SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 2, 2021
Black Creek Industrial REIT IV Inc.
(Exact name of registrant as specified in its charter)
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Maryland |
000-56032 |
47-1592886 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
518 Seventeenth Street, 17th Floor
Denver, CO 80202
(Address of principal executive offices)
(303) 228-2200
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On June 2, 2021, BCI IV Portfolio Real Estate Holdco LLC, a Delaware limited liability company (“Black Creek Holdco”) and indirect wholly owned subsidiary of Black Creek Industrial REIT IV Inc. (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Prologis Targeted U.S. Logistics Fund, L.P., a Delaware limited partnership (“USLF”), Prologis USLV Operating Partnership, L.P., a Delaware limited partnership (“USLV”), and Prologis USLV SubREIT 1, LLC, a Delaware limited liability company (“USLV SubREIT”, and together with USLF and USLV, the “Sellers”). The Sellers are affiliates of Prologis, L.P. The board of directors of the Company, in its capacity as the sole general partner of BCI IV Operating Partnership LP (“BCI IV OP”), on behalf of BCI IV OP, in its capacity as the sole member of Black Creek Holdco, has, on behalf of Black Creek Holdco, unanimously approved the Merger Agreement, the Merger (as defined below), the Interest Sales (as defined below), any Asset Transfer (as defined below) and the other transactions contemplated by the Merger Agreement.
Pursuant to the Merger Agreement, the Company will acquire, through Black Creek Holdco, a 100% fee interest in 48 industrial buildings totaling approximately 8.3 million square feet on approximately 480.7 acres (the “Key Logistics Portfolio”). The Key Logistics Portfolio is located in 13 geographic markets throughout the United States and is currently 96.4% occupied by 83 customers with a weighted-average remaining lease term (based on square feet) of approximately 3.4 years. In general, the customers will be responsible for paying directly or reimbursing the landlord for their pro rata share of the real estate taxes, insurance, and repair and maintenance costs of the property.
The Merger Agreement provides that the Merger, the Interest Sales and the Asset Transfers will be effected through (i) the merger (the “Merger”) of each of (x) USLV Rockies Asset Sale Holdco 1, LLC, a Delaware limited liability company and indirect wholly owned subsidiary of USLV (“USLV Holdco”), and (y) at Black Creek Holdco’s option, one or more (up to ten) newly formed Delaware limited liability companies that are indirect wholly owned subsidiaries of the Sellers (collectively with USLV Holdco, the “Merger Subs”) with and into Black Creek Holdco or, at Black Creek Holdco’s option, an affiliate of Black Creek Holdco, with Black Creek Holdco (or such affiliate, if applicable) surviving the Merger (or the merger with an affiliate of Black Creek Holdco, as the case may be) upon the terms and subject to the conditions set forth in the Merger Agreement, (ii) the sale by Prologis USLF TRS LLC, a Delaware limited liability company and the sole member of USLF Holdco (“USLF TRS”), of USLF Rockies Asset Sale Holdco, LLC, a Delaware limited liability company and wholly owned subsidiary of USLF TRS (“USLF Holdco”), to Black Creek Holdco or an affiliate of Black Creek Holdco (the “USLF Holdco Interest Sale”), (iii) the sale by USLV SubREIT of PLD USLV Renton DC LLC, a Delaware limited liability company and wholly owned subsidiary of USLV SubREIT (the “Renton Property Owner”), to Black Creek Holdco or an affiliate of Black Creek Holdco (the “Renton Property Interest Sale” and together with the USLF Holdco Interest Sale, the “Interest Sales”) and (iv) at the election of Black Creek Holdco, the sale by certain wholly owned subsidiaries of the Sellers of certain indirect wholly owned subsidiaries of the Sellers that hold the properties in the Key Logistics Portfolio (each, an “Asset Transfer”). Black Creek Holdco must make its election with respect to any Asset Transfer no later than 15 days prior to the closing of the transactions contemplated by the Merger Agreement. Upon the completion of the Merger (or the merger with an affiliate of Black Creek Holdco, as the case may be), the separate existence of each Merger Sub will cease.
Pursuant to the Merger Agreement, the Merger, the Interest Sales and the Asset Transfers (if any) will take place on July 14, 2021, subject to satisfaction or valid waiver of any conditions to closing by the party entitled to the benefit of such condition (other than those conditions that by their nature are to be satisfied or waived at the closing, but subject to the satisfaction or valid waiver of such conditions), unless such date is extended by mutual agreement of the parties. There can be no assurances as to the timing of the closing of the Merger, the Interest Sales and the Asset Transfers (if any) or that they will close at all.
Pursuant to the terms and subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, at the effective time of the Merger, the Interest Sales and the Asset Transfers (if any) (the “Effective Time”), Black Creek Holdco will pay to the Sellers $920.0 million, subject to customary prorations. In connection with the execution of the Merger Agreement, Black Creek Holdco will deposit $100.0 million into an escrow account. Black Creek Holdco plans to fund this acquisition using proceeds from the Company’s public offering and funds from its existing credit facility. If Black Creek Holdco does not close on the acquisition, there are circumstances under which it may forfeit the deposit it has funded.
The Sellers and Black Creek Holdco each have made certain customary representations and warranties in the Merger Agreement and have agreed to customary covenants including, among others, with respect to the conduct of business of the Sellers and their subsidiaries prior to the closing and covenants prohibiting the Sellers and their subsidiaries and representatives from soliciting,
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providing information or entering into discussions concerning proposals relating to alternative transactions with respect to the acquisition of one or more of the properties.
Additionally, if, between the date of the Merger Agreement and the earlier to occur of the Effective Time and the date, if any, on which the agreement is terminated under the Merger Agreement, (i) a condemnation proceeding is commenced against a material portion of a Property and which allows the applicable customer to terminate its lease, or (ii) there occurs damage to any material portion of a Property caused by fire or other insured casualty, Black Creek Holdco may, at its option, remove the applicable subsidiary that owns such condemned Property or such Property damaged by casualty from the transactions contemplated by the Merger Agreement.
