), under the ticker symbol “CMCT-L.”
Transfer Agent and Registrar. The transfer agent and registrar for the Common Stock is American Stock Transfer and Trust Company.
Series A Preferred Stock
Ranking. The Series A Preferred Stock ranks, with respect to dividend rights:
•
•
•
•
senior to the Series L Preferred Stock, Common Stock and any other class or series of our capital stock, the terms of which expressly provide that our
Series A Preferred Stock ranks senior to such class or series as to dividend rights;
on parity with the Series D Preferred Stock and each other class or series of our capital stock, including capital stock issued in the future, the terms of
which expressly provide that such class or series ranks on parity with the Series A Preferred Stock as to dividend rights;
junior to each class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class or series
ranks senior to the Series A Preferred Stock as to dividend rights; and
junior to all our existing and future debt obligations.
The Series A Preferred Stock ranks, with respect to rights upon our liquidation, winding-up or dissolution:
•
•
•
•
senior to the Series L Preferred Stock (except as described below), Common Stock and any other class or series of our capital stock, the terms of which
expressly provide that the Series A Preferred Stock ranks senior to such class or series as to rights upon our liquidation, winding-up or dissolution;
on parity with the Series D Preferred Stock, Series L Preferred Stock (to the extent of the Series L Stated Value (as defined in “Series L Preferred Stock”
below)) and with each class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class
or series ranks on parity with the Series A Preferred Stock as to rights upon our liquidation, winding-up or dissolution;
junior to each class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class or series
ranks senior to the Series A Preferred Stock as to rights upon our liquidation, winding-up or dissolution; and
junior to all our existing and future debt obligations.
Stated Value. Each share of Series A Preferred Stock has a stated value of $25.00, subject to appropriate adjustment in limited circumstances described in “-
Adjustment of the Series A Stated Value in Connection with a Redemption” below (the “Series A Stated Value”).
Dividends. Subject to the preferential rights of the holders of any class or series of our capital stock ranking senior to the Series A Preferred Stock, if any such
class or series of stock is authorized in the future, the holders of Series A Preferred Stock are entitled to receive, if, as and when authorized by our Board of
Directors and declared by us out of legally available funds, cumulative cash dividends on each share of Series A Preferred Stock at an annual rate of five and fifty
hundredths of a percent (5.50%) of the Series A Stated Value (the “Series A Dividend”).
The Series A Dividend accrues and is cumulative from the end of the most recent period for which the Series A Dividend has been paid, or if no Series A
Dividend has been paid, from the date of issuance of a given share of Series A Preferred Stock. The Series A Dividend accrues and is paid on the basis of a 360-
day year consisting of twelve 30-day months.
The Series A Dividend accrues whether or not (i) we have earnings, (ii) there are funds legally available for the payment of such dividends and (iii) such dividends
are authorized by our Board of Directors or declared by us. Accrued Series A Dividends do not bear interest.
The Series A Dividend is expected to be authorized and declared on a quarterly basis, payable monthly on the 15 day of the month or, if such date is not a
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business day, on the first business day thereafter, to holders of record on the 5 day of such month. We expect to authorize, declare and pay the Series A Dividend
on a timely basis in accordance with the foregoing unless our results of operations or general financing conditions, general economic conditions, applicable
provisions of Maryland law or other factors make it imprudent to do so. Subject to the foregoing power that may be delegated to an authorized officer of the
Company, the timing and amount of the Series A Dividend will be determined by our Board of Directors, in its sole discretion, and may vary from time to time.
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Holders of our shares of Series A Preferred Stock are not entitled to any dividend in excess of full cumulative Series A Dividends on such shares. Unless full
cumulative Series A Dividends for all past dividend periods have been or are contemporaneously declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment, we will not:
•
•
declare and pay or declare and set apart for payment dividends and we will not declare and make any other distribution of cash or other property (other
than dividends or other distributions paid in shares of stock ranking junior to the Series A Preferred Stock as to the dividend rights or rights upon our
liquidation, winding-up or dissolution, and options, warrants or rights to purchase such shares), directly or indirectly, on or with respect to any shares of
Common Stock, Series D Preferred Stock, Series L Preferred Stock or any other class or series of our stock ranking junior to or on parity with the
Series A Preferred Stock as to dividend rights or rights upon our liquidation, winding-up or dissolution for any period; or
except by conversion into or exchange for shares of stock ranking junior to the Series A Preferred Stock as to dividend rights or rights upon our
liquidation, winding-up or dissolution, or options, warrants or rights to purchase such shares, redeem, purchase or otherwise acquire (other than a
redemption, purchase or other acquisition of Common Stock made for purposes of an employee incentive or benefit plan) for any consideration, or pay or
make available any monies for a sinking fund for the redemption of, any Common Stock, Series D Preferred Stock, Series L Preferred Stock or any class
or any other class or series of our stock ranking junior to or on parity with the Series A Preferred Stock as to dividend rights or rights upon our
liquidation, winding-up or dissolution.
To the extent necessary to preserve our status as a REIT, the foregoing sentence, however, will not prohibit declaring or paying or setting apart for payment any
dividend or other distribution on the Common Stock or the redemption of our capital stock pursuant to the restrictions on ownership and transfer contained in our
charter (see “Certain Provisions of the MGCL and Our Charter and Bylaws-Restrictions on Ownership and Transfer” below).
Redemption at the Option of a Holder. Beginning on the date of original issuance of any given shares of Series A Preferred Stock, the holder has the right to
require the Company to redeem such shares at a redemption price equal to a percentage of the Series A Stated Value set forth below plus any accrued and unpaid
Series A Dividends:
•
•
•
•
•
90%, for all such redemptions effective prior to the second anniversary of the date of original issuance of such shares; provided, however, that the Board
of Directors (or an authorized officer of the Company, if one is delegated such power by the Board of Directors), from time to time in its discretion, may
authorize a reduction of such percentage to 87%;
92%, for all such redemptions effective on or after the second anniversary, but prior to the third anniversary, of the date of original issuance of such
shares;
95%, for all such redemptions effective on or after the third anniversary, but prior to the fourth anniversary, of the date of original issuance of such shares;
97%, for all such redemptions effective on or after the fourth anniversary, but prior to the fifth anniversary, of the date of original issuance of such shares;
and
100%, for all such redemptions effective on or after the fifth anniversary of the date of original issuance of such shares.
Notwithstanding the foregoing, with respect to any redemptions effective on or after the second anniversary but prior to the fifth anniversary of the date of
original issuance, the Board of Directors (or an authorized officer of the Company, if one is delegated such power by the Board of Directors), from time to time in
its discretion, may authorize the Company to increase the redemption price from its existing level to an amount between 90 and 100% (inclusive) of the Series A
Stated Value, plus any accrued and unpaid Series A Dividends through and including the date fixed for such redemption.
Each holder of Series A Preferred Stock may exercise such redemption right by delivering a written notice thereof to the Company and the redemption price
will be paid by the Company on a date selected by the Company that is no later than 45 days after such notice is received by the Company.
Optional Redemption Following Death of a Holder. Beginning on the date of original issuance and ending on but not including the second anniversary of the
date of original issuance of any shares of Series A Preferred Stock, we will redeem such shares held by a natural person upon his or her death at the written request
of the holder’s estate at a redemption price equal to 100% of the Series A Stated Value, plus any accrued and unpaid Series A Dividends through and including the
date fixed for such redemption.
Optional Redemption by the Company. We have the right to redeem any or all shares of our Series A Preferred Stock from and after the fifth anniversary of the
date of original issuance of such shares at a redemption price equal to 100% of the Series A Stated Value, plus any accrued and unpaid Series A Dividends. If
fewer than all the outstanding shares of Series A Preferred Stock are to be redeemed, the Company will select those shares to be redeemed pro rata or in such
manner as our Board of Directors may determine.
We may exercise our redemption right by delivering a written notice thereof to the holders of shares of Series A Preferred Stock to be redeemed. Each such
notice will state the date on which the redemption by us shall occur, which date will be no fewer than 10 nor more than 20 days following the notice date.
If full cumulative Series A Dividends on all outstanding shares of Series A Preferred Stock have not been declared and paid or declared and set apart for
payment for all past dividend periods, no shares of the Series A Preferred Stock may be redeemed at the option of the Company, unless all outstanding shares of
the Series A Preferred Stock are simultaneously redeemed, and, except as provided by the restrictions on ownership and transfer set forth in our charter (see
“Certain Provisions of the MGCL and Our Charter and Bylaws-Restrictions on Ownership and Transfer” below), neither the Company nor any of its affiliates may
purchase or otherwise acquire shares of Series A Preferred Stock otherwise than pursuant to a purchase or exchange offer made on the same terms to all holders of
shares of Series A Preferred Stock.
Payment of the Redemption Price. Upon any redemption of Series A Preferred Stock by a holder or the Company, or upon the death of a holder, we will pay the
redemption price in cash or, on or after the first anniversary of the issuance of shares of Series A Preferred Stock to be redeemed, at our option and in our sole
discretion, in equal value through the issuance of shares of Common Stock, based on the volume-weighted average price of our Common Stock for the 20 trading
days prior to the redemption as described in the articles supplementary to our charter defining the terms of the Series A Preferred Stock.
