EXHIBIT 10.2
MASTER MANAGEMENT AGREEMENT
THIS MASTER MANAGEMENT AGREEMENT (this "Agreement"), made as of
January 1, 2000, by and between REALTY INCOME CORPORATION, a Maryland
corporation, having an office at 220 West Crest Street, Escondido,
California 92025 ("RI"), and CREST NET LEASE, INC., a Delaware
corporation, having an office at 220 West Crest Street, Escondido,
California 92025 ("Crest Net"). All capitalized terms that are not
defined herein shall have the meanings set forth on the list of
definitions attached hereto as Exhibit I.
RECITALS
WHEREAS, Crest Net intends to seek out and buy properties that meet
certain investment criteria;
WHEREAS, RI's officers, employees and contractors are experienced in
the business of real estate acquisition and management; and
WHEREAS, Crest Net desires to obtain certain administrative and other
services from RI in connection with the (i) identification of
properties suitable for acquisition by Crest Net, (ii) management,
operation, supervision and maintenance of properties it acquires, and
(iii) sale of the properties it acquires, RI desires to render such
services, as more fully described herein, on the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE 1
ACQUISITION SERVICES
1.1 Acquisition Services. RI shall provide to Crest Net certain
services relating to the identification of Suitable Acquisitions, Due
Diligence with respect to Suitable Acquisitions and other Properties
approved by Crest Net, and the negotiation and documentation of
Property acquisitions, including those services described in this
Article 1 (collectively the "Acquisition Services").
1.2 Identification of Suitable Acquisitions. RI shall, in the
ordinary course of its business, seek to identify Properties that in
the good faith judgment of RI constitute Suitable Acquisitions. RI is
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under no obligation to Crest Net to identify, offer or provide any
information regarding any Properties that are also suitable Properties
for RI's portfolio, as determined in RI's sole discretion.
1.3 Procedures Upon Identification of Suitable Acquisitions.
(a) RI shall promptly inform Crest Net whenever it identifies a
Suitable Acquisition.
(b) RI shall promptly assemble the Suitable Acquisition
Information relating to such Suitable Acquisition and
deliver it to Crest Net.
(c) Together with delivery of the Suitable Acquisition
Information, RI shall deliver a notice to Crest Net that
(i) all the Suitable Acquisition Information relating to
such Potential Suitable Acquisition has been or is
simultaneously being delivered to Crest Net and (ii) upon
receipt by Crest Net of such notice, the Due Diligence
Period applicable to such Suitable Acquisition will begin to
run.
(d) Prior to and during the Due Diligence Period relating to any
Suitable Acquisition, RI shall perform Due Diligence
relating to Crest Net's potential purchase of such Suitable
Acquisition that it deems necessary or appropriate. As
promptly after receipt, but no later than ten (10) days
prior to the end of the applicable Due Diligence Period, RI
will deliver to Crest Net a copy of all the existing leases
for the Suitable Acquisition that are in RI's possession or
are reasonably available to RI and any other information
that is in RI's possession or is reasonably available to RI
that Crest Net has previously requested in writing from RI
that is reasonably necessary to determine whether the
Suitable Acquisition meets Crest Net's investment criteria.
To the extent that RI obtains third party reports relating
to such Suitable Acquisition, RI shall promptly deliver
copies of such reports to Crest Net. To the extent RI
obtains information about a materially adverse condition of
such Suitable Acquisition (including, without limitation, a
Terminable Defect) or information that leads it to believe
that any Suitable Acquisition Information previously
delivered was materially inaccurate, RI shall promptly
notify Crest Net of such condition or inaccuracy (which
notification obligation, and the obligation to deliver third
party reports pursuant to the preceding sentence, shall
continue after the end of the applicable Due Diligence
Period to and including the closing of the acquisition of
such Suitable Acquisition, if Crest Net gives an Acquisition
Approval Notice with respect to such Suitable Acquisition).
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(e) At any time on or prior to the last day of the Due Diligence
Period applicable to any Suitable Acquisition, Crest Net may
deliver an Acquisition Approval Notice to RI with respect to
such Suitable Acquisition.
(f) If Crest Net does not give an Acquisition Approval Notice
with respect to any Suitable Acquisition prior to the
completion of the Due Diligence Period, then RI shall have
no further obligation to Crest Net in connection with such
Suitable Acquisition.
1.4 Acquisition Negotiation and Documentation. Crest Net shall be
responsible for negotiating the terms of its purchase of any Property.