The completion of the Merger, the Interest Sales and the Asset Transfers (if any) is subject to a number of conditions, including, among others: (i) the accuracy of each of the Seller’s and Black Creek Holdco’s representations and warranties as of the closing of the Merger, the Interest Sales and the Asset Transfers (if any), subject to certain materiality, material adverse effect and other exceptions; (ii) each of the Sellers and Black Creek Holdco having performed in all material respects all obligations and complied in all material respects with all agreements and covenants required under the Merger Agreement; and (iii) the termination by the Sellers of specified property management agreements, if any. The obligations of the parties to consummate the Merger and the Asset Transfers (if any) are not subject to any financing condition or the receipt of any financing by Black Creek Holdco.
The Merger Agreement may be terminated under certain circumstances, including: (A) by mutual written consent of the parties; (B) by either Black Creek Holdco or the Sellers if any governmental entity has issued an order or taken action permanently restraining or otherwise prohibiting the Merger, the Interest Sales or the Asset Transfers (if any) (except such termination right is not available to any party if the order or ruling resulted from such party’s failure to comply with the terms of the Merger Agreement); (C) by Black Creek Holdco if (1) either of the Sellers has breached its representations and warranties or covenants and agreements, and the breach results in a failure of the applicable closing condition with respect to its representations and warranties or covenants and agreements that cannot be cured (or, if capable of cure, is not cured) by the earlier of forty-five (45) days after written notice of such breach or two (2) business days prior to the closing date (subject to certain exceptions) or (2) the Sellers are obligated to and fail to consummate the Merger, the Interest Sales and the Asset Transfers (if any) required under the terms of the Merger Agreement and Black Creek Holdco stood ready, willing and able to consummate the Merger, the Interest Sales and the Asset Transfers (if any) at such time; or (D) by the Sellers if (1) Black Creek Holdco has breached its representations and warranties or covenants and agreements, and the breach results in a failure of the applicable closing condition with respect to its representations and warranties or covenants and agreements that cannot be cured (or, if capable of cure, is not cured) by the earlier of forty-five (45) days after written notice of such breach or two (2) business days prior to the closing date (subject to certain exceptions) or (2) Black Creek Holdco is obligated to and fails to consummate the Merger, the Interest Sales and the Asset Transfers (if any) required under the terms of the Merger Agreement and the Sellers stood ready, willing and able to consummate the Merger, the Interest Sales and the Asset Transfers (if any) at such time.
Following the closing, in certain circumstances, including, among others, any breach of representations or warranties made by Black Creek Holdco or the Sellers or default by Black Creek Holdco or the Sellers of any covenant or obligation required to be performed by Black Creek Holdco or the Sellers, the other party will be entitled to indemnification to the extent provided by the Merger Agreement.
The Company, through BCI IV OP, has a program under which it intends to raise capital in private placements exempt from registration under Section 506(b) of the Securities Act of 1933, as amended (the “Securities Act”) through the sale of beneficial interests in Delaware statutory trusts holding real properties (the “DST Program”). The Company presently expects that, following the closing, up to 12 of the 48 buildings in the Key Logistics Portfolio, totaling approximately 4.2 million square feet, will be placed in one or more Delaware statutory trusts (“DST Properties”) and become a part of the Company’s DST Program. Initially, pursuant to the terms of the DST Program, the interests in the DST Properties are expected to be owned by a taxable REIT subsidiary of BCI IV OP and then sold to third party investors. The Company, through a subsidiary of BCI IV OP, expects to hold long-term leasehold interests in the DST Properties pursuant to master leases that will be fully guaranteed by BCI IV OP, while third-party investors will ultimately hold some or all of the interests in the DST Properties through their acquisition of beneficial interests in the Delaware statutory trusts.
A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement. The Merger Agreement has been attached to provide stockholders with information regarding its terms. It is not intended to provide any other factual information about the Sellers, Black Creek Holdco or the Company. In particular, the assertions embodied in the representations and warranties in the Merger Agreement were made as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as material to the Company’s stockholders, or may have been used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Merger Agreement are not necessarily characterizations of the actual state of facts about Black Creek Holdco, the Sellers or the Company at the time they were
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made or otherwise and should only be read in conjunction with the other information that the Company makes publicly available in reports, statements and other documents filed with the Securities and Exchange Commission (the “SEC”).
Forward-Looking Statements
This Current Report on Form 8-K includes certain statements that are intended to be deemed “forward-looking statements” within the meaning of, and to be covered by the safe harbor provisions contained in, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Such forward-looking statements are generally identifiable by the use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “intend,” “project,” “continue,” or other similar words or terms and include, without limitation, statements describing the pending acquisition of the Key Logistics Portfolio described in this Current Report on Form 8-K, the expected timing thereof and the Company’s beliefs and intentions with respect to ongoing operations following the acquisition of the Key Logistics Portfolio. These statements are based on certain assumptions and analyses made in light of the Company’s experience and the Company’s perception of historical trends, current conditions, expected future developments and other factors we believe are appropriate. Such statements are subject to a number of assumptions and involve known and unknown risks, uncertainties and other factors that may cause the Company’s actual results, performance or achievements to be materially different from future results, performance or achievements expressed or implied by these forward-looking statements. Such