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Item 5. Market for Registrant’s Common Equity

2023-03-17 compared with 2022-03-18 · 51 added, 40 removed, 41 unchanged (69% of the section changed)

3 unchanged sentences

Until our shares are listed on a national exchange, if ever, our stockholders may not sell their shares unless the buyer meets the applicable suitability and minimum purchase requirements.

On March 31, 2021, we published an Estimated Per-Share NAV equal to $14.50 as of December 31, 2020.

We intend to publish an Estimated Per-Share NAV as of December 31, 2021 shortly after filing this Annual Report on Form 10-K for the year ended December 31, 2021.

Consistent with our valuation guidelines, we engaged Kroll, LLC (“Kroll”, formerly, “Duff & Phelps”), an independent third-party real estate advisory firm, to perform appraisals of our real estate assets as of December 31, 2020 and provide a valuation range for each real estate asset.

In addition, Kroll was engaged to review, and incorporate in its report our market value estimate regarding other assets, liabilities, and the liquidation value of our outstanding shares of Series A Preferred Stock as of December 31, 2020.

Estimated Per-Share Net Asset Value

On March 28, 2022, the independent directors of the Board, who comprise a majority of the Board, unanimously approved an estimated per-share net asset value (“Estimated Per-Share NAV”) as of December 31, 2021 (the “Valuation Date”) equal to $15.00.

The Estimated Per-Share NAV of $15.00 fell within the range of the values reported by Kroll, LLC ("Kroll"), an independent third-party real estate advisory firm engaged by us.

The range of values provided by Kroll was based on the estimated fair value of our assets less the estimated fair value of our liabilities and the liquidation value of our Series A Preferred Stock and the liquidation value of our Series B Preferred Stock, divided by 99,717,390 shares of common stock outstanding as of December 31, 2021.

The common stock outstanding amount used to calculate the Estimated Per-Share NAV as of December 31, 2021 included the dividends declared and issued entirely in shares of our common stock through December 31, 2021, but did not include any other dividend declared and payable in whole or in part in shares of our common stock subsequent to December 31, 2021.

In determining the Estimated Per-Share NAV of $15.00, the independent directors of the Board considered various factors, including the information provided by Kroll, the impact of the stock dividend that was issued in January 2022, the fact that properties held for sale or under contract for sale at December 31, 2021 were valued based on their contract sale prices and without giving consideration to the reinvestment of the sale proceeds, and the impact of the COVID-19 pandemic.

The Estimated Per-Share NAV has not been adjusted for any stock dividend(s) issued subsequent to December 31, 2021 and will not be until a new Estimated Per-Share NAV is published.

We intend to publish an Estimated Per-Share NAV as of December 31, 2022 in early April 2023.

Consistent with our valuation guidelines, we engaged Kroll to perform appraisals of our real estate assets (each asset individually, a “Real Estate Asset” and collectively, the “Real Estate Assets”) as of the Valuation Date and provided a valuation range for each Real Estate Asset.

In addition, Kroll was engaged to review, and incorporate in its report, our market value estimate regarding other assets, liabilities, and the liquidation value of the outstanding shares of Series A Preferred Stock and Series B Preferred Stock as of the Valuation Date.

Kroll has extensive experience estimating the fair value of commercial real estate.

The method used by Kroll to appraise our real estate assets in the report furnished to the Advisor and the Board by Kroll (the “Kroll Report”) complies with the Institute of Portfolio Alternatives (formerly known as the Investment Program Association) Practice Guideline 2013-01 titled “Valuations of Publicly Registered Non-Listed REITs,” issued April 29, 2013.

The method used by Kroll to appraise the Real Estate Assets in the report furnished to the Advisor and the Board by Kroll (the “Kroll Report”) complies with the Institute of Portfolio Alternatives (formerly known as the Investment Program Association) Practice Guideline 2013-01 titled “Valuations of Publicly Registered Non-Listed REITs,” issued April 29, 2013.

Also, Kroll advised that the scope of work performed was conducted in conformity with the requirements of the Code of Professional Ethics and Standards of Professional Practice of the Appraisal Institute.

