Industrial Income Trust Inc. (Exact name of registrant as specified in its charter)

Transcription

1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C 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 27, 2015 Industrial Income Trust Inc. (Exact name of registrant as specified in its charter) Maryland (State or other jurisdiction of incorporation) (Commission File Number) 518 Seventeenth Street, 17 th Floor Denver, CO (Address of principal executive offices) (303) (Registrant s telephone number, including area code) (IRS Employer Identification No.) 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: Written communications pursuant to Rule 425 under the Securities Act (17 CFR ) Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR a-12) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR d-2(b)) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR e-4(c))

2 Item 1.01 Entry into a Material Definitive Agreement The Agreement and Plan of Merger On July 28, 2015, Industrial Income Trust Inc., a Maryland corporation (the Company ), Western Logistics LLC ( Parent ), a Delaware limited liability company and an affiliate of Global Logistic Properties Limited ( GLP ), and Western Logistics II LLC ( Merger Sub ), a Delaware limited liability company and wholly-owned subsidiary of Parent, entered into an Agreement and Plan of Merger (the Merger Agreement ). The Merger Agreement provides that, upon the terms and subject to the conditions set forth in the Merger Agreement, the Company will merge with and into Merger Sub (the Merger ), with Merger Sub continuing as the surviving entity (the Surviving Entity ). Upon completion of the Merger, the separate corporate existence of the Company will cease. The board of directors of the Company (the Company Board ) has unanimously approved the Merger, the Merger Agreement and the other transactions contemplated by the Merger Agreement. Prior to the closing of the Merger, the Company will transfer subsidiaries that own 11 of its properties that are under development or in the lease-up stage (the Excluded Properties ) to a liquidating entity, the beneficial interests in which will be distributed pro rata to the Company s stockholders immediately prior to the effective time of the Merger (the Merger Effective Time ). Pursuant to the terms and conditions in the Merger Agreement, subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, at the Merger Effective Time, each share of common stock, $0.01 par value per share, of the Company (the Common Stock ) issued and outstanding immediately prior to the Merger Effective Time will be converted into the right to receive an amount in cash equal to $10.30, without interest and subject to any applicable withholding tax obligations (the Merger Consideration ). In addition, on the closing date of the Merger and prior to the Merger Effective Time, each special partnership unit of Industrial Income Operating Partnership LP, the Company s operating partnership (the Operating Partnership ), will automatically be redeemed by the Operating Partnership for the receipt by the holder of such special partnership units of a number of partnership units of the Operating Partnership ( OP Units ), in accordance with the operating partnership agreement (the Special Partnership Unit Redemption ). Immediately after the Special Partnership Unit Redemption, each OP Unit received as part of the Special Partnership Unit Redemption will automatically be converted into one share of Common Stock of the Company (the OP Unit Conversion ). The Merger will occur immediately after the OP Unit Conversion. Immediately prior to the Merger Effective Time, all of the outstanding shares of restricted stock granted under the Company s Equity Incentive Plan and Private Placement Equity Incentive Plan will automatically become fully vested and free of any forfeiture restrictions (whether or not then vested or subject to any performance condition that has not been satisfied). At the Merger Effective Time, each share of restricted stock will be considered an outstanding share of Common Stock for all purposes of the Merger Agreement, including the right to receive the Merger Consideration. The Company and Parent have made certain customary representations and warranties in the Merger Agreement and have agreed to customary covenants, including, among others, with respect to the conduct of business of the Company prior to the closing and covenants prohibiting the Company and its subsidiaries and representatives from soliciting or entering into discussions concerning proposals relating to alternative business combination transactions, subject to certain limited exceptions. The Merger Agreement requires the Company to convene a stockholders meeting for purposes of obtaining the approval of the holders of a majority of the outstanding Common Stock and to prepare and file a proxy statement with the Securities and Exchange Commission (the SEC ) with respect to such meeting as promptly as practicable after the date of the Merger Agreement, which proxy statement will contain, subject to certain exceptions, the Company Board s recommendation that the Company s stockholders vote in favor of the Merger. Prior to the approval of the Merger by the Company s stockholders, the Company Board may in certain circumstances adopt, approve or declare advisable certain alternative business combination transactions or take similar actions in accordance with its obligations under applicable law, subject to complying with specified notice and other conditions set forth in the Merger Agreement.

