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Maryland
(State or other jurisdiction of incorporation
or organization) |
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45-3148087
(I.R.S. Employer Identification No.)
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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SEC registration fee
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| | | $ | 36,338.40(1) | | |
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FINRA filing fee
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| | | $ | (2) | | |
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Accounting fees and expenses
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Legal fees and expenses
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Printing expenses
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Miscellaneous
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Total
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Exhibit
No. |
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Exhibit Description
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| 1.1* | | | Form of Underwriting Agreement. | |
| 3.1 | | | Articles of Amendment and Restatement of Ares Commercial Real Estate Corporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015 (File No. 001-35517), filed on March 1, 2016). | |
| 3.2 | | | Amended and Restated Bylaws of Ares Commercial Real Estate Corporation (incorporated by reference to Exhibit 3.2 to the Registrant’s Form S-8 (File No. 333-181077), filed on May 1, 2012). | |
| 4.2* | | | Form of Certificate for Preferred Stock of Ares Commercial Real Estate Corporation. | |
| 4.3* | | | Form of Articles Supplementary with respect to any shares of Preferred Stock. | |
| 4.4* | | | Form of Warrant Agreement. | |
| 4.5* | | | Form of Rights Agreement. | |
| 4.6* | | | Form of Rights Certificate. | |
| 4.7* | | | Form of Indenture. | |
| 4.8* | | | Form of Unit Agreement. | |
| 5.1+ | | | | |
| 5.2+ | | | | |
| 8.1+ | | | | |
| 23.1+ | | | | |
| 23.2+ | | | | |
| 23.3+ | | | | |
| 23.4+ | | | | |
| 24.1+ | | | | |
| 25.1* | | | Statement of Eligibility on Form T-1 of Trustee under the Indenture. | |
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107+
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| | | | ARES COMMERCIAL REAL ESTATE CORPORATION | |
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By:
/s/ Bryan Donohoe
Name: Bryan Donohoe
Title: Chief Executive Officer (Principal Executive Officer) |
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Signature
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Title
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Date
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/s/ Bryan Donohoe
Bryan Donohoe
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Chief Executive Officer
(Principal Executive Officer) |
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June 30, 2022
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/s/ Tae-Sik Yoon
Tae-Sik Yoon
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Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer) |
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June 30, 2022
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/s/ William S. Benjamin
William S. Benjamin
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Chairman, Director
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June 30, 2022
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/s/ Rand S. April
Rand S. April
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Director
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June 30, 2022
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/s/ Michael J Arougheti
Michael J Arougheti
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Director
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June 30, 2022
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/s/ Caroline E. Blakely
Caroline E. Blakely
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Director
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June 30, 2022
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Signature
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Title
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Date
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/s/ William L. Browning
William L. Browning
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Director
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June 30, 2022
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/s/ Edmond N. Moriarty, III
Edmond N. Moriarty, III
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Director
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June 30, 2022
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/s/ Rebecca J. Parekh
Rebecca J. Parekh
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Director
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June 30, 2022
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/s/ James E. Skinner
James E. Skinner
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Director
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June 30, 2022
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Exhibit 5.1
June 30, 2022
Ares Commercial Real Estate Corporation
245 Park Avenue, 42nd Floor
New York, New York 10167
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to Ares Commercial Real Estate Corporation, a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of the following securities having an aggregate initial offering price of up to $1,250,000,000 (collectively, the “Securities”): (a) shares of common stock, $0.01 par value per share (the “Common Stock”); (b) shares of preferred stock, $0.01 par value per share (the “Preferred Stock”); (c) debt securities (the “Debt Securities”); (d) subscription rights to purchase Common Stock (the “Rights”); (e) warrants representing rights to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”); and (f) units comprised of any combination of the foregoing Securities (the “Units”), as set forth in the Prospectus (as defined herein), as supplemented by one or more supplements to the Prospectus.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The above-referenced Registration Statement (the “Registration Statement”) and the form of prospectus included therein (the “Prospectus”), substantially in the form transmitted to the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”);
2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Amended and Restated Bylaws of the Company (the “Bylaws”), certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5. Resolutions adopted by the Board of Directors of the Company (the “Board”) relating to the registration of the Securities (the “Resolutions”), certified as of the date hereof by an officer of the Company;
Ares Commercial Real Estate Corporation
June 30, 2022
Page 2
6. A certificate executed by an officer of the Company, dated as of the date hereof; and
7. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents (other than representations, warranties, statements and information constituting conclusions of law on matters on which we opine) are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The issuance of, and certain terms of, the Securities to be issued by the Company from time to time will be authorized and approved by the Board, or a duly authorized committee thereof, in accordance with the Maryland General Corporation Law, the Charter, the Bylaws and the Resolutions (such approval referred to herein as the “Corporate Proceedings”).