RI shall, at Crest Net's request, assist Crest Net in such
negotiations. RI shall assist Crest Net in preparing and reviewing
documents related to such acquisitions.
1.5 Other Properties. Nothing in this Article 1 shall preclude RI
from identifying to Crest Net any Property which it believes may be
appropriate for Crest Net but may not meet all of the criteria set
forth on Exhibit III. If RI identifies a Property to Crest Net that
does not meet all of the criteria set forth on Exhibit III, Crest Net
shall, in its sole discretion, provide notice to RI not later than
five (5) days after RI identifies such Property to Crest Net (i)
directing RI to proceed with Due Diligence on such Property on Crest
Net's behalf, in which case the procedures set forth in section 1.2
shall apply, or (ii) informing RI that it is not interested in
pursuing such Property, in which case RI shall have no further
obligation to Crest Net in connection with such Property.
ARTICLE 2
PROPERTY MANAGEMENT SERVICES
Crest Net shall appoint RI, or cause RI to be appointed, as the
Property Manager of each and every Property acquired by Crest Net
during the term of this Agreement (each, a "Crest Net Property"),
regardless of whether such Property was initially identified by RI or
was acquired without the involvement of RI. RI shall provide those
property management services as mutually agreed between the parties
and listed and describe in writing on a schedule which shall be signed
and dated by both parties and attached to this Agreement. Any services
listed on such a schedule shall become "Property Management Services"
for the purposes of this Agreement. At least annually the parties
shall review and modify as appropriate the scope and description of
the Property Management Services.
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ARTICLE 3
ADMINISTRATIVE SERVICES
3.1 General. RI shall, as mutually agreed from time to time by RI
and Crest Net, provide certain administrative services to Crest Net
including those listed in this Article 3 (collectively the
"Administrative Services"). Any services in addition to those
specified in this Article 3 which the parties mutually agree RI shall
provide to Crest Net shall be listed and described in writing on a
schedule which shall be signed and dated by both parties and attached
to this Agreement. Any services listed on such a schedule shall
become part of the Administrative Services for the purposes of this
Agreement. At least annually the parties shall review and modify as
appropriate the scope and description of the Administrative Services.
3.2 Accounting. RI shall (i) establish and maintain on an accrual
basis in accordance with generally accepted accounting principles
("GAAP"), consistently applied, accurate and complete books of account
with proper entries of all receipts, income and disbursements
pertaining to Crest Net, and (ii) establish and maintain such other
books, accounts and records as Crest Net reasonably requests RI to
maintain (the books, accounts and records described in clauses (i) and
(ii) are collectively referred to as the "Books and Records"). The
Books and Records shall be and remain the property of Crest Net and
shall be available to Crest Net and its representatives for inspection
at any time during regular business hours at RI's main office as set
forth in the preamble to this Agreement or at such other place or
places as are approved by Crest Net.
3.3 Financial Controls and Auditing. RI shall:
(a) Establish systems of internal control for receipt and
disbursement of funds, materials, supplies and other assets;
(b) Establish internal financial controls to maintain the
integrity of records and to promote efficiency;
(c) As necessary, coordinate and assist Crest Net with its
external audits;
(d) Prepare budgets and financial projections for Crest Net at
least annually; and
(e) Maintain the relationship with outside auditors and public
accountants.
3.4 Tax Reporting. RI shall prepare information to be presented to
outside accountants who will prepare Crest Net's federal, state and
local tax returns, including quarterly tax estimates, to the extent
required. Crest Net will be responsible for the costs of its annual
audit and preparation of tax returns by outside accountants.
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3.5 Cash Management and Finance. RI shall provide cash management
and assistance with financing including arrangements for bank credit
lines, long-term strategic planning for debt financing and development
of temporary investment programs.
3.6 Human Resources. RI shall be responsible for the Human Resources
requirements of Crest Net, including, but not limited to:
(a) All responsibilities associated with operating and
maintaining the payroll system for Crest Net employees
(Crest Net will be responsible for external payroll system
costs);
(b) Assisting in compliance with new and existing employee legal
requirements, including the Americans with Disabilities Act,
EEOC matters, and sexual harassment; and
(c) All responsibilities associated with operating any benefits
system that Crest Net, in its sole discretion, offers to
Crest Net employees.
(d) Crest Net shall be solely and exclusively responsible for
funding employee salaries and any benefit system it offers
to its employees. Nothing in this section is intended to
create any obligation or duty of RI to contribute to or fund
in any manner any employee's salary or benefits for Crest
Net employees.
