smtaassetmanagementagree






                                                                                                                                                                                             ASSET MANAGEMENT AGREEMENT          dated as of May 31, 2018                 between            SPIRIT MTA REIT                   and          SPIRIT REALTY, L.P.                                                                     





 






                                                                                   TABLE OF CONTENTS                                                                                             SECTION 1.       DEFINITIONS                                                          1                                                                                           SECTION 2.       APPOINTMENT AND DUTIES OF THE MANAGER                                6                                                                                           SECTION 3.       DEVOTION OF TIME; ADDITIONAL ACTIVITIES                             10                                                                                           SECTION 4.       AGENCY                                                              11                                                                                           SECTION 5.       BANK ACCOUNTS                                                       11                                                                                           SECTION 6.       RECORDS; CONFIDENTIALITY                                            11                                                                                           SECTION 7.       OBLIGATIONS OF MANAGER; RESTRICTIONS.                               12                                                                                           SECTION 8.       COMPENSATION                                                        12                                                                                           SECTION 9.       EXPENSES                                                            13                                                                                           SECTION 10.      LIMITS OF MANAGER RESPONSIBILITY; INDEMNIFICATION                   15                                                                                           SECTION 11.      NO JOINT VENTURE                                                    16                                                                                           SECTION 12.      TERM; TERMINATION                                                   16                                                                                           SECTION 13.      TERMINATION FEE                                                     17                                                                                           SECTION 14.      PROMOTE                                                             17                                                                                           SECTION 15.      ASSIGNMENT                                                          18                                                                                           SECTION 16.      ACTION UPON TERMINATION                                             19                    SECTION 17.      RELEASE OF MONEY OR OTHER PROPERTY UPON WRITTEN                     19                  REQUEST                                                                                           SECTION 18.      NOTICES                                                             20                                                                                           SECTION 19.      BINDING NATURE OF AGREEMENT; SUCCESSORS AND ASSIGNS                 20                                                                                           SECTION 20.      ENTIRE AGREEMENT                                                    20                                                                                           SECTION 21.      ARBITRATION                                                         20     





 






                                                                                           SECTION 22.      NAME LICENSE                                                        23                                                                                           SECTION 23.      CONTROLLING LAW                                                     23                                                                                           SECTION 24.      INDULGENCES, NOT WAIVERS                                            24                                                                                           SECTION 25.      TITLES NOT TO AFFECT INTERPRETATION                                 23                                                                                           SECTION 26.      EXECUTION IN COUNTERPARTS                                           24                                                                                           SECTION 27.      PROVISIONS SEPARABLE                                                24                                                                                                 





 






                             ASSET MANAGEMENT AGREEMENT                                                      THIS ASSET MANAGEMENT AGREEMENT (this “Agreement”) is made as of May 31, 2018  by and between Spirit MTA REIT, a Maryland real estate investment trust (the “Company”), and Spirit  Realty, L.P., a Delaware limited partnership (together with its permitted assignees, the “Manager”).         WHEREAS, the Company desires to avail itself of the experience, sources of information, advice,  assistance and certain facilities of, or available to, the Manager and to have the Manager undertake the  duties and responsibilities hereinafter set forth, on behalf of the Company, as provided in this Agreement;  and         WHEREAS, the Manager is willing to render such services on the terms and conditions hereinafter  set forth.         NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS HEREIN SET  FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:   SECTION 1. DEFINITIONS.         The following terms have the meanings assigned to them:         “AAA” has the meaning set forth in Section 21 of this Agreement.         “Affiliate” means,  with  respect  to  any  Person,  (i)  any  other  Person  directly  or  indirectly  controlling, controlled by, or under common control with such Person, (ii) any executive officer, general  partner  or  managing  member  of  such  Person,  (iii)  any  member  of  the  board  of  directors  or  board  of  managers (or bodies performing similar functions) of such Person, and (iv) any legal entity for which such  Person acts as an executive officer, general partner or managing member. For purposes of this Agreement,  the Company shall not be considered an Affiliate of the Manager.         “Agreement” means this Asset Management Agreement, as amended from time to time.         “Appellate Rules” has the meaning set forth in Section 21 of this Agreement.         “Award” has the meaning set forth in Section 21 of this Agreement.         “Board of Trustees” means the board of trustees of the Company.         “Change in Control” shall mean the occurrence of any of the following events:          (i)   a transaction or series of transactions whereby any “person” or related “group” of “persons”  (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company or  any Subsidiary of the Company) directly or indirectly acquires beneficial ownership (within the meaning  of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than fifty percent  (50%) of the total combined voting power of the Company’s securities outstanding immediately after such  acquisition; or                                                                                                                                                                             1  





 






        (ii)  during any period of two (2) consecutive years, individuals who, at the beginning of such  period, constitute the Board of Trustees together with any new trustee(s) (other than a trustee designated  by a person who shall have entered into an agreement with the Company to effect a transaction described  in the preceding clause (i) or the succeeding clause (iii) of this definition) whose election by the Board of  Trustees or nomination for election by the Company’s shareholders was approved by a vote of at least  two-thirds (2/3) of the trustees then still in office who either were trustees at the beginning of the two (2)- year period or whose election or nomination for election was previously so approved, cease for any reason  to constitute a majority thereof; or          (iii) the consummation by the Company (whether directly involving the Company or indirectly  involving  the  Company  through  one  or  more  intermediaries)  of  (A)  a  merger,  consolidation,  reorganization, or business combination, (B) a sale or other disposition of all or substantially all of the  Company’s assets in any single transaction or series of related transactions or (C) the acquisition of assets  or stock of another entity, in each case, other than a transaction:                (1)   which results in the Company’s voting securities outstanding immediately before        the transaction continuing to represent (either by remaining outstanding or by being converted into        voting securities of the Company or the person that, as a result of the transaction, controls, directly        or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s        assets or otherwise succeeds to the business of the Company (the Company or such person, the        “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the        Successor Entity’s outstanding voting securities immediately after the transaction, and following        which the Successor Entity continues to own all or substantially all the assets that the Company        owned immediately before the transaction and succeeds to its business, and                (2)   after which no person or group beneficially owns voting securities representing fifty        percent (50%) or more of the combined voting power of the Successor Entity; provided, however,        that no person or group shall be treated for purposes of this clause (iii)(2) as beneficially owning        fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result        of the voting power held in the Company prior to the consummation of the transaction; or         (iv)  approval by the Company’s shareholders  of a liquidation or dissolution of the Company.         “Code” means the Internal Revenue Code of 1986, as amended.         “Common Share” means a common share of beneficial interest, par value $0.01 per share, of the  Company now or hereafter authorized as common voting shares of the Company.         “Company” has the meaning set forth in the preamble to this Agreement.         “Company Account” has the meaning set forth in Section 5 of this Agreement.         “Company Indemnified Party” has the meaning set forth in Section 10 of this Agreement.         “Company TSR Percentage” means the XIRR, expressed as a percentage (rounded to the nearest  tenth  of  a  percent  (0.1%)), during  the  Measurement  Period  due  to  the  appreciation  in  the  price  per  Common  Share, plus dividends  declared  during  the  Measurement  Period,  assuming  dividends  are  reinvested in Common Shares on the date that they were paid (at a price equal to the closing price per  Common  Share  on  the  applicable  dividend  payment  date); provided,  however, that  for  purposes  of  calculating the Company TSR Percentage, the initial share price shall equal the Initial Price Per Share and                                                                                                                                                                           2  





