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): July 21, 2014
DIVIDEND CAPITAL DIVERSIFIED
PROPERTY FUND INC.
(Exact Name of Registrant as Specified in its Charter)
| Maryland | 000-52596 | 30-0309068 | ||
| (State or other jurisdiction of incorporation) |
(Commission File No.) | (I.R.S. Employer Identification No.) |
| 518 Seventeenth Street, 17th Floor, Denver CO | 80202 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code (303) 228-2200
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 (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement. |
Dividend Capital Diversified Property Fund Inc. (referred to herein as the “Company,” “we,” “our,” or “us”) and Dividend Capital Securities LLC (the “Dealer Manager”), the dealer manager for the Company’s ongoing public offering of Class A, W and I shares, previously entered into a certain Amended and Restated Dealer Manager Agreement dated February 8, 2013, as amended by Amendment No. 1 dated May 31, 2013 (“Amendment No. 1”), Amendment No. 2 dated June 26, 2013 and Amendment No. 3 dated March 20, 2014. Amendment No. 1 provides that the Company will pay to the Dealer Manager a primary dealer fee in the amount of up to 5.0% of the gross proceeds raised from the sale of Class I shares sold in the Company’s primary public offering, provided that (i) the sales are all made before July 31, 2013 (unless extended by the Company, through written notice to the Dealer Manager) (the “Primary Dealer Fee Deadline”) and (ii) the total gross proceeds raised with respect to which the primary dealer fee will apply may not exceed $300 million (the “Aggregate Primary Dealer Proceeds Cap”). The Dealer Manager will retain 0.5% of such gross proceeds and reallow the remainder of the primary dealer fee to the participating broker-dealers involved in selling such Class I shares based on the portion of the gross proceeds raised from their customers. The primary dealer fee will be considered underwriting compensation (as defined in accordance with, and subject to the underwriting compensation limits of, applicable Financial Industry Regulatory Authority rules).
On May 27, 2014, the Company notified the Dealer Manager that, without limiting the Company’s ability to notify the Dealer Manager of further extensions, the Company was extending the Primary Dealer Fee Deadline for an additional term from May 27, 2014 through July 31, 2014, but only with respect to sales made by participating broker-dealers specifically approved by the Company as being eligible (“Primary Dealers”). In addition, on May 27, 2014, the Company, the Dealer Manager and the Company’s external advisor, Dividend Capital Total Advisors LLC (the “Advisor”) entered into a new selected dealer agreement (the “Second Managed Offering Selected Dealer Agreement”) with Raymond James & Associates, Inc. (“Raymond James”) to provide for a new term pursuant to which Raymond James will use its best efforts to sell Class I shares in transactions entitling it to primary dealer fees. Pursuant to the Second Managed Offering Selected Dealer Agreement, the Company will pay the Dealer Manager a primary dealer fee of 5.0% of the gross proceeds raised from the sale of Class I shares sold by Raymond James in the primary offering, provided that the sales are all made between May 27, 2014 and July 31, 2014, unless extended by the Company (the “Second Managed Offering Term”). The total gross proceeds raised during the Second Managed Offering Term with respect to which the primary dealer fee will apply may not exceed $50 million, provided that the Company may unilaterally elect to increase the limit up to $100 million. In addition, with the consent of all parties to the Second Managed Offering Selected Dealer Agreement, the limit may be increased further, subject to the Aggregate Primary Dealer Proceeds Cap. The Dealer Manager will retain 0.5% of such gross proceeds and reallow the remainder of the primary dealer fee to Raymond James. The Dealer Manager will also reallow to Raymond James the dealer manager fee payable by the Company with respect to (a) Class I shares sold in the Company’s primary offering through Raymond James during the Second Managed Offering Term and (b) Class I shares sold through the Company’s distribution reinvestment plan that are purchased with distributions paid on such shares. During the Second Managed Offering Term, the Company may allow other participating broker-dealers to join Raymond James as Primary Dealers eligible to receive primary dealer fees under the Second Managed Offering Selected Dealer Agreement.
