Exh. 10.1
THIS MANAGEMENT AND ADVISORY AGREEMENT
THIS MANAGEMENT AND ADVISORY AGREEMENT, is made as of December 22, 1997 (the
"Agreement") by and among NORTHSTAR CAPITAL INVESTMENT CORP. , a Maryland
corporation (the "REIT"), NORTHSTAR PARTNERSHIP, L. P., a Delaware limited
partnership (the "Operating Partnership," and, collectively with the REIT, the
"Company"), and NORTHSTAR CAPITAL PARTNERS LLC, a Delaware limited liability
company (together with its permitted assignees, the "Manager").
W I T N E S S E T H :
WHEREAS, the REIT expects to qualify for the tax benefits accorded by
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code");
WHEREAS, the REIT is the sole general partner of the Operating Partnership
and has contributed (or will contribute) to the Operating Partnership all or
substantially all of its assets and will conduct substantially all of its
operations through the Operating Partnership;
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 and subject to the supervision
of the REIT, as provided in this Agreement; and
WHEREAS, the Manager is willing to undertake to render such services,
subject to the supervision of the REIT, 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. Capitalized terms used but not defined herein shall
have the respective meanings assigned them in the Offering Memorandum of the
REIT dated December 17, 1997 (the "Offering Memorandum"). In addition, the
following terms have the meanings assigned them.
(a) "Agreement" means this Management and Advisory Agreement, as amended
from time to time.
(b) "Board of Directors" means the Board of Directors of the REIT.
(c) "Closing Date" means the date of closing of the REIT's private
placement of common stock identified in the Offering Memorandum.
(d) "Governing Instruments" means the articles of incorporation and
bylaws in the case of a corporation, certificate of limited partnership (if
applicable) and the partnership agreement in the case of a general or limited
partnership or the articles of formation and the operating agreement in the
case of a limited liability company.
(e) "REIT Investments" means the assets of the Company.
(f) "Sister Corp." means any sister company (whether a corporation,
partnership, limited liability company or other entity), as described in the
Offering Memorandum.
(g) "Subsidiary" means any subsidiary of the REIT and any partnership, the
general partner of which is the REIT or any subsidiary of the REIT.
SECTION 2. Appointment and Duties of the Manager.
(a) The REIT and the Operating Partnership hereby appoint the Manager to
manage the assets of the Company subject to the further terms and conditions set
forth in this Agreement and the Manager shall 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
otherwise agrees, in its sole and absolute discretion, and except to the extent
that the Manager elects, pursuant to the terms hereof, to cause the duties of
the Manager hereunder to be provided by third parties.
(b) The Manager at all times will be subject to the supervision of the
REIT's Board of Directors and will have only such functions and authority as the
REIT may delegate to it including, without limitation, the functions and
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authority identified herein and delegated to the Manager hereby. The Manager
will be responsible for 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) serving as the Company's consultant with respect to
formulation of investment criteria and preparation of policy
guidelines (the "Guidelines") by the Board of Directors;
(ii) investing and re-investing any moneys and securities
of the Company in short-term investments pending investment in
REIT Investments, payment of fees, costs and expenses, or
payments of dividends or distributions to stockholders and
partners of the Company;
(iii) investigation and selection of possible investment
opportunities and acquisitions, property and investment
analysis, market and economic surveys, on-site physical
inspections, review and projection of income and construction,
renovation and/or operating expenses and supervising and
negotiating the arrangement of financing;
(iv) conducting negotiations with real estate brokers,
owners of property and their agents and representatives,
investment bankers and owners of privately and publicly held
real estate companies;
(v) engaging and supervising, on behalf of the Company and
at the Company's expense, independent contractors which provide
real estate brokerage, investment banking and leasing services,
mortgage brokerage and other financial services and such other
services as may be required relating to the Company's
investments;
(vi) negotiating on behalf of the Company for the sale,
exchange or other disposition of any of the Company's
investments;
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(vii) coordinating and managing operations of any joint
venture interests held by the Company and conducting all
matters with the joint venture partners;
(viii) coordinating and supervising, on behalf of the Company
and at the Company's expense, all property managers, leasing
agents and developers for the administration, leasing,
management and/or development of any of the Company's
investments;
(ix) providing executive and administrative personnel,
office space and office services required in rendering services
to the Company;
(x) administering the day-to-day operations of the Company
and performing and supervising the performance of such other
administrative functions necessary in the management of the
Company as may be agreed upon by the Manager and the Board of
Directors;
(xi) communicating on behalf of the Company with the
holders of any equity or debt securities of the Company as
required to satisfy the reporting and other requirements of any
governmental bodies or agencies or trading markets and to
maintain effective relations with such holders;
(xii) counseling the Company in connection with policy
decisions to be made by the Board of Directors;
(xiii) engaging in hedging activities on behalf of the
Company, consistent with the Company's status as a REIT and
with the Guidelines;
(xiv) counseling the REIT regarding the maintenance of its
status as a real estate investment trust and monitoring
compliance with the various real estate investment trust
qualification tests and other rules set out in the Code and
Treasury Regulations thereunder; and
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(xv) 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 that Act.