3 The completion of the Merger is subject to a number of conditions, including, among others: (i) approval of the Merger by the requisite vote of stockholders as of the record date for the special meeting of stockholders; (ii) the accuracy of the Company s and Parent s representations and warranties as of the Merger Effective Time, subject to certain materiality, material adverse effect and other exceptions; (iii) the Company and Parent having performed in all material respects all material obligations and complied in all material respects with all material agreements and covenants required under the Merger Agreement; (iv) the absence of a material adverse effect on the Company; (v) the receipt by Parent of tax opinions relating to the REIT status of the Company; (vi) the execution by certain affiliates of Industrial Income Advisors LLC (the Prior Advisor ) of a transition services agreement pursuant to which, among other things, affiliates of the Prior Advisor will, for a transition period following closing of the Merger, provide certain accounting, asset management and other oversight services to the Surviving Entity in connection with the transition of the management, operation, maintenance, leasing and servicing of the Company s properties; (vii) the receipt of applicable payoff letters; (viii) the receipt of Committee on Foreign Investment in the United States ( CFIUS ) clearance by GLP, an affiliate of Parent that guarantees certain of Parent s obligations under the Merger Agreement, related to notices filed with CFIUS prior to the date of the Merger Agreement in connection with GLP s syndication of interests in the completed acquisition of the logistics platform portfolio of IndCor Properties, Inc.; (ix) the transfer of the Excluded Properties to a liquidating entity, the beneficial interests in which will be distributed pro rata to the Company s stockholders; and (x) the completion of the Replacement Advisor Contribution and the transactions contemplated by the OP Unit Purchase Agreement (each as defined under The Amended and Restated Advisory Agreement and the Contribution Agreement below). The obligations of the parties to consummate the Merger are not subject to any financing condition or the receipt of any financing by Parent or Merger Sub. The Merger Agreement may be terminated under certain circumstances, including: (A) by mutual written consent of the parties; (B) by either party (1) if the Merger has not been consummated on or before November 16, 2015 (the Outside Date ), (2) if a final and non-appealable order is entered permanently restraining or otherwise prohibiting the Merger or the other transactions contemplated by the Merger Agreement, or (3) upon a failure of the Company to obtain approval of the requisite vote of its stockholders; (C) by Parent if (1) the Company has breached its representations and warranties or covenants and agreements, and the breach results in the applicable closing condition with respect to its representations and warranties or covenants and agreements being incapable of being satisfied by the Outside Date (subject to certain exceptions) or (2) the Company or the Company Board breaches certain covenants related to the non-solicitation of alternative acquisition agreements; or (D) by the Company if (1) Parent has breached its representations and warranties or covenants and agreements, and the breach results in the applicable closing condition with respect to its representations and warranties or covenants and agreements being incapable of being satisfied by the Outside Date (subject to certain exceptions), (2) the Company Board approves and authorizes the Company to enter into a definitive agreement to implement a superior business combination proposal, subject to the satisfaction of conditions set forth in the Merger Agreement or (3) Parent informs the Company or the Company otherwise becomes aware that the closing condition related to CFIUS clearance will not be satisfied or fulfilled at or prior to the Outside Date. The Merger Agreement provides that, in connection with the termination of the Merger Agreement under specified circumstances, the Company may be required to reimburse Parent s reasonable transaction expenses up to an aggregate amount equal to $25.0 million. In connection with the termination of the Merger Agreement under other specified circumstances, Parent may be required to reimburse the Company s reasonable transaction expenses up to an aggregate amount equal to $7.5 million. The Merger Agreement also provides that, in connection with the termination of the Merger Agreement under specified circumstances, the Company may be required to pay to Parent a termination fee of $110.0 million, less any transaction expenses reimbursement amount paid by the Company to Parent. The Merger Agreement also provides that in connection with the termination of the Merger Agreement under certain other circumstances, Parent will be required to pay to Company a termination fee of $250.0 million. A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement. The Merger Agreement has been attached to provide stockholders with information regarding its terms. It is not intended to provide any other factual information about