3.7 Management Information Systems. RI shall be responsible for the
MIS requirements of Crest Net, including, without limitation, data
processing, maintaining computer systems, information storage and
establishing Internet web sites and intranet systems. Crest Net will
be responsible for the costs of repairs and replacement of it computer
systems or software and web site design.
3.8 Risk Management. RI shall provide a risk management program to
review possible loss exposures for Crest Net, recommend efficient
methods of protection either through the purchase of insurance, self-
insurance or other risk management techniques and arrange for the
purchase of insurance coverage. In addition, RI shall:
(a) Assist in the establishment of safety and security programs
to avoid or minimize risk and loss;
(b) Supervise investigation procedures, review claims, negotiate
and assist in, and evaluate proposals for, settlements;
(c) Secure, at Crest Net's expense, a commercial general
liability policy in the amount determined by RI; and
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(d) Secure, as reasonably determined, at Crest Net's expense,
policies for auto, crime, fiduciary, property, group travel,
employment practices, workers' compensation insurance,
directors and officers liability and/or umbrella liability.
3.9 Legal Services. RI shall have its internal staff perform or
arrange for legal services requested by Crest Net. Internal legal
services shall be billed at the rates set forth on Exhibit II. Legal
Services performed by outside law firms shall be billed at the rates
charged by those firms.
ARTICLE 4
COMPENSATION
4.1 Compensation for Acquisition Services, Property Management
Services and Administrative Services. As consideration for the
Acquisition Services, Property Management Services and Administrative
Services provided hereunder, Crest Net shall pay to RI an amount as
set forth below:
(a) RI shall use its good faith efforts in allocating the time
its employees and contractors devote to performing services
on behalf of Crest Net. On services that are billed on an
hourly basis, RI shall bill the time spent by its
professional staff or contractors at the rates set forth in
Exhibit II. RI shall update such Exhibit from time to time.
Employees or contractors not identified in Exhibit II will
be billed at their hourly rate, if the employee or
contractor is paid by the hour, or according to the rate RI
charges, or would charge, a third party for the same
services, if the employee or contractor is paid a salary.
The hourly rates of all employees and contractors providing
services hereunder shall at all times be commercially
reasonable and competitive. On services that are billed
based upon an individual property acquisition or a
percentage of revenue, RI shall bill such services at the
rates set forth in Exhibit II. RI shall update Exhibit II
from time to time. The rates and percentages charged shall
at all times be commercially reasonable and competitive.
(b) RI shall also charge Crest Net its cost for all incidental
and out-of-pocket costs and expenses incurred in providing
Acquisition, Property Management Services and Administrative
Services, including, but not limited to reasonable travel
and living expenses, supplies, charges for all long distance
telephone calls, and document reproduction.
4.2 Legal Services. Crest Net shall compensate RI for any legal
services provided to it in accordance with this Section 4.2. Attached
hereto as Exhibit II is a list of (x) RI's internal legal staff that
will be performing legal services and (y) the hourly rate that will
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initially be charged to Crest Net for each staff member. RI shall
update such list from time to time, and the hourly rates of all legal
staff members providing legal services shall at all times be
commercially reasonable and competitive. Fees and expenses incurred
with respect to outside counsel will be passed through to Crest Net.
4.3 Invoices. RI shall provide a reasonably detailed invoice to
Crest Net, within twenty (20) days after the end of each month, for
all Administrative and Acquisition Services provided in such month,
which invoice shall be accompanied by such corroborating documentation
as Crest Net may reasonably request from time to time. Amounts
payable under this Article 4 shall be paid in arrears on or before the
last day of the month in which Crest Net receives such invoice;
provided, however, that if the invoice is not timely sent by RI, the
amounts payable shall be due twenty five (25) days after the invoice
is actually sent by RI. If RI does not receive payment of any amount
due within the time provided for payment, such unpaid amount, after
second notice, shall bear interest at a rate equal to the lesser of
(i) the annual "prime" or "reference" rate then in effect by Bank of
America or (ii) the maximum rate permitted by applicable law from and
including the date on which payment should have been made until but
excluding the date on which payment is made.
4.4 Obligation to Pay. The fees and reimbursements provided for in
this Article 4 shall be in addition to other fees and reimbursements
provided for elsewhere in this Agreement. Crest Net shall be
responsible for compensating RI for its costs and expenses incurred
under Article 1 regardless of whether Crest Net has obtained fee title
to a Property identified to it by RI.