 






  the final share price as of any given date shall equal the Share Value.         “Company TSR Amount” means the sum of the price per Common Share on the last day of the  Measurement Period, plus the sum of all dividends declared during the Measurement Period, assuming  dividends are reinvested in Common Shares on the date that they were paid (at a price equal to the closing  price per Common Share on the applicable dividend payment date); provided, however, that for purposes  of calculating the Company TSR Amount, the initial share price shall equal the Initial Price Per Share and  the final share price as of any given date shall equal the Share Value.         “Conflicts of Interest Policy” refers to the conflicts of interest policy included in the Investment  Manual.         “Disputes” has the meaning set forth in Section 21 of this Agreement.         “Distribution Date” means May 31, 2018.         “Effective Termination Date” means the earliest to occur of (i) the date designated by the Company  pursuant to Section 12(b)(i) or Section 12(c)(i) on which the Manager shall cease to provide services under  this Agreement and (ii) the effective date of termination of this Agreement pursuant to Section 12(b)(ii)  and Section 12(c)(ii).         “Excess Funds” has the meaning set forth in Section 2(i) of this Agreement.         “Exchange Act” means the Securities Exchange Act of 1934, as amended.         “GAAP” means generally accepted accounting principles in the United States.         “Governing Instruments” means, with regard to any entity, the declaration of trust and bylaws in  the  case  of  a  real  estate  investment  trust,  the  articles  of  incorporation  and  bylaws  in  the  case  of  a  corporation, the certificate of limited partnership (if applicable) and the partnership agreement in the case  of a general or limited partnership, the articles of formation and the operating agreement in the case of a  limited liability company, or, in each case, comparable governing documents.         “Hurdle  TSR  Amount”  means an  indicative price  per  Common  Share on  the  last  day  of  the  Measurement  Period  calculated  assuming appreciation in  the  price  per  Common  Share based on  a  specified Company TSR Percentage during the Measurement Period; provided, however, that for purposes  of calculating the Hurdle TSR Amount, the initial share price shall equal the Initial Price Per Share.         “Indemnified Party” has the meaning set forth in Section 10 of this Agreement.         “Independent  Trustees”  means  the  members  of  the  Board  of  Trustees  who  are  not  officers  or  employees  of the Manager, and who  are otherwise “independent” in  accordance  with  the Company’s  Governing Instruments and the rules of the NYSE or such other securities exchange on which the Common  Shares are listed.         “Initial Price Per Share” means the VWAP per Common Share for the 30 consecutive trading days  on the principal exchange on which such shares are then traded immediately following the Distribution  Date.         “Investment Manual” means the investment manual approved by the Board of Trustees, as the                                                                                                                                                                            3  





 






  same may amended, restated, modified, supplemented or waived pursuant to the approval of a majority of  the  entire  Board  of  Trustees from  time  to  time (which  must  include  a  majority  of  the  Independent  Trustees).         “Investments” means the investments of the Company.         “Investment Company Act” means the Investment Company Act of 1940, as amended.         “Licensed Name” has the meaning set forth in Section 22 of this Agreement.         “Losses” has the meaning set forth in Section 10 of this Agreement.         “License Term” has the meaning set forth in Section 22 of this Agreement.         “Management Fee” has the meaning set forth in Section 8(a) of this Agreement.         “Management Fee PIK Event” means (i) the good faith determination by the Board of Trustees  that forgoing the payment of all or any portion of the monthly installment of the Management Fee is  necessary for the Company to have sufficient funds to declare and pay dividends required to be paid in  cash in order for the Company to maintain its status as a REIT under the Code and to avoid incurring  income or excise taxes, or (ii) the occurrence and continuance of an “Early Amortization Event,” “Event  of Default” or “Sweep Period,” in each case, as defined under the Second Amended and Restated Master  Indenture, dated as of May 20, 2014, among Spirit Master Funding, LLC, Spirit Master Funding II, LLC,  Spirit Master Funding III, LLC and Citibank, N.A., as amended and supplemented from time to time, such  definitions not to be revised, modified or amended without prior written consent by Manager.         “Manager” has the meaning set forth in the preamble to this Agreement.         “Measurement Period” means the period commencing on the Distribution Date and ending upon  the earlier of (i) the Effective Termination Date and (ii) the date that is 36 full calendar months after the  Distribution Date.         “Notice of Proposal to Negotiate” has the meaning set forth in Section 12(b)(i) of this Agreement.         “NYSE” means the New York Stock Exchange.         “Operating Partnership” means Spirit MTA REIT, L.P., a Delaware limited partnership, of which  Spirit MTA OP Holdings, LLC, a Delaware limited liability company and a wholly-owned subsidiary of  the Company, is  the sole general  partner. The Company is  the managing member of Spirit MTA OP  Holdings, LLC.         “Original Term” has the meaning set forth in Section 12(a) of this Agreement.         “Person” means any natural person, corporation, partnership, association, limited liability  company, estate, trust, joint venture, any federal, state, county or municipal government or any bureau,  department or agency thereof or any other legal entity and any fiduciary acting in such capacity on  behalf of the foregoing.         “Preferred Share” means a share of share capital of the Company now or hereafter authorized or  reclassified  that has  dividend  rights,  or  rights  upon  liquidation,  winding  up  and  dissolution,  that  are                                                                                                                                                                            4  





 






  superior or prior to the Common Shares.         “Promote” has the meaning set forth in Section 14 of this Agreement.         “Property  Management  Agreement”  means  the  Second  Amended  and Restated  Property  Management and Servicing Agreement dated May 20, 2014, by and among Spirit Realty, L.P., Spirit  Master Funding, LLC, Spirit Master Funding II, LLC, Spirit Master Funding III, LLC and Midland Loan  Services, a division of PNC Bank, National Association, as subsequently amended.         “REIT” means a real estate investment trust under the Code.         “Renewal Term” has the meaning set forth in Section 12(a) of this Agreement.         “Rules” has the meaning set forth in Section 21 of this Agreement.         “SEC” means the U.S. Securities and Exchange Commission.         “Securities Act” means the Securities Act of 1933, as amended.         “Series A Preferred Shares” means the Series A preferred shares of the Company, par value $0.01  per share.         “Share Value,” as of any given date, means the VWAP per Common Share for the 10 consecutive  trading days on the principal exchange on which such shares are then traded immediately preceding such  date; provided, however, that if a Change in Control causes the end of the Measurement Period, Share  Value shall mean the price per Common Share paid by the acquiror in the Change in Control transaction  or, to the extent that the consideration in the Change in Control transaction is paid in stock of the acquiror  or its affiliates, the Share Value shall mean the value of the consideration paid per Common Share based  on  the VWAP per  share of  such  acquiror  stock for  the 10 consecutive  trading  days on the  principal  exchange on which such shares are then traded immediately preceding the date on which a Change in  Control occurs.         “Subsidiary” means any subsidiary of the Company and any partnership, the general partner of  which is the Company or any subsidiary of the Company and any limited liability company, the managing  member of which is the Company or any subsidiary of the Company.         “Termination Fee” has the meaning set forth in Section 13 of this Agreement.         “Termination Notice” has the meaning set forth in Section 12(b)(i) of this Agreement.         “Transition Services Agreement” has the meaning set forth in Section 12(b)(i) of this Agreement.         “VWAP” means the volume weighted average price.         “XIRR” means the Extended Internal Rate of Return as calculated by using the “=XIRR” function  in Microsoft Excel.              SECTION 2. APPOINTMENT AND DUTIES OF THE MANAGER.                                                                                                                                                                            5  





 






        (a)   The Company hereby appoints the Manager to manage the assets of the Company, subject  to the further terms and conditions set forth in this Agreement, and the Manager hereby agrees to use its  commercially reasonable efforts to perform each of the duties set forth herein. The appointment of the  Manager shall be exclusive to the Manager, except to the extent that the Manager elects, pursuant to the  terms and conditions of this Agreement, to cause the duties of the Manager hereunder to be provided by  third parties.         (b)   The Manager, in its capacity as manager of the assets and the day-to-day operations of the  Company (and all subsidiaries and joint ventures of the Company), at all times will be subject to the  supervision, direction and management of the Board of Trustees and will have only such functions and  authority as the Company may delegate to it.  The Company hereby reserves to a majority of the Board of  Trustees (three (3) of whom must be independent) the following powers:               (i)   the authority to determine or change the strategic direction of the Company at any        time and in the sole discretion of the Board of Trustees;               (ii)  the approval of prospective Investments, to the extent required by the Investment        Manual  or  the  Conflicts  of  Interest  Policy,  which  may  not  be  amended  in  a  manner  that  is        detrimental to the Company without approval by a majority of the Independent Trustees, it being        understood that the Board of Trustees shall have the power to reject prospective Investments, even        if such Investments comply with the criteria outlined in the Investment Manual;               (iii) the approval or disapproval of prospective dispositions of Investments, to the extent        required by the Investment Manual, as it may be amended by the Board of Trustees from time to        time;               (iv)  the approval of the terms of loan documents for the Company’s financings;               (v)   the approval of the Company’s annual budget (which shall address in reasonable        detail, among other matters, financing plans and capital planning, it being understood that the        Manager will submit such budget in advance to the Board of Trustees for review and approval,        and  will  provide  quarterly  updates  of  performance  against  the  annual  budget  to  the  Board  of        Trustees;               (vi)  the approval of the retention of the Company’s registered public accountants;               (vii) the approval of any material transaction between the Company and the Manager        and its Affiliates, other than transactions pursuant to this Agreement, the Property Management        Agreement and other transactions in effect as of the Distribution Date;                (viii) the issuance of equity or debt securities by the Company;                (ix)  the grant of equity incentive awards by the Company;               (x)   the entry into joint ventures by the Company or its Subsidiaries;               (xi)  the approval of entry into any transaction that would constitute a Change in Control;        and               (xii)  such other matters as may be determined by the Board of Trustees from time to                                                                                                                                                                           6  