(c) The Manager may enter into agreements with other parties, including its
affiliates, for the purpose of engaging one or more property and/or asset
managers for and on behalf, and at the sole cost and expense, of the Company to
provide property management, asset management, leasing, development and/ or
similar services to the Company with respect to the REIT Investments, pursuant
to property management agreement(s) and/or asset management agreement(s) with
terms which are then customary for agreements regarding the management of assets
similar in type, quality and value to the assets of the Company; provided, that
any such agreements entered into with affiliates of the Manager shall be on
terms no more favorable to such affiliate then would be obtained from a third
party on an arms'-length basis.
(d) The Manager may retain, for and on behalf, and at the sole cost and
expense, of the Company, such services of accountants, legal counsel,
appraisers, insurers, brokers, transfer agents, registrars, developers,
investment banks, financial advisors, banks and other lenders and others as the
Manager deems necessary or advisable in 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. The Company shall pay or reimburse the
Manager or its affiliates performing such services for the cost thereof;
provided that such costs and reimbursements are no greater than those which
would be payable to outside professionals or consultants engaged to perform such
services pursuant to agreements negotiated on an arm's-length basis.
(e) As frequently as the Manager may deem necessary or advisable, or at the
direction of the Board of Directors, the Manager shall, at the sole cost and
expense of the Company, prepare, or cause to be prepared, with respect to any of
the REIT Investments (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.
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(f) 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 reasonably required by the Board of Directors 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, and shall prepare, or cause to be
prepared, 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.
(g) Notwithstanding anything contained herein to the contrary, except to the
extent that the payment of additional monies is proven by the Company to have
been required as a direct result of the Manager's acts or omissions which result
in the right of the Company to terminate this Agreement pursuant to Section 15
hereof, the Manager shall not be required to expend money ("Excess Funds") in
excess of that contained in any applicable Company Account (as herein defined)
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
13(a) hereof to terminate this Agreement due to the Manager's unsatisfactory
performance.
(h) 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. Additional Activities of Manager.
(a) The Manager hereby agrees not to engage in business or to render
services to others that compete with the Company until an amount equal to 80%
of the Company's Total Equity has been invested (other than in short-term
temporary investments) by the Company (and for these purposes contributions
to a Sister Corp. shall be deemed to be "investments" of the Company's Total
Equity). As used herein, the term "Total Equity" shall mean the sum of (i)
total equity capital raised by the REIT, including, without limitation, the
net proceeds of the Offering contemplated by the Offering Memorandum and the
net proceeds of any subsequent offering of Common Stock or Preferred Stock by
the REIT, plus (ii) a notional amount of debt equal to such total equity
capital raised by the REIT. Notwithstanding the foregoing, the Manager and
its affiliates will be permitted at any time (i) to manage the Sister Corp.
and (ii) to manage and make investments related to "Ex-
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cluded NorthStar Investments." As used herein, the term "Excluded NorthStar
Investments" shall mean existing or future investments made by the Manager
and/or its affiliates in connection with the Existing NorthStar Assets or in
connection with any additional investments made by NorthStar or its
affiliates during any period of time that the exclusivity provisions of this
Agreement are not in effect (i.e. during any period of time in which 80% or
more of the Total Equity of the Company has been invested). In addition, the
Manager has informed the Company that, in connection with existing debt of a
subsidiary of the Manager ("NorthStar Operating LLC") held by UBS Mortgage
Finance Inc. ("UBS"), NorthStar Operating LLC and/or the Manager may be
required to present certain investment opportunities to UBS for co-investment
by UBS and/or NorthStar Operating LLC. The Company has agreed to permit UBS
and/or NorthStar Operating LLC to co-invest with the Company in such
situations or, in the alternative, if a majority of the Independent Directors
determine that such co-investment is not in the best interest of the Company,
the Company will not make such investment and will agree to permit such
investment to be made by NorthStar Operating LLC or another affiliate of the
Manager and such investments will be deemed to be "Excluded NorthStar
Investments" for purposes of this Agreement.
