UNITED STATES
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): November 30, 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
Dealer Manager Agreement
On December 14, 2021, Black Creek Industrial REIT IV Inc. (the “Company,” “we,” “us” or “our”) entered into the Amended and Restated Dealer Manager Agreement (the “A&R Dealer Manager Agreement”) with Ares Wealth Management Solutions, LLC (the “Dealer Manager”). The A&R Dealer Manager Agreement, which has an effective date of January 1, 2022, amends and restates the Dealer Manager Agreement, dated as of July 30, 2021, by and between the Company and the Dealer Manager, to reduce the rate at which the distribution fee payable on shares of Class W shares of the Company’s common stock will be paid from 0.50% of net asset value (“NAV”) per annum to 0.25% of NAV per annum. The terms of the A&R Dealer Manager Agreement are otherwise substantially the same as the terms of the prior Dealer Manager Agreement.
The foregoing description of the A&R Dealer Manager Agreement is qualified in its entirety by reference to the full text of the A&R Dealer Manager Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off Balance Sheet Arrangement of a Registrant.
On December 9, 2021, BCI IV 1 Stanley Drive LLC, BCI IV 485 DC LLC, BCI IV Arrow Route DC LLC, BCI IV Harvill Business Center LP, BCI IV Lodi DC LLC, BCI IV Logistics Center at 33 LLC, BCI IV Princess Logistics Center LLC, BCI IV Stockton DC LP, BCI IV Valwoods Crossroads DC LP and BCI IV York DC LLC, each an indirect subsidiary of the Company (collectively, the “Borrower”), entered into a secured loan agreement with Teachers Insurance and Annuity Association of America (the “Lender”) for an aggregate principal amount of $461.1 million (the “TIAA Facility”). The TIAA Facility is non-recourse except for (i) standard carve-outs including those relating to environmental matters, intentional misrepresentations by the Borrower, misappropriation of funds, waste, unapplied security deposits, taxes and failure to maintain insurance and (ii) full recourse for voluntary bankruptcy and/or certain involuntary bankruptcy of the Borrower and violation by the Borrower of certain covenants as further described in the loan agreement. The recourse obligations will be guaranteed by Black Creek Industrial REIT IV Operating Partnership LP (the “Operating Partnership”), the Company’s operating partnership. In connection with the terms of the guaranty, the Operating Partnership is required to maintain certain net worth requirements during the term of the TIAA Facility. The TIAA Facility bears a fixed interest rate of 2.85% per year; requires interest-only monthly payments for the term of the loan and has a contractual maturity of January 1, 2029. Starting on May 1, 2023, the TIAA Facility may be repaid in full prior to maturity, with 15 days’ prior written notice to the Lender and subject to a prepayment premium as further described in the loan agreement. The TIAA Facility may be prepaid without a premium during the last 18 months of the loan term.
The TIAA Facility is cross-collateralized and secured by first priority mortgages, deeds of trust or similar security instruments, assignments of leases and rents and security interests in each of the buildings in the 485 Distribution Center, 1 Stanley Drive, Arrow Route Distribution Center, Harvill Business Center, Lodi Distribution Center I & II, Logistics Center at 33, Princess Logistics Center, York Distribution Center, Stockton Distribution Center and Valwood Crossroads A & B (collectively, the “Properties”).
The Lender may exercise certain rights under the loan documents, including the right to accelerate payment of the entire balance of the loan (including fees and the prepayment premium), upon events of default. The loan documents contain customary events of default with corresponding grace periods, including, without limitation, payment defaults, bankruptcy-related defaults and defaults caused by a failure by the Borrower to perform certain of its obligations under the loan documents or by a breach by the Borrower of its representations and warranties in the loan documents. The loan documents also contain customary financial, leasing and environmental covenants, cash management requirements, requirements regarding the management and maintenance of the Properties and maintenance of insurance on the Properties, transfer restrictions and limitations on the incurrence of debt and granting of liens.
The Borrower will be required to pay certain fees and expenses to the Lender in connection with the TIAA Facility.
The preceding summary does not purport to be a complete summary of the TIAA Facility, and is qualified in its entirety by reference to the TIAA Facility loan agreement, a copy of which is filed herewith as Exhibit 10.2 and is incorporated by reference herein.
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Item 8.01 Other Events.
Most Recent Transaction Price and Net Asset Value Per Share
January 1, 2022 Transaction Price
The transaction price for each share class of our common stock for subscriptions to be accepted as of January 1, 2022 (and distribution reinvestment plan issuances following the close of business on December 31, 2021 and share redemptions as of December 31, 2021) is as follows:
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Transaction Price |
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Share Class |
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(per share) |
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Class T |
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$ |
11.9630 |
Class W |
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$ |
11.9630 |
Class I |
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$ |
11.9630 |
The transaction price for each of our share classes is equal to such class’s net asset value (“NAV”) per share as of November 30, 2021. A calculation of the NAV per share is set forth below. The purchase price of our common stock for each share class equals the transaction price of such class, plus applicable upfront selling commissions and dealer manager fees.
November 30, 2021 NAV Per Share
Our board of directors, including a majority of our independent directors, has adopted valuation procedures, as amended from time to time, that contain a comprehensive set of methodologies to be used in connection with the calculation of our NAV. Our most recent NAV per share for each share class, which is updated as of the last calendar day of each month, is posted on our website at www.bcindustrialiv.com and is also available on our toll-free, automated telephone line at (888) 310-9352. With the approval of our board of directors, including a majority of our independent directors, we have engaged Altus Group U.S. Inc., a third-party valuation firm, to serve as our independent valuation advisor (“Altus Group” or the “Independent Valuation Advisor”) with respect to providing monthly real property appraisals, reviewing annual third-party real property appraisals, reviewing the internal valuations of debt-related assets and liabilities performed by BCI IV Advisors LLC for periods prior to July 1, 2021 and Ares Commercial Real Estate Management LLC for periods thereafter (the “Advisor”), helping us administer the valuation and review process for the real properties in our portfolio, and assisting in the development and review of our valuation procedures. As part of this process, our Advisor reviews the estimates of the values of our real property portfolio, real estate-related assets, and other assets and liabilities within our portfolio for consistency with our valuation guidelines and the overall reasonableness of the valuation conclusions, and informs our board of directors of its conclusions. Although third-party appraisal firms, the Independent Valuation Advisor, or other pricing sources may consider any comments received from us or our Advisor or other valuation sources for their individual valuations, the final estimated fair values of our real properties are determined by the Independent Valuation Advisor and the final estimates of fair values of our real estate-related assets, our other assets, and our liabilities are determined by the applicable pricing source, subject to the oversight of our board of directors. With respect to the valuation of our real properties, the Independent Valuation Advisor provides our board of directors with periodic valuation reports and is available to meet with our board of directors to review valuation information, as well as our valuation guidelines and the operation and results of the valuation and review process generally. Unconsolidated real properties held through joint ventures or partnerships are valued by such joint ventures or partnerships according to their valuation procedures. At least once per calendar year, each unconsolidated real property asset will be appraised by a third-party appraiser. If the valuation procedures of the applicable joint ventures or partnerships do not accommodate a monthly determination of the fair value of real properties, the Advisor will determine the estimated fair value of the unconsolidated real properties for those interim periods. All parties engaged by us in connection with our valuation procedures, including the Independent Valuation Advisor, ALPS Fund Services Inc. (“ALPS”), and our Advisor, are subject to the oversight of our board of directors. Our board of directors has the right to engage additional valuation firms and pricing sources to review the valuation process or valuations, if deemed appropriate. At least once each calendar year our board of directors, including a majority of our independent directors, reviews the appropriateness of our valuation procedures with input from the Independent Valuation Advisor. From time to time our board of directors, including a majority of our independent directors, may adopt changes to the valuation procedures if it: (1) determines that such changes are likely to result in a more accurate reflection of NAV or a more efficient or less costly procedure for the determination of NAV without having a material adverse effect on the accuracy of such determination; or (2) otherwise reasonably believes a change is appropriate for the determination of NAV. We will publicly announce material changes to our valuation procedures. Please see our valuation procedures filed as an exhibit to our Current Report on Form 8-K filed with the SEC on June 15, 2021, for a more detailed description of our valuation procedures, including important disclosure regarding real property valuations provided by the Independent Valuation Advisor.