Ares Commercial Real Estate Corporation
June 30, 2022
Page 3
6. Articles Supplementary creating and designating the number of shares and the terms of any class or series of Preferred Stock to be issued by the Company will be filed with and accepted for record by the SDAT prior to the issuance of such Preferred Stock.
7. Upon the issuance of any Securities that are shares of Common Stock (“Common Securities”), including Common Securities which may be issued upon conversion or exercise of any other Securities convertible into or exercisable for Common Securities, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.
8. Upon the issuance of any Securities that are shares of Preferred Stock (“Preferred Securities”), including Preferred Securities which may be issued upon conversion or exercise of any other Securities convertible into or exercisable for Preferred Securities, the total number of shares of Preferred Stock issued and outstanding, and the total number of issued and outstanding shares of the applicable class or series of Preferred Stock designated pursuant to the Charter, will not exceed the total number of shares of Preferred Stock or the number of shares of such class or series of Preferred Stock that the Company is then authorized to issue under the Charter.
9. None of the Securities will be issued, sold or transferred in violation of the restrictions on ownership and transfer set forth in Article VII of the Charter or any comparable provision in the Articles Supplementary creating any class or series of Preferred Securities.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. Upon the completion of all Corporate Proceedings relating to Common Securities, the issuance of the Common Securities will be duly authorized and, when and if issued and delivered against payment therefor in accordance with the Registration Statement, the Resolutions and the Corporate Proceedings, the Common Securities will be validly issued, fully paid and nonassessable.
3. Upon the completion of all Corporate Proceedings relating to Preferred Securities, the issuance of the Preferred Securities will be duly authorized and, when and if issued and delivered against payment therefor in accordance with the Registration Statement, the Resolutions and the Corporate Proceedings, the Preferred Securities will be validly issued, fully paid and nonassessable.
Ares Commercial Real Estate Corporation
June 30, 2022
Page 4
4. Upon the completion of all Corporate Proceedings relating to the Securities that are Debt Securities, the issuance of the Debt Securities will be duly authorized.
5. Upon the completion of all Corporate Proceedings relating to the Securities that are Rights, the issuance of the Rights will be duly authorized.
6. Upon the completion of all Corporate Proceedings relating to the Securities that are Warrants, the issuance of the Warrants will be duly authorized.
