The accompanying Notes to the Consolidated Financial Statements are an integral part of these financial statements.
NEWMARK GROUP, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(In thousands)
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | | | 2022 | | 2021 | | 2020 |
Consolidated net income | | | | | | $ | 112,545 | | | $ | 978,134 | | | $ | 109,277 | |
Foreign currency translation adjustments | | | | | | (11,033) | | | (832) | | | (2,178) | |
Comprehensive income, net of tax | | | | | | 101,512 | | | 977,302 | | | 107,099 | |
Less: Comprehensive income attributable to noncontrolling interests, net of tax | | | | | | 27,495 | | | 227,406 | | | 29,217 | |
Comprehensive income available to common stockholders | | | | | | $ | 74,017 | | | $ | 749,896 | | | $ | 77,882 | |
The accompanying Notes to the Consolidated Financial Statements are an integral part of these financial statements.
NEWMARK GROUP, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(In thousands, except share and per share amounts) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Class A Common Stock | | Class B Common Stock | | Additional Paid-in Capital | | Contingent Class A Common Stock | | Treasury Stock | | Retained Earnings | | Accumulated Other Comprehensive Income (Loss) | | Noncontrolling Interests | | Total | |
January 1, 2020 | $ | 1,608 | | | $ | 212 | | | $ | 318,165 | | | $ | 1,461 | | | $ | (34,894) | | | $ | 313,112 | | | $ | — | | | $ | 340,961 | | | $ | 940,625 | | |
Consolidated net income | — | | | — | | | — | | | — | | | — | | | 80,060 | | | — | | | 29,217 | | | 109,277 | | |
Foreign currency transaction adjustments | — | | | — | | | — | | | — | | | — | | | — | | | (1,776) | | | (402) | | | (2,178) | | |
Cumulative effect of credit loss standard adoption | — | | | — | | | — | | | — | | | — | | | (17,458) | | | — | | | (3,655) | | | (21,113) | | |
Dividends to common stockholders | — | | | — | | | — | | | — | | | — | | | (23,171) | | | — | | | — | | | (23,171) | | |
Dividend on EPUs | — | | | — | | | — | | | — | | | — | | | (9,779) | | | — | | | 9,779 | | | — | | |
Earnings distributions to limited partnership interests and other noncontrolling interests | — | | | — | | | — | | | — | | | — | | | — | | | — | | | (22,365) | | | (22,365) | | |
Grant of exchangeability, redemption and issuance of Class A common stock, 5,840,659 shares | 68 | | | — | | | 24,747 | | | — | | | — | | | — | | | — | | | 3,958 | | | 28,773 | | |
Repurchase of 930,226 shares of Class A Common Stock | — | | | — | | | | | — | | | (5,637) | | | — | | | — | | | (1,180) | | | (6,817) | | |
Issuance and redemption of limited partnership units including contingent units | — | | | — | | | 266 | | | 111 | | | — | | | — | | | — | | | (377) | | | — | | |
Restricted stock units compensation | — | | | — | | | 7,648 | | | — | | | — | | | — | | | — | | | 3,642 | | | 11,290 | | |
Redemption of EPU's | — | | | — | | | — | | | — | | | — | | | — | | | — | | | (93,480) | | | (93,480) | | |
Other | — | | | — | | | 624 | | | — | | | — | | | — | | | (318) | | | — | | | 306 | | |
December 31, 2020 | $ | 1,676 | | | $ | 212 | | | $ | 351,450 | | | $ | 1,572 | | | $ | (40,531) | | | $ | 342,764 | | | $ | (2,094) | | | $ | 266,098 | | | $ | 921,147 | | |
Consolidated net income | — | | | — | | | — | | | — | | | — | | | 750,728 | | | — | | | 227,406 | | | 978,134 | | |
Foreign currency translation adjustments | — | | | — | | | — | | | — | | | — | | | — | | | (637) | | | (195) | | | (832) | | |
Cantor purchase of Cantor units from Newmark Holdings upon redemption/ exchange of FPU's, 1,831,924 units | — | | | — | | | — | | | — | | | — | | | — | | | — | | | 6,898 | | | 6,898 | | |
Dividends to common stockholders | — | | | — | | | — | | | — | | | — | | | (7,631) | | | — | | | — | | | (7,631) | | |
Non-Controlling interest in Deskeo | — | | | — | | | — | | | — | | | — | | | — | | | — | | | 13,464 | | | 13,464 | | |
Issuance of Class A common stock for acquisition | — | | | — | | | 2,577 | | | — | | | — | | | | | — | | | 423 | | | 3,000 | | |
Dividend on EPUs | — | | | — | | | — | | | — | | | — | | | (6,200) | | | — | | | 6,200 | | | — | | |
Earnings distributions to limited partnership interests and other noncontrolling interests | — | | | — | | | — | | | — | | | — | | | — | | | — | | | 1,805 | | | 1,805 | | |
Grant of exchangeability, redemption and issuance of Class A common stock, 27,333,907 shares | 264 | | | — | | | 104,121 | | | — | | | — | | | — | | | — | | | 61,259 | | | 165,644 | | |
Contributions of capital to and from Cantor for equity-based compensation | — | | | — | | | 19,348 | | | — | | | — | | | — | | | — | | | 8,664 | | | 28,012 | | |
Repurchase of 20,237,430 shares of Class A Common Stock | — | | | — | | | — | | | — | | | (249,643) | | | — | | | — | | | (40,541) | | | (290,184) | | |
Restricted stock units compensation | — | | | — | | | 9,951 | | | — | | | — | | | — | | | — | | | 2,181 | | | 12,132 | | |
Redemption of EPU's | — | | | — | | | — | | | — | | | — | | | — | | | — | | | (167,396) | | | (167,396) | | |
December 31, 2021 | $ | 1,940 | | | $ | 212 | | | $ | 487,447 | | | $ | 1,572 | | | $ | (290,174) | | | $ | 1,079,661 | | | $ | (2,731) | | | $ | 386,266 | | | $ | 1,664,193 | | |
Consolidated net income | — | | | — | | | — | | | — | | | — | | | 83,275 | | | — | | | 29,270 | | | 112,545 | | |
Foreign currency translation adjustments | — | | | — | | | — | | | — | | | — | | | — | | | (9,258) | | | (1,775) | | | (11,033) | | |
Cantor purchase of Cantor units from Newmark Holdings upon redemption/ exchange of FPU's, 415,432 units | — | | | — | | | — | | | — | | | — | | | — | | | — | | | 1,582 | | | 1,582 | | |
Dividends to common stockholders | — | | | — | | | — | | | — | | | — | | | (17,930) | | | — | | | — | | | (17,930) | | |
| | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | |
Earnings distributions to limited partnership interests and other noncontrolling interests | — | | | — | | | — | | | — | | | — | | | — | | | — | | | (51,006) | | | (51,006) | | |
Grant of exchangeability, redemption and issuance of Class A common stock, 7,030,716 shares | 71 | | | — | | | 82,161 | | | (1,572) | | | — | | | — | | | — | | | 22,520 | | | 103,180 | | |
Contributions of capital to and from Cantor for equity-based compensation | — | | | — | | | 2,097 | | | — | | | — | | | — | | | — | | | 471 | | | 2,568 | | |
Repurchase of 24,918,482 shares of Class A Common Stock | — | | | — | | | — | | | — | | | (248,438) | | | — | | | — | | | (46,364) | | | (294,802) | | |
| | | | | | | | | | | | | | | | | | |
Restricted stock units compensation | — | | | — | | | 13,004 | | | — | | | — | | | — | | | — | | | 2,564 | | | 15,568 | | |
| | | | | | | | | | | | | | | | | | |
Balance, December 31, 2022 | $ | 2,011 | | | $ | 212 | | | $ | 584,709 | | | $ | — | | | $ | (538,612) | | | $ | 1,145,006 | | | $ | (11,989) | | | $ | 343,528 | | | $ | 1,524,865 | | |
NEWMARK GROUP, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY - (Continued)
| | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, |
| | | | | 2022 | | 2021 | | 2020 |
Dividends declared per share of common stock | | | | | $ | 0.12 | | | $ | 0.04 | | | $ | 0.13 | |
Dividends declared and paid per share of common stock | | | | | $ | 0.10 | | | $ | 0.04 | | | $ | 0.13 | |
The accompanying Notes to the Consolidated Financial Statements are an integral part of these financial statements.
NEWMARK GROUP INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
| | | | | | | | | | | | | | | | | |
| Year Ended December 31, |
| 2022 | | 2021 | | 2020 |
CASH FLOWS FROM OPERATING ACTIVITIES: | | | | | |
Consolidated net income | $ | 112,545 | | | $ | 978,134 | | | $ | 109,277 | |
Adjustments to reconcile net income to net cash provided by (used in) operating activities: | | | | | |
Gains on originated mortgage servicing rights | (130,301) | | | (147,789) | | | (193,913) | |
Depreciation and amortization | 165,816 | | | 121,729 | | | 141,193 | |
Lease impairment | 14,363 | | | — | | | — | |
Nasdaq earn-out recognition | — | | | (1,108,012) | | | (121,906) | |
Provision/(reversals) for/of credit losses on the financial guarantee liability | 1,740 | | | (3,592) | | | 11,632 | |
Provision for doubtful accounts | 6,645 | | | 6,338 | | | 4,668 | |
Equity-based compensation and allocation of net income to limited partnership units and FPUs | 138,312 | | | 356,345 | | | 130,759 | |
Employee loan amortization | 84,116 | | | 79,418 | | | 73,596 | |
Deferred tax (benefit) provision | (24,499) | | | 118,649 | | | 419 | |
Non-cash changes in acquisition related earn-outs | (1,325) | | | 415 | | | (9,916) | |
| | | | | |
Unrealized (gains) on loans held for sale | (712) | | | (21,259) | | | (24,295) | |
Unrealized (gains) on investments | — | | | (27,825) | | | — | |
(Gains) losses from an equity method investment | (2,842) | | | — | | | 11,562 | |
| | | | | |
Realized losses (gains) on marketable securities | 7,470 | | | (24,468) | | | 2,204 | |
Unrealized losses (gains) on marketable securities | 80,657 | | | (77,266) | | | (5,004) | |
Unrealized losses (gains) on non-marketable investments | 12,888 | | | (1,590) | | | 84,186 | |
Change in valuation of derivative asset | — | | | 12,475 | | | 13,680 | |
Loan originations—loans held for sale | (7,823,204) | | | (9,142,148) | | | (12,374,231) | |
Loan sales—loans held for sale | 8,758,049 | | | 9,177,733 | | | 11,527,010 | |
Other | 2,172 | | | 3,610 | | | 3,405 | |
Consolidated net income, adjusted for non-cash and non-operating items | 1,401,890 | | | 300,897 | | | (615,674) | |
Changes in operating assets and liabilities: | | | | | |
Receivables, net | 42,444 | | | (191,271) | | | 123,743 | |
Loans, forgivable loans and other receivables from employees and partners | (131,604) | | | (78,493) | | | (127,917) | |
Right-of-use asset | (42,005) | | | 41,508 | | | 11,192 | |
Receivable from related parties | 8,262 | | | (8,262) | | | — | |
Other assets | 8,714 | | | 8,858 | | | 21,764 | |
Accrued compensation | (102,333) | | | (83,237) | | | (75,369) | |
Right-of-use liability | 51,602 | | | (34,676) | | | (7,029) | |
Accounts payable, accrued expenses and other liabilities | (35,333) | | | (4,399) | | | (82,415) | |
Payables to related parties | (5,294) | | | 366 | | | (25,989) | |
Net cash provided by (used in) operating activities | 1,196,343 | | | (48,709) | | | (777,694) | |
CASH FLOWS FROM INVESTING ACTIVITIES: | | | | | |
Payments for acquisitions, net of cash acquired | (64,247) | | | (69,755) | | | (5,850) | |
Distributions from equity method investment | — | | | — | | | 90 | |
Proceeds from the sale of marketable securities | 437,820 | | | 551,064 | | | 34,738 | |
| | | | | |
| | | | | |
Purchase of marketable securities | (32) | | | — | | | — | |
Purchase of non-marketable investments | (2,723) | | | (8,500) | | | — | |
Purchase of debt securities | — | | | — | | | (12,754) | |
| | | | | |
Purchases of fixed assets | (62,189) | | | (19,721) | | | (19,626) | |
| | | | | |
| | | | | |
Purchase of mortgage servicing rights | — | | | — | | | (200) | |
Net cash provided by (used in) investing activities | 308,629 | | | 453,088 | | | (3,602) | |
CASH FLOWS FROM FINANCING ACTIVITIES: | | | | | |
Proceeds from warehouse facilities | 7,823,204 | | | 9,142,148 | | | 12,374,231 | |
Principal payments on warehouse facilities | (8,736,491) | | | (9,152,656) | | | (11,522,677) | |
Proceeds from the sale of limited partnership interests | — | | | 6,898 | | | — | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
Borrowing of debt | — | | | 55,000 | | | 365,000 | |
Repayment of debt | — | | | (195,000) | | | (275,000) | |
| | | | | |
| | | | | |
Repurchase agreements and securities loaned | (140,007) | | | 106,729 | | | (3,457) | |
Redemption and repurchase of limited partnership interests | — | | | (2,000) | | | — | |
Treasury stock repurchases | (294,802) | | | (290,538) | | | (6,364) | |
Earnings and tax distributions to limited partnership interests and other noncontrolling interests | (80,984) | | | (14,907) | | | (81,879) | |
Dividends to stockholders | (17,933) | | | (7,631) | | | (23,171) | |
Payments on acquisition earn-outs | (6,453) | | | (42,842) | | | (4,793) | |
Deferred financing costs | (5,054) | | | (1,479) | | | (4,067) | |
| | | | | | | | | | | | | | | | | |
Net cash provided by (used in) financing activities | (1,458,520) | | | (396,278) | | | 817,823 | |
Net increase in cash and cash equivalents and restricted cash | 46,452 | | | 8,101 | | | 36,527 | |
Cash and cash equivalents and restricted cash at beginning of period | 266,500 | | | 258,399 | | | 221,872 | |
Cash and cash equivalents and restricted cash at end of period | $ | 312,952 | | | $ | 266,500 | | | $ | 258,399 | |
| | | | | | | | | | | | | | | | | |
| Year Ended December 31, |
| 2022 | | 2021 | | 2020 |
Supplemental disclosures of cash flow information: | | | | | |
Cash paid during the period for: | | | | | |
Interest | $ | 37,814 | | | $ | 36,271 | | | $ | 40,640 | |
Taxes | $ | 99,551 | | | $ | 99,381 | | | $ | 80,288 | |
Supplemental disclosure of non-cash operating, investing and financing activities: | | | | | |
Right-of-use assets and liabilities | $ | 138,799 | | | $ | 497,865 | | | $ | 37,808 | |
Treasury stock repurchase | $ | — | | | $ | — | | | $ | 453 | |
The accompanying Notes to the Consolidated Financial Statements are an integral part of these financial statements.
NEWMARK GROUP, INC.
Notes to the Consolidated Financial Statements
(1) Organization and Basis of Presentation
Newmark Group, Inc. (together with its subsidiaries, “Newmark” or the “Company”), a Delaware corporation, was formed as NRE Delaware, Inc. on November 18, 2016. Newmark changed its name to Newmark Group, Inc. on October 18, 2017. Newmark Holdings, L.P. (“Newmark Holdings”) is a consolidated subsidiary of Newmark for which Newmark is the general partner. Newmark and Newmark Holdings jointly own Newmark Partners, L.P. (“Newmark OpCo”), the operating partnership. Newmark is a leading commercial real estate services firm. Newmark offers a diverse array of integrated services and products designed to meet the full needs of both real estate investors/owners and occupiers. Newmark’s investor/owner services and products include capital markets, which consists of investment sales, debt and structured finance and loan sales, agency leasing, property management, valuation and advisory, commercial real estate due diligence consulting and advisory services and Government Sponsored Enterprise (“GSE”) lending and loan servicing, mortgage brokerage and equity-raising. Newmark’s occupier services and products include tenant representation, real estate management technology systems, workplace and occupancy strategy, global corporate consulting services, project management, lease administration and facilities management. Newmark's global flexible workspace platform, which operates under the names Knotel and Deskeo, is a product that is offered to owners and investors. Newmark enhances these services and products through innovative real estate technology solutions and data analytics that enable clients to increase their efficiency and profits by optimizing their real estate portfolio. Newmark has relationships with many of the world’s largest commercial property owners, real estate developers and investors, as well as Fortune 500 and Forbes Global 2000 companies.
Nasdaq Monetization Transactions
On June 28, 2013, BGC Partners, Inc. ("BGC") had sold certain assets of its on-the-run, electronic benchmark U.S. Treasury platform (“eSpeed”) to Nasdaq, Inc. ("Nasdaq"). The total consideration received in the transaction included $750.0 million in cash paid upon closing and an earn-out of up to 14,883,705 shares of Nasdaq shares to be paid ratably over 15 years, provided that Nasdaq, as a whole, produces at least $25.0 million in consolidated gross revenues each year (the “Nasdaq Earn-out”). The remaining rights under the Nasdaq Earn-out were transferred to Newmark on September 28, 2017. From September of 2017 through June of 2021, Newmark received 10.2 million shares of Nasdaq. From January of 2018 to March of 2022, Newmark sold 7.6 million shares of Nasdaq and delivered 2.6 million shares of Nasdaq to the Royal Bank of Canada ("RBC"), and recognized $1,474.2 million of realized gains and dividend income. Newmark did not hold any Nasdaq shares as of December 31, 2022. See below for further discussion and Note 7 — “Marketable Securities” for additional information.
Exchangeable Preferred Partnership Units and Nasdaq Forward Contracts
On June 18, 2018 and September 26, 2018, Newmark OpCo issued approximately 175.0 million and 150.0 million of exchangeable preferred partnership units (“EPUs”), respectively, in private transactions to RBC (together the “Newmark OpCo Preferred Investment”). Newmark received $266.1 million of cash in 2018 with respect to these transactions. The EPUs were issued in four tranches and were separately convertible by either RBC or Newmark into a fixed number of shares of Newmark Class A common stock, subject to a revenue hurdle in each of the fourth quarters of 2019 through 2022 for each of the respective four tranches. The ability to convert the EPUs into Newmark Class A common stock was subject to the special purpose vehicle's (the “SPVs”) option to settle the postpaid forward contracts as described below. As the EPUs represented equity ownership of a consolidated subsidiary of Newmark, they were included in “Noncontrolling interests” on the accompanying consolidated balance sheets and consolidated statements of changes in equity. The EPUs were entitled to a preferred payable-in-kind dividend, which was recorded as accretion to the carrying amount of the EPUs through Retained earnings on the accompanying consolidated statements of changes in equity and were reductions to “Net income (loss) available to common stockholders” for the purpose of calculating earnings per share.
Contemporaneously with the issuance of the EPUs, a SPV that is a consolidated subsidiary of Newmark entered into variable postpaid forward contracts with RBC (together, the “Nasdaq Forwards”). The SPV was an indirect subsidiary of Newmark whose sole assets were the Nasdaq Earn-outs for 2019 through 2022. Each of the Nasdaq Forwards provided the SPV the option to settle using up to 992,247 Nasdaq shares, to be received by the SPV pursuant to the Nasdaq Earn-out shares to be received (see Note 7 — “Marketable Securities”), or Newmark Class A common stock, in exchange for either cash or redemption of the EPUs, notice of which was to be provided to RBC prior to November 1 of each year from 2019 through 2022.
In September 2020, the SPV notified RBC of its decision to settle the second Nasdaq Forward using the Nasdaq shares the SPV received in November 2020 in exchange for the second tranche of the EPUs, which resulted in a payable to RBC that was settled upon receipt of Nasdaq Earn-out shares. The fair value of the Nasdaq common shares that Newmark received was
$121.9 million. On November 30, 2020, Newmark settled the second Nasdaq Forward 741,505 Nasdaq shares, with a fair value of $93.5 million and Newmark retained 250,742 Nasdaq shares.
In September 2019, the SPV notified RBC of its decision to settle the first Nasdaq Forward using the Nasdaq shares the SPV received in November 2019 in exchange for the first tranche of the EPUs, which resulted in a payable to RBC that was settled upon receipt of Nasdaq Earn-out shares. The fair value of the Nasdaq shares that Newmark received was $98.6 million. On December 2, 2019, Newmark settled the first Nasdaq forward contract with 898,685 Nasdaq shares, with a fair value of $93.5 million and Newmark retained 93,562 Nasdaq shares.
Acceleration of Nasdaq Earn-out
On February 2, 2021, Nasdaq announced that it entered into a definitive agreement to sell its U.S. fixed income business to Tradeweb. On June 25, 2021, Nasdaq announced the close of the sale of its U.S. fixed income business, which accelerated Newmark’s receipt of Nasdaq shares. Newmark received 6,222,340 Nasdaq shares, with a fair value of $1,093.9 million based on the closing price on June 30, 2021 included in “Other (loss) income, net” for the year ended December 31, 2021.
On June 25, 2021, the SPV notified RBC of its decision to settle the third and fourth Nasdaq Forwards using the Nasdaq shares the SPV received on June 25, 2021. On July 2, 2021, Newmark settled the third and the fourth Nasdaq Forwards with 944,329 Nasdaq shares, with a fair value of $166.0 million based on the closing price of June 30, 2021.
2021 Equity Event and Share Count Reduction
In connection with the acceleration of the Nasdaq Earn-out, on June 28, 2021, the Compensation Committee of Newmark’s Board of Directors (the "Compensation Committee") approved a plan to expedite the tax deductible exchange and redemption of a substantial number of limited partnership units held by partners of the Company (the "2021 Equity Event"). The 2021 Equity Event also accelerated certain compensation expenses resulting in $428.6 million of compensation charges. These charges, along with the use of $101.0 million of net deferred tax assets, offset a significant percentage of the Company's taxes related to the Nasdaq Earn-out. These partnership units were settled using a $12.50 share price. In July 2021, the Compensation Committee approved increasing to $13.01 the price to settle certain units.
Some of the key components of the 2021 Equity Event are as follows:
•8.3 million and 8.0 million compensatory limited partnership units, respectively, of Newmark Holdings and BGC Holdings, L.P. ("BGC Holdings") held by the Company's partners who are employees were redeemed or exchanged.
•23.2 million and 17.4 million compensatory limited partnership units, respectively, of Newmark Holdings and BGC Holdings held by the Company's partners who are independent contractors were redeemed or exchanged. The Company also accelerated the payment of related withholding taxes to them with respect to their Newmark units. Independent contractors received one BGC Class A common share for each redeemed non-preferred BGC unit or cash and are responsible for paying any related withholding taxes.
•Partners with nonexchangeable non-preferred compensatory units exchanged or redeemed in connection with the 2021 Equity Event generally received restricted Class A common shares of Newmark and/or BGC to the extent tax deductible. A portion of the BGC Class A common shares received by independent contractors were unrestricted to facilitate their payment of withholding taxes.
•The issuance of Newmark Class A common stock related to the 2021 Equity Event reflected the June 30, 2021 exchange ratio of 0.9403.
•Newmark Holdings and BGC Holdings limited partnership interests with rights to convert into HDUs for cash were also redeemed in connection with the 2021 Equity Event.
See Note 27 — "Related Party Transactions" for the transactions with the Company's executive officers in connection with the 2021 Equity Event.
(a) Basis of Presentation
The accompanying consolidated financial statements have been prepared pursuant to the rules and regulations of the U.S. Securities and Exchange Commission and in conformity with accounting principles generally accepted in the U.S. (“U.S. GAAP”).
“Equity-based compensation and allocations of net income to limited partnership units and founding/working partner units (“FPUs”)” reflects the following items related to cash and equity-based compensation:
•Charges with respect to the grant of shares of common stock or limited partnership units, such as HDUs, including in connection with the redemption of non-exchangeable limited partnership units, including PSUs;
•Charges with respect to grants of exchangeability, such as the right of holders of limited partnership units with no capital accounts, such as PSUs, to exchange the units into shares of common stock, or HDUs, as well as the cash paid in the settlement of the related exchangeable preferred units to pay withholding taxes owed by the unit holder upon such exchange;
•Preferred units granted in connection with the grant of certain limited partnership units, such as PSUs, that may be granted exchangeability to cover the withholding taxes owed by the unit holder, rather than issuing the gross amount of shares to employees, subject to cashless withholding of shares to pay applicable withholding taxes;
•Charges related to the amortization of RSUs and REUs; and
•Allocations of net income to limited partnership units and FPUs, including the Preferred Distribution (as hereinafter defined).
Intercompany balances and transactions within Newmark have been eliminated. Transactions between Cantor Fitzgerald, L.P. ("Cantor") and Newmark pursuant to service agreements with Cantor (see Note 27 — “Related Party Transactions”), representing valid receivables and liabilities of Newmark which are periodically cash settled, have been included on the accompanying consolidated financial statements as either receivables from or payables to related parties.
Newmark receives administrative services to support its operations, and in return, Cantor allocates certain of its expenses to Newmark. Such expenses represent costs related, but not limited to, treasury, legal, accounting, information technology, payroll administration, human resources, incentive compensation plans and other services. These costs, together with an allocation of Cantor's overhead costs, are included as expenses on the accompanying consolidated statements of operations. Where it is possible to specifically attribute such expenses to activities of Newmark, these amounts have been expensed directly to Newmark. Allocation of all other such expenses is based on a services agreement with Cantor which reflects the utilization of service provided or benefits received by Newmark during the periods presented on a consistent basis, such as headcount, square footage, revenue, etc. Management believes the assumptions underlying the stand-alone financial statements, including the assumptions regarding allocated expenses, reasonably reflect the utilization of services provided to or the benefit received by Newmark during the periods presented. However, these shared expenses may not represent the amounts that would have been incurred had Newmark operated independently from Cantor. Actual costs that would have been incurred if Newmark had performed the services itself would depend on multiple factors, including organizational structure and strategic decisions in various areas, including information technology and infrastructure (see Note 27 — “Related Party Transactions” for an additional discussion of expense allocations).
