0001482974-19-000085.txt : 20191008 0001482974-19-000085.hdr.sgml : 20191008 20191008151234 ACCESSION NUMBER: 0001482974-19-000085 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20191003 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Termination of a Material Definitive Agreement ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Changes in Control of Registrant ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20191008 DATE AS OF CHANGE: 20191008 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Carter Validus Mission Critical REIT, Inc. CENTRAL INDEX KEY: 0001482974 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 271550167 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-54675 FILM NUMBER: 191142630 BUSINESS ADDRESS: STREET 1: 4890 W KENNEDY BOULEVARD STREET 2: SUITE 650 CITY: TAMPA STATE: FL ZIP: 33609 BUSINESS PHONE: 813 287 0101 MAIL ADDRESS: STREET 1: 4890 W KENNEDY BOULEVARD STREET 2: SUITE 650 CITY: TAMPA STATE: FL ZIP: 33609 FORMER COMPANY: FORMER CONFORMED NAME: CARTER VALIDUS REIT INC DATE OF NAME CHANGE: 20100202 8-K 1 a8kreiti10072019merger-rel.htm 8-K Document


 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________________
FORM 8-K
___________________________________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 3, 2019
___________________________________________
CARTER VALIDUS MISSION CRITICAL REIT, INC.
(Carter Validus Mission Critical REIT II, Inc., as successor by merger)
(Exact Name of Registrant as Specified in Its Charter)
___________________________________________
Maryland
 
000-54675
 
27-1550167
(State or other jurisdiction of
incorporation or organization)
 
(Commission
File Number)
 
(I.R.S. Employer
Identification No.)
4890 West Kennedy Blvd.
Suite 650
Tampa, Florida 33609
(Address of principal executive offices)
(813) 287-0101
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
___________________________________________
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act: None
Title of each class
 
Trading Symbol
 
Name of each exchange on which registered
N/A
 
N/A
 
N/A
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
 
 





Item 1.01    Entry into a Material Definitive Agreement.
Amendment to CVOP Partnership Agreement
As previously disclosed in Carter Validus Mission Critical REIT, Inc.’s (the “Company” or "CVREIT") Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on April 11, 2019 (the “April 11, 2019 8-K”), the Company, Carter Validus Mission Critical REIT II, Inc. (“CVREIT II”), Carter/Validus Operating Partnership, LP (“CVOP”), Carter Validus Operating Partnership II, LP (“CVOP II”), and Lightning Merger Sub, LLC, a wholly owned subsidiary of CVREIT II (“Merger Sub”), entered into an Agreement and Plan of Merger (the “Merger Agreement”).
As previously disclosed in the April 11, 2019 8-K, concurrent with the execution of the Merger Agreement, CVREIT entered into an amendment (the “Second Amendment”) to the Amended and Restated Limited Partnership Agreement of CVOP, by and between CVREIT and Carter/Validus Advisors, LLC (“CVREIT Advisor”) (as amended, the “CVOP Partnership Agreement”). The purpose of the Second Amendment was to revise the economic interests of CVREIT Advisor by providing that CVREIT Advisor would not receive any subordinated distributions as a special limited partner of CVOP. The Second Amendment was to take effect as of the effective time of the REIT Merger (as defined herein).
On October 3, 2019, CVREIT and CVREIT Advisor entered into the Third Amendment to the CVOP Partnership Agreement (the “Third Amendment”), effective as of the effective time of the REIT Merger, which is attached as Exhibit 10.1 hereto. The purpose of the Third Amendment is to rescind the Second Amendment in its entirety so that the revisions to the CVOP Partnership Agreement set forth in the Second Amendment did not go into effect.
The foregoing description of the Third Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Amendment, which is filed as Exhibit 10.1 and is incorporated herein by reference.
Amendment to CVREIT II Advisory Agreement
As previously disclosed in the April 11, 2019 8-K, concurrent with the execution of the Merger Agreement, CVREIT II, CVOP, CVOP II, and Carter Validus Advisors II, LLC (“CVREIT II Advisor") entered into the Third Amended and Restated CVREIT II Advisory Agreement (the “Amended CVREIT II Advisory Agreement”), which became effective at the effective time of the REIT Merger.
On October 3, 2019, CVREIT II, CVOP, CVOP II and CVREIT II Advisor entered into the First Amendment to the Amended CVREIT II Advisory Agreement (the “First Amendment”), which became effective on October 4, 2019, simultaneously with the effectiveness of the Amended CVREIT II Advisory Agreement at the effective time of the REIT Merger, and is attached hereto as Exhibit 10.2. The purpose of the First Amendment is to clarify that any subordinated fees payable to CVREIT II Advisor under the Amended CVREIT II Advisory Agreement will be offset by any distributions CVREIT II Advisor or any of its affiliates receives as a special limited partner of CVOP II or CVOP.
The foregoing description of the First Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the First Amendment, which is filed as Exhibit 10.2 hereto and is incorporated herein by reference.
Omnibus Assignment and Amendment to Property Management and Leasing Agreements
On October 4, 2019, immediately prior to the effective time of the REIT Merger, pursuant to the Omnibus Assignment and Amendment to the Property Management and Leasing Agreements (the "Assignment Amendment"), Carter Validus Real Estate Management Services II, LLC, as assignee (the "Assignee"), acquired, and Carter Validus Real Estate Management Services, LLC, as assignor (the "Assignor"), assigned, transferred, conveyed, and delivered to the Assignee, all of the Assignor's rights, titles, and interests in the Property Management and Leasing Agreements by and among the Assignor and CVOP's wholly-owned subsidiaries. Therefore, the Assignee, the property manager for CVREIT II, will act as the property manager and leasing agent for the properties CVREIT II acquired in the REIT Merger.
The foregoing description of the Assignment Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Assignment Amendment attached hereto as Exhibit 10.3 and incorporated herein by reference.