7. Upon the completion of all Corporate Proceedings relating to the Securities that are Units, the issuance of the Units will be duly authorized.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or the laws of any other state. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours, | |
/s/ Venable LLP |
Exhibit 5.2
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2049 Century Park East Suite 3700 Los Angeles, CA 90067 United States
+1 310 552 4200
www.kirkland.com |
Facsimile: |
June 30, 2022
Ares Commercial Real Estate Corporation
245 Park Avenue, 42nd Floor
New York, NY 10167
Re: Registration Statement of Ares Commercial Real Estate Corporation on Form S-3
Ladies and Gentlemen:
We are issuing this opinion in our capacity as special counsel to Ares Commercial Real Estate Corporation, a Maryland corporation (the “Company”), in connection with the preparation of the Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) on June 30, 2022 under the Securities Act of 1933, as amended (the “Securities Act”), by the Company. The Registration Statement relates to the offer and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations promulgated under the Securities Act by the Company of the following securities (the “Securities”) of the Company with an aggregate offering price of up to $1,250,000,000 or the equivalent thereof in one or more foreign currencies: (i) common stock, par value $0.01 per share (the “Common Stock”); (ii) preferred stock (the “Preferred Stock”); (iii) debt securities (the “Debt Securities”); (iv) subscription rights to purchase Common Stock (the “Subscription Rights”); (v) warrants representing rights to purchase Common Stock, Preferred Stock or Debt Securities, separately or as units comprised of any combination of the foregoing (the “Warrants”); and (vi) units comprised of a combination of any of the foregoing securities (the “Units”). The offering of the Securities will be as set forth in the prospectus contained in the Registration Statement (the “Prospectus”) and in amounts, at prices and on other terms to be determined by the Company at the time of offering and to be set forth in an amendment or amendments to the Registration Statement and the Prospectus and/or in one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
You have advised us that: (i) the Debt Securities will be issued under one or more indentures (the “Indenture”) between the Company and a trustee named therein (a “Trustee”); (ii) the Warrants will be issued under one or more warrant agreements (the “Warrant Agreements”), to be entered into between the Company and a bank or trust company as warrant agent (the “Warrant Agent”); and (iii) the Subscription Rights will be issued under one or more subscription rights agreements (the “Subscription Rights Agreements”), to be entered into between the Company and a bank or trust company as rights agent (a “Rights Agent”).
For purposes of this letter, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including: (i) the organizational documents of the Company, (ii) minutes and records of the corporate proceedings of the Company and (iii) the Registration Statement and the exhibits thereto.
For purposes of this letter, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto and the due authorization, execution and delivery of all documents by the parties thereto. We have not independently established or verified any facts relevant to the opinions expressed herein, but have relied upon statements and representations of the officers and other representatives of the Company.
Austin Bay Area Beijing Boston Brussels Dallas Hong Kong
Houston London Los Angeles Munich New York Paris Salt Lake City Shanghai Washington, D.C. |
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Ares Commercial Real Estate Corporation June 30, 2022 Page 2 |
We have also assumed that:
(i) | the Registration Statement and any amendments thereto (including post-effective amendments) will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; |
(ii) | a Prospectus Supplement or term sheet will have been prepared and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws; |
(iii) | all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate Prospectus Supplement; |
(iv) | the Securities will be issued and sold in the form and containing the terms set forth in the Registration Statement, the appropriate Prospectus Supplement and, as applicable, the Indenture, Warrant Agreement or Subscription Rights Agreement; |
(v) | at the time of the issuance, sale and delivery of each such Security, the authorization of such Security by the Company will not have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Security; |
(vi) | the Securities offered, as well as the terms of the Indenture, Warrant Agreements and Subscription Rights Agreements, as they will be executed and delivered, do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company; |
(vii) | the Company will have obtained any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities necessary to issue and sell the Securities being offered and to execute and deliver the Indenture, Warrant Agreements and Subscription Rights Agreements; |
(viii) | the Securities offered as well as the terms of the Indentures, Warrant Agreements and Subscription Rights Agreements, as they will be executed and delivered, comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company; |
(ix) | the Indentures and the Trustees will have been qualified under the Trust Indenture Act of 1939, as amended; and |
(x) | a definitive purchase, underwriting or similar agreement (each, a “Purchase Agreement”), if applicable, with respect to any Securities offered or issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto. |
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Ares Commercial Real Estate Corporation June 30, 2022 Page 3 |
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that:
1. | When, as and if (a) the Debt Securities have been duly authorized and duly established in accordance with the applicable Indenture and applicable law, (b) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution and delivery of such Debt Securities (and any required amendment or supplement to the applicable Indenture), (c) the applicable Indenture has been duly executed, attested, issued and delivered by duly authorized officers, and (d) such Debt Securities have been duly executed, authenticated, issued and delivered against payment in accordance with their authorization, the applicable Indenture, the applicable Purchase Agreement and applicable law and authenticated by the Trustee, such Debt Securities will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. |