Transfers of cash, both to and from Cantor, as well as amounts due to Newmark from BGC are included in “Receivables from related parties” or “Payables to related parties” on the accompanying consolidated balance sheets and as part of the change in payments to and borrowings from related parties in the financing section prior to the Spin-Off and in the operating section after the Spin-Off on the accompanying consolidated statements of cash flows.
The income tax provision on the accompanying consolidated statements of operations and consolidated statements of comprehensive income has been calculated as if Newmark had been operating on a stand-alone basis and filed separate tax returns in the jurisdictions in which it operates. Prior to the Spin-Off, Newmark’s operations had been included in the BGC U.S. federal and state tax returns or separate non-U.S. jurisdictions tax returns. As Newmark operations in many jurisdictions were unincorporated commercial units of BGC and its subsidiaries, stand-alone tax returns have not been filed for the operations in these jurisdictions.
The accompanying consolidated financial statements contain all normal and recurring adjustments that, in the opinion of management, are necessary for a fair presentation of the accompanying consolidated balance sheets, consolidated statements of operations, consolidated statements of comprehensive income, consolidated statements of cash flows and consolidated statements of changes in equity of Newmark for the periods presented.
(b) Recently Adopted Accounting Pronouncements
In December 2019, the FASB issued ASU No. 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes. The ASU is part of the FASB’s simplification initiative, and it is expected to reduce cost and complexity related to accounting for income taxes by eliminating certain exceptions to the guidance in ASC 740, Income Taxes related to the approach for intraperiod tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences. The new guidance also simplifies aspects of the accounting for franchise taxes and enacted changes in tax laws or rates, and clarifies the accounting for transactions that result in a step-up in the tax basis of goodwill. Newmark adopted the standard on the required effective date beginning January 1, 2021 and, with certain exceptions, it was applied prospectively. The adoption of this guidance did not have a material impact on the accompanying consolidated financial statements.
In January 2020, the FASB issued ASU No. 2020-01, Investments—Equity Securities (Topic 321), Investments—Equity Method and Joint Ventures (Topic 323), and Derivatives and Hedging (Topic 815)—Clarifying the Interactions between Topic 321, Topic 323, and Topic 815 (a consensus of the FASB Emerging Issues Task Force). These amendments improve previous guidance by reducing diversity in practice and increasing comparability of the accounting for the interactions between these codification topics as they pertain to certain equity securities, investments under the equity method of accounting and forward contracts or purchased options to purchase securities that, upon settlement of the forward contract or exercise of the purchased option, would be accounted for under the equity method of accounting or the fair value option. Newmark adopted the standard on the required effective date beginning January 1, 2021 on a prospective basis. The adoption of this guidance did not have a material impact on the accompanying consolidated financial statements.
In October 2020, the FASB issued ASU No. 2020-10, Codification Improvements. The standard amends the Codification by moving existing disclosure requirements to (or adding appropriate references in) the relevant disclosure sections. The ASU also clarifies various provisions of the Codification by amending and adding new headings, cross-referencing, and refining or correcting terminology. Newmark adopted the standard on the required effective date beginning January 1, 2021 and was applied using a modified retrospective method of transition. The adoption of this guidance did not have a material impact on the accompanying consolidated financial statements.
In August 2020, the FASB issued ASU No. 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity. The standard is expected to reduce complexity and improve comparability of financial reporting associated with accounting for convertible instruments and contracts in an entity’s own equity. The ASU also enhances information transparency by making targeted improvements to the related disclosures guidance. Additionally, the amendments affect the diluted EPS calculation for instruments that may be settled in cash or shares and for convertible instruments. Newmark adopted the standard on the required effective date beginning January 1, 2022, and it was applied using a modified retrospective method of transition. The adoption of this guidance did not have a material impact on the accompanying consolidated financial statements.
In March 2020, the FASB issued ASU No. 2020-04, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting. The guidance is designed to provide relief from the accounting analysis and impacts that may otherwise be required for modifications to agreements (e.g., loans, debt securities, derivatives, and borrowings) necessitated by reference rate reform as entities transition away from LIBOR and other interbank offered rates to alternative reference rates. This ASU also provides optional expedients to enable companies to continue to apply hedge accounting to certain hedging relationships impacted by reference rate reform. Application of the guidance is optional and only available in certain situations. The ASU is effective upon issuance and generally can be applied through December 31, 2022. In January 2021, the FASB issued ASU No. 2021-01, Reference Rate Reform (Topic 848): Scope. The amendments in this standard are elective and principally apply to entities that have derivative instruments that use an interest rate for margining, discounting, or contract price alignment that is modified as a result of reference rate reform (referred to as the “discounting transition”). The standard expands the scope of ASC 848, Reference Rate Reform and allows entities to elect optional expedients to derivative contracts impacted by the discounting transition. Similar to ASU No. 2020-04, provisions of this ASU are effective upon issuance and generally can be applied through December 31, 2022. During the first quarter of 2022, Newmark elected to apply the practical expedients to modifications of qualifying contracts as continuation of the existing contract rather than as a new contract. The adoption of the new guidance did not have a material impact on the accompanying consolidated financial statements.
In November 2021, the FASB issued ASU No. 2021-10, Government Assistance (Topic 832): Disclosures by Business Entities about Government Assistance. The standard requires business entities to make annual disclosures about transactions
with a government they account for by analogizing to a grant or contribution accounting model. The guidance is aimed at increasing transparency about government assistance transactions that are not in the scope of other U.S. GAAP guidance. The ASU requires disclosure of the nature and significant terms and considerations of the transactions, the accounting policies used and the effects of those transactions on an entity’s financial statements. The new standard became effective for Newmark’s financial statements issued for annual reporting periods beginning on January 1, 2022 and will be applied prospectively. The adoption of this guidance did not have an impact on the accompanying consolidated financial statements.
(c) New Accounting Pronouncements
In October 2021, the FASB issued ASU No. 2021-08, Business Combinations (Topic 805): Accounting for Contract Assets and Contract Liabilities from Contracts with Customers. The standard improves the accounting for acquired revenue contracts with customers in a business combination by addressing diversity in practice and inconsistency related to the recognition of an acquired contract liability, as well as payment terms and their effect on subsequent revenue recognized by the acquirer. The ASU requires companies to apply guidance in ASC 606, Revenue from Contracts with Customers, to recognize and measure contract assets and contract liabilities from contracts with customers acquired in a business combination, and, thus, creates an exception to the general recognition and measurement principle in ASC 805, Business Combinations. The new standard became effective for Newmark beginning January 1, 2023, and will be applied prospectively for business combinations occurring on or after the effective date. The adoption of this guidance is not expected to have a material impact on the accompanying consolidated financial statements.
In March 2022, the FASB issued ASU No. 2022-02, Financial Instruments—Credit Losses (Topic 326): Troubled Debt Restructurings and Vintage Disclosures. The guidance is intended to improve the decision usefulness of information provided to investors about certain loan refinancings, restructurings, and write-offs. The standard eliminates the recognition and measurement guidance on troubled debt restructurings (“TDRs”) for creditors that have adopted ASC 326, Financial Instruments — Credit Losses and requires them to make enhanced disclosures about loan modifications for borrowers experiencing financial difficulty. The new guidance also requires public business entities to present current-period gross write-offs (on a current year-to-date basis for interim-period disclosures) by year of origination in their vintage disclosures. The new standard became effective for Newmark beginning January 1, 2023. The guidance for recognition and measurement of TDRs will be applied using a prospective transition method, and the amendments related to disclosures will be applied prospectively. The adoption of this guidance is not expected to have a material impact on the accompanying consolidated financial statements.
In December 2022, the FASB issued ASU No. 2022-06, Reference Rate Reform (Topic 848): Deferral of the Sunset Date of Topic 848. ASU No. 2020-04, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting provided optional guidance to ease the potential burden in accounting for (or recognizing the effects of) reference rate reform on financial reporting. The ASU was effective upon issuance and generally could be applied through December 31, 2022. Because the current relief in ASC 848, Reference Rate Reform may not cover a period of time during which a significant number of modifications may take place, the amendments in ASU No. 2022-06 defer the sunset date from December 31, 2022 to December 31, 2024, after which entities will no longer be permitted to apply the relief in ASC 848. Management is currently evaluating the impact of the new standard on the accompanying consolidated financial statements.
(2) Limited Partnership Interests in Newmark Holdings and BGC Holdings
Newmark is a holding company with no direct operations and conducts substantially all of its operations through its operating subsidiaries. Virtually all of Newmark’s consolidated net assets and net income are those of consolidated variable interest entities. Newmark Holdings is a consolidated subsidiary of Newmark for which Newmark is the general partner. Newmark and Newmark Holdings jointly own Newmark OpCo, the operating partnership. In connection with the Separation and BGC Holdings Distribution, holders of BGC Holdings partnership interests received partnership interests in Newmark Holdings, described below (see Note 27 — “Related Party Transactions”). These collectively represent all of the “limited partnership interests” in BGC Holdings and Newmark Holdings.
As a result of the Separation, the limited partnership interests in Newmark Holdings were distributed to the holders of limited partnership interests in BGC Holdings, whereby each holder of BGC Holdings limited partnership interests at that time received a corresponding Newmark Holdings limited partnership interest, determined by the contribution ratio (as hereafter defined), which was equal to a BGC Holdings limited partnership interest multiplied by one divided by 2.2 (the “contribution ratio”), divided by the exchange ratio (which is the ratio by which a Newmark Holdings limited partnership interest can be exchanged for a number of shares of Newmark Class A common stock (the “exchange ratio”)). Initially, the exchange ratio equaled one, so that each Newmark Holdings limited partnership interest was exchangeable for one share of Newmark Class A common stock; however, such exchange ratio is subject to adjustment. For reinvestment, acquisition or other purposes,
Newmark may determine on a quarterly basis to distribute to its stockholders a smaller percentage of its income than Newmark Holdings distributes to its equity holders (excluding tax distributions from Newmark Holdings) of the cash that it received from Newmark OpCo. In such circumstances, the Separation and Distribution Agreement provides that the exchange ratio will be reduced to reflect the amount of additional cash retained by Newmark as a result of the distribution of such smaller percentage, after the payment of taxes. As of December 31, 2022, the exchange ratio equaled 0.9303.
Redeemable Partnership Interests
Founding/working partners have limited partnership interests (“FPUs”) in BGC Holdings and Newmark Holdings. Newmark accounts for FPUs outside of permanent capital as “Redeemable partnership interests,” on the accompanying consolidated balance sheets. This classification is applicable to FPUs because these units are redeemable upon termination of a partner, including a termination of employment, which can be at the option of the partner and not within the control of the issuer.
FPUs are held by limited partners who are primarily employees of BGC and generally receive quarterly allocations of net income. Upon termination of employment or otherwise ceasing to provide substantive services, the FPUs are generally redeemed, and the unit holders are no longer entitled to participate in the quarterly allocations of net income. These quarterly allocations of net income are contingent upon services being provided by the unit holder and are reflected as a component of compensation expense under “Equity-based compensation and allocations of net income to limited partnership units and FPUs” on the accompanying consolidated statements of operations to the extent they relate to FPUs held by Newmark employees. There is no compensation expense related to FPUs held by BGC employees.
Limited Partnership Units
Certain employees of Newmark hold limited partnership interests in Newmark Holdings and BGC Holdings (e.g., REUs, RPUs, PSUs, PSIs, HDUs, and LPUs, collectively the “limited partnership units”).
Prior to the Separation, certain employees of both BGC and Newmark generally received limited partnership units in BGC Holdings. As a result of the Separation, these employees were distributed limited partnership units in Newmark Holdings equal to a BGC Holdings limited partnership unit multiplied by the contribution ratio. In addition, in the BGC Holdings Distribution, these employees also received additional limited partnership units in Newmark Holdings. Subsequent to the Separation, Newmark employees generally have been granted limited partnership units in Newmark Holdings.
Generally, such limited partnership units receive quarterly allocations of net income and generally are contingent upon services being provided by the unit holders. As prescribed in U.S. GAAP guidance, prior to the Spin-Off, the quarterly allocations of net income on such limited partnership units were reflected as a component of compensation expense under “Equity-based compensation and allocations of net income to limited partnership units and FPUs” on the accompanying consolidated statements of operations. Following the Spin-Off, the quarterly allocations of net income on BGC Holdings and Newmark Holdings limited partnership units held by Newmark employees are reflected as a component of compensation expense under “Equity-based compensation and allocations of net income to limited partnership units and FPUs” on the accompanying consolidated statements of operations, and the quarterly allocations of net income on Newmark Holdings limited partnership units held by BGC employees are reflected as a component of “Net income (loss) attributable to noncontrolling interests” on the accompanying consolidated statements of operations. From time to time, Newmark issues limited partnership units as part of the consideration for acquisitions.
Certain of these limited partnership units held by Newmark and BGC employees entitle the holders to receive post-termination payments equal to the notional amount of the units in four equal yearly installments after the holder’s termination. These limited partnership units are accounted for as post-termination liability awards and are included on the accompanying consolidated balance sheets as part of "Accrued compensation", and in accordance with U.S. GAAP guidance, Newmark records compensation expense for the awards based on the change in value at each reporting date on the accompanying consolidated statements of operations as part of “Equity-based compensation and allocations of net income to limited partnership units and FPUs.”
Certain Newmark employees hold preferred partnership units (“Preferred Units”). Each quarter, the net profits of Newmark Holdings are allocated to such units at a rate of either 0.6875% (which is 2.75% per calendar year) or such other amount as set forth in the award documentation (the “Preferred Distribution”). These allocations are deducted before the calculation and distribution of the quarterly partnership distribution for the remaining partnership units and are generally contingent upon services being provided by the unit holder. The Preferred Units are not entitled to participate in partnership distributions other than with respect to the Preferred Distribution. Preferred Units may not be made exchangeable into Newmark’s Class A common stock and are only entitled to the Preferred Distribution, and accordingly are not included in Newmark’s fully diluted share count. The quarterly allocations of net income on Preferred Units are reflected in compensation
expense under “Equity-based compensation and allocations of net income to limited partnership units and FPUs” on the accompanying consolidated statements of operations. After deduction of the Preferred Distribution, the remaining partnership units generally receive quarterly allocation of net income based on their weighted-average pro rata share of economic ownership of the operating subsidiaries. In addition, Preferred Units are granted in connection with the grant of certain limited partnership units, such as PSUs, that may be granted exchangeability to cover the withholding taxes owed by the unit holder, rather than issuing the gross amount of shares to employees, subject to cashless withholding of shares to pay applicable withholding taxes.
Certain Newmark employees hold non-distribution earning units (e.g. NPSUs and NREUs, collectively “N Units”) that do not participate in quarterly partnership distributions and are not allocated any items of profit or loss. N Units become distribution earning limited partnership units, ratably over a four-year vesting term, if certain revenue thresholds are met at the end of each vesting term.
Cantor Units
Cantor holds limited partnership interests in Newmark Holdings (“Cantor units”). Cantor units are reflected as a component of “Noncontrolling interests” on the accompanying consolidated balance sheets. Cantor receives quarterly allocations of net income (loss) and are reflected as a component of “Net income (loss) attributable to noncontrolling interests” on the accompanying consolidated statements of operations.
Exchangeable Preferred Limited Partnership Units
The EPUs were issued in four tranches and were separately convertible by either RBC or Newmark into a fixed number of Newmark’s Class A common stock, subject to a revenue hurdle for Newmark in each of the fourth quarters of 2019 through 2022 for each of the four tranches, respectively. As the EPUs represented equity ownership of a consolidated subsidiary of Newmark, they have been included in “Noncontrolling interests” on the consolidated statements of changes in equity. The EPUs were entitled to a preferred payable-in-kind dividend, which was recorded as accretion to the carrying amount of the EPUs through retained earnings on the accompanying consolidated statements of changes in equity and are reductions to “Net income available to common stockholders” for the purpose of calculating earnings per share. (See Note 1 — “Organization and Basis of Presentation” for additional information). As of December 31, 2022 and 2021, there were no EPUs outstanding.
General
Certain of the limited partnership interests, described above, have been granted exchangeability into BGC and/or Newmark Class A common stock, and additional limited partnership interests may become exchangeable for BGC and/or Newmark Class A common stock. At the time exchangeability is granted, Newmark recognizes an expense based on the fair value of the award on that date, which is included in “Equity-based compensation and allocations of net income to limited partnership units and FPUs” on the accompanying consolidated statements of operations. In addition, certain limited partnership interests have been granted the right to exchange into a Newmark partnership unit with a capital account, such as HDUs. HDUs have a stated capital account which is initially based on the closing trading price of Newmark Class A common stock at the time the HDU is granted and are included in “Accrued Compensation” on the accompanying consolidated balance sheets. HDUs participate in quarterly partnership distributions and are not exchangeable into shares of Class A common stock. Limited partnership interests held by Cantor in Newmark Holdings as of December 31, 2022 are exchangeable for 24.7 million shares of Newmark Class B common stock. Subsequent to the Spin-Off, limited partnership interests in BGC Holdings held by a partner or Cantor may become exchangeable for BGC Class A or Class B common stock on a one-for-one basis, and limited partnership interests in Newmark Holdings held by a partner or Cantor may become exchangeable for a number of shares of Newmark Class A or Class B common stock equal to the number of limited partnership interests multiplied by the exchange ratio at that time. As of December 31, 2022, the exchange ratio equaled 0.9303.
Each quarter, net income (loss) is allocated between the limited partnership interests and the common stockholders. In quarterly periods in which Newmark has a net loss, the loss is allocated to Cantor and reflected as a component of “Net income (loss) attributable to noncontrolling interests” on the accompanying consolidated statements of operations. In subsequent quarters in which Newmark has net income, the initial allocation of income to the limited partnership interests is allocated to Cantor, and reflected in, “Net income (loss) attributable to noncontrolling interests,” to recover any losses taken in earlier quarters, with the remaining income allocated to the limited partnership interests. This loss allocation process between limited partners and Cantor has no material impact on the net income (loss) allocated to common stockholders.
(3) Summary of Significant Accounting Policies
Use of Estimates:
The preparation of Newmark’s consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of the assets and liabilities, revenues and expenses, and the
disclosure of contingent assets and liabilities on the accompanying consolidated financial statements. Management believes that the estimates utilized in preparing these consolidated financial statements are reasonable. Estimates, by their nature, are based on judgment and available information. Actual results could differ materially from the estimates included on the accompanying consolidated financial statements.
Equity Investments and Marketable Securities:
In accordance with the guidance on recognition and measurement of equity investments, Newmark carries its marketable equity securities at fair value and recognizes any changes in fair value in consolidated net income (loss). Further, Newmark has elected to use a measurement alternative for its equity investments without a readily determinable fair value, pursuant to which these investments are initially recognized at cost and remeasured through earnings when there is an observable transaction involving the same or similar investment of the same issuer, or due to an impairment. Newmark’s investments, in which it has significant influence but not a controlling financial interest and of which it is not the primary beneficiary, are accounted for under the equity method (see Note 8 — “Investments” for additional information).
Revenue Recognition:
Management Services, Servicing Fees and Other:
Management services revenues include property management, facilities management, project management and valuation and appraisal. Management fees are recognized when the service is performed and the performance obligation is satisfied. This also includes revenue from the licensing of flexible workspaces to its customers by Knotel and Deskeo. In addition, in regard to management and facility service contracts, the owner of the property will typically reimburse Newmark for certain expenses that are incurred on behalf of the owner, which comprise primarily on-site employee salaries and related benefit costs. The amounts which are to be reimbursed per the terms of the services contract are recognized as revenue in the same period as the related expenses are incurred. In certain instances, Newmark subcontracts property management services to independent property managers, in which case Newmark passes a portion of its property management fee on to the subcontractor, and Newmark retains the balance. Accordingly, Newmark records these fees gross of the amounts paid to subcontractors, and the amounts paid to subcontractors are recognized as expenses in the same period.
Newmark also uses third party service providers in the provision of its services to customers. In instances where a third-party service provider is used, Newmark performs an analysis to determine whether it is acting as a principal or an agent with respect to the services provided. To the extent that Newmark determines that it is acting as a principal, the revenue and the expenses incurred are recorded on a gross basis. In instances where Newmark has determined that it is acting as an agent, the revenue and expenses are presented on a net basis within the revenue line item.
In some instances, Newmark performs services for customers and incurs out-of-pocket expenses as part of delivering those services. Newmark’s customers agree to reimburse Newmark for those expenses, and those reimbursements are part of the contract’s transaction price. Consequently, these expenses and the reimbursements of such expenses from the customer are presented on a gross basis because the services giving rise to the out-of-pocket expenses do not transfer a good or service. The reimbursements are included in the transaction price when the costs are incurred, and the reimbursements are due from the customer.
Servicing fees are earned for servicing mortgage loans and are recognized on an accrual basis over the lives of the related mortgage loans. Also included in servicing fees are the fees earned on prepayments, interest and placement fees on borrowers’ escrow accounts and other ancillary fees.
Other revenues include interest income on warehouse notes receivable.
Leasing and Other Commissions:
Commissions from real estate lease brokerage transactions are typically recognized at a point in time on the date the lease is signed, if deemed not subject to significant reversal. The date the lease is signed represents the transfer of control and satisfaction of the performance obligation as the tenant has been secured. Commission payments may be due entirely upon lease execution or may be paid in installments upon the resolution of a future contingency (e.g. tenant move-in or payment of first month’s rent).
Investment Sales:
Investment sales revenue from real estate sales brokerage transactions are recognized at the time the service has been provided and the commission becomes legally due, except when future contingencies exist. In most cases, close of escrow or transfer of title is a future contingency, and revenue recognition is deferred until all contingencies are satisfied.
Commercial Mortgage Origination, net:
Fair value of expected net future cash flows from servicing and loan originations and related fees and sales premiums, net, are recognized when a derivative asset or liability is recorded upon the commitment to originate a loan with a borrower and sell the loan to an investor. The derivative is recorded at fair value and includes loan origination fees, sales premiums, and the estimated fair value of the expected net servicing cash flows. The revenue is recognized net of related fees and commissions to third-party brokers. Mortgage brokerage and debt placement revenue is earned and recognized when the sale of a property closes, and title passes from seller to buyer.
Fees to Related Parties:
Newmark is allocated costs from Cantor for back-office services provided by Cantor and their affiliates, including occupancy of office space, utilization of fixed assets, accounting, operations, human resources and legal services and information technology. Fees are expensed as they are incurred.
Other Income, net:
Other income, net comprises of gains or losses recorded in connection with changes in fair value of contingent consideration (See Note 26 — “Fair Value of Financial Assets and Liabilities”) in connection with entities acquired, gains and losses associated with the Nasdaq monetization transactions and the movement of mark-to-market and/or hedge on marketable securities that are classified as trading securities (See Note 7 — “Marketable Securities”), Newmark’s pro rata share for equity method investments and unrealized gains or losses relating to investments carried under the measurement alternative (See Note 8 — “Investments” and Note 19 — “Other assets”) and movements related to the impact of any unrealized mark-to-market gains or losses related to the Nasdaq Forwards.
Restricted Cash:
Restricted cash represents cash set aside for amounts pledged for the benefit of Fannie Mae in excess of the required cash to secure Newmark’s financial guarantee liability.
Leases:
Newmark enters into leasing arrangements in the ordinary course of business, as a lessee and has leases primarily relating to office space.
Newmark determines whether an arrangement is a lease or includes a lease at the contract inception. ROU lease assets represent the Newmark’s right to use an underlying asset for the lease term, and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Other than for leases with an initial term of twelve months or less, operating lease ROU assets and liabilities are recognized at commencement date based on the present value of lease payments over the lease term. As most leases do not provide an implicit rate, the Company uses an incremental borrowing rate based on the information available at commencement date in determining the present value of lease payments. The operating lease ROU asset also includes any lease payments made and excludes lease incentives. Lease payments may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise those options. Lease expense pertaining to operating leases is recognized on a straight-line basis over the lease term (See Note 18 — “Leases” for additional information).
Current Expected Credit Losses ("CECL"):
In accordance with the guidance in ASC 326, Newmark presents its financial assets that are measured at amortized cost, net of an allowance for credit losses, which represents the amount expected to be collected over their estimated life. Expected credit losses for newly recognized financial assets carried at amortized cost and credit exposures on off-balance sheet financial guarantees, as well as changes to expected lifetime credit losses during the period, are recognized in earnings. The CECL methodology represents a significant change from prior U.S. GAAP and replaced the prior multiple impairment methods, which generally required that a loss be incurred before it was recognized. Within the life cycle of a loan or other financial asset in scope, the CECL methodology generally results in the earlier recognition of the provision for credit losses and the related allowance for credit losses than under prior U.S. GAAP. The CECL methodology’s impact on expected credit losses, among other things, reflects Newmark’s view of the current state of the economy, forecasted macroeconomic conditions and Newmark’s portfolios.
