Promissory Note



 EXHIBIT 10.40 
 PROMISSORY NOTE 

 

 $23,440,000.00



 January 27, 2011


 

  
 FOR VALUE
RECEIVED, the undersigned, IIT HAGERSTOWN DISTRIBUTION CENTER LLC, a Delaware limited liability company (“Maker”), hereby promises to pay to the order of ING USA ANNUITY AND LIFE INSURANCE COMPANY, an Iowa
corporation, or any subsequent holder hereof (“Payee”), at the office of Payee, c/o ING Investment Management LLC, 5780 Powers Ferry Road, NW, Suite 300, Atlanta, Georgia 30327-4349, or at such other place as Payee may from
time to time designate in writing, the principal sum of TWENTY-THREE MILLION FOUR HUNDRED FORTY THOUSAND AND NO/100 DOLLARS ($23,440,000.00) and interest thereon from and after the date of disbursement hereunder at four and eighty-one one-hundredths
percent (4.81%) per annum (“Note Rate”), both principal and interest to be paid in lawful money of the United States of America, as follows: 

(i) Interest only from and including the date of this Promissory Note (the “Note”) through and
including January 31, 2011, shall be paid on February 1, 2011 or, at the option of Payee, on the date hereof; and 
 (ii) Equal payments of principal and interest shall be made in successive monthly installments commencing on March 1, 2011, and continuing on the first day of each and every calendar month thereafter
up to and including November 1, 2040 (the “Maturity Date”) or, upon exercise of Payee’s right under the following paragraph, the Call Date (as hereinafter defined) as to which Payee has exercised its right, all
but the final installment thereof to be in the amount of One Hundred Twenty-Three Thousand One Hundred Twenty-Three and 28/100 Dollars ($123,123.28), and the final installment payable on the Maturity Date, or, if earlier, the exercised Call Date to
be in the full amount of outstanding principal of this Note, interest and all other sums remaining unpaid hereunder and under the Mortgage (as hereinafter defined). 
 Notwithstanding any provisions of this Note to the contrary, the Payee reserves the right (the “Call Option”) to declare the entire amount of outstanding principal of this Note,
interest and all other sums remaining unpaid hereunder and under the Mortgage to be due and payable on any of the following dates (each referred to as a “Call Date,” and collectively the “Call Dates”):

 (i) November 1, 2020; and 

(ii) November 1, 2030. 
 Such right shall be exercised by Payee, in its sole and absolute discretion, by giving written notice to Maker at least three (3) months prior to the Call Date as to which Payee is electing, which
notice shall refer to this Note and state the Call Date elected by Payee. The exercise of such right by Payee shall not relieve Maker of its obligation to make scheduled payments hereunder, or to pay any other sums due and owing hereunder, between
the date of such notice 







 
and the elected Call Date. The exercise of such right by Payee will result in the original principal amount of this Note not having been fully amortized by the payment of the monthly installments
hereunder prior to the exercised Call Date, and Maker shall be obligated to make a payment of the entire amount of outstanding principal of this Note and interest and all other sums remaining unpaid hereunder and under the Mortgage on the Call Date.

 All payments on account of the Indebtedness (as hereinafter defined) shall be applied: (i) first, to further advances,
if any, made by the Payee as provided in the Loan Documents (as hereinafter defined); (ii) next, to any Late Charge (as hereinafter defined); (iii) next, to interest at the Default Rate (as hereinafter defined), if applicable;
(iv) next, to the Prepayment Premium (as hereinafter defined), if applicable; (v) next, to interest at the Note Rate on the unpaid principal balance of this Note unless interest at the Default Rate is applicable; and (vi) last, to
reduce the unpaid principal balance of this Note. Interest shall be calculated on the basis of a year consisting of 360 days and with twelve thirty-day months, except that interest due and payable for less than a full month shall be calculated by
multiplying the actual number of days elapsed in such period by a daily interest rate based on a 360-day year. As used herein, the term “Indebtedness” shall mean the aggregate of the unpaid principal amount of this Note,
accrued interest, all Late Charges, any Prepayment Premium, and advances made by Payee under the Loan Documents. 
 In the event
any installment of principal or interest due hereunder (other than any payment due at maturity or upon acceleration), or any escrow fund payment for real estate taxes, assessments, other similar charges or insurance premiums due under the Mortgage
shall be more than ten (10) days overdue, Maker shall pay to the holder hereof a late charge (“Late Charge”) of four cents ($.04) for each dollar so overdue or, if less, the maximum amount permitted under applicable law,
in order to defray part of the cost of collection and of handling delinquent payments. 
 The terms of this Note are expressly
limited so that in no event whatsoever shall the amount paid or agreed to be paid to the Payee exceed the highest lawful rate of interest permissible under applicable law. If, from any circumstances whatsoever, fulfillment of any provision hereof or
any other documents securing the Indebtedness at the time performance of such provision shall be due, shall involve the payment of interest exceeding the highest rate of interest permitted by law which a court of competent jurisdiction may deem
applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the highest lawful rate of interest permissible under applicable law; and if for any reason whatsoever Payee shall ever receive as interest an
amount which would be deemed unlawful, such interest shall be applied to the payment of the last maturing installment or installments of the principal portion of the Indebtedness (whether or not then due and payable) and not to the payment of
interest. 
 Payment of this Note is secured by a Purchase Money Deed of Trust, Security Agreement, Financing Statement and
Fixture Filing (the “Mortgage”) dated on or about this same date by Maker, as grantor, for the benefit of Payee, as beneficiary, encumbering certain real estate and other property interests situated in Washington County,
Maryland and more particularly described in the Mortgage (the “Premises”). This Note, the Mortgage, that certain Loan Agreement (the “Loan Agreement”) by and between Maker and Payee dated of even date


