EXHIBIT 10.1
DEMAND PROMISSORY NOTE
February 1, 2000
ON DEMAND, FOR VALUE RECEIVED, the undersigned, Crest Net Lease, Inc.
a Delaware corporation ("Company"), HEREBY PROMISES TO PAY to the
order of Realty Income Corporation, a Maryland corporation (together
with its successors and assigns, "Holder"), the aggregate unpaid
amount of all advances, indebtedness, loans, payables and other
extensions of credit and obligations not to exceed $25 million,
(individually, an "Advance" and, collectively, "Advances") made by
Holder to Company, or otherwise owing by Company to Holder, from time
to time, as set forth on the books and records of Holder.
1. Definitions. For purposes of this Note, the following terms have
the meanings set forth below:
"Applicable Rate of Interest" means, at Company's option, either (1)
LIBOR + 2.50%, or (ii) Base Rate + 1.50%. Base Rate shall mean the
higher of (a) the current prime rate as reported in the Wall Street
Journal and (b) a rate of interest 1/2 of 1% over the effective
overnight Federal Funds Rate as published for such day by the Federal
Reserve Bank. Company will be required to indicate the Applicable
Rate of Interest applied on the date of each Advance.
"Fees" shall mean the following:
- $250,000 payable on the date of the first Advance; and
- $20,000 per annum, payable to Holder on January 31, of each year;
and
- 0.40% accrued per annum on $25 million (calculated on the basis
of a 360-day year for the actual number of days involved) payable
in arrears on the last business day of each calendar quarter; and
- $62,500 payable on the date of the first Advance after
February 1, 2002.
"Note" shall mean this Demand Promissory Note as originally executed
or if later amended, modified or supplemented, then, as so amended,
modified or supplemented.
"Note Obligation" shall mean all principal, interest (including
interest which accrues after the commencement of any case or
proceeding in bankruptcy, or for the reorganization of Company), fees,
charges, expenses, attorneys' fees and any other sum chargeable to
Company under this Note, and all principal and interest due in respect
of the Advances.
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2. Payments. This Note may be prepaid at any time in whole or in
part from time to time without penalty or premium. The principal of
this Note is payable in lawful money of the United States of America
and in same day funds, without abatement, reduction, deduction,
counterclaim recoupment, defense or setoff, to Holder at any account
as Holder may designate. Each Advance made by Holder to Company, and
all payments made on account of principal, Applicable Rate of Interest
and Fees thereof, shall be recorded by Holder and, prior to any
transfer thereof, endorsed on the grid attached hereto, which is part
of this Note; provided, however, that any failure to make such
endorsement on such grid shall not limit or otherwise affect the
obligations of Company hereunder.
3. Holder Rights. Upon demand for payment hereunder, Holder is
hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any indebtedness at any
time owing by Holder to or for the credit or the account of Company
against any and all of the obligations of Company now or hereafter
existing under this Note, irrespective of whether or not Holder shall
have made any demand under this Note and although such obligations may
be unmatured. Holder agrees promptly to notify Company after any such
set off and application; provided that the failure to give such notice
shall not affect the validity of such set off and application. The
rights of Holder under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set off)
which Holder may have.
4. Waiver. Except as otherwise provided for in this Note, and to the
fullest extent permitted by applicable law, Company waives: (a)
presentment, notice, demand and protest, and notice of presentment,
dishonor, intent to accelerate, acceleration, protest, default,
nonpayment, maturity, release, compromise, settlement, extension or
renewal of this Note at any time held by Holder on which Company may
in any way be liable, and hereby ratifies and confirms whatever Holder
may do in this regard; (b) all rights to notice and a hearing prior to
Holder's taking possession or control of, or to Holder's replevy,
attachment or levy upon, any property, real or personal, tangible or
intangible of Company or any bond or security which might be required
by any court prior to allowing Holder to exercise any of its remedies;
and (c) the benefit of all valuation, appraisal and exemption laws.
Company acknowledges that it has been advised by counsel with respect
to this Note and the transactions evidenced hereby. No failure or
delay on the part of Holder in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing hereunder are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
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5. Lost or Destroyed Note. Upon receipt by Company of evidence
reasonably satisfactory to Company of the loss, theft, destruction or
mutilation of this Note, and in the case of any such loss, theft or
destruction, upon delivery of an indemnity reasonably satisfactory to
Company or, in case of any such mutilation, upon surrender and
cancellation of this Note, Company will issue a new Note of like tenor
in lieu of this Note.
6. Severability. Wherever possible, each provision of this Note
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited
by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Note.
7. Amendment and Modification. Each of Company and Holder agrees
that no change, waiver, modification or amendment of this Note shall
be effective without the prior written approval of each.
8. Costs and Expenses. Company agrees to pay on demand all costs and
expenses, if any, including counsel fees and expenses, in connection
with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Note.
9. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE.
10. Successors and Assigns. This Note shall be binding upon Company
and its successors, and shall inure to the benefit of Holder and its
successors and permitted assigns (including Lender).
CREST NET LEASE, INC.
By:
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Title:
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ADVANCES AND PAYMENTS
Amount Principal Applicable
of Paid or rate of
Date Advance Repaid Interest
- ---- ------- --------- ----------
Fees and Unpaid Notation
Expenses Principal made by
- ---------------- --------- --------
Paid Accrued
- ---- -------
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FORM OF ENDORSEMENT
For value received, , hereby endorses to the
order of the Demand Promissory Note of
, dated , , payable to the
undersigned.
[HOLDINGS]
By:
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Title:
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