factors may include, but are not limited to, the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement, the outcome of any legal proceedings that may be instituted against the Company and others related to the Merger Agreement, the risk that the transactions contemplated by the Merger Agreement may not be completed in the time frame expected by the parties or at all, and the effect of the announcement of the transaction on the ability of the Company to retain key personnel, maintain relationships with the Company’s customers, continue to raise capital at rates similar to or greater than current rates, and maintain the Company’s operating results and business generally. In addition, these forward-looking statements reflect the Company's views as of the date on which such statements were made. Subsequent events and developments may cause the Company’s views to change. For a discussion of additional factors that could lead to actual results being materially different from those described in the forward-looking statements, see “Risk Factors” under Item 1A of Part I of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020 and subsequent periodic reports on Form 10-Q and current reports on Form 8-K filed with the SEC. The Company undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of future events, new information or otherwise. Readers are cautioned not to place undue reliance on these forward-looking statements.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
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Exhibit No. |
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Description |
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2.1 |
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* The Company has omitted certain schedules and exhibits pursuant to Item 601(b)(2) of Regulation S-K and will furnish supplementally to the SEC copies of any of the omitted schedules and exhibits upon request by the SEC.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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BLACK CREEK INDUSTRIAL REIT IV INC. |
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June 3, 2021 |
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By: |
/s/ SCOTT A. SEAGER |
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Name: Scott A. Seager |
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Title: Senior Vice President, Chief Financial Officer and Treasurer |
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Article 1 DEFINITIONS3
Section 1.1Definitions.3
Section 1.2Interpretation and Rules of Construction11
Article 2 THE MERGER12
Section 2.1The Merger12
Section 2.2Assignment of Merger Rights12
Section 2.3Asset Transfers.12
Section 2.4Pre-Closing Contribution Transactions13
Section 2.5Black Creek Holdco Deposit14
Section 2.6Escrow Agent for the Deposit14
Section 2.7Closing14
Section 2.8Effective Time15
Section 2.9Governing Documents15
Section 2.10Tax Consequences15
Section 2.11Prorations15
Article 3 EFFECTS OF THE MERGER19
Section 3.1Effects of the Merger19
Section 3.2Allocation of Merger Consideration20
Section 3.3Payment of Merger Consideration20
Section 3.4Withholding Rights20
Article 4 REPRESENTATIONS AND WARRANTIES OF THE SELLERS20
Section 4.1Organization and Qualification; Property Owning Subsidiaries21
Section 4.2Organizational Documents23
Section 4.3Authority23
Section 4.4No Conflict; Required Filings and Consents24
Section 4.5Permits; Compliance with Law25
Section 4.6Financial Statements26
Section 4.7Absence of Certain Changes or Events26
Section 4.8No Undisclosed Material Liabilities26
Section 4.9No Default26
Section 4.10Litigation26
Section 4.11Taxes27
Section 4.12Benefit Plans; Employees28
Section 4.13Intentionally Omitted29
Section 4.14Intellectual Property29
Section 4.15Environmental Matters29
Section 4.16Properties30
Section 4.17Material Contracts32
Section 4.18Insurance34
Section 4.19Brokers34
Section 4.20Investment Company Act34
Section 4.21Additional Holdcos35
Section 4.22No Other Representations and Warranties35
Article 5 REPRESENTATIONS AND WARRANTIES OF BLACK CREEK HOLDCO35
Section 5.1Organization and Qualification35
Section 5.2Authority36
Section 5.3No Conflict; Required Filings and Consents36
Section 5.4Litigation37
Section 5.5Intentionally Omitted37
Section 5.6Brokers37
Section 5.7Available Funds37
Section 5.8Solvency38
Article 6 COVENANTS RELATING TO CONDUCT OF BUSINESS PENDING THE MERGER38
Section 6.1Conduct of Business by Sale Subsidiaries.38
Section 6.2Other Actions40
Section 6.3Marketing Right41
Section 6.4Leasing Discussions41
Section 6.5No Control of Business41
Article 7 ADDITIONAL COVENANTS41
Section 7.1Access to Information; Cooperation; Confidentiality41
Section 7.2Exclusivity43
Section 7.3Public Announcements44
Section 7.4Condemnation44
Section 7.5Casualty45
Section 7.6Appropriate Action; Consents; Filings46
Section 7.7Notification of Certain Matters; Transaction Litigation47
Section 7.8Related Party Agreements48
Section 7.9New Merger Party; New Holdcos49
Section 7.10Tax Returns for Pre-Closing and Straddle Tax Periods49
Section 7.11Transfer Taxes50
Section 7.12Right to Names50
Section 7.13Rent Rolls50
Article 8 CONDITIONS51
Section 8.1Conditions to Each Party’s Obligation to Effect the Merger and the Asset Transfers51
Section 8.2Conditions to Obligations of Black Creek Holdco51
Section 8.3Conditions to Obligations of the Sellers52
Article 9 TERMINATION; SPECIFIC PERFORMANCE; FEES53
Section 9.1Termination53
Section 9.2Notice of Termination; Effect of Termination54
Section 9.3Specific Performance.56
Section 9.4Fees and Expenses56
Article 10 INDEMNIFICATION56
Section 10.1Survival56
Section 10.2Indemnification57
Section 10.3Limitations.59
Section 10.4Direct Claims Indemnification Procedures60
Section 10.5Defense of Third-Party Claims.61
Article 11 GENERAL PROVISIONS62
Section 11.1Notices62
Section 11.2Severability64
Section 11.3Counterparts64
Section 11.4Entire Agreement; No Third-Party Beneficiaries64
Section 11.5Amendment64
Section 11.6Extension; Waiver64
Section 11.7Governing Law65
Section 11.8Consent to Jurisdiction65
Section 11.9Assignment65
Section 11.10Waiver of Jury Trial66
Section 11.11Authorship66
DISCLOSURE LETTER
Seller Disclosure Letter
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of June 2, 2021 (this “Agreement”), is by and among BCI IV Portfolio Real Estate Holdco LLC, a Delaware limited liability company (“Black Creek Holdco”), Prologis Targeted U.S. Logistics Fund, L.P., a Delaware limited partnership (“USLF”), Prologis USLV Operating Partnership, L.P., a Delaware limited partnership (“USLV”), and Prologis USLV SubREIT 1, LLC, a Delaware limited liability company and subsidiary of USLV (“USLV SubREIT”, and together with USLF and USLV, the “Sellers” and each, a “Seller”). Each of Black Creek Holdco, USLF, USLV and USLV SubREIT is sometimes referred to herein as a “Party” and collectively as the “Parties.” Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in Article 1.