Financial guarantee liability:
Newmark's adoption of ASC 326 impacted the expected credit loss reserving methodology for the financial guarantee liability provided to Fannie Mae under the Delegated Underwriting and Servicing (“DUS”) Program and Freddie Mac’s Targeted Affordable Housing Program “TAH”). The expected credit loss is modeled based on Newmark's historical loss experience adjusted to reflect current economic conditions. A significant amount of judgment is required in the determination of the appropriate reasonable and supportable period, the methodology used to incorporate current and future macroeconomic conditions, determination of the probability of and exposure at default or non-payment, current delinquency status, loan size,
terms, amortization types, and the forward-looking view of the primary risk drivers (debt-service coverage ratio and loan-to-value), all of which are ultimately used in measuring the quantitative components of the reserve. Beyond the reasonable and supportable period, Newmark estimates expected credit losses using its historical loss rates. In addition, Newmark reviews the reserves periodically and makes adjustments for certain external and internal qualitative factors, which may increase or decrease the reserves for credit losses. In order to estimate credit losses, assumptions about current and future economic conditions are incorporated into the model using multiple economic scenarios that are weighted to reflect the conditions at each measurement date. As a result of the adoption of ASC 326, Newmark recorded a pre-tax increase to the financial guarantee liability of $17.9 million through beginning stockholders' equity on January 1, 2020. During the years ended December 31, 2022, 2021 and 2020, there were increases (decreases) in the CECL provision of $1.7 million, $(3.6) million and $11.6 million, respectively. The balance of the financial guarantee liabilities was $27.7 million and $26.0 million as of December 31, 2022 and 2021, respectively, and is included in “Other long-term liabilities” on the accompanying consolidated balance sheets.
Receivables, net:
Newmark has accrued commissions receivable from real estate brokerage transactions, management services and other receivables from contractual management assignments. Receivables are presented net of the CECL allowance as discussed above and are included in “Receivables, net” on the accompanying consolidated balance sheets. For its CECL reserve, Newmark segregated its receivables into certain pools based on similar risk characteristics and further defined a range of potential loss rates for each pool based on aging. Newmark designed its methodology to allow for a range of loss rates in each pool such that changes in forward-looking conditions can be incorporated into the estimate. Each pool is assigned a loss rate that incorporates management’s view of current conditions and forward-looking conditions that inform the level of expected credit losses in each pool. The credit loss estimate includes specifically identified amounts for which payment has become unlikely. As a result of the adoption of ASC 326, Newmark recorded a pre-tax increase to the reserves of $4.2 million through beginning stockholder's equity on January 1, 2020. The balance of the reserve was $20.9 million and $16.7 million as of December 31, 2022 and 2021, respectively, and is included in "Receivables, net" on the accompany consolidated balance sheets.
Loans, Forgivable Loans and Other Receivables from Employees and Partners, net:
Newmark has entered into various agreements with certain of its employees and partners, whereby these individuals receive loans which may be either wholly or in part repaid from the distribution earnings that the individual receives on some or all of their limited partnership units or may be forgiven over a period of time. The forgivable portion of these loans is not included in Newmark’s estimate of expected credit losses when employees meet the conditions for forgiveness through their continued employment over the specified time period and is recognized as compensation expense over the life of the loan. The amounts due from terminated employees that Newmark does not expect to collect are included in the allowance for credit losses. As a result of the adoption of ASC 326, Newmark recorded a pre-tax reserve of $3.7 million through beginning stockholders' equity on January 1, 2020. As of December 31, 2022 and 2021, the balance of this reserve was $1.4 million and $3.8 million, respectively, and is included in “Loans, forgivable loans and other receivables from employees and partners, net” on the accompanying consolidated balance sheets.
From time to time, Newmark may also enter into agreements with employees and partners to grant bonus and salary advances or other types of loans. These advances and loans are repayable in the time frame outlined in the underlying agreements. Newmark reviews loan balances each reporting period for collectability. If Newmark determines that the collectability of a portion of the loan balances is not expected, Newmark recognizes a reserve against the loan balances as compensation expense.
Reclassifications:
The Company has made reclassifications to prior period balances to conform to current period presentation. These reclassifications had no effect on the reported results of operations. For the year ended December 31, 2022, the Company adjusted the revenue presentation in the statement of operations. "Gains from mortgage banking activities/origination, net" has been combined with mortgage brokerage revenues as "Commercial mortgage origination, net", while "Investment sales" is a stand-alone line-item. For the years ended December 31, 2021 and 2020, $180.6 million and $50.1 million, respectively, were reclassified from "Commissions" to "Commercial mortgage origination, net."
Segment:
Newmark has a single operating segment. Newmark is a real estate services firm offering services to commercial real estate tenants, investors, owners, occupiers, and developers. Services include leasing and corporate advisory, investment sales and real estate finance, consulting, origination and servicing of commercial mortgage loans, valuation, project and development management and property and facility management. The chief operating decision-maker regardless of geographic location evaluates the operating results of Newmark as total real estate services and allocates resources accordingly. Newmark recognized revenues as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | |
| | | Year Ended December 31, |
| | | | | 2022 | | 2021 | | 2020 |
Management services, servicing fees and other | | | | | $ | 909,485 | | | $ | 915,715 | | | $ | 626,136 | |
Leasing and other commissions | | | | | 831,874 | | | 826,942 | | | 513,842 | |
Investment sales | | | | | 606,416 | | | 757,744 | | | 403,971 | |
Commercial mortgage origination, net | | | | | 357,752 | | | 406,042 | | | 361,049 | |
Revenues | | | | | $ | 2,705,527 | | | $ | 2,906,443 | | | $ | 1,904,998 | |
Fair Value:
U.S. GAAP guidance defines fair value as the price received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date and further expands disclosures about such fair value measurements.
The guidance establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy are as follows:
•Level 1 measurements—Unadjusted quoted prices in active markets that are accessible at the measurement date for identical assets or liabilities.
•Level 2 measurements—Quoted prices in markets that are not active or financial instruments for which all significant inputs are observable, either directly or indirectly.
•Level 3 measurements—Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable.
A financial instrument’s level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement.
Cash and Cash Equivalents:
Newmark considers all highly liquid investments with original maturities of 90 days or less to be cash equivalents. Cash and cash equivalents are held with banks as deposits.
Principles of Consolidation:
Newmark’s consolidated financial statements include the accounts of Newmark and its wholly owned and majority owned subsidiaries. Newmark’s policy is to consolidate all entities of which it owns more than 50% unless it does not have control over the entity. In accordance with U.S. GAAP guidance, Consolidation of Variable Interest Entities, Newmark also consolidates any variable interest entities of which it is the primary beneficiary. All significant intercompany accounts and transactions have been eliminated in consolidation.
Loans Held for Sale, at Fair Value (“LHFS”):
Newmark maintains multifamily and commercial mortgage loans for the purpose of sale to GSEs. Prior to funding, Newmark enters into an agreement to sell the loans to third-party investors at a fixed price. During the period prior to sale, interest income is calculated and recognized in accordance with the terms of the individual loan. LHFS are carried at fair value, as Newmark has elected the fair value option. The primary reasons Newmark has elected to account for loans backed by commercial real estate under the fair value option are to better offset the change in fair value of the loan and the change in fair value of the derivative instruments used as economic hedges.
Derivative Financial Instruments:
Newmark has loan commitments to extend credit to third parties. The commitments to extend credit are for mortgage loans at a specific rate (rate lock commitments). These commitments generally have fixed expiration dates or other termination clauses and may require a fee. Newmark is committed to extend credit to the counterparty as long as there is no violation of any condition established in the commitment contracts.
Newmark simultaneously enters into a commitment to deliver such mortgages to third-party investors at a fixed price (forward sale contracts).
Newmark entered into variable postpaid forward contracts as a result of the Nasdaq Forwards.
The commitment to extend credit, the forward sale commitment and Nasdaq Forwards qualify as derivative financial instruments. Newmark recognizes all derivatives on the accompanying consolidated balance sheets as assets or liabilities
measured at fair value. The change in the derivatives fair value is recognized in included in “Other income” on the accompanying consolidated statements of operations.
Mortgage Servicing Rights, Net (“MSRs”):
Newmark initially recognizes and measures the rights to service originated mortgage loans at fair value and subsequently measures them using the amortization method. Newmark recognizes rights to service mortgage loans as separate assets at the time the underlying originated mortgage loan is sold, and the value of those rights is included in the determination of the gains on loans held for sale.
Purchased MSRs, including MSRs purchased from Cantor Commercial Real Estate ("CCRE"), are initially recorded at fair value, and subsequently measured using the amortization method.
Newmark receives up to a 3-basis point servicing fee and/or up to a 1-basis point surveillance fee on certain Freddie Mac loans after the loan is securitized in a Freddie Mac pool (Freddie Mac Strip). The Freddie Mac Strip is also recognized at fair value and subsequently measured using the amortization method, but is recognized as a MSR at the securitization date.
MSRs are assessed for impairment, at least on an annual basis, based upon the fair value of those rights as compared to the amortized cost. Fair values are estimated using a valuation model that calculates the present value of the future net servicing cash flows. In using this valuation method, Newmark incorporates assumptions that management believes market participants would use in estimating future net servicing income. It is reasonably possible that such estimates may change. Newmark amortizes the MSRs in proportion to, and over the period of, the projected net servicing income. For purposes of impairment evaluation and measurement, Newmark stratifies MSRs based on predominant risk characteristics of the underlying loans, primarily by investor type (Fannie Mae/Freddie Mac, FHA/GNMA, CMBS and other). To the extent that the carrying value exceeds the fair value of a specific MSR strata, a valuation allowance is established, which is adjusted in the future as the fair value of MSRs increases or decreases. Reversals of valuation allowances cannot exceed the previously recognized impairment up to the amortized cost.
Fixed Assets, net:
Fixed assets are carried at cost net of accumulated depreciation and amortization. Depreciation is calculated on a straight-line basis over the estimated useful lives of the assets. The costs of additions and improvements are capitalized, while maintenance and repairs are expensed as incurred. Fixed assets are depreciated over their estimated useful lives as follows:
| | | | | | | | |
Leasehold improvements and other fixed assets | | shorter of the remaining term of lease or useful life |
| | |
Software, including software development costs | | 3-5 years straight-line |
| | |
Computer and communications equipment | | 3-5 years straight-line |
Long-Lived Assets:
Newmark periodically evaluates potential impairment of long-lived assets and amortizable intangible assets, when a change in circumstances occurs, by applying the U.S. GAAP guidance, Accounting for the Impairment or Disposal of Long-Lived Assets, and assessing whether the unamortized carrying amount can be recovered over the remaining life through undiscounted future expected cash flows generated by the underlying assets. If the undiscounted future cash flows were less than the carrying value of the asset, an impairment charge would be recorded. The impairment charge would be measured as the excess of the carrying value of the asset over the present value of estimated expected future cash flows using a discount rate commensurate with the risks involved.
Goodwill and Other Intangible Assets, net:
Goodwill is the excess of the purchase price over the fair value of identifiable net assets acquired in a business combination. As prescribed in U.S. GAAP guidance, Intangibles—Goodwill and Other, goodwill and other indefinite-lived intangible assets are not amortized, but instead are periodically tested for impairment. Newmark reviews goodwill and other indefinite-lived intangible assets for impairment on an annual basis during the fourth quarter of each fiscal year or whenever an event occurs or circumstances change that could reduce the fair value of a reporting unit below its carrying amount. When reviewing goodwill for impairment, Newmark first assesses qualitative factors to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount. Newmark did not recognize an impairment for the years ended December 31, 2022, 2021 and 2020, respectively.
Intangible assets with definite lives are amortized on a straight-line basis over their estimated useful lives. Definite-lived intangible assets arising from business combinations include trademarks and trade names, contractual and non-contractual
customers, non-compete agreements and brokerage backlog. Newmark did not recognize an impairment for the years ended December 31, 2022, 2021 and 2020, respectively.
Transfer of Financial Assets:
Newmark originates its commercial mortgage loans primarily for the GSEs’ distribution channels, which generally involve (a) Freddie Mac purchasing Newmark’s loans for cash, (b) Fannie Mae securitizing Newmark’s loans into a mortgage-backed security (“MBS”) guaranteed by Fannie Mae, (c) FHA guaranteeing the credit risk of Newmark’s loans or (d) Ginnie Mae securitizing Newmark’s loans into an MBS. MBS are collateralized by the loan and Ginnie Mae selling the MBS for cash. As part of its origination activities, Newmark accounts for the transfer of financial assets in accordance with U.S. GAAP guidance on Transfers and Servicing. In accordance with this guidance, the transfer of financial assets between two entities must meet the following criteria for derecognition and sale accounting:
•The transfer must involve a financial asset, group of financial assets or a participating interest;
•The financial assets must be isolated from the transferor and its consolidated affiliates as well as its creditors;
•The transferee or beneficial interest holders must have the right to pledge or exchange the transferred financial assets; and;
•The transferor may not maintain effective control of the transferred assets.
Newmark determined that all loans sold during the periods presented met these specific conditions and accounted for all transfers of loans held for sale as completed sales.
Warehouse Facilities Collateralized by U.S. Government Sponsored Enterprises:
Warehouse facilities collateralized by U.S. Government Sponsored Enterprises are borrowings under warehouse line agreements. The carrying amounts approximate fair value due to the short-term maturity of these instruments. Outstanding borrowings against these lines are collateralized by an assignment of the underlying mortgages, reflected as loans held for sale, at fair value on Newmark’s consolidated balance sheets and third-party purchase commitments. The borrowing rates on the warehouse lines are based on short-term SOFR plus applicable margins. Accordingly, the warehouse facilities collateralized by U.S. Government Sponsored Enterprises are typically classified within Level 2 of the fair value hierarchy. The facilities are generally repaid within a 45-day period when Freddie Mac buys the loans or upon settlement of the Fannie Mae or Ginnie Mae mortgage-backed securities, while Newmark retains servicing rights.
Income Taxes:
Newmark accounts for income taxes using the asset and liability method as prescribed in U.S. GAAP guidance on Income Taxes. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to basis differences between the consolidated financial statement carrying amounts of existing assets and liabilities and their respective tax basis. Certain of Newmark’s entities are taxed as U.S. partnerships and are subject to the Unincorporated Business Tax (“UBT”) in New York City. Therefore, the tax liability or benefit related to the partnership income or loss except for UBT rests with the partners, rather than the partnership entity. As such, the partners’ tax liability or benefit is not reflected on the accompanying consolidated financial statements. The tax-related assets, liabilities, provisions or benefits included on the accompanying consolidated financial statements also reflect the results of the entities that are taxed as corporations, either in the U.S. or in foreign jurisdictions.
Newmark’s income taxes as presented are calculated on a separate return basis for the periods prior to the Spin-Off and have historically been included in BGC’s U.S. federal and state tax returns or separate non-U.S. jurisdictions tax returns. Subsequent to the Spin-Off, Newmark files its own stand-alone tax returns for its operations within these jurisdictions. The 2018 tax results reflect both the pre and post spin periods and, as such, Newmark’s tax results as presented are not necessarily reflective of the results that Newmark would have generated on a stand-alone basis.
Newmark provides for uncertain tax positions based upon management’s assessment of whether a tax benefit is more likely than not to be sustained upon examination by tax authorities. Management is required to determine whether a tax position is more likely than not to be sustained upon examination by tax authorities, including resolution of any related appeals or litigation processes, based on the technical merits of the position. Because significant assumptions are used in determining whether a tax benefit is more likely than not to be sustained upon examination by tax authorities, actual results may differ from Newmark’s estimates under different assumptions or conditions. Newmark recognizes interest and penalties related to uncertain tax positions in “Provision for income taxes” on the accompanying consolidated statements of operations.
A valuation allowance is recorded against deferred tax assets if it is deemed more likely than not that those assets will not be realized. In assessing the need for a valuation allowance, Newmark considers all available evidence, including past
operating results, the existence of cumulative losses in the most recent fiscal years, estimates of future taxable income and the feasibility of tax planning strategies.
The measurement of current and deferred income tax assets and liabilities is based on provisions of enacted tax laws and involves uncertainties in the application of tax regulations in the U.S. and other tax jurisdictions. Because Newmark’s interpretation of complex tax law may impact the measurement of current and deferred income taxes, actual results may differ from these estimates under different assumptions regarding the application of tax law.
Equity-Based and Other Compensation:
Equity-based compensation expense recognized during the period is based on the fair value of the portion of equity-based payment awards that is ultimately expected to vest. The grant-date fair value of equity-based awards is amortized to expense ratably over the awards’ vesting periods. As equity-based compensation expense recognized in the Newmark’s consolidated statements of operations is based on awards ultimately expected to vest, it has been reviewed for estimated forfeitures. Further, forfeitures are estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates.
Restricted Stock Units:
RSUs are accounted for as equity awards and in accordance with U.S. GAAP, Newmark is required to record an expense for the portion of the RSUs that is ultimately expected to vest. The grant-date fair value of RSUs is amortized to expense ratably over the awards’ expected vesting periods. The amortization is reflected as a component of compensation expense under “Equity-based compensation and allocations of net income to limited partnership units and FPUs” in the accompanying consolidated statements of operations.
Limited Partnership Units:
Limited partnership units in BGC Holdings and Newmark Holdings are held by Newmark employees and receive quarterly allocations of net income and are generally contingent upon services being provided by the unit holders. The quarterly allocations of net income on such limited partnership units are reflected as a component of compensation expense under “Equity-based compensation and allocations of net income to limited partnership units and FPUs” in the accompanying consolidated statements of operations.
Certain of these limited partnership units in Newmark Holdings and BGC Holdings, such as REUs, entitle the holders to receive post-termination payments equal to the notional amount in four equal yearly installments after the holder’s termination. These limited partnership units are accounted for as post-termination liability awards under U.S. GAAP guidance, which requires that Newmark record an expense for such awards based on the change in value at each reporting period and include the expense in the Newmark’s consolidated statements of operations as part of “Equity-based compensation and allocations of net income to limited partnership units and FPUs.” The liability for limited partnership units held by Newmark employees with a post-termination payout amount is included in “Other long-term liabilities” on the Newmark’s consolidated balance sheets.
Certain limited partnership units held by Newmark employees are granted exchangeability into Class A common stock or may be redeemed in connection with the grant of shares of Class A common stock. At the time exchangeability is granted, or the shares are issued, Newmark recognizes an expense based on the fair value of the award on that date, which is included in “Equity-based compensation and allocations of net income to limited partnership units and FPUs” in the accompanying consolidated statements of operations.
In addition, Preferred Units are granted in connection with the grant of certain limited partnership units, such as PSUs, that may be granted exchangeability to cover the withholding taxes owed by the unit holder upon such exchange. Each quarter, the net profits of BGC Holdings and Newmark Holdings are allocated to such units at a rate of either 0.6875% (which is 2.75% per calendar year) or such other amount as set forth in the Preferred Distribution, which is deducted before the calculation and distribution of the quarterly partnership distribution for the remaining limited partnership interests. The Preferred Units are not entitled to participate in partnership distributions other than with respect to the Preferred Distribution. Preferred Units may not be made exchangeable into BGC or Newmark Class A common stock and are only entitled to the Preferred Distribution, and accordingly they are not included in Newmark’s fully diluted share count. The quarterly allocations of net income on Preferred Units are reflected in compensation expense under “Equity-based compensation and allocations of net income to limited partnership units and FPUs” in the accompanying consolidated statements of operations.
Redeemable Partnership Interests:
Redeemable partnership interest represents limited partnership interests in Newmark Holdings held by founding/working partners. (See Note 2 — “Limited Partnership Interests in Newmark Holdings and BGC Holdings” for additional information related to redeemable partnership interest).
Noncontrolling Interests:
Noncontrolling interests represent third-party, Cantor’s and BGC’s (prior to the Spin-Off) ownership interests on the accompanying consolidated subsidiaries and EPUs (See Note 1 — “Organization and Basis of Presentation”) and are included on Newmark’s consolidated balance sheets. Prior to the Spin-Off, Cantor and BGC units received allocations of net income (loss). Subsequent to the Spin-Off, Cantor units received allocations of net income (loss). Allocations of net income (loss) are reflected as a component of “Net income (loss) attributable to noncontrolling interests” in the accompanying consolidated statements of operations.
(4) Acquisitions
On April 1, 2022, Newmark completed the acquisitions of two companies; BH2, a London-based real estate advisory firm, and McCall & Almy, a multi-market tenant representation and real estate advisory firm.
On May 3, 2022, Newmark completed the acquisition of Open Realty Advisors and Open Realty Properties, which together operate as “Open Realty”, a retail real estate advisory firm.
For the year ended December 31, 2022, the following table summarizes the components of the purchase consideration transferred, and the preliminary allocation of the assets acquired, and liabilities assumed, for the acquisition. Newmark expects to finalize its analysis of the assets acquired and liabilities assumed within the first year of the acquisitions, and therefore adjustments to assets and liabilities may occur (in thousands):
| | | | | |
| As of the Acquisition Date |
Purchase Price | |
| |
| |
Contingent consideration | 7,322 | |
Cash and stock issued at closing | 65,533 | |
Total | $ | 72,855 | |
| |
Allocations | |
Cash | $ | 1,286 | |
Goodwill | 50,756 | |
Other intangible assets, net | 19,633 | |
Receivables, net | 3,625 | |
| |
Other assets | 290 | |
Right-of-use assets | 4,305 | |
Right-of-use liabilities | (4,305) | |
Accrued compensation | (2,175) | |
Accounts payable, accrued expenses and other liabilities | (560) | |
| |
| |
| |
Total | $ | 72,855 | |
The total consideration for the acquisitions during the year ended December 31, 2022, was $72.9 million in total fair value comprising cash of $65.5 million and contingent consideration of $7.3 million. The excess of the consideration over the fair value of the net assets acquired was recorded as goodwill of $50.8 million, of which approximately $35.1 million is deductible by Newmark for tax purposes.
These acquisitions were accounted for using the purchase method of accounting. The results of operations of the acquisitions have been included on the accompanying consolidated financial statements subsequent to the respective dates of acquisition, which in aggregate contributed $17.8 million to Newmark’s revenues for the year ended December 31, 2022.
Newmark acquired the first lien debt of Knotel, Inc. (“Knotel”), a global flexible workspace provider, in December of 2020. Newmark subsequently acquired Knotel's second lien debt in January of 2021. On January 31, 2021, Newmark agreed to
provide approximately $19.8 million of debtor-in-possession financing to Knotel and to acquire the business, as part of Knotel's Chapter 11 sales process. On March 18, 2021, Newmark received approval from the U.S. Bankruptcy Court for the District of Delaware to acquire the business of Knotel. On March 24, 2021, Newmark acquired the business of Knotel. The Knotel acquisition has been determined to be a business combination with an acquisition date of March 31, 2021, for accounting purposes. The assets and liabilities of Knotel have been recorded in Newmark’s consolidated balance sheets at fair market value.
On September 6, 2021, Newmark acquired a majority stake in the start-up Space Management (DBA "Deskeo"), France's leader in flexible and serviced workspace for enterprise clients. Based in Paris, France, Deskeo added over 50 locations to Newmark's international flexible office portfolio.
In November 2021, Newmark completed the acquisition of a U.S. based real estate property management services firm.
As of December 31, 2022, the following table summarizes the components of the purchase consideration transferred, and the of the assets acquired, and liabilities assumed, for the acquisitions which occurred in 2021:
| | | | | |
| As of the Acquisition Date |
Purchase Price | |
First and second lien debt | 39,584 | |
Debtor-in-possession financing | 19,788 | |
Assumed liability | 6,574 | |
Cash and stock issued at closing | 44,492 | |
Total | $ | 110,438 | |
| |
Allocations | |
Cash | $ | 21,641 | |
Goodwill | 97,639 | |
Other intangible assets, net | 41,332 | |
Receivables, net | 7,478 | |
Fixed Assets, net | 40,605 | |
Other assets | 62,710 | |
Right-of-use Assets | 434,315 | |
Right-of-use Liabilities | (434,315) | |
Accrued Compensation | (2,076) | |
Accounts payable, accrued expenses and other liabilities | (103,771) | |
Unrealized gains on investment | (27,825) | |
Initial investment (recorded at cost) | (13,832) | |
Non-controlling interest | (13,463) | |
Total | $ | 110,438 | |
The total consideration for the acquisitions during the year ended December 31, 2021, was $110.4 million in total fair value, comprising of the extinguishment of first and second lien debt of $39.6 million, debtor-in-possession financing of $19.8 million, an assumed liability of $6.6 million, and $41.5 million in cash and $3.0 million of restricted Class A common stock. The excess of the consideration over the fair value of the net assets acquired was recorded as goodwill of $97.6 million, of which approximately $78.3 million is deductible by Newmark for tax purposes.
These acquisitions were accounted for using the purchase method of accounting. The results of operations of the acquisitions have been included on the accompanying consolidated financial statements subsequent to the date of acquisition, which in aggregate contributed $75.6 million to Newmark’s revenues for the year ended December 31, 2021. Deskeo was previously recorded as an alternative method investment on Newmark’s consolidated balance sheet and amounted to $13.8 million. Pursuant to acquiring a majority interest in Deskeo and valuing its previously held non-controlling interest, Newmark recorded an unrealized gain of $27.8 million on the investment during the year ended December 31, 2021.
(5) Earnings Per Share and Weighted-Average Shares Outstanding
U.S. GAAP guidance — Earnings (Loss) Per Share provides guidance on the computation and presentation of earnings (loss) per share (“EPS”). Basic EPS excludes dilution and is computed by dividing Net income available to common stockholders by the weighted-average number of shares of common stock outstanding and contingent shares for which all necessary conditions have been satisfied except for the passage of time. Net income (loss) is allocated to Newmark’s outstanding common stock, FPUs, limited partnership units and Cantor units (see Note 2 — “Limited Partnership Interests in Newmark Holdings and BGC Holdings”). In addition, in relation to the Newmark OpCo Preferred Investment, the EPUs issued in June 2018 and September 2018 were entitled to a preferred payable-in-kind dividend which is recorded as accretion to the carrying amount of the EPUs and was a reduction to net income available to common stockholders for the calculation of Newmark’s basic earnings per share and fully diluted earnings per share.