(b) Except to the extent set forth in clause (a) above, nothing herein shall
prevent the Manager or any of its affiliates 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 investment, including investments which meet the principal investment
objectives of the Company.
(c) Managers, members, partners, officers, employees and agents of the
Manager or affiliates of the Manager may serve as directors, officers,
employees, agents, nominees or signatories for the REIT, the Operating
Partnership or any other Subsidiary, to the extent permitted by their Governing
Instruments, as from time to time amended, or by any resolutions duly adopted by
the Board of Directors pursuant to the REIT's Governing Instruments. When
executing documents or otherwise acting in such capacities for the REIT, such
persons shall use their respective titles in the REIT.
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 Directors, holders of the Company's securities or the
Company's representatives or properties.
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SECTION 5. Bank Accounts. At the direction of the Board of Directors, the
Manager may establish and maintain one or more bank accounts in the name of the
REIT, the Operating Partnership, or any other 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, under such terms and conditions as the Board of Directors may
approve; and the Manager shall from time to time render appropriate accountings
of such collections and payments to the Board of Directors and, upon request, to
the auditors of the REIT, the Operating Partnership or any other Subsidiary.
SECTION 6. Records; Confidentiality. The Manager shall maintain appropriate
books of accounts and records relating to services performed hereunder, and such
books of account and records shall be accessible for inspection by
representatives of the REIT, the Operating Partnership, or any other Subsidiary
at any time during normal business hours upon one (1) business day's advance
written notice. The Manager shall keep confidential any and all information
obtained in connection with the services rendered hereunder and shall not
disclose any such information to nonaffiliated third parties except with the
prior written consent of the Board of Directors.
SECTION 7. Obligations of Manager; Restrictions.
(a) The Manager shall require each seller or transferor of REIT Investments
to the Company to make such representations and warranties regarding such REIT
Investments as may, in the judgment 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 Company's
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 Guidelines or (ii) would
adversely affect the status of the REIT as a REIT or that, in its sole judgment
made in good faith, would violate any law, rule or regulation of any
governmental body or agency having jurisdiction over the REIT, the Operating
Partnership, or any
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Subsidiary 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 Directors, the Manager shall promptly notify the Board of
Directors 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, its directors,
officers, stockholders and employees shall not be liable to the REIT, the
Operating Partnership or any other Subsidiary, the Independent Directors, or
the REIT's or the Operating Partnership's stockholders or partners for any
act or omission by the Manager, its directors, officers, stockholders or
employees except as provided in Section 11 of this Agreement.
(c) The Manager shall not consummate any transaction which would involve the
acquisition by the Company of property in which the Manager or any affiliate
thereof has an ownership interest or the sale by the Company of property to the
Manager or any affiliate thereof, unless such transaction is approved by a
majority of the Independent Directors.
(d) The Company shall not invest in joint ventures with the Manager or any
affiliate thereof, unless (i) such investment is made in accordance with the
Guidelines or (ii) such investment is approved in advance by a majority of the
Independent Directors.
(e) The Independent Directors will review the transactions of the Company
quarterly. If the Independent Directors determine in their periodic review of
transactions that a particular transaction does not comply with the Guidelines,
then the Independent Directors will consider what corrective action, if any, can
be taken. If the transaction involved the acquisition of an asset from the
Manager or an affiliate of the Manager that was not approved in advance by a
majority of the Independent Directors, then the Manager may be required to
repurchase the asset at the purchase price (plus closing costs) to the Company.
SECTION 8. Compensation.