WHEREAS, the Parties hereto wish to effect a business combination through the following transactions upon the terms and subject to the conditions set forth in this Agreement: (i) in accordance with the Delaware Limited Liability Company Act, as amended (the “Delaware LLC Act”), the merger of each of (x) USLV Rockies Asset Sale Holdco 1, LLC, a Delaware limited liability company and indirect wholly owned subsidiary of USLV (“USLV Holdco”), and (y) one or more to-be-formed Additional Holdcos, if any, with and into Black Creek Holdco or a New Merger Party, as the case may be, with Black Creek Holdco or such New Merger Party, as applicable, being the surviving company (“Surviving Entity”) in such merger or mergers (such merger transactions, individually and collectively, the “Merger”), (ii) the sale by Prologis USLF TRS LLC, a Delaware limited liability company and the sole member of USLF Holdco (“USLF TRS”) of USLF Rockies Asset Sale Holdco, LLC, a Delaware limited liability company and indirect wholly owned subsidiary of USLF (“USLF Holdco”), to Black Creek Holdco or an Affiliate of Black Creek Holdco (the “USLF Holdco Interest Sale”), (iii) the sale by USLV SubREIT of PLD USLV Renton DC LLC, a Delaware limited liability company and wholly owned subsidiary of USLV SubREIT (the “Renton Property Owner”), to Black Creek Holdco or an Affiliate of Black Creek Holdco (the “Renton Interest Sale”) and (iv) if Black Creek Holdco so elects in accordance with this Agreement, the sale by USLF TRS or Prologis USLV TRS 1, LLC, a Delaware limited liability company and the sole member of USLV Holdco (“USLV TRS”), as the case may be, of certain Property Owning Subsidiaries to Black Creek Holdco or an Affiliate of Black Creek Holdco;
WHEREAS, the sole general partner of USLF, for itself and in its capacity as the sole member of USLF TRS, for itself and in its capacity as the sole member of USLF Holdco, (a) has, on behalf of each of USLF, USLF TRS and USLF Holdco (i) determined that this Agreement, the USLF Holdco Interest Sale and the other transactions contemplated by this Agreement are advisable and in the best interests of each of USLF, USLF TRS and USLF Holdco and their respective partners and members, as applicable, (ii) authorized and approved the execution, delivery and performance of this Agreement by USLF, and (iii) authorized and approved the USLF Holdco Interest Sale and the other transactions contemplated by this Agreement by each of USLF, USLF TRS and USLF Holdco, as the case may be, and (b) prior to the Closing will have, on behalf of USLF, in its capacity as the sole member of USLF TRS in its capacity as the sole member of any Additional Holdcos owned by it directly or indirectly, on behalf of such Additional Holdcos (x) determined that the Merger and other transactions contemplated by this Agreement are advisable and in the best interests of such Additional Holdco and USLF TRS, its sole member, and
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(y) authorized and approved the consummation by such Additional Holdco of the Merger and the other transactions contemplated by this Agreement;
WHEREAS, the sole general partner of USLV, for itself and in its capacity as the sole member of USLV TRS, for itself and in its capacity as the sole member of USLV Holdco, (a) has, on behalf of each of USLV, USLV TRS and USLV Holdco (i) determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of each of USLV, USLV TRS and USLV Holdco and their respective partners and members, as applicable, (ii) authorized and approved the execution, delivery and performance of this Agreement by USLV, and (iii) authorized and approved the Merger and the other transactions contemplated by this Agreement by each of USLV, USLV TRS and USLV Holdco, as the case may be, and (b) prior to the Closing will have, on behalf of USLV, in its capacity as the sole member of USLV TRS in its capacity as the sole member of any Additional Holdcos owned by it directly or indirectly, on behalf of such Additional Holdcos (x) determined that the Merger and other transactions contemplated by this Agreement are advisable and in the best interests of such Additional Holdco and USLV TRS, its sole member, and (y) authorized and approved the consummation by such Additional Holdco of the Merger and the other transactions contemplated by this Agreement;
WHEREAS, the board of directors of USLV SubREIT, for itself and in its capacity as the sole member of Renton Property Owner, (a) has, on behalf of each of USLV SubREIT and Renton Property Owner (i) determined that this Agreement, the Renton Interest Sale and the other transactions contemplated by this Agreement are advisable and in the best interests of each of USLV SubREIT and Renton Property Owner and their respective partners and members, as applicable, (ii) authorized and approved the execution, delivery and performance of this Agreement by USLV SubREIT, and (iii) authorized and approved the Renton Interest Sale and the other transactions contemplated by this Agreement by each of USLV SubREIT and Renton Property Owner, as the case may be;
WHEREAS, on January 8, 2020, USLF, USLV and USLV SubREIT, respectively, acquired USLF Holdco (and the associated Property Owning Subsidiaries), USLV Holdco (and the associated Property Owning Subsidiaries) and Renton Property Owner and the associated Property Owning Subsidiaries, in addition to other entities, from Industrial Property Trust Inc.;
WHEREAS, the Board of Directors of Black Creek Industrial REIT IV Inc. (“BCI REIT”), in its capacity as the sole general partner of BCI IV Operating Partnership LP (“BCI IV OP”), on behalf of BCI IV OP, in its capacity as the sole member of Black Creek Holdco, has, on behalf of Black Creek Holdco (a) unanimously determined that this Agreement, the Merger, the USLF Holdco Interest Sale, the Renton Interest Sale and the other transactions contemplated by this Agreement are advisable and in the best interests of Black Creek Holdco and its sole member and (b) unanimously authorized and approved the execution, delivery and performance of this Agreement, the Merger, the USLF Holdco Interest Sale, the Renton Interest Sale and the other transactions contemplated by this Agreement by Black Creek Holdco;
WHEREAS, for U.S. federal income tax purposes, it is intended that the Merger and the Asset Transfers will be treated as a taxable sale (a) by USLF TRS of the assets of USLF Holdco, any applicable Additional Holdco and any applicable Asset Sale Subsidiary, (b) by USLV TRS of
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the assets of USLV Holdco, any applicable Additional Holdco and any applicable Asset Sale Subsidiary and (c) by USLV SubREIT of the assets of Renton Property Owner, in each case to Black Creek Holdco or its Affiliate in exchange for the portion of the Merger Consideration as determined pursuant to Section 3.2;
WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with the execution of this Agreement and to prescribe various conditions to the Merger; and
WHEREAS, in furtherance of the foregoing, the Parties desire to enter into this Agreement for the purpose of setting forth their mutual understandings and agreements with respect to the foregoing.
NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
“Action” means any claim, action, cause of action, suit, litigation, proceeding, arbitration, mediation, interference, audit, assessment, hearing or other legal proceeding (whether sounding in contract, tort or otherwise, whether civil or criminal) brought, conducted, tried or heard by or before, or otherwise involving, any Governmental Authority.
“Acquisition Proposal” means any proposal, offer, or inquiry from any Person or “group” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) relating to any acquisition or purchase, in one transaction or a series of transactions, including any merger, reorganization, recapitalization, restructuring, share exchange, issuance, consolidation, tender offer, exchange offer, stock acquisition, asset acquisition, business combination, liquidation, dissolution, joint venture, sale, lease, exchange, license, transfer or disposition or similar transaction, (A) of assets or businesses of any Sale Subsidiary, or (B) any class of equity security (or options, rights or warrants to purchase, or securities convertible into, any equity security) or voting power of any Sale Subsidiary, in each case other than the transactions contemplated by this Agreement.
