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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 15, 2019



INDUSTRIAL PROPERTY TRUST INC.
(Exact Name of Registrant as Specified in its Charter)



Maryland
(State or Other Jurisdiction
of Incorporation)
  000-55376
(Commission
File Number)
  61-1577639
(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:

o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

ý
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o
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 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company o

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. o

   


Item 1.01.    Entry into a Material Definitive Agreement

Agreement and Plan of Merger

        On July 15, 2019, Industrial Property Trust Inc., a Maryland corporation (the "Company"), Prologis, L.P., a Delaware limited partnership ("Parent"), and Rockies Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent ("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement"). The Merger Agreement provides that, upon the terms and subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the "Merger"), with the Company continuing as the surviving entity (the "Surviving Entity") and a subsidiary of Parent. Upon the completion of the Merger, the separate existence of Merger Sub will cease. The Company's minority ownership interests in its two unconsolidated joint venture partnerships—Build-To-Core Industrial Partnership I LP and Build-To-Core Industrial Partnership II LP (together, the "BTC Partnerships")—will be excluded from the Merger pursuant to a transaction elected by the Company as described below. 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. The Merger and the other transactions contemplated by the Merger Agreement are collectively referred to herein as the "Transaction."

        Pursuant to the terms and subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each Class A Common Share, $0.01 par value per share, of the Company (the "Class A Common Shares") issued and outstanding immediately prior to the Effective Time and each Class T Common Share, $0.01 par value per share, of the Company (the "Class T Common Shares" and together with the Class A Common Shares, the "Company Common Stock") issued and outstanding immediately prior to the Effective Time, will automatically be converted into the right to receive an amount in cash equal to $12.44 per share (the "Per Share Merger Consideration"), which may be reduced as a result of adjustments contemplated in the Merger Agreement in connection with the Specified Transactions (described below), without interest, but subject to any withholding required under applicable tax law. Immediately prior to the Effective Time, all restricted stock awards granted pursuant to the Company Equity Incentive Plan, dated as of July 16, 2013, or the Company Private Placement Equity Incentive Plan, effective as of February 26, 2015 (the "Company Restricted Stock"), that are outstanding immediately prior to the Effective Time 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 Effective Time, each share of Company Restricted Stock will be considered (to the extent that such share of Company Restricted Stock is not otherwise considered to be outstanding) an outstanding share of Company Common Stock for all purposes of the Merger Agreement, including the right to receive the Per Share Merger Consideration.

        In addition, immediately prior to the Effective Time, each special partnership unit of Industrial Property Operating Partnership LP, the Company's operating partnership (the "Operating Partnership"), will be redeemed by the Operating Partnership in exchange for the receipt by the holder thereof (the "Special OP Unitholder") of a number of partnership units of the Operating Partnership ("OP Units") as determined in accordance with the terms of the limited partnership agreement of the Operating Partnership (the "Special Partnership Unit Redemption"). Immediately after the Special Partnership Unit Redemption but prior to the Effective Time, each OP Unit received as part of the Special Partnership Unit Redemption will automatically be converted into one Class A Common Share.

        In accordance with the terms, conditions and limitations set forth in the Merger Agreement, no later than August 14, 2019, the Company will provide written notice to Parent of its election to take one of the following actions with respect to the Company's interests in the entities (collectively, the "BTC Entities") that hold the Company's limited partnership and general partnership interests in the BTC Partnerships: (i) sell or otherwise transfer all of the Company's equity interests in the BTC Entities to any person (a "BTC Sale") and distribute the proceeds of such sale (less any amount expended by the Company or any of its subsidiaries in connection with such sale) to the stockholders of


the Company; (ii) contribute the equity interests in all of the subsidiaries of the Company (other than the BTC Entities, the Operating Partnership and IPT Real Estate Holdco LLC, which would remain subsidiaries of the Company) to up to three newly formed subsidiaries of the Operating Partnership (each, a "New Holdco"), and effect a business combination through the merger of up to three affiliates of Parent with and into each New Holdco, with each New Holdco surviving such merger as a wholly owned subsidiary of Parent (an "Alternative Transaction"), and following the closing of each merger, cause the net proceeds of such disposition (as determined in accordance with the Merger Agreement) to be distributed to the stockholders of the Company; or (iii) contribute the equity interests in the BTC Entitles to a newly formed subsidiary of the Operating Partnership ("BTC Spinco") and thereafter distribute the equity interests in BTC Spinco to the Special OP Unitholder and the stockholders of the Company (a "BTC Spinoff," and together with a BTC Sale and an Alternative Transaction, the "Specified Transactions"). If the Company does not make such election prior to August 14, 2019, the Company will be deemed to have elected an Alternative Transaction. If the Company elects a BTC Spinoff or a BTC Sale, but such transaction has not been consummated by the date that the closing of the Merger would otherwise be required to occur in accordance with the terms of the Merger Agreement, the Company may postpone the closing of the Merger until a date specified by the Company that is no later than February 28, 2020. Further, if the Company elects a BTC Sale and at the contemplated closing of such BTC Sale the purchaser in such BTC Sale fails to close such BTC Sale, or if the Company elects a BTC Spinoff or a BTC Sale and such transaction has not been consummated by February 28, 2020, then, in each case, the closing of the Merger will be automatically postponed until such date mutually agreed by the Company and Parent that is no later than March 31, 2020, and the Company, Parent and Merger Sub shall engage in an Alternative Transaction.

        In the case of a BTC Spinoff, the Per Share Merger Consideration will be proportionately reduced by the sum of (x) the amount of indebtedness incurred by the Operating Partnership and contributed to BTC Spinco prior to a BTC Spinoff and (y) the aggregate amount of out-of-pocket costs incurred by the Company and its subsidiaries solely in connection with a BTC Spinoff that would not otherwise have been incurred had a BTC Spinoff not occurred. Additionally, in connection with a BTC Spinoff, BTC Spinco will be required, for a period of 18 months and subject to a cap of $25.0 million, to indemnify the Company for any losses or liability incurred by the Company solely as a result of a BTC Spinoff that the Company would not have incurred in the absence of a BTC Spinoff (excluding any liability which would not have existed had the Company merged with and into Merger Sub with Merger Sub surviving). In the event that the Company elects to engage in an Alternative Transaction, the Company, Parent and Merger Sub will amend the Merger Agreement to reflect the transactions contemplated by an Alternative Transaction. In the event that the Company engages in a BTC Sale, the Company will obtain, for the benefit of the Company and its subsidiaries, representation and warranty insurance to cover any post-closing liabilities for breach of representations and warranties (unless such BTC Sale is consummated on an "as is, where is" basis).

        The Company and Parent each have made certain customary representations and warranties in the Merger Agreement and have agreed to customary covenants including, among others, with respect to the conduct of business of the Company and its subsidiaries prior to the closing and covenants prohibiting the Company and its subsidiaries and representatives from soliciting, providing information or entering into discussions concerning proposals relating to alternative business combination transactions, subject to certain limited exceptions.

        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, including the payment of a termination fee described below.

        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 shares of Company 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 reasonably 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. The proxy statement will be mailed to holders of shares of Company Common Stock following SEC clearance of the proxy statement, and, if the Company elects a BTC Spinoff, following SEC clearance of certain documentation relating to such BTC Spinoff.

        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 closing of the Merger, subject to certain materiality, material adverse effect and other exceptions; (iii) the Company and Parent having performed in all material respects all obligations and complied in all material respects with all agreements and covenants required under the Merger Agreement; (iv) the absence of a material adverse effect on the Company; and (v) the receipt by Parent of a tax opinion relating to the REIT status of the Company and, in the event the Company elects to engage in a BTC Spinoff, a tax opinion relating to the REIT status of BTC Spinco. 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 February 28, 2020 (the "Outside Date"), so long as the failure of the Merger to be consummated by the Outside Date was not caused by the terminating party's failure to comply with any provision of the Merger Agreement (provided that if the Company elects a BTC Sale or a BTC Spinoff and on the date of the Outside Date a BTC Sale or a BTC Spinoff, as the case may be, has not been consummated, then in either case, the Outside Date will automatically be extended to March 31, 2020), (2) if a final and non-appealable order is entered, or any other action is taken, by any governmental authority of competent jurisdiction permanently restraining or otherwise prohibiting the Merger, so long as the order or other action was not caused by the terminating party's failure to comply with any provision of 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 a failure of the applicable closing condition with respect to its representations and warranties or covenants and agreements that cannot be cured (or, if capable of cure, is not cured) by either forty-five (45) days after written notice of such breach or two (2) Business Days prior to the Outside Date, whichever is earlier (subject to certain exceptions) or (2) the Company Board effects a change in its recommendation to the Company's stockholders, the Company Board approves, publicly recommends or enters into a definitive alternative acquisition agreement, or the Company willfully and materially 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 a failure of the applicable closing condition with respect to its representations and warranties or covenants and agreements that cannot be cured (or, if capable of cure, is not cured) by either forty-five (45) days after written notice of such breach or two (2) Business Days prior to the Outside Date, whichever is earlier (subject to certain exceptions) or (2) the Company Board determines to enter into a definitive alternative acquisition agreement to implement a superior business combination proposal, subject to the satisfaction of conditions set forth in the Merger Agreement. The Merger Agreement provides that, in connection with the termination of the Merger Agreement under specified circumstances, the Company will be required to pay to Parent a termination fee of $65.0 million (provided that if the requisite approval of the Merger by the Company's stockholders has not been obtained on or before January 15, 2020, then the termination fee shall be $96.0 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 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, in the case of the Company, are modified or qualified by information in a confidential disclosure letter provided by the Company to Parent 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.

Item 5.02.    Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

Restricted Stock Awards

        The information regarding the treatment of restricted stock awards under the "Agreement and Plan of Merger" in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 5.02 by reference.

Item 7.01.    Regulation FD Disclosure

        On July 15, 2019, Black Creek Group 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.

        In addition, on July 15, 2019, 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 15, 2019, the Company prepared a stockholder Q&A and email distributions to financial advisors, home offices and real estate community, in each case, concerning the Merger and the Merger Agreement. Copies of the stockholder Q&A and the e-mails to financial advisors, home offices and real estate community are attached hereto as Exhibit 99.3, Exhibit 99.4, Exhibit 99.5 and Exhibit 99.6, 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 15, 2019, 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 Second Amended and Restated Share Redemption Plan ("SRP"), each termination effective as of the Effective Time. The Company Board, including all of the Company's independent directors, also voted to suspend (i) the DRIP, effective as of the 10th day after the date hereof, through the earlier to occur of (A) the Effective Time and (B) the election by the Company or Parent, in each case in accordance with the terms of the Merger Agreement, to pursue an Alternative Transaction and (ii) indefinitely suspend the SRP effective as of 30th day 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 1995. 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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against the Company and others related to the merger agreement; (vii) the Company's ability to effectuate a transaction involving the BTC Entities in accordance with the Merger Agreement on satisfactory terms or at all; (viii) the risk that the Merger, or the other transactions contemplated by the Merger Agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of the Company to implement its operating strategy; (x) the Company's ability to manage planned growth; (xi) changes in economic cycles; and (xii) 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 forward-looking 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, 2018, which was filed with the SEC on March 6, 2019 as amended by the Company's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of 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 www.sec.gov and the Company's website at www.industrialpropertytrust.com. 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 Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        The Company, Industrial Property Advisors LLC, the Company's external advisor, and their respective 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 these persons and their ownership of Common Stock is set forth in the Company's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of the Company, Industrial Property Advisors LLC and their respective executive officers and directors in the Merger by reading the proxy statement regarding the Merger when it becomes available.

Item 9.01.    Financial Statements and Exhibits

(d)
Exhibits
Exhibit No.   Description
  2.1   Agreement and Plan of Merger, dated as of July 15, 2019, among Industrial Property Trust Inc., Prologis, L.P. and Rockies Acquisition LLC.*

 

99.1

 

Press Release of Black Creek Group, dated July 15, 2019

 

99.2

 

Letter to stockholders of Industrial Property Trust Inc., dated July 15, 2019

 

99.3

 

Stockholder Q&A distributed on July 15, 2019

 

99.4

 

Financial Advisors emails distributed on July 15, 2019

 

99.5

 

Home Office email distributed on July 15, 2019

 

99.6

 

Real Estate Community email distributed on July 15, 2019

*
Industrial Property 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.


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.

Date: July 15, 2019   INDUSTRIAL PROPERTY TRUST INC.

 

 

BY:

 

/s/ THOMAS G. MCGONAGLE

Thomas G. McGonagle
Managing Director, Chief Financial Officer



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SIGNATURES

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

AMONG

PROLOGIS, L.P.,

ROCKIES ACQUISITION LLC,

AND

INDUSTRIAL PROPERTY TRUST INC.

DATED AS OF JULY 15, 2019


 
 
 

ARTICLE 1 DEFINITIONS

2

Section 1.1

Definitions


2

Section 1.2

Interpretation and Rules of Construction

9

ARTICLE 2 THE MERGER


10

Section 2.1

The Merger


10

Section 2.2

Closing

10

Section 2.3

Effective Time

10

Section 2.4

Governing Documents

11

Section 2.5

Officers of the Surviving Entity

11

Section 2.6

Directors of the Surviving Entity

11

Section 2.7

Tax Consequences

11

Section 2.8

Specified Pre-Closing Transactions

11

ARTICLE 3 EFFECTS OF THE MERGER


16

Section 3.1

Effects on Shares of Common Stock


16

Section 3.2

Interests in Company LP

16

Section 3.3

Exchange Fund; Exchange Agent

17

Section 3.4

Withholding Rights

18

Section 3.5

Dissenters Rights

18

Section 3.6

Effect on Company Restricted Stock

18

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF COMPANY


19

Section 4.1

Organization and Qualification; Subsidiaries


19

Section 4.2

Organizational Documents

20

Section 4.3

Capital Structure

20

Section 4.4

Authority

22

Section 4.5

No Conflict; Required Filings and Consents

23

Section 4.6

Permits; Compliance with Law

24

Section 4.7

SEC Documents; Financial Statements

24

Section 4.8

Absence of Certain Changes or Events

25

Section 4.9

No Undisclosed Material Liabilities

26

Section 4.10

No Default

26

Section 4.11

Litigation

26

Section 4.12

Taxes

26

Section 4.13

Benefit Plans; Employees

29

Section 4.14

Information Supplied

29

Section 4.15

Intellectual Property

29

Section 4.16

Environmental Matters

30

Section 4.17

Properties

30

Section 4.18

Material Contracts

33

Section 4.19

Insurance

34

Section 4.20

Opinion of Financial Advisor

35

Section 4.21

Approval Required

35

Section 4.22

Brokers

35

Section 4.23

Investment Company Act

35

Section 4.24

Takeover Statutes

35

Section 4.25

Related Party Transactions

35

Section 4.26

No Other Representations and Warranties

35

   

ii


 
 
 
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 36

Section 5.1

Organization and Qualification

36

Section 5.2

Authority

36

Section 5.3

No Conflict; Required Filings and Consents

37

Section 5.4

Litigation

37

Section 5.5

Information Supplied

37

Section 5.6

Brokers

38

Section 5.7

Available Funds

38

Section 5.8

Solvency

38

Section 5.9

No Agreements with Company Related Parties

38

Section 5.10

No Vote of Parent Equityholders

38

Section 5.11

Ownership of Company Common Stock

38

Section 5.12

Taxes

39

ARTICLE 6 COVENANTS RELATING TO CONDUCT OF BUSINESS PENDING THE MERGER


39

Section 6.1

Conduct of Business by Company


39

Section 6.2

Other Actions

44

Section 6.3

No Control of Business

45

ARTICLE 7 ADDITIONAL COVENANTS


45

Section 7.1

Preparation of the Proxy Statement; Stockholders Meeting


45

Section 7.2

Access to Information; Confidentiality

46

Section 7.3

No Solicitation; Company Acquisition Proposals

47

Section 7.4

Public Announcements

50

Section 7.5

Indemnification; Directors' and Officers' Insurance

51

Section 7.6

Appropriate Action; Consents; Filings

53

Section 7.7

Notification of Certain Matters; Transaction Litigation

54

Section 7.8

Section 16 Matters

55

Section 7.9

Dividends

55

Section 7.10

Voting of Shares

55

Section 7.11

Company DRIP; Company Share Redemption Plan

56

Section 7.12

Takeover Statutes

56

Section 7.13

Tax Representation Letters

56

Section 7.14

Related Party Agreements

56

Section 7.15

Merger Sub; Subsidiaries

57

Section 7.16

Transfer Taxes

57

Section 7.17

Deregistration of Company Securities

57

Section 7.18

REIT Qualification Offering

57

Section 7.19

Payments at Closing

57

Section 7.20

Like Kind Exchanges

57

ARTICLE 8 CONDITIONS


58

Section 8.1

Conditions to Each Party's Obligation to Effect the Merger


58

Section 8.2

Conditions to Obligations of Parent and Merger Sub

58

Section 8.3

Conditions to Obligations of Company

59

ARTICLE 9 TERMINATION AND FEES


60

Section 9.1

Termination


60

Section 9.2

Notice of Termination; Effect of Termination

61

iii


 
 