The following is the calculation of Newmark’s basic EPS (in thousands, except per share data):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | 2022 | | 2021 | | 2020 | | |
Basic earnings per share: | | | | | | | | | | |
Net income available to common stockholders (1) | | | | $ | 83,275 | | | $ | 744,528 | | | $ | 70,281 | | | |
Basic weighted-average shares of common stock outstanding | | | | 180,337 | | | 190,179 | | | 179,106 | | | |
Basic earnings per share | | | | $ | 0.46 | | | $ | 3.91 | | | $ | 0.39 | | | |
(1)Includes a reduction for dividends on EPUs in the amount of $6.2 million and $9.8 million for the years ended December 31, 2021 and 2020, respectively (see Note 1 — “Organization and Basis of Presentation”).
Fully diluted EPS is calculated utilizing net income available to common stockholders plus net income allocations to the limited partnership interests in Newmark Holdings as the numerator. The denominator comprises Newmark’s weighted-average number of outstanding shares of Newmark common stock to the extent the related units are dilutive and, if dilutive, the weighted-average number of limited partnership interests and other contracts to issue shares of common stock, stock options and RSUs. The limited partnership interests generally are potentially exchangeable into shares of Newmark Class A common stock and are entitled to remaining earnings after the deduction for the Preferred Distribution; as a result, they are included in the fully diluted EPS computation to the extent that the effect would be dilutive.
The following is the calculation of Newmark’s fully diluted EPS (in thousands, except per share data):
| | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | 2022 | | 2021 | | 2020 | |
Fully diluted earnings per share: | | | | | | | | | |
Net income available to common stockholders | | | | $ | 83,275 | | | $ | 744,528 | | | $ | 70,281 | | |
Allocations of net income to limited partnership interests in Newmark Holdings, net of tax | | | | 27,128 | | | — | | | — | | |
Net income for fully diluted shares | | | | $ | 110,403 | | | $ | 744,528 | | | $ | 70,281 | | |
Weighted-average shares: | | | | | | | | | |
Common stock outstanding | | | | 180,337 | | | 190,179 | | | 179,106 | | |
| | | | | | | | | |
| | | | | | | | | |
Partnership units (1) | | | | 59,944 | | | — | | | — | | |
RSUs (Treasury stock method) | | | | 3,255 | | | 4,310 | | | 355 | | |
Newmark exchange shares | | | | 1,641 | | | 1,324 | | | 229 | | |
Fully diluted weighted-average shares of common stock outstanding | | | | 245,177 | | | 195,813 | | | 179,690 | | |
Fully diluted earnings per share | | | | $ | 0.45 | | | $ | 3.80 | | | $ | 0.39 | | |
(1)Partnership units collectively include FPUs, limited partnership units, and Cantor units (see Note 2 — “Limited Partnership Interests in Newmark Holdings and BGC Holdings” for more information).
For the years ended December 31, 2022, 2021 and 2020, 1.8 million, 68.1 million and 85.2 million potentially dilutive securities, respectively, were excluded from the computation of fully diluted EPS because their effect would have been anti-dilutive.
(6) Stock Transactions and Unit Redemptions
As of December 31, 2022, Newmark has two classes of authorized common stock: Class A common stock and Class B common stock.
Class A Common Stock
Each share of Class A common stock is entitled to one vote. Newmark has 1.0 billion authorized shares of Class A common stock at $0.01 par value per share.
Changes in shares of Newmark’s Class A common stock outstanding were as follows:
| | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | 2022 | | 2021 | | 2020 | | |
Shares outstanding at beginning of period | | | | 168,272,371 | | | 161,175,894 | | | 156,265,461 | | | |
Share issuances: | | | | | | | | | | |
LPU redemption/exchange (1) | | | | 4,930,499 | | | 6,591,462 | | | 4,868,169 | | | |
Issuance of Class A common stock for Newmark RSUs | | | | 2,136,813 | | | 1,851,786 | | | 972,490 | | | |
Other | | | | (36,596) | | | 18,890,659 | | | — | | | |
Treasury stock repurchases | | | | (24,918,482) | | | (20,237,430) | | | (930,226) | | | |
Shares outstanding at end of period | | | | 150,384,605 | | | 168,272,371 | | | 161,175,894 | | | |
(1)Because they were included in Newmark’s fully diluted share count, if dilutive, any exchange of LPUs into Class A common stock would not impact the fully diluted number of shares and units outstanding.
Class B Common Stock
Each share of Class B common stock is entitled to 10 votes and is convertible at any time into one share of Class A common stock.
As of December 31, 2022 and December 31, 2021, there were 21.3 million shares of Newmark Class B common stock outstanding.
Share Repurchases
On February 17, 2021, our Board increased its authorized share repurchases of Newmark Class A common stock and purchases of limited partnership interests in Newmark's subsidiaries to $400.0 million. This authorization includes repurchases of shares or purchase of units from executive officers, other employees and partners, including of BGC and Cantor, as well as other affiliated persons or entities. On February 10, 2022, the Board and Audit Committee reauthorized the $400.0 million Newmark share repurchase and unit redemption authorization, which may include purchases from Cantor, its partners or employees or other affiliated persons or entities. On November 4, 2022, the Board and Audit Committee reauthorized the $400.0 million Newmark share repurchase and unit redemption authorization, which may include purchases from Cantor, its partners or employees or other affiliated persons or entities.
From time to time, Newmark may actively continue to repurchase shares and/or purchase units. During the year ended December 31, 2022, Newmark repurchased 24,918,482 shares of Class A common stock at an average price of $11.83. As of December 31, 2022, Newmark had $392.3 million remaining from its share repurchase and unit purchase authorization. During the year ended December 31, 2021, Newmark repurchased 20,237,430 shares of Class A common stock at an average price of $14.37. As of December 31, 2021, Newmark had $165.0 million remaining from its share repurchase and unit purchase authorization.
The following table details Newmark's share repurchases for cash, under the new program, and does not include unit redemptions and/or cancellations in connection with the grant of shares of Newmark's Class A common stock. The share repurchases of Newmark's Class A common stock during the year ended December 31, 2022 were as follows (in thousands except shares and per share amounts):
| | | | | | | | | | | | | | | | | |
| Total Number of Shares Repurchased | | Average Price Paid per Share | | Approximate Dollar Value of Shares and Units That May Yet Be Repurchased/ Purchased Under the Program |
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| | | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
Repurchases | | | | | |
January 1, 2022 - March 31, 2022 | 1,682,871 | | | $ | 18.35 | | | |
April 1, 2022 - June 30, 2022 | 11,370,647 | | | $ | 12.75 | | | |
July 1, 2022 - September 30, 2022 | 10,163,677 | | | $ | 10.36 | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
October 1, 2022 - October 31, 2022 | — | | | $ | — | | | |
November 1, 2022 - November 30, 2022 | 1,701,287 | | | $ | 8.00 | | | |
December 1, 2022 - December 31, 2022 | — | | | $ | — | | | |
Total Repurchases | 24,918,482 | | | $ | 11.83 | | | $ | 392,282 | |
Redeemable Partnership Interests
The changes in the carrying amount of FPUs follow (in thousands):
| | | | | | | | | | | |
| December 31, 2022 | | December 31, 2021 |
Balance at beginning of period: | $ | 20,947 | | | $ | 20,045 | |
Income allocation | 2,272 | | | 4,532 | |
Distributions of income | (5,130) | | | (1,215) | |
Redemptions | — | | | (2,169) | |
Issuance and other | (1,539) | | | (246) | |
Balance at end of period | $ | 16,550 | | | $ | 20,947 | |
(7) Marketable Securities
On June 28, 2013, BGC sold certain assets of eSpeed, its on-the-run business, to Nasdaq. The total consideration received by BGC in the transaction included the Nasdaq Earn-out of up to 14,883,705 shares of Nasdaq shares to be paid ratably over 15 years, provided that Nasdaq, as a whole, produces at least $25.0 million in consolidated gross revenues each year. The Nasdaq Earn-out was excluded from the initial gain on the divestiture and is recognized in income as it is realized and earned when these contingent events have occurred, consistent with the accounting guidance for gain contingencies. BGC transferred the remaining rights under the Nasdaq Earn-out to Newmark on September 28, 2017. Any Nasdaq shares that were received by BGC prior to September 28, 2017 were not transferred to Newmark.
In connection with the Nasdaq Earn-out, Newmark received 992,247 shares during the years ended December 31, 2017 through 2020. In accordance with the terms of the agreement, Newmark would recognize the remaining Nasdaq Earn-out of up to 6,945,729 shares of Nasdaq shares ratably over approximately the next 7 years, provided that Nasdaq, as a whole, produces at least $25.0 million in gross revenues each year. On February 2, 2021, Nasdaq announced that it entered into a definitive agreement to sell its U.S. fixed income business to Tradeweb. On June 25, 2021, Nasdaq announced the closing of the sale of its U.S. fixed income business, which accelerated Newmark’s receipt of Nasdaq shares. Newmark received 6,222,340 Nasdaq shares, with a fair value of $1,093.9 million based on the closing price on June 30, 2021 included in “Other (loss) income, net” for the year ended December 31, 2021.
On June 25, 2021, the SPV notified RBC of its decision to settle the third and fourth Nasdaq Forwards using the Nasdaq shares the SPV received on June 25, 2021. On July 2, 2021, Newmark settled the Nasdaq Forwards with 944,329 Nasdaq shares, with a fair value of $166.0 million based on the closing price of June 30, 2021, and retained 5,278,011 Nasdaq shares.
Newmark sold 3,030,922 and 343,562 shares of Nasdaq during the years ended December 31, 2021 and 2020, respectively. During the year ended December 31, 2022, Newmark sold all of its remaining 2,497,831 shares of Nasdaq. The gross proceeds of the Nasdaq shares sold were $437.8 million for the year ended December 31, 2022. Newmark recorded realized losses on the mark-to-market of these securities of $7.5 million for the year ended December 31, 2022. Newmark recorded unrealized losses on the mark-to-market of these securities of $80.1 million for the year ended December 31, 2022. During the years ended December 31, 2021 and 2020, Newmark sold 3,030,922 and 343,562, respectively, of the Nasdaq shares. The gross proceeds of the Nasdaq shares sold were $551.1 million and $34.7 million for the years ended December 31, 2021 and 2020, respectively. Newmark recorded realized gains (loss) on the mark-to-market of these securities of $24.5 million
and $2.2 million for the years ended December 31, 2021 and 2020, respectively. Newmark recorded unrealized gains (loss) on the mark-to-market of these securities of $77.3 million and $5.0 million for the years ended December 31, 2021 and 2020, respectively. Realized and unrealized gains on the mark-to-market of these shares are included in “Other income, net” on the accompanying consolidated statements of operations.
As of December 31, 2022 and 2021, Newmark had $0.8 million and $524.6 million, respectively, of marketable securities in a public entity included in “Marketable securities” on the accompanying consolidated balance sheets.
On August 2, 2021, a subsidiary of Newmark, Newmark OpCo, entered into a Master Repurchase Agreement (the “Repurchase Agreement”) with CF Secured, LLC (“CF Secured”), an affiliate of Cantor, pursuant to which Newmark could seek, from time-to-time, to execute short-term secured financing transactions. The Company, under the Repurchase Agreement, could seek to sell securities, in this case common shares of Nasdaq, owned by the Company, to CF Secured, under the Repurchase Agreement, and agreed to repurchase those securities on a date certain at a repurchase price generally equal to the original purchase price plus interest. Pursuant to the Repurchase Agreement, as of December 31, 2021 the Company had 866,791 Nasdaq shares pledged in the amount of $182.0 million, against which Newmark received $140.0 million. The $140.0 million amount received from CF Secured is included in "Repurchase agreements and securities loaned" on the accompanying consolidated balance sheets (see Note 20 — "Repurchase Agreements and Securities Loaned" and Note 27 — “Related Party Transactions”). As of December 31, 2022, Newmark had no securities pledged.
(8) Investments
Newmark has a 27% ownership in Real Estate LP, a joint venture with Cantor in which Newmark has the ability to exert significant influence over the operating and financial policies. Accordingly, Newmark accounts for this investment under the equity method of accounting. Newmark recognized equity income (loss) of $2.8 million, $0.0 million and $(11.6) million for the years ended December 31, 2022, 2021 and 2020, respectively. Equity (loss) income is included in "Other income, net" on the accompanying consolidated statements of operations. Newmark received distributions of $0.0 million, $0.0 million and $0.1 million for the years ended December 31, 2022, 2021 and 2020, respectively. The carrying value of this investments was $91.3 million and $88.3 million as of December 31, 2022 and 2021, respectively, included in “Other assets” on the accompanying consolidated balance sheets. On July 20, 2022, Newmark exercised its redemption option and expected to receive approximately $88.4 million from Cantor. In December 2022, the Audit Committee authorized a subsidiary of Newmark to rescind its July 20, 2022 written notice exercising the optional redemption of its 27.2% ownership interest in Real Estate LP and amend the joint venture agreement between Newmark and Real Estate LP to provide for a redemption option for this investment after July 1, 2023, with proceeds to be received within 20 days of the redemption notice. A payment of $44.0 thousand administrative fee was made to Newmark in connection with such amendment.
Investments Carried Under Measurement Alternatives
Newmark has acquired investments in entities for which it does not have the ability to exert significant influence over operating and financial policies (see Note 4 — “Acquisitions”).
For the years ended December 31, 2022, 2021 and 2020, Newmark recorded realized gains (losses) related to these investments of $(14.1) million, $1.6 million and $(84.2) million, respectively. The changes in value are included as a part of “Other income (loss), net” on the accompanying consolidated statements of operations. Additionally, the Company invested $2.8 million and $8.5 million for the years ended December 31, 2022 and 2021, respectively. The carrying value of these investments were $8.7 million and $20.0 million as of December 31, 2022 and 2021, respectively, and are included in “Other assets” on the accompanying consolidated balance sheets.
(9) Capital and Liquidity Requirements
Newmark is subject to various capital requirements in connection with seller/servicer agreements that Newmark has entered into with the various GSEs. Failure to maintain minimum capital requirements could result in Newmark’s inability to originate and service loans for the respective GSEs and could have a direct material adverse effect on the accompanying consolidated financial statements. Management believes that, as of December 31, 2022 and 2021, Newmark has met all capital requirements. As of December 31, 2022 and 2021, the most restrictive capital requirement was the net worth requirement of the Federal National Mortgage Association (“Fannie Mae”). Newmark exceeded the minimum requirement by $433.4 million and $400.5 million, respectively, as of December 31, 2022 and 2021.
Certain of Newmark’s agreements with Fannie Mae allow Newmark to originate and service loans under Fannie Mae’s DUS Program. These agreements require Newmark to maintain sufficient collateral to meet Fannie Mae’s restricted and operational liquidity requirements based on a pre-established formula. Certain of Newmark’s agreements with the Federal
Home Loan Mortgage Corporation (“Freddie Mac”) allow Newmark to service loans under TAH. These agreements require Newmark to pledge sufficient collateral to meet Freddie Mac’s liquidity requirement of 8% of the outstanding principal of TAH loans serviced by Newmark. Management believes that, as of December 31, 2022 and 2021, Newmark has met all liquidity requirements.
In addition, as a servicer for Fannie Mae, the Government National Mortgage Association (“Ginnie Mae”) and Federal Housing Administration, Newmark is required to advance to investors any uncollected principal and interest due from borrowers. Outstanding borrower advances were $1.3 million and $0.9 million as of December 31, 2022 and 2021, respectively, and are included in “Other assets” on the accompanying consolidated balance sheets.
(10) Loans Held for Sale, at Fair Value
Loans held for sale, at fair value represent originated loans that are typically financed by short-term warehouse facilities (see Note 21 — “Warehouse Facilities Collateralized by U.S. Government Sponsored Enterprises”) and sold within 45 days from the date the mortgage loan is funded. Newmark initially and subsequently measures all loans held for sale at fair value on the accompanying consolidated balance sheets. The fair value measurement falls within the definition of a Level 2 measurement (significant other observable inputs) within the fair value hierarchy. Electing to use fair value allows a better offset of the change in the fair value of the loans and the change in fair value of the derivative instruments used as economic hedges. Loans held for sale had a cost basis and fair value as follows (in thousands):
| | | | | | | | | | | |
| December 31, 2022 | | December 31, 2021 |
Cost Basis | $ | 137,633 | | | $ | 1,051,220 | |
Fair Value | 138,345 | | | 1,072,479 | |
As of December 31, 2022 and 2021, all of the loans held for sale were either under commitment to be purchased by Freddie Mac or had confirmed forward trade commitments for the issuance and purchase of Fannie Mae or Ginnie Mae mortgage-backed securities that will be secured by the underlying loans. As of December 31, 2022 and 2021, there were no loans held for sale that were 90 days or more past due or in nonaccrual status.
Newmark records interest income on loans held for sale, in accordance with the terms of the individual loans, during the period prior to sale. Interest income on loans held for sale is included in “Management services, servicing fees and other” on the accompanying consolidated statements of operations. Gains (losses) for fair value adjustments on loans held for sale is included in “Commercial mortgage origination, net” on the accompanying consolidated statements of operations. Interest income and gains (losses) for fair value adjustments on loans held for sale were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | | | 2022 | | 2021 | | 2020 |
Interest income on loans held for sale | | | | | | $ | 26,821 | | | $ | 20,287 | | | $ | 27,560 | |
Gains recognized on change in fair value on loans held for sale | | | | | | 712 | | | 21,259 | | | 24,294 | |
(11) Derivatives
Newmark accounts for its derivatives at fair value and recognizes all derivatives as either assets or liabilities on the accompanying consolidated balance sheets. In its normal course of business, Newmark enters into commitments to extend credit for mortgage loans at a specific rate (rate lock commitments) and commitments to deliver these loans to third-party investors at a fixed price (forward sale contracts). In addition, Newmark had previously entered into the Nasdaq Forwards (see Note 1 - "Organization and Basis of Presentation") that are accounted for as derivatives.
The fair value of derivative contracts, computed in accordance with Newmark’s netting policy, is set forth below (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | December 31, 2022 | | December 31, 2021 |
Derivative contract | | Assets | | Liabilities | | Notional Amounts(1) | | Assets | | Liabilities | | Notional Amounts(1) |
Rate lock commitments | | $ | 3,181 | | | $ | 8,754 | | | $ | 140,697 | | | $ | 3,957 | | | $ | 2,836 | | | $ | 174,787 | |
| | | | | | | | | | | | |
Forward sale contracts | | 11,139 | | | 624 | | | 278,331 | | | 4,544 | | | 2,180 | | | 1,226,007 | |
Total | | $ | 14,320 | | | $ | 9,378 | | | $ | 419,028 | | | $ | 8,501 | | | $ | 5,016 | | | $ | 1,400,794 | |
(1)Notional amounts represent the sum of gross long and short derivative contracts, an indication of the volume of Newmark’s derivative activity, and do not represent anticipated losses.
The change in fair value of rate lock commitments and forward sale contracts related to mortgage loans are reported as part of “Commercial mortgage origination, net” on the accompanying consolidated statements of operations. The change in fair value of rate lock commitments are disclosed net of $0.7 million, $1.0 million and $2.1 million of expenses for the years ended December 31, 2022, 2021 and 2020, respectively. The changes in fair value of rate lock commitments are reported as part of “Compensation and employee benefits” on the accompanying consolidated statements of operations.
Gains and losses on derivative contracts, which are included on the accompanying consolidated statements of operations were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Location of gains (losses) recognized in income for derivatives | | | | Year Ended December 31, |
| | | | | | | 2022 | | 2021 | | 2020 |
Derivatives not designed as hedging instruments: | | | | | | | | | | | | |
Nasdaq Forwards | | Other income (loss), net | | | | | | $ | — | | | $ | (12,475) | | | $ | (13,680) | |
Rate lock commitments | | Commercial mortgage origination, net | | | | | | (4,869) | | | 2,162 | | | 20,125 | |
Rate lock commitments | | Compensation and employee benefits | | | | | | (705) | | | (1,043) | | | (2,068) | |
Forward sale contracts | | Commercial mortgage origination, net | | | | | | 10,516 | | | 2,365 | | | (7,339) | |
Total | | | | | | | | $ | 4,942 | | | $ | (8,991) | | | $ | (2,962) | |
Derivative assets and derivative liabilities are included in “Other current assets”, “Other assets” and the “Accounts payable, accrued expenses and other liabilities”, on the accompanying consolidated balance sheets.
(12) Credit Enhancement Receivable, Credit Enhancement Deposit and Contingent Liability
Newmark was a party to a Credit Enhancement Agreement (“CEA”), dated March 9, 2012, with German American Capital Corporation and Deutsche Bank Americas Holding Corporation (together, the “DB Entities”). On October 20, 2016, the DB Entities assigned the CEA to Deutsche Bank AG Cayman Island Branch, a Cayman Island Branch of Deutsche Bank AG (“DB Cayman”). Under the terms of these agreements, DB Cayman provided Newmark with varying levels of ongoing credit protection, subject to certain limits, for Fannie Mae and Freddie Mac loans subject to loss-sharing (see Note 23 — “Financial Guarantee Liability”) in Newmark’s servicing portfolio as of March 9, 2012. DB Cayman also reimbursed Newmark for any losses incurred due to violation of underwriting and servicing agreements that occurred prior to March 9, 2012. In accordance within the terms of the CEA, Newmark paid all amounts due to the DB Entities on March 23, 2021 fulfilling the Company's obligations under the agreement. For the years ended December 31, 2022 and 2021, there were no reimbursements under the CEA.
Newmark's servicing portfolio consisted of the following loss-sharing components (in thousands):
| | | | | | | | | | | |
| | | |
| December 31, 2022 | | December 31, 2021 |
Total credit risk loan portfolio | $ | 27,571,719 | | | $ | 25,764,721 | |
| | | |
Maximum pre-credit enhancement loss exposure | $ | 8,375,966 | | | $ | 7,785,850 | |
| | | |
| | | |
Credit enhancement receivable
As of December 31, 2022 and 2021, there were no credit enhancement receivables.
Credit enhancement deposit
The CEA required the DB Entities to deposit $25.0 million into Newmark’s Fannie Mae restricted liquidity account (see Note 9 — “Capital and Liquidity Requirements”). On March 23, 2021, Newmark returned the credit enhancement deposit of $25.0 million to the DB Entities.
Contingent liability
Under the CEA, Newmark was required to pay DB Cayman, on March 9, 2021, an amount equal to 50% of the positive difference, if any, between (a) $25.0 million, and (b) Newmark’s unreimbursed loss-sharing payments from March 9, 2012 through March 9, 2021 on Newmark’s servicing portfolio as of March 9, 2012. On March 23, 2021, Newmark paid DB Cayman the entire outstanding amount. As of December 31, 2022 and 2021, there was no contingent liability.
(13) Revenues from Contracts with Customers
The following table presents Newmark’s total revenues separately for its revenues from contracts with customers and other sources of revenues (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | | | 2022 | | 2021 | | 2020 |
Revenues from contracts with customers: | | | | | | | | | | |
Leasing and other commissions | | | | | | 831,874 | | | $ | 826,942 | | | $ | 513,842 | |
Investment sales | | | | | | 606,416 | | | 757,744 | | | 403,971 | |
Mortgage brokerage and debt placement | | | | | | 173,253 | | | 180,561 | | | 50,135 | |
Management services | | | | | | 692,957 | | | 733,761 | | | 467,453 | |
Total | | | | | | 2,304,500 | | | 2,499,008 | | | 1,435,401 | |
Other sources of revenue(1): | | | | | | | | | | |
Fair value of expected net future cash flows from servicing recognized at commitment, net | | | | | | 109,926 | | | 136,406 | | | 194,814 | |
Loan originations related fees and sales premiums, net | | | | | | 74,573 | | | 89,075 | | | 116,100 | |
Servicing fees and other | | | | | | 216,528 | | | 181,954 | | | 158,683 | |
Total | | | | | | $ | 2,705,527 | | | $ | 2,906,443 | | | $ | 1,904,998 | |
(1)Although these items have customers under contract, they were recorded as other sources of revenue as they were excluded from the scope of ASU No. 2014-9.
Disaggregation of revenues
Newmark’s chief operating decision-maker, regardless of geographic location, evaluates the operating results, including revenues, of Newmark as total real estate services (see Note 3 — “Summary of Significant Accounting Policies” for further discussion).
Contract balances
The timing of Newmark’s revenue recognition may differ from the timing of payment by its customers. Newmark records a receivable when revenue is recognized prior to payment and Newmark has an unconditional right to payment. Alternatively, when payment precedes the provision of the related services, Newmark records deferred revenue until the performance obligations are satisfied.
Newmark’s deferred revenue primarily relates to customers paying in advance or billed in advance where the performance obligation has not yet been satisfied. Deferred revenue is recorded as a contract liability. Deferred revenue at December 31, 2022 and 2021 was $2.9 million and $3.7 million, respectively. During the years ended December 31, 2022 and 2021, Newmark recognized revenue of $2.5 million and $2.1 million, respectively, that was recorded as deferred revenue at the beginning of the period.
For Knotel and Deskeo, the Company’s remaining performance obligations that represent contracted customer revenues, generally from high credit quality customers, that have not yet been recognized as revenue as of December 31, 2022, that will be recognized as revenue in future periods over the life of the customer contracts, in accordance with ASC 606, is approximately $167.5 million. Over half of the remaining performance obligation as of December 31, 2022 is scheduled to be recognized as revenue within the next twelve months, with the remaining to be recognized over the remaining life of the customer contracts, which extends through 2030.