 






        time.         (c)   The  Company,  subject  to  Section  2(b),  hereby  delegates the following functions  and  authority to the Manager. Subject to the Section 2(b), the Manager will be responsible for managing the  assets and the day-to-day operations of the Company and will perform (or cause to be performed) such  services  and  activities  relating  to  the  assets  and  operations  of  the Company  as  may  be  appropriate,  including, without limitation:               (i)   sourcing, investigating and evaluating prospective Investments and dispositions of        Investments, subject to and consistent with the Investment Manual, and making recommendations        with respect thereto to the Board of Trustees, where applicable;               (ii)  subject to and consistent with the Investment Manual, conducting negotiations with        brokers, sellers and purchasers, and their respective agents and representatives, investment bankers        and owners of privately and publicly held real estate or related assets, regarding the purchase, sale,        exchange or other disposition of any Investments;               (iii) managing and monitoring the operating performance of Investments and providing        periodic reports to the Board of Trustees, including comparative information with respect to such        operating performance and budgeted or projected operating results;               (iv)  assisting the Company in developing criteria that are specifically tailored to the        Company’s investment objectives and making available to the Company the Manager’s knowledge        and experience with respect to its target assets;               (v)   engaging and supervising independent contractors that provide services relating to        the  Company  or  the  Investments,  including,  but  not  limited  to, investment  banking,  legal  or        regulatory  advisory,  tax  advisory,  accounting  advisory,  securities  brokerage,  property        management/operations, property condition, real estate and leasing advisory and brokerage, and        other financial and consulting services reasonably necessary for Manager to perform its duties        hereunder (it being understood that the Board of Trustees and its Audit Committee shall retain        authority to determine the Company’s independent public accountant and that the Independent        Trustees and any committee of the Board of Trustees shall retain the authority to hire its or their        own attorneys or other advisors);               (vi)  subject to any required approval of the Board of Trustees, negotiating, on behalf of        the Company, the terms of loan documents for the Company’s financings;               (vii) enforcing, monitoring and managing compliance with loan documents to which the        Company is a party on behalf of the Company;               (viii) coordinating  and  managing  operations  of  any  joint  venture  or  co-investment        interests held by the Company and conducting all matters with the joint venture or co-investment        partners;               (ix)  coordinating  and  supervising  all  property  managers,  tenant  operators,  leasing        agents and developers for the administration, leasing, management and/or development of any of        the Investments;               (x)   providing executive and administrative personnel, office space and office services                                                                                                                                                                           7  





 






            required in rendering services to the Company;          (xi)  administering  bookkeeping  and  accounting  functions  as  are  required  for  the  management and operation of the Company, contracting for audits and preparing or causing to be  prepared such periodic reports and filings as may be required by any governmental authority in  connection with  the ordinary conduct  of the Company’s business,  and otherwise advising  and  assisting  the  Company  with  its  compliance  with  applicable  legal  and  regulatory  requirements,  including, without limitation, periodic reports, returns or statements required under the Exchange  Act, the Code and any regulations or rulings thereunder, the securities and tax statutes of any  jurisdiction in which the Company is obligated to file such reports, or the rules and regulations  promulgated under any of the foregoing;         (xii) advising  and  assisting  in  the  preparation  and  filing  of  all  offering  documents,  registration statements, prospectuses, proxies, and other forms or documents filed with the SEC  pursuant  to  the  Securities  Act  or  any  state  securities  regulators  (it  being  understood  that  the  Company shall be responsible for the content of any and all of its offering documents, SEC filings  or state regulatory filings, and that Manager shall not be held liable for any costs or liabilities  arising out of any misstatements or omissions in the Company’s offering documents, SEC filings,  state regulatory filings or other filings referred to in this subparagraph, whether or not material  (except by reason of acts constituting bad faith, willful misconduct, gross negligence or reckless  disregard of Manager’s duties under this Agreement);         (xiii) causing  the  Company  to  retain  qualified  accountants  and  legal  counsel,  as  applicable, to assist in developing appropriate accounting procedures, compliance procedures and  testing systems with respect to financial reporting obligations and compliance with the provisions  of the Code applicable to REITs (it being understood that the Board of Trustees and its Audit  Committee shall retain authority to determine the Company’s independent public accountant and  that the Independent Trustees and any Committee of the Board of Trustees shall retain the authority  to hire its or their own attorneys or other advisors);         (xiv) taking all necessary actions to enable the Company to make required tax filings and  reports, including soliciting shareholders for required information to the extent required by the  provisions of the Code applicable to REITs;          (xv)  counseling the Company regarding the maintenance of its status as  a REIT and  monitoring compliance with the various REIT qualification tests and other rules set out in the Code  and Treasury Regulations thereunder;         (xvi) counseling  the  Company  regarding  the  maintenance  of  its  exemption  from  the  Investment Company Act and monitoring compliance with the requirements for maintaining an  exemption from the Investment Company Act;         (xvii) counseling the Company in connection with policy decisions to be made by the  Board of Trustees;         (xviii) evaluating  and  recommending  to  the  Board  of  Trustees  modifications  to  any  hedging strategies in effect on the date hereof and engaging in hedging activities;         (xix) communicating with the Company’s investors and analysts as required to satisfy  reporting  or  other  requirements  of  any  governing  body  or  exchange  on  which  the  Company’s                                                                                                                                                               8  





 






        securities are traded and to maintain effective relations with such investors;               (xx)  investing and re-investing any moneys and securities of the Company (including        investing in short-term Investments pending investment in Investments, payment of fees, costs and        expenses, or payments of dividends or distributions to shareholders and partners of the Company)        and advising the Company as to its capital structure and capital raising;               (xxi) causing the Company to qualify to do business in all applicable jurisdictions and to        obtain and maintain all appropriate licenses;               (xxii) handling and resolving all claims, disputes or controversies (including all litigation,        arbitration,  settlement  or  other  proceedings  or  negotiations)  in  which  the  Company  may  be        involved  or  to  which  the  Company  may  be  subject  arising  out  of  the  Company’s  day-to-day        operations, subject to such limitations or parameters as may be imposed from time to time by the        Board of Trustees;               (xxiii) using commercially reasonable efforts to cause expenses incurred by or on behalf        of the Company to be within any expense guidelines set by the Board of Trustees from time to        time;               (xxiv) performing  such  other  services  as  may  be  required  from  time  to  time  for        management and other activities relating to the assets of the Company as the Board of Trustees        and Manager shall agree from time to time; and               (xxv) using commercially reasonable efforts to cause the Company to comply with all        applicable  laws  and  regulations  in  all  material  respects,  subject  to  the  Company  providing        appropriate, necessary and timely funding of capital.         The Board of Trustee has dispositive power in the event of any conflict between the Board of  Trustees and the Manager with respect to the functions and authority delegated to the Manager above.         Without limiting the foregoing, the Manager will perform portfolio management services on behalf  of  the  Company  with  respect  to  the  Investments.  Such  services  will  include,  but  not  be  limited  to,  consulting  with  the  Company  on  the  purchase  and  sale  of,  and  other  investment  opportunities  in  connection with, the Company’s portfolio of assets; the collection of information and the submission of  reports  pertaining  to  the  Company’s  assets,  interest  rates  and  general  economic  conditions;  periodic  review and evaluation of the performance of the Company’s portfolio of assets; acting as liaison between  the Company and banking, mortgage banking, investment banking and other parties with respect to the  purchase,  financing  and  disposition  of  assets;  and  other  customary  functions  related  to  portfolio  management. Additionally, the Manager will perform monitoring services on behalf of the Company with  respect  to  any  services  provided  by  third  parties,  which  the  Manager  determines  are  material  to  the  performance of the business.         (d)   Subject to Section 2(b) above and the Conflicts of Interest Policy, the Manager may enter  into agreements with other parties in connection with its duties hereunder.         (e)   The  Manager  may  retain,  for  and  on  behalf,  and  at  the  sole  cost  and  expense,  of  the  Company,  such  services  of  accountants,  legal  counsel,  tax  counsel,  appraisers,  insurers,  brokers  or  business  developers,  transfer  agents,  registrars,  developers,  investment  banks,  financial  advisors,  underwriters,  banks  and  other  lenders  and  others  as  the  Manager  deems  necessary  or  advisable  in                                                                                                                                                                           9  





