Advisory Agreement, dated April 1, 2024, by and among North Haven Net REIT, NH Net REIT Operating Partnership, LP and MSREF Real Estate Advisor, Inc
Exhibit 10.1
ADVISORY AGREEMENT
BY AND AMONG
NORTH HAVEN NET REIT,
NH NET REIT OPERATING PARTNERSHIP, LP,
AND
MSREF REAL ESTATE ADVISOR, INC.
TABLE OF CONTENTS
Page
| 1. | Definitions | 1 |
| 2. | Appointment | 6 |
| 3. | Duties of the Adviser | 6 |
| 4. | Authority of Adviser | 9 |
| 5. | Bank Accounts | 9 |
| 6. | Records; Access | 10 |
| 7. | Limitations on Activities | 10 |
| 8. | Other Activities of the Adviser | 10 |
| 9. | Relationship with Trustees and Officers | 12 |
| 10. | Management Fee | 13 |
| 11. | Expenses | 14 |
| 12. | Other Services | 17 |
| 13. | No Joint Venture | 17 |
| 14. | Term | 17 |
| 15. | Termination by the Parties | 17 |
| 16. | Assignment to an Affiliate | 17 |
| 17. | Payments to and Duties of Adviser Upon Termination | 18 |
| 18. | Indemnification by the Company and the Operating Partnership | 18 |
| 19. | Indemnification by Adviser | 18 |
| 20. | Non-Solicitation | 18 |
| 21. | Miscellaneous | 19 |
| 22. | Trademark | 21 |
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ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (this “Agreement”), dated as of April 1, 2024 (the “Effective Date”), is by and among North Haven Net REIT, a Maryland statutory trust (the “Company”), NH Net REIT Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), and MSREF Real Estate Advisor, Inc., a Delaware corporation (the “Adviser”). Capitalized terms used herein shall have the meanings ascribed to them in Section 1 below.
W I T N E S S E T H
WHEREAS, the Company intends to qualify as a REIT, and to invest its funds in Investments (as defined below) permitted by the terms of Sections 856 through 860 of the Code;
WHEREAS, the Company is the general partner of the Operating Partnership and intends to conduct all of its business and make all or substantially all Investments through the Operating Partnership;
WHEREAS, the Company and the Operating Partnership desire to avail themselves of the knowledge, experience, sources of information, advice, assistance and certain facilities available to the Adviser and to have the Adviser undertake the duties and responsibilities hereinafter set forth, on behalf of, and subject to the supervision of, the Board, all as provided herein; and
WHEREAS, the Adviser is willing to undertake to render such services, subject to the supervision of the Board, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the definitions hereinafter indicated:
“Acquisition Expenses” shall mean any and all expenses, exclusive of Acquisition Fees, incurred by the Company, the Operating Partnership, the Adviser or any of their respective Affiliates either in connection with the selection, evaluation, structuring, acquisition, origination, financing and development of any assets, whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, costs of appraisals, nonrefundable option payments on property not acquired, accounting fees and expenses and title insurance premiums and the costs of performing due diligence.
“Acquisition Fee” shall mean any and all fees and commissions, exclusive of Acquisition Expenses, paid by any Person to any other Person (including any fees or commissions paid by or to any Affiliate of the Company or the Adviser) in connection with making or investing in Mortgages or Real Estate-Related Securities or the purchase, development or construction of a Property, including real estate commissions, selection fees, development fees, construction fees, nonrecurring management fees, loan fees, points or any other fees of a similar nature. Excluded shall be development fees and construction fees paid to any Person not affiliated with Morgan Stanley in connection with the actual development and construction of a project.
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“Adviser” shall have the meaning set forth in the preamble of this Agreement.
“Adviser Expenses” shall have the meaning set forth in Section 11(b).
“Affiliate” shall have the meaning set forth in the Declaration of Trust.
“Board” shall mean the board of trustees of the Company, as of any particular time.
“Business Day” shall have the meaning set forth in the Declaration of Trust.
“Bylaws” shall mean the bylaws of the Company, as amended from time to time.
“Cause” shall mean, with respect to the termination of this Agreement, fraud, criminal conduct, willful misconduct or willful or negligent breach of fiduciary duty by the Adviser in connection with performing its duties hereunder.
“CEA” shall mean the U.S. Commodity Exchange Act, as amended.
“Change of Control” shall mean any event (including, without limitation, issue, transfer or other disposition of shares of capital stock of the Company or equity interests in the Operating Partnership, merger, share exchange or consolidation) after which any “person” (as that term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company or the Operating Partnership representing greater than 50% or more of the combined voting power of Company’s or the Operating Partnership’s then outstanding securities, respectively; provided, that, a Change of Control shall not be deemed to occur as a result of any widely distributed offering of the Common Shares.
“Class D Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class D NAV per Common Share” shall mean the NAV of the Company allocable to the Class D Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), determined in accordance with the Valuation Guidelines, divided by the number of outstanding Class D Common Shares.
“Class E Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class E NAV per Common Share” shall mean the NAV of the Company allocable to the Class E Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), determined in accordance with the Valuation Guidelines, divided by the number of outstanding Class E Common Shares.
“Class F-D Common Shares” shall have the meaning set forth in the Declaration of Trust.
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“Class F-D NAV per Common Share” shall mean the NAV of the Company allocable to the Class F-D Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), divided by the number of outstanding Class F-D Common Shares.
“Class F-I Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class F-I NAV per Common Share” shall mean the NAV of the Company allocable to the Class F-I Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), divided by the number of outstanding Class F-I Common Shares.
“Class F-S Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class F-S NAV per Common Share” shall mean the NAV of the Company allocable to the Class F-S Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), divided by the number of outstanding Class F-S Common Shares.
“Class F-T Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class F-T NAV per Common Share” shall mean the NAV of the Company allocable to the Class F-T Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), divided by the number of outstanding Class F-T Common Shares.
“Class I Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class I NAV per Common Share” shall mean the NAV of the Company allocable to the Class I Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), divided by the number of outstanding Class I Common Shares.
“Class S Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class S NAV per Common Share” shall mean the NAV of the Company allocable to the Class S Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), divided by the number of outstanding Class S Common Shares.