If the Company elects to pay the redemption price in Common Stock, the Company will cause the transfer agent to, as soon as practicable, but not later than
three business days after the effective date of such redemption, register the number of shares of Common Stock such holder is entitled to receive as a result of such
redemption. The person or persons entitled to receive the shares of Common Stock issuable upon such redemption will be treated for all purposes as the record
holder or holders of such shares of Common Stock as of the effective date of such redemption.
Our obligation to redeem any shares of our Series A Preferred Stock is limited to the extent that (i) we do not have sufficient funds available to fund any such
redemption, in which case we will be required to redeem with shares of Common Stock, or (ii) we are restricted by applicable law, our charter or contractual
obligations from making such redemption.
Adjustment of the Series A Stated Value in Connection with a Redemption. If certain events affecting the Common Stock, such as recapitalizations, stock
dividends, stock splits, stock combinations, reclassifications, mergers or similar events, occur during the 20 trading days prior to a redemption of Series A
Preferred Stock, we will adjust the Series A Stated Value so that such redemption shall entitle the holder to receive the aggregate number of shares of Common
Stock or cash which, if the redemption had occurred immediately prior to such event, such holder would have owned upon such redemption and been entitled to
received pursuant to the event affecting our Common Stock.
Fractional Shares. No fractional shares of Common Stock will be issued upon redemption of any shares of Series A Preferred Stock. Rather, any fractional
number of shares of Common Stock to be issued upon any redemption of the Series A Preferred Stock will be rounded down to the nearest whole number of shares
of Common Stock.
Liquidation Preference. Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company, before any distribution or payment shall be
made to holders of Common Stock or any other class or series of capital stock ranking junior to shares of Series A Preferred Stock, the holders of shares of
Series A Preferred Stock will be entitled to be paid out of our assets legally available for distribution to our stockholders, after payment or provision for our debts
and other liabilities, a liquidation preference equal to the Series A Stated Value per share, plus an amount equal to any accrued and unpaid Series A Dividends
(whether or not declared) to and including the date of payment.
If upon the voluntary or involuntary liquidation, dissolution or winding-up of the Company, the available assets of the Company, or proceeds thereof,
distributable among the holders of the Series A Preferred Stock are insufficient to pay in full the above described liquidation preference and the liquidating
payments on any shares of any class or series of stock ranking on parity to the Series A Preferred Stock with respect to liquidation, dissolution or winding-up
(“Series A Parity Stock”), then such assets, or the proceeds thereof, will be distributed among the holders of the Series A Preferred Stock and any such Series A
Parity Stock ratably in the same proportion as the respective amounts that would be payable on such Series A Preferred Stock and any such Series A Parity Stock
if all amounts payable thereon were paid in full.
After payment of the full amount of the liquidating distributions to which they are entitled, the holders of shares of Series A Preferred Stock will have no right
or claim to any of our remaining assets. Our consolidation, merger or conversion with or into any other corporation, trust or other entity, the consolidation or
merger of any other corporation, trust or entity with or into us, the sale or transfer of any or all our assets or business, or a statutory share exchange will not be
deemed to constitute a liquidation, dissolution or winding-up of the Company.
In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of shares of our stock
or otherwise, is permitted under the MGCL, amounts that would be needed, if we were to be dissolved at the time of distribution, to satisfy the preferential rights
upon dissolution of holders of the Series A Preferred Stock will not be added to our total liabilities.
Voting Rights. The Series A Preferred Stock has no voting rights, and thus has no rights to vote on any dissolution, charter amendment, merger, sale of all or
substantially all of our assets, share exchange or conversion, or any amendment to the terms of the Series A Preferred Stock.
Exchange Listing. We have not made, and do not plan on making, an application to list shares of Series A Preferred Stock on Nasdaq, any other national
securities exchange or nationally recognized trading system or the TASE.
Transfer Agent and Registrar. The transfer agent and registrar for the Series A Preferred Stock is American Stock Transfer and Trust Company.
Series D Preferred Stock
Ranking. The Series D Preferred Stock ranks, with respect to dividend rights:
•
•
•
•
senior to the Series L Preferred Stock, Common Stock and any other class or series of our capital stock, the terms of which expressly provide that our
Series D Preferred Stock ranks senior to such class or series as to dividend rights;
on parity with the Series A Preferred Stock and each other class or series of our capital stock, including capital stock issued in the future, the terms of
which expressly provide that such class or series ranks on parity with the Series D Preferred Stock as to dividend rights;
junior to each class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class or series
ranks senior to the Series D Preferred Stock as to dividend rights; and
junior to all our existing and future debt obligations.
The Series D Preferred Stock ranks, with respect to rights upon our liquidation, winding-up or dissolution:
•
•
•
•
senior to the Series L Preferred Stock (except as described below), Common Stock and any other class or series of our capital stock, the terms of which
expressly provide that the Series D Preferred Stock ranks senior to such class or series as to rights upon our liquidation, winding-up or dissolution;
on parity with the Series A Preferred Stock, Series L Preferred Stock (to the extent of the Series L Stated Value (as defined in “Series L Preferred Stock”
below)) and with each class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class
or series ranks on parity with the Series D Preferred Stock as to rights upon our liquidation, winding-up or dissolution;
junior to each class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class or series
ranks senior to the Series D Preferred Stock as to rights upon our liquidation, winding-up or dissolution; and
junior to all our existing and future debt obligations.
Stated Value. Each share of Series D Preferred Stock has a stated value of $25.00, subject to appropriate adjustment in limited circumstances described in “-
Adjustment of the Series D Stated Value in Connection with a Redemption” below (the “Series D Stated Value”).
Dividends. Subject to the preferential rights of the holders of any class or series of our capital stock ranking senior to the Series D Preferred Stock, if any such
class or series of stock is authorized in the future, the holders of Series D Preferred Stock are entitled to receive, if, as and when authorized by our Board of
Directors and declared by us out of legally available funds, cumulative cash dividends on each share of Series D Preferred Stock at an annual rate of five and
sixty-five hundredths of a percent (5.65%) of the Series D Stated Value (the “Series D Dividend”).
The Series D Dividend accrues and is cumulative from the end of the most recent period for which the Series D Dividend has been paid, or if no Series D
Dividend has been paid, from the date of issuance of a given share of Series D Preferred Stock. The Series D Dividend accrues and is paid on the basis of a 360-
day year consisting of twelve 30-day months. The Series D Dividend accrues whether or not (i) we have earnings, (ii) there are funds legally available for the
payment of such dividends and (iii) such dividends are authorized by our Board of Directors or declared by us. Accrued Series D Dividends do not bear interest.
The Series D Dividend is expected to be authorized and declared on a quarterly basis, payable monthly on the 15 day of the month or, if such date is not a
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business day, on the first business day thereafter, to holders of record on the 5 day of such month. We expect to authorize, declare and pay the Series D Dividend
on a timely basis in accordance with the foregoing unless our results of operations or general financing conditions, general economic conditions, applicable
provisions of Maryland law or other factors make it imprudent to do so. Subject to the foregoing power that may be delegated to an authorized officer of the
Company, the timing and amount of the Series D Dividend will be determined by our Board of Directors, in its sole discretion, and may vary from time to time.
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Holders of our shares of Series D Preferred Stock are not entitled to any dividend in excess of full cumulative Series D Dividends on such shares. Unless full
cumulative Series D Dividends for all past dividend periods have been or are contemporaneously declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment, we will not:
•
•
declare and pay or declare and set apart for payment dividends and we will not declare and make any other distribution of cash or other property (other
than dividends or other distributions paid in shares of stock ranking junior to the Series D Preferred Stock as to the dividend rights or rights upon our
liquidation, winding-up or dissolution, and options, warrants or rights to purchase such shares), directly or indirectly, on or with respect to any shares of
Common Stock, Series A Preferred Stock, Series L Preferred Stock or any other class or series of our stock ranking junior to or on parity with the
Series D Preferred Stock as to dividend rights or rights upon our liquidation, winding-up or dissolution for any period; or
except by conversion into or exchange for shares of stock ranking junior to the Series D Preferred Stock as to dividend rights or rights upon our
liquidation, winding-up or dissolution, or options, warrants or rights to purchase such shares, redeem, purchase or otherwise acquire (other than a
redemption, purchase or other acquisition of Common Stock made for purposes of an employee incentive or benefit plan) for any consideration, or pay or
make available any monies for
a sinking fund for the redemption of, any Common Stock, Series A Preferred Stock, Series L Preferred Stock or any class or any other class or series of
our stock ranking junior to or on parity with the Series D Preferred Stock as to dividend rights or rights upon our liquidation, winding-up or dissolution.
To the extent necessary to preserve our status as a REIT, the foregoing sentence, however, will not prohibit declaring or paying or setting apart for payment any
dividend or other distribution on the Common Stock or the redemption of our capital stock pursuant to the restrictions on ownership and transfer contained in our
charter (see “Certain Provisions of the MGCL and Our Charter and Bylaws-Restrictions on Ownership and Transfer” below).