 






  connection with the management and operations of the Company. Notwithstanding anything contained  herein to the contrary, the Manager shall have the right to cause any such services to be rendered by its  employees or Affiliates (which, for the avoidance of doubt, includes any employees, consultants or agents  of any Affiliate of the Manager).          (f)   As frequently as the Manager may deem necessary or advisable, or at the direction of the  Board of Trustees, the Manager shall, at the sole cost and expense of the Company, prepare, or cause to  be  prepared,  with  respect  to  any  Investment  (i)  an  appraisal  prepared  by  an  independent  real  estate  appraiser; (ii) reports and information on the Company’s operations and asset performance; and (iii) other  information reasonably requested by the Company.         (g)   The Manager shall prepare, or cause to be prepared, at the sole cost and expense of the  Company,  all  reports,  financial  or  otherwise,  with  respect  to  the  Company  required  by  the  Board  of  Trustees  in  order  for  the  Company  to  comply  with  its  Governing  Instruments  or  any  other  materials  required to be filed with any governmental body or agency, as well as all materials and data necessary to  complete such reports and other materials including, without limitation, an annual audit of the Company’s  books of account by a nationally recognized independent accounting firm.         (h)   The Manager shall prepare regular reports for the Board of Trustees to enable the Board of  Trustees to review the Company’s acquisitions, portfolio composition and characteristics, credit quality,  performance and compliance with the Investment Manual and any policies approved by the Board of  Trustees.         (i)   Notwithstanding anything contained in this Agreement to the contrary, the Manager shall  not be required to expend money (“Excess Funds”) in excess of that contained in any applicable Company  Account or otherwise made available by the Company to be expended by the Manager hereunder. Failure  of the Manager to expend Excess Funds out-of-pocket shall not give rise or be a contributing factor to the  right of the Company under Section 12(b) to terminate this Agreement due to the Manager’s unsatisfactory  performance.         (j)   In  performing  its  duties  under  this  Section  2,  the  Manager  shall  be  entitled  to  rely  reasonably on qualified experts hired by the Manager.   SECTION 3. DEVOTION OF TIME; ADDITIONAL ACTIVITIES.         (a)   The  Manager  will  provide  a  management  team,  including  a  dedicated chief  executive  officer and  a  dedicated  chief  financial  officer,  to  provide  the  management services  hereunder.  The  members of such team shall devote such of their time to the management of the Company as is reasonably  necessary and appropriate.         (b)   Except to the extent set forth in clause (a) above or in the Conflicts of Interest Policy,  nothing herein shall prevent the Manager or any of its Affiliates or any of the officers and employees of  any of the foregoing from engaging in other businesses or from rendering services of any kind to any other  person or entity, including investment in, or advisory service to others investing in, any type of real estate  or real estate related investment, including investments which meet the principal investment objectives of  the Company. Subject to the Conflicts of Interest Policy, the Company recognizes that it is not entitled to  preferential treatment in receiving information, recommendations and other services from the Manager.  The Manager shall act in good faith to endeavor to identify to the Independent Trustees any conflicts that  may  arise  among  the  Company,  the  Manager  and/or  any  other  person  or  entity  on  whose  behalf  the  Manager may be engaged. When allocating investment opportunities among the persons or entities for                                                                                                                                                                          10  





 






  which the Manager acts as manager, the Manager will comply with its Conflicts of Interest Policy as in  effect from time to time         (c)   Managers, members, officers, employees and agents of the Manager or Affiliates of the  Manager may serve as trustees, officers, employees, agents, nominees or signatories for the Company or  any  Subsidiary,  to the  extent  permitted  by  the Governing  Instruments of  the Company  or  any such  Subsidiary, as from time to time amended, or by any resolutions duly adopted by the Board of Trustees  pursuant to the Company’s Governing Instruments. When executing documents or otherwise acting in  such capacities for the Company, such persons shall use their respective titles in the Company.   SECTION 4. AGENCY.         The Manager shall act as agent of the Company in making, acquiring, financing and disposing of  Investments,  disbursing  and  collecting  the  Company’s  funds,  paying  the  debts  and  fulfilling  the  obligations of the Company, supervising the performance of professionals engaged by or on behalf of the  Company and handling, prosecuting and settling any claims of or against the Company, the Board of  Trustees, holders of the Company’s securities or the Company’s representatives or properties.   SECTION 5. BANK ACCOUNTS.         The Manager may establish and maintain one or more bank accounts in the name of the Company  or any Subsidiary (any such account, a “Company Account”), and may collect and deposit funds into any  such Company Account or Company Accounts, and disburse funds from any such Company Account or  Company Accounts; and the Manager shall from time to time render appropriate accountings of such  collections and payments to the Board of Trustees and, upon request, to the auditors of the Company or  any Subsidiary.   SECTION 6. RECORDS; CONFIDENTIALITY.         The  Manager  shall  maintain  appropriate  books  of  accounts  and  records  relating  to  services  performed under this Agreement, and such books of account and records shall be accessible for inspection  by representatives of the Company at any time during normal business hours upon reasonable advance  notice to the Manager.         The Manager shall keep confidential any and all non-public information obtained in connection  with the services rendered under this Agreement and shall not disclose any such information to any person,  except to (i) its Affiliates, members, officers, directors, employees, agents, representatives or advisors  who have a need to know such information in order to carry out their duties to the Company and who have  a duty to the Manager or to the Company to keep such information confidential, (ii) appraisers, financing  sources and others in the ordinary course of the Manager’s business for the purpose of rendering services  hereunder, provided that such persons agree to keep such information confidential, (iii) in connection with  any  governmental  or  regulatory  requests  of  the  Manager  and  any  of  its  Affiliates,  (v)  as  required  by  applicable law or regulation, including any applicable disclosure requirements applicable to the Manager  and its Affiliates under securities or blue sky laws or stock exchange listing requirements, or (vi) with the  prior written consent of the Board of Trustees.   SECTION 7. OBLIGATIONS OF MANAGER; RESTRICTIONS.         (a)   The Manager shall require each seller or transferor of Investments to the Company to make  such representations and warranties regarding such assets as may, in the sole judgment made in good faith                                                                                                                                                                          11  





 






  of the Manager, be necessary and appropriate. In addition, the Manager shall take such other action as it  deems necessary or appropriate with regard to the protection of the Investments.         (b)   The Manager shall refrain from any action that, in its sole judgment made in good faith, (i)  is not in compliance with the Investment Manual, (ii) can reasonably be expected to result in the loss of  the Company’s status as a REIT under the Code or (iii) would violate any law, rule or regulation of any  governmental  body  or  agency  having  jurisdiction  over  the  Company  or  any  Subsidiary that  would  materially  adversely  affect  the  Company or  that  would  otherwise  not  be  permitted  by  such  entity’s  Governing Instruments. If the Manager is ordered to take any such action by the Board of Trustees, the  Manager shall promptly notify the Board of Trustees of the Manager’s judgment that such action would  adversely affect such status or violate any such law, rule or regulation or the Governing Instruments.  Notwithstanding the foregoing, the Manager and its Affiliates, officers and employees shall not be liable  to  the  Company  or  any  Subsidiary,  the  Board  of  Trustees,  or  the  Company’s  or  any  Subsidiary’s  shareholders or partners for any act or omission by the Manager, its Affiliates, officers or employees  except as provided in Section 10.         (c)   The Manager shall at all times during the term of this Agreement (including the Original  Term  and  any  renewal  term)  maintain  a  tangible  net  worth  equal  to  or  greater  than $1,000,000.  Additionally, during such period the Manager shall maintain “errors and omissions” insurance coverage  and other insurance coverage which is customarily carried by asset and investment managers performing  functions similar to those of the Manager under this Agreement with respect to assets similar to the assets  of the Company, in an amount which is comparable to that customarily maintained by other managers or  servicers of similar assets.   SECTION 8. COMPENSATION.         (a)   The Company shall pay Manager a management fee (“Management Fee”) equal to $20.0  million per annum, payable in equal monthly installments, in arrears, on the tenth day of each calendar  month beginning with the first calendar month after the date of this Agreement; provided, however, that  (i) in the event of a Management Fee PIK Event arising under clause (i) of the definition thereof, the  portion of the monthly installment of the Management Fee that is necessary for the Company to have  sufficient funds to declare and pay dividends required to be paid in cash in order for the Company to  maintain its status as a REIT under the Code and to avoid incurring income or excise taxes shall, during  the occurrence and continuation of any such Management Fee PIK Event, be payable in a number of Series  A  Preferred  Shares  determined  by  dividing  such  portion  of  the  Management  Fee  by  the  liquidation  preference of the Series A Preferred Shares rounded down to the nearest whole share and (ii) in the event  of a Management Fee PIK Event arising under clause (ii) of the definition thereof, that the entire monthly  installment of the Management Fee shall, during the occurrence and continuation of any such Management  Fee  PIK Event,  be  payable  in a  number  of  Series  A  Preferred  Shares  determined  by  dividing  the  Management Fee by the liquidation preference of the Series A Preferred Shares rounded down to the  nearest whole share. In the event that this Agreement commences on a date other than the first day of a  calendar month, or terminates on a date other than the last day of a calendar month, the installment of the  Management  Fee  payable  for  that  month  shall  be  prorated  for  the  actual  number  of  days  that  this  Agreement is effective in that calendar month.         (b)   The  Management  Fee  is  subject  to  adjustment  pursuant  to  and  in  accordance  with  the  provisions of Section 12(b).         (c)   To  incentivize  employees,  officers,  consultants,  non-employee  trustees,  Affiliates  or                                                                                                                                                                           12  





