As filed with the Securities and Exchange Commission on September 15, 2021

Registration No. 333-                    

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-11

FOR REGISTRATION UNDER

THE SECURITIES ACT OF 1933 OF SECURITIES

OF CERTAIN REAL ESTATE COMPANIES

 

 

InPoint Commercial Real Estate Income, Inc.

(Exact Name of Registrant as Specified in Governing Instruments)

 

 

2901 Butterfield Road

Oak Brook, Illinois 60523

(800) 826-8228

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

 

 

Inland InPoint Advisor, LLC

Robert H. Baum

2901 Butterfield Road

Oak Brook, Illinois 60523

(630) 218-4900

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

 

 

Copies to:

 

Marc Tolchin   Rosemarie A. Thurston   Robert K. Smith
Wendy Ruberti   Michael J. Kessler   James V. Davidson
SPCRE InPoint Advisors, LLC   Alston & Bird LLP   Hunton Andrews Kurth LLP
375 Park Avenue, 33rd Floor   1201 W Peachtree St NW   2200 Pennsylvania Avenue NW
New York, New York 10152   Atlanta, Georgia 30309   Washington, DC 20037
Telephone (212) 895-2280   Telephone: (404) 881-4417   Telephone: (202) 955-1500

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

If any of the Securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box:  ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☒333-258802

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box.  ☐

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   ☐      Accelerated filer   ☐
Non-accelerated filer   ☒      Smaller reporting company   ☒
       Emerging growth company   ☒

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 7(a)(2)(B) of the Securities Act.  ☒

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities to be Registered   Proposed Maximum
Aggregate Offering
Price(1) (2) 		  Amount of
Registration Fee

Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share

  $14,375,000   $1,568.32

 

 

(1)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).

(2)

Includes shares that may be issued pursuant to the underwriters’ option to purchase additional shares.

 

 

This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act.

 

 

 

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

This Registration Statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, by InPoint Commercial Real Estate Income, Inc. (the “Registrant”) with the Securities and Exchange Commission (the “SEC”), and hereby incorporates by reference into this Registration Statement the contents of the Registration Statement on Form S-11 (File No. 333-258802), including the preliminary prospectus and the exhibits thereto, initially filed on August 13, 2021, and declared effective on September 15, 2021, as amended by pre-effective amendments thereto (the “Prior Registration Statement”).

EXHIBIT INDEX

The following exhibits are filed as part of this registration statement on Form S-11:

 

Exhibit
Number

  

Description

5.1    Opinion of Venable LLP as to Legality of Securities offered hereby
8.1    Opinion of Alston & Bird LLP with respect to certain Tax Matters
23.1    Consent of Venable LLP (contained in its opinion filed as Exhibit 5.1)
23.2    Consent of Alston & Bird LLP (contained in its opinion filed as Exhibit 8.1)
23.3    Consent of KPMG LLP
24.1    Power of Attorney (included in the signature page to the Prior Registration Statement)

Signatures

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-11 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Village of Oak Brook, State of Illinois on September 15, 2021.

 

INPOINT COMMERCIAL REAL ESTATE INCOME, INC.

 

By:  

/s/ Mitchell A. Sabshon

Name:

  Mitchell A. Sabshon
Title:    Chairman of the Board and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signatures

       

Title

       

Date

/s/ Mitchell A. Sabshon

      Chief Executive Officer, President and Chairman       September 15, 2021
Mitchell A. Sabshon       (Principal Executive Officer)               

*

Donald MacKinnon

           President and Director       September 15, 2021

*

Catherine L. Lynch

      Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)       September 15, 2021

*

Norman A. Feinstein

      Director       September 15, 2021

*

Cynthia Foster Curry

      Director       September 15, 2021

*

Robert N. Jenkins

      Director       September 15, 2021

 

*By:  

/s/ Mitchell A. Sabshon

Mitchell A. Sabshon
Attorney-in-fact

Exhibit 5.1

VENABLE LLP

September 15, 2021

InPoint Commercial Real Estate Income, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

 

  Re:

Rule 462(b) Registration Statement Relating to

Registration Statement on Form S-11 (File No. 333-258802)

Ladies and Gentlemen:

We have served as Maryland counsel to InPoint Commercial Real Estate Income, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of (a) up to 4,025,000 shares (the “Preferred Shares”) of Series A Cumulative Redeemable Preferred Stock, $.001 par value per share (the “Series A Preferred Stock”), of the Company (including up to 525,000 Preferred Shares which the underwriters in the Offering (as defined herein) have the option to purchase solely to cover over-allotments), to be issued by the Company in a public offering (the “Offering”) and (b) the shares (the “Conversion Shares”) of Class I Common Stock, $.001 par value per share (the “Class I Common Stock”), of the Company issuable upon conversion of the Preferred Shares, covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “1933 Act”).