ARTICLE 5
ASSIGNMENT AND SUBCONTRACTING
5.1 Assignment. This Agreement and the rights and obligations
hereunder shall not be assigned by any party hereto without the prior
written consent of the other party hereto except as and to the extent
expressly permitted hereunder. Notwithstanding the foregoing, RI may
assign this Agreement in its entirety to any of its Subsidiaries.
5.2 Subcontracting. RI may engage one or more companies or persons,
including Affiliates or Subsidiaries of RI, to perform any one or more
of the services to be performed hereunder by RI; provided, however,
that RI shall not be released from its obligations hereunder by virtue
of such subcontracting.
ARTICLE 6
TERM AND TERMINATION
6.1 Term. The term of this Agreement shall commence on the date
first stated above and shall continue until midnight on the date
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preceding the second anniversary of the date hereof, unless this
Agreement shall be terminated in its entirety and the obligations of
the parties hereunder shall sooner cease and terminate in their
entirety, as hereinafter provided. However, the term of this
Agreement shall automatically extend for one-year periods unless
either Crest Net or RI provides the other with at least three (3)
months written notice of its intention to terminate this Agreement.
6.2 Termination Upon Breach. If either party shall commit a breach
of this Agreement (the "Breaching Party"), the other party (the "Non-
Breaching Party") may serve written notice upon the Breaching Party,
which notice shall set forth the details of such alleged breach. The
party to whom the notice is sent shall, within thirty (30) days after
its receipt of said notice, cure such breach; provided, however, that
if (x) the breach is a non-monetary breach and cannot reasonably be
cured within a thirty (30) day period and (y) the breaching party
commences action necessary to cure such breach within the thirty (30)
day period and thereafter prosecutes such cure with due diligence,
then the period of time within which such breach may be remedied shall
be extended so long as the breaching party continues to prosecute the
cure with due diligence. If the Breaching Party fails to cure the
breach within the applicable cure period (a "Breach Event"), then the
Non-Breaching Party may terminate this Agreement in its entirety.
Termination of this Agreement by the Non-Breaching Party shall be a
distinct, separate and cumulative remedy and shall not operate to
exclude or deprive the Non-Breaching Party of any other right or
remedy allowed it at law or in equity or elsewhere in this Agreement.
6.3 Termination due to Insolvency. If, at any time during the term
of this Agreement there shall be filed against RI or Crest Net in any
court, pursuant to any statute either of the United States or any
state, a petition in bankruptcy or insolvency or for reorganization or
for the appointment of a receiver or trustee of all or a portion of
the property of RI or Crest Net, and such petition is not discharged
within thirty (30) days after the filing thereof, or if RI or Crest
Net makes an assignment for the benefit of creditors, or petitions for
or enters into an arrangement, or permits this Agreement to be taken
under any writ of execution or attachment, then in any of such events,
the party who is not subject to the above-mentioned action(s) hereto
shall have the right to terminate this Agreement by giving written
notice, by certified mail, effective as of a particular date specified
in the notice.
6.4 Termination due to Risk to REIT Status. If RI shall determine in
good faith that RI's retention under any provision of this Agreement
pursuant to which it receives compensation shall or may deprive RI of
any material benefits appurtenant to RI's qualification as a real
estate investment trust ("REIT") under all applicable laws, including,
without limitation, the Internal Revenue Code of 1986, as amended from
time to time, then RI may, upon thirty (30) days notice to Crest Net,
terminate such provision of this Agreement to the extent necessary for
RI to avoid the deprivation of such benefits (it being agreed that if
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RI's waiver of its right to receive any compensation to which it is
entitled under this Agreement is necessary in order for RI not to be
so deprived of such material benefits appurtenant to RI's qualifi-
cation as a REIT, then (x) RI shall waive its right to receive such
compensation to the extent that, and for so long as, such waiver will
result in RI not being so deprived, and (y) for so long as such waiver
shall result in RI not being so deprived, RI shall have no right to
terminate the applicable provision of this Agreement pursuant to this
paragraph provided, however, in the event RI is required to waive its
right to receive compensation pursuant to this paragraph, RI shall
have the right to either (i) assign such provision, provided that RI
guarantees the duties and liabilities of the assignee under this
Agreement or (ii) terminate the provisions of this Agreement provided
that a replacement party reasonably acceptable to Crest Net has been
hired to replace RI and provide the services required under this
Agreement; and for so long as such assignment shall result in RI not
being so deprived, RI shall have no right to so terminate the
applicable provision of this Agreement). For purposes of the
foregoing, the determination as to whether RI will be deprived of
benefits appurtenant to its qualification as a REIT shall be made by
RI in its reasonable discretion.