(a) Commencing on the Closing Date, the Manager will receive an annual
management fee (the "Management Fee") equal to 1.50% of the Company's "Gross
Equity;" provided, however, that during the first twelve months following the
Closing Date, the Manager shall receive a Management Fee equal to the greater of
(i) $7,500,000 and (ii) 1.50% of the Company's Gross Equity. The Management Fee
shall be calculated and paid monthly in arrears based upon the
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weighted average Gross Equity of the Company for such month (except during
the first twelve months following the Closing Date, when such monthly amount
shall be calculated and paid based on the greater of $7,500,000 and 1.50% of
Gross Equity). The term "Gross Equity" for any period means (A) the sum of
(i) total equity capital raised by the Company, including, without
limitation, the net proceeds of the Offering contemplated by the Offering
Memorandum and the net proceeds of any subsequent offering of Common Stock or
Preferred Stock by the REIT, plus (ii) the value of contributions made by
partners other than the REIT, from time to time, to the capital of the
Operating Partnership or any other Subsidiary (reduced proportionately in the
case of a Subsidiary to the extent that the Operating Partnership owns,
directly or indirectly, less than 100% of the equity interests in such
Subsidiary), less (B) any capital dividends or capital distributions made by
the REIT to its stockholders. The Manager will not receive any Management Fee
for the period prior to the Closing Date.
(b) The Manager shall compute each installment of the Management Fee
within 15 days after the end of the calendar month with respect to which such
installment is payable. A copy of the computations made by the Manager to
calculate the such installment shall thereafter promptly be delivered to the
Board of Directors and, upon such delivery, payment of such installment of
the Management Fee shown therein shall be due and payable no later than the
earlier to occur of (i) the date which is 20 days after the end of the
calendar month with respect to which such installment is payable and (ii) the
date which is two (2) business days after the date of delivery to the Board
of Directors of such computations.
(c) The Management Fee is subject to adjustment pursuant to and in
accordance with the provisions of Section 13(a) hereof.
SECTION 9. Expenses of the Company. The Company shall pay all of its
expenses and shall reimburse the Manager for documented expenses of the Manager
incurred on its behalf (collectively, the "Expenses"). Expenses include all
costs and expenses which are expressly designated elsewhere in this Agreement as
the Company's, together with the following:
(a) travel and other out-of-pocket expenses incurred by managers, officers,
employees and agents of the Manager in connection with the purchase, financing,
refinancing, sale or other disposition of a REIT Investment;
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(b) costs of legal, accounting, tax, administrative and other similar
services rendered for the Company by providers retained by the Manager or, if
provided by the Manager's employees, in amounts which are no greater than those
which would be payable to outside professionals or consultants engaged to
perform such services pursuant to agreements negotiated on an arm's-length
basis.
(c) all other costs and expenses relating to the Company's business and
investment operations, including, without limitation, the costs and expenses of
acquiring, owning, protecting, maintaining, developing and disposing of the
Company's investments, including appraisal, reporting, audit and legal fees;
(d) all insurance costs incurred in connection with the operation of the
Company's business;
(e) expenses relating to any office or office facilities maintained for the
Company or the REIT Investments separate from the office or offices of the
Manager;
(f) expenses connected with the payments of interest, dividends or
distributions in cash or any other form made or caused to be made by the Board
of Directors to or on account of the holders of securities or Units of the
Company, including, without limitation, in connection with any dividend
reinvestment plan;
(g) expenses connected with communications to holders of securities or Units
of the Company and other bookkeeping and clerical work necessary in maintaining
relations with holders of securities or Units and in complying with the
continuous reporting and other requirements of governmental bodies or agencies,
including, without limitation, all costs of preparing and filing required
reports with the Securities and Exchange Commission, the costs payable by the
Company to any transfer agent and registrar in connection with the listing
and/or trading of the REIT's stock on any exchange, the fees payable by the REIT
to any such exchange in connection with its listing, costs of preparing,
printing and mailing the REIT's annual report to its shareholders and proxy
materials with respect to any meeting of the shareholders of the REIT; and
(h) all other expenses actually incurred by the Manager which are reasonably
necessary for the performance by the Manager of its duties and functions
hereunder.
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Without regard to the amount of compensation received hereunder by the
Manager, the Manager shall bear the following expenses: (i) wages and salaries
of the Manager's officers and employees; and (ii) rent and other "overhead"
expenses of the Manager.
SECTION 10. Calculations of Expenses. The Manager shall prepare a
statement documenting the Expenses of the Company and the Expenses incurred
by the Manager on behalf of the Company during each calendar month, and shall
deliver such statement to the Company within 20 days after the end of each
calendar month. Expenses incurred by the Manager on behalf of the Company
shall be reimbursed monthly to the Manager on the first business day of the
month immediately following the date of delivery of such statement.