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Our valuation procedures, which address specifically each category of our assets and liabilities and are applied separately from the preparation of our financial statements in accordance with generally accepted accounting principles (“GAAP”), involve adjustments from historical cost. There are certain factors which cause NAV to be different from total equity or stockholders’ equity on a GAAP basis. Most significantly, the valuation of our real assets, which is the largest component of our NAV calculation, is provided to us by the Independent Valuation Advisor. For GAAP purposes, these assets are generally recorded at depreciated or amortized cost. Another example that will cause our NAV to differ from our GAAP total equity or stockholders’ equity is the straight-lining of rent, which results in a receivable for GAAP purposes that is not included in the determination of our NAV. The fair values of our assets and certain liabilities are determined using widely accepted methodologies and, as appropriate, the GAAP principles within the FASB Accounting Standards Codification under Topic 820, Fair Value Measurements and Disclosures and are used by ALPS in calculating our NAV per share. However, our valuation procedures and our NAV are not subject to GAAP and will not be subject to independent audit. We did not develop our valuation procedures with the intention of complying with fair value concepts under GAAP and, therefore, there could be differences between our fair values and the fair values derived from the principal market or most advantageous market concepts of establishing fair value under GAAP.
As used below, “Fund Interests” means our outstanding shares of common stock, along with the partnership units in our operating partnership (“OP Units”), which may be or were held directly or indirectly by the Advisor, our former sponsor, members or affiliates of our former sponsor, and third parties, and “Aggregate Fund NAV” means the NAV of all the Fund Interests.
The following table sets forth the components of Aggregate Fund NAV as of November 30, 2021 and October 31, 2021:
The following table sets forth the NAV per Fund Interest as of November 30, 2021 and October 31, 2021:
The NAV per Fund Interest increased by approximately $0.15, or 1.2%, compared to our NAV per Fund Interest as of October 31, 2021, primarily as a result of strong leasing, above-average market rent growth, and strengthening capital markets.
Under GAAP, we record liabilities for ongoing distribution fees that (i) we currently owe the Dealer Manager under the terms of the dealer manager agreement and (ii) we estimate we may pay to the Dealer Manager in future periods for shares of our common stock. As of November 30, 2021, we estimated approximately $87.1 million of ongoing distribution fees were potentially payable to the Dealer Manager. We do not deduct the liability for estimated future distribution fees in our calculation of NAV since we intend for our NAV to reflect our estimated value on the date that we determine our NAV. Accordingly, our estimated NAV at any given time does not include consideration of any estimated future distribution fees that may become payable after such date.
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Investment in unconsolidated joint venture partnership as of November 30, 2021 includes a minority interest discount on the real property valuation component of the unconsolidated joint venture valuation to account for the restricted salability or transferability of those real properties given our minority ownership interest in Build-To-Core Industrial Partnership II LP (the “BTC II Partnership”). We estimate the fair value of our minority ownership interest in the BTC II Partnership as of November 30, 2021 would have been $13.5 million higher if a minority discount had not been applied, meaning that if we used the estimated fair value without the application of the minority discount, our NAV as of November 30, 2021 would have been higher by approximately $13.5 million, or $0.05 per share, not taking into account all of the other items that impact our monthly NAV. Because we are currently exploring strategic alternatives for the BTC II Partnership, we currently anticipate that the minority discount will be eliminated on or before February 28, 2022, thereby having a positive impact on our NAV. This does not take into account all of the other items that impact our monthly NAV and may offset the impact of the elimination of the discount to some extent, such as transaction expenses associated with any strategic alternative.
We include no discounts to our NAV for the illiquid nature of our shares, including the limitations on our stockholders’ ability to redeem shares under our share redemption program and our ability to suspend our share redemption program at any time. Our NAV generally does not reflect the potential impact of exit costs (e.g. selling costs and commissions related to the sale of a property) that would likely be incurred if our assets and liabilities were liquidated or sold today. While we may use market pricing concepts to value individual components of our NAV, our per share NAV is not derived from the market pricing information of open-end real estate funds listed on stock exchanges.
Our NAV is not a representation, warranty or guarantee that: (i) we would fully realize our NAV upon a sale of our assets; (ii) shares of our common stock would trade at our per share NAV on a national securities exchange; and (iii) a stockholder would be able to realize the per share NAV if such stockholder attempted to sell his or her shares to a third party.
The valuations of our real properties as of November 30, 2021 excluding certain newly acquired properties that are currently held at cost which we believe reflects the fair value of such properties, were provided by the Independent Valuation Advisor in accordance with our valuation procedures. Certain key assumptions that were used by the Independent Valuation Advisor in the discounted cash flow analysis are set forth in the following table:
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Weighted- |
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Average Basis |
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Exit capitalization rate |
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4.9 |
% |
Discount rate / internal rate of return |
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5.9 |
% |
Average holding period (years) |
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10.2 |
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A change in the exit capitalization and discount rates used would impact the calculation of the value of our real property. For example, assuming all other factors remain constant, the changes listed below would result in the following effects on the value of our real properties, excluding certain newly acquired properties that are currently held at cost which we believe reflects the fair value of such properties:
From November 1, 2017 through January 31, 2020, we valued our debt-related investments and real estate-related liabilities generally in accordance with fair value standards under GAAP. Beginning with our valuation for February 29, 2020, our property-level mortgages and corporate-level credit facilities that are intended to be held to maturity (which for fixed rate debt not subject to interest rate hedges may be the date near maturity at which time the debt will be eligible for prepayment at par for purposes herein), including those subject to interest rate hedges, were valued at par (i.e. at their respective outstanding balances). In addition, because we utilize interest rate hedges to stabilize interest payments (i.e. to fix all-in interest rates through interest rate swaps or to limit interest rate exposure through interest rate caps) on individual loans, each loan and associated interest rate hedge is treated as one financial instrument which is valued at par if intended to be held to maturity. This policy of valuing at par applies regardless of whether any given interest rate hedge is considered as an asset or liability for GAAP purposes. As of November 30, 2021, we classified all of our debt as intended to be held to maturity.