6.5 Effect of Termination. Upon any termination of this Agreement in
whole, all of the obligations of any party hereto thereafter accruing
shall terminate immediately, except for any obligations that expressly
survive such termination.
ARTICLE 7
ARBITRATION
7.1 Procedure. All claims, disputes and other matters in question
between the parties arising out of or relating to this Agreement or
the breach thereof may be decided by arbitration in San Diego County,
California in accordance with rules of the American Arbitration
Association then applying. Either party may request arbitration at
any time after first attempting to resolve the matter in good faith
with the other party. Notice of the request for arbitration shall be
filed in writing with the other party to this Agreement and the
American Arbitration Association within a reasonable time after the
claim, dispute or other matter in question has arisen, and in no event
shall it be made after the date when institution of legal or equitable
proceedings based upon such claim, dispute or other matter in question
would be barred by the applicable statute of limitations. Unless the
other party, within ten (10) days of the receipt of such notice, sends
to the claimant a written objection to such arbitration proceedings,
then both parties shall be deemed to have elected to arbitrate such
dispute. In the absences of such agreement, either party may resort
to judicial proceedings.
7.2 Awards. In rendering any award, the arbitrator or arbitrators
shall not deviate from or add to the provisions of this Agreement.
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The award rendered in the arbitration shall be final, and judgment may
be entered upon it in accordance with applicable law in any court
having jurisdiction thereof. Reasonable costs, expenses and fees
(including, without limitation, attorneys' fees) of the prevailing
party in such arbitration shall be assessed against the non-prevailing
party in the award.
7.3 Continued Performance. RI shall continue to carry on its
obligations hereunder during any arbitration proceedings, and Crest
Net shall continue to make payments to RI in accordance with the terms
of this Agreement (which payments may be made to a court registry or
escrow agent if Crest Net disputes its obligations to make the same),
unless the matter in dispute concerns the termination of this
Agreement, in which event the parties must expressly agree in writing
that the parties shall continue to perform pending an award in the
arbitration proceedings.
ARTICLE 8
MISCELLANEOUS
8.1 Notices. All notices, demands, consents, approvals, waivers or
other communications (each, a "Notice") given by any party hereto to
any other party hereto under this Agreement shall be in writing and,
unless otherwise required by law, shall be sent (a) by hand, (b) by
United States Mail, certified or registered, postage prepaid, return
receipt requested, or (c) by a nationally-recognized overnight
carrier, in each case addressed to the party to be notified at the
address for such party specified in the preamble of this Agreement, or
to such other place in the continental United States as any party may
from time to time designate by at least 20 days' notice to the other
parties hereto. Each Notice shall be deemed to have been given on the
date such Notice is actually received as evidenced by a written
receipt therefor, and in the event of failure to deliver by reason of
changed address of which no Notice was given or refusal to accept
delivery, as of the date of such failure.
8.2 Amendment. This Agreement cannot be changed or modified, varied
or altered except by an agreement, in writing, executed by each of the
parties hereto.
8.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
8.4 Liability to Third Parties. Except as otherwise expressly
provided in this Agreement, all expenses, debts and liabilities
incurred to third parties in accordance with the terms hereof, or
incurred by Crest Net directly, are and shall be obligations of, and
paid by Crest Net, and RI shall not be liable for any such obligations
by reason of its management, supervision or operation of any Crest Net
Property.
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8.5 Indemnification. Except for willful misconduct or gross
negligence, each party shall indemnify, defend and hold harmless the
other party, and their respective officers and employees, from any
loss, cost, liability and expense, including, but not limited to,
reasonable counsel fees, that results from a party's performance of
its obligations hereunder in accordance with the terms hereof. The
indemnification obligations set forth in this Section shall survive
the expiration or earlier termination of this Agreement.
8.6 REIT Status. Notwithstanding anything in this Agreement to the
contrary, RI shall not be entitled to receive, and Crest Net shall not
be obligated to pay, any compensation otherwise payable under this
Agreement to the extent that, in the opinion of RI's tax counsel, the
accrual or receipt by RI of such compensation would cause RI to fail
to qualify as a REIT for United States federal income tax purposes.