“Affiliate” of a specified Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person; provided that, for purposes of Sections 2.2 and 2.3, any Person advised by an Affiliate of Black Creek Group shall be deemed to be an Affiliate of Black Creek Holdco.
“Benefit Plan” means any “employee benefit plan” (within the meaning of Section 3(3) of ERISA) and any employment, consulting, termination, severance, change in control, separation,
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stock option, restricted stock, profits interest unit, performance award, outperformance, stock purchase, stock or stock-related awards, deferred compensation, bonus, incentive compensation, fringe benefit, health, medical, dental, disability, accident, life insurance, welfare benefit, cafeteria, vacation, sick or paid time off, perquisite, retirement, profit sharing, pension, or savings or any other remuneration, compensation or employee benefit plan, agreement, program, policy or other arrangement of any kind, whether or not subject to ERISA and whether written or unwritten, or funded or unfunded.
“Black Creek Holdco Material Adverse Effect” means any Event that would reasonably be expected to prevent or materially impair or delay the ability of Black Creek Holdco to perform its material obligations hereunder or to consummate the Merger, the Asset Transfers or any of the other transactions contemplated by this Agreement before the Closing Date.
“Business Day” means any day other than a Saturday, Sunday or any day on which banks located in New York, New York or Denver, Colorado are authorized or required to be closed.
“Code” means the Internal Revenue Code of 1986, as amended.
“DSOS” means the Secretary of State of the State of Delaware.
“Environmental Law” means any Law (including common law) relating to the pollution or protection of the environment (including air, surface water, groundwater, land surface or subsurface land), or human health or safety (solely as such matters relate to Hazardous Substances), including Laws relating to the use, handling, presence, transportation, treatment, storage, disposal, release or discharge of Hazardous Substances.
“Environmental Permit” means any permit, approval, license or other authorization required under any applicable Environmental Law.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means, with respect to an entity (the “Referenced Entity”), any other entity, which, together with such Referenced Entity, would be treated as a single employer under Code Section 414 or ERISA Section 4001.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Event” means an effect, event, change, development, circumstance, condition or occurrence.
“GAAP” means the United States generally accepted accounting principles.
“Governmental Authority” means the United States (federal, state or local) government or any foreign government, or any other governmental or quasi-governmental regulatory, judicial or administrative authority, instrumentality, board, bureau, agency, commission, self-regulatory organization, arbitration panel or similar entity.
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“Hazardous Substances” means (i) any “hazardous substance” as that term is defined under the Comprehensive Environmental Response, Compensation and Liability Act, (ii) any “hazardous waste” as that term is defined under the Resource Conservation and Recovery Act, and (iii) petroleum and petroleum products, including crude oil and any fractions thereof, polychlorinated biphenyls, asbestos and radon.
“Indebtedness” means, with respect to any Person and without duplication, (i) the principal of and premium (if any) of all indebtedness, notes payable, accrued interest payable or other obligations for borrowed money, whether secured or unsecured, (ii) all obligations under conditional sale or other title retention agreements, or incurred as financing, in either case with respect to property acquired by such Person, (iii) all obligations issued, undertaken or assumed as the deferred purchase price for any property or assets, (iv) all obligations under capital leases, (v) all obligations in respect of bankers acceptances or letters of credit, (vi) all obligations under interest rate cap, swap, collar or similar transaction or currency hedging transactions, (vii) any guarantee of any of the foregoing, whether or not evidenced by a note, mortgage, bond, indenture or similar instrument, and (viii) any agreement to provide any of the foregoing; provided that for purposes of clarity, “Indebtedness” shall not include trade payables. For purposes of clauses (i) and (vi) of this definition of “Indebtedness”, such obligations shall be valued at the termination value thereof.
“Intellectual Property” means all United States and foreign (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof, (ii) trademarks, service marks, trade dress, logos, trade names, corporate names, Internet domain names, design rights and other source identifiers, together with the goodwill symbolized by any of the foregoing, (iii) registered and unregistered copyrights, copyrightable works and database rights, (iv) confidential and proprietary information, including trade secrets, know-how, ideas, formulae, models, algorithms and methodologies, (v) all rights in the foregoing and in other similar intangible assets, and (vi) all applications and registrations for the foregoing.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“Knowledge” means, with respect to the Sellers, the actual knowledge of the persons named in Section 1.1(a) of the Seller Disclosure Letter, and with respect to Black Creek Holdco, the actual knowledge of the persons named in Section 1.1(b) of the Seller Disclosure Letter.
“Law” means any and all domestic (federal, state or local) or foreign laws, rules, regulations and Orders promulgated by any Governmental Authority.
“Leases” means each lease or sublease (including any ground lease) (i) that is in effect as of date hereof and (ii) to which any Sale Subsidiary is a party as lessor or sublessor with respect to any Property (together with all amendments, modifications, supplements, renewals, exercise of options and extensions related thereto).
“Lien” means, with respect to any asset (including any security), any mortgage, deed of trust, condition, covenant, lien, pledge, charge, security interest, option or other third party right (including right of first refusal or first offer), restriction, right of way, easement, or title defect or
5
encumbrance of any kind in respect of such asset, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership.
“Material Portion of the Property” means any portion of a Property, which, if taken or damaged or destroyed by casualty, would reasonably be estimated to reduce the value of that Property (based on the portion of the Merger Consideration allocated to the applicable Property Owning Subsidiary) by more than $1,000,000.
“Merger Consideration” means the aggregate consideration payable in the Merger and the Asset Transfers, which shall be equal to NINE HUNDRED AND TWENTY MILLION ($920,000,000).
“New Holdco” means any of USLF Holdco, USLV Holdco or any Additional Holdco, as applicable.
“Order” means a judgment, writ, order, injunction or decree of any Governmental Authority.