2. | When, as and if (a) any particular series of Warrants has been duly authorized and duly established in accordance with the applicable Warrant Agreement and applicable law, (b) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution and delivery of such Warrants (and any required amendment or supplement to the applicable Warrant Agreement), and (c) the Warrants have been duly executed, attested, issued and delivered by duly authorized officers against payment therefor in accordance with such authorization, the applicable Warrant Agreement, the applicable Purchase Agreement and applicable law and authenticated by the Warrant Agent, such Warrants (including any Warrants duly executed and delivered upon the exchange or conversion of Warrants that are exchangeable or convertible into another series of Warrants) will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. |
3. | When, as and if (a) any Subscription Rights have been duly authorized and duly established in accordance with the applicable Subscription Rights Agreement and applicable law, (b) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution and delivery of such Subscription Rights (and any required amendment or supplement to the applicable Subscription Rights Agreement), and (c) the Subscription Rights Agreements have been duly executed, attested, issued and delivered by duly authorized officers against payment therefore, if applicable, in accordance with such authorization, the applicable Subscription Rights Agreement, the applicable Purchase Agreement and applicable law and authenticated by the Rights Agent and the rights certificates evidencing the Subscription Rights have been authenticated by the Rights Agent, such Subscription Rights will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. |
4. | When, as and if (a) any Units have been duly authorized and duly established in accordance with applicable law, (b) the appropriate corporate action has been taken by the Company to authorize the form, terms, execution and delivery of such Units, and (c) the Units have been duly executed, attested, issued and delivered by duly authorized officers, such Units will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. |
Our opinions expressed above are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law or judicially developed doctrine in this area (such as substantive consolidation or equitable subordination) affecting the enforcement of creditors’ rights generally, (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing, (iv) public policy considerations which may limit the rights of parties to obtain certain remedies, (v) any requirement that a claim with respect to any security denominated in other than U.S. dollars (or a judgment denominated in other than U.S. dollars in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined in accordance with applicable law, (vi) an order of a governmental authority to limit, delay or prohibit the making of payments outside of the United States or in a foreign currency or currency unit and (vii) any laws except the laws of the State of New York. We advise you that issues addressed by this letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern.
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Ares Commercial Real Estate Corporation June 30, 2022 Page 4 |
We express no opinion with respect to the enforceability of: (i) consents to, or restrictions upon, judicial relief or jurisdiction or venue; (ii) waivers of rights or defenses with respect to stay, extension or usury laws; (iii) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (iv) waivers of broadly or vaguely stated rights; (v) provisions for exclusivity, election or cumulation of rights or remedies; (vi) provisions authorizing or validating conclusive or discretionary determinations; (vii) grants of setoff rights; (viii) provisions for the payment of attorneys’ fees where such payment is contrary to law or public policy; (ix) proxies, powers and trusts; (x) restrictions upon non-written modifications and waivers; (xi) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property; (xii) any provision to the extent it requires any party to indemnify any other person against loss in obtaining the currency due following a court judgment in another currency; and (xiii) provisions for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty. In addition, we express no opinion with respect to (i) whether acceleration of Debt Securities may affect the collectability of that portion of the stated principal amount thereof that might be determined to constitute unearned interest thereon, (ii) compliance with laws relating to permissible rates of interest or (iii) the creation, validity, perfection or priority of any security interest or lien.
To the extent that the obligations of the Company under the Indentures, Warrant Agreements or Subscription Rights Agreements (collectively, the “Securities Agreements”) may be dependent on such matters, we assume for purposes of this opinion that the applicable Trustee, Warrant Agent or Rights Agent (each an “Agent” and collectively, the “Agents”) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that such Agent is duly qualified to engage in the activities contemplated by the applicable Securities Agreements; that each Securities Agreement has been duly authorized, executed and delivered by applicable Agent and constitutes the legally valid and binding obligations of such Agent, enforceable against such Agent in accordance with its terms; that the applicable Agent is in compliance, generally and with respect to acting as an agent under the Securities Agreements with all applicable laws and regulations; and that the applicable Agent has the requisite organizational and legal power and authority to perform its obligations under the applicable Securities Agreements.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.2 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance of the Securities.