Approximate future cash flows to be received over the next five years as of December 31, 2022 are as follows (in thousands):
| | | | | |
2023 | $ | 89,436 | |
2024 | 44,544 | |
2025 | 22,081 | |
2026 | 7,410 | |
2027 | 2,505 | |
Thereafter | 1,506 | |
Total | $ | 167,482 | |
(14) Commercial Mortgage Origination, Net
Commercial mortgage origination, net consists of the following activity (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | Year Ended December 31, |
| | | | | | | | | 2022 | | 2021 | | 2020 |
Fair value of expected net future cash flows from servicing recognized at commitment, net | | | | | | | | | $ | 109,926 | | $ | 136,406 | | $ | 194,814 |
Loan originations related fees and sales premiums, net | | | | | | | | | 74,573 | | | 89,075 | | | 116,100 | |
Mortgage brokerage and debt placement | | | | | | | | | 173,253 | | | 180,561 | | | 50,135 | |
Total | | | | | | | | | $ | 357,752 | | | $ | 406,042 | | | $ | 361,049 | |
(15) Mortgage Servicing Rights, Net
The changes in the carrying amount of MSRs were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
Mortgage Servicing Rights | | | | | | 2022 | | 2021 | | 2020 |
Beginning Balance | | | | | | $ | 563,488 | | | $ | 528,983 | | | $ | 432,666 | |
Additions | | | | | | 130,301 | | | 147,789 | | | 193,913 | |
Purchases from an affiliate | | | | | | — | | | — | | | 200 | |
| | | | | | | | | | |
Amortization | | | | | | (117,361) | | | (113,284) | | | (97,796) | |
Ending Balance | | | | | | $ | 576,428 | | | $ | 563,488 | | | $ | 528,983 | |
| | | | | | | | | | |
Valuation Allowance | | | | | | | | | | |
Beginning Balance | | | | | | $ | (13,186) | | | $ | (34,254) | | | $ | (19,022) | |
Decrease (increase) | | | | | | 5,310 | | | 21,068 | | | (15,232) | |
Ending Balance | | | | | | $ | (7,876) | | | $ | (13,186) | | | $ | (34,254) | |
Net Balance | | | | | | $ | 568,552 | | | $ | 550,302 | | | $ | 494,729 | |
Servicing fees are included in “Management services, servicing fees and other” on the accompanying consolidated statements of operations and were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | | | 2022 | | 2021 | | 2020 |
Servicing fees | | | | | | $ | 147,514 | | | $ | 138,495 | | | $ | 116,005 | |
Escrow interest and placement fees | | | | | | 20,290 | | | 4,415 | | | 6,140 | |
Ancillary fees | | | | | | 20,408 | | | 16,932 | | | 7,353 | |
Total | | | | | | $ | 188,212 | | | $ | 159,842 | | | $ | 129,498 | |
Newmark’s primary servicing portfolio as of December 31, 2022 and 2021 was $69.0 billion and $68.4 billion, respectively. Also, Newmark is the named special servicer for a number of commercial mortgage-backed securitizations. Upon certain specified events (such as, but not limited to, loan defaults and loans assumptions), the administration of the loan is transferred to Newmark. Newmark’s special servicing portfolio was $1.7 billion and $2.0 billion as of December 31, 2022 and 2021, respectively.
The estimated fair value of the MSRs as of December 31, 2022 and 2021 was $667.6 million and $608.0 million, respectively.
Fair values are estimated using a valuation model that calculates the present value of the future net servicing cash flows. The cash flows assumptions used are based on assumptions Newmark believes market participants would use to value the portfolio. Significant assumptions include estimates of the cost of servicing per loan, discount rate, earnings rate on escrow deposits and prepayment speeds.
The discount rates used in measuring fair value for the years ended December 31, 2022 and 2021 were between 6.1% and 13.5% and varied based on investor type. An increase in discount rate of 100 basis points or 200 basis points would result in a decrease in fair value by $18.3 million and $35.7 million, respectively, as of December 31, 2022 and by $18.0 million and $35.1 million, respectively, as of December 31, 2021.
(16) Goodwill and Other Intangible Assets, Net
The changes in the carrying amount of goodwill were as follows (in thousands):
| | | | | |
Balance, January 1, 2021 | $ | 560,332 | |
Acquisitions | 97,168 | |
Measurement period and currency translation adjustments | (369) | |
Balance, December 31, 2021 | 657,131 | |
Acquisitions | 50,756 | |
Measurement period and currency translation adjustments | (1,993) | |
Balance, December 31, 2022 | $ | 705,894 | |
Goodwill is not amortized and is reviewed annually for impairment or more frequently if impairment indicators arise, in accordance with U.S. GAAP guidance on Goodwill and Other Intangible Assets. Newmark completed its annual goodwill impairment testing for the years ended December 31, 2022 and 2021, which did not result in a goodwill impairment (see Note 4 — “Acquisitions” for more information).
Other intangible assets consisted of the following (in thousands, except weighted-average life):
| | | | | | | | | | | | | | | | | | | | | | | |
| December 31, 2022 |
| Gross Amount | | Accumulated Amortization | | Net Carrying Amount | | Weighted- Average Remaining Life (Years) |
Indefinite life: | | | | | | | |
Trademark and trade names | $ | 11,350 | | | $ | — | | | $ | 11,350 | | | N/A |
License agreements (GSE) | 5,390 | | | — | | | 5,390 | | | N/A |
Definite life: | | | | | | | |
Trademark and trade names | 12,893 | | | (8,103) | | | 4,790 | | | 2.4 |
Non-contractual customers | 30,131 | | | (14,995) | | | 15,136 | | | 8.6 |
License agreements | 4,981 | | | (4,981) | | | — | | | 0.0 |
Non-compete agreements | 9,557 | | | (5,113) | | | 4,444 | | | 3.1 |
Contractual customers | 48,257 | | | (10,690) | | | 37,567 | | | 5.7 |
Other | 4,551 | | | (2,260) | | | 2,291 | | | 12.4 |
Total | $ | 127,110 | | | $ | (46,142) | | | $ | 80,968 | | | 5.9 |
| | | | | | | | | | | | | | | | | | | | | | | |
| December 31, 2021 |
| Gross Amount | | Accumulated Amortization | | Net Carrying Amount | | Weighted- Average Remaining Life (Years) |
Indefinite life: | | | | | | | |
Trademark and trade names | $ | 11,350 | | | $ | — | | | $ | 11,350 | | | N/A |
License agreements (GSE) | 5,390 | | | — | | | 5,390 | | | N/A |
Definite life: | | | | | | | |
Trademark and trade names | 12,765 | | | (6,021) | | | 6,744 | | | 3.7 |
Non-contractual customers | 30,131 | | | (12,815) | | | 17,316 | | | 9.4 |
License agreements | 4,981 | | | (4,981) | | | — | | | 0.0 |
Non-compete agreements | 6,558 | | | (3,898) | | | 2,660 | | | 3.5 |
Contractual customers | 33,731 | | | (3,822) | | | 29,909 | | | 7.0 |
Other | 4,552 | | | (1,722) | | | 2,830 | | | 5.3 |
Total | $ | 109,458 | | | $ | (33,259) | | | $ | 76,199 | | | 7.1 |
Intangible amortization expense for the years ended December 31, 2022, 2021 and 2020 was $14.3 million, $8.9 million and $6.7 million, respectively. Intangible amortization is included as a part of “Depreciation and amortization” on the accompanying consolidated statements of operations. Impairment charges are included in intangible amortization expense.
The estimated future amortization of definite life intangible assets as of December 31, 2022 was as follows (in thousands):
| | | | | |
2023 | $ | 13,769 | |
2024 | 13,215 | |
2025 | 11,791 | |
2026 | 8,357 | |
2027 | 5,556 | |
Thereafter | 11,540 | |
Total | $ | 64,228 | |
(17) Fixed Assets, Net
Fixed assets, net consisted of the following (in thousands):
| | | | | | | | | | | |
| |
| December 31, 2022 | | December 31, 2021 |
Leasehold improvements, furniture and fixtures, and other fixed assets | $ | 207,020 | | | $ | 184,704 | |
Software, including software development costs | 48,112 | | | 32,851 | |
Computer and communications equipment | 31,586 | | | 27,382 | |
Total, cost | 286,718 | | | 244,937 | |
Accumulated depreciation and amortization | (131,079) | | | (109,181) | |
Total, net | $ | 155,639 | | | $ | 135,756 | |
Depreciation expense for the years ended December 31, 2022, 2021 and 2020 was $42.4 million, $22.0 million and $22.9 million, respectively. Newmark recorded an impairment charge of $14.0 million, $0.0 million and $6.0 million for the years ended December 31, 2022, 2021 and 2020, respectively. The impairment charge is included as a part of “Depreciation and amortization” on the accompanying consolidated statements of operations.
Capitalized software development costs for the years ended December 31, 2022, 2021 and 2020 were $12.3 million, $0.7 million and $2.0 million, respectively. Amortization of software development costs totaled $2.1 million, $1.3 million and $1.3 million for the years ended December 31, 2022, 2021 and 2020, respectively. Amortization of software development costs is included as part of “Depreciation and amortization” on the accompanying consolidated statements of operations.
(18) Leases
Newmark has operating leases for real estate and equipment. These leases have remaining lease terms ranging from 1 to 11 years, some of which include options to extend the leases in 1 to 10 years increments for up to 10 years. Renewal periods are included in the lease term only when renewal is reasonably certain, which is a high threshold and requires management to apply the judgment to determine the appropriate lease term. Certain leases also include periods covered by an option to terminate the lease if Newmark is reasonably certain not to exercise the termination option. The Company measures its lease payments by including fixed rental payments and, where relevant, variable rental payments tied to an index, such as the Consumer Price Index. Payments for leases in place before the date of adoption of ASC 842, Leases were determined based on previous leases guidance. The Company recognizes lease expense for its operating leases on a straight-line basis over the lease term and variable lease expense not included in the lease payment measurement is recognized as incurred. All leases were classified as operating leases as of December 31, 2022.
Pursuant to the accounting policy election, leases with an initial term of twelve months or less are not recognized on the balance sheet. The short-term lease expense over the period reasonably reflects the Company’s short-term lease commitments.
ASC 842, Leases requires the Company to make certain assumptions and judgments in applying the guidance, including determining whether an arrangement includes a lease, determining the term of a lease when the contract has renewal or cancellation provisions, and determining the discount rate.
The Company determines whether an arrangement is a lease or includes a lease at the contract inception by evaluating whether the contract conveys the right to control the use of an identified asset for a period of time in exchange for consideration. If the Company has the right to obtain substantially all of the economic benefits from, and can direct the use of, the identified asset for a period of time, the Company accounts for the identified asset as a lease. The Company has elected the
practical expedient to not separate lease and non-lease components for all leases other than real estate leases. The primary non-lease component that is combined with a lease component represents operating expenses such as utilities, maintenance or management fees.
As the rate implicit in the lease is not usually available, the Company used an incremental borrowing rate based on the information available at the adoption date of the new Leases standard in determining the present value of lease payments for existing leases. The Company has elected to use a portfolio approach for the incremental borrowing rate, applying corporate bond rates to the leases. The Company calculated the appropriate rates with reference to the lease term and lease currency. The Company uses information available at the lease commencement date to determine the discount rate for any new leases.
Total lease liability as of December 31, 2022 is $723.9 million. Of the total amount, $188.0 million of lease liability is within our flexible workspace business whereby the liability is ring-fenced in special purpose vehicles with only $36.5 million of guarantees and/or letters of credit with exposure to Newmark Group, Inc. In addition, Newmark has contracted future customer revenues and sub-lease income as of December 31, 2022 amounting to approximately $183.7 million.
Operating lease costs were $119.7 million, $75.5 million and $50.4 million for the years ended December 31, 2022, 2021 and 2020, respectively, and are included in “Operating, administrative and other” on the accompanying consolidated statements of operations. Operating cash flows for the years ended December 31, 2022, 2021 and 2020, included payments of $106.8 million, $81.7 million and $49.0 million for operating lease liabilities, respectively. As of December 31, 2022 and 2021, Newmark did not have any leases that have not yet commenced but that create significant rights and obligations. For the years ended December 31, 2022, 2021 and 2020, Newmark had short-term lease expense of $0.7 million, $1.1 million and $0.8 million, respectively. For the years ended December 31, 2022, 2021 and 2020 Newmark had sublease income of $1.5 million, $0.6 million and $1.3 million, respectively. For the years ended December 31, 2022, 2021 and 2020, Newmark recorded a lease impairment charge of $14.4 million, $0.0 million, $5.1 million, respectively, to "Operating administrative and other" on the accompanying consolidated statements of operations.
The weighted-average discount rate as of December 31, 2022 and 2021 was 4.61% and 3.95%, and the remaining weighted-average lease term was 7.0 years and 7.4 years, respectively.
As of December 31, 2022 and 2021, Newmark had operating lease Right-of-use assets of $638.6 million and $606.6 million, respectively, and operating lease Right-of-use liabilities of $96.9 million and $82.0 million, respectively, recorded in “Accounts payable, and accrued expenses and other liabilities” and $627.1 million and $586.1 million, respectively, recorded in “Right-of-use liabilities”, on the accompanying consolidated balance sheets.
Rent expense, including the operating lease costs above, for the years ended December 31, 2022, 2021 and 2020, were $146.8 million, $105.2 million and $49.9 million, respectively. Rent expense is included in “Operating, administrative and other” on the accompanying consolidated statements of operations.
Newmark is obligated for minimum rental payments under various non-cancelable operating leases, principally for office space, expiring at various dates through 2033. Certain of these leases contain escalation clauses that require payment of additional rent to the extent of increases in certain operating or other costs.
Minimum lease payments under these arrangements, net of payments to be received under a sublease, were as follows (in thousands):
| | | | | | | | | | | |
| |
| December 31, 2022 | | December 31, 2021 |
2023 | $ | 125,633 | | | $ | 113,822 | |
2024 | 127,996 | | | 112,840 | |
2025 | 126,234 | | | 106,038 | |
2026 | 121,596 | | | 101,211 | |
2027 | 110,997 | | | 96,493 | |
Thereafter | 242,185 | | | 274,764 | |
Total lease payments | 854,641 | | | 805,168 | |
Less: Interest | 141,792 | | | 137,141 | |
Present value of lease liability | $ | 712,849 | | | $ | 668,027 | |
(19) Other Current Assets and Other Assets
Other current assets consisted of the following (in thousands):
| | | | | | | | | | | |
| |
| December 31, 2022 | | December 31, 2021 |
Derivative assets | $ | 14,320 | | | $ | 8,501 | |
| | | |
Prepaid expenses | 40,393 | | | 36,422 | |
Other taxes | 21,988 | | | 17,383 | |
Rent and other deposits | 19,284 | | | 20,471 | |
Other | 4,203 | | | 560 | |
Total | $ | 100,188 | | | $ | 83,337 | |
Other assets consisted of the following (in thousands):
| | | | | | | | | | | |
| |
| December 31, 2022 | | December 31, 2021 |
Deferred tax assets | $ | 94,689 | | | $ | 70,191 | |
Equity method investment | 91,280 | | | 88,308 | |
| | | |
Non-marketable investments | 8,688 | | | 20,017 | |
| | | |
Other | 19,609 | | | 33,965 | |
Total | $ | 214,266 | | | $ | 212,481 | |
(20) Repurchase Agreements and Securities Loaned
Securities sold under Repurchase Agreements are accounted for as collateralized financing transactions and are recorded at the contractual amount for which the securities will be repurchase, including accrued interest. As of December 31, 2021, Newmark had securities loaned with Cantor of $140.0 million. The market value of the securities loaned was $182.0 million as of December 31, 2021. The cash collateral received from Cantor bore an interest rate of 0.95% as of December 31, 2021. As of December 31, 2022, there were no repurchase agreements and securities loaned on the accompanying consolidated balance sheet.
(21) Warehouse Facilities Collateralized by U.S. Government Sponsored Enterprises
Newmark uses its warehouse facilities and repurchase agreements to fund mortgage loans originated under its various lending programs. Outstanding borrowings against these lines are collateralized by an assignment of the underlying mortgages and third-party purchase commitments and are recourse only to our wholly-owned subsidiary, Berkeley Point Capital, LLC.
Newmark had the following lines available and borrowings outstanding (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Committed Lines | | Uncommitted Lines | | Balance at December 31, 2022 | | Balance at December 31, 2021 | | Stated Spread to One-Month LIBOR/SOFR(2) | | Rate Type |
Warehouse facility due June 14, 2023 (1) | $ | 450,000 | | | $ | — | | | $ | — | | | $ | 243,659 | | | 130 bps | | Variable |
Warehouse facility due June 14, 2023 (1) | — | | | 300,000 | | | — | | | 135,601 | | | 130 bps | | Variable |
Warehouse facility due September 25, 2023 | 300,000 | | | — | | | 35,292 | | | 193,091 | | | 130 bps | | Variable |
Warehouse facility due September 25, 2023 | — | | | 100,000 | | | — | | | — | | | 130 bps | | Variable |
Warehouse facility due October 6, 2023 | 800,000 | | | — | | | 102,114 | | | 384,571 | | | 130 bps | | Variable |
Fannie Mae repurchase agreement, open maturity | — | | | 400,000 | | | — | | | 93,771 | | | 115 bps | | Variable |
Total | $ | 1,550,000 | | | $ | 800,000 | | | $ | 137,406 | | | $ | 1,050,693 | | | | | |
(1)The warehouse line established a $125.0 million sublimit line of credit to fund potential principal and interest servicing advances on the Company's Fannie Mae portfolio during the forbearance period related to the CARES Act. Advances will have an interest rate of 1-month SOFR plus 180 bps. There were no outstanding draws under this sublimit as of December 31, 2022 and 2021.
(2)As of December 31, 2022, the spread for all warehouse facilities and the Fannie Mae repurchase line are to SOFR. As of December 31, 2021, the spread for the Fannie Mae repurchase line is to SOFR and the warehouse lines are to LIBOR.
Pursuant to the terms of the warehouse facilities, Newmark is required to meet several financial covenants. Newmark was in compliance with all covenants as of December 31, 2022 and 2021, respectively.
The borrowing rates on the warehouse facilities are based on short-term LIBOR or SOFR plus applicable margins. Due to the short-term maturity of these instruments, the carrying amounts approximate fair value.
(22) Debt
Debt consisted of the following (in thousands):
| | | | | | | | | | | |
| |
| December 31, 2022 | | December 31, 2021 |
6.125% Senior Notes | $ | 547,784 | | | $ | 545,239 | |
Credit Facility | — | | | — | |
Total | $ | 547,784 | | | $ | 545,239 | |
6.125% Senior Notes
On November 6, 2018, Newmark closed its offering of $550.0 million aggregate principal amount of 6.125% Senior Notes due November 15, 2023 (the “6.125% Senior Notes”). The 6.125% Senior Notes were priced on November 1, 2018 at 98.94% to yield 6.375%. The 6.125% Senior Notes were offered and sold by Newmark in a private offering exempt from the registration requirements under the Securities Act of 1933, as amended (“Securities Act”). The 6.125% Senior Notes were subsequently exchanged for notes with substantially similar terms that were registered under the Securities Act. The 6.125% Senior Notes bear an interest rate of 6.125% per annum, payable on each May 15 and November 15, beginning on May 15, 2019, and will mature on November 15, 2023.
The carrying amount of the 6.125% Senior Notes was determined as follows (in thousands):
| | | | | | | | | | | |
| | | |
| December 31, 2022 | | December 31, 2021 |
Principal balance | $ | 550,000 | | | $ | 550,000 | |
Less: debt issue cost | 1,120 | | | 2,404 | |
Less: debt discount | 1,096 | | | 2,357 | |
Total | $ | 547,784 | | | $ | 545,239 | |
Newmark uses the effective interest rate method to amortize debt discounts and uses the straight-line method to amortize debt issue costs over the life of the notes. Interest expense, amortization of debt issue costs and amortization of the debt discount of the 6.125% Senior Notes, included in “Interest (expense) income, net” on the accompanying consolidated statements of operations, were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, | | |
| | | | 2022 | | 2021 | | 2020 | | |
Interest expense | | | | $ | 33,687 | | | $ | 33,687 | | | $ | 33,687 | | | |
Debt issue cost amortization | | | | 1,284 | | | 1,284 | | | 1,284 | | | |
Debt discount amortization | | | | 1,261 | | | 1,183 | | | 1,183 | | | |
Total | | | | $ | 36,232 | | | $ | 36,154 | | | $ | 36,154 | | | |
Debt Repurchase Program
On June 16, 2020, the Newmark Board of Directors and its Audit Committee authorized a debt repurchase program for the repurchase by Newmark of up to $50.0 million of Newmark’s 6.125% Senior Notes and any future debt securities issued by the Company.
As of December 31, 2022, Newmark had $50.0 million remaining under its debt repurchase authorization.
Credit Facility
On November 28, 2018, Newmark entered into a credit agreement by and among Newmark, the several financial institutions from time to time party thereto, as Lenders, and Bank of America N.A., as administrative agent (the “Credit Agreement”). The Credit Agreement provided for a $250.0 million three-year unsecured senior revolving credit facility (the “Credit Facility”). Borrowings under the Credit Facility bore an annual interest rate equal to, at Newmark’s option, either (a) LIBOR for specified periods, or upon the consent of all Lenders, such other period that is 12 months or less, plus an applicable margin, or (b) a base rate equal to the greatest of (i) the federal funds rate plus 0.5%, (ii) the prime rate as established by the administrative agent, and (iii) one-month LIBOR plus 1.0%, plus an applicable margin. The applicable margin was 2.0% with respect to LIBOR borrowings and could range from 1.25% to 2.25% in (a) above and was 1.00% with respect to base rate borrowings and could range from 0.25% to 1.25% in (b) above, depending upon Newmark’s credit rating. The Credit Facility also provided for an unused facility fee.
On February 26, 2020, Newmark entered into an amendment to the Credit Agreement, increasing the size of the Credit Facility to $425.0 million (the “Amended Credit Facility”) and extending the maturity date to February 26, 2023. The annual
interest rate on the Amended Credit Facility was reduced to LIBOR plus 1.75%, subject to a pricing grid linked to Newmark’s credit ratings from Standard & Poor’s and Fitch.
On March 16, 2020, Newmark entered into a second amendment to the Credit Agreement, increasing the size of the Amended Credit Facility to $465.0 million (the "Second Amended Credit Facility"). The annual interest rate on the Second Amended Credit Facility was LIBOR plus 1.75%, subject to a pricing grid linked to Newmark’s credit ratings from S&P Global Ratings and Fitch. In July 2021, Newmark paid the $140.0 million outstanding on the Credit Facility.
On March 10, 2022, Newmark entered into the A&R Credit Agreement, which amended and restated the Credit Agreement, as amended. Pursuant to the A&R Credit Agreement, the Lenders agreed to: (a) increase the amount available to the Company under the Credit Facility to $600.0 million, (b) extend the maturity date of the Credit Facility to March 10, 2025, and (c) improve pricing to 1.50% per annum with respect to Term SOFR (as defined in the A&R Credit Agreement) borrowings.
As of December 31, 2021, borrowings under the Credit Facility carried an interest rate of 0.00%, with a weighted-average interest rate of 1.03% for the year then ended. As of December 31, 2022, there were no borrowings under the Credit Facility. Newmark uses the straight-line method to amortize debt issue costs over the life of the notes. Interest expense and amortization of debt issue costs of the Credit Facility, included in “Interest (expense) income, net” on the accompanying consolidated statements of operations, were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, | | |
| | | | 2022 | | 2021 | | 2020 | | |
Interest expense | | | | $ | — | | | $ | 1,623 | | | $ | 6,618 | | | |
Debt issue cost amortization | | | | 1,981 | | | 826 | | | 1,101 | | | |
Unused facility fee | | | | 1,285 | | | 972 | | | 354 | | | |
Total | | | | $ | 3,266 | | | $ | 3,421 | | | $ | 8,073 | | | |
On November 30, 2018, Newmark entered into an unsecured credit agreement (the “Cantor Credit Agreement”) with Cantor (see Note 27 — “Related Party Transactions” for a more detailed discussion).
(23) Financial Guarantee Liability
Newmark shares risk of loss for loans originated under the Fannie Mae DUS and Freddie TAH programs and could incur losses in the event of defaults under or foreclosure of these loans. Under the loss-share guarantee, Newmark’s maximum liability to the extent of actual losses incurred is approximately 33% of the outstanding principal balance on Fannie Mae DUS or Freddie TAH loans. Risk-sharing percentages are established on a loan-by-loan basis when originated, with most loans at 33% and “modified” loans at lower percentages. Under certain circumstances, risk-sharing percentages can be revised subsequent to origination or Newmark could be required to repurchase the loan. In the event of a loss resulting from a catastrophic event that is not required to be covered by borrowers’ insurance policies, Newmark can recover the loss under its mortgage impairment insurance policy. Any potential recovery is subject to the policy’s deductibles and limits.
At December 31, 2022, the credit risk loans being serviced by Newmark on behalf of Fannie Mae and Freddie Mac had outstanding principal balances of $27.6 billion with a maximum potential loss of $8.4 billion. At December 31, 2021, the credit risk loans being serviced by Newmark on behalf of Fannie Mae and Freddie Mac had outstanding principal balances of approximately $25.8 billion with a maximum potential loss of approximately $7.8 billion. As of December 31, 2022 and 2021, there were no loans covered by the CEA.