  
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herewith, and all other instruments now or hereafter evidencing, securing or guarantying the loan evidenced hereby are sometimes collectively referred to as the “Loan
Documents”. The Mortgage contains “due on sale or further encumbrance” provisions which, together with all other terms of the Mortgage, are incorporated herein by this reference. 

Except as expressly stated in this Note and in Sections 3.07 of the Loan Agreement and the loan agreements applicable to the
Affiliate Loans (as such term is defined in the Loan Agreement) and 3.08(a) of the Loan Agreement, there shall be no right to prepay the principal portion of the Indebtedness. Maker reserves, however, the privilege to prepay, in full but not
in part, the principal portion of the Indebtedness on February 1, 2012 (the “Lockout Period”) and at any time thereafter, upon sixty (60) days prior written notice to the Payee (provided that such notice may be
revoked by Maker by delivery of written notice to Payee at any time prior to the installment payment date on which the prepayment is scheduled), and payment of a premium (the “Prepayment Premium”) equal to (except as
otherwise hereinafter provided) the greater of: 
 (i) an amount (the “Treasury Obligation
Amount”) equal to the sum (the “Yield Maintenance Calculation”) of (a) the present value of the scheduled monthly installments on this Note from the date of prepayment to the Maturity Date or, if earlier,
the next applicable Call Date, and (b) the present value of the amount of principal and interest due on the Maturity Date or, if earlier, the next applicable Call Date (assuming all scheduled monthly installments due prior thereto were made
when due) minus (c) the outstanding principal balance of this Note as of the date of prepayment. The present values described in clauses (a) and (b) shall be computed on a monthly basis as of the date of prepayment, discounted at the
yield of the U.S. Treasury obligation closest in maturity to the Maturity Date or, if earlier, the next applicable Call Date, as published in the Federal Reserve Statistical Release H.15 (519) Selected Interest Rates listed under the U.S.
Governmental Securities, Treasury Constant Maturities (“Treasury Rate”) plus fifty (50) basis points. The Treasury Rate so used shall be the “Week Ending” yield for the week immediately preceding the date of
such prepayment. If no Treasury Constant Maturities are published for the specific length of time from the date of prepayment of this Note to the Maturity Date or to the next applicable Call Date, whichever is next to occur, the Treasury Rate that
shall be used shall be computed based on a linearly interpolated interest rate yield between the two Treasury Constant Maturities that (i) most closely correspond with the Maturity Date, or the next applicable Call Date, whichever is next to
occur, as of the date of such prepayment and (ii) bracket in time such Maturity Date, or the next applicable Call Date, one being before the Maturity Date, or the next applicable Call Date, and the other being after the Maturity Date, or the
next applicable Call Date. If for any reason the above Treasury Rate is no longer published in the Federal Reserve Statistical Release H.15 (519) Selected Interest Rates, the Treasury Rate shall be based on the yields reported in another
publication of comparable reliability and institutional acceptance as selected by the Payee in its sole and absolute discretion which most closely approximates yields in percent per annum of actively traded U.S. Treasuries of varying maturities. The
Treasury Obligation Amount is intended to be that amount which, together with the amount prepaid, shall be sufficient to enable Payee to invest in a 