Redemption at the Option of a Holder. Beginning on the date of original issuance of any given shares of Series D Preferred Stock, the holder has the right to
require the Company to redeem such shares at a redemption price equal to a percentage of the Series D Stated Value set forth below plus any accrued and unpaid
Series D Dividends:
•
•
•
•
•
90%, for all such redemptions effective prior to the second anniversary of the date of original issuance of such shares; provided, however, that the Board
of Directors (or an authorized officer of the Company, if one is delegated such power by the Board of Directors), from time to time in its discretion, may
authorize a reduction of such percentage to 87%;
92%, for all such redemptions effective on or after the second anniversary, but prior to the third anniversary, of the date of original issuance of such
shares;
95%, for all such redemptions effective on or after the third anniversary, but prior to the fourth anniversary, of the date of original issuance of such shares;
97%, for all such redemptions effective on or after the fourth anniversary, but prior to the fifth anniversary, of the date of original issuance of such shares;
and
100%, for all such redemptions effective on or after the fifth anniversary of the date of original issuance of such shares.
Notwithstanding the foregoing, with respect to any redemptions effective on or after the second anniversary but prior to the fifth anniversary of the date of
original issuance, the Board of Directors (or an authorized officer of the Company, if one is delegated such power by the Board of Directors), from time to time in
its discretion, may authorize the Company to increase the redemption price from its existing level to an amount between 90 and 100% (inclusive) of the Series D
Stated Value, plus any accrued and unpaid Series D Dividends through and including the date fixed for such redemption.
Each holder of Series D Preferred Stock may exercise such redemption right by delivering a written notice thereof to the Company and the redemption price
will be paid by the Company on a date selected by the Company that is no later than 45 days after such notice is received by the Company.
Optional Redemption Following Death of a Holder. Beginning on the date of original issuance and ending on but not including the fifth anniversary of the date
of original issuance of any shares of Series D Preferred Stock, we will redeem such shares held by a natural person upon his or her death at the written request of
the holder’s estate at a redemption price equal to 100% of the Series D Stated Value, plus any accrued and unpaid Series D Dividends through and including the
date fixed for such redemption.
Optional Redemption by the Company. We will have the right to redeem any or all shares of our Series D Preferred Stock from and after the fifth anniversary of
the date of original issuance of such shares. We may redeem such shares at a redemption price equal to 100% of the Series D Stated Value, plus any accrued and
unpaid Series D Dividends. If fewer than all the outstanding shares of Series D Preferred Stock are to be redeemed, the Company will select those shares to be
redeemed pro rata or in such manner as the Board of Directors may determine.
We may exercise our redemption right by delivering a written notice thereof to the holders of shares of Series D Preferred Stock to be redeemed. Each such
notice will state the date on which the redemption by us shall occur, which date will be no fewer than 10 nor more than 20 days following the notice date.
If full cumulative Series D Dividends on all outstanding shares of Series D Preferred Stock have not been declared and paid or declared and set apart for
payment for all past dividend periods, no shares of the Series D Preferred Stock may be redeemed at the option of the Company, unless all outstanding shares of
the Series D Preferred Stock are simultaneously
redeemed, and, except as provided by the restrictions on ownership and transfer set forth in our charter (see “Certain Provisions of the MGCL and Our Charter and
Bylaws-Restrictions on Ownership and Transfer” below), neither the Company nor any of its affiliates may purchase or otherwise acquire shares of Series D
Preferred Stock otherwise than pursuant to a purchase or exchange offer made on the same terms to all holders of shares of Series D Preferred Stock.
Payment of the Redemption Price. Upon any redemption of Series D Preferred Stock by a holder or the Company, or upon the death of a holder, we will pay the
redemption price, at our option and in our sole discretion, in cash or in equal value through the issuance of shares of Common Stock, based on the volume-
weighted average price of our Common Stock for the 20 trading days prior to the redemption as described in the articles supplementary to our charter defining the
terms of the Series D Preferred Stock.
If the Company elects to pay the redemption price in Common Stock, the Company will cause the transfer agent to, as soon as practicable, but not later than
three business days after the effective date of such redemption, register the number of shares of Common Stock such holder is entitled to receive as a result of such
redemption. The person or persons entitled to receive the shares of Common Stock issuable upon such redemption will be treated for all purposes as the record
holder or holders of such shares of Common Stock as of the effective date of such redemption.
Our obligation to redeem any shares of our Series D Preferred Stock is limited to the extent that (i) we do not have sufficient funds available to fund any such
redemption, in which case we will be required to redeem with shares of Common Stock, or (ii) we are restricted by applicable law, our charter or contractual
obligations from making such redemption.
Adjustment of the Series D Stated Value in Connection with a Redemption. If certain events affecting the Common Stock, such as recapitalizations, stock
dividends, stock splits, stock combinations, reclassifications, mergers or similar events, occur during the 20 trading days prior to a redemption of Series D
Preferred Stock, we will adjust the Series D Stated Value so that such redemption shall entitle the holder to receive the aggregate number of shares of Common
Stock or cash which, if the redemption had occurred immediately prior to such event, such holder would have owned upon such redemption and been entitled to
received pursuant to the event affecting our Common Stock.
Fractional Shares. No fractional shares of Common Stock will be issued upon redemption of any shares of Series D Preferred Stock. Rather, any fractional
number of shares of Common Stock to be issued upon any redemption of the Series D Preferred Stock will be rounded down to the nearest whole number of
shares of Common Stock.
Liquidation Preference. Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company, before any distribution or payment shall be
made to holders of Common Stock or any other class or series of capital stock ranking junior to shares of Series D Preferred Stock, the holders of shares of
Series D Preferred Stock will be entitled to be paid out of our assets legally available for distribution to our stockholders, after payment or provision for our debts
and other liabilities, a liquidation preference equal to 100% of the Series D Stated Value per share, plus an amount equal to any accrued and unpaid Series D
Dividends (whether or not declared) to and including the date of payment.
If upon the voluntary or involuntary liquidation, dissolution or winding-up of the Company, the available assets of the Company, or proceeds thereof,
distributable among the holders of the Series D Preferred Stock are insufficient to pay in full the above described liquidation preference and the liquidating
payments on any shares of any class or series of stock ranking on parity to the Series D Preferred Stock with respect to liquidation, dissolution or winding-up
(“Series D Parity Stock”), then such assets, or the proceeds thereof, will be distributed among the holders of the Series D Preferred Stock and any such Series D
Parity Stock ratably in the same proportion as the respective amounts that would be payable on such Series D Preferred Stock and any such Series D Parity Stock
if all amounts payable thereon were paid in full.
After payment of the full amount of the liquidating distributions to which they are entitled, the holders of shares of Series D Preferred Stock will have no right
or claim to any of our remaining assets. Our consolidation, merger or conversion with or into any other corporation, trust or other entity, the consolidation or
merger of any other corporation, trust or entity with or into us, the sale or transfer of any or all our assets or business, or a statutory share exchange will not be
deemed to constitute a liquidation, dissolution or winding-up of the Company.
In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of shares of our stock
or otherwise, is permitted under the MGCL, amounts that would be needed, if we were to be dissolved at the time of distribution, to satisfy the preferential rights
upon dissolution of holders of the Series D Preferred Stock will not be added to our total liabilities.
Voting Rights. The Series D Preferred Stock has no voting rights, and thus has no rights to vote on any dissolution, charter amendment, merger, sale of all or
substantially all of our assets, share exchange or conversion, or any amendment to the terms of the Series D Preferred Stock.
Exchange Listing. We have not made, and do not plan on making, an application to list shares of Series D Preferred Stock on Nasdaq, any other national
securities exchange or nationally recognized trading system or the TASE.
Transfer Agent and Registrar. The transfer agent and registrar for the Series D Preferred Stock is American Stock Transfer and Trust Company.
Series L Preferred Stock
Ranking. The Series L Preferred Stock ranks, with respect to dividend rights:
•
•
•
•
senior to our Common Stock, except with respect to and only to the extent of the Initial Dividend (as defined in “-Dividends” below), and any other class
or series of our capital stock, the terms of which expressly provide that our Series L Preferred Stock ranks senior to such class or series as to dividend
rights;
on parity with any class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class or
series ranks on parity with the Series L Preferred Stock as to dividend rights;
junior to our Series A Preferred Stock, Series D Preferred Stock, Common Stock (with respect to and only to the extent of the Initial Dividend) and any
other class or series of our capital stock, including capital stock issued in the future, the terms of which expressly provide that such class or series ranks
senior to the Series L Preferred Stock as to dividend rights; and
junior to all our existing and future debt obligations.