“Class T Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Class T NAV per Common Share” shall mean the NAV of the Company allocable to the Class T Common Shares (including any reduction for Shareholder Servicing Fees as described in the PPM), divided by the number of outstanding Class T Common Shares.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Common Shares” shall have the meaning set forth in the Declaration of Trust.
“Company” shall have the meaning set forth in the preamble of this Agreement.
“Company Management Fee” shall have the meaning set forth in Section 10(a).
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“Declaration of Trust” shall mean the Declaration of Trust of the Company, as may be amended from time to time.
“Distributions” shall mean any distributions, pursuant to Section 7.6 of the Declaration of Trust, by the Company to owners of Common Shares, including distributions that may constitute a return of capital for federal income tax purposes.
“Effective Date” shall have the meaning set forth in the preamble of this Agreement.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Independent Trustee” shall have the meaning set forth in the Declaration of Trust.
“Investment Company Act” shall mean the Investment Company Act of 1940, as amended.
“Investment Guidelines” shall mean the investment guidelines adopted by the Board, as amended from time to time, pursuant to which the Adviser has discretion to acquire and dispose of Investments for the Company without the prior approval of the Board.
“Investments” shall mean any investments by the Company or the Operating Partnership, directly or indirectly, in Real Property, Real Estate-Related Assets or other assets.
“Joint Ventures” shall mean those joint venture or partnership arrangements (other than the Operating Partnership) in which the Company, the Operating Partnership or any of their subsidiaries is a co-venturer or partner established to acquire or hold assets of the Company or Operating Partnership.
“Management Fee” shall have the meaning set forth in Section 10(a).
“Morgan Stanley” means, collectively, Morgan Stanley and any Affiliate thereof.
“Mortgage” shall mean, in connection with any mortgage financing that the Company makes or invests in, all of the notes, deeds of trust, security interests or other evidences of indebtedness or obligations, which are secured or collateralized by Real Property owned by the borrowers under such notes, deeds of trust, security interests or other evidences of indebtedness or obligations.
“MSREI” shall mean Morgan Stanley Real Estate Investing, the dedicated global private real estate investment management arm of Morgan Stanley.
“NAV” shall mean the Company’s net asset value, calculated pursuant to the Valuation Guidelines.
“North Haven Names” shall have the meaning set forth in Section 22.
“OP Management Fee” shall have the meaning set forth in Section 10(a).
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“Operating Partnership” shall have the meaning set forth in the preamble of this Agreement.
“Operating Partnership Agreement” shall mean the Limited Partnership Agreement of the Operating Partnership, as amended from time to time.
“Opportunistic Funds” shall mean Other MSREI Clients that have an opportunistic strategy and receive priority over the Company and the Operating Partnership with respect to such investments, as determined by MSREI, including but not limited to, North Haven Real Estate Fund X Global-F, L.P., a pooled investment vehicle, organized as an Alberta, Canada limited partnership (including its parallel, predecessor and any successor funds).
“Organization and Offering Expenses” shall have the meaning set forth in the Declaration of Trust.
“Other Morgan Stanley Accounts” shall mean other investment funds, REITs, vehicles, investment programs, businesses, accounts, products and/or other similar arrangements sponsored, advised and/or managed by Morgan Stanley (including Other MSREI Clients), whether currently in existence or subsequently established (in each case, including any related successor funds, alternative vehicles, supplemental capital vehicles, surge funds, over-flow funds, co-investment vehicles and other entities formed in connection with Morgan Stanley side-by-side or additional general partner investments with respect thereto).
“Other MSREI Clients” shall mean other alternative investment funds, REITs, vehicles, investment programs, businesses, accounts, products and/or other similar clients sponsored, managed or advised by MSREI and its Affiliates, whether currently in existence or subsequently established (in each case, including any related successor funds, alternative vehicles, supplemental capital vehicles, surge funds, over-flow funds, co-investment vehicles and other entities formed in connection with Morgan Stanley side-by-side or additional general partner investments with respect thereto).
“Person” shall have the meaning set forth in the Declaration of Trust.
“PPM” shall have the meaning set forth in the Declaration of Trust.
“Real Estate-Related Securities” shall mean equity and debt securities of both publicly traded and private companies, including REITs and pass-through entities, that own Real Property or loans secured by real estate, including investments in commercial mortgage-backed securities and derivative instruments, owned by the Company or the Operating Partnership directly or indirectly through one or more of their Affiliates.
“Real Estate-Related Assets” shall mean any Investments in Mortgages and Real Estate-Related Securities.
“Real Property” shall mean land, rights in land (including leasehold interests) and any buildings, structures, improvements, furnishings, fixtures and equipment located on or used in connection with land and rights or interests in land.
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“REIT” shall have the meaning set forth in the Declaration of Trust.
“Services” shall have the meaning set forth in Section 8(c).
“Shareholder” shall have the meaning set forth in the Declaration of Trust.
“Shareholder Servicing Fee” shall mean the shareholder servicing fee payable to the Dealer Manager and reallowable to soliciting dealers with respect to Class D Common Shares, Class S Common Shares, Class T Common Shares, Class F-D Common Shares, Class F-S Common Shares and Class F-T Common Shares, in each case, as described in the PPM.
“Termination Date” shall mean the date of termination of this Agreement or expiration of this Agreement in the event this Agreement is not renewed for an additional term.
“Trustees” shall have the meaning set forth in the Declaration of Trust.
“Upfront Sales Load” shall have the meaning set forth in the Declaration of Trust.
“Valuation Guidelines” shall mean the valuation guidelines of the Company as have been adopted by the Board, as amended from time to time.
2. Appointment. The Company and the Operating Partnership hereby appoint the Adviser to serve as their investment adviser on the terms and conditions set forth in this Agreement, and the Adviser hereby accepts such appointment.