Newmark’s current estimate of expected credit losses considers various factors, including, without being limited to, historical default and losses, current delinquency status, loan size, terms, amortization types, the forward-looking view of the primary risk drivers (debt-service coverage ratio and loan-to-value) based on forecasts of economic conditions and local market performance. During the years ended December 31, 2022, 2021 and 2020, there were increases (decreases) to the reserve by $1.7 million, $(3.6) million and $11.6 million, respectively. A loan is considered to be delinquent once it is 60 days past due. As of December 31, 2022, there was one loan in foreclosure with an outstanding principal balance of $22.8 million, with a maximum loss exposure of $7.6 million. Proceeds from the liquidation of the assets are estimated to be approximately $20.0 million based on current estimates of fair value. Newmark’s share of the loss would approximate $1.5 million. As of December 31, 2022, there was one delinquent loan that had an outstanding principal balance of $7.3 million, with a maximum loss exposure of $2.4 million. Proceeds from the liquidation of the asset are estimated to be approximately $4.2 million based on current estimate of fair value. Newmark's share of the loss would approximate $1.1 million. As of December 31, 2021, there were two loans in the credit risk portfolio that were delinquent with outstanding principal balances of $33.6 million, with a maximum loss exposure of $11.2 million. If both delinquent loans resulted in a loss event, proceeds from the liquidation of the
assets are estimated to be approximately $28.4 million based on estimates of fair value at December 31, 2021. Newmark's share of the loss would approximate $2.3 million. As of December 31, 2022 and 2021, no actual losses were incurred.
The provisions for risk-sharing were included in “Operating, administrative and other” on the accompanying consolidated statements of operations as follows (in thousands):
| | | | | |
Balance, January 1, 2021 | $ | 29,581 | |
| |
Provision for expected credit losses | (3,592) | |
Balance, December 31, 2021 | 25,989 | |
Provision for expected credit losses | 1,740 | |
Balance, December 31, 2022 | $ | 27,729 | |
(24) Concentrations of Credit Risk
The lending activities of Newmark create credit risk in the event that counterparties do not fulfill their contractual payment obligations. In particular, Newmark is exposed to credit risk related to the Fannie Mae DUS and Freddie Mac TAH loans (see Note 23 — “Financial Guarantee Liability”). As of December 31, 2022, 20% and 11% of $8.4 billion of the maximum loss was for properties located in California and Texas, respectively. As of December 31, 2021, 20% and 13% of $7.8 billion of the maximum loss was for properties located in California and Texas, respectively.
(25) Escrow and Custodial Funds
In conjunction with the servicing of multifamily and commercial loans, Newmark holds escrow and other custodial funds. Escrow funds are held at unaffiliated financial institutions generally in the form of cash and cash equivalents. These funds amounted to $1.0 billion and $2.3 billion, as of December 31, 2022 and 2021, respectively. These funds are held for the benefit of Newmark’s borrowers and are segregated in custodial bank accounts. These amounts are excluded from the assets and liabilities of Newmark.
(26) Fair Value of Financial Assets and Liabilities
U.S. GAAP guidance establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets and liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy are as follows:
•Level 1 measurements—Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities.
•Level 2 measurements—Quoted prices in markets that are not active or financial instruments for which all significant inputs are observable, either directly or indirectly.
•Level 3 measurements—Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable.
As required by U.S. GAAP guidance, assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The following table sets forth by level within the fair value hierarchy financial assets and liabilities accounted for at fair value under U.S. GAAP guidance (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2022 |
| Level 1 | | Level 2 | | Level 3 | | Total |
Assets: | | | | | | | |
Marketable securities | $ | 788 | | | $ | — | | | $ | — | | | $ | 788 | |
Loans held for sale, at fair value | — | | | 138,345 | | | — | | | 138,345 | |
| | | | | | | |
Rate lock commitments | — | | | — | | | 3,181 | | | 3,181 | |
| | | | | | | |
Forward sale contracts | — | | | — | | | 11,139 | | | 11,139 | |
Total | $ | 788 | | | $ | 138,345 | | | $ | 14,320 | | | $ | 153,453 | |
Liabilities: | | | | | | | |
| | | | | | | |
Contingent consideration | — | | | — | | | 8,343 | | | 8,343 | |
Rate lock commitments | — | | | — | | | 8,754 | | | 8,754 | |
Forward sale contracts | — | | | — | | | 624 | | | 624 | |
Total | $ | — | | | $ | — | | | $ | 17,721 | | | $ | 17,721 | |
| | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2021 |
| Level 1 | | Level 2 | | Level 3 | | Total |
Assets: | | | | | | | |
Marketable securities | $ | 524,569 | | | $ | — | | | $ | — | | | $ | 524,569 | |
Loans held for sale, at fair value | — | | | 1,072,479 | | | — | | | 1,072,479 | |
| | | | | | | |
Rate lock commitments | — | | | — | | | 3,957 | | | 3,957 | |
| | | | | | | |
Forward sale contracts | — | | | — | | | 4,544 | | | 4,544 | |
Total | $ | 524,569 | | | $ | 1,072,479 | | | $ | 8,501 | | | $ | 1,605,549 | |
Liabilities: | | | | | | | |
Contingent consideration | $ | — | | | $ | — | | | $ | 12,338 | | | $ | 12,338 | |
Rate lock commitments | — | | | — | | | 2,836 | | | 2,836 | |
Forwards sale contracts | — | | | — | | | 2,180 | | | 2,180 | |
Total | $ | — | | | $ | — | | | $ | 17,354 | | | $ | 17,354 | |
There were no transfers among Level 1, Level 2 and Level 3 for the years ended December 31, 2022 and 2021, respectively.
Level 3 Financial Assets and Liabilities: Changes in Level 3 Nasdaq Forwards, rate lock commitments, forward sale contracts and contingent consideration measured at fair value on recurring basis were as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2022 |
| Opening Balance | | Total realized and unrealized gains (losses) included in Net income | | Additions | | Settlements | | Closing Balance | | Unrealized gains (losses) outstanding |
Assets: | | | | | | | | | | | |
Rate lock commitments | $ | 3,957 | | | $ | 3,181 | | | $ | — | | | $ | (3,957) | | | $ | 3,181 | | | $ | 3,181 | |
Forward sale contracts | 4,544 | | | 11,139 | | | — | | | (4,544) | | | 11,139 | | | 11,139 | |
| | | | | | | | | | | |
Total | $ | 8,501 | | | $ | 14,320 | | | $ | — | | | $ | (8,501) | | | $ | 14,320 | | | $ | 14,320 | |
| | | | | | | | | | | |
| Opening Balance | | Total realized and unrealized gains (losses) included in Net income | | Additions | | Settlements | | Closing Balance | | Unrealized gains (losses) outstanding |
Liabilities: | | | | | | | | | | | |
Contingent consideration | $ | 12,338 | | | $ | (1,893) | | | $ | 6,226 | | | $ | (8,328) | | | $ | 8,343 | | | $ | (1,893) | |
Rate lock commitments | 2,836 | | | 8,754 | | | — | | | (2,836) | | | 8,754 | | | 8,754 | |
Forward sale contracts | 2,180 | | | 624 | | | — | | | (2,180) | | | 624 | | | 624 | |
Total | $ | 17,354 | | | $ | 7,485 | | | $ | 6,226 | | | $ | (13,344) | | | $ | 17,721 | | | $ | 7,485 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2021 |
| Opening Balance | | Total realized and unrealized gains (losses) included in Net income | | Additions | | Settlements | | Closing Balance | | Unrealized gains (losses) outstanding |
Assets: | | | | | | | | | | | |
Rate lock commitments | $ | 21,034 | | | $ | 3,957 | | | $ | — | | | $ | (21,034) | | | $ | 3,957 | | | $ | 3,957 | |
Forward sale contracts | 7,632 | | | 4,544 | | | — | | | (7,632) | | | 4,544 | | | 4,544 | |
Nasdaq Forwards | 12,822 | | | (12,822) | | | — | | | — | | | — | | | — | |
Total | $ | 41,488 | | | $ | (4,321) | | | $ | — | | | $ | (28,666) | | | $ | 8,501 | | | $ | 8,501 | |
| | | | | | | | | | | |
| Opening Balance | | Total realized and unrealized gains (losses) included in Net income | | Additions | | Settlements | | Closing Balance | | Unrealized gains (losses) outstanding |
Liabilities: | | | | | | | | | | | |
Contingent consideration | $ | 31,481 | | | $ | (1,351) | | | $ | — | | | $ | (17,792) | | | $ | 12,338 | | | $ | 12,338 | |
Rate lock commitments | 2,977 | | | 2,836 | | | — | | | (2,977) | | | 2,836 | | | 2,836 | |
Forward sale contracts | 14,971 | | | 2,180 | | | — | | | (14,971) | | | 2,180 | | | 2,180 | |
Total | $ | 49,429 | | | $ | 3,665 | | | $ | — | | | $ | (35,740) | | | $ | 17,354 | | | $ | 17,354 | |
Quantitative Information About Level 3 Fair Value Measurements
The following tables present quantitative information about the significant unobservable inputs utilized by Newmark in the fair value measurement of Level 3 assets and liabilities measured at fair value on a recurring basis:
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December 31, 2022 |
Level 3 assets and liabilities | | Assets | | Liabilities | | Significant Unobservable Inputs | | Range | | Weighted Average |
Accounts payable, accrued expenses and other liabilities: | | | | | | | | | | |
Contingent consideration | | $ | — | | | $ | 8,343 | | | Discount rate | | 4.0% - 11.8% | (1) | 5.1% |
| | | | | | Probability of meeting earnout and contingencies | | 75.0% - 100.0% | (1) | 98.9% |
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Derivative assets and liabilities: | | | | | | | | | | |
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Forward sale contracts | | $ | 11,139 | | | $ | 624 | | | Counterparty credit risk | | N/A | | N/A |
Rate lock commitments | | $ | 3,181 | | | $ | 8,754 | | | Counterparty credit risk | | N/A | | N/A |
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December 31, 2021 |
Level 3 assets and liabilities | | Assets | | Liabilities | | Significant Unobservable Inputs | | Range | | Weighted Average |
Accounts payable, accrued expenses and other liabilities: | | | | | | | | | | |
Contingent consideration | | $ | — | | | $ | 12,338 | | | Discount rate | | 4.0% - 10.2% | (1) | 8.1% |
| | | | | | Probability of meeting earnout and contingencies | | 75.0% - 99.0% | (1) | 91.6% |
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Derivative assets and liabilities: | | | | | | | | | | |
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Forward sale contracts | | $ | 4,544 | | | $ | 2,180 | | | Counterparty credit risk | | N/A | | N/A |
Rate lock commitments | | $ | 3,957 | | | $ | 2,836 | | | Counterparty credit risk | | N/A | | N/A |
(1)Newmark’s estimate of contingent consideration as of December 31, 2022 and December 31, 2021 was based on the acquired business’ projected future financial performance, including revenues.
Valuation Processes - Level 3 Measurements
Both the rate lock commitments to borrowers and the forward sale contracts to investors are derivatives and, accordingly, are marked to fair value on the accompanying consolidated statements of operations. The fair value of Newmark’s rate lock commitments to borrowers and loans held for sale and the related input levels includes, as applicable:
•The assumed gain or loss of the expected loan sale to the investor, net of employee benefits;
•The expected net future cash flows associated with servicing the loan;
•The effects of interest rate movements between the date of the rate lock and the balance sheet date; and
•The nonperformance risk of both the counterparty and Newmark.
The fair value of Newmark’s forward sales contracts to investors considers effects of interest rate movements between the trade date and the balance sheet date. The market price changes are multiplied by the notional amount of the forward sales contracts to measure the fair value.
The fair value of Newmark’s rate lock commitments and forward sale contracts is adjusted to reflect the risk that the agreement will not be fulfilled. Newmark’s exposure to nonperformance in rate lock and forward sale contracts is represented by the contractual amount of those instruments. Given the credit quality of Newmark’s counterparties, the short duration of rate lock commitments and forward sales contracts, and Newmark’s historical experience with the agreements, management does not believe the risk of nonperformance by Newmark’s counterparties to be significant.
The Nasdaq Forwards were derivatives and, accordingly, were marked to fair value on the accompanying consolidated statements of operations. The fair values of the Nasdaq Forwards were determined utilizing the following inputs, as applicable:
•The underlying number of shares and the related strike price;
•The maturity date; and
•The implied volatility of Nasdaq’s stock price.
The fair values of Newmark’s Nasdaq Forwards considered the effects of Nasdaq’s stock price volatility between the balance sheet date and the maturity date. The fair value is determined by the use of a Black-Scholes put option valuation model.
Information About Uncertainty of Level 3 Fair Value Measurements
The significant unobservable inputs used in the fair value of Newmark’s contingent consideration are the discount rate and probability of meeting earnout and contingencies. Significant increases (decreases) in the discount rate would have resulted in a significantly lower (higher) fair value measurement. Significant increases (decreases) in the probability of meeting earnout and contingencies would have resulted in a significantly higher (lower) fair value measurement. As of December 31, 2022 and 2021, the present value of expected payments related to Newmark’s contingent consideration was $8.3 million and $12.3 million, respectively (see Note 31 — “Commitments and Contingencies”). As of December 31, 2022 and 2021, the undiscounted value of the payments, assuming that all contingencies are met, would be $30.9 million and $13.2 million, respectively.
Fair Value Measurements on a Non-Recurring Basis
Equity investments carried under the measurement alternative are remeasured at fair value on a non-recurring basis to reflect observable transactions which occurred during the period. Newmark applied the measurement alternative to equity securities with the fair value of $8.7 million and $20.0 million, which was included in “Other assets” on the accompanying consolidated balance sheets as of December 31, 2022 and 2021, respectively. These investments are classified within Level 2 in the fair value hierarchy, because their estimated fair value is based on valuation methods using the observable transaction price at the transaction date.
(27) Related Party Transactions
(a)Service Agreements
Newmark receives administrative services, including but not limited to, treasury, legal, accounting, information technology, payroll administration, human resources, incentive compensation plans and other support, provided by Cantor. Allocated expenses were $28.5 million, $23.8 million, and $22.6 million for the years ended December 31, 2022, 2021 and 2020, respectively. These expenses are included as part of “Fees to related parties” on the accompanying consolidated statements of operations.
(b)Loans, Forgivable Loans and Other Receivables from Employees and Partners
Newmark has entered into various agreements with certain employees and partners whereby these individuals receive loans which may be either wholly or in part repaid from the distribution of earnings that the individuals receive on some or all of their limited partnership interests or may be forgiven over a period of time. The forgivable portion of these loans is recognized as compensation expense over the life of the loans. From time to time, Newmark may also enter into agreements with employees and partners to grant bonus and salary advances or other types of loans. These advances and loans are repayable in the timeframes outlined in the underlying agreements.
As of December 31, 2022 and 2021, the aggregate balance of employee loans was $500.8 million and $453.3 million, respectively, and is included as “Loans, forgivable loans and other receivables from employees and partners, net” on the accompanying consolidated balance sheets. Compensation expense for the above-mentioned employee loans for the years ended December 31, 2022, 2021 and 2020 was $84.1 million, $79.4 million and $73.6 million, respectively. The compensation expense related to these employee loans is included as part of “Compensation and employee benefits” on the accompanying consolidated statements of operations.
Other Related Party Transactions
In February 2019, Newmark's Audit Committee authorized Newmark and its subsidiaries to originate and service GSE loans for Cantor and its affiliates (other than BGC) and service loans originated by Cantor and its affiliates (other than BGC) on prices, rates and terms no less favorable to Newmark and its subsidiaries than those charged by third parties. The authorization is subject to certain terms and conditions, including but not limited to: (i) a maximum amount up to $100.0 million per loan, (ii) a $250.0 million limit on loans that have not yet been acquired or sold to a GSE at any given time, and (iii) a separate $250.0 million limit on originated Fannie Mae Loans outstanding to Cantor at any given time.
On November 30, 2020, Newmark entered into an arrangement to assist View, Inc. (“View”) in the sale of its products and services to real estate clients in exchange for commissions. View, Inc. is a Silicon Valley-based producer of high-efficiency dynamic glass that controls light, heat, and glare, providing unobstructed views and privacy using a low voltage control system. In connection with the arrangement, View also agreed to engage Newmark as its exclusive provider of real estate services for a period of at least five years. While View is not under common control with Newmark, it was, at the time that the agreement was executed, the target of a merger with CF Finance Acquisition Corp. II, a special purpose acquisition company sponsored by Cantor.
(c)Transactions with Cantor Commercial Real Estate, L.P. ("CCRE")
Newmark has a revenue-share agreement with CCRE, in which Newmark pays CCRE for referrals for leasing or other services. Newmark did not make any payments under this agreement to CCRE during the years ended December 31, 2022, 2021 and 2020. Newmark did not recognize revenue for the years ended December 31, 2022, 2021 and 2020, in connection with this revenue-share agreement.
In addition, Newmark has a loan referral agreement in place with CCRE, in which either party can refer a loan to the other. Newmark did not have any revenues from these referrals for the years ended December 31, 2022, 2021 and 2020. Such revenues are recognized in “Commercial mortgage origination, net” on the accompanying consolidated statements of operations. These referral fees are net of the broker fees and commissions paid to CCRE.
Newmark did not purchase any primary servicing rights during the years ended December 31, 2022 and 2021. Newmark also services loans for CCRE on a “fee for service” basis, generally prior to a loan’s sale or securitization, and for which no MSR is recognized. Newmark recognized servicing revenues (excluding interest and placement fees) from servicing rights purchased from CCRE on a “fee for service” basis of $3.6 million, $3.6 million and $3.8 million for the years ended December 31, 2022, 2021 and 2020, respectively, which was included as part of “Management services, servicing fee and other” on the accompanying consolidated statements of operations.
On July 22, 2019, Cantor Commercial Real Estate Lending, L.P. (“CCRE Lending”), a wholly owned subsidiary of Real Estate LP, made a $146.6 million commercial real estate loan (the “Loan”) to a single-purpose company (the “Borrower”) in which Barry Gosin, Newmark’s Chief Executive Officer, owns a 19% interest. The Loan is secured by the Borrower’s interest in property in Pennsylvania that is subject to a ground lease. While CCRE Lending initially provided the full loan amount, on August 16, 2019, a third-party bank purchased approximately 80% of the Loan value from CCRE Lending, with CCRE Lending retaining approximately 20%. The Loan matures on August 6, 2029, and is payable monthly at a fixed interest rate of 4.38% per annum.
Transactions with Executive Officers and Directors
Executive Compensation
(i) Gosin Employment Agreement
On February 10, 2023, Mr. Gosin entered into an amended and restated employment agreement with Newmark OpCo and Newmark Holdings. In connection with the employment agreement, the Compensation Committee approved for a term through at least 2024 (i) an annual cash bonus of $1,500,000; (ii) an upfront advance award of 1,145,475 Newmark NPSUs (calculated by dividing $10,000,000 by the Company's stock price of $8.73 on February 10, 2023) attributable to each year of the term and (iii) a discretionary bonus, if any, subject to approval of the Compensation Committee. A copy of the employment agreement was attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on February 14, 2023 and is described in detail therein.
(ii) Rispoli Employment Agreement
On September 29, 2022, Mr. Rispoli entered into an employment agreement with Newmark OpCo and Newmark Holdings. In connection with the employment agreement, the Compensation Committee approved the following for Mr. Rispoli: (i) an award of 500,000 Newmark RSUs granted in connection with the execution of the employment agreement, divided into tranches of 100,000 RSUs each that vest on a seven-year schedule; (ii) an award of 250,000 Newmark RSUs granted in connection with the execution of the employment agreement, divided into tranches of 50,000 RSUs each that vest on a seven-year schedule; and (iii) exchange rights into shares of Newmark Class A common stock with respect to 20,221 previously awarded non-exchangeable Newmark Holdings PSUs held by Mr. Rispoli. A copy of the employment agreement was attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 3, 2022 and is described in detail therein.
(iii) Other Executive Compensation
On December 21, 2021, the Compensation Committee approved: (i) the redemption of all of Mr. Gosin’s remaining 838,996 non-exchangeable Newmark PPSUs for $8,339,980 in cash and (ii) compensation of approximately $7,357,329 by way of the Company causing 478,328 of Mr. Gosin’s non-exchangeable Newmark PSUs to be redeemed for zero and issuing 446,711 shares of Newmark Class A Common Stock, based upon the closing price on the date the Committee approved the transaction (which was $16.47) and an exchange ratio of 0.9339. The estimated pre-tax value of this transaction is $15,697,309, less applicable taxes and withholdings, using a 53.13% tax rate for Mr. Gosin.
On December 21, 2021, Mr. Lutnick elected to redeem all of his 193,530 currently exchangeable Newmark PPSUs for a cash payment of $1,465,873. In addition, upon the Compensation Committee’s approval of the monetization of Mr. Gosin’s remaining non-exchangeable Newmark PPSUs and a number of Mr. Gosin’s non-exchangeable PSUs on December 21, 2021, Mr. Lutnick (i) elected to redeem 188,883 non-exchangeable Newmark PPSUs for a cash payment of $1,954,728, and 127,799 non-exchangeable Newmark NPPSUs for a cash payment of $1,284,376, both for which he previously waived, but now accepted under the Company’s standing policy for Mr. Lutnick; and (ii) received the right to monetize, and accepted the monetization of, his remaining 122,201 non-exchangeable Newmark NPPSUs for a cash payment of $1,228,124, under such standing policy.
In connection with the foregoing, Mr. Lutnick accepted the right to monetize approximately $4,406,915 by way of the Company causing 286,511 of Mr. Lutnick’s non-exchangeable Newmark PSUs to be redeemed for zero and issuing 267,572 shares of Newmark Class A Common Stock based upon the closing price on the date the Committee approved the transaction (which was $16.47) and a 0.9339 exchange ratio, under the Company’s standing policy applying to Mr. Lutnick, with such acceptance of rights granted in reference to Mr. Gosin’s December 2021 transactions to the extent necessary to effectuate the foregoing (and otherwise Mr. Lutnick waived all remaining rights, which shall be cumulative). The aggregate estimated pre-tax value of these transactions is $10,340,015, less applicable taxes and withholdings, using a 57.38% tax rate for Mr. Lutnick.
On June 28, 2021, in connection with the 2021 Equity Event, the Compensation Committee approved the specific transactions with respect to the Company’s executive officers set forth below. All of the transactions included in the 2021 Equity Event, with respect to Messrs. Lutnick, Gosin and Rispoli, were based on (i) the price for Newmark Class A common stock of $12.50 per share, as approved by the Compensation Committee; (ii) the price of BGC Partners Class A common stock of $5.86; and (iii) the price of Nasdaq common stock of $177.11.
On April 27, 2021, the Compensation Committee approved an additional monetization opportunity for Mr. Merkel: (i) 73,387 of Mr. Merkel’s 145,384 non-exchangeable Newmark Holdings PSUs were redeemed for zero, (ii) 19,426 of Mr. Merkel’s 86,649 non-exchangeable Newmark Holdings PPSUs were redeemed for a cash payment of $0.2 million, and (iii) 68,727 shares of Newmark Class A common stock were issued to Mr. Merkel. On the same day, the 68,727 shares of Newmark Class A common stock were repurchased from Mr. Merkel at $10.67 per share, the closing price of Newmark Class A common stock on that date, under the Company's stock buyback program. The total payment delivered to Mr. Merkel was $0.8 million, less applicable taxes and withholdings.
On March 16, 2021, the Company redeemed 30,926 non-exchangeable Newmark Holdings PSUs held by Mr. Merkel for zero and in connection therewith issued 28,962 shares of Newmark Class A common stock. On the same day, the Company
repurchased these shares from Mr. Merkel at the closing price of Newmark Class A common stock of $11.09 per share under the Company's stock buyback program. The total payment delivered to Mr. Merkel was $0.3 million, less applicable taxes and withholdings. The Compensation Committee approved these transactions.
On March 16, 2021, pursuant to the Newmark standing policy for Mr. Lutnick, the Compensation Committee granted exchange rights and/or monetization rights with respect to rights available to Mr. Lutnick. Mr. Lutnick elected to waive such rights one-time with such future opportunities to be cumulative. The aggregate number of Mr. Lutnick’s units for which he waived exchange rights or other monetization rights was 4,423,457 non-exchangeable Newmark Holdings PSUs/NPSUs, inclusive of the PSUs receiving an HDU conversion right and 1,770,016 non-exchangeable Newmark Holdings PPSUs with an aggregate determination amount of $21.6 million at that time, inclusive of the PPSUs receiving an HDU conversion right.
On March 16, 2021, the Compensation Committee granted Mr. Gosin exchange rights into shares of Newmark Class A common stock with respect to 526,828 previously awarded non-exchangeable Newmark Holdings PSUs and 30,871 non-exchangeable Newmark Holdings APSUs held by Mr. Gosin (which, based on the closing price of the Class A common stock of $11.09 per share on such date and using the exchange ratio of 0.9365, had a value of $5.8 million in the aggregate). In addition, on March 16, 2021, the Compensation Committee approved removing the sale restrictions on Mr. Gosin’s remaining 178,232 restricted shares of Class A common stock in BGC (which were originally issued in 2013) and associated 82,680 remaining restricted shares of Newmark Class A common stock (issued as a result of the Company spin-off in November 2018).
On March 16, 2021, the Compensation Committee granted Mr. Rispoli (i) exchange rights into shares of Newmark Class A common stock with respect to 6,043 previously awarded non-exchangeable Newmark Holdings PSUs held by Mr. Rispoli (which, based on the closing price of the Class A common stock of $11.09 per share on such date and using the exchange ratio of 0.9365, had a value of $0.1 million); and (ii) exchange rights into cash with respect to 4,907 previously awarded non-exchangeable Newmark Holdings PPSUs held by Mr. Rispoli (which had an average determination price of $15.57 per unit, for a total of $0.1 million in the aggregate to be paid for taxes when (i) is exchanged).