 

Section 9.3

Fees and Expenses

62

ARTICLE 10 GENERAL PROVISIONS


63

Section 10.1

Nonsurvival of Representations and Warranties and Certain Covenants


63

Section 10.2

Notices

63

Section 10.3

Severability

64

Section 10.4

Counterparts

65

Section 10.5

Entire Agreement; No Third-Party Beneficiaries

65

Section 10.6

Amendment

65

Section 10.7

Extension; Waiver

65

Section 10.8

Governing Law

66

Section 10.9

Consent to Jurisdiction

66

Section 10.10

Assignment

66

Section 10.11

Remedies

66

Section 10.12

Waiver of Jury Trial

67

Section 10.13

Authorship

67
 
 

EXHIBIT AND DISCLOSURE LETTERS

Exhibit

Exhibit A-1—Form of Company REIT Qualification Opinion

Exhibit A-2—Form of BTC Spinco REIT Qualification Opinion

Exhibit B—Merger Agreement Amendments

Exhibit C—Form of Tax Matters Agreement

Disclosure Letters

Company Disclosure Letter

iv



AGREEMENT AND PLAN OF MERGER

        This AGREEMENT AND PLAN OF MERGER, dated as of July 15, 2019 (this "Agreement"), is by and among Prologis, L.P., a Delaware limited partnership ("Parent"), Industrial Property Trust Inc., a Maryland corporation that has elected to be treated as a real estate investment trust for federal income tax purposes ("Company"), and Rockies Acquisition LLC, a Delaware limited liability company and wholly owned subsidiary of Parent ("Merger Sub"). 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 the merger of Merger Sub with and into Company (such merger transaction, the "Merger"), with Company being the surviving company (the "Surviving Entity") in the Merger, and pursuant to which each outstanding Class A Common Share, $0.01 par value per share, of Company (the "Class A Common Shares") and each outstanding Class T Common Share, $0.01 par value per share, of Company (the "Class T Common Shares" and together with the Class A Common Shares, the "Company Common Stock"), issued and outstanding immediately prior to the Effective Time, will be converted into the right to receive the Per Share Merger Consideration (as may be adjusted in accordance with Section 2.8), upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Maryland General Corporation Law, as amended (the "MGCL");

        WHEREAS, immediately prior to the 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(b) hereof, and (ii) immediately following such redemption described in clause (i), but prior to the Effective Time, each Company Partnership Unit not held by Company shall automatically be converted into one Class A Common Share;

        WHEREAS, the Board of Directors of Company (the "Company Board"), on behalf of Company, has (a) unanimously determined that the Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of Company and its stockholders, (b) unanimously authorized and approved the execution, delivery and performance of this Agreement, the Merger and the other transactions contemplated by this Agreement, (c) unanimously directed that the Merger and the other transactions contemplated by this Agreement be submitted to a vote of the holders of Company Common Stock, and (d) unanimously resolved to recommend the approval of the Merger and the other transactions contemplated by this Agreement by Company stockholders;

        WHEREAS, the Board of Directors (the "Parent Board") of Prologis, Inc., a Maryland corporation (the "Parent General Partner"), in its capacity as the sole general partner of Parent, has (a) on behalf of Parent, (x) unanimously 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 partners and (y) unanimously authorized and approved the execution, delivery and performance of this Agreement, the Merger and the other transactions contemplated by this Agreement, and (b) on behalf of 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 approve and adopt 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 of all of the Company Common Stock and the Company Restricted Stock by the holders thereof to Parent in exchange for the Merger Consideration;

        WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with the execution of this Agreement and to prescribe various conditions to the Merger; and

        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:


ARTICLE 1
DEFINITIONS

        Section 1.1    Definitions.    

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Defined Terms
  Location of Definition
Advisor   Section 7.14(a)
Agreement   Preamble
Alternative Transaction   Section 2.8(a)(ii)
Alternative Transaction Consideration   Section 2.8(f)(v)
Alternative Transaction Mergers   Section 2.8(f)(iii)
Amended Merger Agreement   Section 2.8(f)(i)

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Defined Terms
  Location of Definition
Articles of Merger   Section 2.3
BTC Sale Transaction   Section 2.8(a)(i)
BTC Spinoff   Section 2.8(a)(iii)
BTC Spinco   Section 2.8(a)(iii)
Claim   Section 7.5(a)
Claim Expenses   Section 7.5(a)
Class A Common Shares   Recitals
Class T Common Shares   Recitals
Closing   Section 2.2
Closing Date   Section 2.2
Company   Preamble
Company Acquisition Proposal   Section 7.3(g)(i)
Company Adverse Recommendation Change   Section 7.3(c)
Company Advisory Agreement   Section 7.14(a)
Company Alternative Acquisition Agreement   Section 7.3(a)
Company Board   Recitals
Company Board Recommendation   Section 4.4(b)
Company Common Stock   Recitals
Company Disclosure Letter   Article 4
Company DRIP   Section 4.3(a)
Company Insurance Policies   Section 4.19
Company Material Contract   Section 4.18(b)
Company New Partner   Section 3.2
Company Parties   Section 9.3(b)(iii)
Company Pending Acquisitions   Section 6.1(b)(vi)
Company Permits   Section 4.6(a)
Company Preferred Stock   Section 4.3(a)
Company Related Party Agreement   Section 4.25
Company SEC Documents   Section 4.7(a)
Company Stockholder Approval   Section 4.21
Company Subsidiary Partnership   Section 4.12(h)
Company Superior Proposal   Section 7.3(g)(iii)
Company Superior Proposal Termination   Section 7.3(d)
Company Tax Protection Agreements   Section 4.12(h)
Company Terminating Breach   Section 9.1(c)(i)
Company Third Party   Section 4.17(g)
Company Title Insurance Policy(ies)   Section 4.17(i)
Company Transaction Expenses   Section 7.19
Effective Time   Section 2.3
Exchange Agent   Section 3.3(a)
Exchange Agent Agreement   Section 3.3(c)
Exchange Fund   Section 3.3(b)
Form 10   Section 2.8(g)(ii)
Indemnified Parties   Section 7.5(a)
Interim Period   Section 6.1(a)
Maryland Courts   Section 10.9
Material Company Leases   Section 4.17(f)
Merger   Recitals
Merger Certificate   Section 2.3
Merger Sub   Preamble
MGCL   Recitals
Morgan Stanley   Section 4.20

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Defined Terms
  Location of Definition
New Holdco   Section 2.8(a)(ii)
Notice of Recommendation Change   Section 7.3(d)
Notice Period   Section 7.3(d)
Outside Date   Section 9.1(b)(i)
Parent   Preamble
Parent Board   Recitals
Parent General Partner   Recitals
Parent Terminating Breach   Section 9.1(d)(i)
Party(ies)   Preamble
Payoff Instructions   Section 7.19
Per Share Merger Consideration   Section 3.1(a)(ii)
Qualified REIT Subsidiary   Section 4.12(b)
SOX Act   Section 4.7(b)
Specified Transactions   Section 2.8(a)(iii)
Subsidiary REIT   Section 4.12(b)
Surviving Entity   Recitals
Takeover Statutes   Section 4.24
Taxable REIT Subsidiary   Section 4.12(b)
Transfer Taxes   Section 7.16
willful and material breach   Section 9.2

        Section 1.2    Interpretation and Rules of Construction.    In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

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ARTICLE 2
THE MERGER

        Section 2.1    The Merger.    Upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement, and in accordance with the MGCL, at the Effective Time, Company and Merger Sub shall consummate the Merger pursuant to which (i) Merger Sub shall be merged with and into Company, whereupon the separate existence of Merger Sub shall cease, and (ii) Company shall continue as the Surviving Entity. The Merger shall have the effects provided in this Agreement and as specified in the MGCL. Without limiting the generality of the foregoing, and subject thereto, from and after the Effective Time, the Surviving Entity shall possess all properties, rights, privileges, powers and franchises of Company and Merger Sub, and all of the claims, obligations, liabilities, debts and duties of Company and Merger Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Entity.

        Section 2.2    Closing.    Unless this Agreement shall have been terminated in accordance with Article 9 hereof, the closing of the Merger (the "Closing") will take place at the offices of Hogan Lovells US LLP, 555 13th Street NW, Washington, DC 20004 on a date and at a time to be mutually agreed upon by the Parties, but in no event later than the third (3rd) Business Day after all the conditions set forth in Article 8 (other than those conditions that by their nature are to be satisfied or waived at the Closing, but subject to the satisfaction or valid waiver of such conditions) shall have been satisfied or validly waived by the Party entitled to the benefit of such condition (subject to applicable Law), unless such date is extended by mutual agreement of the Parties; provided, however, that Company shall be entitled, by written notice to Parent no later than one (1) Business Day prior to the date the Closing would otherwise be required to occur, and which written notice certifies that Company is postponing the Closing in order to consummate a BTC Sale Transaction or a BTC Spinoff, as the case may be and as was elected by Company pursuant to Section 2.8, to postpone the Closing to a later date specified by Company in the notice (except that in no event shall such date be later than February 28, 2020); provided further that if Company shall have previously postponed the Closing pursuant to this sentence, Company shall be entitled to further postpone the Closing to a date later than the date specified by Company in such prior notice (except that in no event shall such date be later than February 28, 2020) by providing written notice to Parent no later than one (1) Business Day prior to the date the Closing would otherwise be required to occur certifying that Company is postponing the Closing in order to consummate a BTC Sale Transaction or a BTC Spinoff, as the case may be and as was elected by Company pursuant to Section 2.8; and provided further that if, pursuant to Section 2.8, (x) Company elected a BTC Sale Transaction and at the contemplated closing of such BTC Sale Transaction in accordance with Section 2.8(e)(v) the purchaser in such BTC Sale Transaction fails to close such BTC Sale Transaction, or (y) Company elected either a BTC Sale Transaction or a BTC Spinoff and on February 28, 2020 a BTC Sale Transaction or a BTC Spinoff, as the case may be, has not been consummated, then in either case the Closing shall automatically be postponed until such date mutually agreed by the Parties (except in no event shall such date be later than March 31, 2020), and the Parties shall engage in an Alternative Transaction (and any prior notice by Company pursuant to Section 2.8(a) shall be deemed to be validly revoked and Company shall be deemed to have elected an Alternative Transaction pursuant to Section 2.8(a)(ii) and Parent shall be deemed to have received written notice thereof). The actual date of the Closing shall be referred to herein as the "Closing Date."

        Section 2.3    Effective Time.    The Parties shall cause the Merger to be consummated as soon as practicable on the Closing Date immediately after giving effect to the transactions contemplated by Section 3.2. Prior to the Closing, Parent, Merger Sub and Company shall prepare and, on the Closing Date, Parent, Merger Sub and Company shall (i) cause articles of merger with respect to the Merger (the "Articles of Merger") to be duly executed and filed with the SDAT as provided under the MGCL, (ii) cause a certificate of merger with respect to the Merger (the "Merger Certificate") to be duly executed and filed with the DSOS as provided under the Delaware LLC Act and (iii) make any other

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filings, recordings or publications required, if any, under the MGCL in connection with the Merger. The Merger shall become effective upon the later of such time as the Articles of Merger have been accepted for record by the SDAT or the Merger Certificate has been filed with the DSOS, or such later time that the Parties shall have agreed upon and designated in the Articles of Merger in accordance with the MGCL and the Merger Certificate in accordance with the Delaware LLC Act as the effective time of the Merger (the "Effective Time").

        Section 2.4    Governing Documents.    Subject to Section 7.5, at the Effective Time, the charter and bylaws of the Surviving Entity shall be amended and restated in the forms to be reasonably agreed by the Parties prior to Closing.

        Section 2.5    Officers of the Surviving Entity.    The officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Entity immediately following the Effective Time, each to serve until such time as his or her resignation or removal or such time as his or her successor shall be duly appointed, in each case in accordance with the charter and bylaws of the Surviving Entity, as amended in accordance with Section 2.4.

        Section 2.6    Directors of the Surviving Entity.    The managers of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Entity immediately following the Effective Time, each to serve until such time as his or her resignation or removal or such time as his or her successor shall be duly elected and qualified, in each case in accordance with the charter and bylaws of the Surviving Entity, as amended in accordance with Section 2.4.

        Section 2.7    Tax Consequences.    The Parties intend that for U.S. federal income Tax purposes the Merger will be treated as a taxable sale of all of the Company Common Stock and the Company Restricted Stock by the holders thereof to Parent in exchange for the Merger Consideration.

        Section 2.8    Specified Pre-Closing Transactions.    

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ARTICLE 3
EFFECTS OF THE MERGER

        Section 3.1    Effects on Shares of Common Stock.    

        Section 3.2    Interests in Company LP.    Immediately prior to the Effective Time, (i) each Special Company Partnership Unit shall be redeemed by Company LP in exchange for the receipt by the holder of Special Company Partnership Units of a number of Company Partnership Units as determined in accordance with the terms of Section 8.7(b) of the Company LP Agreement, (ii) Company shall form a Delaware limited liability company ("Company New Partner") that shall be a wholly owned subsidiary of Company and be treated as a disregarded entity, for U.S. tax purposes, and Company New Partner shall be admitted as a limited partner of Company LP, and (iii) immediately thereafter, but prior to the Effective Time, each Company Partnership Unit not held by Company shall automatically be converted into one Class A Common Share, provided that each Company Partnership Unit held by Company or Company New Partner shall remain outstanding. Upon the completion of the transactions described in this Section 3.2, Company LP shall cease to exist, and be treated as a disregarded entity, for U.S. federal income tax purposes.

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        Section 3.3    Exchange Fund; Exchange Agent.    

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        Section 3.4    Withholding Rights.    Each of the Parties, each of their respective Representatives and the Exchange Agent, as applicable, shall be entitled to deduct and withhold from the Merger Consideration and any other amounts otherwise payable pursuant to this Agreement or deemed paid for Tax purposes to any holder of Company Common Stock or holder of Company Restricted Stock, or any such other Person, such amounts as it is required to deduct and withhold with respect to such payments under the Code, and the rules and regulations promulgated thereunder, or any other provision of state, local or foreign Tax Law. Any such amounts so deducted and withheld shall be paid over to the applicable Governmental Authority in accordance with applicable Law and shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

        Section 3.5    Dissenters Rights.    As provided for by the Company Charter, no dissenters' or appraisal rights, or rights of objecting stockholders, shall be available with respect to the Merger or the other transactions contemplated by this Agreement, including any remedy under Sections 3-201 et seq. of the MGCL.

        Section 3.6    Effect on Company Restricted Stock.    All of the provisions of this Section 3.6 shall be effectuated without any action on the part of the holder of any share of Company Restricted Stock:

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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF COMPANY

        Except (a) as set forth in the disclosure letter prepared by Company, with numbering corresponding to the numbering of this Article 4 delivered by Company to Parent prior to the execution and delivery of this Agreement (the "Company Disclosure Letter") (it being acknowledged and agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall be deemed disclosed with respect to any other Section or subsection of this Agreement to the extent the applicability of such disclosure to such other section or subsection is reasonably apparent on the face of such disclosure (it being understood that to be so reasonably apparent it is not required that the other Sections be cross-referenced)); provided that nothing in the Company Disclosure Letter is intended to broaden the scope of any representation or warranty of Company made herein and no reference to or disclosure of any item or other matter in the Company Disclosure Letter shall be construed as an admission or indication that (i) such item or other matter is material, (ii) such item or other matter is required to be referred to in the Company Disclosure Letter or (iii) any breach or violation of applicable Laws or any contract, agreement, arrangement or understanding to which Company or any of the Company Subsidiaries is a party exists or has actually occurred), or (b) as disclosed in the Company SEC Documents publicly available, filed with, or furnished to, as applicable, the SEC on or after January 1, 2017 and at least two (2) Business Days prior to the date of this Agreement (excluding any risk factor disclosures contained in such documents under the heading "Risk Factors" and any disclosure of risks or other matters included in any "forward-looking statements" disclaimer or other statements that are cautionary, predictive or forward-looking in nature, which in no event shall be deemed to be an exception to or disclosure for purposes of, any representation or warranty set forth in this Article 4), Company hereby represents and warrants to Parent and Merger Sub that:

        Section 4.1    Organization and Qualification; Subsidiaries.    

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        Section 4.2    Organizational Documents.    

        Section 4.3    Capital Structure.    

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        Section 4.4    Authority.    

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        Section 4.5    No Conflict; Required Filings and Consents.    

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        Section 4.6    Permits; Compliance with Law.    

        Section 4.7    SEC Documents; Financial Statements.    