 






  representatives of the Manager to achieve the goals and business objectives of the Company as established  by the Board of Trustees, in addition to the Management Fee set forth above, the Board of Trustees will  have the authority to make recommendations of annual equity awards to the Manager or its affiliates or  directly to employees, officers, consultants, non-employee trustees, Affiliates or representatives of the  Manager (including the dedicated chief executive officer and chief financial officer of the Company),  based on the achievement by the Company of certain financial or other objectives established by the Board  of Trustees; provided that, no equity awards by the Company to employees or officers of the Manager  (including the dedicated chief executive officer and chief financial officer of the Company) shall be made  without  the  Manager’s  prior  written  consent. The  Company,  at  its  option,  may  choose  to  issue  such  compensation in the form of equity awards in the Company or the Operating Partnership, unless and to  the extent that receipt of such equity awards would adversely affect the Company’s status as a REIT, in  which case, the equity awards shall be limited to equity awards in the Operating Partnership, unless and  to the extent that receipt of such equity awards would adversely affect the Operating Partnership’s status  as a partnership for U.S. federal income tax purposes or the Company’s status as a REIT, in which case,  the grant of equity awards shall not be made. Any transfer of such equity awards at any time must comply  with  the  transfer  restrictions  of  the  Operating  Partnership’s  partnership  agreement  or  the  Company’s  declaration of trust and bylaws, as applicable.   SECTION 9. EXPENSES.         (a)   Expenses of the Manager.  Except as otherwise expressly provided herein or approved by  majority vote of the Independent Trustees or the Audit Committee of the Board, the Manager shall bear  the following expenses incurred in connection with the performance of its duties under this Agreement:               (i)   base  salary,  cash  incentive  compensation  and  other  employment  expenses        (excluding equity awards granted by the Company pursuant to Section 8(c)) of the dedicated chief        executive officer and dedicated chief financial officer of the Company;               (ii)  employment expenses of other personnel employed by the Manager, including, but        not limited to, salaries, wages, payroll taxes and the cost of employee benefit plans;               (iii) fees and travel and other expenses of officers and employees of the Manager, except        for (A) fees and travel and other expenses of such persons incurred while performing services on        behalf of the Company (provided that, if such fees and travel and other expenses are incurred while        providing services on behalf of both the Company and its affiliates and Spirit Realty Capital, Inc.        and its affiliates, the Manager shall have the authority to reasonably allocate such fees and travel        and  other  expenses  between  the  entities),  and  (B) fees  and  travel  and  other  expenses  of  such        persons who are trustees or officers of the Company incurred in their capacities as trustees or        officers of the Company;               (iv)  rent,  telephone,  utilities,  office  furniture,  equipment  and  machinery  (including        computers, to the extent utilized) and other office expenses of the Manager, except to the extent        such expenses relate solely to an office maintained by the Company separate from the office of        the Manager; and               (v)   miscellaneous administrative expenses relating to performance by the Manager of        its obligations hereunder.         (b)   Expenses of the Company.  Except as expressly otherwise provided in this Agreement, the  Company shall pay all of its and its Subsidiaries’ expenses, and, without limiting the generality of the                                                                                                                                                                          13  





 






  foregoing, it is specifically agreed that the following expenses of the Company and its Subsidiaries shall  be paid by the Company or its Subsidiaries and shall not be paid by the Manager:               (i)   the cost of borrowed money;               (ii)  taxes on income and taxes and assessments on real and personal property, if any,        and all other taxes applicable to the Company or its Subsidiaries;               (iii) legal, auditing, accounting, underwriting, brokerage, listing, reporting, registration        and other fees, and printing, engraving and other expenses and taxes incurred in connection with        the issuance, distribution, transfer, trading, registration and listing of the Company’s or any of its        Subsidiaries securities on the stock exchange, including transfer agent’s, registrar’s and indenture        trustee’s fees and charges;               (iv)  expenses of organizing, restructuring, reorganizing or liquidating the Company or        any of its Subsidiaries, or of revising, amending, converting or modifying the Company’s or any        of its Subsidiaries’ organizational documents;               (v)   fees and travel and other expenses paid to members of the Board of Trustees and        officers of the Company or those of individuals in similar positions with any of its Subsidiaries in        their capacities as such (but not in their capacities as officers or employees of the Manager) and        fees and travel and other expenses paid to advisors, contractors, mortgage servicers, consultants,        and other agents and independent contractors employed by or on behalf of the Company and its        Subsidiaries;               (vi)  expenses  directly  connected  with  the  investigation,  acquisition,  disposition  or        ownership of real estate interests or other property (including third party property diligence costs,        appraisal reporting, the costs of foreclosure, insurance premiums, legal services, brokerage and        sales commissions, maintenance, repair, improvement and local management of property), other        than expenses with respect thereto of employees of the Manager, to the extent that such expenses        are to be borne by the Manager pursuant to Section 9(a) above;               (vii) all insurance costs incurred in connection with the Company and its Subsidiaries        (including officer and trustee liability insurance) or in connection with any officer and trustee        indemnity agreement to which the Company or any of its Subsidiaries is a party;               (viii) expenses connected with payments of dividends or interest or contributions in cash        or  any  other  form  made  or  caused  to  be  made  by  the  Trustees  to  holders  of  securities  of  the        Company or any of its Subsidiaries;               (ix)  all  expenses  connected  with  communications  to  holders  of  securities  of  the        Company or its Subsidiaries and other bookkeeping and clerical work necessary to maintaining        relations with holders of securities, including the cost of any transfer agent, the cost of preparing,        printing, posting, distributing and mailing certificates for securities and proxy solicitation materials        and reports to holders of the Company’s or its Subsidiaries’ securities;               (x)   legal, accounting and auditing fees and expenses in addition to those described in        subsection (iii) above;               (xi)  filing  and  recording  fees  for  regulatory  or  governmental  filings,  approvals  and                                                                                                                                                                          14  





 






        notices to the extent not otherwise covered by any of the foregoing items of this Section 9(b);               (xii) expenses relating to any office or office facilities maintained by the Company or its        Subsidiaries separate from the office of the Manager;               (xiii) software  licensing  fees  and  other  fees  and  costs  associated  with  proprietary        software and programs used separately by the Company;               (xiv) the costs and expenses of all equity award or compensation plans or arrangements        established by the Company or any of its Subsidiaries, including the value of awards made by the        Company or any of its Subsidiaries to the Manager or its employees, if any, and payment of any        employment or withholding taxes in connection therewith;                 (xv)  the equity portion of the compensation of the Company’s dedicated chief executive        officer  and  dedicated  chief  financial  officer,  which the  Company  is solely  responsible  for        determining and paying; and               (xvi) all other costs and expenses of the Company and its Subsidiaries, other than those        to be specifically borne by the Manager pursuant to Section 9(a) above.         Notwithstanding the foregoing, nothing in this Agreement shall be deemed to amend or modify  the Property Management Agreement.   SECTION 10. LIMITS OF MANAGER RESPONSIBILITY; INDEMNIFICATION.         (a)   The  Manager  assumes  no  responsibility  under  this  Agreement  other  than  to  render  the  services called for under this Agreement in good faith and shall not be responsible for any action of the  Board of Trustees in following or declining to follow any advice or recommendations of the Manager,  including as set forth in Section 7(b). The Manager, its members, managers, officers and employees will  not  be  liable  to  the  Company or  any  Subsidiary,  to  the  Board  of  Trustees,  or  the  Company’s  or  any  Subsidiary’s shareholders or partners for any acts or omissions by the Manager, its Affiliates, members,  managers, officers or employees, pursuant to or in accordance with this Agreement, except by reason of  acts constituting bad faith, willful misconduct or gross negligence. The Company shall, to the full extent  lawful,  reimburse,  indemnify  and  hold  the  Manager,  its Affiliates, members,  managers,  officers  and  employees, sub-advisers and each other Person, if any, controlling the Manager (each, an “Indemnified  Party”), harmless of and from any and all expenses, losses, damages, liabilities, demands, charges and  claims of any nature whatsoever (including attorneys’ fees) (collectively, “Losses”) in respect of or arising  from  any  acts  or  omissions  of  such  Indemnified  Party  made  in  good  faith  in  the  performance  of  the  Manager’s duties under this Agreement and not constituting such Indemnified Party’s bad faith, willful  misconduct or gross negligence.         (b)   The Manager shall, to the full extent lawful, reimburse, indemnify and hold the Company,  its shareholders, trustees, officers and employees and each other Person, if any, controlling the Company  (each, a “Company Indemnified Party”), harmless of and from any and all Losses in respect of or arising  from any acts or omissions of the Manager constituting bad faith, willful misconduct or gross negligence.   SECTION 11. NO JOINT VENTURE.         Nothing in this Agreement shall be construed to make the Company and the Manager partners or  joint venturers or impose any liability as such on either of them.                                                                                                                                                                          15  