On July 21, 2014, the Company notified the Dealer Manager that, without limiting the Company’s ability to notify the Dealer Manager of further extensions, the Company was extending the Primary Dealer Fee Deadline further through August 31, 2014, with respect to Primary Dealers. In addition, on July 21, 2014, the Company, the Dealer Manager, the Advisor and Raymond James agreed to extend the Second Managed Offering Term through August 31, 2014.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits: |
| Exhibit Number |
Description | |
| 1.1 | Primary Dealer Fee Extension Notice* | |
| 1.2 | Amendment No. 1 to Selected Dealer Agreement with Raymond James & Associates, Inc.* | |
| * | Filed or furnished herewith. |
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.
| Dividend Capital Diversified Property Fund, Inc. | ||||||
| July 23, 2014 | ||||||
| By: | /s/ M. KIRK SCOTT | |||||
| M. Kirk Scott | ||||||
| Chief Financial Officer | ||||||
Exhibit 1.1
July 21, 2014
Dividend Capital Securities LLC
518 17th Street, 17th Floor
Denver, CO 80202
Ladies and Gentlemen:
Dividend Capital Diversified Property Fund Inc., a Maryland corporation (the “Company”) and Dividend Capital Securities LLC (the “Dealer Manager”) have entered into that certain Amended and Restated Dealer Manager Agreement dated February 8, 2013, as amended by Amendment No. 1 dated May 31, 2013 (“Amendment No. 1”), Amendment No. 2 dated June 26, 2013 and Amendment No. 3 dated March 20, 2014 (as it may be amended from time to time, the “Dealer Manager Agreement”). The Company and Dealer Manager now wish to enter into this additional agreement (the “Agreement”). Except as otherwise specifically stated herein, all terms used in this Agreement have the meanings provided in the Dealer Manager Agreement.
Pursuant to Section 1 of Amendment No. 1, the Company agreed to pay to the Dealer Manager a primary dealer fee with respect to certain sales of Class I Primary Shares, subject to certain terms specified therein, including that all such sales were made by July 31, 2013, unless extended by the Company through written notice to the Dealer Manager. On May 27, 2014, the Company notified the Dealer Manger that the July 31, 2013 deadline was extended for an additional term from May 27, 2014 through July 31, 2014. The Company hereby notifies the Dealer Manager that, without limiting the ability of the Company to notify the Dealer Manager of further extensions, the July 31, 2014 deadline is hereby extended for an additional term from August 1, 2014 through August 31, 2014, but only with respect to sales made by Dealers approved in writing by the Company as being eligible to receive primary dealer fees (which approval shall be deemed given in the event that the Company enters into a selected dealer agreement with such Dealer and the Dealer Manager that provides for payment of the primary dealer fee). The Dealer Manager hereby agrees to such extension.
[Signature Page Follows]
If the foregoing correctly sets forth the parties’ understanding, please so indicate in the space provided on the attached page for that purpose, whereupon this letter shall constitute a binding agreement between us.
| Dividend Capital Diversified Property Fund Inc. | ||
| By: | /s/ Jeffrey F. Johnson | |
| Name: | Jeffrey F. Johnson | |
| Title: | Chief Executive Officer | |
Accepted as of the date first above written:
| Dividend Capital Securities LLC | ||
| By: | /s/ Charles Murray | |
| Name: | Charles Murray | |
| Title: | President | |
Exhibit 1.2
AMENDMENT NO. 1 TO SELECTED DEALER AGREEMENT
This Amendment No. 1 to Selected Dealer Agreement, dated July 21, 2014 (this “Amendment”), is made by and among Dividend Capital Diversified Property Fund Inc., a Maryland corporation (the “Company”), Dividend Capital Securities LLC, a Colorado limited liability company (the “Dealer Manager”), Dividend Capital Total Advisors LLC, a Delaware limited liability company (the “Advisor”), and Raymond James & Associates, Inc., a Florida corporation (“Raymond James”). The Company, the Dealer Manager, the Advisor and Raymond James are collectively referred to herein as the “Parties,” and each a “Party.” Capitalized terms used but not defined herein will have the meanings ascribed to such terms in the Selected Dealer Agreement (defined below).
WHEREAS, the Parties have entered into a Selected Dealer Agreement, dated as of May 27, 2014 (the “Selected Dealer Agreement”);
WHEREAS, the Parties desire to amend the Selected Dealer Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Agreements.
(a) Pursuant to Section 18 of the Selected Dealer Agreement, the Parties hereby agree that the first paragraph of Section 3(a) of the Selected Dealer Agreement shall be amended and restated in its entirety as follows:
(a) Purchase of Shares. On the basis of the representations, warranties and covenants herein contained, but subject to the terms and conditions herein set forth, the Company and the Dealer Manager hereby appoint Raymond James as a selected dealer (i) with respect to Class I Shares sold in the Primary Offering through the Managed Offering Term and (ii) with respect to DRIP Shares purchased with distributions paid by the Company on such Shares sold by Raymond James during the period from the date hereof to the date that the Offering is terminated (the “Effective Term”). Subject to the performance by the Company of all obligations to be performed by it hereunder and the completeness and accuracy of all of its representations and warranties, Raymond James agrees to use its best efforts, during the Managed Offering Term, to offer and sell up to $50,000,000 in Class I Shares in the Primary Offering at the price terms stated in the Prospectus, as the same may be adjusted from time to time; provided that the Company may make one or more elections throughout the Managed Offering Term to increase the maximum amount of Class I Shares to be sold in the Managed Offering up to an aggregate of $100,000,000 upon written notice to the Dealer Manager and Raymond James (the “Managed Offering”). The term “Managed Offering Term” means the period from May 27, 2014 to the earlier of (a) written notice from the Company or the Dealer Manager to Raymond James, or written notice from Raymond James to the Company or the Dealer Manager, terminating the Managed Offering and (b) August 31, 2014, unless extended in writing by the Company and Raymond James.