4 Parent, Merger Sub or the Company. In particular, the assertions embodied in the representations and warranties in the Merger Agreement were made as of a specified date, are modified or qualified by information in confidential disclosure letters provided by each party to the other in connection with the signing of the Merger Agreement, may be subject to a contractual standard of materiality different from what might be viewed as material to stockholders, or may have been used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Merger Agreement are not necessarily characterizations of the actual state of facts about Parent or the Company at the time they were made or otherwise and should only be read in conjunction with the other information that the Company makes publicly available in reports, statements and other documents filed with the SEC. The Amended and Restated Advisory Agreement and the Contribution Agreement Prior to July 27, 2015, the Company, the Operating Partnership and Prior Advisor were party to a Seventh Amended and Restated Advisory Agreement, dated February 21, 2015 (the Prior Advisory Agreement ), pursuant to which the Prior Advisor performed certain duties and responsibilities as a fiduciary of the Company and its stockholders. On July 27, 2015, the Company, the Operating Partnership and IIT Advisor LLC (the New Advisor ) entered into the Eighth Amended and Restated Advisory Agreement (the New Advisory Agreement ), in order to, among other things, (i) acknowledge the assignment of the rights and obligations of the Prior Advisor under the Prior Advisory Agreement to the New Advisor, (ii) eliminate the portion of the asset management fee payable to the Company s advisor by the Company in the case of certain dispositions equal to 2.0% of the contract sales price (the Disposition Fee ), and (iii) reduce certain time periods with respect to the termination of the New Advisory Agreement from 60 days to 30 days. The Prior Advisor and Academy Partners Ltd. Liability Company, an affiliate of the Prior Advisor ( Academy Partners ), collectively own 100% of the limited liability company interests in the New Advisor. The foregoing description of the New Advisory Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the New Advisory Agreement, a copy of which is filed herewith as Exhibit 10.1 and is incorporated by reference herein. In addition, on July 28, 2015, the Operating Partnership, the Prior Advisor, Academy Partners and Industrial Property Advisors LLC entered into a Contribution Agreement (the Contribution Agreement ). As described in the Contribution Agreement, prior to the Merger Effective Time, the New Advisor will form a new wholly owned limited liability company (the Replacement Advisor ). Immediately thereafter, the New Advisor will: (i) assign its rights and obligations under the New Advisory Agreement to the Replacement Advisor (and the Replacement Advisor will become the advisor to the Company); and (ii) contribute all of its right, title and interest in and to certain intellectual property rights used in the business of the Company, which Parent wishes to acquire in connection with the Merger, to the Replacement Advisor. Pursuant to the Contribution Agreement, immediately thereafter and prior to the Merger Effective Time, (a) the New Advisor will distribute all of its right, title and interest in Replacement Advisor and all of its liabilities to its members in liquidation of New Advisor, and (b) following receipt of the interests in Replacement Advisor, each of Prior Advisor and Academy Partners will contribute its right, title and interest in and to the Replacement Advisor to the Operating Partnership in exchange for an aggregate of approximately 8.83 million OP Units (the Replacement Advisor Contribution ). The foregoing description of the Contribution Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Contribution Agreement, a copy of which is filed herewith as Exhibit 10.2 and is incorporated by reference herein. In connection with the transactions contemplated by the Contribution Agreement, on July 28, 2015, the Merger Sub, Prior Advisor and Academy Partners also entered into an Operating Partnership Unit Purchase Agreement (the OP Unit Purchase Agreement ) pursuant to which, among other things, concurrently with the Merger Effective Time, Merger Sub will acquire all OP Units issued to Prior Advisor and Academy Partners in the Replacement Advisor Contribution for an aggregate price of approximately $91.0 million, without adjustment or proration of any kind. Under the terms of the OP Unit Purchase Agreement, a certain portion of the consideration payable for the OP Units may be held in escrow until January 4, 2016 or the expiration of a noncompetition arrangement pursuant to which the Prior Advisor is restricted from owning or managing industrial assets in Asia for a one-year period following the sale of the OP Units pursuant to the OP Unit Purchase Agreement (subject to certain exceptions). An additional portion of the consideration payable for the OP Units may be held in escrow for a two-year

5 period from the date of the closing under the OP Unit Purchase Agreement to secure certain indemnification obligations, if any, under the Contribution Agreement. The Operating Partnership joined in the execution of the OP Unit Purchase Agreement for the limited purpose of consenting to the transfer of the OP Units to Merger Sub. Item 7.01 Regulation FD Disclosure. On July 28, 2015, the Company issued a press release announcing the execution of the Merger Agreement. The full text of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference. On July 28, 2015, the Company distributed a letter to its stockholders concerning the announced proposed Merger. A copy of the stockholder letter distributed by the Company is attached hereto as Exhibit 99.2 and is incorporated herein by reference. In addition, on July 28, 2015, the Company prepared a stockholder Q&A and an distribution to financial advisors and home offices, in each case, concerning the Merger and the Merger Agreement. Copies of the stockholder Q&A and the to financial advisors and home offices are attached hereto as Exhibit 99.3 and Exhibit 99.4, respectively, and each is incorporated herein by reference. The information furnished under this Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed to be filed for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. Item 8.01 Other Events In connection with the approval of the Merger, on July 28, 2015, the Company announced that the Company Board, including all of the Company s independent directors, had voted to terminate the Company s Third Amended and Restated Distribution Reinvestment Plan (the DRIP ) and the Company s Fourth Amended and Restated Share Redemption Plan ( SRP ), each termination effective as of the Merger Effective Time. The Company Board, including all of the Company s independent directors, also voted to suspend indefinitely the DRIP and the SRP from and after the date hereof. As a result of the suspension of the DRIP, any distributions paid after the date hereof will be paid to the Company s stockholders in cash. The Company can provide stockholders with assistance on directing cash distribution payments and answering questions. The suspension of the DRIP will not affect the payment of distributions to stockholders who previously received their distributions in cash. In addition, as a result of the suspension of the SRP, the Company will not process or accept any requests for redemption received after the date hereof. Forward-Looking Statements This Current Report on Form 8-K, including the exhibit furnished herewith, contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of These forward-looking statements generally can be identified by use of statements that include words such as intend, plan, may, should, could, will, project, estimate, anticipate, believe, expect, continue, potential, opportunity and similar expressions. Such statements involve known and unknown risks, uncertainties, and other factors which may cause the actual results, performance, or achievements of the Company to be materially different from future results, performance or achievements expressed or implied by such forward-looking statements. Such factors may include, but are not limited to, the following: (i) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement; (ii) the failure of the Company to obtain the requisite vote of stockholders required to consummate the proposed merger or the failure to satisfy the other closing conditions to the merger or any of the other transactions contemplated by the merger agreement; (iii) risks related to disruption of management s attention from the Company s ongoing business operations due to the transaction; (iv) the effect of the announcement of the merger on the ability of the Company to retain key personnel, maintain relationships with its customers and suppliers, and maintain its operating results and business generally; (v) the ability of third parties to fulfill their obligations relating to the proposed transaction,