The Series L Preferred Stock ranks, with respect to rights upon our liquidation, winding-up or dissolution:
•
•
•
senior to our Common Stock, both (i) to the extent of the Series L Stated Value (as defined in “-Stated Value” below) and (ii) following payment to
holders of our Common Stock of an amount equal to any unpaid Initial Dividend, to the extent of any accrued and unpaid Series L Dividends (as defined
in “-Dividends” below) and any other class or series of our capital stock, the terms of which expressly provide that the Series L Preferred Stock ranks
senior to such class or series as to rights upon our liquidation, winding-up or dissolution;
on parity with the Series A Preferred Stock and Series D Preferred Stock to the extent of the Series L Stated Value and with each class or series of our
capital stock, including capital stock issued in the future, the terms of which expressly provide that such class or series ranks on parity with the Series L
Preferred Stock as to rights upon our liquidation, winding-up or dissolution;
junior to our Series A Preferred Stock, Series D Preferred Stock and Common Stock (with respect to and only to the extent of the Initial Dividend), in
each case with respect to any accrued and unpaid Series L Dividends, and any class or series of our capital stock, including capital stock issued in the
future, the terms of which expressly provide that such class or series ranks senior to the Series L Preferred Stock as to rights upon our liquidation,
winding-up or dissolution; and
•
junior to all our existing and future debt obligations.
Stated Value. Each share of Series L Preferred Stock has a stated value of $28.37, subject to appropriate adjustment in limited circumstances described in “-
Adjustment of the Series L Stated Value in Connection with a Redemption” below (the “Series L Stated Value”).
Dividends. Subject to the preferential rights of the holders of any class or series of our capital stock ranking senior to the Series L Preferred Stock (including the
Series A Preferred Stock, Series D Preferred Stock and, to the extent of the Initial Dividend, our Common Stock), the holders of our Series L Preferred Stock are
entitled to receive, if, as and when authorized by our Board of Directors and declared by us out of legally available funds, cumulative cash dividends on each share
of Series L Preferred Stock at an annual rate of five and fifty hundredths of a percent (5.50%) of the Series L Stated Value, paid in Israeli New Shekels (“ILS”) as
described below; provided however, if the Company fails to timely declare or fails to timely pay
dividends on our Series L Preferred Stock, the annual dividend rate of our Series L Preferred Stock will temporarily increase by 1.0% per year, up to a maximum
rate of 8.5% of the Series L Stated Value, until the Company has paid all accrued distributions on our Series L Preferred Stock for any past dividend periods (the
“Series L Dividend”).
Series L Dividends accrue and are cumulative from the end of the most recent period for which such dividends have been paid. For a Series L Dividend to be
timely, we must declare the amount of dividends to be paid on Series L Preferred Stock in U.S. dollars during the fourth quarter of the calendar year and no later
than December 15. The payment date for such annual dividend is, at the discretion of the Company, on or between December 1 of the year for which such
dividend is declared and January 31 of the year following the year for which such dividend is declared. Series L Dividends are paid to holders in ILS at the
weighted average of the U.S. dollar/ILS exchange rates of all transactions completed by the banks through which the Company converts the payment on the third
trading day of the TASE preceding the payment date.
Prior to declaring or paying any Series L Dividend, we must first declare and pay the “Initial Dividend,” which for a given fiscal year is a minimum annual
dividend on our Common Stock that is announced by us at the end of the prior fiscal year. The Initial Dividend will be $0 for any year in which (i) our Board of
Directors does not authorize or we do not announce the Initial Dividend, (ii) any Series L Dividend is in arrears and such amount was not declared as of the last
day of the preceding year or (iii) the debt of the Company dividend by the total assets of the Company, calculated as set forth in the articles supplementary to our
charter defining the terms of the Series L Preferred Stock, exceeded 60% as of November 30 of the prior year. While there are no limitations on the maximum
amount of the Initial Dividend that can be paid in a particular year, it is our intention that we will not announce an Initial Dividend for any given year that, based
on the information reasonably available to us at the time of announcement, we believe will cause us to be unable to make a future dividend on our Series L
Preferred Stock or on any other outstanding share of preferred stock.
Unless full cumulative dividends on the Series L Preferred Stock for all past annual periods have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof is set apart for payment, we will not:
•
•
declare and pay or declare and set apart for payment dividends and we will not declare and make any other distribution of cash or other property (other
than dividends or other distributions paid in shares of stock ranking junior to our Series L Preferred Stock as to the distribution rights or rights upon our
liquidation, winding-up or dissolution, and options, warrants or rights to purchase such shares), directly or indirectly, on or with respect to any shares of
our Common Stock other than in amounts up to but not exceeding the Initial Dividend, if any, or any class or series of our stock ranking junior to or on
parity with our Series L Preferred Stock as to distribution rights for any period; or
except by conversion into or exchange for shares of stock ranking junior to our Series L Preferred Stock as to distribution rights or rights upon our
liquidation, winding-up or dissolution, or options, warrants or rights to purchase such shares, redeem, purchase or otherwise acquire (other than a
redemption, purchase or other acquisition of Common Stock made for purposes of an employee incentive or benefit plan) for any consideration, or pay or
make available any monies for a sinking fund for the redemption of, any Common Stock or any class or series of our stock ranking junior to or on parity
with our Series L Preferred Stock as to distribution rights.
However, to the extent necessary to preserve our status as a REIT, the foregoing sentence will not prohibit declaring or paying or setting apart for payment any
dividend or other distribution on our Common Stock or the redemption of our capital stock pursuant to the restrictions on ownership and transfer contained in our
charter (see “Certain Provisions of the MGCL and Our Charter and Bylaws-Restrictions on Ownership and Transfer” below).
Minimum Fixed Charge Coverage Ratio. Prior to November 21, 2022, we are not permitted to issue any preferred stock ranking senior to or on parity with the
Series L Preferred Stock with respect to the payment of dividends, other distributions, liquidation or our dissolution or winding up unless the Minimum Fixed
Charge Coverage Ratio (as defined in our charter) is equal to or greater than 1.25:1.00 as of the last day of the trailing 12-month period ending on the last day of
the quarter preceding the date of such issuance.
Redemption at the Option of a Holder. From and after November 21, 2022, each holder of shares of Series L Preferred Stock may require us to redeem such
shares at a redemption price equal to 100% of the Series L Stated Value plus, provided the Series L Conditions (as defined in “-Payment of the Redemption Price”
below) are met, all accrued and unpaid Series L Dividends. Notwithstanding the foregoing, a holder of shares of our Series L Preferred Stock may require us to
redeem such shares at any time prior to November 21, 2022 if (i) we do not declare and pay in full the Series L Dividend for any annual period prior to such date
and (ii) we do not declare and pay all accrued and unpaid Series L Dividends for all past dividend periods prior to the applicable holder redemption date.
Optional Redemption by the Company. From and after November 21, 2022, subject to certain conditions, we may redeem shares of Series L Preferred Stock at a
redemption price equal to 100% of the Series L Stated Value, plus any accrued and unpaid Series L Dividends.
No shares of Series L Preferred Stock may be redeemed at the option of the Company if (i) full cumulative Series L Dividends on all outstanding shares of
Series L Preferred Stock have not been declared and paid or declared and set apart for payment for all past dividend periods, (ii) the Company has not declared the
entire Initial Dividend with respect to the Common Stock for such fiscal year, (iii) full cumulative Series A Dividends on all outstanding shares of Series A
Preferred Stock have not been declared and paid or declared and set apart for payment for all past dividend periods or (iv) the Company has not paid in such fiscal
year dividends on the Common Stock equal to the product of (A) the Initial Dividend multiplied by (B) a fraction, the numerator of which is the number of
quarters that have passed since the beginning of the fiscal year (including the current quarter) and the denominator of which is four (the conditions in (ii), (iii) and
(iv), collectively, the “Series L Conditions”).
If full cumulative Series L Dividends on all outstanding shares of Series L Preferred Stock have not been declared and paid or declared and set apart for
payment for all past dividend periods, neither the Company nor any of its affiliates may purchase or otherwise acquire shares of Series L Preferred Stock
otherwise than pursuant to a purchase or exchange offer made on the same terms to all holders of shares of Series L Preferred Stock.
Payment of the Redemption Price. Upon any redemption of Series L Preferred Stock by a holder or the Company, or upon the death of a holder, we will pay the
redemption price (i) in cash in ILS, (ii) in shares of our Common Stock based on the lower of (i) the net asset value of the Company per share of Common Stock
as most recently published by the Company as of the redemption date and (ii) the volume-weighted average price of our Common Stock for the 20 trading days
prior to the redemption as described in the articles supplementary to our charter defining the terms of the Series L Preferred Stock or (iii) in any combination of
cash in ILS and Common Stock, based on the foregoing conversion mechanisms.
If the Company elects to pay all or a portion of the redemption price in Common Stock, the Company will cause the transfer agent to, as soon as practicable,
register the number of shares of Common Stock such holder is entitled to receive as a result of such redemption. The person or persons entitled to receive the
shares of Common Stock issuable upon such redemption will be treated for all purposes as the record holder or holders of such shares of Common Stock as of the
effective date of such redemption.
Our obligation to redeem any shares of our Series L Preferred Stock is limited to the extent that (i) we do not have sufficient funds available to fund any such
redemption, in which case we will be required to redeem with shares of Common Stock, or (ii) we are restricted by applicable law, our charter or contractual
obligations from making such redemption.