Item 1.02    Termination of a Material Definitive Agreement.
On October 4, 2019, the Company merged with and into Merger Sub, with Merger Sub surviving as a direct, wholly-owned subsidiary of CVREIT II (the “REIT Merger”). Pursuant to that certain Termination Agreement of Amended and Restated Advisory Agreement (the "Termination Agreement"), by and among the Company, CVOP and CVREIT Advisor (for purposes of this Item 1.02, the "CVREIT Advisor Parties"), the Amended and Restated Advisory Agreement by and among the CVREIT Advisor Parties, dated November 26, 2010, as amended (the “Advisory Agreement”) was terminated effective as of the REIT Merger closing. CVREIT Advisor waived any claims or rights with respect to any fees that CVREIT Advisor may be entitled to receive in connection with such termination. The foregoing description of the Termination Agreement is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Termination Agreement, which is filed as Exhibit 10.4 and is incorporated herein by reference.
Item 2.01    Completion of Acquisition or Disposition of Assets.
REIT Merger
As previously disclosed in the Company’s Current Report on Form 8-K filed with the SEC on September 26, 2019, the stockholders of the Company approved the REIT Merger contemplated by the Merger Agreement at the Company’s Special Meeting of Stockholders on September 26, 2019.
On October 4, 2019, pursuant to the Merger Agreement, the Company merged with and into Merger Sub, with Merger Sub surviving as a direct, wholly-owned subsidiary of CVREIT II. At such time, in accordance with the applicable provisions of the Maryland General Corporation Law and the Maryland Limited Liability Company Act, the separate existence of the Company ceased.
At the effective time of the REIT Merger, each issued and outstanding share of the Company’s common stock (or a fraction thereof), $0.01 par value per share (“CVREIT Common Stock”), converted into the right to receive: (i) $1.00 in cash; and (ii) 0.4681 shares of CVREIT II Class A common stock, par value $0.01 per share (“CVREIT II Class A Common Stock”).
The combined company after the REIT Merger (the “Combined Company”) retains the name “Carter Validus Mission Critical REIT II, Inc.” and Merger Sub is now named “Carter Validus Mission Critical REIT II, LLC”. The REIT Merger is intended to qualify as a “reorganization” under, and within the meaning of, Section 368(a) of the Internal Revenue Code of 1986, as amended.
The descriptions of the Merger Agreement and the transactions contained in this Item 2.01 do not purport to be complete and are subject to and qualified in their entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.03    Material Modification to Rights of Security Holders.
As a result of and at the effective time of the REIT Merger, holders of CVREIT Common Stock immediately prior to such time ceased having any rights as stockholders of the Company (other than their right to receive the $1.00 in cash and the 0.4681 shares of CVREIT II Class A Common Stock per share under the Merger Agreement).
The information set forth in Item 2.01 is incorporated herein by reference.
Item 5.01    Changes in Control of Registrant.
As a result of and at the effective time of the REIT Merger, a change in control of the Company occurred and the Company merged with and into Merger Sub and the separate corporate existence of the Company ceased.
The information set forth in Item 2.01 is incorporated herein by reference.
Item 5.02    Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As a result of the REIT Merger and pursuant to the Merger Agreement, as described above in Item 2.01 of this Current Report on Form 8-K, the Company ceased to exist and Merger Sub continued as the surviving corporation. All members of the board of directors of the Company ceased to be directors at the effective time of the REIT Merger by operation of the REIT Merger.