 






  SECTION 12. TERM; TERMINATION.         (a)   Term.  Unless terminated in accordance with Section 15(a), this Agreement shall be in  effect until the date that is three years after the date hereof (the “Original Term”). At the expiration of the  Original Term, this Agreement shall be deemed renewed automatically each year for an additional one- year period (each, a “Renewal Term”), unless terminated pursuant to Section 12(b) or Section 12(c) below.         (b)   Termination without Cause.                 (i)   Termination by the Company.  The Company may terminate this Agreement at any  time upon 180-day written notice to the Manager informing it of the Company’s intention to terminate  this  Agreement. Effective  on  the  termination  date  of  this  Agreement  under  this  Section  12(b)(i),  the  Company  and  the  Manager  will  enter  into  a  transition  services  agreement  (“Transition  Services  Agreement”), upon mutually acceptable terms, that shall be in effect until the date that is eight months  after  the  date of  the  termination  of  this  Agreement.  For  its  services  under  the  Transition  Services  Agreement, the Company shall pay the Manager the Management Fee, pro rated for the  eights-month  term of the Transition Services Agreement, payable in equal monthly installments, in arrears, on the tenth  day of each calendar month beginning with the first calendar month after the date of termination of this  Agreement.               (ii)  Termination by the Manager.  No later than 180 days prior to the expiration of the  Original Term or any Renewal Term, the Manager may deliver written notice to the Company informing  it of the Manager’s intention not to renew the term, whereupon the term of this Agreement shall not be  renewed  and  extended, and  this  Agreement  shall  terminate  effective  on  the  expiration  date  of  this  Agreement next following the delivery of such notice.         (c)   Termination for Cause.                 (i)   Termination by the Company.  The Company may terminate this Agreement upon  30 days’ prior written notice to the Manager if (A) there is a commencement of any proceeding relating  to the Manager’s bankruptcy or insolvency, including an order for relief in an involuntary bankruptcy case  or the Manager authorizing or filing a voluntary bankruptcy petition, and such proceeding or order shall  remain in force or unstayed for a period of 30 days, (B) the Manager dissolves as an entity, or (C) the  Manager commits fraud against the Company, misappropriates or embezzles funds of the Company, or  acts in a manner constituting bad faith, willful misconduct or gross negligence in the performance of its  duties under this Agreement; provided, however, that if any of the actions or omissions described in this  clause (C) are caused by an employee and/or officer of the Manager or one of its affiliates and the Manager  takes appropriate action against such person and cures the damage caused by such actions or omissions  within 30 days of the Manager’s actual knowledge of its commission or omission, the Company shall not  have the right to terminate this Agreement pursuant to this clause (iii).               (ii)  Termination by the Manager.  The Manager may terminate this Agreement upon  60 days’  prior  written  notice  to  the  Company  in  the  event  that  the  Company  shall  default  in  the  performance or observance of any material term, condition or covenant contained in this Agreement and  such default shall continue for a period of 30 days after written notice thereof specifying such default and  requesting  that  the  same  be  remedied  in  such  30-day  period.  The  Manager  may  also  terminate  this  Agreement in its sole discretion effective immediately concurrently with or within 90 days following a  Change in Control or a non-cause termination of the Property Management Agreement, in each case upon  30 days’ prior written notice to the Company.                                                                                                                                                                             16  





 






  SECTION 13. TERMINATION FEE.         In the event that this Agreement is terminated (a) by the Company pursuant to Section 12(b)(i) or  (b) by the Manager pursuant to Section 12(c)(ii), the Company shall pay to the Manager, on the Effective  Termination Date or as promptly thereafter as practicable, a termination fee (the “Termination Fee”) equal  to 1.75 times the sum of (x) the Management Fee for the 12 full calendar months preceding the Effective  Termination Date, plus (y) all fees due to the Manager or its Affiliates under the Property Management  Agreement for the 12 full calendar months preceding the Effective Termination Date.   SECTION 14. PROMOTE.         Upon  the  earlier of  (a)  a  termination of  this  Agreement  pursuant  to  Section 12(b)(i),  (b)  a  termination of this Agreement pursuant to Section 12(c)(ii), and (c) the date that is 36 full calendar months  after the date of this  Agreement, the Company shall pay to  the Manager, on the date of the  relevant  termination  or  other  event  or as  promptly  thereafter  as  practicable,  a cash promote payment (the  “Promote”) if the Company TSR Percentage exceeds 10% during the Measurement Period.  The Promote  shall be calculated, without duplication, as follows:         (i)   to the extent that the Company TSR Percentage exceeds 10% during the Measurement        Period, the Promote shall equal the product of:               (x)   the  weighted-average  number  of  Common  Shares  outstanding  during  the              Measurement  Period  (calculated  on  a  fully-diluted  basis  in  accordance  with  GAAP),              multiplied by                (y)   the product of (A) 10%, multiplied by (B) the difference of (I) the Company TSR              Amount  not  to  exceed a Hurdle TSR Amount  implied by a Company  TSR Percentage              during the Measurement Period of 12.5%, less (II) a Hurdle TSR Amount implied by a              Company TSR Percentage during the Measurement Period of 10%;          (ii)  to the extent that the Company TSR Percentage exceeds 12.5% during the Measurement        Period, the Promote shall equal the sum of:                (x)   the amount under (i) above, plus               (y)   the product of:                      (A)   the weighted-average number of Common Shares outstanding during the                    Measurement  Period  (calculated  on  a  fully-diluted  basis  in  accordance  with                    GAAP), multiplied by                      (B)   the product of (I) 15%, multiplied by (II) the difference of (1) the Company                    TSR Amount not to exceed a Hurdle TSR Amount implied by a Company TSR                    Percentage during the Measurement Period of 15%, less (2) a Hurdle TSR Amount                    implied by a Company TSR Percentage during the Measurement Period of 12.5%;                    and         (iii) to the extent that the Company TSR Percentage exceeds 15% during the Measurement        Period, the Promote shall equal the sum of:                                                                                                                                                                            17  





 