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        Section 4.8    Absence of Certain Changes or Events.    From the date of the Company's most recent balance sheet included in the Company SEC Documents through the date of this Agreement and

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except as set forth on Section 4.8 of the Company Disclosure Letter, (a) Company and each Company Subsidiary has conducted its business in all material respects in the ordinary course of business consistent with past practice, (b) there has not been any Company Material Adverse Effect or any Event that, individually or in the aggregate with all other Events, would reasonably be expected to result in a Company Material Adverse Effect and (c) none of Company or the Company Subsidiaries have taken any action that, if taken after the date of this Agreement without Parent's consent, would constitute a breach of the covenants set forth in any of clauses (vii), (viii), (xii), (xiii), (xiv), (xvi) or (xxi) of Section 6.1(b).

        Section 4.9    No Undisclosed Material Liabilities.    Except as set forth on Section 4.9 of the Company Disclosure Letter, there are no material liabilities of Company or any of the Company Subsidiaries of any nature that would be required under GAAP to be set forth on the financial statements of Company or the notes thereto, other than: (a) liabilities reflected or reserved against as required by GAAP on Company's most recent consolidated balance sheet (or notes thereto) included in the Company SEC Documents; (b) liabilities incurred in connection with the transactions contemplated by this Agreement; or (c) liabilities incurred in the ordinary course of business consistent with past practice since December 31, 2018.

        Section 4.10    No Default.    Neither Company nor any of the Company Subsidiaries is in default or violation of any term, condition or provision of (a) (i) the Company Charter or the Company Bylaws, or (ii) except as, individually or in the aggregate, would not be reasonably expected to have a Company Material Adverse Effect, the comparable Organizational Documents of any of the Company Subsidiaries, or (b) except as set forth on Section 4.10 of the Company Disclosure Letter, any loan or credit agreement, note, or any bond, mortgage or indenture, to which Company or any of the Company Subsidiaries is a party or by which Company or any of the Company Subsidiaries or any of their respective properties or assets is bound, except in the case of clause (b) for defaults or violations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

        Section 4.11    Litigation.    Except as individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect or as set forth on Section 4.11 of the Company Disclosure Letter, as of the date of this Agreement, (a) there is no Action pending or, to the Knowledge of Company, threatened against Company or any Company Subsidiary, and (b) neither Company nor any Company Subsidiary, nor any of their respective properties, is subject to any outstanding Order of any Governmental Authority.

        Section 4.12    Taxes.    

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        Section 4.13    Benefit Plans; Employees.    

        Section 4.14    Information Supplied.    None of the information relating to Company and the Company Subsidiaries that will be contained in the Proxy Statement or that is provided by Company and the Company Subsidiaries in writing specifically for inclusion or incorporation by reference in the Proxy Statement or any other document filed with the SEC in connection with the transactions contemplated by this Agreement will (a) in the case of the Proxy Statement, at the time of the mailing thereof or at the time the Company Stockholder Meeting is to be held, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (b) with respect to any other document to be filed by Company with the SEC in connection with the Merger or the other transactions contemplated by this Agreement, at the time of its filing with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will (with respect to Company and the Company Subsidiaries) comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act; provided that no representation or warranty is made hereunder with respect to statements made or incorporated by reference by, or with respect to, Parent or Merger Sub.

        Section 4.15    Intellectual Property.    Except as set forth in Section 4.15 to the Company Disclosure Letter, as of the date of this Agreement, neither Company nor any Company Subsidiary: (a) owns any

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material registered trademarks, patents or copyrights; (b) has any pending applications, registrations or recordings for any trademarks, patents or copyrights that are material to the operations of Company and the Company Subsidiaries, taken as a whole; or (c) is a party to any licenses, contracts or agreements with respect to use by Company or any Company Subsidiary of any third-party Intellectual Property (other than commercially available off-the-shelf software). To the Knowledge of Company, no Intellectual Property used by Company or any of the Company Subsidiaries infringes or is alleged to infringe any Intellectual Property rights of any third party. To the Knowledge of Company, no Person is misappropriating, infringing or otherwise violating any Intellectual Property of Company or any Company Subsidiary. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of Company and the Company Subsidiaries as it is currently conducted.

        Section 4.16    Environmental Matters.    Except (i) as set forth in any Phase I or Phase II or other environmental report or any Company Title Insurance Policy provided or otherwise made available to Parent prior to the date hereof, (ii) as set forth in Section 4.16 of the Company Disclosure Letter or (iii) as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect:

        Section 4.17    Properties.    

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        Section 4.18    Material Contracts.    

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        Section 4.19    Insurance.    Company and the Company Subsidiaries maintain insurance coverage with reputable insurers in such amounts and covering such risks which Company believes are adequate for the operation of its business and the protection of its assets. As of the date hereof, and except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, there is no claim by Company or any Company Subsidiary pending under any such insurance policies that has been denied or disputed by the insurer Company has made available to Parent copies of all material insurance policies and all material fidelity bonds or other material insurance contracts providing coverage for all Company Properties (the "Company Insurance Policies"). Except as individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, all premiums due and payable under all Company Insurance Policies have been paid, and Company and the Company Subsidiaries have otherwise complied in all material respects with the terms and conditions of all Company Insurance Policies. To the Knowledge of

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Company, such Company Insurance Policies are valid and enforceable in accordance with their terms and are in full force and effect. No written notice of cancellation or termination has been received by Company or any Company Subsidiary with respect to any such policy that has not been replaced on substantially similar terms prior to the date of such cancellation.

        Section 4.20    Opinion of Financial Advisor.    The Company Board has received an opinion of Morgan Stanley & Co. LLC ("Morgan Stanley"), to the effect that, as of the date of such opinion and based on and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in such opinion, the Per Share Merger Consideration to be received in the Merger by the holders of Company Common Stock (excluding the Advisor, Company, Parent and their respective Affiliates) is fair, from a financial point of view, to such holders, which opinion will be made available to Parent solely for informational purposes.

        Section 4.21    Approval Required.    The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock entitled to vote (the "Company Stockholder Approval") is the only vote of holders of securities of Company required to approve the Merger and the other transactions contemplated by this Agreement.

        Section 4.22    Brokers.    Except for the fees and expenses payable to the Persons set forth in Section 4.22 of the Company Disclosure Letter, no broker, investment banker or other Person is entitled to any broker's, finder's or other similar fee or commission in connection with the Merger and the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of Company or any Company Subsidiary.

        Section 4.23    Investment Company Act.    None of Company or any Company Subsidiary is required to be registered as an investment company under the Investment Company Act.

        Section 4.24    Takeover Statutes.    Assuming the accuracy of the representations and warranties of Parent and Merger Sub set forth in Section 5.11, the Company Board has taken all action necessary to render inapplicable to the Merger and the other transactions contemplated by this Agreement, the restrictions on business combinations contained in Subtitle 6 of Title 3 of the MGCL and the restrictions on control share acquisitions contained in Subtitle 7 of Title 3 of the MGCL. To the Knowledge of Company, no other "business combination," "control share acquisition," "fair price," "moratorium" or other takeover or anti-takeover statute or similar federal or state Law (collectively, "Takeover Statutes") is applicable to this Agreement, the Merger or the other transactions contemplated by this Agreement.

        Section 4.25    Related Party Transactions.    Except for this Agreement or as set forth in the Company SEC Documents filed from January 1, 2017 through and including the date of this Agreement or as permitted by this Agreement, from January 1, 2019 through the date of this Agreement there have been no transactions, agreements, arrangements or understandings between Company or any Company Subsidiary, on the one hand, and any Affiliates (other than the Company Subsidiaries) of Company, on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K promulgated by the SEC. Section 4.25 of the Company Disclosure Letter sets forth each agreement between Company or any Company Subsidiary, on the one hand, and any Affiliates (other than the Company Subsidiaries) of Company, on the other hand (each, a "Company Related Party Agreement").

        Section 4.26    No Other Representations and Warranties.    Except for the representations or warranties expressly set forth in this Article 4, neither Company nor any of other Person has made any representation or warranty, expressed or implied, with respect to Company or the Company Subsidiaries, their businesses, operations, assets, liabilities, condition (financial or otherwise), results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects

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(including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding Company or the Company Subsidiaries. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by Company in this Article 4, neither Company nor any other Person makes or has made any representation or warranty to Parent or any of its Affiliates or Representatives with respect to, any oral or written information presented to Parent or any of its Affiliates or Representatives in the course of their due diligence of Company and the Company Subsidiaries, the negotiation of this Agreement or in the course of the transactions contemplated hereby.


ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

        Parent and Merger Sub hereby jointly and severally represent and warrant to Company that:

        Section 5.1    Organization and Qualification.    Parent is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware. Merger Sub is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. Each of Parent and Merger Sub has the requisite organizational power and authority to own, lease, hold, encumber and operate its properties and to carry on its business as it is now being conducted and is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect. Merger Sub is a wholly owned subsidiary of Parent. Merger Sub was formed solely for the purpose of engaging in the transactions contemplated by this Agreement and has not conducted any activities other than in connection with its organization, the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby.

        Section 5.2    Authority.    

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        Section 5.3    No Conflict; Required Filings and Consents.    

        Section 5.4    Litigation.    Except as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect, as of the date of this Agreement, (a) there is no Action pending or, to the Knowledge of Parent, threatened against Parent, Merger Sub or any Parent Subsidiary, and (b) none of Parent, Merger Sub or any Parent Subsidiary, or any of their respective properties, is subject to any outstanding Order of any Governmental Authority.

        Section 5.5    Information Supplied.    None of the information supplied by Parent, Merger Sub and the Parent Subsidiaries specifically for inclusion or incorporation by reference in the Proxy Statement or any other document filed with the SEC in connection with the transactions contemplated by this

37


Agreement will (a) in the case of the Proxy Statement, at the time of the mailing thereof or at the time the Company Stockholder Meeting is to be held, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (b) with respect to any other document to be filed by Company with the SEC in connection with the Merger or the other transactions contemplated by this Agreement, at the time of its filing with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

        Section 5.6    Brokers.    No broker, investment banker or other Person is entitled to any broker's, finder's or other similar fee or commission in connection with the Merger and the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent or Merger Sub.

        Section 5.7    Available Funds.    Parent will have on the Closing Date (i) sufficient cash on hand to pay the Merger Consideration and all fees and related expenses required to be paid by Parent and there will not be on the Closing Date any restriction on the use of such cash for such purpose on the terms and conditions contained in this Agreement and (ii) the resources and capabilities (financial or otherwise) to perform and satisfy the obligations of Parent and Merger Sub set forth in this Agreement, including in connection with the Merger and other transactions contemplated hereby. Parent will not have, as of the Closing Date, incurred any obligation, commitment, restriction or liability of any kind that would prevent or substantially adversely affect such resources. Each of Parent and Merger Sub acknowledges that the obligations of each of Parent and Merger Sub hereunder are not subject to any conditions regarding the ability of Parent or Merger Sub to obtain financing for the consummation of the transactions contemplated by this Agreement or otherwise.

        Section 5.8    Solvency.    Assuming (a) the satisfaction of the conditions to the obligations of Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement and (b) that any estimates, projections or forecasts prepared by or on behalf of the Company Parties that have been provided to Parent have been prepared in good faith based upon assumptions that were and continue to be reasonable, immediately after the consummation of the Merger and immediately after giving effect to the transactions contemplated by this Agreement, the Surviving Entity and its subsidiaries will be able to pay their respective Indebtedness as it becomes due in the usual course of business and will own total assets whose value exceeds the sum of its total liabilities.

        Section 5.9    No Agreements with Company Related Parties.    As of the date of this Agreement and as of the Closing Date, neither Parent nor Merger Sub nor any of their respective Affiliates has entered into any agreement (written or oral) with the Advisor, any Affiliate of the Advisor or any of the named executive officers, directors or trustees of Company related to the Merger or any of the other transactions contemplated by this Agreement that is currently in effect or that would become effective in the future (upon consummation of the Merger or otherwise) that has not been disclosed.

        Section 5.10    No Vote of Parent Equityholders.    Except for the adoption of this Agreement by Parent as the sole equityholder of Merger Sub, no vote of the equityholders of Parent or Merger Sub, or the holders of any other securities of any of them (equity or otherwise), is required by any applicable Law, the organizational documents of Parent or Merger Sub or the applicable rules of any exchange on which securities of Parent are traded in order for Parent or Merger Sub to consummate the Merger and other transactions contemplated by this Agreement.

        Section 5.11    Ownership of Company Common Stock.    None of Parent, Merger Sub or any of their respective subsidiaries owns (directly or indirectly, beneficially or of record) or is a party to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of,

38


any shares of Company Common Stock or other securities of Company (other than as contemplated by this Agreement).

        Section 5.12    Taxes.    


ARTICLE 6
COVENANTS RELATING TO CONDUCT OF BUSINESS PENDING THE MERGER

        Section 6.1    Conduct of Business by Company.    

39


40


41


42


43


        Section 6.2    Other Actions.    Each Party agrees that, during the Interim Period, except as contemplated by this Agreement, such Party shall not, directly or indirectly, without the prior written consent of the other Parties, take or cause to be taken any action that would reasonably be expected to materially delay consummation of the transactions contemplated by this Agreement, or enter into any agreement or otherwise make a commitment, to take any such action.

44


        Section 6.3    No Control of Business.    Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct Company or any of Company's operations prior to the Effective Time. Prior to the Effective Time, Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and the Company Subsidiaries' operations. Notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent and no consent of Company shall be required with respect to any matter set forth in Section 6.1 or Section 6.2 or elsewhere in the Agreement to the extent that the requirement of such consent could violate any applicable Law.


ARTICLE 7
ADDITIONAL COVENANTS

        Section 7.1    Preparation of the Proxy Statement; Stockholders Meeting.    

45


        Section 7.2    Access to Information; Confidentiality.    

46


        Section 7.3    No Solicitation; Company Acquisition Proposals.    

47


48


49


        Section 7.4    Public Announcements.    Except with respect to any Company Adverse Recommendation Change or any action taken pursuant to, and in accordance with Section 7.3, so long as this Agreement is in effect, the Parties hereto shall consult with each other before issuing any press release or otherwise making any public statements or filings with respect to this Agreement or any of the transactions contemplated by this Agreement, and, except as otherwise permitted or required by this Agreement, none of the Parties shall issue any such press release or make any such public statement or filing prior to obtaining the other Parties' consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that a Party may, without obtaining the other Parties' consent, issue such press release or make such public statement or filing with respect to this

50


Agreement or any of the transactions contemplated by this Agreement as may be required by Law, Order or the applicable rules of any stock exchange, in which case such Party shall consult with the other Party before making such public statement or filing with respect to this Agreement or any of the transactions contemplated by this Agreement, except to the extent it is not reasonably practicable to do so. The Parties have agreed upon the form of a joint press release announcing the Merger and the execution of this Agreement, and shall make such joint press release no later than one (1) Business Day following the date on which this Agreement is signed.

        Section 7.5    Indemnification; Directors' and Officers' Insurance.    

51


52


        Section 7.6    Appropriate Action; Consents; Filings.    

53


        Section 7.7    Notification of Certain Matters; Transaction Litigation.    

54


        Section 7.8    Section 16 Matters.    Prior to the Effective Time, Company shall take all such steps to cause any dispositions of Company Common Stock (including derivative securities with respect to Company Common Stock) resulting from the transactions contemplated by this Agreement by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.

        Section 7.9    Dividends.    In the event that a distribution with respect to the shares of Company Common Stock or Company Partnership Units permitted under the terms of this Agreement has a record date prior to the Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of Company Common Stock or Company Partnership Units on the Closing Date immediately prior to the Effective Time.

        Section 7.10    Voting of Shares.    Parent shall vote all shares of Company Common Stock beneficially owned by it or any of the Parent Subsidiaries as of the record date for the Company Stockholder Meeting, if any, in favor of approval of the Merger and the other transactions contemplated by this Agreement.

55


        Section 7.11    Company DRIP; Company Share Redemption Plan.    The Company Board shall adopt such resolutions or take such other actions as may be required to suspend (and terminate as of the Effective Time; provided that, for the avoidance of doubt, such termination shall be conditioned on the consummation of the Merger) (a) the Company DRIP through the earlier to occur of (i) the Effective Time and (ii) the election (or deemed election) by the Company or Parent, in each case in accordance with the terms of this Agreement, to pursue an Alternative Transaction and (b) the Company Share Redemption Plan indefinitely, in each case as soon as reasonably practicable following the date of this Agreement.

        Section 7.12    Takeover Statutes.    The Parties shall use their respective commercially reasonable efforts (a) to take all action necessary so that no Takeover Statute is or becomes applicable to the Merger or any of the other transactions contemplated by this Agreement, and (b) if any such Takeover Statute is or becomes applicable to any of the foregoing, to take all action necessary so that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to eliminate or minimize the effect of such Takeover Statute on the Merger and the other transactions contemplated by this Agreement.

        Section 7.13    Tax Representation Letters.    

        Section 7.14    Related Party Agreements.    

