Item 1.01 Entry into a Definitive Material Agreement.
Dealer Manager Agreement
On January 23, 2023, American Strategic Investment Co. (the "Company") and New
York City Operating Partnership, L.P. entered into a dealer manager agreement
(the "Dealer Manager Agreement") with B. Riley Securities, Inc. ("B. Riley")
pursuant to which B. Riley is acting as dealer manager for the Rights Offering
(as defined below). Pursuant to the Dealer Manager Agreement, B. Riley will
generally earn a fee of 5% of the gross proceeds the Company receives from the
sale of shares of Common Stock (as defined below) pursuant to the exercise of
Subscription Rights (as defined below); provided that this fee will be reduced
to 1% of the gross proceeds received from the sale of shares of Common Stock on
exercise of Subscription Rights by Bellevue Capital Partners, LLC ("Bellevue")
and its affiliates as well as each of the Company's officers and directors. In
addition, the Company is required to reimburse B. Riley upon request for its
out-of-pocket, accountable, bona fide expenses actually and reasonably incurred
in connection with the services performed in connection with the Rights Offering
including the reimbursement of the reasonable fees and expenses not to exceed
$50,000. The Dealer Management Agreement also contains customary indemnification
provisions.
The foregoing description of the Dealer Manager Agreement does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
full text of the Dealer Manager Agreement filed as Exhibit 1.1 hereto and
incorporated herein by reference.
Amendment to Rights Agreement and Waiver Agreement
On January 23, 2023, the Company entered into Amendment No. 3 to the Amended and
Restated Rights Agreement, dated August 17, 2020 (as amended by Amendment No. 1,
dated August 12, 2021, and Amendment No. 2, dated August 10, 2022, as amended
the "Rights Agreement") (the "Rights Plan Waiver Agreement"). Pursuant to the
Rights Plan Waiver Agreement, the Company exempted any purchases made in
connection with exercising Subscription Rights (as defined below) from the
ownership limits contained in the Rights Agreement.
In addition, on January 23, 2023, the Company entered into the Second Amendment
to the Waiver Agreement, dated February 4, 2022 (as amended by the First
Amendment, dated August 10, 2022) with Bellevue and New York City Advisors, LLC
(the "Advisor") (the "Waiver Agreement"). Pursuant to the Waiver Agreement, the
Company waived the existing ownership limits applicable to purchases of the
Company's Common Stock by Bellevue, the Advisor and each other Excluded Person
(as defined in the Waiver Agreement) including future issuances of Common Stock
issued in lieu of the Company paying cash to the Advisor for asset management
services. In connection with the Waiver Agreement, Bellevue, the Advisor and
each other Excluded Person have granted an irrevocable proxy to the Company that
grants the Company the right to vote any shares of Common Stock directly or
indirectly Beneficially Owned (as defined in the Waiver Agreement) collectively
by Bellevue, the Advisor and each other Excluded Person in excess of 34.9% of
the Company's outstanding shares of Common Stock in the same proportion as all
other shares voted by the Company's stockholders.
The foregoing descriptions of the Rights Plan Waiver Agreement and the Waiver
Agreement do not purport to be complete and are subject to, and qualified in
their entirety by reference to, the full text of the Rights Plan Waiver
Agreement and the Waiver Agreement filed as Exhibits 4.3 and 10.2, respectively,
hereto and incorporated herein by reference.
Item 3.03 Material Modification to Rights of Security Holders.
As discussed in Item 1.01 above, the Company has entered into the Rights Plan
Waiver Agreement. The description of the Rights Plan Waiver Agreement included
in Item 1.01 of this Current Report on Form 8-K is incorporated by reference
into this Item 3.03.
Pursuant to Article VII, Section 7.4 of the Company's charter, the Company's
board of directors determined that it is no longer in the best interests of the
Company to continue to be qualified as a real estate investment trust ("REIT").