Howard W. Lutnick, Chairman
On December 27, 2021, the Compensation Committee approved a one-time bonus award to Mr. Lutnick (the “Award”), which was evidenced by the execution and delivery of a Retention Bonus Agreement dated December 28, 2021 (the “Effective Date”) and described below (the “Award Agreement”), in consideration of his success in managing certain aspects of the Company’s performance as its principal executive officer and Chairman. The Award rewarded Mr. Lutnick for his efforts in delivering superior financial results for the Company and its stockholders, including in particular his success in creating substantial value for the Company and its stockholders in connection with creating, structuring, hedging and monetizing the forward share contract to receive over time shares of common stock of Nasdaq, Inc. (the “Nasdaq Derivative”) held by the Company (together, the “Nasdaq Shares”) and the strong balance sheet and significant amount of income created from the Nasdaq Derivative. A principal reason for structuring the Award with a substantial portion to be paid out over three years was also to further incentivize Mr. Lutnick to continue to serve as both the Company’s principal executive officer and its Chairman for the benefit of the Company’s stockholders.
The Award Agreement provides for an aggregate cash payment of $50 million, payable as follows: $20 million within three days of the Effective Date (which payment was made on December 31, 2021), and $10 million within thirty days following vesting on each of the first, second and third anniversaries of the Effective Date. Any entitlement to future amounts not vested will be forfeited immediately if, prior to the applicable anniversary date, Mr. Lutnick ceases to serve as both the Company’s Chairman and its principal executive officer, unless Mr. Lutnick ceasing to serve in either such capacity occurs pursuant to a “Vesting Termination,” as that term is defined in the Award Agreement. Mr. Lutnick has purchased Newmark Class A Common Stock with the after-tax proceeds of the initial tranche of the Award. The Award Agreement describes a “Vesting Termination” as (i) a termination of Mr. Lutnick’s employment by the Company without “Cause” (as that term is defined in the Award Agreement) or (ii) an involuntary removal of the Executive from the position of Chairman of the Board on or after the occurrence of a Change in Control (as that term is defined in the Change of Control Agreement dated as of December 13, 2017 by and between Mr. Lutnick and the Company (the “Control Agreement”). In the event that Mr. Lutnick ceases to serve as both the Company’s Chairman and its principal executive officer pursuant to a Vesting Termination, any amounts not vested will immediately become fully vested. The Award Agreement provides that Mr. Lutnick ceasing to serve as the Company’s Chairman and principal executive officer pursuant to his death or disability does not constitute a Vesting Termination. The provisions of the Control Agreement do not apply to the Award. A copy of the Award Agreement was attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 29, 2021 and is described in detail under the heading “2021 Lutnick Award” in Amendment No. 1 to the Company’s Annual Report on Form 10-K/A filed with the SEC on August 15, 2022.
On June 28, 2021, in connection with the 2021 Equity Event, the Newmark Compensation Committee approved the following for Mr. Lutnick: (i) the exchange of 279,725 exchangeable Newmark Holdings PSUs into 263,025 shares of Class A
common stock of Newmark based on the then applicable exchange ratio of 0.9403; and $1,465,874 associated with Mr. Lutnick’s non-exchangeable 193,530 Newmark Holdings PPSUs was redeemed and used for tax purposes; (ii) the conversion of 552,482.62 non-exchangeable Newmark Holdings PSUs with the right to exchange PSUs into HDUs (“H-Rights”) into 552,482.62 non-exchangeable Newmark Holdings HDUs and redemption of such HDUs for their Capital Account of $7,017,000, paid in the form of Nasdaq Shares issued at $177.11 per share (which was the NASDAQ closing price as of June 28, 2021); and $7,983,000 associated with Mr. Lutnick’s non-exchangeable Newmark Holdings PPSUs with -H were redeemed and used for tax purposes; (iii) the exchange of 520,380 exchangeable BGC Holdings PSUs into 520,380 shares of Class A common stock of BGC Partners, and $1,525,705 associated with Mr. Lutnick’s exchangeable BGC Holdings PPSUs was redeemed and used for tax purposes; (iv) the redemption of 88,636 non-exchangeable BGC Holdings PSUs pursuant to Mr. Lutnick’s rights under his existing standing policy, and the issuance of 88,636 shares of Class A common stock of BGC Partners; (v) the conversion of 1,131,774 non-exchangeable BGC Holdings PSUs with H-Rights into 1,131,774 non-exchangeable BGC Holdings HDUs and $7,983,000 associated with Mr. Lutnick’s BGC Holdings PPSUs with H- Rights was redeemed and used for tax purposes in connection with the exercise of the exercise of the BGC Holdings HDUs; and (vi) the issuance of 29,059 shares of Class A common stock of Newmark. In accordance with Mr. Lutnick’s right under his existing standing policy, and in connection with the 2021 Equity Event, upon the approval of the Newmark Compensation Committee: (i) 2,909,819 non-exchangeable Newmark Holdings PSUs, pursuant to Mr. Lutnick’s rights under his existing standing policy, were redeemed and 2,736,103 shares of Class A common stock of Newmark, based upon the then applicable exchange ratio of 0.9403, were granted to Mr. Lutnick; and (ii) $8,798,546 associated with Mr. Lutnick’s rights under his existing standing policy was redeemed and used for tax purposes. See “Executive Compensation” in our proxy statement filed August 15, 2022 for additional information and definitions.
Barry M. Gosin, Chief Executive Officer
On September 20, 2021, the Compensation Committee approved a monetization opportunity for Mr. Gosin: all of Mr. Gosin’s 2,114,546 non-exchangeable BGC Holdings PSUs were redeemed for zero and 2,114,456 shares of BGC Class A common stock were issued to Mr. Gosin. Effective as of April 14, 2022, Mr. Gosin’s 905,371 BGC Holdings HDUs were redeemed for a cash payment of $3,521,893 based upon a price of $3.89 per unit, which was the closing price of BGC Partners Class A common stock on April 14, 2022.
On June 28, 2021, the Compensation Committee approved the following for Mr. Gosin, the Company’s Chief Executive Officer: (i) the exchange of 1,531,061.84 exchangeable Newmark Holdings units (comprised of 1,438,597.37 exchangeable Newmark Holdings PSUs and 92,464.47 exchangeable Newmark Holdings APSUs) into 1,439,658 shares of Class A common stock of Newmark based upon the then current exchange ratio of 0.9403; and $834,508 associated with Mr. Gosin’s exchangeable Newmark Holdings PPSUs was redeemed and used for tax purposes; (ii) the conversion of 443,871.60 non-exchangeable Newmark Holdings PSUs with H-Rights into 443,871.60 non-exchangeable Newmark Holdings HDUs, and redemption of such HDUs, less any taxes and withholdings in excess of $5,362,452, paid in the form of Nasdaq shares issued at $177.11 per share (which was the NASDAQ closing price as of June 28, 2021); and $5,362,452 in connection with Mr. Gosin’s Newmark Holdings PPSUs with H-Rights was redeemed and used for tax purposes; (iii) the exchange of 3,348,706 exchangeable BGC Holdings units (comprised of 3,147,085 exchangeable BGC Holdings PSUs and 201,621 exchangeable BGC Holdings APSUs) into 3,348,706 shares of Class A common stock of BGC Partners; and $298,273 associated with Mr. Gosin’s exchangeable BGC Holdings PPSUs was redeemed and used for tax purposes; (iv) the conversion of 1,592,016 non-exchangeable BGC Holdings PSUs with H-Rights into 1,592,016 non-exchangeable BGC Holdings HDUs, and $1,129,499 associated with Mr. Gosin non-exchangeable BGC Holdings PPSUs was redeemed and used for tax purposes; and (v) the issuance of 12,500 shares of Class A common stock of Newmark.
Michael J. Rispoli, Chief Financial Officer
On June 28, 2021, the Compensation Committee approved the following for Mr. Michael Rispoli, the Company’s Chief Financial Officer: (i) the exchange of 23,124 exchangeable Newmark Holdings PSUs into 21,744 shares of Class A common stock of Newmark based on the then current exchange ratio of 0.9403 and $208,407 associated with Mr. Rispoli’s exchangeable Newmark Holdings PPSUs was redeemed and used for tax purposes; (ii) 6,000 non-exchangeable Newmark Holdings PSUs were redeemed and an aggregate of 5,642 restricted shares of Newmark were issued to Mr. Rispoli based upon the then current exchange ratio of 0.9403, and $52,309 associated with Mr. Rispoli’s non-exchangeable Newmark Holdings PPSUs was redeemed and used for tax purposes; (iii) the conversion of 5,846.07 non-exchangeable Newmark Holdings PSUs with H-Rights into 5,846 non-exchangeable Newmark Holdings HDUs and the redemption of such HDUs, less any taxes and withholdings in excess of $60,750, paid in the form of Nasdaq shares issued at $177.11 per share (which was the NASDAQ closing price as of June 28, 2021); and $60,750 associated with Mr. Rispoli’s PPSUs with H-Rights was redeemed and used for tax purposes; (iv) the exchange of 36,985 exchangeable BGC Holdings PSUs into 36,985 shares of Class A common stock of BGC, and $134,573 associated with Mr. Rispoli’s exchangeable BGC Holdings PPSUs was redeemed and used for tax purposes; and (v) the issuance of 383 shares of Class A common stock of Newmark.
Stephen M. Merkel, Chief Legal Officer
On June 28, 2021, the Compensation Committee also approved the following for Stephen M. Merkel, the Company’s Chief Legal Officer: (i) the redemption of 51,124.28 non-exchangeable Newmark Holdings PSUs and issuance of 48,072 shares of Newmark Class A common stock based upon their current exchange ratio of 0.9403; and (ii) the redemption of 46,349.87 non-exchangeable Newmark Holdings PPSUs for a cash payment of $0.3 million, to be remitted to the applicable tax authorities to the extent necessary in connection with the issuance of the shares above.
Retirement Fund Purchase
On April 27, 2021, a Keogh retirement account held by Mr. Lutnick purchased 5,154 shares of our Class A common stock from us at the closing price of Newmark Class A common stock on that date of $10.67 per share. The transaction was approved by our Audit Committee.
On November 4, 2020, the Audit Committee of the Board of Directors authorized entities in which executive officers have a non-controlling interest to engage Newmark to provide ordinary course real estate services to them as long as Newmark’s fees are consistent with the fees that Newmark ordinarily charges for these services.
CF Real Estate Finance Holdings, LP.
Contemporaneously with the acquisition of Berkeley Point, on September 8, 2017, Newmark invested $100.0 million in a newly formed commercial real estate-related financial and investment business, Real Estate LP, which is controlled and managed by Cantor. Real Estate LP may conduct activities in any real estate related business or asset backed securities related business or any extensions thereof and ancillary activities thereto. As of December 31, 2022 and 2021, Newmark’s investment was accounted for under the equity method (see Note 8 — “Investments”). Newmark holds a redemption option in which Real Estate LP can redeem in full Newmark’s investment in Real Estate LP in exchange for Newmark’s capital account balance in Real Estate LP as of such time.
Amendment of Real Estate LP Joint Venture Agreement and Payment of Administrative Fee
In December 2022, the Audit Committee authorized a subsidiary of Newmark to rescind its July 20, 2022 written notice exercising the optional redemption of its 27.2% ownership interest in Real Estate LP and amend the joint venture agreement between Newmark and Real Estate LP to provide for a redemption option for this investment after July 1, 2023, with proceeds to be received within 20 days of the redemption notice. A payment of a $44.0 thousand administrative fee was made to Newmark in connection with such amendment.
Transactions with Cantor Fitzgerald & Co., a wholly owned broker-dealer subsidiary of Cantor ("CF&Co")
On June 18, 2018 and September 26, 2018, Newmark entered into transactions related to the monetization of the Nasdaq shares that Newmark was scheduled to receive in 2019 through 2022 (see Note 1 — “Organization and Basis of Presentation”). Newmark paid $4.0 million in fees for services provided by CF&Co related to these monetization transactions. These fees were recorded as a deduction from the carrying amount of the EPUs.
On March 28, 2019, Newmark filed a registration statement on Form S-3 pursuant to which CF&Co may make offers and sales of Newmark's 6.125% Senior Notes in connection with ongoing market-making transactions which may occur from time to time. Such market-making transactions in these securities may occur in the open market or may be privately negotiated at prevailing market prices at a time of resale or at related or negotiated prices. Neither CF&Co, nor any of our affiliates, has any obligation to make a market in Newmark's securities, and CF&Co or any such other affiliate may discontinue market-making activities at any time without notice. Newmark does not receive any proceeds from market-making activities in these securities by CF&Co (or any of its affiliates). This registration statement expired in March 2022. On March 25, 2022, Newmark filed a new Registration Statement on Form S-3 to replace the one that was expiring.
(d)Other Related Party Transactions
On November 30, 2018, Newmark entered into an unsecured credit agreement with Cantor (the “Cantor Credit Agreement”). The Cantor Credit Agreement provides for each party to issue loans to the other party at the lender’s discretion. Pursuant to the Cantor Credit Agreement, the parties and their respective subsidiaries (with respect to Cantor, other than BGC and its subsidiaries) may borrow up to an aggregate principal amount of $250 million from each other from time to time at an interest rate which is the higher of Cantor’s or Newmark’s short-term borrowing rate then in effect, plus 1%. No amounts were outstanding as of December 31, 2022 and 2021.
As of December 31, 2021, Newmark recognized a $8.3 million receivable from BGC, which is included as part of "Receivables from related parties", in the Company's consolidated balance sheet. The receivable was a result of tax refunds due
to Newmark on its share of taxable income which were included as part of BGC's consolidated tax return in the periods prior to the spin-off. This receivable was collected during the year ended December 31, 2022.
Payables to related parties were $9.7 million and $10.8 million as of December 31, 2022 and 2021, respectively.
For a detailed discussion about Newmark’s Payables to related parties, see Note 1 — “Organization and Basis of Presentation”, Note 2 — “Limited Partnership Interests in Newmark and BGC Holdings” and Note 22 — “Debt”.
On May, 15 2020, BGC U.S. OpCo ("BGC OpCo") entered into an arrangement to sublease excess space from RKF Retail Holdings LLC, a subsidiary of Newmark, which was approved by the Newmark Audit Committee. The deal was a one-year sublease of approximately 21,000 rentable square feet in New York City. Under the terms of the sublease, BGC paid a fixed rent amount of $1.1 million in addition to all operating and tax expenses attributable to the lease. In May 2021, the sublease was amended to provide for a rate of $15,000 per month based on the size of utilized space, in addition to terms extending on a month-to-month basis. The lease with BGC OpCo ended in December 2021. Newmark received $0.5 million from BGC OpCo for the year ended December 31, 2021.
In January 2022, Cantor entered into an arrangement to sublease excess space from RKF Retail Holdings LLC, a subsidiary of Newmark. The deal was a six-month sublease of approximately 21,000 rentable square feet in New York City. Under the terms of the sublease, Cantor paid all operating and tax expenses attributable to the lease. The sublease was amended to provide for a rate of $81,600 per month based on the size of utilized space, in addition to terms extending on a month-to-month basis. In July 2022, the sublease was extended one year to June 30, 2023. Newmark received $1.0 million from Cantor for the year ended December 31, 2022.
As part of the Knotel acquisition, Newmark assigned the rights to acquire certain Knotel assets to a subsidiary of Cantor, on the terms that if the subsidiary monetized the sale of these assets, Newmark would receive 10% of the proceeds of the sale after the subsidiary recoups its investment in the assets.
On June 28, 2021, the Audit Committee authorized Newmark to hire a son of its Chairman as a full-time employee of its Knotel business with an annual base salary of $125,000 and an annual discretionary bonus of up to 30% of base salary. The arrangement includes a potential profit participation consistent with other entrepreneurial arrangements in the event of certain liquidity events related to businesses developed by him. In June 2022, the Audit Committee approved ordinary course compensation adjustments and expense, travel and housing reimbursement for him in accordance with standard Company policies up to $250,000 in total compensation without further Committee review.
Cantor Rights to Purchase Cantor Units from Newmark Holdings
Cantor has a right to purchase from Newmark Holdings exchangeable limited partnership interests in the event that any Newmark Holdings founding partner interests that have not become exchangeable are redeemed by Newmark Holdings upon termination or bankruptcy of a founding partner or upon mutual consent of the general partner of Newmark Holdings and Cantor. Cantor has the right to purchase such Newmark Holdings exchangeable limited partnership interests at a price equal to the lesser of (1) the amount that Newmark Holdings would be required to pay to redeem and purchase such Newmark Holdings founding partner interests and (2) the amount equal to (a) the number of units underlying such founding partner interests, multiplied by (b) the exchange ratio as of the date of such purchase, multiplied by (c) the then-current market price of our Class A common stock. Cantor may pay such price using cash, publicly traded shares or other property, or a combination of the foregoing. If Cantor (or the other member of the Cantor group acquiring such limited partnership interests, as the case may be) so purchases such limited partnership interests at a price equal to clause (2) above, neither Cantor nor any member of the Cantor group nor Newmark Holdings nor any other person is obligated to pay Newmark Holdings or the holder of such founding partner interests any amount in excess of the amount set forth in clause (2) above.
In addition, the Newmark Holdings limited partnership agreement provides that (1) where either current, terminating or terminated partners are permitted by us to exchange any portion of their founding partner units and Cantor consents to such exchangeability, we will offer to Cantor the opportunity for Cantor to purchase the same number of new exchangeable limited partnership interests in Newmark Holdings at the price that Cantor would have paid for exchangeable limited partnership interests in the event we had redeemed the founding partner units; and (2) the exchangeable limited partnership interests to be offered to Cantor pursuant to clause (1) above would be subject to, and granted in accordance with, applicable laws, rules and regulations then in effect.
If Cantor acquires any units as a result of the purchase or redemption by Newmark Holdings of any founding partner interests, Cantor will be entitled to the benefits (including distributions) of the units it acquires from the date of termination or
bankruptcy of the applicable founding partner. In addition, any such units will be exchangeable by Cantor for a number of shares of our Class B common stock or, at Cantor’s election, shares of our Class A common stock, in each case, equal to the then-current exchange ratio, on the same basis as the limited partnership interests held by Cantor, and will be designated as Newmark Holdings exchangeable limited partnership interests when acquired by Cantor. The exchange ratio was initially one, but is subject to adjustment as set forth in the Separation and Distribution Agreement and was 0.9303 as of December 31, 2022. This may permit Cantor to receive a larger share of income generated by our business at a less expensive price than through purchasing shares of our Class A common stock, which is a result of the price payable by Cantor to Newmark.
On March 31, 2021, Cantor purchased from Newmark Holdings an aggregate of (i) 273,088 exchangeable limited partnership interests for aggregate consideration of $1,105,598 as a result of the redemption of 273,088 founding partner interests, and (ii) 735,625 exchangeable limited partnership interests for aggregate consideration of $2,918,919 as a result of the exchange of 735,625 founding partner interests.
On October 28, 2021, Cantor purchased from Newmark Holdings an aggregate of (i) 299,910 exchangeable limited partnership interests for aggregate consideration of $975,064 as a result of the redemption of 299,910 founding partner interests, and (ii) 523,284 exchangeable limited partnership interests for aggregate consideration of $1,898,363 as a result of the exchange of 523,284 founding partner interests.
On May 17, 2022, Cantor purchased from Newmark Holdings an aggregate of (i) 184,714 exchangeable limited partnership interests for aggregate consideration of $763,064 as a result of the redemption of 184,714 founding partner interests, and (ii) 23,562 exchangeable limited partnership interests for aggregate consideration of $100,079 as a result of the exchange of 23,562 founding partner interests.
On October 25, 2022, Cantor purchased from Newmark Holdings an aggregate of (i) 104,701 exchangeable limited partnership interests for aggregate consideration of $446,647 as a result of the redemption of 104,701 founding partner interests, and (ii) 102,454 exchangeable limited partnership interests for aggregate consideration of $272,100 as a result of the exchange of 102,454 founding partner interests.
Following such purchases, as of December 31, 2022 there were 150,842 founding partner interests in Newmark Holdings remaining in which the partnership had the right to redeem or exchange and with respect to which Cantor will have the right to purchase an equivalent number of Cantor units following such redemption or exchange.
First Amendment to Amended and Restated Agreement of Limited Partnership of Newmark Holdings
On March 10, 2023, Newmark Holdings entered into an Amendment (the “LPA Amendment”) to its Amended and Restated Agreement of Limited Partnership, dated as of December 13, 2017 (the “Holdings LPA”). The LPA Amendment revises certain restrictive covenants pertaining to the “Partner Obligations” and “Competitive Activity” provisions in the Holdings LPA. Specifically, the LPA Amendment (i) reduces the length of the post-termination period during which a partner must refrain from soliciting or doing business with customers, soliciting employees, engaging in a “Competing Business” (as defined therein), or otherwise refraining from harming the partnership; and (ii) revises the scope of the non-compete provisions under the “Partner Obligations” and “Competitive Activity” provisions in the Holdings LPA to cover “Competing Businesses” for which a partner performs the same or similar services as provided to a "Protected Affiliate" (as defined therein) and (a) involving a product, product line or type, or service of a “Protected Affiliate” within a specific geographic area, (b) involving a “Client” or a “Client Representative” (each as defined therein) of a Protected Affiliate, or (c) for which the disclosure of confidential information is likely to be inevitable. The LPA Amendment was approved by the Company’s Board of Directors and Audit and Compensation Committees.
Special Purpose Acquisition Company
As previously reported, in April 2021, Newmark OpCo and Cantor entered into various arrangements pursuant to which they agreed to co-sponsor a special purpose acquisition company, named Newmark Acquisition Corp. (the “SPAC”), in which certain of the Company's executive officers are executive officers and are expected to be directors. Pursuant to a purchase agreement, Newmark OpCo purchased from Cantor a 75% equity interest in an entity now known as Newmark Acquisition Holdings, LLC, the sponsor of the SPAC (the “Sponsor”), for $18.8 thousand, with Cantor retaining the remaining 25% equity interest in the Sponsor. Pursuant to an amended and restated limited liability company agreement of the Sponsor, Newmark OpCo is the managing member of the Sponsor, and Newmark OpCo and Cantor have agreed to make additional equity contributions to the Sponsor in order to fund the obligations of the Sponsor with respect to the SPAC in proportion to their equity ownership in the Sponsor. Also, in April 2021, the Sponsor agreed to lend to the SPAC up to $0.3 million without interest in order to cover expenses related to any initial public offering of the SPAC; the maturity date of the loans is the earlier of the consummation of the initial public offering of the SPAC or December 31, 2022. As of December 31, 2022, there was no outstanding balance on these loans.
Master Repurchase Agreement with Cantor
On August 2, 2021, a subsidiary of Newmark, Newmark OpCo, entered into the Repurchase Agreement with CF Secured, an affiliate of Cantor, pursuant to which Newmark could seek, from time-to-time, to execute short-term secured financing transactions. Repurchase agreements effect equity financing. The Company, under the Repurchase Agreement, could seek to sell securities, in this case common shares of Nasdaq, owned by the Company, to CF Secured, under the Repurchase Agreement, and agreed to repurchase those securities on a date certain at a repurchase price generally equal to the original purchase price plus interest.
Pursuant to the Repurchase Agreement, the Company and CF Secured agreed to enter into a repurchase transaction, wherein CF Secured could deliver the cash of such repurchase transaction to the Company on an overnight basis at an initial rate of 0.95% per annum (approximately 1.00% less expensive than Newmark’s revolving credit facility), and the Company would deliver to CF Secured the number of shares of Nasdaq as collateral so that the market value of such shares equaled 130% of such cash proceeds. The Nasdaq shares would be marked to market daily, and the minimum maintenance margin requirement, should the share price decline, would be 120% of such cash proceeds. The Company would be required to transfer additional collateral (securities and/or cash) in the event of a margin percentage decline below 120%.
As of December 31, 2022, there was no outstanding balance under this borrowing facility (see Note 7 — "Marketable Securities" and Note 20 — “Repurchase Agreements and Securities Loaned”). As of December 31, 2021, the amount of shares pledged was 0.8 million and the amount outstanding under this borrowing facility was $140.0 million and is included in "Repurchase agreements and securities loaned" on the accompanying consolidated balance sheets.
Referral Fees to Cantor
In September 2021, the Audit Committee approved the payment of a referral fee from Newmark to Cantor Realty Capital Advisors, L.P. (“CRCA”), a subsidiary of Cantor, in relation to CRCA’s referral to Newmark of a sale and lease back transaction for a portfolio of medical office properties. Newmark paid CRCA approximately $0.3 million for the referral of the portfolio sale. Newmark management negotiated the referral arrangement with CRCA in the ordinary course of business and the arrangement is reasonable and consistent with referral arrangements of its type between unrelated parties.
Additionally, in September 2021, the Audit Committee authorized Newmark and its subsidiaries to pay referral fees to Cantor and its subsidiaries (other than Newmark and its subsidiaries) in respect of referred business, pursuant to ordinary course arrangements in circumstances where Newmark would customarily pay referral fees to unrelated third parties and where Newmark is paying a referral fee to Cantor in an amount that is no more than the applicable percentage rate set forth in Newmark’s intra-company referral policies, as then in effect, with such fees to be at referral rates no less favorable to Newmark than would be paid to unrelated third parties.
Acquisition of Spring11 Ownership Interest from Cantor
In February 2023, Newmark's subsidiary, Newmark S11 Holdings, LLC (“Newmark S11”) entered into an equity purchase agreement with CFS11 Holdings, LLC (“CFS11”), a subsidiary of Cantor, pursuant to which Newmark acquired CFS11’s 33.78% ownership interest in Newmark S11 LP, LLC, the joint venture that owns a controlling interest in Spring11 Holdings, LP (“Spring11”), for a total purchase price of $11,530,598. The transaction, which also included Newmark S11 buying the remaining minority interests from other third-party owners on substantially the same terms, resulted in Newmark S11 owning 100% of Spring11. The CFS11 transaction was approved by our Audit Committee.