Other than its engagement as described above and its engagements to provide certain purchase price allocation and other real estate valuation services, Kroll does not have any direct interests in any transaction with us.

Potential conflicts of interest between Kroll, on one hand and us or the Advisor, on the other hand, may arise as a result of (1) the impact of the findings of Kroll in relation to our real estate assets, or the assets of real estate investment programs sponsored by affiliates of the Advisor, on the value of ownership interests owned by, or incentive compensation payable to, our directors, officers or affiliates and those of the Advisor, or (2) Kroll performing valuation services for other programs sponsored by affiliates of the Advisor, as well as other services for us.

We have engaged Kroll for the past six years to assist in determining our Estimated Per-Share NAV.

For preparing the Kroll Report, we paid Kroll a customary fee for services of this nature, no part of which was contingent relating to the provision of services or specific findings.

Other than its engagement as described herein and its engagements to provide certain purchase price allocation and other real estate valuation services, Kroll does not have any direct interests in any transaction with us.

Potential conflicts of interest between Kroll, on one hand, and us or the Advisor, on the other hand, may arise as a result of (1) the impact of the findings of Kroll in relation to our Real Estate Assets, or the assets of real estate investment programs sponsored by affiliates of the Advisor, on the value of ownership interests owned by, or incentive compensation payable to, directors, officers or affiliates of us and the Advisor, or (2) Kroll performing valuation services for other programs sponsored by affiliates of the Advisor, as well as other services for us.

While we and other programs sponsored by affiliates of the Advisor have engaged and may engage Kroll or its affiliates in the future for valuations and real estate-related services of various kinds, we believe that there are no material conflicts of interest with respect to our engagement of Kroll.

Valuation Methodology

Kroll performed a full valuation of our Real Estate Assets utilizing an income capitalization approach consisting of the Direct Capitalization Method or the Discounted Cash Flow Method and certain other approaches, including the acquisition price, disposition price, and sales comparison approach.

These approaches are commonly used in the commercial real estate industry.

The Estimated Per-Share NAV is comprised of (i) the sum of (A) the estimated value of our real estate assets and (B) the estimated value of our other assets, minus (ii) the sum of (C) the estimated value of our debt and other liabilities, (D) the liquidation value of any outstanding classes of preferred stock, (E) the estimate of the aggregate incentive fees, participations and limited partnership interests held by or allocable to the Advisor, our management or any of their respective affiliates based on our aggregate net asset value based on Estimated Per-Share NAV and payable in our hypothetical liquidation as of December 31, 2020 (which was zero), divided by (iii) our number of shares of common stock outstanding on a fully-diluted basis as of December 31, 2020, which was 94,181,653.

Common shares outstanding on a fully-diluted basis is defined as the sum of shares of common stock, including vested and unvested restricted shares of common stock, (“restricted shares”) and OP Units outstanding, while excluding Class B units.

The Estimated Per-Share NAV does not represent:

(i) the price that our shares may trade for on a national securities exchange or a third party may pay for us, (ii) the amount a stockholder would obtain if he or she tried to sell his or her shares of common stock, or (iii) the amount a stockholder would realize in per share distributions if we sold all of our assets and settled all of our liabilities in a plan of liquidation.

Further, there is no assurance that the methodology used to establish the Estimated Per-Share NAV would be acceptable to the Financial Industry Regulatory Authority for use on customer account statements, or that the Estimated Per-Share NAV will satisfy the applicable annual valuation requirements under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the Code with respect to employee benefit plans subject to ERISA and other retirement plans or accounts subject to Section 4975 of the Code.

The Estimated Per-Share NAV is generally comprised of (i) the sum of (A) the estimated value of the Real Estate Assets and (B) the estimated value of the other assets, minus (ii) the sum of (C) the estimated value of debt and other liabilities (D) the estimate of the aggregate incentive fees, participations and limited partnership interests held by or allocable to the Advisor, our management or any of the respective affiliates based on our aggregate net asset value and payable in our hypothetical liquidation as of the Valuation Date (which was zero as of December 31, 2021), and (E) the liquidation value of the outstanding shares of Series A Preferred Stock and Series B Preferred Stock, divided by (iii) the number of shares of common stock outstanding as of the Valuation Date, which was 99,717,390.