Item 9.01    Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.
 
Description
2.1
 
10.1
 
10.2
 
10.3
 
10.4
 





SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
CARTER VALIDUS MISSION CRITICAL REIT II, INC., as successor by merger to Carter Validus Mission Critical REIT, Inc.
 
 
 
 
Dated: October 8, 2019
 
By:
/s/ Kay C. Neely
 
 
Name:
Kay C. Neely
 
 
Title:
Chief Financial Officer


EX-10.1 2 ex101-thirdamendtoalpofcvop.htm EXHIBIT 10.1 Exhibit

EXHIBIT 10.1
Third Amendment to the Agreement of
Limited Partnership
of
Carter/Validus Operating Partnership, LP
The Partnership Agreement (defined below) is hereby further amended as of this October 3, 2019 (the “Effective Date”) by this Third Amendment (this “Third Amendment”) by and between (i) Carter Validus Mission Critical REIT, Inc. (the “General Partner”), a Maryland corporation holding both general partner and limited partner interests in the Partnership (defined below), and (ii) Carter/Validus Advisors, LLC, a Delaware limited liability company (the “Special Limited Partner”).
Recitals
WHEREAS, the parties hereto have entered into that Agreement of Limited Partnership Agreement (the “Original Partnership Agreement”) of Carter/Validus Operating Partnership, LP, a Delaware limited partnership (the “Partnership”), dated December 29, 2009, as amended by (i) that First Amendment thereto, dated September 21, 2018, and (ii) that Second Amendment thereto (the “Second Amendment”), dated April 11, 2019 (the Original Partnership Agreement, as amended through the Second Amendment, the “Partnership Agreement”; and, the Original Partnership Agreement, as amended only through the First Amendment, the “Previous Partnership Agreement”);
WHEREAS, the Second Amendment provides its effective date as of the date of the consummation of the merger between the General Partner and Lightning Merger Sub, LLC, a Delaware limited liability company (the “Merger Date”); and
WHEREAS, the parties hereto desire to further amend the Partnership Agreement to rescind, prior to the Merger Date, the Second Amendment and all amendments and other provisions provided thereunder with respect to the Partnership Agreement, pursuant to this Third Amendment which shall become effective as of the Effective Date.

1



Amendment
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree to the following which shall become effective as of the Effective Date:
1.
Rescission of the Second Amendment. The Second Amendment is hereby rescinded and shall take no effect on the Merger Date or any other time. For avoidance of doubt, the Partnership Agreement shall, in its entirety, as of and since the Effective Date, including through and after the Merger Date, remain in the form of the Previous Partnership Agreement.
 