The restrictions on ownership and transfer of Shares (as defined the in the
Company's charter) set forth in Article V, Section 5.7 of the Company's charter,
including, without limitation, the "Aggregate Share Ownership Limit," as defined
therein, no longer apply. On January 18, 2023, the Company filed a Certificate
of Notice (the "Certificate of Notice") with the State Department of Assessments
and Taxation of Maryland ("MSDAT") reflecting the board's determination that it
is no longer in the best interests of the Company to continue to qualify as a
REIT and that therefore the Aggregate Share Ownership Limit will no longer be in
effect.
The foregoing summary of the material terms of the Certificate of Notice does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the Certificate of Notice which is attached as Exhibit 4.2 to this
Current Report on Form 8-K and incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On January 18, 2023, the Company filed Articles of Amendment to its charter with
the MSDAT in which the Company changed its name to "American Strategic
Investment Co." from "New York City REIT, Inc." The name change became effective
on January 19, 2023. Trading of the Common Stock on the New York Stock Exchange
under the new name began on January 20, 2023 under the existing trading symbol
"NYC."
The foregoing description of the amendment to the Company's charter does not
purport to be complete and is qualified in its entirety by reference to such
amendment, a copy of which is filed as Exhibit 3.1 to this Current Report on
Form 8-K and is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On January 24, 2023, the Company issued a press release announcing the launch of
the Rights Offering. A copy of the press release is attached to this Current
Report on Form 8-K as Exhibit 99.5 and is incorporated herein by reference.
The information in this Item 7.01 and Exhibit 99.5 attached hereto is being
furnished and shall not be deemed "filed" for the purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or otherwise
subject to the liabilities of that Section, nor shall it be deemed incorporated
by reference into any filing of the Company under the Securities Act of 1933, as
amended, or the Exchange Act, whether made before or after the date hereof,
regardless of any general incorporation language in such filing.
Item 8.01 Other Events.
On January 23, 2023, the Company commenced an offering of shares of its Class A
common stock, par value $0.01 per share (the "Common Stock"), through a rights
offering (the "Rights Offering"). The Company distributed non-transferable
rights (the "Subscription Rights") to its stockholders of record as of 5:00
p.m., Eastern Time, on January 12, 2023 (the "Record Date") to purchase up to
386,100 shares of its Common Stock. The Company will not issue fractional shares
on exercise of the Subscription Rights. Holders of Subscription Rights will only
be entitled to purchase a whole number of shares of Common Stock, rounded down
to the nearest whole number a holder would otherwise be entitled to purchase.
Holders of record must hold at least five shares of Common Stock as of the
Record Date in order to purchase one whole share of Common Stock in the Rights
Offering.
The offering of the Common Stock pursuant to the Rights Offering is being made
pursuant to the Company's existing effective shelf registration statement on
Form S-3 (File No. 333-248121) (the "Registration Statement") on file with the
Securities and Exchange Commission (the "SEC"), including the base prospectus,
dated September 14, 2020 (the "Base Prospectus) contained therein, and a
prospectus supplement specific to the Rights Offering filed with the SEC on
January 23, 2023 (the "Prospectus Supplement" and collectively with the Base
Prospectus, the "Prospectus").
The Company is filing certain ancillary documents as Exhibits 4.1, 99.1, 99.2,
99.3 and 99.4 to this Current Report on Form 8-K for the purpose of
incorporating these items by reference as exhibits to the Prospectus. Also in
connection with the Rights Offering, the Company is filing, (i) as Exhibit 5.1,
the opinion of Venable LLP, counsel to the Company, in connection with the
issuance of the Common Stock issuable in the Rights Offering and (ii) as Exhibit
8.1, the opinion of Proskauer Rose LLP, counsel to the Company, with respect to
certain U.S. federal income tax matters. The foregoing descriptions of Exhibits
4.1, 5.1, 8.1, 99.1, 99.2, 99.3 and 99.4 do not purport to be complete and each
is qualified in its entirety by reference to the full text of such exhibit.