  
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U.S. Treasury obligation for the remaining term of this Note to provide the same effective yield on the amount paid from the date of prepayment to the Maturity Date or, if earlier, the next
applicable Call Date (such yield being reduced by the effect of adding fifty (50) additional basis points to the yield of U.S. Treasury obligations used for the purpose of the discount factors hereinbefore provided) as would have been the yield
on such amount under this Note if such amount had not been prepaid; or 
 (ii) one percent (1.0%) of the
outstanding principal balance of this Note as of the prepayment date. 
 Except as provided in the next two (2) sentences,
in no event shall the amount prepaid be less than the total amount of the then outstanding principal and accrued and unpaid interest thereon plus one percent (1%) of the then outstanding principal. Notwithstanding the Lockout Period, in the
event of acceleration of this Note at any time and subsequent involuntary or voluntary prepayment (even if during the period in which no prepayment is permitted), the Prepayment Premium shall be payable except for a prepayment which results from
application of proceeds from insured damage, condemnation or other taking of the Premises. No Prepayment Premium shall be due for (a) any prepayment which is made within ninety (90) days prior to the Maturity Date or a Call Date
(regardless of whether Payee has exercised its Call Option); or (b) any application of any Cross Paydown (as defined in the Loan Agreement or loan agreements applicable to the Affiliate Loans (as such term is defined in the Loan Agreement)); or
(c) application of proceeds from insured damage, condemnation or other taking of the Premises. In the event the Prepayment Premium was ever construed by a court having jurisdiction thereof to be an interest payment, the Prepayment Premium shall
not exceed an amount equal to the excess, if any, of (i) interest calculated at the highest rate permitted by applicable law, as construed by courts having jurisdiction thereof, on the principal balance of this Note from time to time
outstanding from the date thereof to the date of such payment, less (ii) interest theretofore paid on this Note. The Lockout Period shall not apply to a partial prepayment of principal of this Note resulting from the application of proceeds
from casualty or condemnation of the Premises or any portion thereof. 
 In the event Payee applies any insurance proceeds or
condemnation proceeds to the reduction of the principal portion of the Indebtedness in accordance with the terms of the Mortgage, then no Prepayment Premium shall be due or payable as a result of such application and provided a datedown title
insurance endorsement satisfactory to Payee is issued with respect to the mortgagee title insurance policies in favor of Payee with respect to the Premises, the monthly installments due and payable hereunder thereafter shall be modified to amortize
the principal portion of the Indebtedness remaining unpaid after such application over the remaining term of the amortization period then in effect. 
 If the maturity of the Indebtedness is accelerated by Payee as a consequence of the occurrence of an Event of Default at any time during this Lockout Period or at any other time a Prepayment Premium would
otherwise be due, the Maker agrees that an amount equal to the Prepayment Premium (determined as if prepayment were made on the date of acceleration) shall be added to the balance of unpaid principal and interest then outstanding, and that the
Indebtedness shall not be discharged except: (i) by payment of such Prepayment Premium, 

  
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together with the balance of principal and interest and all other sums then outstanding, if the Maker tenders payment of the Indebtedness prior to completion of a non-judicial foreclosure sale
(if applicable in the State of Maryland), judicial order or judgment of foreclosure sale; or (ii) by inclusion of such Prepayment Premium as a part of the Indebtedness in any such completion of a non-judicial foreclosure sale (if applicable in
the State of Maryland), judicial order or judgment of foreclosure. 
 It is hereby expressly agreed by Maker that time is of the
essence in the performance of this Note and that each of the following occurrences shall constitute a default (“Event of Default”) under this Note: 

(i) The failure of the Maker to: 
 (a) make any payment of principal or interest under this Note within ten (10) days after the same shall fall due, or 
 (b) comply with any of the other terms of this Note within thirty (30) days after written notice of such failure has been given by Payee to Maker or within such longer period of time, not to exceed
an additional sixty (60) days, as may be reasonably necessary to cure such non-compliance if Maker is diligently and with continuity of effort pursuing such cure and the failure is susceptible of cure within such additional sixty-day period.

 (ii) The failure of Maker to make payment of any amount due the Payee under any Loan Document other than this
Note, on the date the same shall fall due (including any applicable grace period). 
 (iii) The occurrence of any
breach, default, event of default or failure of performance (however denominated) under any Loan Document other than this Note, and the expiration of any applicable cure period without the same having been cured. 