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Ares Commercial Real Estate Corporation June 30, 2022 Page 5 |
Our advice on every legal issue addressed in this letter is based exclusively on the internal law of the State of New York, and represents our opinion as to how that issue would be resolved were it to be considered by the highest court in the jurisdiction which enacted such law. The manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. This letter is not intended to guarantee the outcome of any legal dispute which may arise in the future.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. The Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect. We assume no obligation to revise or supplement this opinion should the present the internal law of the State of New York be changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
Sincerely, | |
/s/ Kirkland & Ellis LLP | |
KIRKLAND & ELLIS LLP |
Exhibit 8.1
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601 Lexington Avenue New York, NY 10022 United States
+1 212 446 4800
www.kirkland.com |
Facsimile: |
June 30, 2022
Ares Commercial Real Estate Corporation
245 Park Avenue, 42nd Floor
New York, NY 10167
Re: Certain United States Federal Income Tax Matters
Ladies and Gentlemen:
We have acted as United States special tax counsel to Ares Commercial Real Estate Corporation, a Maryland corporation ( “ACRE”) in connection with the filing of its registration statement on Form S-3 (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) on June 30, 2022, as amended on the date hereof. In connection with the issuance and sale from time to time of certain securities, including common stock of ACRE, par value $0.01 per share as described in the prospectus (the “Prospectus”) included as part of the Registration Statement, we have been asked to provide an opinion regarding certain U.S. federal income tax considerations.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Registration Statement on Form S-3 (and exhibits thereto) such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinion set forth herein. In addition, ACRE has provided us with, and we are relying upon, a certificate containing certain factual representations and covenants of an officer of ACRE (the “Officer’s Certificate”) relating to, among other things, the actual and proposed operations of ACRE and the entities in which it holds, or has held, a direct or indirect interest (collectively, the “Company”). These representations and covenants relate, in some cases, to transactions and investments for which we did not act as the Company’s counsel. For purposes of our opinion, we have not independently verified the statements, representations and covenants set forth in the Officer’s Certificate, the Registration Statement, the Prospectus, or in any other document. We have, consequently, assumed and relied on ACRE’s representation that the statements, representations and covenants presented in the Officer’s Certificate, the Registration Statement, the Prospectus, and other documents, or otherwise furnished to us, accurately and completely describe all material facts relevant to our opinion. We have assumed that such statements, representations and covenants are true without regard to any qualification as to knowledge, belief, intent, or materiality. Our opinion is conditioned on the continuing accuracy and completeness of such facts, statements, representations and covenants. We are not aware of any facts inconsistent with such statements, representations and covenants. Any material change or inaccuracy in the facts referred to, set forth, or assumed herein or in the Officer’s Certificate may affect our conclusions set forth herein.
Beijing
Boston Chicago Dallas Hong Kong Houston London Los Angeles Munich Palo Alto Paris San Francisco Shanghai Washington, D.C. |
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Ares Commercial Real Estate Corporation 245 Park Avenue, 42nd Floor New York, NY 10167 June 30, 2022
Page 2 |
In our review of certain documents in connection with our opinion as expressed below, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic, or electronic copies, and the authenticity of the originals of such copies. Where documents have been provided to us in draft form, we have assumed that the final executed versions of such documents will not differ materially from such drafts.
Our opinion is also based on the correctness of the following assumptions: (i) ACRE and each of the entities comprising the Company has been and will continue to be operated in accordance with the laws of the jurisdiction in which it was formed and in the manner described in the relevant organizational documents, (ii) there will be no changes in the applicable laws of the State of Delaware or of any other jurisdiction under the laws of which any of the entities comprising the Company have been formed, and (iii) each of the written agreements to which the Company is a party has been and will be implemented, construed and enforced in accordance with its terms.