 
2.
Counterparts. This Third Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.
 
 
3.
Continuation of Partnership Agreement. The Partnership Agreement and this Third Amendment shall be read together and shall have the same force and effect as if the provisions of the Partnership Agreement and this Third Amendment were contained in one document. Any provisions of the Partnership Agreement not amended by this Third Amendment shall remain in full force and effect as provided in the Partnership Agreement immediately prior to the Effective Date. In the event of a conflict between the provisions of this Third Amendment and the Partnership Agreement, the provisions of this Third Amendment shall control.
 
 
[Signature Page Follows]


2



In Witness Whereof, the parties hereto have executed this Third Amendment as of the Effective Date.
 
 
 
 
GENERAL PARTNER:
 
CARTER VALIDUS MISSION CRITICAL
REIT, INC., a Maryland corporation
 
 
By: /s/ Kay C. Neely
Kay C. Neely
Chief Financial Officer
 
 
Acknowledged:
 
SPECIAL LIMITED PARTNER:
 
CARTER/VALIDUS ADVISORS, LLC, a Delaware limited liability company
 
 
By: /s/ Michael A. Seton
Michael A. Seton
Chief Executive Officer and President
 
 
 
 
 
[Signature Page to Third Amendment to the Agreement of Limited Partnership
of Carter/Validus Operating Partnership, LP]


[Signature Page to Third Amendment to the Agreement of Limited Partnership of Carter/Validus Operating Partnership, LP]

EX-10.2 3 ex102-firstamendtothirdaraa.htm EXHIBIT 10.2 Exhibit
EXHIBIT 10.2
FIRST AMENDMENT TO THE THIRD AMENDED AND RESTATED
ADVISORY AGREEMENT

This First Amendment (this “Amendment”) to the Third Amended and Restated Advisory Agreement (the “Agreement”), is entered into as of October 3, 2019, and shall be effective as of the effective date of the Merger, simultaneously with the effectiveness of the Agreement, and is entered into by and among, CARTER VALIDUS MISSION CRITICAL REIT II, INC., a Maryland corporation (the “Company”), CARTER VALIDUS OPERATING PARTNERSHIP II, LP, a Delaware limited partnership (the “Partnership”), CARTER/VALIDUS OPERATING PARTNERSHIP, LP, a Delaware limited partnership (“OP I”) and CARTER VALIDUS ADVISORS II, LLC a Delaware limited liability company.

WITNESSETH


WHEREAS, the parties to the Agreement desire to make certain clarifications to the fees payable to the Advisor pursuant to the Agreement;

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and other good and valuable consideration, the sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.
Amendment to Section 3.01.

The following is hereby added as paragraph (i) of Section 3.01:

(i)Notwithstanding any of the foregoing, any amount payable to the Advisor pursuant to Section 3.01(d), 3.01(e), 4.03(b) or 4.03(c) will be offset by any distributions the Advisor or any affiliate thereof receives, as a special limited partner of the Partnership or OP I. Moreover, the Advisor shall remit to the Company any amount it or an affiliate thereof receives as a special limited partner of the Partnership or OP I unless the Advisor would have been entitled to receive such amount pursuant to 3.01(d), 3.01(e), 4.03(b) or 4.03(c) but for the offset included in the prior sentence.


2.
Defined Terms. Capitalized terms used but not defined in this Amendment shall have the same meanings assigned to them in the Agreement.

3.
Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.

4.
Continuation of Agreement. The Agreement and this Amendment shall be read together and shall have the same force and effect as if the provisions of the Agreement and this Amendment were contained in one document. Any provisions of the Agreement not amended by this Amendment shall remain in full force and effect as provided in the Agreement. In the event of a conflict between the provisions of this Amendment and the Agreement, the provisions of this Amendment shall control.

[Signature Page to First Amendment to the Third Amended and Restated Advisory Agreement]


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.

CARTER VALIDUS MISSION CRITICAL REIT II, INC.

