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
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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
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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
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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
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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:
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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:
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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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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 |
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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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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Premium. By initialing this provision in the space provided below, each Borrower hereby declares that Lender's agreement to make the subject loan at the interest rate and for the term set forth herein constitutes adequate consideration, given individual weight by the undersigned, for this waiver and agreement.
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