In determining the Estimated Per-Share NAV, the independent directors of the Board also considered the impact of other factors described herein that were not specifically quantified.

Shares of common stock outstanding for these purposes is the sum of shares of common stock outstanding, including vested and unvested restricted shares, and partnership units of our operating partnership designated as “Common OP Units,” excluding performance-based restricted partnership units of our operating partnership designated as “Class B Units” because the Advisor concluded that, in a hypothetical liquidation at such Estimated Per-Share NAV, it may not be entitled to any incentive fees or Class B Units.

The Advisor determined the Estimated Per-Share NAV in a manner consistent with the definition of fair value under U.S.

generally accepted accounting principles set forth in FASB’s Topic ASC 820, Fair Value Measurements and Disclosures.

Limitations of the Estimated Per-Share NAV

The Estimated Per-Share NAV does not represent the:

(i) the price at which shares of our common stock would trade at on a national securities exchange or a third party would pay for them, (ii) the amount stockholders would obtain if they tried to sell their shares of common stock or (iii) the amount stockholders would receive if we liquidated our assets and distributed the proceeds after paying all of our expenses and liabilities.

Also, there is no assurance that the methodology used to establish the Estimated Per-Share NAV would be acceptable to the Financial Industry Regulatory Authority for use on customer account statements, or that the Estimated Per-Share NAV will satisfy the applicable annual valuation requirements under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the Internal Revenue Code of 1986, as amended (the “Code”) with respect to employee benefit plans subject to ERISA and other retirement plans or accounts subject to Section 4975 of the Code.

Further, the Estimated Per-Share NAV was calculated as of a specific date, and the value of shares of common stock will fluctuate over time as a result of, among other things, developments related to individual assets, changes in the real estate and capital markets, acquisitions or dispositions of assets and the distribution of proceeds from the sale of real estate to stockholders.

The Estimated Per-Share NAV as of December 31, 2021 of $15.00, a value within the range determined by Kroll, was unanimously adopted by the independent directors of the Board, who comprise a majority of the Board, with Mr.

Weil abstaining, on March 28, 2022.

The independent directors of the Board based their determination on the Advisor’s recommendation, which was based on the Advisor’s review of the Kroll Report and on the Advisor’s own analysis, estimates and calculations and the fundamentals of the real estate assets.

As part of their determination to approve an Estimated Per-Share NAV, the independent directors considered various factors, including information provided by Kroll, the impact of the Stock

Dividend that was issued in January 2021, the fact that properties held for sale or under contract for sale at December 31, 2020 were valued based on their contract sale prices and without giving consideration to the reinvestment of the sale proceeds, the impact of the COVID-19 pandemic, and the fundamentals of the real estate assets including geographic location, stabilization and credit quality of tenants.

The independent directors of the Board based their conclusions on their review of the Advisor’s analysis and recommendation, the Kroll Report, estimates and calculations and the fundamentals of the Real Estate Assets.

The Board is ultimately and solely responsible for the Estimated Per-Share NAV.

Estimated Per-Share NAV was determined at a moment in time and will likely change over time as a result of changes to the value of individual assets as well as changes and developments in the real estate and capital markets, including changes in interest rates.

As such, stockholders should not rely on the Estimated Per-Share NAV in making a decision to buy or sell shares of common stock pursuant to our DRIP or our SRP, respectively.

In connection with the independent directors of the Board’s determination of Estimated Per-Share NAV, the Advisor concluded that, in a hypothetical liquidation at such Estimated Per-Share NAV, it would not be entitled to any incentive fees or performance-based restricted partnership units of our operating partnership designated as “Class B Units.” The Advisor determined the Estimated Per-Share NAV in a manner consistent with the definition of fair value under GAAP set forth in FASB’s Topic ASC 820, Fair Value Measurements and Disclosures.