6 including providing financing under current financial market conditions; (vi) the actual distributions to be received by stockholders from the liquidating entity, if any, the timing of such distributions and the market prices for the Excluded Properties at the time of any sales by the liquidating entity, including costs related thereto; (vii) the outcome of any legal proceedings that may be instituted against the Company and others related to the merger agreement; (viii) the ability of the Company to implement its operating strategy; (ix) the Company s ability to manage planned growth; (x) changes in economic cycles; and (xi) competition within the real estate industry. In addition, these forward-looking statements reflect the Company s views as of the date on which such statements were made. The Company anticipates that subsequent events and developments may cause its views to change. These forward-looking statements should not be relied upon as representing the Company s views as of any date subsequent to the date hereof. In light of the significant uncertainties inherent in the forward-looking statements included herein, the inclusion of such information should not be regarded as a representation by the Company or any other person that the results or conditions described in such statements or the objectives and plans of the Company will be achieved. Additional factors that could cause actual results to differ materially from these forwardlooking statements are listed from time to time in the Company s SEC reports, including, but not limited to, the Risk Factors section of the Company s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, which was filed with the SEC on February 27, 2015, the Risk Factors section of the Company s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015, which was filed with the SEC on May 13, 2015 and subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. The Company expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrences. Additional Information about the Proposed Transaction and Where to Find It In connection with the proposed Merger, the Company intends to file with the SEC and mail or otherwise provide to its stockholders a proxy statement and other relevant materials, and hold a special meeting of its stockholders to obtain the requisite stockholder approval. BEFORE MAKING ANY VOTING OR INVESTMENT DECISIONS, STOCKHOLDERS OF THE COMPANY ARE URGED TO READ THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS FILED WITH THE SEC BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. The proxy statement and other relevant materials (when they become available) containing information about the proposed transactions, and any other documents filed by the Company with the SEC, may be obtained free of charge at the SEC s web site at and the Company s website at In addition, stockholders may obtain free copies of the proxy statement and other documents filed by the Company with the SEC (when available) by directing a written request to the following address: Industrial Income Trust Inc., Attention: Eric Paul, th Street, Denver, CO The Company and its executive officers and directors may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the Merger. Information about those executive officers and directors of the Company and their ownership of Common Stock is set forth in the proxy statement for the Company s 2015 Annual Meeting of Stockholders, which was filed with the SEC on April 17, Stockholders may obtain additional information regarding the direct and indirect interests of the Company and its executive officers and directors in the Merger by reading the proxy statement regarding the Merger when it becomes available.

7 Item 9.01 (d) Exhibits Financial Statements and Exhibits. Exhibit No. Exhibit Description 2.1 Agreement and Plan of Merger by and among the Company, Parent and Merger Sub, dated July 28, 2015* 10.1 Eighth Amended and Restated Advisory Agreement by and among the Company, the Operating Partnership and the New Advisor, dated July 27, Contribution Agreement by and among the Operating Partnership, Prior Advisor and Academy Partners, dated July 28, Press release of the Company, dated July 28, Stockholder Letter, dated July 28, Stockholder Q&A, dated July 28, to Financial Advisors and Home Offices, dated July 28, 2015 * Industrial Income Trust Inc. has omitted certain schedules and exhibits pursuant to Item 601(b)(2) of Regulation S-K and shall furnish supplementally to the SEC copies of any of the omitted schedules and exhibits upon request by the SEC.

8 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. INDUSTRIAL INCOME TRUST INC. July 28, 2015 By: /S/ THOMAS G. MCGONAGLE Name: Thomas G. McGonagle Title: Chief Financial Officer

9 EXHIBIT INDEX Exhibit No. Exhibit Description 2.1 Agreement and Plan of Merger by and among the Company, Parent and Merger Sub, dated July 28, 2015* 10.1 Eighth Amended and Restated Advisory Agreement by and among the Company, the Operating Partnership and the New Advisor, dated July 27, Contribution Agreement by and among the Operating Partnership, Prior Advisor and Academy Partners, dated July 28, Press release of the Company, dated July 28, Stockholder Letter, dated July 28, Stockholder Q&A, dated July 28, to Financial Advisors and Home Offices, dated July 28, 2015 * Industrial Income Trust Inc. has omitted certain schedules and exhibits pursuant to Item 601(b)(2) of Regulation S-K and shall furnish supplementally to the SEC copies of any of the omitted schedules and exhibits upon request by the SEC.