From and after the date of the occurrence of any Event of Default and continuing until such Event of Default is fully cured (if Maker is
entitled under this Note to cure such default) or until this Note is paid in full, the Maker promises to pay interest on the principal balance of this Note then outstanding at the rate (the “Default Rate”) equal to the Note
Rate plus five percentage points (5%) per annum or, if less, the maximum rate permitted under applicable law. Interest at the Default Rate shall accrue on the amount of any judgment rendered hereon or in connection with any foreclosure of the
Mortgage. The Maker agrees that such additional interest which has accrued shall be paid at the time of and as a condition precedent to the curing of such Event of Default. During the existence of any such Event of Default Payee may apply payments
received on any amounts due hereunder or under the terms of any of the Loan Documents as Payee shall determine. 

  
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 Payee shall have the following rights, powers, privileges, options and remedies whenever any
Event of Default shall occur under this Note: 
 (i) To foreclose, or exercise any power of sale under, the
Mortgage. 
 (ii) To accelerate the maturity of the Indebtedness and declare the entire unpaid principal balance
of, and any unpaid interest then accrued on, this Note, together with any Prepayment Premium, without demand or notice of any kind to the Maker or any other person, to be immediately due and payable. 

(iii) To exercise any and all rights, powers, privileges, options and remedies available at law or in equity and as
provided in any of the Loan Documents. 
 Upon the occurrence of an Event of Default, the Maker expressly agrees to pay all
costs of collection and enforcement of every kind, including without limitation, all reasonable attorneys’ fees and expenses actually incurred, court costs, costs of title evidence and insurance, inspection and appraisal costs and expenses of
every kind incurred by Payee in connection with the protection or realization of any or all of the security for this Note, whether or not any lawsuit is filed with respect thereto. The occurrence of an Event of Default under this Note shall
constitute a default under each and all of the other Loan Documents. 
 The rights, powers, privileges, options and remedies of
Payee, as provided in this Note, in any of the Loan Documents, or otherwise available at law or in equity shall be cumulative and concurrent, and may be pursued singly, successively or together at the sole discretion of Payee, and may be exercised
as often as occasion therefor shall occur. No delay or discontinuance in the exercise of any right, power, privilege, option or remedy hereunder shall be deemed a waiver of such right, power, privilege, option or remedy, nor shall the exercise of
any right, power, privilege, option or remedy be deemed an election of remedies or a waiver of any other right, power, privilege, option or remedy. Without limiting the generality of the foregoing, the failure of the Payee after the occurrence of
any Event of Default to exercise Payee’s right to declare the Indebtedness remaining unmatured hereunder to be immediately due and payable shall not constitute a waiver of such right in connection with any future Event of Default. Acceleration
of maturity, once elected by Payee, may be, in Payee’s sole and absolute discretion rescinded by Payee’s written acknowledgment to that effect, but without limiting the foregoing the tender and acceptance of partial payment or partial
performance shall not, by itself, in any way affect or rescind such acceleration. 
 Maker waives presentment for payment,
demand, notice of nonpayment, notice of dishonor, protest of any dishonor, notice of protest, notice of intent to accelerate, notice of acceleration of maturity, and all other notices in connection with the delivery, acceptance, performance, default
or enforcement of the payment of this Note, except as otherwise provided herein or in the other Loan Documents, and agrees that if more than one the liability of each of them hereunder shall be joint, several and unconditional without regard to the
liability of any other party and shall not be in any manner affected by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee; and Maker consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to the release of any collateral given 

  
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to secure the payment hereof, or any part thereof, with or without substitution, and agrees that additional makers or guarantors may become parties hereto without notice to any of them or
affecting any of their liability hereunder. 
 Payee shall not by any acts of omission or commission be deemed to have waived
any rights or remedies hereunder unless such waiver is in writing and signed by Payee, and then only to the extent specifically set forth therein; a waiver in respect of one event shall not be construed as continuing or as a bar to the exercise or
waiver of such right or remedy in respect of a subsequent event. 
 All notices, demands, requests, and other communications
desired or required to be given hereunder (“Notices”) shall be in writing and shall be given by: (i) hand delivery to the address for Notices; (ii) delivery by overnight courier service to the address for Notices;
or (iii) sending the same by United States mail, postage prepaid, certified mail, return receipt requested, addressed to the address for Notices. 
 All Notices shall be deemed given and effective upon the earliest to occur of: (x) the hand delivery of such Notice to the address for Notices; (y) one business day after the deposit of such
Notice with an overnight courier service by the time deadline for next day delivery addressed to the address for Notices; or (z) three business days after depositing the Notice in the United States mail as set forth in (iii) above. All
Notices shall be addressed to the following addresses: 
  

			
	Maker:	  	 IIT Hagerstown Distribution Center LLC
 c/o Industrial Income Trust Inc.
 518 17th Street, Suite 1700
 Denver, Colorado 80202
 Attention: Ms. Lainie P. Minnick

		
	With a copy to:	  	 Greenberg Traurig, P.A.
 333
Avenue of the Americas
 Miami, Florida 33131
 Attention: Laura Gangemi Vignola, Esq.