As of March 14, 2023 we had 106,566,638 shares of common stock outstanding held by a total of 44,527 stockholders of record.

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The amount of dividends and other distributions payable to our stockholders is determined by the Board and is dependent on a number of factors, including funds available for dividends and other distribution, financial condition, provisions in our Credit Facility or other agreements that may restrict our ability to pay dividends and other distributions, capital expenditure requirements, as applicable, and annual dividends and other distribution requirements needed to maintain our status as a REIT under the Code.

Under our Credit Facility, we will not be able to pay cash distributions on our common stock until we have a combination of cash, cash equivalents and availability for future borrowings under the Revolving Credit Facility totaling at least $100.0 million (giving effect to the aggregate amount of distributions projected to be paid by us during the quarter in which we have elected to commence paying cash distributions on common stock) and our ratio of consolidated total indebtedness to consolidated total asset value (expressed as a percentage) is less than 62.5%.

Under our Credit Facility, we may not pay cash distributions on our common stock until we have a combination of cash, cash equivalents and availability for future borrowings under the Revolving Credit Facility totaling at least $100.0 million (giving effect to the aggregate amount of distributions projected to be paid by us during the quarter in which we have elected to commence paying cash distributions on common stock) and our ratio of consolidated total indebtedness to consolidated total asset value (expressed as a percentage) is less than 62.5%.

As of December 31, 2022, our ratio of consolidated total indebtedness to consolidated total asset value for these purposes was 63.2%.

Thus, our ability to make future cash distributions on our common stock will depend on our future cash flows and indebtedness and may further depend on our ability to obtain additional liquidity, which may not be available on favorable terms, or at all.

The Board may reduce the amount of dividends or other distributions paid or suspend dividends or other distribution payments at any time prior to declaration.

Therefore, dividends and other distribution payments are not assured.

Thus, we did not satisfy these conditions as of December 31, 2022, and our ability to make future cash distributions on our common stock will depend on our future cash flows and indebtedness and may further depend on our ability to obtain additional liquidity, which may not be available on favorable terms, or at all.

Dividends and other distribution payments are not assured.

Any accrued and unpaid dividends payable with respect to our Series A Preferred Stock must be paid upon redemption of those shares.

1 unchanged sentence

— We have not paid our distributions on our common stock in cash since 2020, and there can be no assurance we will pay distributions on our common stock in cash in the future.”

The following table details the tax treatment of the dividends and other distributions paid during the years ended December 31, 2020 and 2019, respectively, retroactively adjusted for the effects of the stock dividends.

All common dividends in the year ended December 31, 2021, and a portion of common dividends issued in the year ended December 31, 2020, were issued as stock dividends, which do not represent taxable dividends to our shareholders for U.S.

federal income tax purposes.

All dividends paid on the Series A Preferred Stock were considered 100% return of capital for income for tax purposes for the years ended December 31, 2021 and 2020.

There were no dividends paid on the Series B Preferred Stock, as the first dividend payment was made in January, 2022.

Year Ended December 31,

Return of capital (1)

100 % $ 0.42 100 % $ 0.83

Capital gain dividend income — % — — % —

Ordinary dividend income — % — — % —

Total 100.0 % $ 0.42 100.0 % $ 0.83

(1) Amount for December 31, 2020 represents actual cash distributions paid to common shareholders during the year ended 2020, but excludes the stock dividends which do not represent taxable dividends to our shareholders for U.S.

federal income tax purposes.

Distributions to Common Stockholders

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Distributions were generally paid by the 5th day following each month end to stockholders of record at the close of business each day during the prior month.

On August 13, 2020, the Board changed our common stock distribution policy in order to preserve our liquidity and maintain additional financial flexibility in light of the continued COVID-19 pandemic and to comply with an amendment to the Credit Facility.

On August 13, 2020, the Board changed our common stock distribution policy in order to preserve our liquidity and maintain additional financial flexibility.

Under the revised policy, distributions authorized by the Board on our shares of common stock, if and when declared, are paid on a quarterly basis in arrears in shares of our common stock valued at our estimated per share net asset value of common stock in effect on the applicable date, based on a single record date to be specified at the beginning of each quarter.