3. Duties of the Adviser. Subject to the oversight of the Board and the terms and conditions of this Agreement (including the Investment Guidelines) and consistent with the provisions of the Company’s most recent PPM for the Common Shares, the Declaration of Trust and Bylaws and the Operating Partnership Agreement, the Adviser will have plenary authority with respect to the management of the business and affairs of the Company and the Operating Partnership and will be responsible for implementing the investment strategy of the Company and the Operating Partnership. The Adviser will perform (or cause to be performed through one or more of its Affiliates or third parties) such services and activities relating to the selection of investments and rendering investment advice to the Company and the Operating Partnership as may be appropriate or otherwise mutually agreed from time to time, which may include, without limitation:
(a) serving as an advisor to the Company and the Operating Partnership with respect to the establishment and periodic review of the Investment Guidelines for the Company’s and the Operating Partnership’s investments, financing activities and operations;
(b) sourcing, evaluating and monitoring the Company’s and the Operating Partnership’s investment opportunities and executing the acquisition, management, financing and disposition of the Company’s and the Operating Partnership’s assets, in accordance with the Investment Guidelines, policies and objectives and limitations, subject to oversight by the Board;
(c) with respect to prospective acquisitions, purchases, sales, exchanges or other dispositions of Investments, conducting negotiations on the Company’s and the Operating Partnership’s behalf with sellers, purchasers, and other counterparties and, if applicable, their respective agents, advisors and representatives, and determining the structure and terms of such transactions;
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(d) providing the Company and the Operating Partnership with portfolio management and other related services;
(e) serving as the Company’s and the Operating Partnership’s advisor with respect to decisions regarding any of their financings, hedging activities or borrowings, including (1) assisting the Company and the Operating Partnership in developing criteria for debt and equity financing that is specifically tailored to the Company’s and Operating Partnership’s investment objectives, (2) advising the Company and Operating Partnership with respect to obtaining appropriate financing for the Investments (which, in accordance with applicable law and the terms and conditions of this Agreement and the Declaration of Trust and Bylaws, as applicable, may include financing by the Adviser or its Affiliates), and (3) negotiating and entering into, on the Company’s and the Operating Partnership’s behalf, financing arrangements (including one or more credit facilities), repurchase agreements, interest rate or currency swap agreements, hedging arrangements, foreign exchange transactions, derivative transactions, and other agreements and instruments required or appropriate in connection with the Company’s and the Operating Partnership’s activities;
(f) engaging and supervising, on the Company’s and the Operating Partnership’s behalf and at the Company’s and the Operating Partnership’s expense, independent contractors, advisors, consultants, attorneys, accountants, administrators, auditors, appraisers, independent valuation agents, escrow agents, property management and other service providers (which may include Affiliates of the Adviser) that provide various services with respect to the Company and the Operating Partnership, including, without limitation, on-site managers, building and maintenance personnel, property management and accounting, investment banking, securities brokerage, mortgage brokerage, credit analysis, risk management services, asset management services, loan servicing, other financial, legal or accounting services, due diligence services, underwriting review services, and all other services (including custody and transfer agent and registrar services) as may be required relating to the Company’s and the Operating Partnership’s activities or investments (or potential Investments);
(g) coordinating and managing operations of any Joint Venture or co-investment interests held by the Company or the Operating Partnership and conducting matters with the Joint Venture or co-investment partners;
(h) communicating on the Company’s and the Operating Partnership’s behalf with the holders of any of the Company’s or Operating Partnership’s equity or debt securities 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;
(i) advising the Company in connection with policy decisions to be made by the Board;
(j) engaging one or more subadvisors with respect to the management of the Company and the Operating Partnership, including, where appropriate, Affiliates of the Adviser;
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(k) evaluating and recommending to the Board hedging strategies and engaging in hedging activities on the Company’s and the Operating Partnership’s behalf, consistent with the Company’s qualification as a REIT and with the Investment Guidelines;
(l) investing and reinvesting any moneys and securities of the Company and the Operating Partnership (including investing in short-term investments pending investment in other investments, payment of fees, costs and expenses, or payments of dividends or distributions to the Shareholders and limited partners of the Operating Partnership) and advising the Company as to the Company’s and the Operating Partnership’s capital structure and capital raising;
(m) determining valuations for the Company’s or Operating Partnership’s Real Property and Real Estate-Related Assets and calculate, as of the last Business Day of each month, the Class D NAV per Common Share, Class E NAV per Common Share, Class I NAV per Common Share, Class S NAV per Common Share, Class T NAV per Common Share, Class F-D NAV per Common Share, Class F-I NAV per Common Share, Class F-S NAV per Common Share, and Class F-T NAV per Common Share, in accordance with the Valuation Guidelines, and in connection therewith, obtain appraisals performed by third-party appraisal firms concerning the value of the Real Properties and obtain market quotations or conduct fair valuation determinations concerning the value of Real Estate-Related Assets;
(n) providing input in connection with the appraisals of the Company’s properties;
(o) monitoring the Company’s and Operating Partnership’s Real Property and Real Estate Related Assets for events that may be expected to have a material impact on the most recent estimated values;
(p) monitoring each appraiser’s valuation process to ensure that it complies with the Valuation Guidelines;
(q) delivering to, or maintain on behalf of, the Company copies of appraisals obtained in connection with the investments in any Real Property;
(r) in the event that the Company or the Operating Partnership is a commodity pool under the CEA, acting as the Company’s and/or Operating Partnership’s, as applicable, commodity pool operator for the period and on the terms and conditions set forth in this Agreement, including, for the avoidance of doubt, the authority to make any filings, submissions or registrations (including for exemptive or “no action” relief) to the extent required or desirable under the CEA (and the Company and Operating Partnership hereby appoint the Adviser to act in such capacity and the Adviser accepts such appointment and agrees to be responsible for such services);
(s) placing, or arranging for the placement of, orders of Real Estate-Related Assets pursuant to the Adviser’s investment determinations for the Company and the Operating Partnership either directly with the issuer or with a broker or dealer (including any Affiliated broker or dealer); and
(t) performing such other services from time to time in connection with the management of the Company’s investment activities as the Board shall reasonably request and/or the Adviser shall deem appropriate under the particular circumstances.
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4. Authority of Adviser.