This Current Report on Form 8-K shall not constitute an offer to sell or a
solicitation of an offer to buy any securities of the Company, nor shall there
be any offer, solicitation or sale of any securities of the Company in any state
or jurisdiction in which such offer, solicitation or sale would be unlawful
under the securities laws of such state or jurisdiction.
Forward Looking Statements
The statements in this Current Report on Form 8-K that are not historical facts
may be forward-looking statements. These forward-looking statements involve
risks and uncertainties that could cause actual results or events to be
materially different. The words "may," "will," "seeks," "anticipates,"
"believes," "expects," "estimates," "projects," "plans," "intends," "should" and
similar expressions are intended to identify forward-looking statements,
although not all forward-looking statements contain these identifying words.
These forward-looking statements are subject to a number of risks, uncertainties
and other factors, many of which are outside of the Company's control, which
could cause actual results to differ materially from the results contemplated by
the forward-looking statements. These risks and uncertainties include (a) the
anticipated benefits of the Company's election to terminate its status as a real
estate investment trust, (b) the Company's ability to launch the Rights Offering
as expected, (c) whether stockholders of record will exercise their Subscription
Rights to purchase Common Stock and the amount subscribed, (d) whether the
Company will be able to successfully acquire new assets or businesses, (e) the
potential adverse effects of (i) the global COVID-19 pandemic, including actions
taken to contain or treat COVID-19, (ii) the geopolitical instability due to the
ongoing military conflict between Russia and Ukraine, including related
sanctions and other penalties imposed by the U.S. and European Union, and the
related impact on the Company, the Company's tenants, and the global economy and
financial markets, and (iii) inflationary conditions and higher interest rate
environment, (f) the fact that the Company had to restate or revise certain of
its historical financial statements and has identified a material weakness in
its internal controls over financial reporting and (g) that any potential future
acquisition is subject to market conditions and capital availability and may not
be completed on favorable terms, or at all, as well as those risks and
uncertainties set forth in the Risk Factors section of the Company's Annual
Report on Form 10-K for the year ended December 31, 2021 filed on March 18, 2022
and all other filings with the SEC after that date including but not limited to
the subsequent Quarterly Reports on Form 10-Q, Amendments to Quarterly Reports
on Form 10-Q/A and Current Reports on Form 8-K, as such risks, uncertainties and
other important factors may be updated from time to time in the Company's
subsequent reports. Forward-looking statements speak only as of the date they
are made, and the Company undertakes no obligation to update or revise any
forward-looking statement to reflect changed assumptions, the occurrence of
unanticipated events or changes to future operating results, unless required to
do so by law.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
1.1 Dealer Manager Agreement, dated January 23, 2023, by and among
American Strategic Investment Co., New York City Operating Partnership,
L.P. and B. Riley Securities, Inc.
3.1 Articles of Amendment - Name Change
4.1 Form of Rights Card
4.2 Certificate of Notice of American Strategic Investment Co.
4.3 Third Amendment, dated as of January 23, 2023, to the Amended and
Restated Rights Agreement, as amended by Amendment No. 1, dated August
12, 2021, and Amendment No. 2, dated August 10, 2022, between American
Strategic Investment Co. and Computershare Trust Company, N.A. as
Rights Agent
5.1 Opinion of Venable LLP, dated January 23, 2023
8.1 Opinion of Proskauer Rose LLP, dated January 23, 2023
10.1 Second Amendment to Waiver Agreement, dated January 23, 2023, by and
among American Strategic Investment Co., Bellevue Capital Partners, LLC
and New York City Advisors, LLC
23.1 Consent of Venable LLP (included in Exhibit 5.1)
23.2 Consent of Proskauer Rose LLP (included in Exhibit 8.1)
99.1 Form of Instructions as to Use of Rights Certificates
99.2 Form of Broker Letter to Clients who are Beneficial Holders
99.3 Form of Notice to Foreign Stockholders who are Record Holders
99.4 Form of Beneficial Owner Election Form
99.5 Press Release, dated January 24, 2023, regarding the Rights
Offering
104 Cover Page Interactive Data File - the cover page XBRL tags are
embedded within the Inline XBRL Document.
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