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November 2021 Distributions
We have declared monthly distributions for each class of our common stock. To date, each class of our common stock has received the same gross distribution per share. Monthly gross distributions were $0.0454 per share for each share class for the month of November 2021 and were paid to all stockholders of record as of the close of business on November 30, 2021. The net distribution per share is calculated as the gross distribution per share less any distribution fees that are payable monthly with respect to Class T shares and Class W shares. Since distribution fees are not paid with respect to Class I shares, the net distributions payable with respect to Class I shares are equal to the gross distributions payable with respect to Class I shares. The table below details the net distributions for each class of our common stock for the period presented:
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Net Distributions per Share |
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Class T |
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Class W |
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Class I |
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Month |
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Pay Date |
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Share |
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Share |
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Share |
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November 2021 |
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12/1/2021 |
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$ |
0.037 |
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$ |
0.041 |
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$ |
0.045 |
Update on Assets
As of November 30, 2021, our leverage ratio was approximately 31.8% (calculated as our total borrowings outstanding divided by the fair value of our real property plus our net investment in an unconsolidated joint venture partnership plus cash and cash equivalents).
As of November 30, 2021, we directly owned and managed a real estate portfolio that included 170 industrial buildings totaling approximately 33.2 million square feet located in 27 markets throughout the U.S., with 289 customers, and was 96.6% occupied (97.5% leased) with a weighted-average remaining lease term (based on square feet) of 4.2 years. The occupied rate reflects the square footage with a paying customer in place. The leased rate includes the occupied square footage and additional square footage with leases in place that have not yet commenced.
Additionally, we owned and managed one building in the pre-construction phase totaling approximately 0.1 million square feet as of November 30, 2021. During the month ended November 30, 2021, we directly acquired nine buildings comprised of approximately 1.8 million square feet for an aggregate total purchase price of approximately $261.9 million. During the month ended November 30, 2021, we leased approximately 40,000 square feet of new and future leases, within our total portfolio.
Additionally, we owned and managed 27 buildings totaling approximately 6.3 million square feet through our minority ownership interest in the BTC II Partnership as of November 30, 2021. In addition, through our minority joint venture partnership, we owned and managed eight buildings either under construction or in the pre-construction phase totaling approximately 2.4 million square feet as of November 30, 2021.
The following table sets forth the top ten geographic allocations of our real estate portfolio based on fair value as of November 30, 2021:
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
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Description |
10.1 |
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10.2 |
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99.1 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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 regarding the estimates and assumptions used in the calculation of our NAV per Fund Interest. These statements are based on certain assumptions and analyses made in light of our experience and our 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, risks and uncertainties that may cause our actual results, performance or achievements to be materially different from future results, performance or achievements expressed or implied by these forward-looking statements. Readers are cautioned not to place undue reliance on these forward-looking statements. Among the factors that may cause results to vary are the negative impact of COVID-19 on our financial condition and results of operations being more significant than expected, general economic and business (particularly real estate and capital market) conditions being less favorable than expected, the business opportunities that may be presented to and pursued by us, changes in laws or regulations (including changes to laws governing the taxation of real estate investment trusts (“REITs”)), risk of acquisitions, availability and creditworthiness of prospective customers, availability of capital (debt and equity), interest rate fluctuations, competition, supply and demand for properties in current and any proposed market areas in which we invest, our customers’ ability and willingness to pay rent at current or increased levels, accounting principles, policies and guidelines applicable to REITs, environmental, regulatory and/or safety requirements, customer bankruptcies and defaults, the availability and cost of comprehensive insurance, including coverage for terrorist acts, and other factors, many of which are beyond our control. For a further discussion of these factors and other risk factors that could lead to actual results materially different from those described in the forward-looking statements, see “Risk Factors” under Item 1A of Part 1 of our Annual Report on Form 10-K for the year ended December 31, 2020 and subsequent periodic and current reports filed with the SEC. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of future events, new information or otherwise.
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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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December 15, 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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Exhibit 10.1
BLACK CREEK INDUSTRIAL REIT IV INC.
Amended and Restated
DEALER MANAGER AGREEMENT
This Amended and Restated Dealer Manager Agreement (the “Agreement”), dated December 14, 2021 and effective as of January 1, 2022, is entered into by and between Black Creek Industrial REIT IV Inc., a Maryland corporation (the “Company”), and Ares Wealth Management Solutions, LLC (f/k/a/ Black Creek Capital Markets, LLC), a Colorado limited liability company (the “Dealer Manager”).
Whereas, the Company has filed a registration statement with the U.S. Securities and Exchange Commission (the “SEC”) that is listed on Schedule 1 to this Agreement (each, a “Registration Statement”), which Schedule 1 may be amended from time to time with the written consent of the Company and the Dealer Manager. In this Agreement, unless explicitly stated otherwise, “the Registration Statement” means, at any given time, each of the registration statement(s) listed on Schedule 1, as such Schedule 1 may be amended from time to time, as each such registration statement is finally amended and revised at the effective date of the registration statement (including at the effective date of any post-effective amendment thereto).
Whereas, each Registration Statement shall register an ongoing offering (each, an “Offering”) of shares of the Company’s common stock, $0.01 par value per share (“Common Stock”), which may consist of Class T shares (“Class T shares”), Class W shares (“Class W shares”), Class I shares (“Class I Shares”) or such other classes of shares that may be registered from time to time on a Registration Statement. In this Agreement, unless explicitly stated otherwise, “the Offering” means each Offering covered by a Registration Statement and “Shares” means the Shares being offered in the Offering.
Whereas, the Offering is and shall be comprised of a maximum amount of Shares set forth in the Prospectus (as defined in Section 1.a. below) that will be issued and sold to the public at the public offering prices per Share set forth in the Prospectus pursuant to a primary offering (the “Primary Offering”) and the Company's distribution reinvestment plan. In connection with the Offering, the minimum purchase by any one person shall be as set forth in the Prospectus (except as otherwise indicated in any letter or memorandum from the Company to the Dealer Manager).
Whereas, in this Agreement, unless explicitly stated otherwise, any references to the Registration Statement, the Offering, the Shares or the Prospectus with respect to each other shall mean only those that are all related to the same Registration Statement.
Whereas, the differences between the classes of Shares being offered by the Company and the eligibility requirements for each class are described in detail in the Prospectus. The Shares are to be offered and sold to the public as described under the caption “Plan of Distribution” in the Prospectus. Shares sold through the Dealer Manager are to be sold through the Dealer Manager, as the dealer manager, and the broker-dealers (the “Dealers”) with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement.
Whereas, in connection with the Offering, the minimum initial purchase requirement for any one person shall be $2,000 for Class T Shares and Class W Shares or $1,000,000 for Class I Shares (unless waived by the Company and except as otherwise indicated in the Prospectus).
Whereas, the parties entered into that certain Dealer Manager Agreement dated as of July 30, 2021 (the “Dealer Manager Agreement”).
Whereas, the parties desire to amend the Dealer Manager Agreement by executing this Agreement.