In rendering our opinion, we have considered and relied upon applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”), the United States Treasury regulations promulgated thereunder (the “Regulations”), pertinent judicial authorities, rulings of the Internal Revenue Service (the “IRS”), and such other authorities as we have considered relevant, all as they exist as of the date hereof. It should be noted that the Code, Regulations, judicial decisions, and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is made after the date hereof in any of the foregoing bases for our opinion could affect our conclusions set forth herein. In this regard, an opinion of counsel with respect to an issue represents counsel’s best judgment as to the outcome on the merits with respect to such issue, is not binding on the IRS or the courts, and is not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position if asserted by the IRS.
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Ares Commercial Real Estate Corporation 245 Park Avenue, 42nd Floor New York, NY 10167 June 30, 2022
Page 3 |
Based on and subject to the foregoing, we are of the opinion that:
1. Commencing with ACRE’s taxable year that ended on December 31, 2012, ACRE was organized in conformity with the requirements for qualification as a real estate investment trust (a “REIT”) under the Code, and its actual method of operation through the date of this letter has enabled, and its proposed method of operation will continue to enable, ACRE to meet the requirements for qualification and taxation as a REIT under the Code.
2. Although the discussion set forth in the Prospectus under the heading “Material U.S. Federal Income Tax Considerations” does not purport to discuss all possible United States federal income tax consequences of the ownership and disposition of the Securities, such discussion, though general in nature, constitutes, in all material respects, a fair and accurate summary under current law of the material United States federal income tax consequences of the ownership and disposition of the Securities subject to the qualifications set forth therein and herein.
As noted in the Prospectus, ACRE’s qualification and taxation as a REIT depend upon its ability to meet, through actual operating results, certain requirements relating to the sources of its income, the nature of its assets, distribution levels and diversity of stock ownership, and various other qualification tests imposed under the Code, the results of which are not reviewed by us. Accordingly, no assurance can be given that the actual results of ACRE’s operation for any particular taxable year will satisfy the requirements for taxation as a REIT under the Code.
This opinion is being furnished to you in connection with the Registration Statement. Except as provided in the next paragraph, this opinion may not be relied upon by anyone else without our prior written consent. Except as set forth above, we express no other opinion. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue. This opinion is limited to the U.S. federal income tax issues specifically addressed herein, and no opinion is expressed or should be inferred as to any other U.S. federal income tax issues or the tax consequences under any state, local or foreign tax laws or with respect to other areas of U.S. federal taxation.
We consent to the use of these opinions as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, or the rules and regulations of the Commission thereunder.
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Ares Commercial Real Estate Corporation 245 Park Avenue, 42nd Floor New York, NY 10167 June 30, 2022
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Very truly yours, | |
/s/ Kirkland & Ellis LLP | |
KIRKLAND & ELLIS LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Ares Commercial Real Estate Corporation for the registration of common stock, preferred stock, debt securities, subscription rights, warrants and units and to the incorporation by reference therein of our reports dated February 14, 2022, with respect to the consolidated financial statements of Ares Commercial Real Estate Corporation, and the effectiveness of internal control over financial reporting of Ares Commercial Real Estate Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Los Angeles, California