Adjustment of the Series L Stated Value in Connection with a Redemption. If certain events affecting the Common Stock, such as recapitalizations, stock
dividends, stock splits, stock combinations, reclassifications, mergers or similar events, occur during the 20 trading days prior to a redemption of Series L
Preferred Stock, we will adjust the Series L Stated Value so that such redemption shall entitle the holder to receive the aggregate number of shares of Common
Stock or cash which, if the redemption had occurred immediately prior to such event, such holder would have owned upon such redemption and been entitled to
received pursuant to the event affecting our Common Stock.
Fractional Shares. No fractional shares of Common Stock will be issued upon redemption of any shares of Series L Preferred Stock. Rather, we will round
down to the nearest whole number the aggregate number of shares of Common Stock to be issued to a particular holder upon redemption in a given quarter and
will pay cash, in equal value in ILS as determined in accordance with the articles supplementary to our charter defining the terms of the Series L Preferred Stock,
in lieu of the fractional shares.
Liquidation Preference. Upon any voluntary or involuntary liquidation, dissolution or winding-up of our affairs, after payment or provision for our debts and
other liabilities, our funds legally available for distribution to our stockholders will be distributed as follows:
•
first, pro rata to (i) holders of our Series L Preferred Stock, in an amount per share equal to the Series L Stated Value, (ii) holders of our Series A
Preferred Stock, in an amount per share equal to the Series A Stated Value plus an amount equal to all accrued and unpaid Series A Dividends (whether
or not declared), (iii) holders of our Series D Preferred Stock, in an amount per share equal to the Series D Stated Value plus an amount equal to all
accrued and unpaid Series D Dividends (whether or not declared) and (iv) holders of any other class or series of capital stock ranking on parity with our
Series L Preferred Stock, Series A Preferred Stock and Series D Preferred Stock with respect to rights upon
our redemption, liquidation, winding-up or dissolution, to the extent provided by the terms of such class or series of capital stock;
second, to holders of our Common Stock in an amount equal to the amount of any unpaid Initial Dividend;
third, to holders of our Series L Preferred Stock in an amount equal to any accrued and unpaid Series L Dividend; and
fourth, to holders of our Common Stock and any other class or series of capital stock ranking junior to our Series L Preferred Stock.
•
•
•
Any liquidation preference on our Series L Preferred Stock will be paid by the Company in ILS based on the weighted average of the U.S. dollar/ILS exchange
rates of all transactions completed by the banks through which the Company converts the payment from U.S. dollars on the trading day of the TASE preceding the
payment date.
If upon the voluntary or involuntary liquidation, dissolution or winding-up of the Company, the available assets of the Company, or proceeds thereof,
distributable among the holders of the Series L Preferred Stock are insufficient to pay in full the above described liquidation preference and the liquidating
payments on any shares of any class or series of stock ranking on parity to the Series L Preferred Stock with respect to the liquidation, dissolution or winding-up
of the Company (“Series L Parity Stock”), then such assets, or the proceeds thereof, will be distributed among the holders of the Series L Preferred Stock and any
such Series L Parity Stock ratably in the same proportion as the respective amounts that would be payable on such Series L Preferred Stock and any such Series L
Parity Stock if all amounts payable thereon were paid in full.
After payment of the full amount of the liquidating distributions to which they are entitled, the holders of shares of Series L Preferred Stock will have no right
or claim to any of our remaining assets. Our consolidation, merger or conversion with or into any other corporation, trust or other entity, the consolidation or
merger of any other corporation, trust or entity with or into us, the sale or transfer of any or all our assets or business, or a statutory share exchange will not be
deemed to constitute a liquidation, dissolution or winding-up of the Company.
In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of shares of our stock
or otherwise, is permitted under the MGCL, amounts that would be needed, if we were to be dissolved at the time of distribution, to satisfy the preferential rights
upon dissolution of holders of the Series L Preferred Stock will not be added to our total liabilities.
Voting Rights. The Series L Preferred Stock has no voting rights, and thus has no rights to vote on any dissolution, charter amendment, merger, sale of all or
substantially all of our assets, share exchange or conversion, or any amendment to the terms of the Series L Preferred Stock.
Exchange Listing. Our Series L Preferred Stock is listed on Nasdaq and on the TASE, in each case under the ticker symbol “CMCTP.”
Transfer Agent and Registrar. The transfer agent and registrar for the Series L Preferred Stock is Computershare Trust Company, N.A.
Series A Warrants
Warrant Agreement. In connection with the initial public offering of our Series A Preferred Stock, we issued warrants to purchase 0.25 shares of Common Stock
each (the “Series A Warrants”). The Series A Warrants are governed by a warrant agreement, which may be amended from time to time in accordance with its
terms (the “Warrant Agreement”). The Series A Warrants are either in certificated form or in “book-entry” form and, in each case, are evidenced by one or more
global warrants. Those investors who own beneficial interests in a global warrant do so through participants in DTC’s system, and the rights of these indirect
owners are governed solely by the Warrant Agreement and the applicable procedures and requirements of the DTC.
Exercisability. Holders of our Series A Warrants may exercise their Series A Warrants at any time beginning on the first anniversary of their date of issuance
until 5:00 p.m., New York time, on the date that is the fifth anniversary of such date of issuance (the “Warrant Expiration Time”). Each Series A Warrant was
originally exercisable for 0.25 shares of Common Stock, subject to adjustment as described in “-Adjustments to Exercisability” below. The Series A Warrants are
exercisable at the option of each holder, in whole but not in part, for no less than an aggregate of 50 shares of Common Stock (it being understood that in the case
of a “cashless exercise,” the number of shares of Common Stock to be received by a holder of a Series A
Warrant will be reduced to pay for the exercise price as provided in the Warrant Agreement), unless such holder does not at the time of exercise own a sufficient
number of Series A Warrants to meet such minimum amount. The Series A Warrants may be exercised by delivering to the warrant agent, prior to their applicable
Warrant Expiration Time, a duly executed exercise notice accompanied by payment in full for the number of shares of our Common Stock purchased upon such
exercise (except in the case of a cashless exercise in the circumstances discussed below).
A holder of Series A Warrants does not have the right to exercise any portion of a Series A Warrant to the extent that, after giving effect to the issuance of shares
of our Common Stock upon such exercise, the holder (together with its affiliates and any other persons acting as a group together with such holder or any of its
affiliates) would beneficially or constructively own shares of Common Stock (i) in excess of 6.25% in value or number of shares, whichever is more restrictive, of
the shares of Common Stock outstanding or (ii) that would otherwise result in the violation of any of the restrictions on ownership transfer of our stock contained
in our charter, in each case, immediately after giving effect to the issuance of shares of Common Stock upon exercise of the Series A Warrant, as discussed in
“Certain Provisions of the MGCL and Our Charter and Bylaws-Restrictions on Ownership and Transfer” below.
Cashless Exercise. If, on the date of any exercise of any Series A Warrant, a registration statement covering the issuance of the shares of Common Stock
issuable upon exercise of the Series A Warrant is not effective and an exemption from registration is not available for the resale of such shares issuable upon
exercise of the Series A Warrant, the holder may only satisfy its obligation to pay the exercise price upon the exercise of its Series A Warrant on a cashless basis in
accordance with the terms of the Warrant Agreement. When exercised on a cashless basis, a portion of the Series A Warrant is cancelled in payment of the
purchase price payable in respect of the number of shares of our Common Stock purchasable upon such exercise. The shares of Common Stock cancelled in a
cashless exercise will be valued at the closing price of the Common Stock on the trading day immediately preceding the date as of which such value is being
determined.
Outstanding Warrants After Expiration. Any Series A Warrant that is outstanding after its applicable Warrant Expiration Time shall be automatically terminated.
Exercise Price. The exercise price of the Common Stock purchasable upon exercise of the Series A Warrants equals an amount equal to a 15% premium to the
Applicable NAV, subject to adjustment as described in “-Adjustments to Exercisability” below. The “Applicable NAV” is the fair market net asset value per share
of Common Stock, calculated in the sole discretion of the Company, as most recently published by the Company at the time of the issuance of the applicable
Series A Warrant. The Company will determine the Applicable NAV on an annual basis or more frequently if, in the Company’s discretion, significant
developments warrant.
Adjustments to Exercisability. The exercise price and the number of shares of Common Stock issuable upon exercise of the Series A Warrants are subject to
appropriate adjustment from time to time in relation to the following events or actions in respect of the Company: (i) we declare a dividend or make a distribution
on outstanding shares of Common Stock in shares of Common Stock; (ii) we subdivide or reclassify our outstanding shares of Common Stock into a greater
number of shares of Common Stock; (iii) we combine or reclassify our outstanding shares of Common Stock into a smaller number of shares of Common Stock;
or (iv) we enter into any transaction whereby the outstanding shares of Common Stock are at any time changed into or exchanged for a different number or kind of
shares or other securities of the Company or of another entity through reorganization, merger, consolidation, liquidation or recapitalization. Additionally, the
Company may, as it deems appropriate to account for the effect of the payment of a special cash dividend by the Company, adjust the exercise price of outstanding
and unexpired Series A Warrants and/or adjust the number of shares of Common Stock for which Series A Warrants may be exercised. The decision of what
constitutes a special cash dividend and whether to make any adjustment in connection therewith, the methodology used to make any adjustment and the extent of
any adjustment will be determined by the Company in its sole discretion.