“Organizational Documents” means, with respect to a Person: (a) the articles or certificate of incorporation, all certificates of determination and designation, and the articles of association and bylaws, if such Person is a corporation; (b) the partnership agreement and any statement of partnership, if such Person is a general partnership; (c) the limited partnership agreement and the certificate or articles of limited partnership, if such Person is a limited partnership; (d) the operating agreement, limited liability company agreement, and the certificate or articles of organization or formation, if such Person is a limited liability company; (e) such other applicable organizational documents (such as the constitution, articles of association or memorandum of association), if such Person is organized or incorporated as any other type of entity (such as a private limited company); (f) any certificates of designation or similar instruments with respect to the capital stock or other equity interests of such Person; and (g) any amendment to any of the foregoing.
“Permitted Liens” means any of the following: (i) Liens for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established; (ii) Liens that are a cashier’s, landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business; (iii) Liens that are a zoning regulation, entitlement or other land use or environmental regulation by any Governmental Authority; (iv) Liens that are disclosed on Section 1.2 of the Seller Disclosure Letter; (v) Liens that are disclosed on the most recent balance sheet of each of the Sellers or notes thereto (or securing liabilities reflected on such balance sheet); (vi) Liens arising under any Material Contracts, or leases to third parties for the occupation of portions of Properties as tenants only by such third parties in the ordinary course of the business of the Sellers or any Sale Subsidiary; (vii) non-monetary Liens that are recorded in a public record or disclosed on existing title policies or surveys (provided that if such non-monetary Lien was so disclosed on or after January 8, 2020, such title policies or surveys were made available to Black Creek Holdco prior to the date hereof) or otherwise within the Knowledge of Black Creek Holdco or its Affiliates; or (viii) non-monetary Liens, limitations, title defects, title encumbrances, covenants, restrictions or reservations of interests in title that (a) existed before January 8, 2020, or (b) arose after January 8, 2020 and which (I) do not interfere materially with the current use of
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the Property affected thereby (assuming its continued use in the manner in which it is currently used) or (II) materially adversely affect the value or marketability of such Property.
“Person” means an individual, corporation, partnership, limited partnership, limited liability company, person (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or other entity or organization (including any Governmental Authority or a political subdivision, agency or instrumentality of a Governmental Authority).
“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date.
“Property” or “Properties” means each real property owned, or leased (including ground leased) as lessee or sublessee, by any Property Owning Subsidiary as of the date of this Agreement (including all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property).
“Property Owning Subsidiary” means each Person set forth on Section 1.3(a) of the Seller Disclosure Letter, including Renton Property Owner (which is a Property Owning Subsidiary of USLV), which Person or group of Persons holds a 100% direct or indirect ownership interest in the property or properties set forth opposite the name of such Person or group of Persons on Section 1.3(a) of the Seller Disclosure Letter; provided that, for the avoidance of doubt, the Persons set forth on Section 1.3(b) of the Seller Disclosure Letter shall be excluded from the definition of “Property Owning Subsidiaries” and shall not be included in the Merger or Asset Transfers.
“Property Permit” means any certificate, variance, permit, approval, license or other authorization required from any Governmental Authority having jurisdiction over the applicable Property.
“REIT” means a real estate investment trust within the meaning of Section 856 of the Code.
“Representative” means, with respect to any Person, one or more of such Person’s directors, officers, trustees, members, managers, partners, employees, advisors (including attorneys, accountants, consultants, investment bankers, and financial advisors), agents and other representatives.
“Sale Subsidiaries” means USLF Holdco, USLV Holdco, any Additional Holdco and each Property Owning Subsidiary (including any Asset Sale Subsidiaries).
“SEC” means the U.S. Securities and Exchange Commission (including the staff thereof).
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Seller Material Adverse Effect” means any Event occurring after the date of this Agreement that (i) is material and adverse to the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Sale Subsidiaries, taken as a whole, or (ii) will prevent or materially impair or delay the ability of any of USLF, USLV Sellers, any New Holdco, Renton Property Owner or any Asset Sale Subsidiary to consummate the Merger, the Asset Transfers or any of the other transactions contemplated by this Agreement before the Closing Date; provided
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that for purposes of clause (i) “Seller Material Adverse Effect” shall not include any Event to the extent arising out of or resulting from (A) any failure of the Sale Subsidiaries to meet any projections or forecasts or any estimates of earnings, revenues or other metrics for any period (provided that any Event arising after January 8, 2020 giving rise to such failure may be taken into account in determining whether there has been a Seller Material Adverse Effect), (B) any changes that affect the real estate industry generally, (C) any changes in the United States or global economy or capital, financial or securities markets generally, including changes in interest or exchange rates, (D) any changes in the legal, regulatory or political conditions in the United States or in any other country or region of the world, (E) the commencement, escalation or worsening of a war or armed hostilities or the occurrence of acts of terrorism or sabotage, (F) the negotiation, execution, or delivery of this Agreement, or performance in accordance with the terms of this Agreement, or the public announcement of the transactions contemplated by this Agreement or the Merger, the Asset Transfers or the other transactions contemplated hereby, including the impact thereof on relationships, contractual or otherwise, with tenants, suppliers, lenders, investors (including stockholders), venture partners or employees, (G) the taking of any action expressly required by this Agreement, or the taking of any action at the written request or with the prior written consent of Black Creek Holdco or the failure to take any action at the request of Black Creek Holdco or expressly prohibited by this Agreement, (H) earthquakes, hurricanes, floods or other natural disasters, or (I) changes in Law or GAAP (or the interpretation or enforcement thereof), which in the case of each of clauses (B), (C), (D), (E) and (I) do not disproportionately affect the Sale Subsidiaries, taken as a whole, relative to other Persons in the industrial real estate industry in the United States, and in the case of clause (H), do not disproportionately affect the Sale Subsidiaries, taken as a whole, relative to other Persons in the real estate industry in the geographic regions in which the Sale Subsidiaries operate, own or lease properties.
“Straddle Tax Period” means any Tax period that begins before and ends after the Closing Date.
“Tax” or “Taxes” means any federal, state, local and foreign income, gross receipts, capital gains, withholding, property, recording, stamp, transfer, sales, use, abandoned property, escheat, franchise, employment, payroll, excise, environmental and any other taxes, duties, assessments or similar governmental charges, together with penalties, interest or additions imposed with respect to such amounts, in each case, imposed by and payable to any Governmental Authority.
“Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes filed or required to be filed with a Governmental Authority, including any schedule or attachment thereto, and including any amendment thereof.
“Tenant Improvement(s)” means the construction or improvement of long-term real property (not including furniture, fixtures, equipment or inventory) for use in a tenant’s trade or business at the Properties.