Now, therefore, in consideration of the terms and conditions hereinafter set forth and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed between the Company and the Dealer Manager that the Dealer Manager Agreement shall be and hereby is amended and restated in its entirety as follows:
The Company represents and warrants to the Dealer Manager that:
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not misleading. If at any time any event occurs which is known to the Company as a result of which such supplemental sales materials when used in conjunction with the Prospectus would include an untrue statement of a material fact or, in view of the circumstances under which they were made, omit to state any material fact necessary to make the statements therein not misleading, the Company will promptly notify the Dealer Manager thereof.
The Company covenants and agrees with the Dealer Manager during the full term of this Agreement that:
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information shall have been received from the Dealer Manager) and will effect the preparation of an amended or supplemental prospectus which will correct such statement or omission. The Company will then promptly prepare such amended or supplemental prospectus or prospectuses as may be necessary to comply with the requirements of Section 10 of the Securities Act.
The Dealer Manager represents and warrants to the Company that:
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designated (the “Servicing Broker Dealer”); provided, that, such reallowance shall only be paid to the extent such Servicing Broker Dealer has entered into a Selected Dealer Agreement or similar agreement with the Dealer Manager (the “Servicing Agreement”) and such Selected Dealer Agreement or Servicing Agreement with the Servicing Broker Dealer provides for such reallowance. The Dealer Manager may pay to such Dealers and Servicing Broker Dealers up to 100% of the aggregate Distribution Fees payable by the Company to the Dealer Manager. The Company shall not pay the Dealer Manager a Distribution Fee with respect to Class I Shares. In addition, to the extent the Dealer Manager determines to pay a supplemental fee or commission to a Dealer or a Servicing Broker Dealer with respect to the sale of Class I Shares in the Primary Offering as described in the Prospectus, the Company shall not reimburse the Dealer Manager for any such payment.
The Company shall cease paying Distribution Fees to the Dealer Manager with respect to each Class T Share or Class W Share when it is no longer outstanding, including as a result of conversion to Class I Shares. In addition, the Company shall cease paying distribution fees with respect to each Class T Share or Class W Share held within a stockholder’s account and such Share shall automatically and without any action on the part of the holder thereof convert into a number of Class I Shares at the Applicable Conversion Rate (as defined in the Prospectus) on the earliest of: (i) a listing of any Shares of the Company’s common stock on a national securities exchange, (ii) the Company’s merger or consolidation with or into another entity, or the sale or other disposition of all or substantially all of its assets and (iii) the end of the month in which the Company, with the assistance of the Dealer Manager, determines that the total upfront selling commissions, upfront dealer manager fees and ongoing distribution fees paid with respect to all Shares of such class held by such stockholder within such account (including Shares purchased through the DRIP or received as stock dividends) equals or exceeds 8.5% of the aggregate purchase price of all Shares of such class held by such stockholder within such account and purchased in the Primary Offering.
In addition, after termination of the Primary Offering, each Class T Share or Class W Share (i) sold in the Primary Offering, (ii) sold under the DRIP, and (iii) received as a stock dividend with respect to such Shares sold in the Primary Offering or DRIP, shall automatically and without any action on the part of the holder thereof convert into a number of Class I Shares at the Applicable Conversion Rate (as defined in the Prospectus), at the end of the month in which the Company, with the assistance of the Dealer Manager, determines that all underwriting compensation paid or incurred with respect to the Primary Offering from all sources, determined pursuant to the rules and guidance of FINRA, would be in excess of 10% of the aggregate purchase price of all Shares sold for the Company’s account through the Primary Offering.
The Company has agreed to reimburse the Advisor for any organization and offering expenses that the Advisor incurs on the Company’s behalf as and when incurred, including expenses that are deemed issuer costs and certain expenses that are deemed underwriting compensation, such as legal, accounting, printing, mailing and filing fees and expenses, bona fide due diligence expenses of Dealers and investment advisers supported by detailed and itemized invoices, costs in connection with preparing sales materials, design and website expenses, fees and expenses of the escrow agent and transfer agent, fees to attend retail seminars sponsored by Dealers, compensation of certain registered employees of the Dealer Manager, reimbursements for customary travel, lodging, meals and reasonable entertainment expenses and other actual costs of registered persons
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associated with the Dealer Manager incurred in the performance of wholesaling activities, but excluding upfront selling commissions, dealer manager fees and distribution fees. After the termination of the Primary Offering and again after termination of the offering under the DRIP, the Advisor has agreed to reimburse the Company to the extent that the organization and offering expenses that the Company incurs exceed 15% of the gross proceeds from the applicable offering. Any organization and offering expenses reimbursed by the Company which are deemed underwriting compensation will be subject to the 10% limit on total underwriting compensation imposed by FINRA Rule 2310.
Subject to FINRA limitations on underwriting compensation, in addition to the organization and offering expenses for which the Company will reimburse the Advisor, the Advisor may, in its sole discretion, pay additional expenses that are considered underwriting compensation to the Dealer Manager (which may be reallowed or paid by the Dealer Manager to Dealers) without reimbursement from the Company. These additional amounts may be paid by the Advisor in order to fund certain of the Dealer Manager’s costs and expenses related to the distribution of the Offering, including compensation of certain registered employees of the Dealer Manager, reimbursements for customary travel, lodging, meals and reasonable entertainment expenses and other actual costs of registered persons associated with the Dealer Manager incurred in the performance of wholesaling activities, as well as supplemental fees and commissions paid by the Dealer Manager to Dealers or Servicing Broker Dealers with respect to the sale of Class I Shares in the Primary Offering as described in the Prospectus. These expenses also may include reimbursements for legal fees of the Dealer Manager, cost reimbursements for registered representatives of Dealers to attend educational conferences sponsored by the Company or the Dealer Manager, attendance fees for registered persons associated with the Dealer Manager to attend seminars conducted by Dealers, and promotional items.
The terms of any payment or reallowance of selling commissions, dealer manager fees, and Distribution Fees shall be set forth in the agreements entered into between the Dealer Manager and the Dealers or Servicing Broker Dealers, as applicable. Notwithstanding the foregoing, no selling commissions, Distribution Fees, dealer manager fees, or other amounts will be paid to the Dealer Manager under this provision unless or until subscriptions for the purchase of Shares have been accepted by the Company. The Company and the Advisor will not be liable or responsible to any Dealer or Servicing Broker Dealer for direct payment of selling commissions, any reallowance of dealer manager fees or Distribution Fees, any payment of supplemental fees and commissions with respect to Class I Shares or any other underwriting compensation or expense reimbursement to such Dealer or Servicing Broker Dealer, it being the sole and exclusive responsibility of the Dealer Manager for payment of such amounts to Dealers and Servicing Broker Dealers.
10
The Company hereby agrees and assumes the duty to confirm on its behalf and on behalf of Dealers who sell the Shares all orders for purchase of Shares accepted by the Company. Such confirmations will comply with the rules of the SEC and FINRA, and will comply with applicable laws of such other jurisdictions to the extent the Company is advised of such laws in writing by the Dealer Manager.