Any amounts paid by Crest Net to RI in excess of the amount that RI is
permitted to receive pursuant to this agreement shall be treated as an
advance by such party, repayable by RI within five (5) business days
after written demand thereof from such party with interest at the
Applicable Federal Rate.
8.7 Attorneys' Fees. In the event of litigation, including
arbitration, between RI and Crest Net arising out of the terms of this
Agreement, the other party shall pay the reasonable legal fees, costs
and expenses of the prevailing party relating to such litigation.
8.8 Entire Agreement. This Agreement, together with its exhibits and
schedules, constitutes the entire agreement between RI and Crest Net
relative to the subject matter hereof. Any previous agreement between
the parties is superseded by this Agreement. This Agreement may be
executed in multiple counterparts, each of which shall constitute an
original, but all of which shall constitute one document.
8.9 Devotion of Time; Non-Exclusivity. RI agrees to devote to the
business and affairs of Crest Net and its Properties such time and to
render such services as a prudent business person, in good faith,
would deem necessary to conduct such business and affairs efficiently,
and otherwise to keep, observe and perform fully and punctually all of
its obligations under this Agreement; provided, however, that RI shall
not be obligated to devote its services to Crest Net on an exclusive
basis. It is expressly understood that RI may engage in any other
business, investment or profession, including the construction,
development, ownership, operation and management of or investment in
real estate so long as such other business, investment or profession
shall not adversely affect RI's performance under this Agreement.
8.10 Ownership of Materials; Confidentiality. All estimates,
projections, studies, reports, charts, recommendations, surveys,
plans, drawings, agreements and other data, information, documents and
work in any way relating to Crest Net's Properties prepared and done
by RI pursuant hereto or otherwise in the possession of RI shall be
and remain the property of Crest Net. Throughout the term of this
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Agreement, RI shall promptly furnish Crest Net with accurate, current
and complete copies of all such data and materials with respect to the
Properties. Immediately following any termination of this Agreement,
RI shall turn over to Crest Net originals, and where no originals are
available, copies of all such data and materials in RI's possession,
and Crest Net shall have the right to use the same without further
compensation to RI. RI agrees, for itself and all persons retained or
employed by RI in performing its services hereunder, to hold in strict
confidence and not to use or disclose to others any confidential or
proprietary information of Crest Net heretofore or hereafter disclosed
to RI or to any such persons (all information obtained or provided
relating to Crest Net or the Properties's financial condition or
otherwise designated as such by Crest Net conclusively being deemed
confidential, including, but not limited to, any data, information,
plans, programs, processes, test results, costs, operations or
identities of tenants which may come within the knowledge of RI in the
performance of, or as a result of, its services), except where: (a)
Crest Net specifically authorizes the disclosure of any information to
others or such disclosure reasonably results from the performance of
RI's duties hereunder; or (b) such written data or information
previously and lawfully shall have been made publicly available by
parties other than RI.
8.11 Relationship of the Parties. Nothing contained in this
Agreement shall be deemed or construed as creating a partnership,
joint venture, co-ownership, agency, or employee-employer relationship
between Crest Net and RI. The relationship of RI to Crest Net is that
of any independent contractor. RI and Crest Net agree not to
represent to third parties a contrary relationship nor to take any
action from which third parties reasonably could infer that RI and
Crest Net are partners, joint venturers, co-owners, agents, or
employee-employer. Any breach by Crest Net or RI of this provision
shall be considered a material breach of this Agreement.
8.12 Remedies Cumulative. Except as otherwise may be expressly
provided to the contrary herein, all rights, powers, privileges and
remedies afforded to the parties by this Agreement shall be cumulative
and in addition to, and not in substitution for or exclusive of, any
other right, power, privilege or remedy provided for in this Agreement
or hereafter existing at law, in equity or otherwise.