June 30, 2022
Exhibit 107
Calculation of Filing Fee Tables
FORM S-3
(Form Type)
Ares Commercial
Real Estate
Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered |
Proposed
Maximum Offering Price Per Unit |
Maximum
Aggregate Offering Price(1)(7) (8) |
Fee
Rate |
Amount
of Registration Fee(2) |
Carry Forward Form Type |
Carry Forward File Number |
Carry Forward Initial effective date |
Filing
Fee Previously Paid In Connection with Unsold Securities to be Carried Forward |
||||||||||||||||||||||
Newly Registered Securities | |||||||||||||||||||||||||||||||||
Fees to Be Paid | Equity | Common Stock(3) | 457 | (o) | (1) | (2) | (2) | 0.0000927 | |||||||||||||||||||||||||
Fees to Be Paid | Equity | Preferred Stock(3) | 457 | (o) | (1) | (2) | (2) | 0.0000927 | |||||||||||||||||||||||||
Fees to Be Paid | Debt | Debt Securities(4) | 457 | (o) | (1) | (2) | (2) | 0.0000927 | |||||||||||||||||||||||||
Fees to Be Paid | Other | Subscription Rights(3) | 457 | (o) | (1) | (2) | (2) | 0.0000927 | |||||||||||||||||||||||||
Fees to Be Paid | Other | Warrants(5) | 457 | (o) | (1) | (2) | (2) | 0.0000927 | |||||||||||||||||||||||||
Fees to Be Paid | Other | Units(6) | 457 | (o) | (1) | (2) | (2) | 0.0000927 | |||||||||||||||||||||||||
Fees to Be Paid | Unallocated (Universal) Shelf | - | 457 | (o) | N/A | Unallocated (Universal) Shelf | $ | 392,000,000 | 0.0000927 | $36,338.40 | (9) | ||||||||||||||||||||||
Fees Previously Paid | - | - | - | - | - | - | - | - | |||||||||||||||||||||||||
Carry Forward Securities | |||||||||||||||||||||||||||||||||
Carry Forward Securities | Equity | Common Stock(3) | 415 | (a)(6) | (1) | (2) | (2) | 0.0001364 | S-3 | 333-188496 | 06/17/2013 | ||||||||||||||||||||||
Carry Forward Securities | Equity | Preferred Stock(3) | 415 | (a)(6) | (1) | (2) | (2) | 0.0001364 | S-3 | 333-188496 | 06/17/2013 | ||||||||||||||||||||||
Carry Forward Securities | Debt | Debt Securities(4) | 415 | (a)(6) | (1) | (2) | (2) | 0.0001364 | S-3 | 333-188496 | 06/17/2013 | ||||||||||||||||||||||
Carry Forward Securities | Other | Subscription Rights(3) | 415 | (a)(6) | (1) | (2) | (2) | 0.0001364 | S-3 | 333-188496 | 06/17/2013 | ||||||||||||||||||||||
Carry Forward Securities | Other | Warrants(5) | 415 | (a)(6) | (1) | (2) | (2) | 0.0001364 | S-3 | 333-188496 | 06/17/2013 | ||||||||||||||||||||||
Carry Forward Securities | Other | Units(6) | 415 | (a)(6) | (1) | (2) | (2) | 0.0001364 | S-3 | 333-188496 | 06/17/2013 | ||||||||||||||||||||||
Carry Forward Securities | Unallocated (Universal) Shelf | - | 415 | (a)(6) | N/A | Unallocated (Universal) Shelf | $ | 858,000,000 | 0.0001364 | $ | 117,031.20 | (9) | S-3 | 333-188496 | 06/17/2013 | $ | 117,031.20 | (9) | |||||||||||||||
Total Offering Amounts | $ | 1,250,000,000.00 | 0.0000927 | $ | 115,875.00 | ||||||||||||||||||||||||||||
Total Fees Previously Paid | $ | 117,031.20 | (9) | ||||||||||||||||||||||||||||||
Total Fee Offsets | - | ||||||||||||||||||||||||||||||||
Net Fee Due | $ | 36,338.40 | (9) |
(1) | Subject to Note 8 below, includes an indeterminate number of securities at indeterminate prices that may be issued from time to time in primary offerings or upon exercise, conversion or exchange of any securities registered hereunder that provide for exercise, conversion or exchange. |
(2) | Not specified as to each class of securities to be registered hereunder pursuant to General Instruction II.D. to Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”). The proposed maximum offering price per unit will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder. |
(3) | Subject to Note 8 below, there is being registered hereunder an indeterminate number of shares of common stock or preferred stock, or subscription rights to purchase shares of common stock as may be sold, from time to time separately or as units in combination with other securities registered hereunder. |