11
a.The Company will indemnify and hold harmless the Dealers and the Dealer Manager, their officers and directors and each person, if any, who controls such Dealer or the Dealer Manager within the meaning of Section 15 of the Securities Act from and against any losses, claims, damages or liabilities, joint or several, to which such Dealers or the Dealer Manager, their officers and directors, or such controlling person may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (a) any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto, (ii) the Prospectus or any amendment or supplement to the Prospectus or (iii) any blue sky application or other document executed by the Company or on its behalf specifically for the purpose of qualifying any or all of the Shares for sale under the securities laws of any jurisdiction or based upon written information furnished by the Company under the securities laws thereof (any such application, document or information being hereinafter called a “Blue Sky Application”), or (b) the omission or alleged omission to state in (i) the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto, (ii) the Prospectus or any amendment or supplement to the Prospectus or (iii) any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse each Dealer or the Dealer Manager, its officers and directors and each such controlling person for any legal or other expenses reasonably incurred by such Dealer or the Dealer Manager, its officers and directors, or such controlling person in connection with investigating or defending such loss, claim, damage, liability or action; provided that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of, or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company or the Dealer Manager by or on behalf of any Dealer or the Dealer Manager specifically for use with reference to such Dealer or the Dealer Manager in the preparation of the Registration Statement or any such post-effective amendment thereof, any such Blue Sky Application or the Prospectus or any such amendment thereof or supplement thereto; and further provided that the Company will not be liable in any such case if it is determined that such Dealer or the Dealer Manager was at fault in connection with the loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which the Company may otherwise have. Notwithstanding the foregoing, the Company may not indemnify or hold harmless the Dealer Manager, any Dealer or any of their affiliates in any manner that would be inconsistent with the provisions to Article II.G of the NASAA REIT Guidelines. In particular, but without limitation, the Company may not indemnify or hold harmless the Dealer Manager, any Dealer or any of their affiliates for liabilities arising from or out of a violation of state or federal securities laws, unless one or more of the following conditions are met:
12
b.The Dealer Manager will indemnify and hold harmless the Company, each officer and director of the Company, and each person or firm which has signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, from and against any losses, claims, damages or liabilities to which any of the aforesaid parties may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (a) any untrue statement of a material fact contained in (i) the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto, (ii) the Prospectus or any amendment or supplement to the Prospectus or (iii) any Blue Sky Application, or (b) the omission to state in (i) the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto, (ii) the Prospectus or any amendment or supplement to the Prospectus or (iii) any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made not misleading, in each such case to the extent, but only to the extent, that such untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Dealer Manager specifically for use with reference to the Dealer Manager in the preparation of the Registration Statement or any such post-effective amendments thereof, any such Blue Sky Application or the Prospectus or any such amendment thereof or supplement thereto, or (c) any unauthorized use of sales materials or use of unauthorized verbal representations concerning the Shares by the Dealer Manager and will reimburse the aforesaid parties, in connection with investigation or defending such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which the Dealer Manager may otherwise have.
c.Each Dealer severally will indemnify and hold harmless the Company, the Dealer Manager, and each of their directors (including any persons named in the Registration Statement with his consent, as about to become a director), each of their officers who has signed the Registration Statement and each person, if any, who controls the Company or the Dealer Manager within the meaning of Section 15 of the Securities Act from and against any losses, claims, damages or liabilities to which the Company, the Dealer Manager, any such director or officer, or controlling person may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (a) any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto, (ii) the Prospectus or any amendment or supplement to the Prospectus or (iii) any Blue Sky Application, or (b) the omission or alleged omission to state in (i) the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto, (ii) the Prospectus or any amendment or supplement to the Prospectus or (iii) any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case under (a) and (b) hereof to the extent, but only to the extent that such
13
untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or the Dealer Manager by or on behalf of such Dealer specifically for use with reference to such Dealer in the preparation of the Registration Statement or any such post-effective amendments thereof, any such Blue Sky Application or the Prospectus or any such amendment thereof or supplement thereto, or (c) any failure to deliver to any investor the Prospectus and all supplements thereto and any amended prospectus, or (d) any unauthorized use of sales materials, or use of unauthorized verbal representations concerning the Shares by such Dealer or Dealer’s representatives or agents in violation of Section VII of the Selected Dealer Agreement or otherwise, or (e) any sale in violation of or failure by Dealer to perform its obligations as set forth in Section IX of the Selected Dealer Agreement, or (f) any failure to comply with applicable rules of FINRA, federal or state securities laws or the rules and regulations promulgated thereunder, the NASAA REIT Guidelines, or any other state or federal laws and regulations applicable to the Offering or the activities of the Dealer in connection with the Offering, and will reimburse the Company, the Dealer Manager and any such directors or officers, or controlling person, in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which such Dealer may otherwise have.
d.Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 6, notify in writing the indemnifying party of the commencement thereof; the omission so to notify the indemnifying party will relieve it from liability under this Section 6 only in the event and to the extent the failure to provide such notice adversely affects the ability to defend such action. In case any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled, to the extent it may wish, jointly with any other indemnifying party similarly notified, to participate in the defense thereof, with separate counsel. Such participation shall not relieve such indemnifying party of the obligation to reimburse the indemnified party for reasonable legal and other expenses (subject to paragraph (e) of this Section 6) incurred by such indemnified party in defending itself, except for such expenses incurred after the indemnifying party has deposited funds sufficient to effect the settlement, with prejudice, of the claim in respect of which indemnity is sought. Any such indemnifying party shall not be liable to any such indemnified party on account of any settlement of any claim or action effected without the consent of such indemnifying party.
e.The indemnifying party shall pay all legal fees and expenses of the indemnified party in the defense of such claims or actions; provided, however, that the indemnifying party shall not be obliged to pay legal expenses and fees to more than one law firm in connection with the defense of similar claims arising out of the same alleged acts or omissions giving rise to such claims notwithstanding that such actions or claims are alleged or brought by one or more parties against more than one indemnified party. If such claims or actions are alleged or brought against more than one indemnified party, then the indemnifying party shall only be obliged to reimburse the expenses and fees of the one law firm that has been selected by a majority of the indemnified parties against which such action is finally brought; and in the event a majority of such indemnified parties is unable to agree on which law firm for which expenses or fees will be reimbursable by the indemnifying party, then payment shall be made to the first law firm of
14
record representing an indemnified party against the action or claim. Such law firm shall be paid only to the extent of services performed by such law firm and no reimbursement shall be payable to such law firm on account of legal services performed by another law firm.
f.The indemnity agreements contained in this Section 6 shall remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of any Dealer, or any person controlling any Dealer or by or on behalf of the Company, the Dealer Manager or any officer or director thereof, or by or on behalf of any person controlling the Company or the Dealer Manager, (b) delivery of any Shares and payment therefor, and (c) any termination of this Agreement. A successor of any Dealer or of any of the parties to this Agreement, as the case may be, shall be entitled to the benefits of the indemnity agreements contained in this Section 6.