SECTION 11. Limits of Manager Responsibility; Indemnification. The Manager
assumes no responsibility under this Agreement other than to render the services
called for hereunder in good faith and shall not be responsible for any action
of the Board of Directors in following or declining to follow any advice or
recommendations of the Manager, including as set forth in Section 7(b) of this
Agreement. The Manager, its members, managers, officers and employees will not
be liable to the REIT, the Operating Partnership or any other Subsidiary, to the
Independent Directors, or the REIT's, the Operating Partnership's or any
Subsidiary's stockholders or partners for any acts or omissions by the Manager,
its members, managers, officers or employees, under or in connection with this
Agreement, except by reason of acts constituting willful misconduct or gross
negligence. The REIT and/or the Operating Partnership shall, to the full extent
lawful, reimburse, indemnify and hold the Manager, its members, managers,
officers and employees 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) 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 willful misconduct or
gross negligence of such Indemnified Party.
SECTION 12. No Joint Venture. Nothing herein shall be construed to make the
Company and the Manager partners or joint venturers or impose any liability as
such on either of them.
SECTION 13. Term; Termination.
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(a) The term of this Agreement shall commence on the Closing Date and
this Agreement shall continue in force until the third anniversary of the
Closing Date (such three-year period, the "Initial Term"). Thereafter, until
this Agreement is terminated in accordance with its terms, this Agreement
shall be deemed renewed automatically each year for an additional one-year
period unless a majority of the Independent Directors (as such term is
defined in the Charter of the REIT) or a majority of the holders of
outstanding shares of Common Stock, agree that either (i) there has been
unsatisfactory performance that is materially detrimental to the Company or
(ii) the Management Fee payable to the Manager is unfair, provided that the
Company shall not have the right to terminate this Agreement under clause
(ii) above if the Manager agrees to continue to provide the services
hereunder at a fee that the Independent Directors have determined to be fair.
If the Company elects not to renew this Agreement at the expiration of the
Initial Term or any extended term as set forth above, the REIT shall deliver
to the Manager prior written notice (the "Termination Notice") of the
Company's intention not to renew this Agreement based upon the terms set
forth in this clause (a) not less than 60 days prior to the expiration of the
then existing term. If the Company so elects not to renew this Agreement, the
Company shall designate the date (the "Effective Termination Date"), not less
than 60 nor more than 180 days from the date of the notice, on which the
Manager shall cease to provide services hereunder and this Agreement shall
terminate on such date; provided, however, that in the event that such
Termination Notice is given in connection with a determination that the
compensation payable to the Manager is unfair, the Manager shall have the
right to renegotiate the Management Fee by delivering to the Company, no
fewer than forty-five (45) days prior to the prospective Effective
Termination Date, written notice of its intention to renegotiate its
compensation hereunder. Thereupon, the Company and the Manager shall enter
into good faith negotiation of the compensation payable to the Manager
hereunder. Provided that the Manager and the Company agree to a revised
Management Fee (or other compensation structure) within 30 days following the
commencement of such negotiation, the Termination Notice shall be deemed of
no force and effect and this Agreement shall continue in full force and
effect on the terms stated herein, except that the Management Fee shall be
the revised Management Fee (or other compensation structure) then agreed upon
by the parties hereto. The REIT and the Manager agree to execute and deliver
an amendment to this Agreement setting forth such revised Management Fee
promptly upon reaching an agreement regarding same. In the event that the
Company and the Manager are unable to agree to a revised Management Fee
during such 30 day period, this Agreement shall terminate, such termination
to be effective on the date which is the later of (A) ten (10) days
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following the end of such 30 day period and (B) the Effective Termination
Date originally set forth in the Termination Notice.
(b) In the event that this Agreement is terminated in accordance with the
provisions of Section 13(a) hereof, the Company shall pay to the Manager, on the
date on which such termination is effective, a termination fee (the "Termination
Fee") equal to the amount of the Management Fee earned by the Manager during the
period consisting of twelve (12) full calendar months immediately preceding such
termination. The obligation of the Company to pay the Termination Fee shall
survive the termination of this Agreement.
(c) No later than 60 days prior to the third or any subsequent anniversary
of the Closing Date, the Manager may deliver written notice to the REIT
informing it of the Manager's intention not to renew the Term, whereupon the
Term hereof shall not be renewed and extended and this Agreement shall terminate
effective on the anniversary of the Closing Date next following the delivery of
such notice.
(d) If this Agreement is terminated pursuant to this Section 13, such
termination shall be without any further liability or obligation of either party
to the other, except as provided in Section 13(b) and Section 16 of this
Agreement.
SECTION 14. Assignment.