10 EXHIBIT 2.1 Execution Version AGREEMENT AND PLAN OF MERGER AMONG WESTERN LOGISTICS LLC, WESTERN LOGISTICS II LLC and INDUSTRIAL INCOME TRUST INC. DATED AS OF JULY 28, 2015

11 TABLE OF CONTENTS ARTICLE 1 DEFINITIONS 3 Section 1.01 Definitions 3 Section 1.2 Interpretation and Rules of Construction 14 ARTICLE 2 THE MERGER 15 Section 2.1 The Merger 15 Section 2.2 Closing 16 Section 2.3 Effective Time 16 Section 2.4 Governing Documents 17 Section 2.5 Officers of the Surviving Entity 17 Section 2.6 Manager of the Surviving Entity 17 Section 2.7 Additional Transactions 17 Section 2.8 Tax Consequences 18 ARTICLE 3 EFFECTS OF THE MERGER 19 Section 3.1 Effects on Shares of Common Stock 19 Section 3.2 Interests in Company LP 20 Section 3.3 Exchange Fund; Exchange Agent 20 Section 3.4 Withholding Rights 22 Section 3.5 Effect on Company Restricted Stock 22 Section 3.6 Suspension of Company DRIP 23 Section 3.7 Dissenters Rights 23 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF COMPANY 23 Section 4.1 Organization and Qualification; Subsidiaries 23 Section 4.2 Organizational Documents 25 Section 4.3 Capital Structure 25 Section 4.4 Authority 28 Section 4.5 No Conflict; Required Filings and Consents 28 Section 4.6 Permits; Compliance with Law 29 Section 4.7 SEC Documents; Financial Statements; Indebtedness 31 Section 4.8 Absence of Certain Changes or Events 33 Section 4.9 No Undisclosed Material Liabilities 33 Section 4.10 No Default 33 Section 4.11 Litigation 34 Section 4.12 Taxes 34 Page

12 Section 4.13 Benefit Plans; Employees 38 Section 4.14 Information Supplied 38 Section 4.15 Intellectual Property 39 Section 4.16 Environmental Matters 39 Section 4.17 Properties 41 Section 4.18 Material Contracts 46 Section 4.19 Insurance 48 Section 4.20 Opinion of Financial Advisor 48 Section 4.21 Approval Required 49 Section 4.22 Brokers 49 Section 4.23 Investment Company Act 49 Section 4.24 Related Party Transactions 49 Section 4.25 Tenant Costs and Capital Expenditures; Expansion Rights 49 Section 4.26 Takeover Statutes 50 Section 4.27 Internal Controls 50 Section 4.28 No Other Representations and Warranties 51 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 51 Section 5.1 Organization and Qualification 51 Section 5.2 Authority 52 Section 5.3 No Conflict; Required Filings and Consents 52 Section 5.4 Litigation 53 Section 5.5 Information Supplied 53 Section 5.6 Brokers 54 Section 5.7 Available Funds; Guarantee 54 Section 5.8 No Agreements with Company Related Parties 55 ARTICLE 6 COVENANTS RELATING TO CONDUCT OF BUSINESS PENDING THE MERGER 55 Section 6.1 Conduct of Business by Company 55 Section 6.2 Other Actions 65 Section 6.3 No Control of Business 65 ARTICLE 7 ADDITIONAL COVENANTS 66 Section 7.1 Preparation of the Proxy Statement; Stockholders Meeting 66 Section 7.2 Access to Information; Confidentiality 67 Section 7.3 No Solicitation; Company Acquisition Proposals 68 Section 7.4 Public Announcements 73 2

13 Section 7.5 Indemnification; Directors and Officers Insurance 73 Section 7.6 Appropriate Action; Consents; Filings 77 Section 7.7 Notification of Certain Matters; Transaction Litigation 79 Section 7.8 Section 16 Matters 80 Section 7.9 Dividends 80 Section 7.10 Takeover Statutes 80 Section 7.11 Tax Representation Letters 80 Section 7.12 Termination of Agreements 81 Section 7.13 Merger Sub; Subsidiaries 81 Section 7.14 Existing Loans 81 Section 7.15 Parent Financing Activities 81 Section 7.16 Liens 84 Section 7.17 Tax Matters 85 Section 7.18 Certain Insurance Matters 85 ARTICLE 8 CONDITIONS 85 Section 8.1 Conditions to Each Party s Obligation to Effect the Merger 85 Section 8.2 Conditions to Obligations of Parent and Merger Sub 86 Section 8.3 Conditions to Obligations of Company 88 ARTICLE 9 TERMINATION, FEES, AMENDMENT AND WAIVER 88 Section 9.1 Termination 88 Section 9.2 Effect of Termination 90 Section 9.3 Fees 91 Section 9.4 Amendment 96 ARTICLE 10 GENERAL PROVISIONS 96 Section 10.1 Nonsurvival of Representations and Warranties and Certain Covenants 96 Section 10.2 Notices 97 Section 10.3 Severability 98 Section 10.4 Counterparts 99 Section 10.5 Entire Agreement; No Third-Party Beneficiaries 99 Section 10.6 Extension; Waiver 100 Section 10.7 Governing Law 100 Section 10.8 Consent to Jurisdiction 100 Section 10.9 Assignment 101 Section Specific Performance 101 Section Waiver of Jury Trial 101 Section Authorship 102 Section Non-Recourse 102 3

14 EXHIBITS AND SCHEDULES Exhibit A Form of Company REIT Qualification Opinion Exhibit B Form of Transition Services Agreement Schedule A Knowledge of Company Schedule B Knowledge of Parent Schedule C Accompanying Representation Letter to the Company REIT Qualification Opinion Schedule ISRA Properties Schedule Excluded Company Properties Schedule 5.7 Debt Commitment Letter Schedule 6.1(b) Conduct of Business by Company Schedule 8.2(i) - Certain Closing Condition Company Disclosure Letter 4