Any dispute, controversy or claim arising between the parties relating to this Agreement (whether such dispute arises under any federal, state or local statute or regulation, or at common law), shall be resolved by final and binding arbitration administered in accordance with the then current rules of the American Arbitration Association (“AAA”). Any matter to be settled by arbitration shall be submitted to the AAA in Denver, Colorado and the parties agree to abide by all awards rendered in such proceedings. The parties shall attempt to designate one arbitrator from the AAA, but if they are unable to do so, then the AAA shall designate an arbitrator. Any arbitrator selected by the parties or the AAA shall be a qualified Person who has experience with complex real estate disputes. The arbitration shall be final and binding, and enforceable in any court of competent jurisdiction. All awards may be filed with the clerk of one or more courts, state or federal having jurisdiction over the party against whom such award is rendered or his or her property, as a basis of judgment and of the issuance of execution for its collection.
The respective agreements, representations and warranties of the Company and the Dealer Manager set forth in this Agreement shall remain operative and in full force and effect regardless of (a) any termination of this Agreement, (b) any investigation made by or on behalf of the Dealer Manager or any Dealer or any person controlling the Dealer Manager or any Dealer or by or on behalf of the Company or any person controlling the Company, and (c) the acceptance of any payment for the Shares.
This Agreement was executed and delivered in, and its validity, interpretation and construction shall be governed by, the laws of the State of Colorado; provided, however, that causes of action for violations of federal or state securities laws shall not be governed by this Section. Venue for any action brought hereunder shall lie exclusively in Denver, Colorado.
If any portion of this Agreement shall be held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be considered valid and operative and effect shall be given to the intent manifested by the portion held invalid or inoperative.
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Neither the failure nor any delay on the part of any party to this Agreement to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall a waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power, or privilege with respect to any subsequent occurrence.
This Agreement may be executed in any number of counterparts. Each counterpart, when executed and delivered, shall be an original contract, but all counterparts, when taken together, shall constitute one and the same Agreement.
a.This Agreement shall inure to the benefit of and be binding upon the Dealer Manager and the Company and their respective successors. Nothing in this Agreement is intended or shall be construed to give to any other person any right, remedy or claim, except as otherwise specifically provided herein. This Agreement shall inure to the benefit of the Dealers to the extent set forth in Section 6 hereof.
b.This Agreement may be amended by the written agreement of the Dealer Manager and the Company.
In any case, if not sooner terminated, this Agreement shall expire at the close of business on the effective date that the Offering is terminated. This Agreement may be terminated by either party (a) immediately upon notice to the other party in the event that the other party shall have materially failed to comply with any material provision of this Agreement or if any of the representations, warranties, covenants or agreements of such party contained herein shall not have been materially complied with or (b) on 60 days’ written notice.
In addition, the Dealer Manager, upon the expiration or termination of this Agreement, shall (a) promptly deposit any and all funds in its possession which were received from investors for the sale of Shares into such account as the Company may designate; and (b) promptly deliver to the Company all records and documents in its possession which relate to the Offering which are not designated as dealer copies. The Dealer Manager, at its sole expense, may make and retain copies of all such records and documents required to be retained by the Dealer Manager pursuant
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to (i) federal and state securities laws and the rules and regulations thereunder, (ii) the applicable rules of FINRA and (iii) the NASAA REIT Guidelines, but shall keep all such information confidential. The Dealer Manager shall use its best efforts to cooperate with the Company to accomplish any orderly transfer of management of the Offering to a party designated by the Company. Upon expiration or termination of this Agreement, the Company shall pay to the Dealer Manager all earned but unpaid compensation and reimbursement for all incurred, accountable compensation to which the Dealer Manager is or becomes entitled under Section 4 of this Agreement, including but not limited to any Distribution Fees, pursuant to the requirements of that Section 4 at such times as such amounts become payable pursuant to the terms of such Section 4 without acceleration, offset by any losses suffered by the Company, any officer or director of the Company, any person or firm which has signed the Registration Statement or any person who controls the Company within the meaning of Section 15 of the Securities Act arising from the Dealer Manager’s breach of this Agreement or any other action by the Dealer Manager that would otherwise give rise to an indemnification claim against the Dealer Manager under Section 6.b. of this Agreement.
Any terms used but not defined herein shall have the meanings given to them in the Prospectus.
All notices, approvals, requests, and authorizations that are required hereunder to be in writing shall be duly given and deemed to be delivered when delivered in person, by courier, or by over-night delivery service, or deposited in the United States mail, properly addressed and stamped with the required postage, to the intended recipient, as set forth below.
To the Dealer Manager: |
Ares Wealth Management Solutions, LLC
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To the Company: |
Black Creek Industrial REIT IV Inc.
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|
With a copy to:
|
Any party may change its address specified above by giving the other party notice of such change in accordance with this Section.
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IN WITNESS WHEREOF, the parties hereto have each duly executed this Dealer Manager Agreement as of the day and year set forth above.
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/s/ SCOTT A. SEAGER______ ____
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COMPANY: BLACK CREEK INDUSTRIAL REIT IV INC.
By: /s/ SCOTT A. SEAGER
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DEALER MANAGER: Ares Wealth Management Solutions, LLC
By: /s/ CASEY D. GALLIGAN
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18
Schedule 1
Registration Statement(s)
1. |
Registration Statement on Form S-11, Commission file no. 333-255376 . |
Accepted and agreed to by the Company and the Dealer Manager as of December 14, 2021.