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        Section 7.15    Merger Sub; Subsidiaries.    Parent shall cause Merger Sub (and after the Closing, the Surviving Entity) and any other applicable Parent Subsidiary or Affiliate thereof to comply with and perform all of its obligations under or relating to this Agreement, including in the case of Merger Sub to consummate the Merger on the terms and subject to the conditions set forth in this Agreement. Company shall cause each of the Company Subsidiaries to comply with and perform all of its obligations under or relating to this Agreement.

        Section 7.16    Transfer Taxes.    Parent and Company shall cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any real property transfer or gains, sales, use, transfer, value added, stock transfer or stamp taxes, any transfer, recording, registration and other fees and any similar Taxes that become payable in connection with the transactions contemplated by this Agreement (together with any related interest, penalties or additions to Tax, "Transfer Taxes"), and shall cooperate in attempting to minimize the amount of Transfer Taxes. From and after the Closing, the Surviving Entity shall pay or cause to be paid, without deduction or withholding from any consideration or amounts payable to holders of Company Common Stock, all Transfer Taxes.

        Section 7.17    Deregistration of Company Securities.    Parent and the Surviving Entity shall use their reasonable best efforts to cause the Company Common Stock to be de-registered under the Exchange Act promptly following the Effective Time.

        Section 7.18    REIT Qualification Offering.    At the reasonable request of Parent, Company shall cooperate with Parent in connection with an offering by the Surviving Entity of at least one hundred (100) shares of preferred stock of the Surviving Entity to enable the Surviving Entity to satisfy the REIT ownership test set forth in Section 856(a)(6) of the Code. The costs and expenses of such offering shall be the obligation of the Surviving Entity.

        Section 7.19    Payments at Closing.    At least two (2) Business Days prior to the Closing Date, Company shall deliver to Parent reasonably satisfactory documentation setting forth the amounts of all fees, costs and expenses payable by Company or any Company Subsidiary to any of the Persons set forth in Section 7.19 of the Company Disclosure Letter of Company or any Company Subsidiary that will remain unpaid on the Closing Date (including the identity of each recipient, dollar amounts, wire instructions and any other information necessary for Parent to effect the final payment in full thereof) (the "Company Transaction Expenses"), and indicating that upon receipt of such amounts that all such Company Transaction Expenses shall have been paid in full (the "Payoff Instructions"). At the Closing, Parent shall pay by wire transfer of immediately available funds to the accounts designated in the Payoff Instructions the full amount of the Company Transaction Expenses, as set forth in, and in accordance with, the Payoff Instructions.

        Section 7.20    Like Kind Exchanges.    During the Interim Period the Parties will cooperate in good faith to negotiate transactions acceptable to both Company and Parent in their sole discretion, which may include: (i) identifying certain assets that the Parties may desire to be purchased by one or more Parent Affiliates from one or more Company Subsidiaries during the Interim Period as part of one or more "like-kind exchanges" under Section 1031 of the Code by such Parent Affiliates and (ii) in connection with an Alternative Transaction, treating as a Parent Affiliate for purposes of Sections 2.8(a)(ii)(B) and 2.8(f)(iii) one or more entities that are, or are wholly owned by, a "qualified intermediary" or "exchange accommodation titleholder" that is acting on behalf of a Parent Affiliate so that one or more Parent Affiliates may acquire Company Subsidiaries as part of one or more "like-kind exchanges" under Section 1031 of the Code. Notwithstanding or in limitation of the foregoing, no Party shall be required to negotiate or consummate any transaction that such Party determines in its sole discretion is not acceptable to such Party. Parent shall bear all costs incurred in connection with any actions taken by the Parties in furtherance of this Section 7.20. Neither of the Parties shall have any

57


right to delay or postpone the Closing in connection with any "like-kind exchanges" pursuant to this Section 7.20.


ARTICLE 8
CONDITIONS

        Section 8.1    Conditions to Each Party's Obligation to Effect the Merger.    The respective obligations of the Parties to this Agreement to effect the Merger and to consummate the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by each of the Parties, at or prior to the Closing, of the following conditions:

        Section 8.2    Conditions to Obligations of Parent and Merger Sub.    The obligations of Parent and Merger Sub to effect the Merger and to consummate the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent, at or prior to the Closing, of the following additional conditions:

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        Section 8.3    Conditions to Obligations of Company.    The obligations of Company to effect the Merger and to consummate the other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Company, at or prior to the Closing, of the following additional conditions:

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ARTICLE 9
TERMINATION AND FEES

        Section 9.1    Termination.    This Agreement may be terminated and the Merger may be abandoned at any time prior to the Closing, notwithstanding the receipt of the Company Stockholder Approval (except as otherwise specified in this Section 9.1):

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        Section 9.2    Notice of Termination; Effect of Termination.    In the event of termination of this Agreement as provided in Section 9.1, written notice thereof shall be given to the other Party, specifying the provisions hereof pursuant to which such termination is made and describing the basis therefor in reasonable detail, and this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Parent or Company, except that the Confidentiality Agreement and the provisions of Section 7.2(b) (Confidentiality), Section 7.4 (Public Announcements), this Section 9.2, Section 9.3 (Fees and Expenses), and Article 10 (General Provisions) and the definitions of all defined terms appearing in such sections, shall survive such termination of this Agreement; provided that no such termination shall relieve any Party from any liability or damages resulting from

61


any fraud in connection with this Agreement or any willful and material breach of any of its covenants or agreements set forth in this Agreement prior to such termination of this Agreement, in which case the aggrieved party hereto shall be entitled to all rights and remedies available at law or in equity, including in the case of a breach by Parent or Merger Sub, liability to Company for damages, determined taking into account all relevant factors, including the loss of the benefit of the Merger to Company and its stockholders (including the lost stockholder premium), all of which shall be deemed to be damages of Company. For purposes of the foregoing, "willful and material breach" means a material breach that is a consequence of an act undertaken, or failure to act, by the breaching Party with the actual knowledge that such act or failure to act constitutes or would result in a breach of this Agreement (regardless of whether breaching was the intent or object of such act or failure to act and it being understood that the failure of Company, on the one hand, or Parent or Merger Sub, on the other hand, to consummate the Merger when required under the terms of this Agreement (e.g., all of the conditions to Closing set forth in Article VIII have been satisfied or, to the extent permitted by Law, waived (other than conditions that, by their nature, are to be satisfied at the Closing) and the other Party(ies) stood ready, willing and able to consummate the Merger at such time) will constitute a willful and material breach).

        Section 9.3    Fees and Expenses.    

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ARTICLE 10
GENERAL PROVISIONS

        Section 10.1    Nonsurvival of Representations and Warranties and Certain Covenants.    None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations and warranties, shall survive the Closing. The covenants to be performed prior to or at the Closing, including any rights arising out of any breach of such covenants, shall terminate at the Closing. This Section 10.1 shall not limit Article 2, Article 3, Section 7.5 or any covenant or agreement of the Parties that by its terms contemplates performance after the Closing.

        Section 10.2    Notices.    All notices, requests, claims, consents, demands and other communications under this Agreement shall be in writing and delivered (i) in person, (ii) by electronic mail including a .pdf attachment (providing confirmation of transmission), or (iii) sent by prepaid overnight courier (providing proof of delivery), to the Parties at the following addresses (or at such other addresses as shall be specified by the Parties by like notice):

  (a)   if to Company to:

 

 

 

Industrial Property Trust Inc.
518 Seventeenth Street, 17th Floor
Denver, CO 80202
      Attn:   Evan H. Zucker, Chairman
Dwight L. Merriman III, Managing Director & Chief Executive Officer
      email:   evan.zucker@blackcreekgroup.com
dwight.merriman@blackcreekgroup.com

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with a copy (which shall not constitute notice) to:

 

 

 

Industrial Property Trust Inc.
518 Seventeenth Street, 17th Floor
Denver, CO 80202
      Attn:   Thomas G. McGonagle, Managing Director & Chief Financial Officer
Joshua J. Widoff, Managing Director & Chief Legal Officer
      email:   tom.mcgonagle@blackcreekgroup.com
josh.widoff@blackcreekgroup.com

 

 

 

and to:

 

 

 

Hogan Lovells US LLP
555 13th Street NW
Washington, DC 20004
      Attn:   David Bonser
Bruce Gilchrist
Stacey McEvoy
      email:   david.bonser@hoganlovells.com
bruce.gilchrist@hoganlovells.com
stacey.mcevoy@hoganlovells.com

 

(b)

 

if to Parent to:

 

 

 

Prologis, L.P.
1800 Wazee Street, Suite 500
Denver, CO 80202
      Attn:   Edward S. Nekritz, Chief Legal Officer and General Counsel
      email:   enekritz@prologis.com

 

 

 

with a copy (which shall not constitute notice) to:

 

 

 

Mayer Brown LLP
71 South Wacker Drive
Chicago, IL 60606
      Attn:   Andrew J. Noreuil
David Malinger
      email:   anoreuil@mayerbrown.com
dmalinger@mayerbrown.com

All notices, requests, claims, consents, demands and other communications under this Agreement shall be deemed duly given or made (A) if delivered in person, on the date delivered, (B) if sent by electronic mail (providing confirmation of transmission), on the date it was received, or (C) if sent by prepaid overnight courier, on the next Business Day (providing proof of delivery). For the avoidance of doubt, counsel for a Party may send notices, requests, claims, consents demands or other communications on behalf of such Party.

        Section 10.3    Severability.    If any term or other provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced under any present or future Law or public policy in any jurisdiction, as to that jurisdiction, (a) such term or other provision shall be fully separable, (b) this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision had never comprised a part hereof, (c) all other conditions and provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable term or other provision or by its severance herefrom so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party, and (d) such terms or other provision shall not affect the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. Upon such determination

64


that any term or other provision is invalid, illegal or incapable of being enforced in any jurisdiction, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.

        Section 10.4    Counterparts.    This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall be deemed one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. Signatures to this Agreement transmitted by electronic mail in .pdf format, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

        Section 10.5    Entire Agreement; No Third-Party Beneficiaries.    This Agreement (including the Exhibits and the Company Disclosure Letter) and the Confidentiality Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the Parties, or between any of them, with respect to the subject matter of this Agreement. This Agreement is not intended to and shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns, except for the provisions of Article 3 (which, from and after the Effective Time, shall be for the benefit of holders of shares of Company Common Stock and holder of shares of Company Restricted Stock immediately prior to the Effective Time), Section 7.5 (which, from and after the Effective Time shall be for the benefit of the Indemnified Parties), and Section 7.14 (which, from and after the Effective Time, shall be for the benefit of the Advisor). The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Parties in accordance with Section 10.7 without notice or liability to any other Person. The representations and warranties in this Agreement may represent an allocation among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties. Accordingly, persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

        Section 10.6    Amendment.    Subject to compliance with applicable Law, this Agreement may be amended by mutual agreement of the Parties hereto by action taken or authorized by the Company Board and the Parent Board, respectively, at any time before or after receipt of the Company Stockholder Approval and prior to the Closing; provided that after the Company Stockholder Approval has been obtained, there shall not be any amendment of this Agreement that changes the amount or the form of the consideration to be delivered under this Agreement to the holders of shares of Company Common Stock or the holders of shares of Company Restricted Stock, or which by applicable Law requires the further approval of the stockholders of Company without such further approval of such stockholders. This Agreement may not be amended except by an instrument in writing signed by each of the Parties.

        Section 10.7    Extension; Waiver.    At any time prior to the Effective Time, the Parties hereto may, subject to the requirements of applicable Law, (a) extend the time for the performance of any of the obligations or other acts of the other Parties hereto, (b) waive any inaccuracies in the representations and warranties of the other Party contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements or conditions contained in this Agreement. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of any Party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights. No single or partial exercise of any right, remedy, power or privilege hereunder shall

65


preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any waiver shall be effective only in the specific instance and for the specific purpose for which given and shall not constitute a waiver to any subsequent or other exercise of any right, remedy, power or privilege hereunder.

        Section 10.8    Governing Law.    The filing of the Merger Certificate shall be governed by, and construed in accordance with, the Laws of the State of Delaware without giving effect to any choice or conflicts of Law principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. Except as provided in the immediately preceding sentence, this Agreement, and all Actions (whether at Law, in contract or in tort) that may be based upon, arise out of or related to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by, and construed in accordance with, the laws of the State of Maryland without giving effect to any choice or conflicts of Law principles (whether of the State of Maryland or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Maryland.

        Section 10.9    Consent to Jurisdiction.    Each Party irrevocably agrees and consents (a) to submit itself to the exclusive jurisdiction of the Circuit Court for Baltimore City (Maryland), and to request assignment to the Business and Technology Case Management Program (the "Maryland Court") for the purpose of any Action (whether based on contract, tort or otherwise), directly or indirectly, arising out of or relating to this Agreement or the transactions contemplated by this Agreement or the actions of the Parties in the negotiation, administration, performance and enforcement of this Agreement, (b) that it will not attempt to deny or defeat such jurisdiction by motion or other request for leave from any such court, (c) that it waives any objection to the laying of venue of any Action in the Maryland Court and agrees not to plead or claim in the Maryland Court that such litigation brought therein has been brought in any inconvenient forum, (d) that it will not bring any Action relating to this Agreement or the transactions contemplated by this Agreement or the actions of the parties hereto in the negotiation, administration, performance and enforcement of this Agreement in any court other than the Maryland Court, and (e) that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party hereby irrevocably and unconditionally agrees to request and/or consent to the assignment of any Action to the Maryland Court's Business and Technology Case Management Program. Nothing in this Agreement shall limit or affect the rights of any Party to pursue appeals from any judgments or order of the Maryland Court as provided by Law. Each Party agrees, (x) to the extent such Party is not otherwise subject to service of process in the State of Maryland, to appoint and maintain an agent in the State of Maryland as such Party's agent for acceptance of legal process, and (y) that service of process may also be made on such Party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service. Service made pursuant to clauses (x) or (y) above shall have the same legal force and effect as if served upon such Party personally within the State of Maryland.

        Section 10.10    Assignment.    Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned or delegated, in whole or in part, by operation of Law or otherwise by any of the Parties without the prior written consent of the other Parties, and any attempt to make any such assignment without such consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.

        Section 10.11    Remedies.    

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        Section 10.12    Waiver of Jury Trial.    EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10.12.

        Section 10.13    Authorship.    The Parties agree that the terms and language of this Agreement are the result of negotiations among the Parties and their respective advisors and, as a result, there shall be no presumption that any ambiguities in this Agreement shall be resolved against any Party. Any controversy over construction of this Agreement shall be decided without regard to events of authorship or negotiation.

[SIGNATURE PAGE FOLLOWS]

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        IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers, all as of the date first written above.

    PROLOGIS, L.P.

 

 

By:

 

PROLOGIS, INC., a Maryland corporation, its general partner

 

 

By:

 

/s/ EUGENE F. REILLY

        Name:   Eugene F. Reilly
        Title:   Chief Investment Officer

 

 

ROCKIES ACQUISITION LLC

 

 

By:

 

/s/ EUGENE F. REILLY

        Name:   Eugene F. Reilly
        Title:   Chief Investment Officer

 

 

INDUSTRIAL PROPERTY TRUST INC.

 

 

By:

 

/s/ THOMAS G. MCGONAGLE

        Name:   Thomas G. McGonagle
        Title:   Managing Director, Chief Financial Officer

   

[Signature page to the Agreement and Plan of Merger]



EXHIBIT A-1
Form of Company REIT Qualification Opinion

[See attached.]


GRAPHIC

[    ·    ], 2019

Industrial Property Trust Inc.
518 Seventeenth Street, 17th Floor
Denver, CO 80202

Re:    Industrial Property Trust Inc.—
          Status as a Real Estate Investment Trust

Ladies and Gentlemen:

        We are acting as counsel to Industrial Property Trust Inc., a Maryland corporation (the "Company"), in connection with the merger (the "Merger") of Rockies Acquisition LLC, a Delaware limited liability company ("Merger Sub"), with and into the Company pursuant to the Merger Agreement (the "Merger Agreement"), dated as of July 15, 2019 and as amended from time to time, by and among the Company, Merger Sub and Prologis, L.P., a Delaware limited partnership ("Parent"). Capitalized terms not defined herein shall have the meanings ascribed to them in the Merger Agreement.

        We are providing this opinion letter to you in connection with the Merger at the request of the Company in accordance with Section 8.2(e) of the Merger Agreement. Although you may disclose to any and all persons, without limitation of any kind, the federal tax treatment and federal tax structure of the Company and all materials of any kind that were provided to you by us relating to such tax treatment and tax structure, this opinion is intended for your benefit, and may be relied upon by Parent, in connection with the Merger Agreement. You may not authorize any other person or entity to rely on this opinion, or otherwise make this opinion available for the benefit of any other person or entity, without our prior written consent.