Transferability. Subject to applicable law, the Series A Warrants may be transferred at the option of the holder upon surrender of the Series A Warrants with the
appropriate instruments of transfer.
Exchange Listing. The Series A Warrants are not listed on Nasdaq, any other national securities exchange or other nationally recognized trading system or the
TASE.
Rights as Stockholder. Except by virtue of such holder’s ownership of shares of our Common Stock, the holders of the Series A Warrants will not have the
rights or privileges of holders of our Common Stock, including any voting rights, until they exercise their Series A Warrants.
Fractional Shares. No fractional shares of Common Stock will be issued upon the exercise of the Series A Warrants. Rather, we shall, at our election, either pay
a cash adjustment in respect of such fraction in an amount equal to such fraction multiplied by the exercise price or round down the number of shares of Common
Stock to be issued to the nearest whole number.
Certain Provisions of the MGCL and Our Charter and Bylaws
Classification or Reclassification of Capital Stock
Our charter authorizes our Board of Directors to classify and reclassify any unissued shares of Common Stock, or preferred stock into other classes or series of
stock, including one or more classes or series of stock that have priority with respect to voting rights, dividends or upon liquidation over our Common Stock, our
Series A Preferred Stock, our Series D Preferred Stock or our Series L Preferred Stock, and authorizes us to issue the newly-classified shares, subject to the
limitations contained in the terms of our Series L Preferred Stock described above. Prior to the issuance of shares of each new class or series, our Board of
Directors is required by Maryland law and by our charter to set, subject to the provisions of our charter regarding the restrictions on ownership and transfer of our
stock and the express terms of any other class or series of our stock then outstanding, the preferences, conversion or other rights, voting powers, restrictions
(including restrictions as to transferability), limitations as to dividends and other distributions, qualifications and terms and conditions of redemption for each class
or series. Our Board of Directors may take these actions without stockholder approval unless stockholder approval is required by the rules of any stock exchange
or automatic quotation system on which our securities may be listed or traded or the terms of any other class or series of our stock. Therefore, our Board of
Directors could authorize the issuance of shares of Common Stock or preferred stock with terms and conditions that could have the effect of delaying, deferring or
preventing a change in control or other transaction that might involve a premium price for shares of our Common Stock or otherwise be in the best interest of our
stockholders.
Restrictions on Ownership and Transfer
Our charter, subject to certain exceptions, contains certain restrictions on the number of shares of our stock that a person may own. Our charter contains a stock
ownership limit that prohibits any person, unless exempted by our Board of Directors, from acquiring or holding, directly or indirectly, applying attribution
rules under the Code, shares of our capital stock in excess of 6.25% in number of shares or value, whichever is more restrictive, of the aggregate of the outstanding
shares of our stock or 6.25% of the number of shares or value, whichever is more restrictive, of the outstanding shares of our Common Stock. Pursuant to our
charter, our Board of Directors has the power to increase or decrease the percentage of stock that a person may beneficially or constructively own. However, any
decreased stock ownership limit will not apply to any person whose percentage ownership of our stock is in excess of such decreased stock ownership limit until
that person’s percentage ownership of our stock equals or falls below the decreased stock ownership limit. Until such a person’s percentage ownership of our stock
falls below such decreased stock ownership limit, any further acquisition of stock will be in violation of the decreased stock ownership limit.
Our charter further prohibits (i) any person from beneficially or constructively owning our stock that (A) would result in us being “closely held” under
Section 856(h) of the Code (without regard to whether the shares are owned during the last half of a taxable year), (B) would cause us to constructively own 10%
or more of the ownership interests in a tenant of our real property within the meaning of Section 856(d)(2)(B) of the Code or (C) would otherwise cause us to fail
to qualify as a REIT, or (ii) any person from transferring our stock if such transfer would result in our stock being beneficially owned by fewer than 100 persons.
Any person who acquires or attempts or intends to acquire beneficial or constructive ownership of our stock that will or may violate any of the foregoing
restrictions on ownership and transfer, or who is the intended transferee of shares of our stock that are transferred to the trust (as described below), is required to
give written notice immediately to us or, in the event of a proposed or attempted transfer, at least 15 days prior written notice to us and provide us with such other
information as we may request in order to determine the effect of such transfer on our qualification as a REIT. The foregoing restrictions on ownership and
transfer will not apply if our Board of Directors determines that it is no longer in our best interests to attempt to qualify, or to continue to qualify, as a REIT or that
compliance with such restrictions is no longer required in order for us to qualify as a REIT.
Our Board of Directors, in its sole discretion, may exempt, prospectively or retroactively, a person from each of the foregoing restrictions except those listed
under (i)(A), (i)(C) and (ii) in the preceding paragraph. The person seeking an exemption must provide such representations, covenants and undertakings as our
Board of Directors may deem appropriate to conclude that granting the exemption will not cause us to lose our qualification as a REIT. Our Board of Directors
may also require a ruling from the Internal Revenue Service or an opinion of counsel in order to determine or ensure our qualification as a REIT in the context of
granting such exemptions. Our Board of Directors has waived the 6.25% ownership limits and the
restrictions listed under (i)(B) in the preceding paragraph for CIM Urban REIT, LLC, CIM Urban Partners GP, LLC, CIM Service Provider, LLC and persons
owning a direct or indirect interest in CIM Urban REIT, LLC, CIM Urban Partners GP, LLC, CIM Service Provider, LLC..
Any attempted transfer of shares of our stock which, if effective, would result in a violation of the foregoing restrictions will cause the number of shares of our
stock causing the violation (rounded up to the nearest whole share) to be automatically transferred to a trust for the benefit of one or more charitable beneficiaries,
and the proposed transferee will not acquire any rights in such stock. The automatic transfer will be deemed to be effective as of the close of business on the
business day (as defined in our charter) prior to the date of the transfer. If, for any reason, the transfer to the trust does not occur or would not prevent a violation
of the restrictions on ownership and transfer contained in our charter, our charter provides that the purported transfer will be treated as invalid from the outset.
Shares of stock held in the trust will be issued and outstanding shares. The proposed transferee will not benefit economically from ownership of any stock held in
the trust, will have no rights to dividends and no rights to vote or other rights attributable to the shares of stock held in the trust. The trustee of the trust will have
all voting rights and rights to dividends or other distributions with respect to shares held in the trust. These rights will be exercised for the exclusive benefit of the
charitable beneficiary. Any dividend or other distribution paid prior to our discovery that shares of our stock have been transferred to the trust will be paid by the
recipient to the trustee upon demand. Any dividend or other distribution authorized but unpaid will be paid when due to the trustee. Any dividend or other
distribution paid to the trustee will be held in trust for the charitable beneficiary. Subject to Maryland law, the trustee will have the authority to rescind as void any
vote cast by the proposed transferee prior to our discovery that the shares have been transferred to the trust and to recast the vote in accordance with the desires of
the trustee acting for the benefit of the charitable beneficiary. However, if we have already taken irreversible corporate action, then the trustee will not have the
authority to rescind and recast the vote.
Within 20 days of receiving notice from us that shares of our stock have been transferred to the trust, the trustee will sell the shares to a person designated by the
trustee, whose ownership of the shares will not violate the above ownership limitations. Upon such sale, the interest of the charitable beneficiary in the shares sold
will terminate and the trustee will distribute the net proceeds of the sale to the proposed transferee and to the charitable beneficiary as follows: the proposed
transferee will receive the lesser of (i) the price paid by the proposed transferee for the shares, or, if the proposed transferee did not give value for the shares in
connection with the event causing the shares to be held in the trust (e.g., a gift, devise or other similar transaction), the market price (as defined in our charter) of
the shares on the day of the event causing the shares to be held in the trust and (ii) the price per share received by the trustee from the sale or other disposition of
the shares. The trustee may reduce the amount payable to the proposed transferee by the amount of dividends and other distributions paid to the proposed
transferee and owed by the proposed transferee to the trust.
Any net sale proceeds in excess of the amount payable to the proposed transferee will be paid immediately to the charitable beneficiary. If, prior to our
discovery that our stock have been transferred to the trust, the shares are sold by the proposed transferee, then (i) the shares shall be deemed to have been sold on
behalf of the trust and (ii) to the extent that the proposed transferee received an amount for the shares that exceeds the amount the proposed transferee was entitled
to receive, the excess shall be paid to the trustee upon demand.
In addition, shares of our stock held in the trust will be deemed to have been offered for sale to us, or our designee, at a price per share equal to the lesser of the
price per share in the transaction that resulted in the transfer to the trust (or, in the case of a devise or gift, the market price at the time of the devise or gift) and the
market price on the date we, or our designee, accept the offer. We may reduce the amount payable to the proposed transferee by the amount of dividends and other
distributions paid to the proposed transferee and owned by the proposed transferee to the trust. We will have the right to accept the offer until the trustee has sold
the shares. Upon a sale to us, the interest of the charitable beneficiary in the shares sold will terminate, and the trustee will distribute the net proceeds of the sale to
the proposed transferee and any dividends or other distributions held by the trustee shall be paid to the charitable beneficiary.