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BLACK CREEK INDUSTRIAL REIT IV INC. |
|
By: /s/ SCOTT A. SEAGER |
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Scott A. Seager, Senior Vice President, Chief Financial Officer and Treasurer |
Accepted and agreed to as of the
date first above written:
ARES WEALTH MANAGEMENT SOLUTIONS, LLC |
|
By: /s/ Casey D. Galligan |
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Casey D. Galligan, Co-Chief Executive Officer |
19
EXHIBIT 10.2
LOAN AGREEMENT
by and between
BCI IV 485 DC LLC,
BCI IV VALWOOD CROSSROADS DC LP,
BCI IV LOGISTICS CENTER AT 33 LLC,
BCI IV HARVILL BUSINESS CENTER LP,
BCI IV PRINCESS LOGISTICS CENTER LLC,
BCI IV 1 STANLEY DRIVE LLC,
BCI IV YORK DC LLC,
BCI IV STOCKTON DC LP
BCI IV ARROW ROUTE DC LLC, and
BCI IV LODI DC LLC,
each, a Borrower and collectively the Borrowers
and
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
as Lender
Dated as of December 9, 2021
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND RULES OF CONSTRUCTION1
Section 1.1Definitions1
Section 1.2Rules of Construction1
Article II PAYMENT TERMS1
Section 2.1The Obligations; Loan Funding1
Section 2.2Payments of Principal and Interest2
Section 2.3Prepayment Provisions2
Section 2.4Interest Rate3
Section 2.5Late Charges3
Section 2.6Changes in Tax Laws3
Article III TITLE AND AUTHORITY3
Section 3.1Title to the Property3
Section 3.2Authority4
Section 3.3Special Purpose Entity Representations, Warranties and Covenants4
Section 3.4No Foreign Person7
Section 3.5Litigation7
Article IV PROPERTY STATUS, MAINTENANCE AND PROPERTY MANAGEMENT7
Section 4.1Status of the Properties7
Section 4.2Maintenance of the Properties8
Section 4.3Alterations to the Properties8
Section 4.4Property Management8
Section 4.5Change in Use; Zoning10
Section 4.6Waste10
Section 4.7Inspection of the Properties10
Section 4.8Parking10
Section 4.9Separate Tax Lot10
Section 4.10Personal Property10
Section 4.11Lender’s Right to Appear11
Section 4.12Payment of Impositions11
Section 4.13Right to Contest Liens11
Article V CASH MANAGEMENT AND RESERVES12
Section 5.1Cash Management12
Section 5.2Tax Reserve14
Section 5.3Leasing Reserve15
Section 5.4Roof Repair Reserve16
Section 5.5Reserves Generally17
Article VI INSURANCE, CASUALTY, CONDEMNATION AND RESTORATION18
i
TABLE OF CONTENTS
(continued)
Section 6.1Insurance Coverages18
Section 6.2Casualty and Condemnation19
Section 6.3Application of Proceeds20
Section 6.4Conditions to Availability of Proceeds for Restoration20
Section 6.5Restoration21
Article VII COMPLIANCE WITH LAW AND AGREEMENTS22
Section 7.1Compliance with Law22
Section 7.2Compliance with Agreements23
Section 7.3ERISA Compliance23
Section 7.4Anti-Terrorism23
Article VIII LEASING24
Section 8.1Representations, Warranties and Covenants with Respect to Leases24
Section 8.2Covenants Regarding Future Leasing25
Section 8.3Termination Payments26
Article IX ENVIRONMENTAL26
Section 9.1Environmental Representations and Warranties26
Section 9.2Environmental Covenants27
Section 9.3Compliance with the Lodi, NJ Deed28
Article X FINANCIAL REPORTING29
Section 10.1Financial Reporting29
Section 10.2Interim Financial Information and Rent Roll30
Section 10.3Annual Budget30
Section 10.4Material Non-Public Information30
Article XI EXPENSES AND DUTY TO DEFEND31
Section 11.1Payment of Expenses31
Section 11.2Duty to Defend32
Article XII TRANSFERS, LIENS AND ENCUMBRANCES32
Section 12.1Prohibitions on Transfers, Liens and Encumbrances32
Section 12.2Permitted Transfers32
Section 12.3Conditions to Permitted Transfers33
Section 12.4Release Rights35
Section 12.5Substitution37
Article XIII ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS40
Section 13.1Further Assurances40
Section 13.2Estoppel Certificates40
Article XIV DEFAULTS AND REMEDIES41
Section 14.1Events of Default41
ii
TABLE OF CONTENTS
(continued)
Section 14.2Acceleration42
Section 14.3Remedies42
Article XV LIMITATION OF LIABILITY42
Section 15.1Limitation of Liability42
Article XVI WAIVERS45
Section 16.1Waiver of Statute of Limitations45
Section 16.2Waiver of Notice45
Section 16.3Waiver of Marshalling and Other Matters45
Section 16.4Waiver of Trial by Jury46
Section 16.5Waiver of Counterclaim46
Section 16.6Waiver of Judicial Notice and Hearing46
Section 16.7Waiver of Subrogation46
Section 16.8General Waiver46
Article XVII NOTICES46
Section 17.1Notices47
Section 17.2Change in the Borrowers’ Legal Name, Place of Business or State of Formation48
Article XVIII MISCELLANEOUS48
Section 18.1Applicable Law48
Section 18.2Usury Limitations48
Section 18.3Lender’s Discretion48
Section 18.4Lender’s Servicer49
Section 18.5Unenforceable Provisions49
Section 18.6Rescinded, Avoided or Returned Payments; Survival49
Section 18.7Relationship Between the Borrowers and Lender; No Third Party Beneficiaries49
Section 18.8Partial Releases; Extensions; Waivers50
Section 18.9Service of Process50
Section 18.10Entire Agreement50
Section 18.11No Oral Amendment51
Section 18.12Lost or Destroyed Note51
Section 18.13Time of the Essence51
Section 18.14Subrogation51
Section 18.15Joint and Several Liability51
Section 18.16Successors and Assigns51
Section 18.17Duplicates and Counterparts51
Section 18.18Transfer of Loan51
Section 18.19Advertisement and Publicity52
Article XIX CONTRIBUTION AGREEMENT53
Section 19.1Contribution53
iii
TABLE OF CONTENTS
(continued)
Article XX ADDITIONAL PROVISIONS PERTAINING TO STATE LAWS56
Section 20.1Texas Provisions56
Section 20.2New Jersey Provisions56
Section 20.3Additional Waivers57
Section 20.4Waiver of Certain Defenses59
Section 20.5Section 2955.5(a) of the California Civil Code60
Section 20.6Bankruptcy Proceedings60
Section 20.7Prepayment62
iv
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made as of December 9, 2021, by and between BCI IV 485 DC LLC, a Delaware limited liability company, BCI IV VALWOOD CROSSROADS DC LP, a Delaware limited partnership, BCI IV LOGISTICS CENTER AT 33 LLC, a Delaware limited liability company, BCI IV HARVILL BUSINESS CENTER LP, a Delaware limited partnership, BCI IV PRINCESS LOGISTICS CENTER LLC, a Delaware limited liability company, BCI IV 1 STANLEY DRIVE LLC, a Delaware limited liability company, BCI IV YORK DC LLC, a Delaware limited liability company, BCI IV STOCKTON DC LP, a Delaware limited partnership, BCI IV ARROW ROUTE DC LLC, a Delaware limited liability company, and BCI IV LODI DC LLC, a Delaware limited liability company (each a “Borrower” and collectively, the “Borrowers”), jointly and severally, and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation (“Lender”).
RECITALS:
A.Lender agreed to make and the Borrowers agreed to accept a loan in the maximum principal amount of $461,140,000.00 (the “Loan”).
B.To evidence the Loan, the Borrowers, jointly and severally, executed and delivered to Lender that certain Promissory Note (the “Note”), dated the date of this Agreement, in the principal amount of the Loan (that amount or so much as is outstanding from time to time is referred to as the “Principal”), promising to pay the Principal with interest thereon to the order of Lender as set forth in the Note and with the balance, if any, of the Debt being due and payable on January 1, 2029 (the “Maturity Date”).
AGREEMENT:
NOW, THEREFORE, in consideration of the Loan and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Borrowers and Lender agree as follows:
1
The Borrowers agree that from and after the time at which the Loan proceeds are wired to the title company closing the Loan, on the date agreed and authorized by the Borrowers, the full amount of the Principal shall be deemed to be disbursed to the Borrowers and evidenced by the Note and shall bear interest as provided herein.
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The Borrowers hereby confirm that, as of the date hereof, the representations and warranties contained in this Article VII are true, correct and complete in all material respects and covenants that until the Debt has been repaid in full, it shall take the actions or refrain from taking the actions as required by this Article VII and shall cause any representations and warranties that are expressly prospective in nature to be true, correct and complete in all material respects on every day that the Debt is outstanding:
22
permits, privileges, franchises and concessions (including zoning variances, special exceptions and non-conforming uses) relating to the Properties or the Borrowers. The Borrowers will notify Lender of the commencement of any investigation or Proceeding relating to a possible violation of Law promptly after any Borrower receives notice thereof and will deliver promptly to Lender copies of all material documents any Borrower receives or delivers in connection with such investigation or Proceeding.