“USLV Sellers” mean, collectively, USLV and USLV SubREIT.
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Defined Terms |
Location of Definition |
---|---|
Additional Holdco |
Section 2.2(a) |
Agreement |
Preamble |
Asset Sale Subsidiaries |
Section 2.3(a) |
Asset Transfer(s) |
Section 2.3(a) |
Basket |
Section 10.3(a) |
BCI IV OP |
Recitals |
BCI REIT |
Recitals |
Black Creek Holdco |
Preamble |
Black Creek Holdco Notice Date |
Section 2.2(a) |
Black Creek Holdco Terminating Breach |
Section 9.1(d)(i) |
Black Creek Indemnified Parties |
Section 10.2(a) |
Black Creek Notice |
Section 2.2(a) |
CAM Reconciliation |
Section 2.11(b) |
Casualty Kick-Out Notice |
Section 7.5(a) |
Casualty Kick-Out Subsidiary |
Section 7.5(a) |
Casualty Review Period |
Section 7.5(a) |
Claim Certificate |
Section 10.4(a) |
Closing |
Section 2.7 |
Closing Date |
Section 2.7 |
Condemned Property |
Section 7.4(c)(ii) |
Condemnation Kick-Out Notice |
Section 7.4(a) |
Condemnation Kick-Out Subsidiary |
Section 7.4(a) |
Condemnation Review Period |
Section 7.4(a) |
Delaware Chancery Court |
Section 11.8 |
Delaware LLC Act |
Recitals |
Deposit |
Section 2.5 |
Effective Time |
Section 2.8 |
Exchange |
Section 2.10 |
Fundamental Representations |
Section 10.1(a) |
Fundamental Reps Survival Period |
Section 10.1(a) |
Ground Leases |
Section 4.16(f) |
Indemnified Party(ies) |
Section 10.2(b) |
Indemnifying Party |
Section 10.4(a) |
Insurance Policies |
Section 4.18 |
Interest Assignment |
Section 2.3(c) |
Interim Period |
Section 6.1(a) |
Leasing Commissions |
Section 2.11(f) |
Loss(es) |
Section 10.2(a) |
Marks |
Section 7.12 |
Material Contract |
Section 4.17(b) |
Merger |
Recitals |
Merger Certificate |
Section 2.8 |
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Defined Terms |
Location of Definition |
---|---|
Minor Claims Threshold |
Section 10.3(a) |
New Leases |
Section 2.11(f) |
New Merger Party |
Section 2.2(b) |
New Names |
Section 7.12 |
Non-Fundamental Survival Period |
Section 10.1(a) |
Operating Costs |
Section 2.11(b) |
Over Collection |
Section 2.11(b) |
Party(ies) |
Preamble |
Permits |
Section 4.5(a) |
Property Representations |
Section 4.22 |
Proration Date |
Section 2.11 |
Proration Schedule |
Section 2.11 |
Proprietary Information |
Section 7.1(d) |
Remedy Notice |
Section 9.3(a) |
Remedy Period |
Section 9.3(a) |
Renton Interest Sale |
Recitals |
Renton Property Owner |
Recitals |
Sale Subsidiary Partnership |
Section 4.11(h) |
Seller(s) |
Preamble |
Seller Disclosure Letter |
Article 4 |
Seller Indemnified Parties |
Section 10.2(b) |
Seller Tax Protection Agreements |
Section 4.11(h) |
Seller Terminating Breach |
Section 9.1(c)(i) |
Seller Third Party |
Section 4.16(g) |
Settlement Statement |
Section 2.11(g) |
Survival Period |
Section 10.1 |
Surviving Entity |
Recitals |
Tenant Improvement Costs |
Section 2.11(f) |
Tenant Improvements |
Section 2.11(f) |
Third Party Claim |
Section 10.2(a)(i) |
Third Party |
Section 10.2(a)(i) |
Title Company |
Section 2.6 |
Title Insurance Policy(ies) |
Section 4.16(i) |
Transaction Costs |
Section 9.2(d) |
Transfer Taxes |
Section 7.11 |
Under Collection |
Section 2.11(b) |
USLF |
Preamble |
USLV |
Preamble |
USLF Holdco |
Recitals |
USLF Holdco Interest Sale |
Recitals |
USLF TRS |
Recitals |
USLV Holdco |
Recitals |
USLV SubREIT |
Preamble |
10
Defined Terms |
Location of Definition |
---|---|
USLV TRS |
Recitals |
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For the avoidance of doubt, all of the Property Owning Subsidiaries, other than any Property Owning Subsidiary identified as an Asset Sale Subsidiary in accordance with Section 2.3(a), are currently owned by USLF Holdco, USLV Holdco or USLV SubREIT, as the case may be, or shall be transferred to an Additional Holdco as provided above.
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(if the prorations result in a net credit to the Sellers), by increasing or reducing the cash to be paid by Black Creek Holdco at Closing. Any such adjustments not determined or agreed upon as of the Closing Date shall be paid by Black Creek Holdco to the Sellers, or the Sellers to Black Creek Holdco, as the case may be, in cash as soon as practicable following the Closing Date. All prorations hereinafter provided to be made as of the Closing shall each be made as of 11:59 p.m. Mountain Time on the day before the Closing Date (the “Proration Date”), and Black Creek Holdco shall be deemed to be title holder of the applicable Properties, and therefore entitled to the revenue and responsible for the expenses, after 12:00 a.m. Mountain Time on the Closing Date.