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 (herein collectively referred to as the “Documents”):

1. The Registration Statement and the related form of prospectus included therein in the form in which it was transmitted to the Commission under 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 form of Articles Supplementary of the Company relating to the Series A Preferred Stock (the “Articles Supplementary”) to be filed with the SDAT prior to the issuance of the Preferred Shares, certified as of the date hereof by an officer of the Company;

4. The Bylaws of the Company, certified as of the date hereof by an officer of the Company;

 

InPoint Commercial Real Estate Income, Inc.

September 15, 2021

Page 2

 

5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

6. Resolutions adopted by the Board of Directors of the Company (the “Board”) relating to the sale, issuance and registration of the Preferred Shares and the issuance and registration of the Conversion Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;

7. A certificate executed by an officer of the Company, dated as of the date hereof; and

8. 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 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.

InPoint Commercial Real Estate Income, Inc.

September 15, 2021

Page 3

 

5. Neither the Preferred Shares nor the Conversion Shares will be issued or transferred in violation of any restriction or limitation on transfer and ownership of shares of stock of the Company contained in Article VI of the Charter.

6. Prior to the issuance of the Preferred Shares, the Board or a duly authorized committee thereof will determine, in accordance with the Resolutions and the Charter, the final terms of the Preferred Shares, including the price thereof (the “Corporate Proceedings”).

7. Prior to the issuance of the Preferred Shares, the Articles Supplementary will have been filed with, and accepted for record by, the SDAT.

8. Upon the issuance of any of the Conversion Shares, the total number of shares of Class I Common Stock issued and outstanding will not exceed the total number of shares of Class I Common Stock that the Company is then authorized to issue under the Charter.

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. The issuance of the Preferred Shares has been 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 Shares will be validly issued, fully paid and nonassessable.

3. The issuance of the Conversion Shares has been duly authorized and, when issued and delivered upon conversion of the Preferred Shares in accordance with the Articles Supplementary, the Conversion Shares will be validly issued, fully paid and nonassessable.

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 compliance with any 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 judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.

InPoint Commercial Real Estate Income, Inc.

September 15, 2021

Page 4

 

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 8.1

 

LOGO

The Atlantic Building

950 F Street, NW

Washington, DC 20004-1404

202-239-3300 | Fax: 202-239-3333

September 15, 2021

InPoint Commercial Real Estate Income, Inc.

2901 Butterfield Road

Oak Brook, Illinois

 

  RE:

    InPoint Commercial Real Estate Income, Inc.

    Public Offering of Series A Cumulative Redeemable Preferred Stock

Ladies and Gentlemen:

We are acting as special tax counsel to InPoint Commercial Real Estate Income, Inc., a Maryland corporation (the “Company”), in connection with the registration statement on Form S-11, File No. 333-258802 (as amended, the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the contemplated registration, issuance and sale under the Securities Act of the Company’s Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share (the “Series A Preferred Stock”), together with any additional shares of Series A Preferred Stock that may be issued by the Company pursuant to Rule 462(b) under the Securities Act (as prescribed by the Commission pursuant to the Securities Act) in connection with the offering described in the Registration Statement. This opinion letter is rendered pursuant to Item 16 of Form S-11 and Item 601(b)(8) of Regulation S-K.

You have requested our opinions as to (i) the qualification of the Company as a real estate investment trust (“REIT”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) the accuracy of the discussion of U.S. federal income tax considerations contained under the caption “Material U.S. Federal Income Tax Considerations” in the Registration Statement.