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a default or Event of Default hereunder. For purposes of clarity, the Borrower and Lender agree that all information delivered to Lender by Borrowers relating to each Borrower may contain material non-public information and the Borrowers shall not be obligated to send a separate notice of such in advance of the delivery of the same. All information received by Lender regarding the Properties or the financial status of the Borrowers or Guarantor will be deemed confidential information and will not be disclosed by Lender other than to (i) its directors, officers, employees, professional advisors, (ii) Affiliates and such Affiliates’ directors, officers, employees, and professional advisors, (iii) any governmental representative, authority or regulatory authority or as required in any legal or regulatory proceeding, or (iv) potential purchasers or investors in connection with the sale, transfer, syndication or participation of the Loan and their directors, officers, employees, professional advisors, provided that in such circumstance Lender will use commercially reasonable efforts to require such information be held confidential by such potential purchasers or investors and their directors, officers, employees, professional advisors.
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Notwithstanding the foregoing, the limitation of liability in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and Lender may recover personally against the Borrowers and its general partners, if any, in the event of:
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46
If to Lender: |
Teachers Insurance and Annuity Association of America
730 Third Avenue New York, New York 10017 Attention:Senior Director, Head of Loan Closing/Asset Management Global Real Estate Authorization # AAA-8344 Investment ID # 0009576 Email: nuveendebtnotices@nuveen.com |
with a copy to: |
Teachers Insurance and Annuity Association of America
730 Third Avenue New York, New York 10017 Attention:Associate General Counsel and Director Asset Management Law Authorization # AAA-8344 Investment ID # 0009576 Email: nuveendebtnotices@nuveen.com |
and: |
Commercial Loan Services 929 Gessner, Suite 1740 Houston, Texas 77024 Attention: Chief Legal Officer Email: nuveencustomerservice@commercialloanservices.com |
If to Borrowers: |
c/o BCI IV Operating Partnership LP 518 17th Street, 17th Floor Denver, Colorado 80202 Attention:Scott Seager |
with a copy to: |
BCI IV Operating Partnership LP 518 17th Street, 17th Floor Denver, Colorado 80202 Attention:General Counsel |
47
|
|
and: |
Bryan Cave Leighton Paisner LLP 1290 Avenue of the Americas New York, New York 10104-3300 Attention: Andrew Auerbach, Esq. |
Lender and the Borrowers each may change from time to time the address to which Notices must be sent, by notice given in accordance with the provisions of this Section. All Notices given in accordance with the provisions of this Section will be deemed to have been received on the earliest of (i) actual receipt; (ii) the Borrowers’ rejection of delivery; or (iii) three (3) Business Days after having been deposited in any mail depository regularly maintained by the United States Postal Service, if sent by certified mail, or one (1) Business Day after having been deposited with a nationally recognized overnight delivery service, if sent by overnight delivery or on the date of personal service, if served by a process server, provided notice given by electronic mail delivery pursuant to clause (d) shall be effective upon acknowledgement of receipt thereof, if such receipt occurs on or before 5:00 p.m. Eastern time on a Business Day in the place where the intended recipient is located, otherwise, on the next Business Day, and provided that such notice also was sent by one of the other means described in clauses (a), (b) or (c). Any notice given to a Borrower shall be deemed given to all Borrowers.
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Lender has an election, Lender’s approval, determination or election will be made in Lender’s reasonable discretion unless expressly provided to the contrary.
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“No lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real property, to provide hazard insurance coverage against risks to the improvements on that real property in an amount exceeding the replacement value of the improvements on the property.”
This disclosure is being made by Lender to the Borrowers pursuant to Section 2955.5(b) of the California Civil Code. By executing and delivering this Loan Agreement to Lender, the Borrowers acknowledge receipt of this disclosure and acknowledge that this disclosure has been made by Lender before execution of any note or security document evidencing or securing the Loan.
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Borrower:Initials:
BCI IV 485 DC LLC/s/ SS
BCI IV VALWOOD CROSSROADS DC LP/s/ SS
BCI IV LOGISTICS CENTER AT 33 LLC /s/ SS
BCI IV HARVILL BUSINESS CENTER LP /s/ SS
BCI IV PRINCESS LOGISTICS CENTER LLC/s/ SS
BCI IV 1 STANLEY DRIVE LLC/s/ SS
BCI IV YORK DC LLC /s/ SS
BCI IV STOCKTON DC LP/s/ SS
BCI IV ARROW ROUTE DC LLC/s/ SS
BCI IV LODI DC LLC/s/ SS
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Borrowers and Lender have executed and delivered this Agreement as of the date first set forth above.
BORROWERS:
BCI IV 485 DC LLC,
a Delaware limited liability company
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV VALWOOD CROSSROADS DC LP,
a Delaware limited partnership
By: |
BCI IV Valwood Crossroads DC GP LLC,
|
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV LOGISTICS CENTER AT 33 LLC,
a Delaware limited liability company
By: |
BCI IV LC 33 Holdco LLC,
|
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV HARVILL BUSINESS CENTER LP,
a Delaware limited partnership
By: |
BCI IV Harvill Business Center GP LLC,
|
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV PRINCESS LOGISTICS CENTER LLC,
a Delaware limited liability company
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV 1 STANLEY DRIVE LLC,
a Delaware limited liability company
By: |
BCI IV 1 Stanley Drive Holdco LLC,
|
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV YORK DC LLC,
a Delaware limited liability company
By: |
BCI IV York DC Holdco LLC,
|
By: |
BCI IV Portfolio Real Estate Holdco LLC,
|
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV STOCKTON DC LP,
a Delaware limited partnership
By: |
BCI IV Stockton DC GP LLC,
|
By: |
BCI IV Portfolio Real Estate Holdco LLC,
|
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV ARROW ROUTE DC LLC,
a Delaware limited liability company
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
BCI IV LODI DC LLC,
a Delaware limited liability company
By: |
BCI IV Operating Partnership LP,
|
By: |
Black Creek Industrial REIT IV, Inc.,
|
By:/s/ SCOTT SEAGER
Name:Scott Seager
Title:Senior Vice President
Chief Financial Officer & Treasurer
LENDER:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
a New York corporation
By: |
Nuveen Alternatives Advisors LLC,
|
By:/s/ AISHA ROBERTS
Name:Aisha Roberts
Title: Authorized Signer
Exhibit 99.1
CONSENT OF INDEPENDENT VALUATION ADVISOR
We hereby consent to the references to our name and the description of our role in the valuation process described in the heading “November 30, 2021 NAV Per Share” in the Current Report on Form 8-K of Black Creek Industrial REIT IV Inc. (the “Company”), filed by the Company with the Securities and Exchange Commission on the date hereof, being included or incorporated by reference in the Company’s Registration Statement on Form S-8 (File No. 333-228818). We also hereby consent to the same information and the reference to our name in the heading “Experts” being included or incorporated by reference in the Company’s Registration Statement on Form S-11 (File No. 333-255376) and the related prospectus and prospectus supplements that are a part thereof. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933.
|
|
/s/ Altus Group U.S. Inc. |
December 15, 2021 |
|
Altus Group U.S. Inc. |