15 AGREEMENT AND PLAN OF MERGER This AGREEMENT AND PLAN OF MERGER, dated as of July 28, 2015 (this Agreement ), is by and among Western Logistics LLC, a Delaware limited liability company ( Parent ), Western Logistics II LLC, a Delaware limited liability company and wholly-owned subsidiary of Parent ( Merger Sub ), and Industrial Income Trust Inc., a Maryland corporation that has elected to be treated as a real estate investment trust for federal income tax purposes ( Company ). Each of Parent, Merger Sub and Company is sometimes referred to herein as a Party and collectively as the Parties. Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in Article 1. WHEREAS, the Parties hereto wish to effect a business combination through a merger of Company with and into Merger Sub (such merger transaction, the Merger ), with Merger Sub being the surviving company (the Surviving Entity ) in the Merger, upon the terms and conditions set forth in this Agreement and in accordance with the Maryland General Corporation Law, as amended (the MGCL ), and the Delaware Limited Liability Company Act, as amended ( DLLCA ), and pursuant to which each outstanding share of common stock, $0.01 par value per share, of Company (the Company Common Stock ), issued and outstanding immediately prior to the Merger Effective Time, will be converted into the right to receive the Per Share Merger Consideration; WHEREAS, on July 27, 2015, Company LP, Industrial Income Advisors LLC ( IIA ) and Academy Partners Ltd. Liability Company ( Academy ) entered into a contribution agreement (the Contribution Agreement ) pursuant to which IIA and Academy agreed to contribute to Company LP 100% of the equity interests in New IIT Advisor LLC, a Delaware limited liability company, in exchange for the Company Partnership Units to be issued pursuant to the Contribution Agreement (such Company Partnership Units, the Contribution Units ); WHEREAS, concurrent with the execution of this Agreement, Merger Sub, IIA and Academy have entered into a purchase agreement (the Purchase Agreement ) pursuant to which Merger Sub shall acquire the Contribution Units from IIA and Academy concurrent with or immediately prior to the Merger Effective Time; WHEREAS, immediately prior to the Merger Effective Time, (i) each Special Company Partnership Unit shall be redeemed by Company LP in exchange for the receipt by each holder of Special Company Partnership Units of a number of Company Partnership Units in accordance with the terms of Section 3.2 hereof, and (ii) immediately following such redemption described in clause (i), but prior to the Merger Effective Time, each Company Partnership Unit not held by the Company, other than the Contribution Units, shall automatically be converted into one share of Company Common Stock; WHEREAS, the Board of Directors of Company (the Company Board ) has (a) determined that this Agreement, the Merger and the transactions contemplated by this

16 Agreement are advisable and in the best interests of Company and its stockholders, (b) approved this Agreement, the Merger and the transactions contemplated by this Agreement, (c) directed that the Merger and the other transactions contemplated by this Agreement be submitted for consideration at a meeting of Company stockholders, and (d) recommended the approval of the Merger and the other transactions contemplated by this Agreement by Company stockholders; WHEREAS, the manager of Parent (the Parent Manager ) has (a) determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of Parent and its members, and (b) approved this Agreement, the Merger and the other transactions contemplated by this Agreement; WHEREAS, Parent, in its capacity as the sole member of Merger Sub, has taken all actions required for the execution of this Agreement by Merger Sub and to adopt and approve this Agreement and to approve the consummation by Merger Sub of the Merger and the other transactions contemplated by this Agreement; WHEREAS, for U.S. federal income tax purposes, it is intended that the Merger will be treated as a taxable sale by Company of all of Company s assets to Merger Sub in exchange for the Merger Consideration to the holders of equity interests in Company and the assumption of all of Company s liabilities (including Company LP liabilities), followed by a distribution of such consideration to the holders of equity interests in Company in liquidation of Company pursuant to Section 331 and Section 562 of the Code, and that this Agreement shall constitute a plan of liquidation of Company for federal income tax purposes; WHEREAS, the Parties desire to make certain representations, warranties and agreements in connection with the execution of this Agreement and to prescribe various conditions to the Merger; and WHEREAS, concurrently with the execution hereof, as an inducement for Company to enter into this Agreement, the Guarantor has executed and delivered the Guarantee to Company. NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows: 2