(a) Pursuant to the terms of this Agreement (including the restrictions included in this Section 4 and in Section 7), and subject to the continuing and exclusive authority of the Board over the management of the Company, the Board (by virtue of its approval of this Agreement and authorization of the execution hereof by the officers of the Company) hereby delegates to the Adviser the authority to take, or cause to be taken, any and all actions and to execute and deliver any and all agreements, certificates, assignments, instruments or other documents and to do any and all things that, in the judgment of the Adviser, may be necessary or advisable in connection with the Adviser’s duties described in Section 3, including the making of any Investment that fits within the Company’s Investment Guidelines and within the discretionary limits and authority as granted to the Adviser from time to time by the Board.
(b) Notwithstanding the foregoing, any Investment that does not fit within the Investment Guidelines will require the prior approval of the Board or any duly authorized committee of the Board, as the case may be. Except as otherwise set forth herein, in the Investment Guidelines or in the Declaration of Trust, any Investment that fits within the Investment Guidelines may be made by the Adviser on the Company’s or the Operating Partnership’s behalf without the prior approval of the Board or any duly authorized committee of the Board.
(c) The prior approval of a majority of the Trustees (including a majority of the Independent Trustees) not otherwise interested in the transaction will be required for each transaction to which the Adviser or its Affiliates is a party.
(d) The Board will review the Investment Guidelines periodically, in its discretion, and may, at any time upon the giving of notice to the Adviser, amend the Investment Guidelines; provided, however, that such modification or revocation shall be effective upon receipt by the Adviser or such later date as is specified by the Board and included in the notice provided to the Adviser and such modification or revocation shall not be applicable to investment transactions to which the Adviser has committed the Company or the Operating Partnership prior to the date of receipt by the Adviser of such notification, or if later, the effective date of such modification or revocation specified by the Board.
(e) The Adviser may retain, for and on behalf, and at the sole cost and expense, of the Company or the Operating Partnership, such services as the Adviser deems necessary or advisable in connection with the management and operations of the Company, which may include the Affiliates of Adviser or unaffiliated third parties; provided, that any such services may only be provided by Affiliates to the extent such services are approved by a majority of the Trustees (including a majority of the Independent Trustees) not otherwise interested in such transactions as being on an arm’s length basis and at competitive market rates. In performing its duties under Section 3, the Adviser shall be entitled to rely reasonably on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service providers) hired by the Adviser at the Company’s sole cost and expense.
5. Bank Accounts. The Adviser may establish and maintain one or more bank accounts in the name of the Company and the Operating Partnership and any subsidiary thereof and may collect and deposit into any such account or accounts, and disburse from any such account or accounts, any money on behalf of the Company or the Operating Partnership, consistent with the Adviser’s authority under this Agreement; provided, that no funds shall be commingled with the funds of the Adviser; and the Adviser shall from time to time render, upon request by the Board, its audit committee or the auditors of the Company, appropriate accountings of such collections and payments to the Board, its audit committee and the auditors of the Company, as applicable.
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6. Records; Access. The Adviser shall maintain, or shall cause to be maintained, appropriate records of its activities hereunder and make such records, or shall cause such records to be made, available for inspection by the Board and by counsel, auditors and authorized agents of the Company, at any time or from time to time during normal business hours. The Adviser shall at all reasonable times have access to the books and records of the Company and the Operating Partnership.
7. Limitations on Activities. The Adviser shall refrain from any action that, in its sole judgment made in good faith, (i) is not in compliance with the Investment Guidelines, (ii) would adversely and materially affect the qualification of the Company as a REIT under the Code or the Company’s and the Operating Partnership’s status as entities excluded from investment company status under the Investment Company Act, or (iii) would materially violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company and the Operating Partnership or of any exchange on which the securities of the Company may be listed or that would otherwise not be permitted by the Declaration of Trust, Bylaws or the Operating Partnership Agreement. If the Adviser is ordered to take any action by the Board, the Adviser shall seek to notify the Board if it is the Adviser’s reasonable judgment that such action would adversely and materially affect such status or violate any such law, rule or regulation or the Declaration of Trust, Bylaws or Operating Agreement. Notwithstanding the foregoing, neither the Adviser nor any of its Affiliates shall be liable to the Company, the Operating Partnership, the Board, or the Shareholders for any act or omission by the Adviser or any of its Affiliates, except as provided in Section 19 of this Agreement.
8. Other Activities of the Adviser.
(a) Nothing in this Agreement shall (i) prevent the Adviser or any of its Affiliates, officers, directors or employees from engaging in other businesses or from rendering services of any kind to any other Person or entity, whether or not the investment objectives or policies of any such other Person or entity are similar to those of the Company, including, without limitation, the sponsoring, closing, advising and/or managing of any Other Morgan Stanley Accounts, (ii) in any way bind or restrict the Adviser or any of its Affiliates, officers, directors or employees from buying, selling or trading any securities or commodities for their own accounts or for the account of others for whom the Adviser or any of its Affiliates, officers, directors or employees may be acting, or (iii) prevent the Adviser or any of its Affiliates, officers, directors or employees from receiving fees or other compensation or profits from such activities described in this Section 8(a) which shall be for the sole benefit of the Adviser (and/or its Affiliates, officers, directors or employees). While information and recommendations supplied to the Company shall, in the Adviser’s reasonable and good faith judgment, be appropriate under the circumstances and in light of the investment objectives and policies of the Company, such information and recommendations may be different in certain material respects from the information and recommendations supplied by the Adviser or any Affiliate of the Adviser to others (including, for greater certainty, the Other Morgan Stanley Accounts and their investors, as described more fully in Section 8(b)).