8.13 Waiver. Except as otherwise may be expressly provided to the
contrary herein: (a) no failure to exercise or delay in exercising by
any party hereto any right or remedy consequent upon a breach, and no
failure to insist upon or delay in insisting upon the strict
performance, or any provision of this Agreement shall constitute or
operate as a waiver thereof or of any other right or remedy of any
other provision hereof or of any subsequent breach of the same or any
other provision hereof, and such party shall retain all rights and
remedies provided for herein or by applicable law with respect to the
same or of any subsequent act or omission which constitutes such
breach or non-performance; and (b) no partial exercise of any right or
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remedy shall preclude any other or further exercise thereof or other
exercise of any other right or remedy provided for herein or now or
hereafter existing at law, in equity or otherwise. A waiver in one or
more instances of any provision hereof shall apply to the particular
instance and at the particular time only, and no such waiver shall be
deemed a continuing waiver. No provision of this Agreement to be
performed or complied with by any party, and no breach thereof, shall
be waived, altered or terminated except by a written instrument
executed by the other party. No waiver of any breach shall affect or
alter this Agreement, but each and every provision of this Agreement
shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof. No course of dealing between
the parties shall operate as waiver of any of their respective rights,
powers or privileges under this Agreement.
8.14 Further Assurances. Each party to this Agreement agrees that at
any time and from time to time after the date hereof it will, at its
own cost and expenses, immediately following the reasonable request of
the other party hereto, promptly execute, acknowledge (if necessary)
and deliver, or cause to be promptly executed, acknowledged (if
necessary) and delivered, such agreements, assignment, certificates,
statements, instruments and documents, and promptly take, or promptly
cause to be taken, such other and further steps and actions, in either
case as may be required by law or as reasonably shall be deemed
necessary by the other party hereto in order to more fully effected
evidence or carry out the intents and purposes of this Agreement.
8.15 Invalidity of Particular Provisions. If any provision of this
Agreement or the application thereof to any party or circumstance
shall, for any reason or to any extent, be held to be invalid, illegal
or unenforceable in any respect, the remainder of this Agreement, as
well as the application to such party or circumstances other than
those as to which it is held invalid, illegal or unenforceable, shall
not be affected thereby, and, to the extent permitted by law, this
Agreement shall be legal and valid and be enforced to the fullest
extent permitted by law if such invalid, illegal or unenforceable
provision had never been included herein; it being intended by Crest
Net and RI that each of the provisions hereof shall be severable.
Moreover, it is the intention of the parties hereto that if any
provision of this Agreement is capable of two constructions, one of
which would render the provision void and the other of which would
render the provision valid, then the provision shall have the meaning
which renders it valid.
8.16 Captions; Gender and Number.
(a) The captions contained in this Agreement: (i) have been
inserted for convenience only; (ii) shall not be deemed or
constructed to be part of this Agreement; (iii) do not in
any way define, limit, enlarge, modify or describe the
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scope or intent of this Agreement; and (iv) shall not be
construed as governing or otherwise affecting this
Agreement or the interpretation or construction of any
provision hereof.
(b) This Agreement shall be so construed that whenever
applicable the use of the singular number shall include the
plural number, the use of the plural number shall include
the singular number, and the use of the feminine, masculine
or neuter gender shall include the other genders.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Master Management Agreement as of the date and year first above
written.
REALTY INCOME CORPORATION,
a Maryland corporation
By:
--------------------------------
Name:
Title
CREST NET LEASE, INC.,
a Delaware corporation
By:
--------------------------------
Name:
Title:
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EXHIBIT I
DEFINITIONS
"Acquisition Approval Notice" shall mean, with respect to any Suitable
Acquisition, a notice delivered to RI that Crest Net desires to
purchase such Suitable Acquisition.
"Affiliate" shall mean, as to any entity, any other entity which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such entity. For purposes this definition,
"control" (including, with correlative meanings, the terms "controlled
by" and "under common control with") shall mean either (a) for any
entity whose stock is publicly owned and traded either (i) ownership
or voting control, directly or indirectly, of 50% or more of the
voting stock, partnership interests or other beneficial ownership
interests of the entity in question or (ii) the power to direct,
whether by contract or otherwise, the management of such entity or (b)
for any entity whose stock is not publicly owned and traded either (i)
ownership or voting control, directly or indirectly, of 20% or more of
the voting stock, partnership interests or other beneficial ownership
interests of the entity in question or (ii) the power to direct,
whether by contract or otherwise, the management of such entity.
"Due Diligence" shall mean, with respect to any Suitable Acquisition,
all necessary or desirable due diligence to be performed with respect
to the potential purchase of a Suitable Acquisition.
"Due Diligence Period" shall mean, with respect to any Suitable
Acquisition, the period that commences upon the receipt by Crest Net
of the last item of the Suitable Acquisition Information and
terminates on the latest to occur of the (i) sixty (60) days after
such commencement or (ii) thirty (30) days after Crest Net receives a
Purchase Contract applicable to such Suitable Acquisition.