              (x)   the amount under (ii) above, plus                (y)   the product of:                      (A)   the weighted-average number of Common Shares outstanding during the                    Measurement  Period  (calculated  on  a  fully-diluted  basis  in  accordance  with                    GAAP), multiplied by                      (B)   the product of (I) 20%, multiplied by (II) the difference of (1) the Company                    TSR  Amount, less (2)  a  Hurdle  TSR  Amount  implied  by  a  Company  TSR                    Percentage during the Measurement Period of 15%.         For avoidance doubt, the Promote (including the related definitions of the Company TSR Amount,  the  Company  TSR  Percentage  and  the  Hurdle  TSR  Amount) shall  be  calculated consistent with  the  illustrative Promote calculation methodology set forth on Exhibit A hereto.     SECTION 15. ASSIGNMENT.         (a)   Except as set forth in Section 15(b), this Agreement shall terminate automatically in the  event of its assignment, in whole or in part, by the Manager, unless such assignment is consented to in  writing by the Company with the consent of a majority of the Independent Trustees; provided, however,  that no such consent shall be required in the case of an assignment by the Manager to an entity whose  business and operations  are managed or supervised by Spirit Realty Capital, Inc. Any such permitted  assignment shall bind the assignee under this Agreement in the same manner as the Manager is bound.  The Manager shall continue to be liable to the Company for all errors or omissions of any assignee that is  managed  or  supervised  by  Spirit  Realty  Capital,  Inc. The  Manager  shall  not  be  liable  for  errors  or  omissions of any other successor manager arising from and after any such assignment. In the case of any  assignment, the assignee shall execute and deliver to the Company a counterpart of this Agreement naming  such assignee as Manager. This Agreement shall not be assigned by the Company without the prior written  consent  of the Manager, except  in  the case of assignment by the Company to  another REIT or  other  organization that is a successor (by merger, consolidation or purchase of assets) to the Company, in which  case such successor organization shall be bound under this Agreement and by the terms of such assignment  in the same manner as the Company is bound under this Agreement.         (b)   Notwithstanding any provision of this Agreement, the Manager may subcontract and assign  any or all of its responsibilities under Section 2 to any of its Affiliates in accordance with the terms of this  Agreement, and the Company hereby consents to any such assignment and subcontracting. In addition,  provided that the Manager provides prior written notice to the Company for informational purposes only,  nothing contained in this Agreement shall preclude any pledge, hypothecation or other transfer of any  amounts payable to the Manager under this Agreement.   SECTION 16. ACTION UPON TERMINATION.         (a)   From and after the Effective Termination Date pursuant to Section 12, the Manager shall  not  be  entitled  to  compensation  for  further  services  under  this  Agreement,  but  shall  be  paid  all  compensation accruing to the date of termination, including,  without limitation,  any Termination Fee  or/and Promote Fee due in connection with such termination. On the Effective Termination Date or as  promptly thereafter as practicable, the Manager shall forthwith:               (i)   after deducting any accrued compensation and reimbursement for its expenses to                                                                                                                                                                          18  





 






  which it is then entitled, pay over to the Company or a Subsidiary all money collected and held for the  account of the Company or a Subsidiary pursuant to this Agreement;               (ii)  deliver to the Board of Trustees a full accounting, including a statement showing  all payments collected by it and a statement of all money held by it, covering the period following the date  of the last accounting furnished to the Board of Trustees with respect to the Company or a Subsidiary; and               (iii) deliver to the Board of Trustees all property and documents of the Company or any  Subsidiary then in the custody of the Manager; provided, however, that the Manager may retain copies of  all such information.         (b)   Upon termination of this Agreement pursuant to Section 12, on the Effective Termination  Date or as promptly thereafter as practicable, the Company shall forthwith:               (i)   pay  over  to  the Manager all  compensation  accruing  to  the  date  of  termination,  including,  without  limitation,  any Termination  Fee  or/and  Promote  Fee due  in  connection  with  such  termination; and               (ii)  reimbursement the Manager for all its expenses to which it is then entitled.         (c)   The obligation of the Company to pay the Termination Fee and the Promote Fee shall  survive  the  termination  of  this  Agreement.  In  addition,  Section  9  and  Section  10  shall  survive  the  termination of this Agreement.   SECTION 17. RELEASE OF MONEY OR OTHER PROPERTY UPON WRITTEN REQUEST.         The Manager agrees that any money or other property of the Company or a Subsidiary thereof held  by the Manager under this Agreement shall be held by the Manager as custodian for the Company or such  Subsidiary, and the Manager’s records shall be appropriately marked clearly to reflect the ownership of  such money or other property by the Company or such Subsidiary. Upon the receipt by the Manager of a  written request signed by a duly authorized officer of the Company requesting the Manager to release to  the Company or any Subsidiary any money or other property then held by the Manager for the account of  the Company or any Subsidiary under this Agreement, the Manager shall release such money or other  property to the Company or any Subsidiary within a reasonable period of time, but in no event later than  30 days following such request. The Manager shall not be liable to the Company, any Subsidiary, the  Independent Trustees, or the Company’s or a Subsidiary’s shareholders or partners for any acts performed,  or omissions to act, by the Company or any Subsidiary in connection with the money or other property  released to the Company or any Subsidiary in accordance with the first sentence of this Section 17.             SECTION 18.  NOTICES.         Unless expressly provided otherwise in this Agreement, all notices, requests, demands and other  communications required or permitted under this Agreement shall be in writing and shall be deemed to  have been duly given, made and received when delivered against receipt or upon actual receipt of (i)  personal delivery, (ii) delivery by reputable overnight courier, (iii) delivery by facsimile transmission or  email against answerback, (iv) delivery by registered or certified mail, postage prepaid, return receipt  requested, addressed as set forth below:                                                                                                                                                                           19  





 






              (a)   If to the Company:                    Spirit MTA REIT                    c/o Spirit Realty Capital, Inc.                    2727 North Harwood Street                    Suite 300, Dallas, Texas 75201                    Attention: General Counsel                                   (b)   If to the Manager:                     Spirit Realty, L.P.                    2727 North Harwood Street                    Suite 300, Dallas, Texas 75201                    Attention: General Counsel         Either party may alter the address to which communications or copies are to be sent by giving  notice of such change of address in conformity with the provisions of this Section 18 for the giving of  notice.   SECTION 19. BINDING NATURE OF AGREEMENT; SUCCESSORS AND ASSIGNS.         This  Agreement  shall be binding upon  and inure to the benefit  of the parties  hereto  and their  respective heirs, personal representatives, successors and permitted assigns as provided in this Agreement.   SECTION 20. ENTIRE AGREEMENT.         This Agreement contains the entire agreement and understanding among the parties hereto with  respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous agreements,  understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever  with respect to the subject matter of this Agreement. The express terms of this Agreement control and  supersede any course of performance and/or usage of the trade inconsistent with any of the terms of this  Agreement. This Agreement may not be modified or amended other than by an agreement in writing  executed by both parties.   SECTION 21. ARBITRATION.         (a)   Any  disputes,  claims  or  controversies  arising  out  of  or  relating  to  this  Agreement,  the  provision of services by the Manager pursuant to this Agreement or the transactions contemplated hereby,  including any disputes, claims or controversies brought by or on behalf of the Company or the Manager  or any holder of equity interests (which, for purposes of this Section 21, shall mean any holder of record  or any beneficial owner of equity interests or any former holder of record or beneficial owner of equity  interests) of the Company or the Manager, either on his, her or its own behalf, on behalf of the Company  or the Manager or on behalf of any series or class of equity interests of the Company or Manager or holders  of any equity interests of the Company or the Manager against the Company or the Manager or any of  their respective trustees, directors, members, officers, managers (including the Manager or its successor),  agents  or  employees,  including  any  disputes,  claims  or  controversies  relating  to  the  meaning,  interpretation, effect, validity, performance or enforcement of this Agreement, including this arbitration  agreement or the governing documents of the Company or the Manager (all of which are referred to as  “Disputes”), or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such  Dispute or Disputes, be resolved through binding and final arbitration in accordance with the Commercial                                                                                                                                                                          20  





 






  Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) then in effect, except  as those Rules may be modified in this Section 21. For the avoidance of doubt, and not as a limitation,  Disputes are intended to include derivative actions against the trustees, directors, officers or managers of  the Company or the Manager and class actions by a holder of equity interests against those individuals or  entities and the Company or the Manager. For the avoidance of doubt, a Dispute shall include a Dispute  made derivatively on behalf of one party against another party. For purposes of this Section 21, the term  “equity interest” shall mean, (i) in respect of the Company, shares of beneficial interest of the Company,  and (ii) in respect of the Manager, “membership interest” in the Manager as defined in the Delaware  Limited Partnership Act.          (b)   There shall be three (3) arbitrators. If there are only two (2) parties to the Dispute, each  party shall select one (1) arbitrator within fifteen (15) days after receipt by respondent of a copy of the  demand for arbitration. The arbitrators may be affiliated or interested persons of the parties. If there are  more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents, on the other  hand, shall each select, by the vote of a majority of the claimants or the respondents, as the case may be,  one (1) arbitrator within fifteen (15) days after receipt of the demand for arbitration. The arbitrators may  be affiliated or interested persons of the claimants or the respondents, as the case may be. If either a  claimant (or all claimants) or a respondent (or all respondents) fail(s) to timely select an arbitrator then  the party (or parties) who has selected an arbitrator may request AAA to provide a list of three (3) proposed  arbitrators in accordance with the Rules (each of whom shall be neutral, impartial and unaffiliated with  any party) and the party (or parties) that failed to timely appoint an arbitrator shall have ten (10) days from  the date AAA provides the list to select one (1) of the three (3) arbitrators proposed by AAA. If the party  (or  parties)  fail(s)  to  select  the  second  (2nd)  arbitrator  by  that  time,  the  party  (or  parties)  who  have  appointed the first (1st) arbitrator shall then have ten (10) days to select one (1) of the three (3) arbitrators  proposed by AAA to be the second (2nd) arbitrator; and, if he/they should fail to select the second (2nd)  arbitrator by such time, AAA shall select, within fifteen (15) days thereafter, one (1) of the three (3)  arbitrators it had proposed as the second (2nd) arbitrator. The two (2) arbitrators so appointed shall jointly  appoint the third (3rd) and presiding arbitrator (who shall be neutral, impartial and unaffiliated with any  party) within fifteen (15) days of the appointment of the second (2nd) arbitrator. If the third (3rd) arbitrator  has not been appointed within the time limit specified herein, then AAA shall provide a list of proposed  arbitrators in accordance with the Rules, and the arbitrator shall be appointed by AAA in accordance with  a listing, striking and ranking procedure, with each party having a limited number of strikes, excluding  strikes for cause.         (c)   The place of arbitration shall be Dallas, Texas, unless otherwise agreed by the parties.         (d)   There shall be only limited documentary discovery of documents directly related to the  issues in dispute, as may be ordered by the arbitrators. For the avoidance of doubt, it is intended that there  shall be no depositions and no other discovery other than limited documentary discovery as described in  the preceding sentence.         (e)   In rendering an award or decision (the “Award”), the arbitrators shall be required to follow  the laws  of the State of Maryland. Any  arbitration proceedings  or award rendered hereunder and the  validity, effect and interpretation of this arbitration agreement shall be governed by the Federal Arbitration  Act, 9 U.S.C. §1 et seq. The Award shall be in writing and shall state the findings of fact and conclusions  of law on which it is based. Any monetary award shall be made and payable in U.S. dollars free of any  tax, deduction or offset. Subject to Section 21(g), each party against which the Award assesses a monetary  obligation shall pay that obligation on or before the thirtieth (30th) day following the date of the Award  or such other date as the Award may provide.                                                                                                                                                                          21  