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(b) The Adviser and the Company acknowledge and agree that, notwithstanding anything to the contrary contained herein, (i) the Adviser and its Affiliates sponsor, advise and/or manage Other MSREI Clients and may in the future sponsor, advise and/or manage additional Other MSREI Clients (including the Opportunistic Funds), (ii) with respect to Other MSREI Clients with investment objectives or guidelines that overlap with the Company’s but that do not have priority over the Company, the Adviser and its Affiliates will allocate investment opportunities between the Company and such Other MSREI Clients in accordance with the MSREI’s prevailing policies and procedures on a basis that MSREI determines in its sole discretion and consistent with its fiduciary obligations, to be fair and equitable, and there may be circumstances where investments that are consistent with the Investment Guidelines may be shared with or allocated to one or more Other MSREI Clients (in lieu of the Company) in accordance with MSREI’s prevailing policies and procedures and (iii) the Opportunistic Funds will receive priority over the Company with respect certain “opportunistic” investments, as determined by MSREI, and the Adviser will not allocate such investment opportunities to the Company unless the investment adviser of the Opportunistic Funds forgoes, in its sole discretion, all or a portion of such investments.
(c) In connection with the services of the Adviser hereunder, the Company and the Board acknowledge and/or agree that (i) as part of Morgan Stanley’s regular businesses, personnel of the Adviser and its Affiliates may from time-to-time work on other projects and matters (including with respect to one or more Other Morgan Stanley Accounts), and that conflicts may arise with respect to the allocation of personnel between the Company and one or more Other Morgan Stanley Accounts and/or the Adviser and such other Affiliates, (ii) unless prohibited by the Declaration of Trust, Other Morgan Stanley Accounts may invest, from time to time, in investments in which the Company also invests (including at a different level of an issuer’s capital structure (e.g., an investment by an Other Morgan Stanley Account in a debt or mezzanine interest with respect to the same portfolio entity in which the Company owns an equity interest or vice versa) or in a different tranche of equity or debt with respect to an issuer in which the Company has an interest) and while Morgan Stanley will seek to resolve any such conflicts in a fair and equitable manner in accordance with its prevailing policies and procedures with respect to conflicts resolution among Other Morgan Stanley Accounts generally, such transactions are not required to be presented to the Board or any committee thereof for approval (unless otherwise required by the Declaration of Trust or Investment Guidelines), and there can be no assurance that any conflicts will be resolved in the Company’s favor, (iii) the Company will from time to time pay fees to the Adviser and its Affiliates, including portfolio entities of Other Morgan Stanley Accounts, for providing various services described in the PPM (collectively, “Services”), which fees will be in addition to the compensation paid to the Adviser pursuant to Section 10 hereof, (iv) the Adviser and its Affiliates will from time to time receive fees from portfolio entities or other issuers for providing Services, including with respect to Other Morgan Stanley Accounts and related portfolio entities, and while such fees will give rise to conflicts of interest the Company will not receive the benefit of any such fees, and (v) the terms and conditions of the governing agreements of such Other Morgan Stanley Accounts (including with respect to the economic, reporting, and other rights afforded to investors in such Other Morgan Stanley Accounts) are materially different from the terms and conditions applicable to the Company and the Shareholders, and neither the Company nor the Shareholders (in such capacity) shall have the right to receive the benefit of any such different terms applicable to investors in such Other Morgan Stanley Accounts as a result of an investment in the Company or otherwise. The Adviser shall keep the Board reasonably informed on a periodic basis in connection with the foregoing.
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(d) The Adviser is not permitted to consummate on the Company’s behalf any transaction that involves (i) the sale of any investment to or (ii) the acquisition of any investment from Morgan Stanley, any Other Morgan Stanley Account or any of their Affiliates unless such transaction is approved by a majority of the Trustees, including a majority of the Independent Trustees, not otherwise interested in such transaction as being fair and reasonable to the Company. In addition, the Company may enter into Joint Ventures with Other Morgan Stanley Accounts, or with Morgan Stanley, the Adviser, one or more Trustees, or any of their respective Affiliates, only if a majority of the Trustees (including a majority of the Independent Trustees) not otherwise interested in the transaction approve the transaction as being fair and reasonable to the Company and on substantially the same, or no less favorable, terms and conditions as those received by other Affiliate joint venture partners. The Adviser will seek to resolve any conflicts of interest in a fair and reasonable manner (subject to any priorities of the Opportunistic Funds) in accordance with its prevailing policies and procedures with respect to conflicts resolution among Other Morgan Stanley Accounts generally, but only those transactions set forth in this Section 8(d) will be expressly required to be presented for approval to the Independent Trustees or any committee thereof (unless otherwise required by the Declaration of Trust or the Investment Guidelines).
(e) For the avoidance of doubt, it is understood that neither the Company nor the Board has the authority to determine the salary, bonus or any other compensation paid by the Adviser to any director, officer, member, partner, employee, or stockholder of the Adviser or its Affiliates, including any person who is also a Trustee or officer employee of the Company.
9. Relationship with Trustees and Officers. Subject to Section 7 of this Agreement and to restrictions advisable with respect to the qualification of the Company as a REIT, directors, managers, officers and employees of the Adviser or an Affiliate of the Adviser or any corporate parent of an Affiliate, may serve as a Trustee or officer of the Company, except that no director, officer or employee of the Adviser or its Affiliates who also is a Trustee or officer of the Company shall receive any compensation from the Company for serving as a Trustee or officer other than (a) reasonable reimbursement for travel and related expenses incurred in attending meetings of the Board or (b) as otherwise approved by the Board, including a majority of the Independent Trustees, and no such Trustee shall be deemed an Independent Trustee for purposes of satisfying the Trustee independence requirement set forth in the Declaration of Trust. For so long as this Agreement is in effect, the Adviser shall have the have the right to designate one Trustee for election to the Board. Furthermore, the Board shall consult with the Adviser in connection with filling of any vacancies created by the removal, resignation, retirement or death of any Trustee (other than in connection with a removal by Shareholders in accordance with the Declaration of Trust).
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10. Management Fee.