"Portfolio" shall mean a group of two or more Properties that must be
purchased simultaneously (i.e., the seller of such Properties is
unwilling to sell any one or more of the Properties in such group
without simultaneously selling all the other Properties in such
group).
"Property" shall mean any real estate property that might be suitable
for acquisition by RI or Crest Net.
"Purchase Contract" shall mean, with respect to any Suitable
Acquisition, either (i) a fully-negotiated contract of sale with
respect to such Suitable Acquisition that has been presented by the
seller for execution by Crest Net, or (ii) a contract of sale with
respect to such Suitable Acquisition that may be terminated by Crest
Net without penalty to Crest Net at any time during the Due Diligence
Period applicable to such Suitable Acquisition.
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"Subsidiary" shall mean any entity in which RI has at least a 50%
direct or indirect ownership interest.
"Suitable Acquisition" shall mean any Property that satisfies all of
the criteria set forth on Exhibit III to the Agreement, whether it is
a single property, one or more properties within a Portfolio, or an
entire Portfolio. The term Suitable Acquisition does not include a
Property that RI, in its sole discretion, determines would fit within
its own investment criteria and that RI proposes to acquire for its
own Portfolio.
"Suitable Acquisition Information" shall mean, with respect to any
Suitable Acquisition, the following information with respect to such
Suitable Acquisition:
(i) the location and address of such Suitable Acquisition
(including any maps in RI's possession), photographs of such
Suitable Acquisition (to the extent such photographs are in
RI's possession), a site or layout plan and a complete
physical description of such Suitable Acquisition;
(ii) a rent roll that includes all information available to RI on
renewal options, termination options and "kick-outs", as well
as information on recoveries;
(iii) the price at which such Suitable Acquisition (or the
Portfolio in which such Suitable Acquisition is located) is
being offered by the seller, including any acquisition
reserves;
(iv) a pro forma for the current year; three years of historical
operating statements that show both income and expenses to
the extent such three years of historical information is in
RI's possession or control; as well as a copy of RI's
discounted cash flow projection and the supporting
underwriting assumptions;
(v) a copy of current demographic information, if available;
(vi) any term sheets, letters of intent, draft contracts of sale
and due diligence materials in RI's possession or otherwise
reasonably available to RI; and
(vii) if such Suitable Acquisition is part of a Portfolio, RI's
good faith determination of the fair market value of each
Property in such Portfolio (the aggregate of which will equal
the purchase price at which the seller is offering the
applicable Portfolio).
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"Terminable Defect" shall mean any of the following conditions
relating to any Suitable Acquisition: (i) a material environmental
liability; (ii) a material defect in the title to the Property such
that title insurance cannot be obtained providing coverage against
same; or (iii) a material structural defect.
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EXHIBIT II
1. Property Management Fee 1% of Revenue
2. Accounting fee $1,000 per month
Transaction fee of $250 per
completed property
Transaction fee of $1,000 per
development property
3. Internal Legal
- Hourly -
Senior Attorney $200
Attorney 150
Attorney Assistant 85
Secretarial 50
4. Computer Consultant
- Hourly - $100
5. Acquisition Commission 2% of total cost of property
acquired
6. Benefits to be reimbursed by Crest Net
- 401 K
- Health Insurance
- Dental Insurance
- Life Insurance
- Disability Insurance
- Dividends on restricted stock vested after January 1, 2000
7. Costs to be paid by Crest Net
- Cellular phone
- Phone useage
- ADP payroll fee
- Pac Bell phone line
- Long distance charges
- Computer and software repairs and replacement
- Outside audit
- Tax preparation
- General comprehensive liability insurance
- Other insurance policies
- Outside legal counsel
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EXHIBIT III
CREST NET LEASE TARGET INVESTMENTS
1. Net leased single tenant retail land or land and building located
within the United States;
2. Completed or to-be-built projects;
3. Located within or in close proximity to a major MSA;
4. Leased to a national, strong regional retail company or a multi-
unit franchisee of a nationally known franchise;
5. Leased for a minimum of fifteen (15) years with increases to the
base rent at least every five (5) years or if leased for less than
fifteen years, the current rent must be substantially below market
rents and the tenant must be producing a high sales volume from
the location;
6. Can be financed on an amortizing, non-recourse , non-cross
collateralized basis with a relatively high degree of fixed rate
leverage (target of 70-75% of the fair market value);
7. Priced at wholesale providing for a profit upon resale to a
passive real estate investor.
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