Every owner of more than 5% (or such lower percentage as required by the Code or the regulations promulgated thereunder) in number or in value of the
outstanding shares of our stock, including our Common Stock, within 30 days after the end of each taxable year, will be required to give written notice to us
stating the name and address of such owner, the number of shares of each class and series of shares of our stock that the owner beneficially owns and a description
of the manner in which the shares are held. Each owner shall provide to us such additional information as we may request to determine the effect, if any, of the
beneficial ownership on our qualification as a REIT and to ensure compliance with the ownership limitations. In addition, each beneficial or constructive owner
and each person who is holding shares of our stock for such owner will, upon demand, be required to provide to us such information as we may request to
determine our qualification as a REIT and to comply with the requirements of any taxing authority or governmental authority or to determine such compliance and
to ensure compliance with the ownership limits.
These ownership limitations could delay, defer or prevent a transaction or a change in control that might involve a premium price for our Common Stock or
might otherwise be in the best interests of our stockholders.
Our Board of Directors
Our charter and bylaws provide that the number of directors may be established, increased or decreased by a majority of our entire Board of Directors, but may
not be fewer than the minimum number required by the MGCL (which currently is one) or, unless our bylaws are amended, more than 25. Any vacancy on our
Board of Directors, whether resulting from an increase in the number of directors or otherwise, may only be filled by the affirmative vote of a majority of the
remaining directors, even if such a majority constitutes less than a quorum. Except as may be provided with respect to any class or series of our stock, at each
annual meeting of our stockholders, each of our directors will be elected by the holders of our Common Stock to serve until the next annual meeting of our
stockholders and until his or her successor is duly elected and qualifies.
Removal of Directors
Our charter provides that, subject to the rights of holders of one or more classes or series of preferred stock, a director may be removed with or without cause
and by the affirmative vote of at least two-thirds of the votes entitled to be cast by our stockholders generally in the election of our directors. This provision, when
coupled with the exclusive power of our Board of Directors to fill vacant directorships, may preclude stockholders from removing incumbent directors except by a
substantial affirmative vote and filling the vacancies created by such removal with their own nominees.
Limitation of Liability and Indemnification
Maryland law permits a Maryland corporation to include in its charter a provision eliminating the liability of its directors and officers to the corporation and its
stockholders for money damages except for liability resulting from (i) actual receipt of an improper benefit or profit in money, property or services or (ii) active or
deliberate dishonesty established in a judgment or other final adjudication to be material to the cause of action. Our charter contains a provision that eliminates the
liability of our directors and officers to the maximum extent permitted by Maryland law.
Maryland law requires a Maryland corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has
been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her
service in that capacity. Maryland law permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be
made a party by reason of their service in those or other capacities unless it is established that:
•
an act or omission of the director or officer was material to the matter giving rise to the proceeding and
• was committed in bad faith or
• was the result of active and deliberate dishonesty;
•
•
the director or officer actually received an improper personal benefit in money, property or services; or
in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a
judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In
addition, Maryland law permits a Maryland corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of:
•
•
a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification
by the corporation; and
a written undertaking by the director or officer or on the director’s or officer’s behalf to repay the amount paid or reimbursed by the corporation if it is
ultimately determined that the director or officer did not meet the standard of conduct.
Our charter and bylaws obligate us, to the maximum extent permitted by Maryland law, to indemnify and, without requiring a preliminary determination of the
ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
•
•
any present or former director or officer who is made, or threatened to be made, a party to, or witness in, the proceeding by reason of his or her service in
that capacity; or
any individual who, while a director or officer of our Company and at our Company’s request, serves or has served another corporation, real estate
investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, trustee,
member, manager or partner and who is made, or threatened to be made, a party to, or witness in, the proceeding by reason of his or her service in that
capacity.
Our charter and bylaws also permit us, subject to approval from our Board of Directors, to indemnify and advance expenses to any person who served a
predecessor of our Company in any of the capacities described above and to any employee or agent of our Company or a predecessor of our Company.
Indemnification Agreements
We have entered into indemnification agreements with each of our directors and named executive officers. Each indemnification agreement provides that we
will indemnify and hold harmless each such director or named executive officer to the fullest extent permitted by law.
Business Combinations
Under the MGCL, certain “business combinations,” including a merger, consolidation, statutory share exchange or, in certain circumstances, an asset transfer or
issuance or reclassification of equity securities, between a Maryland corporation and an “interested stockholder” or an affiliate of such an interested stockholder,
are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. An “interested stockholder” is,
generally, any person who beneficially owns, directly or indirectly, 10% or more of the voting power of the corporation’s outstanding voting shares or an affiliate
or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner, directly or indirectly, of 10% or
more of the voting power of the then outstanding voting shares of the corporation.
After such five-year period, any such business combination must be recommended by the board of directors of the corporation and approved by the affirmative
vote of at least (i) 80% of the votes entitled to be cast by holders of outstanding voting shares of the corporation and (ii) two-thirds of the votes entitled to be cast
by holders of voting shares of the corporation other than shares held by the interested stockholder with whom (or with whose affiliate) the business combination is
to be effected or held by an affiliate or associate of the interested stockholder, unless, among other conditions, the corporation’s common stockholders receive a
minimum price (as defined in the MGCL) for their shares and the consideration is received in cash or in the same form as previously paid by the interested
stockholder for its shares.
Under the MGCL, a person is not an “interested stockholder” if the board of directors approved in advance the transaction by which the person otherwise would
have become an interested stockholder. A corporation’s board of directors may provide that its approval is subject to compliance with any terms and conditions
determined by it.
We have elected to opt out of these provisions of the MGCL by resolution of our Board of Directors. However, our Board of Directors may by resolution elect
to repeal the foregoing opt-outs from the business combination provisions of the MGCL in the future.
Control Share Acquisitions
The MGCL provides that a holder of “control shares” of a Maryland corporation acquired in a “control share acquisition” has no voting rights with respect to
such shares except to the extent approved by the affirmative vote of two-thirds of the votes entitled to be cast on the matter, excluding any of the following persons
entitled to exercise or direct the exercise of the voting power of such shares in the election of directors: (i) a person who makes or proposes to make a control share
acquisition, (ii) an officer of the corporation or (iii) an employee of the corporation who is also a director of the corporation. “Control shares” are voting shares of
stock that, if aggregated with all other such shares previously acquired, directly or indirectly, by the acquirer, or in respect of which the acquirer is able to exercise
or direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the acquirer to exercise voting power in electing directors
within one of the
following ranges of voting power: (A) one-tenth or more but less than one-third, (B) one-third or more but less than a majority or (C) a majority or more of all
voting power.
Control shares do not include shares that the acquiring person is then entitled to vote as a result of having previously obtained stockholder approval or shares
acquired directly from the corporation. A “control share acquisition” means the acquisition, directly or indirectly, of ownership of, or the power to direct the
exercise of voting power with respect to, issued and outstanding control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses and
making an acquiring person statement (as described in the MGCL)), may compel the board of directors to call a special meeting of stockholders to be held within
50 days of demand to consider the voting rights of the control shares. If no request for a meeting is made, the corporation may itself present the question at any
stockholders’ meeting.
If voting rights of control shares are not approved at the meeting or if the acquiring person does not deliver an “acquiring person statement” as required by the
statute, then, subject to certain conditions and limitations, the corporation may redeem any or all of the control shares (except those for which voting rights have
previously been approved) for fair value determined, without regard to the absence of voting rights for the control shares, as of the date of any meeting of
stockholders at which the voting rights of such shares are considered and not approved or, if no such meeting is held, as of the date of the last control share
acquisition. If voting rights for control shares are approved at a stockholders’ meeting and the acquirer becomes entitled to vote a majority of the shares entitled to
vote, all other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of such appraisal rights may not be less than the
highest price per share paid by the acquirer in the control share acquisition.
The control share acquisition statute does not apply to (i) shares acquired in a merger, consolidation or share exchange if the corporation is a party to the
transaction or (ii) acquisitions approved or exempted by the charter or bylaws of the corporation.
We have elected to opt out of these provisions of the MGCL pursuant to a provision in our bylaws. However, we may, by amendment to our bylaws, opt in to
the control share provisions of the MGCL in the future.
Subtitle 8
Subtitle 8 of Title 3 of the MGCL permits a Maryland corporation with a class of equity securities registered under the Exchange Act and at least three
independent directors to elect to be subject, by provision in its charter or bylaws or a resolution of its board of directors and notwithstanding any contrary
provision in the charter or bylaws, to any or all of the following five provisions:
•
•
•
•
•
a classified board consisting of three classes;
a two-thirds vote requirement for removing a director;
a requirement that the number of directors be fixed only by vote of the directors;
a requirement that a vacancy on the board be filled only by the remaining directors and for the remainder of the full term of the class of directors in which
the vacancy occurred; or
a majority stockholder vote requirement for the calling of a stockholder-requested special meeting of stockholders.