In preparing this opinion letter, we have reviewed the Company’s Articles of Amendment and Restatement, as further amended and restated from time to time, the Registration Statement and such other documents as we have considered relevant to our analysis. In addition, the Company provided us with, and we are relying upon, a certificate (the “Officer’s Certificate”) containing certain factual representations and covenants of an officer of the Company relating to, among other things, the actual and proposed operations of the Company and the entities in which it holds direct or indirect interests. Our opinion letter is based solely on the information and representations in such documents.

 

Alston & Bird LLP

      www.alston.com
Atlanta | Beijing | Brussels | Charlotte | Dallas | Fort Worth | London | Los Angeles | New York | Raleigh | San Francisco | Silicon Valley | Washington, D.C.

Page 2

 

For purposes of this opinion letter, we have assumed (i) the genuineness of all signatures on documents we have examined, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to the original documents of all documents submitted to us as copies, (iv) the conformity, to the extent relevant to our opinions, of final documents to all documents submitted to us as drafts, (v) the authority and capacity of the individual or individuals who executed any such documents on behalf of any person, (vi) due execution and delivery of all such documents by all the parties thereto, (vii) the compliance of each party with all material provisions of such documents, and (viii) the accuracy and completeness of all records made available to us.

For purposes of our opinion, we have not made an independent investigation of the facts, representations, and covenants set forth in the Officer’s Certificate, the Registration Statement, or in any other document. Consequently, we have assumed, and relied on your representations, that the information presented in the Officer’s Certificate, the Registration Statement, and other documents accurately and completely describe all material facts relevant to our opinion. We have assumed that such representations are true without regard to any qualification as to knowledge or belief. Our opinion is conditioned on the continuing accuracy and completeness of 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.

The opinions expressed herein are given as of the date hereof and are based upon the Code, the U.S. Treasury regulations promulgated thereunder, current administrative positions of the U.S. Internal Revenue Service and existing judicial decisions, any of which could be changed at any time, possibly on a retroactive basis. Any such changes could adversely affect the opinions rendered herein. In addition, as noted above, our opinions are based solely on the documents that we have examined and the representations that have been made to us and cannot be relied upon if any of the facts contained in such documents or in such additional information is, or later becomes, inaccurate or if any of the representations made to us are, or later become, inaccurate. Our opinions are limited to the U.S. federal income tax matters specifically covered herein. We have not opined on any other tax consequences to the Company or any other person. Further, we express no opinion with respect to other federal laws or the laws of any other jurisdiction.

Based on the foregoing, we are of the opinion that:

(i)    Commencing with the year ended December 31, 2017, the Company has been organized, and has operated, in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the present and proposed method of operation (as described in the Registration Statement and the Officer’s Certificate) of the Company will permit the Company to continue to so qualify.

Page 3

 

(ii)    The statements under the caption “Material U.S. Federal Income Tax Considerations” in the Registration Statement, to the extent they constitute matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, are correct in all material respects.

The Company’s qualification as a REIT depends on its ongoing satisfaction of the various requirements under the Code relating to, among other things, the nature of the Company’s gross income, the composition of the Company’s assets, the level of distributions to the Company’s shareholders and the diversity of the Company’s ownership, and upon the Company utilizing any and all appropriate “savings provisions” available to the Company under the Code to correct violations of specified REIT qualification requirements of Sections 856 and 857 of the Code. Our opinion set forth above does not foreclose the possibility that the Company may have to utilize one or more of these “savings provisions” in the future, which could require the Company to pay an excise or penalty tax (which could be significant in amount) in order to maintain its REIT qualification. Alston & Bird LLP will not review the Company’s compliance with these requirements on a continuing basis. No assurances can be given that the Company will satisfy these requirements.

Our opinion is not binding on the Internal Revenue Service, and the Internal Revenue Service may disagree with the opinion contained herein.

No opinions other than those expressly contained herein may be inferred or implied. Also, we undertake no obligation to update this opinion letter, or to ascertain after the date hereof whether circumstances occurring after such date may affect the conclusions set forth herein.

This opinion letter 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 letter as Exhibit 8.1 to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act.

 

Sincerely,

/S/ Alston & Bird LLP

ALSTON & BIRD LLP

Exhibit 23.3

Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated March 19, 2021, with respect to the consolidated financial statements and financial statement schedule IV of InPoint Commercial Real Estate Income, Inc., incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.

/s/ KPMG LLP

Chicago, Illinois

September 15, 2021