        In our capacity as counsel to the Company and for purposes of rendering this opinion, we have examined and relied upon the following, with your consent: (i) the Merger Agreement; (ii) a certificate executed by duly appointed officers of the Company (the "Company Officer's Certificate") setting forth certain factual representations, dated [    ·    ], 2019, and (iii) such other documents as we have considered relevant to our analysis. We have also examined the opinions, including officer's certificates and exhibits related thereto, of Greenberg Traurig, LLP, dated July 17, 2017 , with respect to the qualification of the Company as a real estate investment trust ("REIT") through its taxable year ended December 31, 2016. In addition, we have examined such other documents as we have considered relevant to our analysis. In our examination of such documents, we have assumed the authenticity of original documents, the accuracy of copies, the genuineness of signatures, and the legal capacity of signatories. We have also assumed that all parties to such documents have acted, and will act, in accordance with the terms of such documents.

        Our opinion is based on: (a) our understanding of the facts as represented to us in the Company Officer's Certificate; and (b) the assumption that (i) the Company and its subsidiaries have valid legal existences under the laws of the states in which they were formed and, to the extent relevant to our opinion, have operated in accordance with the laws of such states, (ii) the Company is operated, and will continue to be operated, in the manner described in the Company Officer's Certificate, (iii) all representations of fact contained in the Company Officer's Certificate are true and complete, (iv) any representation of fact in the Company Officer's Certificate that is made "to the knowledge of" or similarly qualified is correct without such qualification, and (v) the Merger will be consummated in accordance with the Merger Agreement. While we have made such inquiries and investigations as we have deemed necessary, we have not undertaken an independent inquiry into or verification of all such


facts either in the course of our representation of the Company or for the purpose of rendering this opinion. While we have reviewed all representations made to us to determine their reasonableness, and nothing has come to our attention that would cause us to question the accuracy of such representations, we have no assurance that they are or will ultimately prove to be accurate.

        We note that the tax consequences addressed herein depend upon the actual occurrence of events in the future, which events may or may not be consistent with any representations made to us for purposes of this opinion. In particular, the qualification and taxation of the Company as a REIT for U.S. federal income tax purposes depends upon the Company's ability to meet on a continuing basis certain distribution levels, diversity of stock ownership, and the various qualification tests imposed by the Internal Revenue Code of 1986, as amended (the "Code"). To the extent that the facts differ from those represented to or assumed by us herein, our opinion should not be relied upon.

        Our opinion herein is based on existing law as contained in the Code, final and temporary Treasury Regulations promulgated thereunder, administrative pronouncements of the Internal Revenue Service (the "IRS") and court decisions as of the date hereof. The provisions of the Code and the Treasury Regulations, IRS administrative pronouncements and case law upon which this opinion is based could be changed at any time, perhaps with retroactive effect. In addition, some of the issues under existing law that could significantly affect our opinion have not yet been authoritatively addressed by the IRS or the courts, and our opinion is not binding on the IRS or the courts. Hence, there can be no assurance that the IRS will not challenge, or that the courts will agree with, our conclusions.

        Based upon, and subject to, the foregoing and the next paragraph below, we are of the opinion that, commencing with its taxable year ended December 31, 2013 and through its taxable year ended December 31, 2018, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and for the hypothetical short tax year beginning January 1, 2019 and ending with the Closing, taking into account the BTC Spinoff but not the Merger, its organization and method of operation has enabled it to meet the requirements for qualification and taxation as a REIT under the Code.

        We undertake no obligation to update this opinion, or to ascertain after the date hereof whether circumstances occurring after such date may affect the conclusions set forth herein. We express no opinion as to matters governed by any laws other than the Code, the Treasury Regulations, published administrative announcements and rulings of the IRS, and court decisions.

  Very truly yours,

 

Morrison & Foerster LLP



EXHIBIT A-2
Form of BTC Spinco REIT Qualification Opinion

        [See attached.]


GRAPHIC

[    ·    ], 2019

BTC Spinco
518 Seventeenth Street, 17th Floor
Denver, CO 80202

Re:    BTC Spinco—
          Status as a Real Estate Investment Trust

Ladies and Gentlemen:

        We are acting as counsel to BTC Spinco, a [Maryland corporation] (the "Company"), in connection with the merger (the "Merger") of Rockies Acquisition LLC, a Delaware limited liability company ("Merger Sub"), with and into Industrial Properties Trust Inc., a Maryland corporation ("IPT") pursuant to the Merger Agreement (the "Merger Agreement"), dated as of July 15, 2019 and as amended from time to time, by and among IPT, Merger Sub and Prologis, L.P., a Delaware limited partnership ("Parent"). Capitalized terms not defined herein shall have the meanings ascribed to them in the Merger Agreement.

        We are providing this opinion letter to you in connection with the Merger at the request of the Company in accordance with Section 8.2(f) of the Merger Agreement. Although you may disclose to any and all persons, without limitation of any kind, the federal tax treatment and federal tax structure of the Company and all materials of any kind that were provided to you by us relating to such tax treatment and tax structure, this opinion is intended for your benefit, and may be relied upon by Parent and IPT, in connection with the Merger Agreement. You may not authorize any other person or entity to rely on this opinion, or otherwise make this opinion available for the benefit of any other person or entity, without our prior written consent.

        In our capacity as counsel to the Company and for purposes of rendering this opinion, we have examined and relied upon the following, with your consent: (i) the Merger Agreement; (ii) the Distribution Agreement (the "Distribution Agreement"), dated as of [    ·    ], 2019 and as amended from time to time, by and among the Company and IPT, (iii) a certificate executed by duly appointed officers of the Company (the "Company Officer's Certificate") setting forth certain factual representations, dated [    ·    ], 2019, and (iv) such other documents as we have considered relevant to our analysis. We have also examined the opinions, including officer's certificates and exhibits related thereto, of Greenberg Traurig, LLP, dated July 17, 2017, with respect to the qualification of IPT as a real estate investment trust ("REIT") through its taxable year ended December 31, 2016. In addition, we have examined such other documents as we have considered relevant to our analysis. In our examination of such documents, we have assumed the authenticity of original documents, the accuracy of copies, the genuineness of signatures, and the legal capacity of signatories. We have also assumed that all parties to such documents have acted, and will act, in accordance with the terms of such documents.

        Our opinion is based on: (a) our understanding of the facts as represented to us in the Company Officer's Certificate; and (b) the assumption that (i) the Company and its subsidiaries have valid legal existences under the laws of the states in which they were formed and, to the extent relevant to our opinion, have operated in accordance with the laws of such states, (ii) the Company is operated, and will continue to be operated, in the manner described in the Company Officer's Certificate, (iii) all representations of fact contained in the Company Officer's Certificate are true and complete, (iv) any representation of fact in the Company Officer's Certificate that is made "to the knowledge of" or similarly qualified is correct without such qualification, and (v) the BTC Spinoff will be consummated in accordance with the Distribution Agreement. While we have made such inquiries and investigations


as we have deemed necessary, we have not undertaken an independent inquiry into or verification of all such facts either in the course of our representation of the Company or for the purpose of rendering this opinion. While we have reviewed all representations made to us to determine their reasonableness, and nothing has come to our attention that would cause us to question the accuracy of such representations, we have no assurance that they are or will ultimately prove to be accurate.

        We note that the tax consequences addressed herein depend upon the actual occurrence of events in the future, which events may or may not be consistent with any representations made to us for purposes of this opinion. In particular, the qualification and taxation of the Company as a REIT for U.S. federal income tax purposes depends upon the Company's ability to meet on a continuing basis certain distribution levels, diversity of stock ownership, and the various qualification tests imposed by the Internal Revenue Code of 1986, as amended (the "Code"). To the extent that the facts differ from those represented to or assumed by us herein, our opinion should not be relied upon.

        Our opinion herein is based on existing law as contained in the Code, final and temporary Treasury Regulations promulgated thereunder, administrative pronouncements of the Internal Revenue Service (the "IRS") and court decisions as of the date hereof. The provisions of the Code and the Treasury Regulations, IRS administrative pronouncements and case law upon which this opinion is based could be changed at any time, perhaps with retroactive effect. In addition, some of the issues under existing law that could significantly affect our opinion have not yet been authoritatively addressed by the IRS or the courts, and our opinion is not binding on the IRS or the courts. Hence, there can be no assurance that the IRS will not challenge, or that the courts will agree with, our conclusions.

        Based upon, and subject to, the foregoing and the next paragraph below, we are of the opinion that, since its formation on [    ·    ], 2019, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and its organization and proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2019, taking into account the BTC Spinoff but not the Merger.

        We undertake no obligation to update this opinion, or to ascertain after the date hereof whether circumstances occurring after such date may affect the conclusions set forth herein. We express no opinion as to matters governed by any laws other than the Code, the Treasury Regulations, published administrative announcements and rulings of the IRS, and court decisions.

  Very truly yours,

 

Morrison & Foerster LLP



EXHIBIT B
Merger Agreement Amendments

1.
Recitals would be amended to reflect the mechanics of an Alternative Transaction.

2.
Section 2.1 (The Merger) would be amended to reflect that the merger will be between up to three New Holdco entities and up to three Merger Sub entities, rather than between Company and Merger Sub, and reflect the allocation of identified Company Properties to be contributed to each New Holdco entities at the request of Parent. Section 2.7 (Tax Consequences of the Merger) would also be updated to reflect the tax consequences of an Alternative Transaction, including that Parent will determine the allocation of the aggregate merger consideration among the various New Holdco entities' direct and indirect assets for federal income tax purposes.

3.
Article 3 (Effects of the Merger) would be amended as follows:

a.
To reflect the mechanics of the merger between each of the New Holdco entities and the corresponding Merger Sub entities;

b.
To delete the Per Share Merger Consideration and provide that the consideration would be the Alternative Transaction Consideration, determined in the manner set forth in Section 2.8(f)(v);

c.
To reflect the distribution of the proceeds of the merger to holders of Company Common Stock and the Special OP Unitholder; and

d.
To delete Section 3.3 (Exchange Fund; Exchange Agent).

4.
Article 4 (Representations and Warranties of Company) would be revised to add the following representations and warranties regarding each New Holdco entity:

a.
Organization and Qualification;

b.
Organizational Documents;

c.
Capitalization;

d.
Authority;

e.
No prior business activities of New Holdco;

f.
No liabilities of New Holdco;

g.
New Holdco owns, or as of the Closing Date will own, all of the equity interests in each of the Company Subsidiaries to be contributed to such New Holdco;

h.
No material post-closing obligations of New Holdco or any of the Company Subsidiaries to be contributed to such New Holdco; and

i.
Delete all representations regarding the BTC Entities (e.g., Tax representations).

5.
Article 5 (Representations and Warranties of Parent and each Merger Sub entity) would be revised to:

a.
Delete Tax Representations (Section 5.12).

6.
Article 6 (Interim Operating Covenants) would be revised to allow Company to take all actions necessary to consummate an Alternative Transaction.

7.
Article 7 (Other Covenants) would be revised as follows:

a.
Delete Company DRIP; Company Share Redemption Plan (Section 7.11);

b.
Delete Section 7.13(b) regarding BTC Spinco tax representation letter;

c.
Delete Indemnification; Directors' and Officers' Insurance (Section 7.5);

8.
Article 8 (Conditions) would be revised as follows:

a.
Delete REIT Opinion for BTC Spinco (Section 8.2(f)); and

b.
Delete Tax Matters Agreement (Section 8.2(g)).


EXHIBIT C
Form of Tax Matters Agreement

[See attached.]



TAX MATTERS AGREEMENT

AMONG

[BTC SPINCO]

AND

INDUSTRIAL PROPERTY TRUST INC.

DATED AS OF  [                ], 2019



TAX MATTERS AGREEMENT

        TAX MATTERS AGREEMENT (this "Agreement"), dated as of [                        ], 2019, is by and among Industrial Property Trust Inc., a Maryland corporation that has elected to be treated as a real estate investment trust for federal income tax purposes ("Company"), and [BTC Spinco], a Maryland [corporation] that intends to qualify as a REIT for federal income tax purposes ("BTC Spinco"). Each of Company and BTC Spinco 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 the Agreement and Plan of Merger dated as of July 15, 2019 by and among Prologis, L.P., a Delaware limited partnership ("Parent"), Company and Rockies Acquisition LLC, a Delaware limited liability company and wholly owned subsidiary of Parent ("Merger Sub") (the "Merger Agreement").


RECITALS

        WHEREAS, Company has completed the BTC Spinoff, as provided for in a distribution agreement pursuant to Section 2.8(g) of the Merger Agreement, whereby Company has contributed 100% of the equity interests in each of the BTC Entities named in clause (i) of the definition thereof to be transferred to BTC Spinco or a newly formed wholly owned subsidiary of BTC Spinco;

        WHEREAS, pursuant to the Merger Agreement, on the Closing Date, the Parties (and their respective Affiliates) will complete the merger of Merger Sub with and into Company (such merger transaction, the "Merger"), with Company being the surviving company (the "Surviving Entity") in the Merger, and pursuant to which each outstanding Class A Common Share, $0.01 par value per share, of Company (the "Class A Common Shares") and each outstanding Class T Common Share, $0.01 par value per share, of Company (the "Class T Common Shares" and together with the Class A Common Shares, the "Company Common Stock"), issued and outstanding immediately prior to the Effective Time, will be converted into the right to receive the Per Share Merger Consideration, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Maryland General Corporation Law, as amended (the "MGCL"); and

        WHEREAS, the Parties desire to set forth their agreement on the rights and obligations of the Parties with respect to (A) the administration and allocation of federal, state, local, and foreign Taxes incurred in Tax Periods beginning prior to the date of the BTC Spinoff (the "Distribution Date"), (B) Taxes resulting from the BTC Spinoff and transactions effected in connection with the BTC Spinoff and (C) various other Tax matters.;

        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:


ARTICLE 1
DEFINITIONS

        Section 1.1    Definitions.    

        "BTC Group" has the same meaning as BTC Entities.

        "BTC REIT" means BTC I REIT A LLC, BTC I REIT B LLC and BTC II Holdo LLC. "BTC Separate Tax Return" means any Tax Return of any member of the BTC Group (including any consolidated, combined or unitary return) that does not include any member of the Company Group.

        "Company Group" means Company and the Company Subsidiaries.

        "Company Separate Tax Return" means any Tax Return of any member of the Company Group (including any consolidated, combined or unitary return) that does not include any member of the BTC Group.


        "Controlling Party" has the meaning set forth in Section 9.2(c) of this Agreement.

        "Distribution Date" has the meaning set forth in the recitals to this Agreement.

        "Final Allocation" has the meaning set forth in Section 3.5(b) of this Agreement.

        "Final Determination" means the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for any Tax Period, (i) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance by or on behalf of the taxpayer, or by a comparable form under the laws of a state, local, or foreign taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim for refund or the right of the Tax Authority to assert a further deficiency in respect of such issue or adjustment or for such Tax Period (as the case may be); (ii) by a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (iii) by a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a state, local, or foreign taxing jurisdiction; (iv) by any allowance of a refund or credit in respect of an overpayment of a Tax, but only after the expiration of all periods during which such refund may be recovered (including by way of offset) by the jurisdiction imposing such Tax; (v) by a final settlement resulting from a treaty-based competent authority determination; or (vi) by any other final disposition, including by reason of the expiration of the applicable statute of limitations, the execution of a pre-filing agreement with the IRS or other Tax Authority, or by mutual agreement of the Parties.

        "Group" means either the Company Group or the BTC Group, as the context requires.

        "Income Tax" means all U.S. federal, state, local and foreign income, franchise or similar Taxes imposed on (or measured by) net income or net profits.

        "Intended Tax Treatment" means (i) the BTC Spinoff as a taxable distribution by the Company of its direct or indirect interests in BTC Spinco rather than as a tax free distribution described in Section 355 of the Code and (ii) the Merger as a taxable sale of all of the Company Common Stock and the Company Restricted Stock by the holders thereof to Parent in exchange for the Merger Consideration.

        "Joint Return" means any Tax Return that includes, by election or otherwise, one or more members of the BTC Group together with one or more members of the Company Group.

        "Non-Controlling Party" has the meaning set forth in Section 9.2(c) of this Agreement.

        "Parties" and "Party" have the meaning set forth in the preamble to this Agreement.

        "Past Practices" has the meaning set forth in Section 3.4(a) of this Agreement.

        "Payment Date" means, with respect to a Tax Return, (A) the due date for any required installment of estimated Taxes, (B) the due date (determined without regard to extensions) for filing such Tax Return, or (C) the date such Tax Return is filed, as the case may be.

        "Post-Distribution Tax Period" means any Tax period beginning after the Distribution Date.

        "Pre-Distribution Tax Period" means any Tax period ending on or before the Distribution Date.

        "Privilege" means any privilege that may be asserted under applicable law, including, any privilege arising under or relating to the attorney-client relationship (including the attorney-client and work product privileges), the accountant-client privilege and any privilege relating to internal evaluation processes.

        "Proposed Allocation" shall have the meaning set forth in Section 3.5(b) of this Agreement.

        "Responsible Party" means, with respect to any Tax Return, the Party having responsibility for preparing and filing such Tax Return under this Agreement.


        "Retention Date" has the meaning set forth in Section 8.1 of this Agreement.

        "Tax Advisor" means a Tax counsel or accountant, in each case of recognized national standing.