(4) | Subject to Note 8 below, with respect to debt securities, excluding accrued interest and accrued amortization of discount, if any, to the date of delivery. If any debt securities are issued at an original issue discount, then the offering price shall be in such greater principal amount as shall result in an aggregate price to investors not to exceed $1,250,000,000. |
(5) | Subject to Note 8 below, there is being registered hereunder an indeterminate number of warrants as may be sold, from time to time separately or as units in combination with other securities registered hereunder, representing rights to purchase common stock, preferred stock or debt securities. |
(6) | Subject to Note 8 below, there is being registered hereunder an indeterminate number of units. Each unit may consist of a combination of any one or more of the securities being registered hereunder and may also include securities issued by third parties, including the U.S. Treasury. |
(7) | Estimated pursuant to Rule 457(o) solely for the purpose of determining the registration fee. The proposed maximum offering price per security will be determined from time to time, by the registrant in connection with the sale by the registrant of the securities registered under this registration statement. |
(8) | In no event will the aggregate offering price of all securities issued from time to time pursuant to this registration statement exceed $1,250,000,000. |
(9) | The Registrant previously registered $1,250,000,000.00 in aggregate offering price of securities pursuant to the Registration Statement on Form S-3 (No. 333-232742) initially filed with the SEC on July 19, 2019, as amended by Amendment No. 1 to Form S-3 on August 2, 2019 (as amended, the “2019 Registration Statement”). The 2019 Registration Statement included $1,250,000,000.00 in aggregate offering price of securities that were previously registered by the Registrant on the Registration Statement on Form S-3 (No. 333-211847) initially filed with the SEC on June 6, 2016, as amended by Amendment No. 1 to Form S-3 on August 25, 2016 (as amended, the “2016 Registration Statement”), that were carried forward pursuant to Rule 415(a)(6). In turn, the 2016 Registration Statement included $1,250,000,000.00 in aggregate offering price of securities that were previously registered by the Registrant on the Registration Statement on Form S-3 (No. 333-188496) initially filed with the SEC on May 9, 2013, as amended by Amendment No. 1 to Form S-3 on June 14, 2013 (as amended, the “2013 Registration Statement”), that were carried forward pursuant to Rule 415(a)(6). The Registrant is carrying forward to this Registration Statement $858,000,000.00 in aggregate offering price of securities that were initially registered under the 2013 Registration Statement, carried forward to the 2016 Registration Statement and the 2019 Registration Statement pursuant to Rule 415(a)(6) and remain unsold (the “Unsold Securities”). The Registrant previously paid a filing fee of $117,031.20 with respect to the Unsold Securities (based on the filing fee rate in effect at the time of the filing of the 2013 Registration Statement). The Registrant may continue to offer and sell the Unsold Securities until the effective date of this Registration Statement. For the reasons stated above, the net registration fee paid in connection with this Registration Statement is $36,338.40. |
Table 2: Fee Offset Claims and Sources
Registrant or Filer Name |
Form or Filing Type |
Initial Filing Date |
Filing Date |
Security Type Associated with Fee Offset Claimed |
Security Title Associated with Fee Offset Claimed |
Unsold Securities Associated with Fee Offset Claimed |
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed | |||||||||||||||
Rules 457(b) and 0-11(a)(2) | ||||||||||||||||||||||
Fee Offset Claims |
- |
- |
- |
- |
||||||||||||||||||
Fee Offset Sources |
- |
- |
- |
- |
- | |||||||||||||||||
Rule 457(p) | ||||||||||||||||||||||
Fee Offset Claims |
- |
- |
- |
- |
- |
- |
- |
- |
- |
|||||||||||||
Fee Offset Sources |
- |
- |
- |
- |
- |
Table 3: Combined Prospectuses
Security Type |
Security Class Title |
Amount of Securities Previously Registered | Maximum Aggregate Offering Price of Securities Previously Registered |
Form Type |
File Number |
Initial Effective Date | ||||||||||||||||||||
- | - | - | - | - | - | - |