(28) Income Taxes
The accompanying consolidated financial statements include U.S. federal, state and local income taxes on Newmark’s allocable share of its U.S. results of operations, as well as taxes payable to jurisdictions outside the U.S. In addition, certain of Newmark’s entities are taxed as U.S. partnerships and are subject to the Unincorporated Business Tax (“UBT”) in New York City and Connecticut. Therefore, the tax liability or benefit related to the partnership income or loss except for UBT, rests with the partners (see Note 2 — “Limited Partnership Interests”, for discussion of partnership interests), rather than the partnership entity. Income taxes are accounted for using the asset and liability method, as prescribed in U.S. GAAP guidance for Income Taxes. The provision for income taxes consisted of the following (in thousands):
| | | | | | | | | | | | | | | | | |
| Year Ended December 31, |
| 2022 | | 2021 | | 2020 |
Current: | | | | | |
U.S. federal | $ | 38,954 | | | $ | 93,368 | | | $ | 24,880 | |
U.S. state and local | 21,394 | | | 28,392 | | | 6,038 | |
Foreign | 1,044 | | | 258 | | | 2,811 | |
UBT | 5,161 | | | 2,291 | | | 2,845 | |
Total | 66,553 | | | 124,309 | | | 36,574 | |
Deferred: | | | | | |
U.S. federal | (18,165) | | | 81,645 | | | 3,249 | |
U.S. state and local | (5,974) | | | 34,675 | | | (1,912) | |
Foreign | (131) | | | (38) | | | (120) | |
UBT | (229) | | | 2,367 | | | (798) | |
Total | (24,499) | | | 118,649 | | | 419 | |
Provision for income taxes | $ | 42,054 | | | $ | 242,958 | | | $ | 36,993 | |
Newmark had pre-tax income of $154.6 million, $1,221.1 million and $146.3 million for the years ended December 31, 2022, 2021 and 2020, respectively. Newmark had pre-tax income/(loss) from foreign operations of $(37.5) million, $4.8 million and $(4.5) million for the years ended December 31, 2022, 2021 and 2020, respectively.
Differences between Newmark’s actual income tax expense and the amount calculated utilizing the U.S. federal statutory rates were as follows (in thousands):
| | | | | | | | | | | | | | | | | |
| Year Ended December 31, |
| 2022 | | 2021 | | 2020 |
Tax expense at federal statutory rate | $ | 32,467 | | | $ | 256,430 | | | $ | 30,717 | |
Non-controlling interest | (11,054) | | | (57,269) | | | (10,378) | |
Incremental impact of foreign taxes compared to the federal rate | (270) | | | (557) | | | 212 | |
Other permanent differences | (5,270) | | | 850 | | | 5,272 | |
U.S. state and local taxes, net of U.S. federal benefit | 4,258 | | | 58,866 | | | 5,984 | |
New York City UBT | 1,045 | | | 4,658 | | | 2,046 | |
Section 162(m) compensation deduction limitation | 1,519 | | | 9,227 | | | — | |
Revaluation of deferred taxes related to ownership changes | 5,641 | | | (26,159) | | | (1,851) | |
Other rate change | (594) | | | 5,249 | | | (2,896) | |
Section 453A interest | — | | | — | | | 1,419 | |
Valuation allowance | 9,985 | | | 5,920 | | | 2,137 | |
Prior year true ups | 3,232 | | | (6,408) | | | 4,628 | |
Other | 1,095 | | | (7,849) | | | (297) | |
Provision for income tax | $ | 42,054 | | | $ | 242,958 | | | $ | 36,993 | |
Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the consolidated financial statement carrying amounts of existing assets and liabilities and their respective tax basis. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recorded against deferred tax assets if it is deemed more likely than not that those assets will not be realized.
Significant components of Newmark's deferred tax asset and liability consisted of the following (in thousands):
| | | | | | | | | | | |
| December 31, |
| 2022 | | 2021 |
Deferred tax asset | | | |
Basis difference of investments | 43,122 | | | 36,602 | |
Deferred compensation | 116,934 | | | 99,414 | |
Other deferred and accrued expenses | 13,846 | | | 11,182 | |
Net Operating loss and credit carry-forwards | 16,126 | | | 8,574 | |
Total deferred tax asset | 190,028 | | | 155,772 | |
Valuation Allowance | (18,504) | | | (9,562) | |
Deferred tax asset, net of allowance | 171,524 | | | 146,210 | |
Deferred tax liability | | | |
Depreciation and amortization | 76,835 | | | 76,019 | |
Other | — | | | — | |
Deferred tax liability(1) | 76,835 | | | 76,019 | |
Net deferred tax asset | 94,689 | | | 70,191 | |
(1)Before netting within tax jurisdictions.
Newmark has net operating losses ("NOL") in non-U.S. jurisdictions of an approximate tax effected value of $15.8 million, of which $10.1 million has an indefinite life. The remaining $5.7 million consists of Canada and Mexico NOL which have 10-year and 20-year lives, respectively. Management assesses the available positive and negative evidence to determine whether existing deferred tax assets will be realized. Accordingly, a total valuation allowance of $18.5 million has been recorded against the deferred tax assets, primarily related to certain net operating losses in non-U.S. jurisdictions as it is more likely than not to be realized. Newmark’s deferred tax asset and liability are included on the accompanying consolidated balance sheets as components of “Other assets” and “Other liabilities”, respectively.
The Company files income tax returns in the United States federal jurisdiction and various states, local and foreign jurisdictions. The Company is currently open to examination by tax authorities in United States federal, state and local jurisdictions and certain non-U.S. jurisdictions for tax years beginning 2019, 2018 and 2018, respectively.
The Company has elected to treat taxes associated with the GILTI provision using the Period Cost Method and thus has not recorded deferred taxes for basis differences under this regime as of December 31, 2022.
Pursuant to U.S. GAAP guidance on Accounting for Uncertainty in Income Taxes, Newmark provides for uncertain tax positions based upon management’s assessment of whether a tax benefit is more likely than not to be sustained upon examination by tax authorities.
A reconciliation of the beginning to the ending amounts of gross unrecognized tax benefits for the years ended December 31, 2022, 2021 and 2020 is as follows (in thousands):
| | | | | |
Balance, January 1, 2021 | $ | 208 | |
| |
| |
| |
| |
Decreases related to a lapse of applicable statute of limitations | (208) | |
Balance, December 31, 2021 | — | |
| |
| |
| |
| |
| |
Balance, December 31, 2022 | $ | — | |
As of December 31, 2022 and 2021, Newmark did not have any unrecognized tax benefits which, if recognized, would affect the effective tax rate. Newmark recognized interest and penalties related to income tax matters in “Provision for income taxes” on the accompanying consolidated statements of operations.
(29) Accounts Payable, Accrued Expenses and Other Liabilities
The accounts payable, accrued expenses and other liabilities consisted of the following (in thousands):
| | | | | | | | | | | |
| |
| December 31, 2022 | | December 31, 2021 |
Accounts payable and accrued expenses | $ | 208,168 | | | $ | 223,158 | |
| | | |
Outside broker payable | 82,002 | | | 73,397 | |
Payroll taxes payable | 92,247 | | | 80,249 | |
Corporate taxes payable | 22,864 | | | 56,265 | |
Derivative liability | 9,378 | | | 5,016 | |
Right-of-use liabilities | 96,860 | | | 81,958 | |
| | | |
Contingent consideration | 65 | | | 8,703 | |
Total | $ | 511,584 | | | $ | 528,746 | |
Other long-term liabilities consisted of the following (in thousands):
| | | | | | | | | | | |
| |
| December 31, 2022 | | December 31, 2021 |
Accrued compensation | $ | 95,770 | | | $ | 96,839 | |
Payroll and other taxes payable | 59,380 | | | 70,677 | |
Financial guarantee liability | 27,729 | | | 25,989 | |
Deferred rent | 5,040 | | | 9,872 | |
Contingent consideration | 8,278 | | | 3,635 | |
Total | $ | 196,197 | | | $ | 207,012 | |
(30) Compensation
Newmark’s Compensation Committee may grant various equity-based awards to employees of Newmark, including RSUs, restricted stock, limited partnership units and shares of Newmark Class A common stock upon exchange or redemption of Newmark Holdings limited partnership units (see Note 2 — “Limited Partnership Interests in Newmark Holdings and BGC Holdings”). On December 13, 2017, as part of the Separation, the Newmark Group, Inc. Long Term Incentive Plan (the “Newmark Equity Plan”) was approved by Newmark’s then sole stockholder, BGC, for Newmark to issue up to 400.0 million shares of Newmark Class A common stock, of which 115.0 million are registered, that may be delivered or cash-settled pursuant to awards granted during the life of the Newmark Equity Plan. As of December 31, 2022, awards with respect to 79.7 million shares have been granted and 320.3 million shares are available for future awards. Upon vesting of RSUs, issuance of restricted stock and exchange or redemption of limited partnership units, Newmark generally issues new shares of its Class A common stock.
Prior to the Separation, BGC’s Compensation Committee granted various equity-based awards to employees of Newmark, including RSUs, restricted stock, limited partnership units and exchange rights for shares of BGC Class A common stock upon exchange of BGC Holdings limited partnership units (see Note 2 — “Limited Partnership interests in Newmark Holdings and BGC Holdings”).
As a result of the Separation, limited partnership interests in Newmark Holdings were distributed to the holders of limited partnership interests in BGC Holdings. Each holder of BGC Holdings limited partnership interests at that time held a BGC Holdings limited partnership interest and 0.4545 of a corresponding Newmark Holdings limited partnership interest.
The exchange ratio is the number of shares of Newmark common stock that a holder will receive upon exchange of one Newmark Holdings exchangeable unit (the exchange ratio was initially one, but is subject to adjustment as set forth in the Separation and Distribution Agreement and was 0.9303 as of December 31, 2022).
Newmark incurred compensation expense related to Class A common stock, limited partnership units and RSUs held by Newmark employees as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, |
| | | | 2022 | | 2021 | | 2020 | | |
Issuance of common stock and exchangeability expenses | | | | $ | 92,308 | | | $ | 312,718 | | | $ | 69,041 | | | |
Allocations of net income to limited partnership units and FPUs (1) | | | | 15,875 | | | 55,183 | | | 30,461 | | | |
Limited partnership units amortization | | | | 8,322 | | | (28,351) | | | 18,692 | | | |
RSU amortization | | | | 21,807 | | | 16,795 | | | 12,565 | | | |
Equity-based compensation and allocations of net income to limited partnership units and FPUs | | | | $ | 138,312 | | | $ | 356,345 | | | $ | 130,759 | | | |
(1)Certain limited partnership units receive quarterly allocations of net income and are generally contingent upon services being provided by the unit holders, including the Preferred Distribution.
(a) Limited Partnership Units
A summary of the activity associated with limited partnership units held by Newmark employees is as follows:
| | | | | | | | | | | |
| Newmark Units | | BGC Units |
Balance, January 1, 2021 | 66,626,185 | | | 54,422,002 | |
Issued | 10,143,799 | | | 159,057 | |
Redeemed/exchanged units | (58,099,726) | | | (45,024,619) | |
Forfeited units/other | (250,645) | | | (892,510) | |
Balance, December 31, 2021 | 18,419,613 | | | 8,663,930 | |
Issued | 15,402,041 | | | 25,032 | |
Redeemed/exchanged units | (2,934,984) | | | (3,169,063) | |
Forfeited units/other | (198,716) | | | (60,511) | |
December 31, 2022 (2) | 30,687,954 | | | 5,459,388 | |
| | | |
Total exchangeable units outstanding(1): | | | |
December 31, 2021 | 2,468,443 | | | 3,456,479 | |
December 31, 2022 | 7,861,359 | | | 2,654,749 | |
(1)The Limited Partnership table above also includes partnership units issued for consideration for acquisitions. As of December 31, 2022, there were 3.9 million partnership units in Newmark Holdings outstanding, of which 1.5 million units were exchangeable, and 4.8 million partnership units in BGC Holdings outstanding, of which 2.5 million were exchangeable. As of December 31, 2021, there were 4.2 million partnership units in Newmark Holdings outstanding, of which 1.3 million units were exchangeable, and 6.8 million partnership units in BGC Holdings outstanding, of which 3.1 million were exchangeable.
(2)As of December 31, 2022, the total Limited Partnership Units included 1.6 million Newmark Preferred Units and 0.1 million BGC Preferred Units held by Newmark employees.
The Limited Partnership Units table above includes both regular and Preferred Units. The Preferred Units are not entitled to participate in partnership distributions other than with respect to the Preferred Distribution (see Note 2 — “Limited Partnership Interests in BGC Holdings and Newmark Holdings” for further information on Preferred Units). Subsequent to the Spin-Off, there are remaining partners who hold limited partnership interests in Newmark Holdings who are BGC employees, and there are remaining partners who hold limited partnership interests in BGC Holdings who are Newmark employees. These limited partnership interests represent interests that were held prior to the Newmark IPO or were distributed in connection with the Separation. Following the Newmark IPO, employees of Newmark and BGC received limited partnership interests in Newmark Holdings and BGC Holdings, respectively. As a result of the Spin-Off, as the existing limited partnership interests in Newmark Holdings held by BGC employees and the existing limited partnership interests in BGC Holdings held by Newmark employees are exchanged/redeemed, the related capital can be contributed to and from Cantor, respectively. The compensation expenses under GAAP related to the limited partnership interests are based on the company where the partner is employed. Therefore, compensation expenses related to the limited partnership interests of both Newmark and BGC but held by a Newmark employee are recognized by Newmark. However, the Newmark Holdings limited partnership interests held by BGC employees are included in the Newmark share count and the BGC Holdings limited partnership interests held by Newmark employees are included in the BGC share count.
A summary of units held by Newmark employees redeemed in connection with the issuance of Newmark or BGC Class A common stock (at the current exchange ratio) or granted exchangeability for Newmark or BGC Class A common stock is as follows:
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, | | |
| | | | 2022 | | 2021 | | 2020 | | |
BGC Units | | | | 142,194 | | | 13,803,080 | | | 315,685 | | |
Newmark Units | | | | 9,234,602 | | | 36,378,049 | | | 4,661,669 | | | |
Total | | | | 9,376,796 | | | 50,181,129 | | | 4,977,354 | | | |
Compensation expense related to the issuance of Newmark or BGC Class A common stock and grants of exchangeability on Newmark Holdings and BGC Holdings limited partnership units to Newmark employees is as follows (in thousands):
| | | | | | | | | | | | | | | | | | |
| | Year Ended December 31, | | | |
| | 2022 | 2021 | | 2020 | | | |
Issuance of common stock and exchangeability expenses | | $ | 97,031 | | $ | 317,281 | | | $ | 36,458 | | | | |
Limited partnership units with a post-termination payout held by Newmark employees are as follows (dollars in thousands):
| | | | | | | | | | | |
| December 31, 2022 | | December 31, 2021 |
| 2022 | | 2021 |
Notional Value | $ | 144,045 | | | $ | 116,717 | |
Estimated fair value of the post-termination payout(1) | $ | 42,706 | | | $ | 38,516 | |
Outstanding limited partnership units in BGC Holdings | 44,928 | | | 105,302 | |
| | | |
Outstanding limited partnership units in Newmark Holdings | 14,277,213 | | | 11,691,406 | |
Outstanding limited partnership units in Newmark Holdings - unvested | 2,155,668 | | | 5,980,996 | |
(1)Included in “Other long-term liabilities” on the accompanying consolidated balance sheets.
Compensation expense related to limited partnership units held by Newmark employees with a post-termination pay-out amount is recognized over the service period. These units can vest for periods up to 7 years from the grant date. Newmark recognized compensation expense related to these limited partnership units that were not redeemed as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, | | |
| | | | 2022 | | 2021 | | 2020 | | |
Limited partnership units amortization | | | | $ | 8,322 | | | $ | (28,351) | | | $ | 18,692 | | | |
The grant of exchange rights of HDU's to Newmark employees are as follows (in thousands):
| | | | | | | | | | | |
| December 31, 2022 | | December 31, 2021 |
| | | |
Notional Value | $ | 8,189 | | | $ | 12,836 | |
Estimated fair value of limited partnership units (1) | $ | 8,065 | | | $ | 12,558 | |
(1)Included in “Other long-term liabilities” on the accompanying consolidated balance sheets.
Compensation expense related to these limited partnership units held by Newmark employees was as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, | | |
| | | | 2022 | | 2021 | | 2020 | | |
Issuance of common stock and exchangeability expenses | | | | $ | (4,723) | | | $ | (4,563) | | | $ | 32,583 | | | |
During the years ended December 31, 2022 and 2021, respectively, Newmark employees were granted 4.4 million and 3.7 million N Units, that are excluded from the table above, since these units are not considered share-equivalent limited partnership units and are not included in the fully diluted share count. The N Units do not receive quarterly allocations of net income and remain unvested. Upon vesting, which occurs if the certain thresholds are met, the N Units are converted to equivalent limited partnership units that receive quarterly certain income distributions and can be granted exchange rights or redeemed at a later date, at which time these N Units would be reflected as a share-equivalent grant in the tables above. During the year ended December 31, 2022, 11.8 million N Units vested and were converted into distribution earning limited partnership units and were therefore included in the fully diluted share count.
(b) Restricted Stock Units
A summary of the activity associated with Newmark and BGC RSUs held by Newmark employees is as follows (fair value amount in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Newmark RSUs(1) | | BGC RSUs(2) |
| Restricted Stock Units | Weighted- Average Grant Date Fair Value Per Share | Fair Value Amount | Weighted- Average Remaining Contractual Term (Years) | | Restricted Stock Units | Weighted- Average Grant Date Fair Value Per Share | Fair Value Amount | Weighted- Average Remaining Contractual Term (Years) |
Balance, January 1, 2021 | 10,646,797 | | $ | 7.75 | | $ | 82,494 | | 5.69 | | 8,013 | | $ | 3.80 | | $ | 31 | | 2.17 |
Granted | 2,913,572 | | 9.71 | | 28,290 | | | | — | | — | | — | | |
Settled units (delivered shares) | (2,196,903) | | 7.64 | | (16,792) | | | | (2,638) | | 3.69 | | (10) | | |
Forfeited units | (642,009) | | 7.74 | | (4,967) | | | | — | | — | | — | | |
Balance, December 31, 2021 | 10,721,457 | | $ | 8.30 | | $ | 89,025 | | 4.96 | | 5,375 | | $ | 3.85 | | $ | 21 | | 1.16 |
Granted | 3,350,516 | | 12.15 | | 40,710 | | | | 4,191 | | 4.28 | | 18 | | |
Settled units (delivered shares) | (2,464,570) | | 8.33 | | (20,526) | | | | (2,638) | | 3.69 | | (10) | | |
Forfeited units | (343,541) | | 10.11 | | (3,474) | | | | — | | — | | — | | |
Balance, December 31, 2022 | 11,263,862 | | $ | 9.39 | | $ | 105,735 | | 4.75 | | 6,928 | | $ | 4.17 | | $ | 29 | | 1.62 |
(1)Beginning January 1, 2018, Newmark began granting stand-alone Newmark RSUs to Newmark employees with the awards vesting ratably over the two- to nine-year vesting period into shares of Newmark Class A common stock.
(2) RSUs granted to these individuals generally vest over a two to four year period.
The fair value of Newmark and BGC RSUs held by Newmark employees is determined on the date of grant based on the market value (adjusted if appropriate based upon the award’s eligibility to receive dividends), and is recognized, net of the effect of estimated forfeitures, ratably over the vesting period. Newmark uses historical data, including historical forfeitures and turnover rates, to estimate expected forfeiture rates for RSUs. Each RSU is settled for one share of BGC or Newmark Class A common stock, as applicable, upon completion of the vesting period.
Compensation expense related to Newmark and BGC RSUs are as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Year Ended December 31, | | |
| | | | 2022 | | 2021 | | 2020 | | |
RSU amortization | | | | $ | 21,807 | | | $ | 16,795 | | | $ | 12,565 | | | |
As of December 31, 2022, there was $100.1 million total unrecognized compensation expense related to unvested Newmark RSUs.
See Note 27 — "Related Party Transactions" for compensation related matters for the transfer of CCRE employees to Newmark.
(31) Commitments and Contingencies
(a)Contractual Obligations and Commitments
The following table summarizes certain of Newmark's contractual obligations at December 31, 2022 (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | Total | | Less than 1 Year | | 1-3 Years | | 3-5 Years | | More than 5 Years |
Operating leases (1) | | | | | $ | 865,740 | | | $ | 126,520 | | | $ | 257,609 | | | $ | 235,518 | | | $ | 246,093 | |
Warehouse facilities(2) | | | | | 137,406 | | | 137,406 | | | — | | | — | | | — | |
Debt(3) | | | | | 550,000 | | | 550,000 | | | — | | | — | | | — | |
Interest on debt(4) | | | | | 30,479 | | | 30,479 | | | — | | | — | | | — | |
Interest on warehouse facilities(5) | | | | | 1,765 | | | 1,765 | | | — | | | — | | | — | |
Total | | | | | $ | 1,585,390 | | | $ | 846,170 | | | $ | 257,609 | | | $ | 235,518 | | | $ | 246,093 | |
(1)Operating leases are related to rental payments under various non-cancelable leases principally for office space.
(2)Warehouse facilities are collateralized by $137.4 million of loans held for sale, at fair value (See Note 21 - “Warehouse Facilities Collateralized by U.S. Government Sponsored Enterprises") which loans were either under commitment to be purchased by Freddie Mac or had confirmed forward trade commitments for the issuance of and purchase of Fannie Mae or Ginnie Mae mortgage-backed securities.
(3)Debt reflects $550.0 million of 6.125% Senior Notes. The carrying amount of these notes was approximately $547.8 million. Debt also includes borrowings under the Credit Facility, which is assumed to be outstanding until the maturity date of the Credit Facility. The carrying amount of the borrowing under the Credit Facility is $0.0 million. (See Note 22 - “Debt”)
(4)Reflects interest on the $550.0 million 6.125% Senior Notes until their maturity date of November 15, 2023.
(5)Interest on the warehouse facilities collateralized by U.S. Government Sponsored Enterprises was projected by using the 1-month SOFR rate plus their respective additional basis points, primarily 130 basis points above SOFR and 115 basis points above SOFR, applied to their respective outstanding balances as of December 31, 2022, through their respective maturity dates. Their respective maturity dates range from June 2023 to October 2023, while one line has an open maturity date. The notional amount of these committed and uncommitted warehouse facilities was $2.4 billion at December 31, 2022. See Note 21 - “Warehouse Facilities Collateralized by U.S. Government Sponsored Enterprises".
As of December 31, 2022 and December 31, 2021, Newmark was committed to fund approximately $0.3 billion and $0.3 billion, respectively, which is the total remaining draws on construction loans originated by Newmark under the HUD 221(d) 4, 220 and 232 programs, rate locked loans that have not been funded, forward commitments, as well as the funding for Fannie Mae structured transactions. Newmark also has corresponding commitments to sell these loans to various investors as they are funded.
(b) Contingent Payments Related to Acquisitions
Newmark completed acquisitions from 2019 through 2022 with contingent cash consideration of $23.1 million. The contingent equity instruments and cash liability is recorded at fair value in “Accounts payable, accrued expenses and other liabilities” on Newmark’s consolidated balance sheets.
(c) Contingencies
In the ordinary course of business, various legal actions are brought and are pending against Newmark and its subsidiaries in the U.S. and internationally. In some of these actions, substantial amounts are claimed. Newmark is also involved, from time to time, in reviews, examinations, investigations and proceedings by governmental and self-regulatory agencies (both formal and informal) regarding Newmark’s businesses, which may result in regulatory, civil and criminal judgments, settlements, fines, penalties, injunctions or other relief. The following generally does not include matters that Newmark has pending against other parties which, if successful, would result in awards in favor of Newmark or its subsidiaries.
Employment, Competitor-Related and Other Litigation
From time to time, Newmark and its subsidiaries are involved in litigation, claims and arbitration in the U.S. and internationally, relating to various employment matters, including with respect to termination of employment, hiring of employees currently or previously employed by competitors, terms and conditions of employment and other matters. In light of the competitive nature of the real estate services industry, litigation, claims and arbitration between competitors regarding employee hiring are not uncommon.
Legal reserves are established in accordance with U.S. GAAP guidance on Accounting for Contingencies, when a material legal liability is both probable and reasonably estimable. Once established, reserves are adjusted when there is more information available or when an event occurs requiring a change. The outcome of such items cannot be determined with certainty. Newmark is unable to estimate a possible loss or range of loss in connection with specific matters beyond its current accrual and any other amounts disclosed. Management believes that, based on currently available information, the final outcome of these current pending matters will not have a material adverse effect on Newmark’s consolidated financial statements and disclosures taken as a whole.
Risks and Uncertainties
Newmark generates revenues by providing financial intermediary and brokerage activities and commercial real estate services to institutional customers. Revenues for these services are transaction-based. As a result, revenues could vary based on the transaction volume of global financial and real estate markets. Additionally, financing is sensitive to interest rate fluctuations, which could have an impact on Newmark’s overall profitability.
(32) Subsequent Events
On February 15, 2023, Newmark declared a qualified quarterly dividend of $0.03 per share payable on March 17, 2023 to Class A and Class B common stockholders of record as of March 3, 2023. The ex-dividend date will be March 2, 2023.
On March 10, 2023, Newmark completed the acquisition of Gerald Eve, a U.K. based real estate advisory firm.