 






        (f)   Except to the extent expressly provided by this Agreement or as otherwise agreed by the  parties thereto, each party involved in a Dispute shall bear its own costs and expenses (including attorneys’  fees),  and  the  arbitrators  shall  not  render  an  award that  would  include  shifting  of  any  such  costs  or  expenses  (including attorneys’ fees) or, in  a derivative case or class action, award any portion  of the  Company’s or the Manager’s, as applicable, award to the claimant or the claimant’s attorneys. Each party  (or, if there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents,  on the other hand, respectively) shall bear the costs and expenses of its (or their) selected arbitrator and  the parties (or, if there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all  respondents, on the other hand) shall equally bear the costs and expenses of the third (3rd) appointed  arbitrator.         (g)   Notwithstanding any language to the contrary in this Agreement, the Award, including but  not limited to, any interim Award, may be appealed pursuant to the AAA’s Optional Appellate Arbitration  Rules (“Appellate Rules”). The Award shall not be considered final until after the time for filing the notice  of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days  of receipt of the Award by filing a notice of appeal with any AAA office. Following the appeal process,  the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. For  the avoidance of doubt, and despite any contrary provision of the Appellate Rules, this Section 21(f) shall  apply to any appeal pursuant to this Section and the appeal tribunal shall not render an award that would  include shifting of any costs or expenses (including attorneys’ fees) of any party.         (h)   Following the expiration of the time for filing the notice of appeal, or the conclusion of the  appeal process set forth in Section 21(g), the Award shall be final and binding upon the parties thereto and  shall be the sole and exclusive remedy between those parties relating to the Dispute, including any claims,  counterclaims, issues or accounting presented to the arbitrators. Judgment upon the Award may be entered  in any court having jurisdiction. To the fullest extent permitted by law, no application or appeal to any  court of competent jurisdiction may be made in connection with any question of law arising in the course  of  arbitration  or  with  respect  to  any  award  made  except  for  actions  relating  to  enforcement  of  this  agreement to arbitrate or any arbitral award issued hereunder and except for actions seeking interim or  other provisional relief in aid of arbitration proceedings in any court of competent jurisdiction.         (i)   This Section 21 is intended to benefit and be enforceable by the Company, the Manager  and  their  respective  holders  of  equity  interests,  trustees,  directors,  officers,  managers  (including  the  Manager or its successor), agents or employees, and their respective successors and assigns and shall be  binding upon the Company, the Manager and their respective holders of equity interests, and be in addition  to, and not in substitution for, any other rights to indemnification or contribution that such individuals or  entities may have by contract or otherwise.   SECTION 22. NAME LICENSE.         The  Manager  hereby  grants  to  the  Company  and  its  Affiliates a personal, royalty-free,  non- exclusive, non-sublicensable, and non-transferable right and license during the License Term (as defined  below) and Wind-Down Term (if any, and as defined below) to use, display and reproduce the name  “Spirit” (“Licensed Name”) in connection with the operation of their respective businesses, including in  the  corporate  names of  Company  and  its  Affiliates.  The  “License  Term”  shall  mean  the  period  commencing  on  the  date  of  this  Agreement  and  continuing  until  90  days  after  the  Effective  Date  of  Termination of this Agreement.  For the avoidance of doubt, the license grant herein is non-exclusive and  accordingly the Manager and its Affiliates hereby retain the right to continue using the Licensed Name  and to license or transfer any rights the Manager and its Affiliates may have in the Licensed Name to third                                                                                                                                                                          22  





 






  parties, and Company and its Affiliates will not take any action to challenge the Manager and its Affiliates  rights in the Licensed Name.  Company and its Affiliates acknowledge that certain goodwill and reputation  may be associated with the Licensed Name and agree to use the Licensed Name only in a manner that  maintains and promotes such goodwill and reputation, and any use in contravention of the foregoing shall  be deemed a material breach of this Agreement.  Company and its Affiliates shall cooperate with Manager  and its Affiliates in facilitating the Manager’s control of the nature and quality of the products, services  and other uses of the Licensed Name, including providing Manager, upon Manager’s written request, with  samples of any public facing materials produced by or on behalf of the Company and its Affiliates that  bear the Licensed Name.  Upon the expiration of the License Term, (i) the license grant set forth in this  Section 22 will terminate, (ii)  Company and its Affiliates will cease all use of the Licensed Name and  destroy, or at Manager’s election transfer to Manager, all public facing materials in the Company and its  Affiliates’ possession or control containing the Licensed Names, and (iii) Company and its Affiliates will  immediately change their corporate names to no longer contain the word “Spirit” or any derivation thereof.     SECTION 23. CONTROLLING LAW.         This  Agreement  and  all  questions  relating  to  its  validity,  interpretation,  performance  and  enforcement shall be governed by and construed, interpreted and enforced in accordance with the laws of  the State of New York, notwithstanding any New York or other conflict-of-law provisions to the contrary.   SECTION 24. INDULGENCES, NOT WAIVERS.         Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or  privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise  of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other  right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with  respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect  to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party  asserted to have granted such waiver.   SECTION 25. TITLES NOT TO AFFECT INTERPRETATION.         The titles of paragraphs and subparagraphs contained in this Agreement are for convenience  only, and they neither form a part of this Agreement nor are they to be used in the construction or  interpretation of this Agreement.            SECTION 26. EXECUTION IN COUNTERPARTS.         This Agreement may be executed in any number of counterparts, each of which shall be deemed  to be an original as against any party whose signature appears thereon, and all of which shall together  constitute  one  and  the  same  instrument.  This  Agreement  shall  become  binding  when  one  or  more  counterparts of this Agreement, individually or taken together, shall bear the signatures of all of the parties  reflected hereon as the signatories.   SECTION 27. PROVISIONS SEPARABLE.         The  provisions  of  this  Agreement  are  independent  of  and  separable  from  each  other,  and  no  provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason                                                                                                                                                                          23  





 






  any other or others of them may be invalid or unenforceable in whole or in part.                         [Remainder of this page intentionally left blank]                                                                                                                                                                               24  





 






         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first  written above.                                                                                            COMPANY:                                                                                   Spirit MTA REIT,                                         a Maryland real estate trust                                                                                   By:  /s/ Ricardo Rodrigues                                            Name: Ricardo Rodriguez                                            Title: Chief Executive Officer, President, Chief                                                  Financial Officer and Treasurer                                                                                      MANAGER:                                                                                   Spirit Realty, L.P.,                                         a Delaware limited partnership                                            By:     Spirit General OP Holdings, LLC, a                                            Delaware limited liability company, its General                                            Partner                                                                                   By:  /s/ Ken Heimlich                                            Name:  Ken Heimlich                                            Title: Executive Vice President                                 [Signature page to Asset Management Agreement]  





 






                                                                        EXHIBIT A                                                                            Illustrative Total Shareholder Return Calculation Methodology                         [See attached.]