(a) The Company will pay the Adviser a management fee (the “Company Management Fee”) equal to (i) 1.25% of NAV for the Class D Common Shares, Class I Common Shares, Class S Common Shares and Class T Common Shares, plus (ii) 0.5% of NAV for the Class F-D Common Shares, Class F-I Common Shares, Class F-S Common Shares and Class F-T Common Shares, in each case, per annum and payable monthly in arrears, before giving effect to any accruals for the Management Fee, the Shareholder Servicing Fee, the Performance Allocation (as defined in the Operating Partnership Agreement) or any Distributions. In addition, the Operating Partnership will pay the Adviser a management fee (the “OP Management Fee” and, together with the Company Management Fee, the “Management Fee”) equal to (i) 1.25% of the NAV of the Operating Partnership attributable to Class D units, Class I units, Class S units and Class T units held by unitholders other than the Company, plus (ii) 0.5% of NAV of the Operating Partnership attributable to Class F-D units, Class F-I units, Class F-S units and Class F-T units held by unitholders other than the Company, in each case, per annum and payable monthly in arrears, before giving effect to any accruals for the Management Fee and the Performance Allocation (as defined in the Operating Partnership Agreement). For the avoidance of doubt, no Management Fee shall be paid on Class E Common Shares or Class E units of the Operating Partnership. The Adviser shall receive the Management Fees as compensation for services rendered hereunder.
(b) The Adviser has agreed to waive the Management Fee for the 12 months following the Effective Date.
(c) The Company Management Fee may be paid, at the Adviser’s election, in cash or cash equivalent aggregate NAV amounts of Class E Common Shares or Class E units of the Operating Partnership. The OP Management Fee may be paid, at the Adviser’s election, in cash or cash equivalent aggregate NAV amounts of Class E units of the Operating Partnership. If the Adviser elects to receive any portion of its Management Fee in Class E Common Shares or Class E units of the Operating Partnership, the Adviser or any subsequent transferee thereof may elect to have the Company or the Operating Partnership repurchase such Common Shares and/or units of the Operating Partnership from the Adviser or such transferee at a later date at a repurchase price per Common Share equal to the then NAV per Common Share of such class. Class E Common Shares or Class E units of the Operating Partnership obtained by the Adviser or any subsequent transferee will not be subject to the repurchase limits of the Company’s share repurchase plan, including the repurchase limits or any reduction or penalty for an early repurchase. The Operating Partnership will repurchase any such Operating Partnership units for cash unless the Board determines that any such repurchase for cash would be prohibited by applicable law or the Declaration of Trust, in which case such Operating Partnership units will be repurchased for the Company’s Class E Common Shares with an equivalent aggregate NAV.
(d) In the event this Agreement is terminated or its term expires without renewal, the Adviser will be entitled to receive its prorated Management Fee through the date of termination. Such pro ration shall take into account the number of days of any partial calendar month or calendar year for which this Agreement was in effect.
(e) In the event the Company or the Operating Partnership commences a liquidation of its Investments during any calendar year, the Company and the Operating Partnership will pay the Adviser the Management Fee from the proceeds of the liquidation.
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11. Expenses.
(a) Subject to Sections 4(e) and 11(b), the Adviser shall be responsible for the expenses related to any and all personnel of the Adviser who provide investment advisory services to the Company pursuant to this Agreement (including, without limitation, each of the officers of the Company and any Trustees who are also directors, officers or employees of the Adviser or any of its Affiliates), including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of employee benefit plans of such personnel, and costs of insurance with respect to such personnel (“Adviser Expenses”).
(b) In addition to the compensation paid to the Adviser pursuant to Section 10 hereof, the Company or the Operating Partnership shall pay all of its costs and expenses directly or reimburse the Adviser or its Affiliates for costs and expenses of the Adviser and its Affiliates incurred on behalf of the Company, other than Adviser Expenses. Without limiting the generality of the foregoing, it is specifically agreed that the following costs and expenses of the Company or the Operating Partnership are not Adviser Expenses and shall be paid by the Company or the Operating Partnership and shall not be paid by the Adviser or Affiliates of the Adviser:
(i) Organization and Offering Expenses;
(ii) Acquisition Expenses;
(iii) fees, costs and expenses in connection with the issuance and transaction costs incident to the trading, settling, disposition and financing of the Investments of the Company and its subsidiaries (whether or not consummated), including brokerage commissions, hedging costs, prime brokerage fees, custodial expenses, clearing and settlement charges, forfeited deposits, and other investment costs fees and expenses actually incurred in connection with the pursuit, making, holding, settling, monitoring or disposing of actual or potential investments;
(iv) the actual cost of goods and services used by the Company and obtained from Persons not Affiliated with the Adviser, including fees paid to administrators, consultants, attorneys, technology providers and other services providers, and brokerage fees paid in connection with the purchase and sale of Investments;
(v) all fees, costs and expenses of legal, tax, accounting, consulting, auditing (including internal audit), finance, administrative, investment banking, capital market, transfer agency, escrow agency, custody, prime brokerage, asset management, property management, data or technology services and other non-investment advisory services rendered to the Company by the Adviser or its Affiliates in compliance with Section 4(e);
(vi) expenses of managing and operating the Company’s and the Operating Partnership’s Real Properties, whether payable to an Affiliate of the Adviser or a non-Affiliated Person;
(vii) the compensation and expenses of the Trustees (excluding those Trustees who are directors, officers or employees of the Adviser) and the cost of liability insurance to indemnify the Company’s Trustees and officers and expenses incurred in connection with preparation of materials for meetings of the Board and its committees;
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(viii) interest and fees and expenses arising out of borrowings made by the Company, including, but not limited to, costs associated with the establishment and maintenance of any of the Company’s credit facilities, other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, legal fees, closing and other similar costs) or any of the Company’s securities offerings, whether or not any facilities, arrangements or indebtedness are implemented or such securities are offered;
(ix) expenses connected with communications to holders of the Company’s securities or securities of the subsidiaries and other bookkeeping and clerical work necessary in maintaining relations with holders of such securities 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 SEC, the costs payable by the Company to any transfer agent and registrar, expenses in connection with the listing and/or trading of the Company’s securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company’s annual report to the Shareholders and proxy materials, if any, with respect to any meeting of the Shareholders and any other reports or related statements;