		
	Payee:	  	 ING USA Annuity and Life Insurance Company
 c/o ING Investment Management LLC
 5780 Powers Ferry Road, NW, Suite 300

Atlanta, Georgia 30327-4349
 Attention: Mortgage
Loan Servicing Department

		
		  	 and

		
		  	 ING Investment Management LLC

5780 Powers Ferry Road, NW, Suite 300
 Atlanta,
Georgia 30327-4349
 Attention: Real Estate Law Department



  
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	With a copy to:	  	 Bryan Cave LLP
 One Atlantic
Center
 Fourteenth Floor
 1201 West
Peachtree Street, NW
 Atlanta, Georgia 30309-3488
 Attention: John R. Parks, Esq.


 or to such other persons or at such other place
as any party hereto may by Notice designate as a place for service of Notice. Provided, that the “copy to” Notice to be given as set forth above is a courtesy copy only; and a Notice given to such person is not sufficient to effect giving
a Notice to the principal party, nor does a failure to give such a courtesy copy of a Notice constitute a failure to give Notice to the principal party. 
 This Note shall be governed by and construed in accordance with the laws (excluding conflicts of laws rules) of the State of Florida. 

Subject to the terms of the next succeeding paragraph and notwithstanding anything to the contrary otherwise contained in this Note, but
without in any way releasing, impairing or otherwise affecting this Note or any of the other Loan Documents (including without limitation any guaranties or indemnification agreements), or the validity hereof or thereof, or the lien of the Mortgage,
it is agreed that Payee’s source of satisfaction of the Indebtedness and Maker’s other obligations hereunder and under the Loan Documents is limited to (a) the Premises and proceeds thereof, (b) rents, income, issues, proceeds
and profits arising out of the Premises, and (c) any separate guaranty or indemnification agreements guarantying or indemnifying Payee with respect to the payment of any amounts due hereunder and under the Loan Documents and/or Maker’s
performance hereunder and under the Loan Documents; provided, however, that nothing herein contained shall be deemed to be a release or impairment of said Indebtedness or the security therefor intended by the Mortgage, or be deemed to preclude Payee
from foreclosing the Mortgage or from enforcing any of Payee’s rights or remedies in law or in equity thereunder, or in any way or manner affecting Payee’s rights and privileges under any of the Loan Documents or any separate guaranty or
indemnification agreements guarantying Maker’s payment and/or performance hereunder and/or under the Loan Documents. 
 NOTWITHSTANDING
THE FOREGOING LIMITATION OF LIABILITY PROVISION, OR ANYTHING IN THIS NOTE TO THE CONTRARY, MAKER SHALL PAY, AND THERE SHALL AT NO TIME BE ANY LIMITATION ON MAKER’S PERSONAL LIABILITY FOR THE PAYMENT TO PAYEE OF: 

(i) the application of rents, security deposits, or other income, issues, profits, and revenues derived from the Premises
after the occurrence of an Event of Default to anything other than (a) normal and necessary operating expenses of the Premises or (b) the Indebtedness evidenced by this Note. It is understood that any rents collected more than one month in
advance as of the time of the Event of Default shall be considered to have been collected after the Event of Default; 

  
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 (ii) any loss, cost or damages actually incurred by Payee arising out of or
in connection with fraud or material misrepresentations to Payee by Maker (or by any of its general partners, officers, shareholders, members, or their employees, if applicable); 

(iii) any loss, cost or damages actually incurred by Payee arising out of or in connection with Maker’s use or
misapplication of (a) any proceeds paid under any insurance policies by reason of damage, loss or destruction to any portion of the Premises, or (b) proceeds or awards resulting from the condemnation or other taking in lieu of condemnation
of any portion of the Premises, for purposes other than those set forth in the Mortgage; 
 (iv) any loss, cost
or damages actually incurred by Payee arising out of or in connection with any waste of the Premises or any portion thereof and all reasonable costs incurred by Payee in order to protect the Premises (for purposes of this subparagraph, the term
“waste” means the commission of acts leading to permanent injury to the remainder or reversion or failure to exercise the ordinary care of a prudent person for the preservation of the Premises); 