        "Tax Authority" means, with respect to any Tax, the Governmental Authority or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity or subdivision.

        "Tax Attribute" means a net operating loss, net capital loss, unused investment credit, unused foreign Tax credit (including credits of a foreign company under Section 902 of the Code), excess charitable contribution, general business credit, research and development credit, earnings and profits, basis, or any other Tax Item that could reduce a Tax or create a Tax Benefit.

        "Tax Benefit" means any refund, credit, or other item that causes reduction in otherwise required liability for Taxes.

        "Tax Contest" means an audit, review, examination, contest, litigation, investigation or any other administrative or judicial proceeding with the purpose or effect of redetermining Taxes (including any administrative or judicial review of any claim for refund).

        "Tax Item" means, with respect to any Income Tax, any item of income, gain, loss, deduction, or credit.

        "Tax Opinion" means an opinion from a Tax Advisor regarding the qualification of Company, BTC Spinco or any Subsidiary REIT as a REIT or regarding the Tax treatment of all or any part of the transactions contemplated by the Merger Agreement.

        "Tax Period" means, with respect to any Tax, the period for which the Tax is reported as provided under the Code or other applicable Tax Law.

        "Tax Records" means any (i) Tax Returns, (ii) Tax Return workpapers, (iii) documentation relating to any Tax Contests, and (iv) any other books of account or records (whether or not in written, electronic or other tangible or intangible forms and whether or not stored on electronic or any other medium) maintained or required to be maintained under the Code or other applicable Tax Laws or under any record retention agreement with any Tax Authority, in each case filed or required to be filed with respect to or otherwise relating to Taxes.

        "Treasury Regulations" means the regulations promulgated from time to time under the Code as in effect for the relevant Tax Period.

        Section 1.2    Interpretation and Rules of Construction.    In this Agreement, except to the extent otherwise provided or that the context otherwise requires:



ARTICLE 2
ALLOCATION OF TAXES

        Section 2.1    General Allocation Principles.    All Taxes shall be allocated as follows:

        Section 2.2    Allocation Conventions.    


        Section 2.3    Transfer Taxes.    Any Transfer Taxes arising as a result of the BTC Spinoff shall be allocated to, and paid by, BTC Spinco.


ARTICLE 3
TAX RETURNS

        Section 3.1    BTC Separate Tax Returns.    BTC Spinco shall prepare and file (or cause to be prepared and filed) all BTC Separate Tax Returns.

        Section 3.2    Company Pre-Distribution Separate Returns and Joint Returns.    

        Section 3.3    Company Post-Distribution Separate Returns.    Company shall prepare and file (or cause to be prepared and filed) all Company Separate Tax Returns which relate to any Post-Distribution Tax Period.

        Section 3.4    Tax Reporting Practices.    

        Section 3.5    Apportionment of Tax Attributes.    



ARTICLE 4
TAX PAYMENTS

        Section 4.1    Taxes Shown on Tax Returns.    Company shall pay (or cause to be paid) to the proper Tax Authority the Tax shown as due on any Tax Return that a member of the Company Group is responsible for preparing under Article 3 of this Agreement, and BTC shall pay (or cause to be paid) to the proper Tax Authority the Tax shown as due on any Tax Return that a member of the BTC Group is responsible for preparing under Article 3 of this Agreement. At least seven (7) Business Days prior to any Payment Date for any Joint Returns, BTC Spinco shall pay to Company the amount BTC Spinco is responsible for under the provisions of Section 2.1(a) as calculated pursuant to this Agreement. At least seven (7) Business Days prior to any Payment Date for any such BTC Separate Tax Return, Company shall pay to BTC Spinco the amount Company is responsible for under the provisions of Section 2.1(b)(i) as calculated pursuant to this Agreement.

        Section 4.2    Adjustments Resulting in Underpayments.    In the case of any adjustment pursuant to a Final Determination with respect to any Tax, the Party to which such Tax is allocated pursuant to this Agreement shall pay to the applicable Tax Authority when due any additional Tax required to be paid as a result of such adjustment.


ARTICLE 5
REIT QUALIFICATION

        Section 5.1    Representation Letters.    


        Section 5.2    REIT Opinions.    By February 28 of the year following the year which includes the Distribution Date,


ARTICLE 6
SECTION 336(E) ELECTION

        Section 6.1    Section 336(e) Election.    At the request of BTC Spinco, Company shall make an election under Section 336(e) of the Code (and any similar election under state or local law) with respect to the BTC Spinoff in accordance with Treasury Regulation Section 1.336-2(h) and (j) (and any applicable provisions under state and local law), and the Parties shall cooperate in the timely completion and/or filings of such elections and any related filings or procedures (including filing or amending any Tax Returns to implement an election that becomes effective). If requested by BTC SpinCo, this Section 6.1(a) is intended to constitute binding, written agreements to make elections under Section 336(e) of the Code with respect to the BTC Spinoff. By making an election under Section 336(e) of the Code, neither Company nor BTC Spinco is representing or warranting that the BTC Spinoff is a taxable distribution rather than a tax free distribution described in Section 355 of the Code.


ARTICLE 7
ASSISTANCE AND COOPERATION

        Section 7.1    Assistance and Cooperation.    


        Section 7.2    Tax Return Information.    Each Party shall provide to the other Party information and documents relating to its Group reasonably required by the other Party to prepare Tax Returns, including any pro forma returns required by the Responsible Party for purposes of preparing such Tax Returns. Any information or documents the Responsible Party requires to prepare such Tax Returns shall be provided in such form as the Responsible Party reasonably requests and at or prior to the time reasonably specified by the Responsible Party so as to enable the Responsible Party to file such Tax Returns on a timely basis.


ARTICLE 8
TAX RECORDS

        Section 8.1    Retention of Tax Records.    Each of BTC Spinco and Company shall preserve and keep all Tax Records relating to the assets and activities of its Group for Pre-Distribution Tax Periods, for so long as the contents thereof may be or become material in the administration of any matter under the Code or other applicable Tax Law, but in any event until the later of (i) the expiration of any applicable statutes of limitations, or (ii) seven (7) years after the Distribution Date (such later date, the "Retention Date"). After the Retention Date, each of BTC Spinco and Company may dispose of such Tax Records upon sixty (60) Business Days' prior written notice to the other Party. If, prior to the Retention Date, (a) BTC Spinco or Company reasonably determines that any Tax Records which it would otherwise be required to preserve and keep under this Article 8 are no longer material in the administration of any matter under the Code or other applicable Tax Law and the other Party agrees, then such first Party may dispose of such Tax Records upon sixty (60) Business Days' prior notice to the other Party. Any notice of an intent to dispose given pursuant to this Section 8.1 shall include a list of the Tax Records to be disposed of describing in reasonable detail each file, book, or other record accumulation being disposed. The notified Parties shall have the opportunity, at their cost and expense, to copy or remove, within such sixty (60) Business Day period, all or any part of such Tax Records. If, at any time prior to the Retention Date, a Party or any of its Affiliates determines to decommission or otherwise discontinue any computer program or information technology system used to access or store any Tax Records, then such program or system may be decommissioned or discontinued upon ninety (90) Business Days' prior notice to the other Party and the other Party shall have the opportunity, at its cost and expense, to copy, within such ninety (90) Business Day period, all or any part of the underlying data relating to the Tax Records accessed by or stored on such program or system.

        Section 8.2    Access to Tax Records.    The Parties and their respective Affiliates shall make available to each other for inspection and copying during normal business hours upon reasonable notice all Tax Records (and, for the avoidance of doubt, any pertinent underlying data accessed or stored on any computer program or information technology system) in their possession pertaining to (i) in the case of any Tax Return of the Company Group, the portion of such return that relates to Taxes for which the BTC Group may be liable pursuant to this Agreement or (ii) in the case of any Tax Return of the BTC Group, the portion of such return that relates to Taxes for which the Company Group may be liable pursuant to this Agreement, and shall permit the other Party and its Affiliates, authorized


agents and representatives and any representative of a Tax Authority or other Tax auditor direct access, at the cost and expense of the requesting Party, during normal business hours upon reasonable notice to any computer program or information technology system used to access or store any Tax Records, in each case to the extent reasonably required by the other Party in connection with the preparation of Tax Returns or financial accounting statements, audits, litigation, or the resolution of items under this Agreement.

        Section 8.3    Preservation of Privilege.    The Parties and their respective Affiliates shall not provide access to, copies of, or otherwise disclose to any Person any documentation relating to Taxes existing prior to the Distribution Date to which Privilege may reasonably be asserted without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed.


ARTICLE 9
TAX CONTESTS

        Section 9.1    Notice.    Each Party shall provide prompt notice to the other Party of any written communication from a Tax Authority regarding any pending Tax audit, assessment or proceeding or other Tax Contest of which it becomes aware (i) related to the qualification of such party as a REIT or (ii) otherwise relating to the Intended Tax Treatment or the transactions contemplated by the Merger Agreement (including the resolution of any Tax Contest relating thereto). Such notice shall attach copies of the pertinent portion of any written communication from a Tax Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Tax Authority in respect of any such matters.

        Section 9.2    Control of Tax Contests.    



ARTICLE 10
GENERAL PROVISIONS

        Section 10.1    Survival of Obligations.    The representations, warranties, covenants and agreements set forth in this Agreement shall be unconditional and absolute and shall remain in effect without limitation as to time.

        Section 10.2    Notices.    All notices, requests, claims, consents, demands and other communications under this Agreement shall be in writing and delivered (i) in person, (ii) by electronic mail including a .pdf attachment (providing confirmation of transmission), or (iii) sent by prepaid overnight courier (providing proof of delivery), to the Parties at the following addresses (or at such other addresses as shall be specified by the Parties by like notice):

Industrial Property Trust Inc.
518 Seventeenth Street, 17th Floor
Denver, CO 80202
Attn:   Evan Zucker
Dwight Merriman
email:   evan.zucker@blackcreekgroup.com
dwight.merriman@blackcreekgroup.com
Industrial Property Trust Inc.
518 Seventeenth Street, 17th Floor
Denver, CO 80202
Attn:   Tom McGonagle
Josh Widoff
email:   tom.mcgonagle@blackcreekgroup.com
josh.widoff@blackcreekgroup.com
and to:    
Hogan Lovells US LLP
555 13th Street NW
Washington, DC 20004
Attn:   David Bonser Bruce Gilchrist
email:   david.bonser@hoganlovells.com
bruce.gilchrist@hoganlovells.com

Prologis, L.P.
1800 Wazee Street, Suite 500
Denver, CO 80202
Attn:   Edward S. Nekritz, Chief Legal Officer and General Counsel
email:   enekritz@prologis.com
Mayer Brown LLP
71 South Wacker Drive
Chicago, IL 60606
Attn:   Andrew J. Noreuil
David Malinger
email:   anoreuil@mayerbrown.com
dmalinger@mayerbrown.com

        All notices, requests, claims, consents, demands and other communications under this Agreement shall be deemed duly given or made (A) if delivered in person, on the date delivered, (B) if sent by electronic mail (providing confirmation of transmission), on the date it was received, or (C) if sent by prepaid overnight courier, on the next Business Day (providing proof of delivery). For the avoidance of doubt, counsel for a Party may send notices, requests, claims, consents demands or other communications on behalf of such Party.

        Section 10.3    Severability.    If any term or other provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced under any present or future Law or public policy in any jurisdiction, as to that jurisdiction, (a) such term or other provision shall be fully separable, (b) this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision had never comprised a part hereof, (c) all other conditions and provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable term or other provision or by its severance herefrom so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party, and (d) such terms or other provision shall not affect the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced in any jurisdiction, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.

        Section 10.4    Counterparts.    This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall be deemed one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. Signatures to this Agreement transmitted by electronic mail in .pdf format, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

        Section 10.5    Entire Agreement; No Third-Party Beneficiaries.    This Agreement constitutes the entire agreement and supersede all prior agreements and understandings, both written and oral, among the Parties, or between any of them, with respect to the subject matter of this Agreement. This Agreement is not intended to and shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns. The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Parties in


accordance with Section 10.7 without notice or liability to any other Person. The representations and warranties in this Agreement may represent an allocation among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties. Accordingly, persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

        Section 10.6    Amendment.    Subject to compliance with applicable Law, this Agreement may be amended by mutual agreement of the Parties hereto by action taken or authorized by the Company Board and the Parent Board, respectively, at any time before or after receipt of the Company Stockholder Approval and prior to the Distribution Date; provided that after the Company Stockholder Approval has been obtained, there shall not be any amendment of this Agreement that changes the amount or the form of the consideration to be delivered under this Agreement to the holders of shares of Company Common Stock or the holders of shares of Company Restricted Stock, or which by applicable Law requires the further approval of the stockholders of Company without such further approval of such stockholders. This Agreement may not be amended except by an instrument in writing signed by each of the Parties.

        Section 10.7    Extension; Waiver.    At any time prior to the Spinoff Effective Time, the Parties hereto may, subject to the requirements of applicable Law, (a) extend the time for the performance of any of the obligations or other acts of the other Parties hereto, (b) waive any inaccuracies in the representations and warranties of the other Party contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements or conditions contained in this Agreement. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of any Party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights. No single or partial exercise of any right, remedy, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Any waiver shall be effective only in the specific instance and for the specific purpose for which given and shall not constitute a waiver to any subsequent or other exercise of any right, remedy, power or privilege hereunder.

        Section 10.8    Governing Law.    This Agreement, and all Actions (whether at Law, in contract or in tort) that may be based upon, arise out of or related to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by, and construed in accordance with, the laws of the State of Maryland without giving effect to any choice or conflicts of Law principles (whether of the State of Maryland or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Maryland.

        Section 10.9    Consent to Jurisdiction.    Each Party irrevocably agrees and consents (a) to submit itself to the exclusive jurisdiction of the Maryland Court for the purpose of any Action (whether based on contract, tort or otherwise), directly or indirectly, arising out of or relating to this Agreement or the transactions contemplated by this Agreement or the actions of the Parties in the negotiation, administration, performance and enforcement of this Agreement, (b) that it will not attempt to deny or defeat such jurisdiction by motion or other request for leave from any such court, (c) that it waives any objection to the laying of venue of any Action in the Maryland Court and agrees not to plead or claim in the Maryland Court that such litigation brought therein has been brought in any inconvenient forum, (d) that it will not bring any Action relating to this Agreement or the transactions contemplated by this Agreement or the actions of the parties hereto in the negotiation, administration, performance and enforcement of this Agreement in any court other than the Maryland Court, and (e) that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party hereby irrevocably and unconditionally agrees to request and/or consent to the assignment of any Action to the Maryland Court's Business and Technology Case Management Program. Nothing in this Agreement shall limit or affect the rights of any Party to pursue appeals from any judgments or order of the Maryland Court as provided by Law. Each Party agrees, (x) to the extent such Party is not otherwise subject to service of process in the State of Maryland, to appoint and maintain an agent in the State of Maryland as such Party's agent for


acceptance of legal process, and (y) that service of process may also be made on such Party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service. Service made pursuant to clauses (x) or (y) above shall have the same legal force and effect as if served upon such Party personally within the State of Maryland.

        Section 10.10    Assignment.    Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned or delegated, in whole or in part, by operation of Law or otherwise by any of the Parties without the prior written consent of the other Parties, and any attempt to make any such assignment without such consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.

        Section 10.11    Remedies.    

        Section 10.12    Waiver of Jury Trial.    EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10.12.

        Section 10.13    Authorship.    The Parties agree that the terms and language of this Agreement are the result of negotiations among the Parties and their respective advisors and, as a result, there shall be no presumption that any ambiguities in this Agreement shall be resolved against any Party. Any controversy over construction of this Agreement shall be decided without regard to events of authorship or negotiation.


[SIGNATURE PAGE FOLLOWS]


        IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers, all as of the date first written above.

  [BTC SPINCO]

 

By:

 

 


      Name:    

      Title:    

 

INDUSTRIAL PROPERTY TRUST INC.

 

By:

 

  


      Name:    

      Title:    

   

[Signature page to the Tax Matters Agreement]




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Exhibit 99.1

GRAPHIC

    Contact: Briana Ochiltree
briana.ochiltree@blackcreekgroup.com
Black Creek Group
720-728-3109

FOR IMMEDIATE RELEASE:

Black Creek Group Industrial Real Estate Investment Platform to be acquired by Prologis for $3.99 Billion

        DENVER, July 15—Black Creek Group, a Denver-based real estate investment manager and development firm with a more than 25-year history, today announced its sponsored investment platform, Industrial Property Trust Inc. (IPT), has entered into a merger agreement pursuant to which it will be acquired by an affiliate of Prologis, Inc. (NYSE: PLD) in an all cash transaction valued at approximately $3.99 Billion, subject to adjustment for certain transaction costs. The transaction will not include IPT's minority ownership interests in its two unconsolidated joint venture partnerships. IPT's board of directors unanimously approved the transaction.