(x) the Company’s allocable share of costs associated with technology-related expenses, including without limitation, any computer software or hardware, electronic equipment or purchased information technology services from third-party vendors or Affiliates of the Adviser, technology service providers and related software/hardware utilized in connection with the Company’s investment and operational activities;
(xi) the Company’s allocable share of expenses incurred by managers, officers, personnel and agents of the Adviser for travel on the Company’s behalf and other out-of-pocket expenses incurred by them in connection with the purchase, financing, refinancing, sale or other disposition of an Investment;
(xii) expenses relating to compliance-related matters and regulatory filings relating to the Company’s activities (including, without limitation, expenses relating to the preparation and filing of Form PF, Form ADV, reports to be filed with the U.S. Commodity Futures Trading Commission, reports, disclosures, and/or other regulatory filings of the Adviser and its Affiliates relating to the Company’s activities (including the Company’s pro rata share of the costs of the Adviser and its Affiliates of regulatory expenses that relate to the Company and Other Morgan Stanley Accounts));
(xiii) the costs of any litigation involving the Company or the Operating Partnership or their assets and the amount of any judgments or settlements paid in connection therewith, trustees and officers liability or other insurance and indemnification or extraordinary expense or liability relating to the affairs of the Company;
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(xiv) all taxes and statutory, regulatory or license fees or other governmental charges;
(xv) all insurance costs incurred in connection with the operation of the Company’s business except for the costs attributable to the insurance that the Adviser elects to carry for itself and its personnel;
(xvi) expenses of managing, improving, developing, operating and selling Investments, whether payable to an Affiliate of the Adviser or a non-Affiliated Person;
(xvii) expenses incurred in connection with maintaining the status of the Company as a REIT or the payments of interest, dividends or distributions in cash or any other form authorized or caused to be made by the Board to or on account of holders of the Company’s securities, including, without limitation, in connection with any distribution reinvestment plan;
(xviii) any judgment or settlement of pending or threatened proceedings (whether civil, criminal or otherwise) against the Company or the Operating Partnership, or against any Trustee or officer of the Company or in his or her capacity as such for which the Company is required to indemnify such Trustee or officer by any court or governmental agency;
(xix) expenses incurred in connection with the formation, organization, continuation, liquidation and/or restructuring of any corporation, partnership, Joint Venture or other entity through which the Investments are made or in which any such entity invests; and
(xx) expenses incurred related to industry association memberships or attending industry conferences on behalf of the Company.
(c) The Adviser may, at its option, elect not to seek reimbursement for certain expenses during a given period, which determination shall not be deemed to construe a waiver of reimbursement for similar expenses in future periods.
(d) Any reimbursement payments owed by the Company to the Adviser may be offset by the Adviser against amounts due to the Company from the Adviser. Cost and expense reimbursement to the Adviser shall be subject to adjustment at the end of each calendar year in connection with the annual audit of the Company.
(e) Notwithstanding the foregoing, the Adviser (1) shall pay for all Organization and Offering Expenses (other than Upfront Sales Loads and Shareholder Servicing Fees) incurred prior to the first anniversary of the Effective Date and (2) may pay for certain of the costs and expenses of the Company contemplated by Section 11(b) above (excluding Organization and Offering Expenses) incurred through the date that is 12 months following the Effective Date. All Organization and Offering Expenses (other than Upfront Sales Loads and Shareholder Servicing Fees) and any of the costs and expenses of the Company contemplated by Section 11(b) above paid by the Adviser pursuant to this Section 11(e) shall be reimbursed by the Company to the Adviser in 60 equal monthly installments commencing with the first anniversary of the Effective Date.
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12. Other Services. Should the Board request that the Adviser or any director, officer or employee thereof render services for the Company and the Operating Partnership other than set forth in Section 3, such services shall be separately compensated at such rates and in such amounts as are agreed by the Adviser and the Independent Trustees, subject to the limitations contained in the Declaration of Trust, and shall not be deemed to be services pursuant to the terms of this Agreement.
13. No Joint Venture. The Company and the Operating Partnership, on the one hand, and the Adviser on the other, are not partners or joint venturers with each other, and nothing in this Agreement shall be construed to make them such partners or joint venturers or impose any liability as such on either of them.
14. Term. This Agreement shall continue in effect for two years from the Effective Date, and thereafter shall continue automatically for successive annual periods; provided, that such continuance is specifically approved at least annually by (A) the vote of the Board and (B) the vote of a majority of the Trust’s Independent Trustees.
15. Termination by the Parties. This Agreement may be terminated (i) at the option of the Adviser immediately upon a Change of Control of the Company or the Operating Partnership; (ii) immediately by the Company or the Operating Partnership for Cause or upon the bankruptcy of the Adviser; or (iii) upon 60 days’ written notice without Cause or penalty by a majority vote of the Independent Trustees; or (iv) upon 60 days’ written notice by the Adviser. The provisions of Sections 17 through 22 survive termination of this Agreement.
16. Assignment to an Affiliate. Except as set forth herein, the Adviser shall not assign, sell or otherwise dispose of all or any part of its right, title and interest in and to this Agreement to any Persons other than an Affiliate without the approval of a majority of the Trustees (including a majority of the Independent Trustees). Notwithstanding the foregoing, the Adviser may assign any rights to receive fees or other payments under this Agreement to any Person without obtaining the consent of the Board. This Agreement shall not be assigned by the Company or the Operating Partnership without the approval of the Adviser, except in the case of an assignment by the Company or the Operating Partnership to a corporation or other organization which is a successor to all of the assets, rights and obligations of the Company or the Operating Partnership, in which case such successor organization shall be bound hereunder and by the terms of said assignment in the same manner as the Company and the Operating Partnership are bound by this Agreement. This Agreement shall be binding on successors to the Company resulting from a Change in Control or sale of all or substantially all the assets of the Company or the Operating Partnership, and shall likewise be binding on any successor to the Adviser.
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17. Payments to and Duties of Adviser Upon Termination.
(a) After the Termination Date, the Adviser shall not be entitled to compensation for further services hereunder except it shall be entitled to receive from the Company or the Operating Partnership within 30 days after the effective date of such termination all unpaid reimbursements of expenses and all earned but unpaid fees payable to the Adviser prior to termination of this Agreement.