(a) Except as set forth in Section 14(b) of this Agreement, 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
REIT with the consent of a majority of the Independent Directors, provided,
however, that no such consent shall be required in the case of an assignment by
the Manager to an entity whose day-to-day business and operations is managed and
supervised jointly by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Any such
assignment shall bind the assignee hereunder in the same manner as the Manager
is bound. In addition, the assignee shall execute and deliver to the REIT a
counterpart of this Agreement naming such assignee as Manager. This Agreement
shall not be assigned by the REIT without the prior written consent of the
Manager, except in the case of assignment by the REIT to another REIT or other
organization which is a successor (by merger, consolidation or purchase of
assets) to the REIT, in which case such successor organization shall be bound
hereunder and by the terms of such assignment in the same manner as the REIT is
bound hereunder.
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(b) Notwithstanding any provision of this Agreement, the Manager may
subcontract and assign any or all of its responsibilities under Sections 2(b),
2(c) and 2(d) of this Agreement to any of its affiliates, and the REIT hereby
consents to any such assignment and subcontracting. In addition, nothing
contained herein shall preclude any pledge, hypothecation or other transfer of
any amounts payable to the Manager hereunder.
SECTION 15. Termination for Cause.
(a) The Company may terminate this Agreement effective upon sixty (60) days
prior written notice of termination from the Company to the Manager, without
payment of any Termination Fee, if any act of fraud, misappropriation of funds,
embezzlement or theft constituting a felony against the Company (as finally
determined by a court of competent jurisdiction) or other willful violation of
this Agreement is perpetrated by the Manager in its corporate capacity (as
distinguished from the acts of any employees of the Manager which are taken
without the complicity of W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) under this
agreement or in the event of any gross negligence on the part of the Manager in
the performance of its duties hereunder.
(b) The Manager may terminate this Agreement effective upon sixty (60)
days prior written notice of termination 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.
SECTION 16. Action Upon Termination. From and after the effective date of
termination of this Agreement, pursuant to Sections 13, 14, or 15 hereof, the
Manager shall not be entitled to compensation for further services hereunder,
but shall be paid all compensation accruing to the date of termination and, if
terminated pursuant to Section 13, the applicable Termination Fee. Upon such
termination, the Manager shall forthwith:
(a) after deducting any accrued compensation and reimbursement for its
expenses to 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;
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(b) deliver to the Board of Directors 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 Directors with respect to the Company or a Subsidiary; and
(c) deliver to the Board of Directors all property and documents of the
Company or any Subsidiary then in the custody of the Manager.
SECTION 17. Release of Money or Other Property Upon Written Request. The
Manager agrees that any money or other property of the Company or Subsidiary
held by the Manager under this Agreement shall be held by the Manager as
custodian for the Company or 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 60 days following such request. The Manager shall not
be liable to the Company, any Subsidiary, the Independent Directors, or the
Company's or a Subsidiary's stockholders 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
this Section. The Company and any Subsidiary shall indemnify the Manager and its
members, managers, officers and employees against any and all expenses, losses,
damages, liabilities, demands, charges and claims of any nature whatsoever,
which arise in connection with the Manager's release of such money or other
property to the Company or any Subsidiary in accordance with the terms of this
Section 17. Indemnification pursuant to this provision shall be in addition to
any right of the Manager to indemnification under Section 11 of this Agreement.
SECTION 18. Notices. Unless expressly provided otherwise herein, 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
registered or certified mail, postage prepaid, return receipt requested,
addressed as set forth below:
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(a) If to the Company:
NorthStar Capital Investment Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(b) If to the Manager:
NorthStar Capital Partners LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 herein.
SECTION 20. Entire Agreement. This Agreement contains the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof, 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 hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
SECTION 21. 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 Delaware, notwithstanding any Delaware or other conflict-of-law provisions to
the contrary.
17
SECTION 22. 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 23. 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 hereof.
SECTION 24. 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 hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
SECTION 25. 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
any other or others of them may be invalid or unenforceable in whole or in part.
SECTION 26. Gender. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
NORTHSTAR CAPITAL INVESTMENT CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Its: Vice President and Secretary
-----------------------------------
NORTHSTAR PARTNERSHIP, L.P.
By: NorthStar Capital Investment Corp.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Its: Vice President and Secretary
-----------------------------
NORTHSTAR CAPITAL PARTNERS LLC
By: NorthStar Capital Holdings I, LLC,
its managing member
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