        "We believe this transaction makes sense for our investors as we want to deliver shareholder returns that maximize the current economic environment. The industrial sector continues to be one of the strongest in commercial real estate with record low vacancies and demand outpacing supply. Given the strength of the sector, not only do we plan to continue to develop and acquire assets for other portfolios but create products that make sense for investor needs and the market cycle." said Raj Dhanda, chief executive officer, Black Creek Group.

        This overall transaction represents:

        "This is a compelling opportunity to acquire a portfolio of excellent asset quality and submarket composition consistent with our U.S. investment strategy and footprint," said Eugene F. Reilly, chief investment officer, Prologis. "We expect to capture significant cost and revenue synergies, in addition to enhancing customer relationships and insights."

        "In our more than 25-year history, we have delivered four full-cycle industrial portfolios and are excited to deliver another with this announcement. The transaction is a testament to our commitment to delivering high-quality products that create value for our investors" stated Evan Zucker, principal, co-founder and managing partner, Black Creek Group.

        Over Black Creek Group's history, the firm has sponsored 24 investment platforms and has taken six platforms that span real estate asset classes full cycle through either a liquidity event or an IPO on the New York Stock Exchange.

        Morgan Stanley & Co. LLC and Eastdil Secured, L.L.C. are acting as financial advisors to Industrial Property Trust Inc. (IPT). CBRE, Inc. is acting as real estate advisor to IPT. Hogan Lovells is acting as legal advisor to IPT.

About Black Creek Group

        Black Creek Group is an experienced real estate investment management and development firm that has bought or built more than $19 billion of investments over its more than 25-year history. The firm manages diverse investment offerings across the spectrum of commercial real estate—including


office, industrial, retail and multifamily—providing a range of investment solutions for both institutional and wealth management channels. Black Creek Group has nine offices across North America with more than 300 professionals. More information is available at blackcreekgroup.com.

Forward-Looking Statements

        This press release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of 1995. 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 Industrial Property Trust Inc. (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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against the Company and others related to the merger agreement; (vii) the Company's ability to effectuate a transaction involving its interest in its unconsolidated joint venture partnerships in accordance with the merger agreement on satisfactory terms or at all; (viii) the risk that the merger, or the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of the Company to implement its operating strategy; (x) the Company's ability to manage planned growth; (xi) changes in economic cycles; and (xii) competition within the real estate industry. In addition, these forward-looking statements reflect our views as of the date on which such statements were made. We anticipate that subsequent events and developments may cause our views to change. These forward-looking statements should not be relied upon as representing our 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 us, 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 forward-looking 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, 2018, which was filed with the SEC on March 6, 2019 as amended by the Company's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. We expressly disclaim 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 www.sec.gov and the Company's website at www.industrialpropertytrust.com. 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 Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        The Company, Industrial Property Advisors LLC, the Company's external advisor and a member of the Black Creek Group, and their respective 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 these persons and their ownership of Common Stock is set forth in the Company's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of the Company, Industrial Property Advisors LLC and their respective executive officers and directors in the merger by reading the proxy statement regarding the merger when it becomes available.

###




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Exhibit 99.2

July 15, 2019

Dear Stockholder:

        We are very pleased to inform you that Industrial Property Trust Inc. (IPT), an investment platform sponsored by Black Creek Group, has entered into a definitive merger agreement pursuant to which Prologis, Inc. (NYSE: PLD) will acquire IPT in an all cash deal valued at approximately $3.99 billion, subject to certain transaction costs. The merger will include 100% of IPT's wholly-owned real estate assets, but will exclude IPT's ownership interests in the BTC Portfolio described below. The wholly owned assets represent 37.5 million square feet in 236 properties located across 24 geographical areas and are currently 97% leased.

        IPT also has interests in two build-to-core joint ventures (the BTC Portfolio). IPT's ownership share of the BTC Portfolio's gross real estate was valued at approximately $295 million, at the time of IPT's most recent appraisal as of November 30, 2018. The BTC Portfolio is not part of the merger with Prologis. Combining the consideration to be paid for the merger and the most recent appraised value of the BTC Portfolio, the total gross value, including debt, is approximately $4.3 billion.

Why now?

        We believe this transaction makes sense for our stockholders given the current market environment. It allows our shareholders to realize the value we have created and deliver returns to our stockholders in a timely manner. We continue to believe that the industrial sector is one of the strongest in commercial real estate, with record low vacancies and demand outpacing supply. Given the strength of the sector, not only do we plan to continue to develop and acquire assets for other portfolios we will continue to create products that make sense for investor needs and the market cycle.

How will the transaction work?

        Pursuant to the merger agreement, a subsidiary of Prologis will acquire IPT's wholly-owned portfolio through a merger. Each Class A and Class T share of IPT will automatically be converted into the right to receive a net adjusted amount in cash currently estimated to be approximately $12.18 per share. This is a preliminary estimate and is subjected to final adjustments, as contemplated in the merger related to the BTC Portfolio, and is subject to any withholding required under applicable tax law.

        IPT is currently exploring alternatives for the BTC Portfolio. The determination of the outcome for the BTC Portfolio is expected to be made no later than 30-days from July, 2019 and will be communicated to stockholders in IPT's definitive proxy statement relating to the merger transaction.

What can stockholders expect?

        IPT currently estimates, based on the per share cash consideration to be paid in the merger, that stockholders may receive a net adjusted amount of approximately $12.18 per share as total consideration for their shares. This is a preliminary estimate and is subject to final adjustments as noted above. In addition, based on the prior valuation described above with certain adjustments, the BTC Portfolio value would have been an estimated net $1.08 per share. The actual value will likely differ, perhaps materially, from this estimate based on, among other things, an updated valuation of the BTC Portfolio and potential transaction expenses related to the BTC assets. However, when added to the estimated net per share merger proceeds, this results in a total current estimate of approximately $13.26 in value per share. There can be no assurance regarding the amount of cash that ultimately will be distributed to IPT stockholders in connection with either the merger transaction or the BTC Portfolio.


        Merger proceeds are expected to be disbursed to IPT's stockholders within five business days following closing. Merger proceeds will be sent in accordance with the current instructions for the applicable stockholder's account.

What's next?

        The board of directors of IPT has unanimously approved the merger. The transaction is contingent on the approval by stockholders holding a majority of IPT's outstanding common stock and, subject to the satisfaction or waiver of certain other closing conditions, the transaction currently is expected to close in the fourth quarter of 2019 (but no later than March 31, 2020).

        IPT expects to file with the Securities and Exchange Commission (the SEC) and mail or otherwise provide to its stockholders a proxy statement and other relevant materials, and subsequently hold a meeting of its stockholders to obtain the requisite stockholder approval for the merger transaction. Once we mail the proxy to the stockholders, it is expected that the stockholders will have approximately 30-45 days to review, respond and vote, subject to further extension.

        BEFORE MAKING ANY VOTING DECISION, IPT'S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS FILED WITH THE SEC OR INCORPORATED BY REFERENCE THEREIN IN CONNECTION WITH THE PROPOSED MERGER (WHICH MAY DIFFER FROM THIS LETTER) BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER AND THE PARTIES TO THE PROPOSED MERGER.

Can I still redeem?

        In connection with this announcement, effective immediately, IPT has suspended both its Share Redemption Program (the SRP) and Distribution Reinvestment Plan (the DRIP). If you are a current participant in the DRIP, a form is available on our website or from your financial advisor which will enable you to provide us information to pay future cash distributions directly to your bank account.

        Upon completion of the merger transaction, IPT will have achieved its stated investment objectives of providing consistent current income and value creation through active asset management of its properties, culminating in a successful liquidity event for its stockholders. We thank you for your support.

Sincerely,

Evan Zucker
Chairman and Director


Additional Information about the Proposed Transaction and Where to Find It

        In connection with the proposed merger, IPT 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 IPT 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 IPT with the SEC, may be obtained free of charge at the SEC's web site at www.sec.gov and IPT's website at www.industrialpropertytrust.com. In addition, stockholders may obtain free copies of the proxy statement and other documents filed by IPT with the SEC (when available) by directing a written request to the following address: Industrial Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        IPT, Industrial Property Advisors LLC, IPT's external advisor, and their respective executive officers and directors may be deemed to be participants in the solicitation of proxies from the stockholders of IPT in connection with the merger. Information about these persons and their ownership of IPT's common stock is set forth in IPT's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of IPT, Industrial Property Advisors LLC and their respective executive officers and directors in the merger by reading the proxy statement regarding the merger when it becomes available.

Forward-Looking Statements

        This communication contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of 1995. 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 IPT 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 IPT 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 IPT's ongoing business operations due to the transaction; (iv) the effect of the announcement of the merger on the ability of IPT 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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against IPT and others related to the merger agreement; (vii) IPT's ability to effectuate a transaction involving its interest in its unconsolidated joint venture partnerships in accordance with the merger agreement on satisfactory terms or at all; (viii) the risk that the merger, or the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of IPT to implement its operating strategy; (x) IPT's ability to manage planned growth; (xi) changes in economic cycles; and (xii) competition within the real estate industry.

        In addition, these forward-looking statements reflect IPT's views as of the date on which such statements were made. IPT anticipates that subsequent events and developments may cause its views to change. These forward-looking statements should not be relied upon as representing IPT '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 IPT or any other person that the results or conditions described in such statements or the objectives and plans of IPT will be achieved. Additional factors that could cause actual results to differ materially from these forward-looking statements are listed from time to time in IPT's SEC reports, including, but not limited to, the "Risk Factors" section of IPT's Annual Report on Form 10-K for the fiscal year ended December 31, 2018, which was filed with the SEC on March 6, 2019 as amended by IPT's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. IPT expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrences.




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Exhibit 99.3

Industrial Property Trust Inc.
Q&A Regarding Merger Transaction

(i)
Why is Industrial Property Trust Inc. being sold?

We believe this transaction makes sense for our stockholders given the current market environment. It allows our stockholders to realize the value we have created within our wholly-owned portfolio and deliver returns to our stockholders in a timely manner. The industrial sector continues to be one of the strongest in commercial real estate with record low vacancies and demand outpacing supply. Given the strength of the sector, not only do we plan to continue to develop and acquire assets for other portfolios, we will continue to create products that make sense for investor needs and the market cycle.

(ii)
Who is expected to acquire IPT?

IPT, a leading U.S. industrial real estate investment trust, has entered into a merger agreement with Prologis, Inc., a global leader in logistics real estate, pursuant to which a subsidiary of Prologis will merge with and into IPT in exchange for receipt by IPT's stockholders of the cash purchase price.

Prologis, Inc. (PLD) is the global leader in logistics real estate with a focus on high-barrier, high-growth markets. As of March 31, 2019, Prologis owned or had investments in, on a wholly owned basis or through co-investment ventures, properties and development projects expected to total approximately 772 million square feet (72 million square meters) in 19 countries. Prologis leases modern distribution facilities to a diverse base of approximately 5,100 customers. These facilities assist the efficient distribution of goods for the world's best business and brands.

(iii)
What will Prologis acquire in the merger transaction?

Prologis will acquire IPT's wholly-owned portfolio. The wholly-owned assets represent 236 properties located across 24 geographical areas. The 37.5 million square feet of industrial assets are currently 97% leased. IPT is currently exploring options permitted by the merger agreement for its ownership of the assets held in two build-to-core joint ventures, which we refer to as the BTC Portfolio.

(iv)
What is the BTC Portfolio?

IPT currently, directly or indirectly, owns and manages, through its minority ownership interests in two joint venture partnerships, a real estate portfolio that consists of 52 buildings totaling approximately 12.5 million square feet (the BTC Portfolio). IPT's ownership share of the BTC Portfolio's gross real estate was valued at approximately $295 million, at the time of IPT's most recent appraisal as of November 30, 2018.

(v)
What are the alternatives that IPT is considering for the BTC Portfolio?

IPT is currently exploring alternatives for the BTC Portfolio which include (a) stockholders receiving an equity interest in a new entity holding the BTC Portfolio, (b) continued equity interest in IPT with solely the BTC Portfolio remaining after the merger, or (c) a separate sale of the BTC Portfolio.

(vi)
When will a determination be made regarding the BTC Portfolio?

One of the alternatives described above is expected to be identified within the next 30 days, which will be at the latest August 14, 2019.


(vii)
Why was the BTC Portfolio not included in the merger?

We have not included the BTC Portfolio in the merger because it is a small subset of IPT's total assets and the BTC Portfolio has not been fully stabilized.

(viii)
What price per share will stockholders receive from the merger transaction and what is the value per share of the BTC Portfolio?

IPT currently estimates, based on the per share cash consideration to be paid in the merger, that stockholders may receive a net adjusted amount of approximately $12.18 per share as total consideration for their shares. This is a preliminary estimate and is subject to final adjustments as contemplated in the merger agreement related to the BTC Portfolio, and is subject to any withholding required under applicable tax law. In addition, based on the prior valuation described above and with certain adjustments, the BTC Portfolio net value would have been an estimated net $1.08 per share.

In the future, these values will likely differ, perhaps materially, from these estimates based on, among other things, an updated valuation of the BTC Portfolio and potential transaction expenses related to the BTC Portfolio. However, when added to the estimated net per share merger proceeds, this results in a total current estimate of approximately $13.26 in net value per share. There can be no assurance regarding the amount of cash that ultimately will be distributed to IPT stockholders in connection with either the merger transaction or the BTC Portfolio.

(ix)
What is the difference between the most recent NAV of $12.33 per share and the distribution that IPT currently estimates at $12.18 per share?

The numbers are not comparable. The $12.18 per share is the net adjusted amount we currently estimate will be distributed to stockholders as a result of the merger acquisition of only IPT's wholly-owned portfolio excluding the BTC Portfolio. The $12.33 per share was IPT's estimated net asset value as of November 30, 2018 and included IPT's interest in the BTC Portfolio. The 2018 estimated NAV per share was determined in accordance with our valuation policy, utilizing guidelines established by the Institute for Portfolio Alternatives, which excludes transaction costs and disposition fees.

(x)
What terms and conditions need to be met in order to close the transaction?

The completion of the merger is subject to various closing conditions, including, among others, (a) approval of the merger by stockholders holding a majority of IPT's outstanding common stock, (b) the accuracy of certain representations and warranties of IPT and the purchaser, subject to certain materiality exceptions, (c) IPT and the purchaser having performed their material obligations under the merger agreement in all material respects, (d) the absence of a material adverse effect on IPT, and (e) the receipt of tax opinions from IPT's outside counsel related to the status of IPT as a real estate investment trust.

(xi)
How long is the stockholder proxy vote process anticipated to run?

Once we mail the proxy statement to the stockholders, it is expected that the stockholders will have approximately 30 to 45 days to review, respond and vote, subject to further extension.

(xii)
When is the transaction anticipated to close?

Subject to the satisfaction of applicable closing conditions (including the receipt of the requisite approval of IPT's stockholders), the transaction is currently anticipated to close in the fourth quarter of 2019, but has an outside close date of March 31, 2020.

2


(xiii)
How long after the closing of the merger should investors expect to receive their portion of the merger proceeds? Where will merger proceeds be sent?

Merger proceeds are expected to be disbursed to IPT's stockholders within approximately five business days following closing. Merger proceeds will be sent in accordance with the current instructions for the applicable stockholder's account.

(xiv)
Will dividends continue to be paid?

Dividends have been declared at a quarterly rate of US$0.1425 per share by the board for the third quarter, and they are expected to be paid no later than October 15, 2019.

(xv)
What is the status of IPT's DRIP and SRP program?

In connection with the announcement of the merger transaction, we also announced the suspension of both the distribution reinvestment program (the "DRIP") and the share redemption program (the "SRP") effective beginning with the third quarter of 2019.

(xvi)
Who is Black Creek Group?

Black Creek Group is an affiliate of the sponsor of the investment platform, Industrial Property Trust. Black Creek Group is an experienced real estate investment management and development firm that has bought or built more than $19 billion of investments over its more than 25-year history. The firm manages diverse investment offerings across the spectrum of commercial real estate—including office, industrial, retail and multifamily—providing a range of investment solutions for both institutional and wealth management channels. Black Creek Group has nine offices across North America with more than 300 professionals.

Additional Information about the Proposed Transaction and Where to Find It

        In connection with the proposed merger, IPT 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 IPT 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 IPT with the SEC, may be obtained free of charge at the SEC's web site at www.sec.gov and IPT's website at www.industrialpropertytrust.com. In addition, stockholders may obtain free copies of the proxy statement and other documents filed by IPT with the SEC (when available) by directing a written request to the following address: Industrial Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        IPT, Industrial Property Advisors LLC, IPT's external advisor, and their respective executive officers and directors may be deemed to be participants in the solicitation of proxies from the stockholders of IPT in connection with the merger. Information about these persons and their ownership of IPT's common stock is set forth in IPT's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of IPT, Industrial Property Advisors LLC and their respective executive officers and directors in the merger by reading the proxy statement regarding the merger when it becomes available.