(b) The Adviser shall promptly upon termination:
(i) pay over to the Company and the Operating Partnership all money collected and held for the account of the Company and the Operating Partnership pursuant to this Agreement, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled;
(ii) deliver to the Board 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;
(iii) deliver to the Board all assets, including all Investments, and documents of the Company and the Operating Partnership then in the custody of the Adviser; and
(iv) cooperate with, and take all reasonable actions requested by, the Company and Board in making an orderly transition of the advisory function.
18. Indemnification by the Company and the Operating Partnership. The Company and the Operating Partnership shall indemnify and hold harmless the Adviser and its Affiliates, including their respective officers, directors, partners and employees, from all liability, claims, damages or losses arising in the performance of their duties hereunder, and related expenses, including reasonable attorneys’ fees, to the extent such liability, claims, damages or losses and related expenses are not fully reimbursed by insurance, and to the fullest extent possible without such indemnification being inconsistent with the laws of the State of Maryland or the Declaration of Trust.
19. Indemnification by Adviser. The Adviser shall indemnify and hold harmless the Company and the Operating Partnership from contract or other liability, claims, damages, taxes or losses and related expenses including attorneys’ fees, to the extent that (i) such liability, claims, damages, taxes or losses and related expenses are not fully reimbursed by insurance and (ii) are incurred by reason of the Adviser’s bad faith, fraud, willful misconduct, gross negligence or reckless disregard of its duties under this Agreement; provided, however, that the Adviser shall not be held responsible for any action of the Board in following or declining to follow any advice or recommendation given by the Adviser.
20. Non-Solicitation. In the event of a termination without Cause of this Agreement by the Company pursuant to Section 15(iii) hereof, for two (2) years after the Termination Date, the Company shall not, without the consent of the Adviser, employ or otherwise retain any employee of the Adviser or any of its Affiliates or any person who has been employed by the Adviser or any of its Affiliates at any time within the two (2) year period immediately preceding the date on which such person commences employment with or is otherwise retained by the Company. The Company acknowledges and agrees that, in addition to any damages, the Adviser may be entitled to equitable relief for any violation of this Section 20 by the Company, including, without limitation, injunctive relief.
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21. Miscellaneous.
(a) Notices. Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice, report or other communication is required by the Declaration of Trust, the Bylaws, or accepted by the party to whom it is given, and shall be given by being delivered by hand, by courier or overnight carrier, by registered or certified mail, by electronic mail or posted on a password protected website maintained by the Adviser and for which the Company has received access instructions by electronic mail, when posted, using the contact information set forth herein:
| The Company: | North Haven Net REIT c/o MSREF Real Estate Advisor, Inc. 1585 Broadway New York, New York 10036 Attention: Christie Park | |
| Email: | ***@*** | |
| with required copies to: | Simpson Thacher & Bartlett LLP | |
| Email: | ***@*** | |
| ***@*** | ||
| The Adviser: | MSREF Real Estate Advisor, Inc. 1585 Broadway New York, New York 10036 Attention: Christie Park | |
| Email: | ***@*** | |
| with required copies to: | Simpson Thacher & Bartlett LLP 900 G Street NW Washington, D.C. 20001 Attention: Nathan Briggs / Daniel B. Honeycutt | |
| Email: | ***@*** | |
| ***@*** | ||
Any party may at any time give notice in writing to the other parties of a change in its address for the purposes of this Section 21(a).
(b) Modification. This Agreement shall not be changed, modified, terminated, or discharged, in whole or in part, except by an instrument in writing signed by the parties hereto, or their respective successors or assignees.
(c) Severability. The provisions of this Agreement are independent of and severable 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.
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(d) Governing Law; Exclusive Jurisdiction; Jury Trial. The provisions of this Agreement shall be construed and interpreted in accordance with the laws of the State of New York. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in Borough of Manhattan, New York for purposes of any suit, action or other proceeding arising from this Agreement, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or thereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in such courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts. Each of the parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of any such dispute. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(e) 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 or usage of the trade inconsistent with any of the terms hereof.
(f) Indulgences, No 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.
(g) Gender; Number. 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.
(h) Headings. The titles and headings of Sections and Subsections 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.
(i) 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. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law (e.g., www.docusign.com)), or other transmission method. 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.
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22. Trademark. The Adviser hereby grants the Company and the Operating Partnership a fully paid-up, royalty-free, non-exclusive, non-transferable license to use the name “North Haven Net REIT” and “NH Net REIT Operating Partnership, LP,” and to use “North Haven”, “North Haven Net”, “NH” and “NH REIT” as constituent parts of the names of each of their Affiliates and to use such names in connection with their materials (including those used in connection with the Company’s website) (collectively, the “North Haven Names”) solely in connection with the operation, maintenance and execution of business of the Company and the Operating Partnership. All rights in and to the North Haven Names not expressly granted herein to the Company and the Operating Partnership are retained and reserved by the Adviser (or its Affiliates). The Company and the Operating Partnership agree not to contest the validity of the Adviser’s (or its Affiliates’) rights to the North Haven Names. At no time during the term of the Agreement or following the termination of the Agreement shall the Company or the Operating Partnership have any right, title or interest to the name or goodwill attached to the North Haven Names. Upon the termination of this Agreement at any time and for any reason, all of the Company’s and the Operating Partnership’s right, title and interest in and to the use of the North Haven Names shall terminate and any goodwill thereto shall continue to vest in the Adviser (or its Affiliates). The Company and the Partnership shall have sixty (60) days from the date of termination to cease all further use of the North Haven Names.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Advisory Agreement as of the date and year first above written.
| North Haven Net REIT | ||
| By: | /s/ Douglas Armer | |
| Name: Douglas Armer | ||
| Title: Chief Financial Officer and Head of Capital Markets | ||
| NH Net REIT Operating Partnership, LP | ||
| By: | North Haven Net REIT, as general partner | |
| By: | /s/ Douglas Armer | |
| Name: Douglas Armer | ||
| Title: Chief Financial Officer and Head of Capital Markets |
| MSREF Real Estate Advisor, Inc. | ||
| By: | /s/ Christie Park | |
| Name: Christie Park | ||
| Title: Vice President | ||