(v) any taxes, assessments and insurance premiums for which Maker is liable under this Note, the Mortgage or any of the
other Loan Documents and which are paid by Payee and not reimbursed by tenants (but not the proportionate amount of any such taxes, assessments and insurance premiums which accrue following the date of foreclosure [plus any applicable redemption
period] or acceptance of a deed-in-lieu of foreclosure); 
 (vi) any loss, costs or damages actually incurred by
Payee arising out of or in connection with the breach of Maker’s covenants, obligations and liabilities contained in Paragraph 31 of the Mortgage and under the Environmental Indemnification Agreement dated of even date herewith executed by
Maker and Industrial Income Operating Partnership LP, a Delaware limited partnership (“Guarantor”), in favor of Payee; 
 (vii) any loss, cost or damages actually incurred by Payee to Payee arising out of or in connection with any construction lien, mechanic’s lien, materialman’s lien or similar lien against the
Premises arising out of acts or omissions of Maker, subject to Maker’s right to contest pursuant to the Loan Documents; 
 (viii) the total Indebtedness in the event that Maker or Guarantor voluntarily files a petition in bankruptcy or commences a case or insolvency proceeding under any provision or chapter of the Federal
Bankruptcy Code; 
 (ix) any loss, costs or damage, resulting from any act of Maker or its general partners,
members, shareholders, officers, directors, beneficiaries, and/or trustees to obstruct, delay or impede (a “Delay”) Payee from exercising any of its rights or remedies under the Loan Documents upon the occurrence of a
voluntary 

  
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bankruptcy proceeding or a monetary default provided Payee agrees that the interposition by Maker of a valid and meritious defense to Payee’s monetary suit for a payment under the Loan
Documents (other than principal and interest due under this Note) shall not constitute a Delay; 
 (x) the total
Indebtedness and the Loan Documents in the event that (a) Maker makes an unpermitted transfer of an interest in the Maker or in the Premises without the prior written approval of Payee, or (b) Maker makes an unpermitted mortgage, deed of
trust or similar encumbrance on the Premises or the holder of an ownership interest in Maker encumbers such interest, without the prior written approval of Payee; and 

(xi) all costs and fees, including without limitation reasonable attorney fees and costs, incurred by Payee in the
enforcement of subparagraphs (i) through (x) above. 
 With the exception of those items of liability specifically set forth in items
(i) through (xi) above, the lien of any judgment against Maker in any proceeding instituted on, under or in connection with this Note shall not extend to any property now or hereafter owned by Maker other than the interest of the Maker in
the Premises and the other security for the payment of this Note. 
 This Note, together with the other Loan Documents and the
certain Environmental Indemnification Agreement executed by Maker, constitute the entire agreement between the parties hereto pertaining to the subject matters hereof and thereof and supersede all negotiations, preliminary agreements and all prior
or contemporaneous discussions and understandings of the parties hereto in connection with the subject matters hereof and thereof. 
 THE PARTIES HERETO, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THEY
MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED ON OR ARISING OUT OF THIS AGREEMENT OR INSTRUMENT, OR ANY RELATED INSTRUMENT OR AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS, WHETHER ORAL
OR WRITTEN, OR ACTION OF ANY PARTY HERETO. NO PARTY SHALL SEEK TO CONSOLIDATE BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE
PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY PARTY HERETO EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL PARTIES. 
 Maker acknowledges receipt of a copy of this instrument at the time it was signed. 

  
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 IN WITNESS WHEREOF, the Maker has executed, sealed and delivered this Promissory Note as of
the day and date first above written. 
  

									
	IIT HAGERSTOWN DISTRIBUTION CENTER LLC, a Delaware limited liability company
		
	By:	 	IIT Real Estate Holdco LLC, a Delaware limited liability company, Sole Member 
			
		 	By:	 	Industrial Income Operating Partnership LP, a Delaware limited partnership, Sole Member 
				
		 		 	By:	 	Industrial Income Trust Inc., a Maryland corporation, General Partner
					
		 		 		 	By:	 	/s/ Thomas G. McGonagle
		 		 		 	Name:	 	Thomas G. McGonagle
		 		 		 	Title:	 	CFO



  
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