Our charter provides that, except as may be provided by our Board of Directors in setting the terms of any class or series of stock, we elect to be subject to the
provisions of Subtitle 8 relating to the filling of vacancies on our Board of Directors. Through provisions in our charter and bylaws unrelated to Subtitle 8, we
already (1) require a two-thirds vote for the removal of any director from the Board of Directors, (2) vest in the Board of Directors the exclusive power to fix the
number of directorships, subject to limitations set forth in our charter and bylaws, and (3) require, unless called by the chairman of our Board of Directors, our
president, our chief executive officer or our Board of Directors, the request of stockholders entitled to cast not less than a majority of all votes entitled to be cast on
a matter at such meeting to call a special meeting. We have not elected to classify our Board of Directors.
Dissolution, Amendment to the Charter and Other Extraordinary Actions
Under the MGCL, a Maryland corporation generally cannot dissolve, amend its charter, merge, sell all or substantially all of its assets, engage in a share
exchange or convert into another entity unless declared advisable by the board of directors and approved by the affirmative vote of stockholders entitled to cast at
least two-thirds of the votes entitled to be cast on the matter. However, a Maryland corporation may provide in its charter for approval of these matters by a lesser
percentage, but not less than a majority of all of the votes entitled to be cast on the matter. Our charter provides for approval of any of these matters by the
affirmative vote of stockholders entitled to cast a majority of the votes entitled to be cast on such matters, except that the affirmative vote of stockholders entitled
to cast at least two-thirds of the votes entitled to be cast on such matter is required to amend the provisions of our charter relating to the removal of directors, the
indemnification of our officers and directors, restrictions on ownership and transfer of our stock or the vote required to amend such provisions. Maryland law also
permits a Maryland corporation to transfer all or substantially all of its assets without the approval of the stockholders of the corporation to an entity if all of the
equity interests of the entity are owned, directly or indirectly, by the corporation. Because our operating assets may be held by our operating partnership or its
subsidiaries, these subsidiaries may be able to merge or transfer all or substantially all of their assets without the approval of our stockholders.
Meetings of Stockholders
Under our bylaws, annual meetings of holders of our Common Stock must be held each year at a date, time and place determined by our Board of Directors.
Special meetings of holders of our Common Stock may be called by the chairman of our Board of Directors, our chief executive officer, our president and our
Board of Directors. Subject to the provisions of our bylaws, a special meeting of stockholders to act on any matter that may properly be considered at a meeting of
stockholders must be called by our secretary upon the written request of stockholders entitled to cast a majority of all of the votes entitled to be cast on the matter
at such meeting who have requested the special meeting in accordance with the procedures specified in our bylaws and provided the information and certifications
required by our bylaws. Only matters set forth in the notice of a special meeting of stockholders may be considered and acted upon at such a meeting.
Advance Notice of Director Nominations and New Business
Our bylaws provide that with respect to an annual meeting of stockholders, nominations of persons for election to our Board of Directors and the proposal of
business to be considered by stockholders may be made only (i) pursuant to our notice of the meeting, (ii) by or at the direction of our Board of Directors, or
(iii) by a holder of our Common Stock who was a stockholder of record at the time of giving notice and at the time of our annual meeting, who is entitled to vote
at the meeting and who has complied with the advance notice procedures set forth in our bylaws. Our bylaws provide that with respect to special meetings of our
stockholders, only the business specified in our notice of meeting may be brought before the meeting, and nominations of persons for election to our Board of
Directors may be made only (A) by or at the direction of our Board of Directors, or (B) provided that the special meeting has been called in accordance with our
bylaws for the purpose of electing directors, by any holder of our Common Stock who was a stockholder of record at the time of giving notice and at the time of
the special meeting, who is entitled to vote at the meeting and who has complied with the advance notice procedures set forth in our bylaws.
CREATIVE MEDIA & COMMUNITY TRUST CORPORATION
LIST OF SUBSIDIARIES
Exhibit 21.1
Entity
1021 East 7th Street (Austin) GP, LLC
1021 East 7th Street (Austin) Owner, L.P.
1130 Howard (SF) GP, LLC
1130 Howard (SF) Owner, L.P.
9460 Wilshire Blvd GP, LLC
9460 Wilshire Blvd (BH) Owner, L.P.
4750 Wilshire Blvd. (LA) Owner, LLC
CIM Small Business Loan Trust 2018-1
CIM Urban Holdings, LLC
CIM Urban Partners, L.P.
CIM Urban REIT GP I, LLC
CIM Urban REIT GP II, LLC
CIM Urban REIT Holdings, LLC
CIM Urban REIT Properties IX, L.P.
CIM Urban REIT Properties XIII, L.P.
CIM Wilshire (Los Angeles) Investor, LLC
CIM Wilshire (Los Angeles) Manager, LLC
CIM/11600 Wilshire (Los Angeles) GP, LLC
CIM/11600 Wilshire (Los Angeles), LP
CIM 11620 Wilshire (Los Angeles) GP, LLC
CIM 11620 Wilshire (Los Angeles), LP
CIM/J Street Garage Sacramento GP, LLC
CIM/J Street Garage Sacramento, L.P
CIM/J Street Hotel Sacramento GP, LLC
CIM/J Street Hotel Sacramento, Inc.
CIM/J Street Hotel Sacramento, L.P.
CIM/Oakland 1 Kaiser Plaza GP, LLC
CIM/Oakland 1 Kaiser Plaza, LP
First Western SBLC, Inc.
FW Asset Holding, LLC
Lindblade Media Center (LA) Owner, LLC
PMC Commercial Lending, LLC
PMC Funding Corp.
PMC Mortgage Corp., LLC
PMC Preferred Capital Trust-A
PMC Properties, Inc.
Two Kaiser Plaza (Oakland) Owner, LLC
Urban Partners GP, LLC
Urban Partners GP Manager, LLC
1037 North Sycamore (Los Angeles) GP, LLC
State of Formation
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
California
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
California
California
California
California
California
Delaware
Delaware
Florida
Delaware
Delaware
Delaware
Florida
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Type of Organization
LLC
LP
LLC
LP
LLC
LP
LLC
Trust
LLC
LP
LLC
LLC
LLC
LP
LP
LLC
LLC
LLC
LP
LLC
LP
LLC
LLC
LLC
Corporation
LP
LLC
LP
Corporation
LLC
LLC
LLC
Corporation
LLC
Trust
Corporation
LLC
LLC
LLC
LLC
Entity
1037 North Sycamore (Los Angeles) Owner, L.P.
3101 S Western (LA) Owner GP, LLC
3101 S Western (LA) Owner GP, L.P.
1910 Sunset Blvd. Holdings, LLC
1910 Sunset Blvd JV (LA) GP, LLC
1910 Sunset Blvd JV (LA), L.P.
1910 Sunset Blvd (LA) GP, LLC
1910 Sunset Blvd (LA), L.P.
State of Formation
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Type of Organization
LP
LLC
LP
LLC
LLC
LP
LLC
LP
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
We consent to the incorporation by reference in the Registration Statement No. 333-233255 on Form S-3 and Registration Statement No. 333-127531 on Form S-8
of our reports dated March 16, 2022, relating to the financial statements of Creative Media & Community Trust Corporation and the effectiveness of Creative
Media & Community Trust Corporation’s internal control over financial reporting appearing in this Annual Report on Form 10-K for the year ended December 31,
2021.
/s/ Deloitte & Touche, LLP
Los Angeles, California
March 16, 2022
Certification
Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
Exhibit 31.1
I, David Thompson, certify that:
1.
I have reviewed this report on Form 10-K for the year ended December 31, 2021 of Creative Media & Community Trust Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that
material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal
quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's
auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to
adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over
financial reporting.
Date: March 16, 2022
/s/ David Thompson
David Thompson
Chief Executive Officer
Certification
Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
Exhibit 31.2
I, Nathan D. DeBacker, certify that:
1.
I have reviewed this report on Form 10-K for the year ended December 31, 2021 of Creative Media & Community Trust Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that
material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal
quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's
auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to
adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over
financial reporting.
Date: March 16, 2022
/s/ Nathan D. DeBacker
Nathan D. DeBacker
Chief Financial Officer
Certification of Chief Executive Officer
Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
Exhibit 32.1
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350), the undersigned officer of Creative Media & Community Trust
Corporation (the "Company"), hereby certifies that the Company's Annual Report on Form 10-K for the year ended December 31, 2021 (the "Report") fully
complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934 and that the information contained in the Report
fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: March 16, 2022
/s/ David Thompson
Name:
Title:
David Thompson
Chief Executive Officer
The foregoing certification is being furnished solely pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350) and is not
being filed as part of the Report or as a separate disclosure document.
Certification of Chief Financial Officer
Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
Exhibit 32.2
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350), the undersigned officer of Creative Media & Community Trust
Corporation (the "Company"), hereby certifies that the Company's Annual Report on Form 10-K for the year ended December 31, 2021 (the "Report") fully
complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934 and that the information contained in the Report
fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: March 16, 2022
/s/ Nathan D. DeBacker
Name:
Title:
Nathan D. DeBacker
Chief Financial Officer
The foregoing certification is being furnished solely pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350) and is not
being filed as part of the Report or as a separate disclosure document.