17 ARTICLE 1 DEFINITIONS Section 1.01 Definitions. (a) For purposes of this Agreement: Access Agreement means the Limited Access Agreement, dated as of May 12, 2015, by and between Company and Guarantor, as amended from time to time. Action means any claim, action, cause of action, suit, litigation, proceeding, arbitration, mediation, interference, audit, assessment, investigation, hearing, or other legal proceeding (whether sounding in contract, tort or otherwise, whether civil or criminal and whether brought, conducted, tried or heard by or before, or otherwise involving, any Governmental Authority). Advisor means IIT Advisor LLC, a Delaware limited liability company. Affiliate of a specified Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person. Benefit Plan means any employee benefit plan (within the meaning of Section 3(3) of ERISA) and any employment, consulting, termination, severance, change in control, separation, stock option, restricted stock, profits interest unit, performance award, outperformance, stock purchase, stock or stock-related awards, deferred compensation, bonus, incentive compensation, fringe benefit, health, medical, dental, disability, accident, life insurance, welfare benefit, cafeteria, vacation, sick or paid time off, perquisite, retirement, profit sharing, pension, or savings or any other remuneration, compensation or employee benefit plan, agreement, program, policy or other arrangement of any kind, whether or not subject to ERISA and whether written or unwritten, or funded or unfunded. Business Day means any day other than a Saturday, Sunday or any day on which banks located in New York, New York or Denver, Colorado are authorized or required to be closed. CFIUS means the Committee on Foreign Investment in the United States, which, as the context may require, includes any member agency or governmental subdivision of the United States government that is a CFIUS member as specified in Section 721 of Title VII of the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007, P.L , 121 Stat and otherwise (codified at 50 U.S.C. App. 2170) and regulations thereto, codified at 31 C.F.R. Part 800, et seq., as amended. CFIUS Clearance means (i) the issuance of a written notice by CFIUS that it has concluded a review of the notification voluntarily provided pursuant to the DPA (as defined 3

18 below) and determined that there are no unresolved national security concerns with respect to the transactions contemplated by this Agreement, (ii) if CFIUS shall have undertaken a full investigation, CFIUS shall have issued a written notice that it has concluded a review of the notification voluntarily provided pursuant to the DPA and that there are no unresolved national security concerns with respect to the transactions contemplated by this Agreement, or (iii) if CFIUS shall have sent a report to the President of the United States requesting the President s decision, (x) the President shall have announced a decision not to take any action to suspend or prohibit the transactions contemplated by this Agreement or (y) having received a report from CFIUS requesting the President s decision, the President shall not have taken any action after 15 days from the date the President received such report from CFIUS. Code means the Internal Revenue Code of 1986, as amended. Company Acceptable Confidentiality Agreement means a confidentiality and standstill agreement that contains provisions that are no less favorable in the aggregate to Company than those contained in the Confidentiality Agreement; provided that a Company Acceptable Confidentiality Agreement may include provisions that are less favorable to Company than those contained in the Confidentiality Agreement so long as Company offers to amend and immediately so amends if requested by Parent, the Confidentiality Agreement, concurrently with execution of such Company Acceptable Confidentiality Agreement, to include substantially similar provisions for the benefit of Parent; provided further that no Company Acceptable Confidentiality Agreement shall prohibit Company s compliance with Section 7.3 hereof. Company Advisory Agreement means the Eighth Amended and Restated Advisory Agreement, dated as of July 27, 2015, by and among Company, Company LP and the Advisor. Company Bylaws means the Amended and Restated Bylaws of Company, as amended and supplemented and in effect on the date hereof. Company Charter means the Second Articles of Amendment and Restatement of Company filed with the SDAT on February 9, 2010, as amended, supplemented, corrected and in effect on the date hereof, including by the Certificate of Correction to Second Articles of Amendment and Restatement of the Company, dated March 19, Company DRIP means the Company Third Amended and Restated Distribution Reinvestment Plan, effective as of March 1, Company Equity Incentive Plan means the Company Amended and Restated Equity Incentive Plan, effective as of January 18, Company Lease means each right or license to occupy, right or license to use, lease or sublease (including any ground lease), that (i) was in effect as of July 6, 2015, and (ii) to which Company or the Company Subsidiaries are parties as lessors or sublessors with respect to a Company Property (together with all amendments, modifications, supplements, renewals, exercise of options and extensions related thereto). 4

19 Company Listing Transaction means (i) a potential future listing by Company, (ii) a potential initial public offering of the Company Common Stock or other common equity of Company, (iii) the potential acquisition of the Advisor, Industrial Income Advisors LLC and/or any of their respective Affiliates, and/or (iv) any related actions (including the preparation of any platform acquisition documentation, S-11 or proxy statement). Company LP means Industrial Income Operating Partnership LP, a Delaware limited partnership. Company Material Adverse Effect means any event, circumstance, change, effect, development, condition or occurrence (each, an Event ) that (i) has had or would have a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Company and the Company Subsidiaries, taken as a whole, or (ii) will or would reasonably be expected to prevent or materially impair or delay the ability of Company to consummate the Merger no later than the Outside Date; provided that for purposes of clause (i) Company Material Adverse Effect shall not include any Event if and to the extent arising out of or resulting from (A) any failure of Company to meet any projections or forecasts or any estimates of earnings, revenues or other metrics for any period (provided that any event, circumstance, change, effect, development, condition or occurrence giving rise to such failure may be taken into account in determining whether there has been a Company Material Adverse Effect), (B) any changes that affect the industrial real estate industry generally, (C) any changes in the United States or global economy or capital, financial or securities markets generally, including changes in interest or exchange rates, (D) any changes in the legal, regulatory or political conditions in the United States or in any other country or region of the world, (E) the commencement, escalation or worsening of a war or armed hostilities or the occurrence of acts of terrorism or sabotage occurring after the date hereof, (F) the negotiation, execution, delivery and performance of this Agreement or the public announcement of the Merger or the other transactions contemplated hereby, including the impact thereof on relationships, contractual or otherwise, with tenants, suppliers, lenders, investors, venture partners or employees (provided, however, that the exception in this clause (F) shall not apply to Company Material Adverse Effect used in Section 4.5), (G) the taking of any action expressly required by this Agreement, the taking of any action at the written request or with the prior written consent of Parent or the failure to take any action at the request of Parent, (H) earthquakes, hurricanes, floods or other natural disasters, or (I) changes in Law or GAAP (or the interpretation thereof); provided, however, that any Event arising out of the matters described in each of clauses (B), (C), (D), (E) and (I) shall not be excluded if such Event disproportionately affects Company and the Company Subsidiaries, taken as a whole, relative to others similarly situated in the industrial real estate industry in the United States, and in the case of clause (H), shall not be excluded if such Event disproportionately affects Company and the Company Subsidiaries, taken as a whole, relative to others in the industrial real estate industry in the geographic regions in which Company and the Company Subsidiaries operate. 5