3


Forward-Looking Statements

        This communication contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of 1995. 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 IPT 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 IPT 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 IPT's ongoing business operations due to the transaction; (iv) the effect of the announcement of the merger on the ability of IPT 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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against IPT and others related to the merger agreement; (vii) IPT's ability to effectuate a transaction involving its interest in its unconsolidated joint venture partnerships in accordance with the merger agreement on satisfactory terms or at all; (viii) the risk that the merger, or the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of IPT to implement its operating strategy; (x) IPT's ability to manage planned growth; (xi) changes in economic cycles; and (xii) competition within the real estate industry.

        In addition, these forward-looking statements reflect IPT's views as of the date on which such statements were made. IPT anticipates that subsequent events and developments may cause its views to change. These forward-looking statements should not be relied upon as representing IPT '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 IPT or any other person that the results or conditions described in such statements or the objectives and plans of IPT will be achieved. Additional factors that could cause actual results to differ materially from these forward-looking statements are listed from time to time in IPT's SEC reports, including, but not limited to, the "Risk Factors" section of IPT's Annual Report on Form 10-K for the fiscal year ended December 31, 2018, which was filed with the SEC on March 6, 2019 as amended by IPT's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. IPT expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrences.

4




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Exhibit 99.4

Subject: Industrial Property Trust to sell Portfolio of Assets to Prologis

        We are very pleased to inform you that Industrial Property Trust Inc. (IPT), an investment platform sponsored by Black Creek Group, has entered into a definitive merger agreement pursuant to which Prologis, Inc. (NYSE: PLD) will acquire IPT in an all cash deal valued at approximately $3.99 billion, subject to certain transaction costs. The merger will include 100% of IPT's wholly-owned real estate assets, but will exclude IPT's ownership interests in the BTC portfolio described below. The wholly-owned assets represent 37.5 million square feet in 236 properties located across 24 geographical areas and are currently 97% leased.

        IPT also has interests in two build-to-core joint ventures (the BTC Portfolio). IPT's ownership share of the BTC Portfolio's gross real estate was valued at approximately $295 million, at the time of their most recent appraisal as of November 30, 2018. The BTC Portfolio is not part of the merger with Prologis. Combining the consideration to be paid for the merger and the most recent appraised value of the BTC Portfolio, the total gross value, including debt, is approximately $4.3 billion.

        Pursuant to the merger agreement, a subsidiary of Prologis will acquire IPT's wholly-owned portfolio through a merger. Each Class A and Class T share of IPT will automatically be converted into the right to receive a net adjusted amount in cash currently estimated to be approximately $12.18 per share. This is a preliminary estimate and is subjected to final adjustments, as contemplated in the merger related to the BTC Portfolio, and is subject to any withholding required under applicable tax law.

        IPT is currently exploring alternatives for the BTC Portfolio. The determination of the outcome for the BTC Portfolio is expected to be made no later than 30-days from July 15, 2019 and will be communicated to stockholders in IPT's definitive proxy statement relating to the merger transaction.

        Merger proceeds are expected to be disbursed to IPT's stockholders within five business days following closing. Merger proceeds will be sent in accordance with the current instructions for the applicable stockholder's account.

        Subject to the satisfaction of applicable closing conditions (including the receipt of the requisite approval of IPT's stockholders through a proxy), the transaction is anticipated to close in the fourth quarter of 2019 (but no later than March 31, 2020).

        This information was announced today via a press release and Form 8-K filing. This information is all available publicly and we will begin directly communicating to shareholders once we begin the proxy process.

Please view the following links for all the available resources:
Press Release
Q&A
Shareholder Letter

        For more information, please contact your Black Creek Capital Markets team at 866.324.7348

Additional Information about the Proposed Transaction and Where to Find It

        In connection with the proposed merger, IPT 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 IPT 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 IPT with the SEC, may be obtained free of charge at the SEC's web site


at www.sec.gov and IPT's website at www.industrialpropertytrust.com. In addition, stockholders may obtain free copies of the proxy statement and other documents filed by IPT with the SEC (when available) by directing a written request to the following address: Industrial Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        IPT, Industrial Property Advisors LLC, IPT's external advisor, and their respective executive officers and directors may be deemed to be participants in the solicitation of proxies from the stockholders of IPT in connection with the merger. Information about these persons and their ownership of IPT's common stock is set forth in IPT's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of IPT, Industrial Property Advisors LLC and their respective executive officers and directors in the merger by reading the proxy statement regarding the merger when it becomes available.

Forward-Looking Statements

        This communication contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of 1995. 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 IPT 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 IPT 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 IPT's ongoing business operations due to the transaction; (iv) the effect of the announcement of the merger on the ability of IPT 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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against IPT and others related to the merger agreement; (vii) IPT's ability to effectuate a transaction involving its interest in its unconsolidated joint venture partnerships in accordance with the merger agreement on satisfactory terms or at all; (viii) the risk that the merger, or the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of IPT to implement its operating strategy; (x) IPT's ability to manage planned growth; (xi) changes in economic cycles; and (xii) competition within the real estate industry.

        In addition, these forward-looking statements reflect IPT's views as of the date on which such statements were made. IPT anticipates that subsequent events and developments may cause its views to change. These forward-looking statements should not be relied upon as representing IPT '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 IPT or any other person that the results or conditions described in such statements or the objectives and plans of IPT will be achieved. Additional factors that could cause actual results to differ materially from these forward-looking statements are listed from time to time in IPT's SEC reports, including, but not limited to, the "Risk Factors" section of IPT's Annual Report on Form 10-K for the fiscal year ended December 31, 2018, which was filed with the SEC on March 6, 2019 as amended by IPT's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. IPT expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrence.


Subject: Industrial Property Trust to sell Portfolio of Assets to Prologis

        We are very pleased to inform you that Industrial Property Trust Inc. (IPT), an investment platform sponsored by Black Creek Group, has entered into a definitive merger agreement pursuant to which Prologis, Inc. (NYSE: PLD) will acquire IPT in an all cash deal valued at approximately $3.99 billion, subject to certain transaction costs. The merger will include 100% of IPT's wholly-owned real estate assets. The wholly-owned assets represent 37.5 million square feet in 236 properties located across 24 geographical areas and are currently 97% leased.

        With more than 300 employees and 7 offices in the U.S., Black Creek Group's commitment to creating high-quality portfolios that span real estate sectors is unwavering. This is demonstrated through our more than 25-year history, in which we have sponsored 24 investment platforms and have taken six of those full cycle through either a liquidity event or an IPO on the New York Exchange.

        We remain active across all asset classes—currently owning and operating more than 1,400 properties within the industrial, multifamily, office and retail sectors—and we continue to believe that industrial is one of the strongest classes in commercial real estate and plan to develop and acquire long-term assets within the sector.

        The press release regarding the transaction can be found here [link].

        We look forward to partnering together in the future.

Additional Information about the Proposed Transaction and Where to Find It

        In connection with the proposed merger, IPT 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 IPT 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 IPT with the SEC, may be obtained free of charge at the SEC's web site at www.sec.gov and IPT's website at www.industrialpropertytrust.com. In addition, stockholders may obtain free copies of the proxy statement and other documents filed by IPT with the SEC (when available) by directing a written request to the following address: Industrial Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        IPT, Industrial Property Advisors LLC, IPT's external advisor, and their respective executive officers and directors may be deemed to be participants in the solicitation of proxies from the stockholders of IPT in connection with the merger. Information about these persons and their ownership of IPT's common stock is set forth in IPT's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of IPT, Industrial Property Advisors LLC and their respective executive officers and directors in the merger by reading the proxy statement regarding the merger when it becomes available.

Forward-Looking Statements

        This communication contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of 1995. 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 IPT 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 IPT 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 IPT's ongoing business operations due to the transaction; (iv) the effect of the announcement of the merger on the ability of IPT 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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against IPT and others related to the merger agreement; (vii) IPT's ability to effectuate a transaction involving its interest in its unconsolidated joint venture partnerships in accordance with the merger agreement on satisfactory terms or at all; (viii) the risk that the merger, or the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of IPT to implement its operating strategy; (x) IPT's ability to manage planned growth; (xi) changes in economic cycles; and (xii) competition within the real estate industry.

        In addition, these forward-looking statements reflect IPT's views as of the date on which such statements were made. IPT anticipates that subsequent events and developments may cause its views to change. These forward-looking statements should not be relied upon as representing IPT '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 IPT or any other person that the results or conditions described in such statements or the objectives and plans of IPT will be achieved. Additional factors that could cause actual results to differ materially from these forward-looking statements are listed from time to time in IPT's SEC reports, including, but not limited to, the "Risk Factors" section of IPT's Annual Report on Form 10-K for the fiscal year ended December 31, 2018, which was filed with the SEC on March 6, 2019 as amended by IPT's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. IPT expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrence.




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Exhibit 99.5

Subject: Industrial Property Trust to sell Portfolio of Assets to Prologis

        We are very pleased to inform you that Industrial Property Trust Inc. (IPT), an investment platform sponsored by Black Creek Group, has entered into a definitive merger agreement pursuant to which Prologis, Inc. (NYSE: PLD) will acquire IPT in an all cash deal valued at approximately $3.99 billion, subject to certain transaction costs. The merger will include 100% of IPT's wholly-owned real estate assets, but will exclude IPT's ownership interests in the BTC portfolio described below. The wholly-owned assets represent 37.5 million square feet in 236 properties located across 24 geographical areas and are currently 97% leased.

        IPT also has interests in two build-to-core joint ventures (the BTC Portfolio). IPT's ownership share of the BTC Portfolio's gross real estate was valued at approximately $295 million, at the time of their most recent appraisal as of November 30, 2018. The BTC Portfolio is not part of the merger with Prologis. Combining the consideration to be paid for the merger and the most recent appraised value of the BTC Portfolio, the total gross value, including debt, is approximately $4.3 billion.

        Pursuant to the merger agreement, a subsidiary of Prologis will acquire IPT's wholly-owned portfolio through a merger. Each Class A and Class T share of IPT will automatically be converted into the right to receive a net adjusted amount in cash currently estimated to be approximately $12.18 per share. This is a preliminary estimate and is subject to final adjustment as contemplated in the merger agreement in connection with the BTC Portfolio and is subject to any withholding required under applicable tax law.

        IPT is currently exploring alternatives for the BTC Portfolio. The determination of the outcome for the BTC Portfolio is expected to be made no later than 30-days from July 15, 2019 and will be communicated to stockholders in IPT's definitive proxy statement relating to the merger transaction.

        Merger proceeds are expected to be disbursed to IPT's stockholders within five business days following closing. Merger proceeds will be sent in accordance with the current instructions for the applicable stockholder's account.

        Subject to the satisfaction of applicable closing conditions (including the receipt of the requisite approval of IPT's stockholders through a proxy), the transaction is anticipated to close in the fourth quarter of 2019 (but no later than March 31, 2020).

        This information was announced today via a press release that will likely get picked up in the news and your team may see it. We wanted to let you know prior to communicating to advisors and investors. We will begin communicating this information to everyone today and wanted to make sure you had the same information they will get.

        Please view the following links for all the available resources:

Press Release
Q&A
Advisor Letter
Shareholder Letter

        We will be staying in touch with you and letting you know how the merger progresses, information on the proxy and when that will take place over the coming weeks and months. Please let me know if you need any further detail or resources.

Best,
Tom/Dean/Ryan

1


Additional Information about the Proposed Transaction and Where to Find It

        In connection with the proposed merger, IPT 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 IPT 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 IPT with the SEC, may be obtained free of charge at the SEC's web site at www.sec.gov and IPT's website at www.industrialpropertytrust.com. In addition, stockholders may obtain free copies of the proxy statement and other documents filed by IPT with the SEC (when available) by directing a written request to the following address: Industrial Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        IPT, Industrial Property Advisors LLC, IPT's external advisor, and their respective executive officers and directors may be deemed to be participants in the solicitation of proxies from the stockholders of IPT in connection with the merger. Information about these persons and their ownership of IPT's common stock is set forth in IPT's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of IPT, Industrial Property Advisors LLC and their respective executive officers and directors in the merger by reading the proxy statement regarding the merger when it becomes available.

Forward-Looking Statements

        This communication contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of 1995. 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 IPT 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 IPT 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 IPT's ongoing business operations due to the transaction; (iv) the effect of the announcement of the merger on the ability of IPT 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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against IPT and others related to the merger agreement; (vii) IPT's ability to effectuate a transaction involving its interest in its unconsolidated joint venture partnerships in accordance with the merger agreement on satisfactory terms or at all; (viii) the risk that the merger, or the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of IPT to implement its operating strategy; (x) IPT's ability to manage planned growth; (xi) changes in economic cycles; and (xii) competition within the real estate industry.

2


        In addition, these forward-looking statements reflect IPT's views as of the date on which such statements were made. IPT anticipates that subsequent events and developments may cause its views to change. These forward-looking statements should not be relied upon as representing IPT '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 IPT or any other person that the results or conditions described in such statements or the objectives and plans of IPT will be achieved. Additional factors that could cause actual results to differ materially from these forward-looking statements are listed from time to time in IPT's SEC reports, including, but not limited to, the "Risk Factors" section of IPT's Annual Report on Form 10-K for the fiscal year ended December 31, 2018, which was filed with the SEC on March 6, 2019 as amended by IPT's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. IPT expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrences.

3




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Exhibit 99.6

Subject: Industrial Property Trust to sell Portfolio of Assets to Prologis

        We are very pleased to inform you that Industrial Property Trust Inc. (IPT), an investment platform sponsored by Black Creek Group, has entered into a definitive merger agreement pursuant to which Prologis, Inc. (NYSE: PLD) will acquire IPT in an all cash deal valued at approximately $3.99 billion, subject to certain transaction costs. The merger will include 100% of IPT's wholly-owned real estate assets. The wholly owned assets represent 37.5 million square feet in 236 properties located across 24 geographical areas and are currently 97% leased.

        With more than 300 employees and 7 offices in the U.S., Black Creek Group's commitment to creating high-quality portfolios that span real estate sectors is unwavering. This is demonstrated through our more than 25-year history, in which we have sponsored 24 investment platforms and have taken six of those full cycle through either a liquidity event or an IPO on the New York Exchange.

        Currently, owning and operating more than 1,400 properties that span industrial, multifamily, retail and office, we plan to remain active across all asset classes. We continue to believe that industrial is one of the strongest classes in commercial real estate and plan to develop and acquire long-term assets within the sector.

        We look forward to continuing to develop our relationships with the real estate community and partnering together in the future.

        The press release regarding the transaction can be found here [link].

Additional Information about the Proposed Transaction and Where to Find It

        In connection with the proposed merger, IPT 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 IPT 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 IPT with the SEC, may be obtained free of charge at the SEC's web site at www.sec.gov and IPT's website at www.industrialpropertytrust.com. In addition, stockholders may obtain free copies of the proxy statement and other documents filed by IPT with the SEC (when available) by directing a written request to the following address: Industrial Property Trust Inc., Attention: Investor Relations, 518 Seventeenth Street, 17th Floor, Denver, CO 80202.

        IPT, Industrial Property Advisors LLC, IPT's external advisor, and their respective executive officers and directors may be deemed to be participants in the solicitation of proxies from the stockholders of IPT in connection with the merger. Information about these persons and their ownership of IPT's common stock is set forth in IPT's Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018, which was filed with the SEC on April 10, 2019. Stockholders may obtain additional information regarding the direct and indirect interests of IPT, Industrial Property Advisors LLC and their respective executive officers and directors in the merger by reading the proxy statement regarding the merger when it becomes available.

Forward-Looking Statements

        This communication contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform of 1995. 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 IPT 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 IPT 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 IPT's ongoing business operations due to the transaction; (iv) the effect of the announcement of the merger on the ability of IPT 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, including providing financing under current financial market conditions; (vi) the outcome of any legal proceedings that may be instituted against IPT and others related to the merger agreement; (vii) IPT's ability to effectuate a transaction involving its interest in its unconsolidated joint venture partnerships in accordance with the merger agreement on satisfactory terms or at all; (viii) the risk that the merger, or the other transactions contemplated by the merger agreement may not be completed in the time frame expected by the parties or at all; (ix) the ability of IPT to implement its operating strategy; (x) IPT's ability to manage planned growth; (xi) changes in economic cycles; and (xii) competition within the real estate industry.

        In addition, these forward-looking statements reflect IPT's views as of the date on which such statements were made. IPT anticipates that subsequent events and developments may cause its views to change. These forward-looking statements should not be relied upon as representing IPT '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 IPT or any other person that the results or conditions described in such statements or the objectives and plans of IPT will be achieved. Additional factors that could cause actual results to differ materially from these forward-looking statements are listed from time to time in IPT's SEC reports, including, but not limited to, the "Risk Factors" section of IPT's Annual Report on Form 10-K for the fiscal year ended December 31, 2018, which was filed with the SEC on March 6, 2019 as amended by IPT's Form 10-K/A filed with the SEC on April 10, 2019, the "Risk Factors" section of subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. IPT expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrence.




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