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Creek Holdco or any New Merger Party or the holders of any securities of USLV, USLV Holdco, any Additional Holdco, Black Creek Holdco or any New Merger Party:
Each of USLF, on the one hand, and USLV, on the other hand, hereby represent and warrant to Black Creek Holdco, severally and not jointly and severally, and solely with respect to itself, USLF TRS and USLF Holdco and USLV TRS, USLV Holdco and USLV SubREIT, respectively, and any Additional Holdco, Property Owning Subsidiary or Properties that it directly or indirectly owns, that (a) except as set forth in the disclosure letter prepared by the Sellers, with numbering corresponding to the numbering of this Article 4 delivered by the Sellers to Black Creek Holdco prior to the execution and delivery of this Agreement (the “Seller Disclosure Letter”) (it
20
being acknowledged and agreed that disclosure of any item in any section or subsection of the Seller Disclosure Letter shall be deemed disclosed with respect to any other Section or subsection of this Agreement to the extent the applicability of such disclosure to such other section or subsection is reasonably apparent on the face of such disclosure (it being understood that to be so reasonably apparent it is not required that the other Sections be cross-referenced)); provided that nothing in the Seller Disclosure Letter is intended to broaden the scope of any representation or warranty of the Sellers made herein and no reference to or disclosure of any item or other matter in the Seller Disclosure Letter shall be construed as an admission or indication that (i) such item or other matter is material, (ii) such item or other matter is required to be referred to in the Seller Disclosure Letter or (iii) any breach or violation of applicable Laws or any contract, agreement, arrangement or understanding to which any of the Sellers or the Sale Subsidiaries is a party exists or has actually occurred, and (b) the representations and warranties (other than the representations and warranties in Sections 4.1(a), 4.1(b), 4.1(c), 4.3, 4.4, 4.6(a), 4.19, 4.20 and 4.21) are made only with respect to the period beginning on January 8, 2020 and ending on the Closing Date:
26
34
Black Creek Holdco hereby represents and warrants to the Sellers that:
35
of any New Merger Party, will be, conducted and is, or, in the case of any New Merger Party, will be, duly qualified or licensed to do business, and is, or, in the case of any New Merger Party, will be, in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Black Creek Holdco Material Adverse Effect. Any New Merger Party will be formed solely for the purpose of engaging in the transactions contemplated by this Agreement and will not have conducted any activities other than in connection with its organization and the consummation of the transactions contemplated hereby.
37
obligations of Black Creek Holdco or any New Merger Party hereunder are not subject to any conditions regarding the ability of Black Creek Holdco or any New Merger Party to obtain financing for the consummation of the transactions contemplated by this Agreement or otherwise.
40
expected to materially delay consummation of the transactions contemplated by this Agreement, or enter into any agreement or otherwise make a commitment, to take any such action.
43
understanding, agreement in principle, acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement, partnership agreement or other agreement in each case related to an Acquisition Proposal or requiring or having the effect of requiring the Sellers to abandon, terminate or breach their obligations hereunder or fail to consummate the Merger or the Asset Transfers; or (d) agree to or propose publicly to do any of the foregoing.
48
on the other hand, shall execute and deliver a mutual release in favor of the other party to such agreement, from any liabilities or obligations with respect to any such agreement.
49
Creek Holdco and its Representatives may reasonably request in connection with paying any Taxes, filing any Tax Returns and conducting any contests relating to Taxes.
50
provided that it is understood and agreed that the Sellers are not making any representations or warranties with respect to such updated rent rolls.
Notwithstanding anything in this Section 10.2(a) to the contrary, Sellers’ indemnity, defense and hold harmless obligations to the Black Creek Indemnified Parties set forth in this Section 10.2 expressly excludes any and all Losses incurred by such Black Creek Indemnified Parties as a result of the acts or omissions of any Affiliates of Black Creek Holdco which occurred or arose prior to January 8, 2020 and which rendered any representation or warranty of Sellers in Article 4 untrue or incorrect.
60
c/o Prologis, Inc.
1800 Wazee Street, Suite 500
Denver, CO 80202
62
Attn: Legal Department
email: Legalnotice@prologis.com
with a copy (which shall not constitute notice) to:
Mayer Brown LLP
71 South Wacker Drive
Chicago, IL 60606
Attn:David Malinger
email:dmalinger@mayerbrown.com
BCI IV Portfolio Real Estate Holdco LLC
518 Seventeenth Street, 17th Floor
Denver, CO 80202
Attn: Evan H. Zucker, Chairman
email: evan.zucker@blackcreekgroup.com
with a copy (which shall not constitute notice) to:
BCI IV Portfolio Real Estate Holdco LLC
518 Seventeenth Street, 17th Floor
Denver, CO 80202
Attn: Thomas G. McGonagle, Managing Director & Chief Financial Officer
Joshua J. Widoff, Managing Director & Chief Legal Officer
email: tom.mcgonagle@blackcreekgroup.com
josh.widoff@blackcreekgroup.com
and to:
Hogan Lovells US LLP
555 13th Street NW
Washington, DC 20004
Attn:David Bonser
Stacey McEvoy
email:david.bonser@hoganlovells.com
stacey.mcevoy@hoganlovells.com
All notices, requests, claims, consents, demands and other communications under this Agreement shall be deemed duly given or made (A) if delivered in person, on the date delivered, (B) if sent by electronic mail (providing confirmation of transmission), on the date it was received, or (C) if sent by prepaid overnight courier, on the next Business Day (providing proof of delivery). For the avoidance of doubt, counsel for a Party may send notices, requests, claims, consents demands or other communications on behalf of such Party.
63
64
extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of any Party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights. No single or partial exercise of any right, remedy, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any waiver shall be effective only in the specific instance and for the specific purpose for which given and shall not constitute a waiver to any subsequent or other exercise of any right, remedy, power or privilege hereunder.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have caused this Agreement and Plan of Merger to be executed and delivered by their respective duly authorized officers, all as of the date first written above.
PROLOGIS TARGETED U.S. LOGISTICS FUND, L.P.
By: Prologis, L.P., a Delaware limited partnership,
its general partner
By: Prologis, Inc., a Maryland corporation,
its general partner
By:/s/ Robert A. Kritt
Name: Robert A. Kritt
Title: Managing Director
PROLOGIS USLV OPERATING PARTNERSHIP, L.P.
By: Prologis, L.P., a Delaware limited partnership,
its general partner
By: Prologis, Inc., a Maryland corporation,
its general partner
By:/s/ Robert A. Kritt
Name: Robert A. Kritt
Title: Managing Director
USLV SUBREIT 1, LLC
By:/s/ Robert A. Kritt
Name: Robert A. Kritt
Title: Managing Director
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BCI IV PORTFOLIO REAL ESTATE HOLDCO LLC, a Delaware limited liability company
By: BCIV Operating Partnership LP, a Delaware limited partnership, its sole member
By: Black Creek Industrial REIT IV Inc., a Maryland corporation, its general partner
By:/s/ David M. Fazekas
Name: David M. Fazekas
Title: Managing Director, Chief Investment Officer - Industrial
68