(b) Pursuant to Section 18 of the Selected Dealer Agreement, the Parties hereby agree that Section 3(b) of the Selected Dealer Agreement shall be amended and restated in its entirety as follows:
(b) Closing Dates and Delivery of Shares. In no event shall a sale of Shares to an investor be completed until at least five business days after the date the investor receives a copy of the Prospectus. Orders for Class I Primary Shares (as defined below) shall be submitted by Raymond James to the Company as set forth in this Agreement on mutually agreed upon closing dates; provided that there shall be no more than three of such closing dates during the term of this Agreement, unless the Company and Raymond James agree in writing to any additional closing dates (each such date, a “Closing Date”). Shares will be issued as described in the Prospectus. Share issuance dates for purchases made pursuant to the DRIP will be as set forth in the DRIP.
2. Limited Effect; No Modifications. This Amendment is effective as of the date first set forth above. The amendments set forth above shall be limited precisely as written and relate solely to the provisions of the Selected Dealer Agreement in the manner and to the extent described above, and nothing in this Amendment shall be deemed to constitute a waiver of compliance by any of the Parties with respect to any other term, provision or condition of the Selected Dealer Agreement or any other instrument or agreement referred to therein. Except as expressly set forth herein, nothing contained in this Amendment will be deemed or construed to amend, supplement or modify the Selected Dealer Agreement or otherwise affect the rights and obligations of any party thereto, all of which remain in full force and effect.
3. Miscellaneous.
(a) Regardless of the place of its physical execution or performance, the provisions of this Amendment will in all respects be construed according to, and the rights and liabilities of the parties hereto will in all respects be governed by, the substantive laws of New York without regard to and exclusive of New York’s conflict of laws rules.
(b) Any dispute between the parties concerning this Amendment not resolved between the parties will be arbitrated in accordance with the rules and regulations of FINRA. In the event of any dispute between Raymond James and any of the Company, the Dealer Manager or the Advisor, each of Raymond James and the Company, the Dealer Manager and the Advisor will continue to perform their respective obligations under this Amendment and the Selected Dealer Agreement in good faith during the resolution of such dispute unless and until the Selected Dealer Agreement is terminated in accordance with the provisions thereof.
2
(c) This Amendment shall inure to the benefit of and be binding upon each of the Parties and each of their respective successors, legal representatives and assigns in each case permitted under Section 12 of the Selected Dealer Agreement.
(d) The headings in this Amendment are for convenience only and will not constitute a part of this Amendment for any other purpose and will not be deemed to limit or affect any of the provisions hereof or of the Selected Dealer Agreement.
(e) This Amendment may be executed in counterparts (including by facsimile or other electronic transmission), all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties (including by facsimile or other electronic transmission).
(f) This Amendment, together with the Selected Dealer Agreement, represents the entire agreement of the parties with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by either party relative to subject matter hereof not expressly set forth herein or therein.
[Signature page follows]
3
IN WITNESS WHEREOF, the Parties have executed this Amendment on the date first written above.
| DIVIDEND CAPITAL DIVERSIFIED PROPERTY FUND INC. | ||
| By: | /s/ Jeffrey F. Johnson | |
| Name: | Jeffrey F. Johnson | |
| Title: | Chief Executive Officer | |
| DIVIDEND CAPITAL SECURITIES LLC | ||
| By: | /s/ Charles Murray | |
| Name: | Charles Murray | |
| Title: | President | |
| DIVIDEND CAPITAL TOTAL ADVISORS LLC | ||
| By: | /s/ Evan H. Zucker | |
| Name: | Evan H. Zucker | |
| Title: | Manager | |
Accepted as of the date first above written:
| RAYMOND JAMES & ASSOCIATES, INC. | ||
| By: | /s/ Vivek Seth | |
| Name: | Vivek Seth | |
| Title: | Managing Director, Head of Real Estate Group, Investment Banking | |