20 Company Partnership Agreement means that certain Amended and Restated Limited Partnership Agreement of the Company LP, dated as of February 9, 2010, as such agreement may be amended from to time. Company Partnership Unit means a Partnership Unit, as defined in the Company Partnership Agreement. Company Permitted Liens means any of the following: (i) Liens for Taxes or governmental assessments, charges or claims of payment not yet due or being contested in good faith for which adequate accruals or reserves have been established; (ii) Liens that are an inchoate carriers, warehousemen s, mechanics, materialmen s, repairmen s or other similar Liens arising in the ordinary course of business and (A) not greater than sixty (60) days past due and payable, or (B) the payment of which is being contested in good faith and for which adequate accruals or reserves have been established to the extent required by GAAP; (iii) Liens under zoning regulation, entitlement or other land use or environmental regulation by any Governmental Authority; (iv) Liens that are recorded in a public record or disclosed on existing title policies or surveys made available to the Parent prior to the date hereof; (v) Liens pursuant to the terms of the Existing Loans or any Indebtedness of a Joint Venture or a subsidiary thereof; (vi) Liens arising under Company Leases for the occupation of portions of the Company Properties as tenants only in the ordinary course of business of Company or any Company Subsidiary; or (vii) Liens or reservations of interest in title that do not interfere materially with the current use of the property affected thereby (assuming its continued use in the manner in which it is currently used) or materially adversely affect the value or marketability of such property. Company Private Placement Equity Incentive Plan means the Company Private Placement Equity Incentive Plan, effective as of March 17, Company Properties means each real property owned, or leased (including ground leased) as lessee or sublessee, by Company or any Company Subsidiary as of the date of this Agreement (including all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property), in each case, other than the Excluded Company Properties. Company Restricted Stock means a restricted stock award granted pursuant to the Company Equity Incentive Plan or the Company Private Placement Equity Incentive Plan. Company Share Redemption Plan means the Company s Fourth Amended and Restated Share Redemption Program, effective as of March 1,

21 Company Stockholder Meeting means the meeting of the holders of shares of Company Common Stock for the purpose of seeking the Company Stockholder Approval, including any postponement or adjournment thereof. Company Subsidiary means any corporation, partnership, limited liability company, joint venture, business trust, real estate investment trust or other organization, whether incorporated or unincorporated, or other legal entity of which (i) Company directly or indirectly owns or controls at least a majority of the capital stock or other equity interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions, (ii) Company and/or any Person that is a Company Subsidiary is a general partner, manager, managing member, trustee, director or the equivalent, or (iii) Company, directly or indirectly, holds a majority of the beneficial, equity, capital, profits or other economic interest; provided that in no event shall IIT- HSA Park 355 II JV LLC, IDI/IIT Valley Parkway LLC or any of their respective subsidiaries constitute a Company Subsidiary for purposes of this Agreement. For avoidance of doubt, the term Company Subsidiary shall include the Company LP. Confidentiality Agreement means the Confidentiality Agreement, dated as of March 27, 2015, between Guarantor and Company, as amended or supplemented by that certain Summary of Principal Terms, dated as of May 8, 2015, between Guarantor and Company. Debt Financing Source means each lender and each other Person (including each agent and arranger) that have committed to provide or otherwise entered into agreements in connection with the Debt Commitment Letter, the Debt Financing or any Alternate Debt Financings, including any commitment letters, engagement letters, credit agreements, loan agreements or indentures relating thereto, together with each Affiliate thereof and each officer, director, employee, partner, controlling person, advisor, attorney, agent and representative of each such lender, other Person or Affiliate (in the case of each such Affiliate and each officer, director, employee, partner, controlling person, adviser, attorney, agent and representatives of each such lender, Person or Affiliate, in their capacity as such), or the heirs, executors, successors and assigns of any of the foregoing. DPA means the Defense Production Act of 1950, as amended. Environmental Law means any Law (including common law) relating to the pollution or protection of the environment (including air, surface water, groundwater, land surface or subsurface land), or human health or safety (solely as such matters relate to Hazardous Substances), including Laws relating to the use, handling, presence, transportation, treatment, storage, disposal, release or discharge of Hazardous Substances. Environmental Permit means any permit, approval, license or other authorization required under any applicable Environmental Law. 7