On October 1, 2020 and January 4, 2021, we declared a dividend payable entirely in stock equal to 0.01349 shares of our common stock on each share of our outstanding common stock.

On April 2, 2021, July 1, 2021, October 1, 2021, and January 3, 2022, we declared a dividend payable entirely in stock equal to 0.014655 shares of our common stock on each share of our outstanding common stock.

This amount was based on our prior cash distribution rate of $0.85 per share per annum.

The following table details each stock dividend issued since October 1, 2020.

The Board may further change our common stock distribution policy at any time, further reduce the amount of distributions paid or suspend distribution payments at any time, and therefore distribution payments are not assured.

Stock Dividend Declaration Date Stock Dividend Issue Date Dividend Basis (per share) Applicable NAV (per share) Quarterly Stock Dividend Rate (per share)

October 1, 2020 October 15, 2020 $ 0.85 $ 15.75 0.013492

January 4, 2021 January 15, 2021 $ 0.85 $ 15.75 0.013492

April 2, 2021 April 15, 2021 $ 0.85 $ 14.50 0.014655

July 1, 2021 July 15, 2021 $ 0.85 $ 14.50 0.014655

October 1, 2021 October 15, 2021 $ 0.85 $ 14.50 0.014655

January 3, 2022 January 15, 2022 $ 0.85 $ 14.50 0.014655

April 1, 2022 April 18, 2022 $ 0.85 $ 15.00 0.014167

July 1, 2022 July 15, 2022 $ 0.85 $ 15.00 0.014167

October 3, 2022 October 17, 2022 $ 0.85 $ 15.00 0.014167

January 3, 2023 January 18, 2023 $ 0.85 $ 15.00 0.014167

Dividends to Series A Preferred Stockholders

Dividends on our Series A Preferred Stock accrue in an amount equal to $1.84 per share each year ($0.46 per share per quarter) to Series A Preferred Stockholders, which is equivalent to 7.375% per annum on the $25.00 liquidation preference per share of Series A Preferred Stock.

Dividends on our Series A Preferred Stock are declared quarterly in an amount equal to $1.84 per share each year ($0.46 per share per quarter) to Series A Preferred Stockholders, which is equivalent to 7.375% per annum on the $25.00 liquidation preference per share of Series A Preferred Stock.

Dividends on the Series A Preferred Stock are cumulative and payable quarterly in arrears on the 15th day of January, April, July and October of each year or, if not a business day, the next succeeding business day to holders of record on the close of business on the record date set by our board of directors and declared by us.

Dividends to Series B Preferred Stockholders

Dividends on our Series B Preferred Stock accrue in an amount equal to $1.78 per share each year ($0.45 per share per quarter) to Series B Preferred Stockholders, which is equivalent to 7.125% per annum on the $25.00 liquidation preference per share of Series B Preferred Stock.

Dividends on our Series B Preferred Stock are declared quarterly in an amount equal to $1.78 per share each year ($0.45 per share per quarter) to Series B Preferred Stockholders, which is equivalent to 7.125% per annum on the $25.00 liquidation preference per share of Series B Preferred Stock.

Dividends on the Series B Preferred Stock are cumulative and payable quarterly in arrears on the 15th day of January, April, July and October of each year or, if not a business day, the next succeeding business day to holders of record on the close of business on the record date set by our board of directors and declared by us.

Tax Characteristics of Dividends

All common dividends in the years ended December 31, 2022 and 2021, and a portion of common dividends issued in the year ended December 31, 2020, were issued as stock dividends, which do not represent taxable dividends to shareholders for U.S.

federal income tax purposes.

The cash distributions paid to holders of common stock in the first half of the year ended December 31, 2020 were considered 100% return of capital.

All dividends paid on the Series A Preferred Stock and Series B Preferred Stock (first payment was made in January 2022) were considered 100% return of capital for income for tax purposes for the years ended December 31, 2022, 2021 and 2020.

Sales of Unregistered Securities

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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 5. Market for Registrant’s Common Equity