By: /s/ Kay C. Neely
   Kay C. Neely
   Chief Financial Officer

CARTER VALIDUS ADVISORS II, LLC

By: /s/ Kay C. Neely
   Kay C. Neely
   Chief Financial Officer

CARTER VALIDUS OPERATING PARTNERSHIP II, LP

   By: Carter Validus Mission Critical REIT II, Inc., its General Partner

By: /s/ Kay C. Neely
   Kay C. Neely
   Chief Financial Officer

CARTER/VALIDUS OPERATING PARTNERSHIP, LP

   By: Carter Validus Mission Critical REIT, Inc., its General Partner

By: /s/ Michael A. Seton
   Michael A. Seton
   Chief Executive Officer and President

[Signature Page to First Amendment to the Third Amended and Restated Advisory Agreement]
EX-10.3 4 ex103-omnibusassignment.htm EXHIBIT 10.3 Exhibit


EXHIBIT 10.3
OMNIBUS ASSIGNMENT AND AMENDMENT TO
THE PROPERTY MANAGEMENT AND LEASING AGREEMENTS
OF THE ENTITIES LISTED ON EXHIBIT A

This OMNIBUS ASSIGNMENT AND AMENDMENT TO THE PROPERTY MANAGEMENT AND LEASING AGREEMENTS (this “Agreement”) is entered into as of October 4, 2019 (the “Effective Date”), by and among (i) the entities listed on Exhibit A attached hereto and made a part hereof (collectively, the “Owners”), (ii) CARTER VALIDUS REAL ESTATE MANAGEMENT SERVICES, LLC, a Delaware limited liability company (the “Assignor”) and (iii) CARTER VALIDUS REAL ESTATE MANAGEMENT SERVICES II, LLC, a Delaware limited liability company (the “Assignee”).

W I T N E S S E T H :

WHEREAS, pursuant to the Property Management and Leasing Agreements by and among each Owner and the Assignor (the “Management Agreements”), Assignor serves as manager and tenant coordinating agent of the properties that are the subject of the respective Management Agreements;

WHEREAS, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”) by and among Carter Validus Mission Critical REIT II, Inc. (“REIT II”), Carter Validus Operating Partnership II, LP (“OP II”), Carter/Validus Mission Critical REIT, Inc. (“REIT I”), Carter/Validus Operating Partnership, LP (“OP I”) and Lightning Merger Sub, LLC (the “Merger Agreement”), dated as of April 11, 2019, REIT I will merge with and into Merger Sub (the “Merger”) and, as a result, OP I will become a subsidiary of REIT II;

WHEREAS, OP I owns the equity interests in each entity that owns a Property (each an “Owner”) and, collectively, the “Owners”); and

WHEREAS, immediately prior to the Merger Effective Time (as defined in the Merger Agreement) and pursuant to Section 8.3 of each of the Management Agreements, the Assignee has agreed to acquire, and the Assignor has agreed to assign, transfer, convey and deliver to the Assignee, all of the Assignor’s rights, titles and interests in the Management Agreements.

NOW THEREFORE, in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:

1.Assignment and Assumption. Effective as of the date hereof, upon the terms and subject to the conditions set forth herein:


1




(i)Effective immediately prior to the Merger Effective Time, Assignor hereby assigns, transfers, conveys and delivers to Assignee, all of Assignor’s rights, titles and interests in and to the Management Agreements; and
(ii)    Effective immediately prior the Merger Effective Time, Assignee hereby (a) acquires all of Assignor’s rights, titles and interests in the Management Agreements, agrees to be bound by each of the Management Agreements and shall be deemed the “Manager” pursuant to each of the Management Agreements as of the date hereof, and (b) unconditionally and irrevocably assumes, undertakes and agrees, subject to valid claims and defenses, to pay, satisfy, perform and discharge in full, as and when due, and release and discharge Assignee and its successors and assigns completely and forever from, all obligations and liabilities of any kind arising out of, or required to be performed under, the Management Agreements, in each case, solely to the extent arising from and after the date hereof; provided, however, that (x) it is understood and agreed that no Assignee shall assume any obligation or claim arising out of the performance of, or failure to perform under, any Management Agreement to the extent relating to an act or omission prior to the date hereof or to the extent that such obligation or claim is attributable to any period prior to the date hereof (the “Retained Liabilities”) (and any third party shall be required to look solely to Assignor with respect to any claims relating to such Retained Liabilities), and (y) Assignor hereby agrees to indemnify, reimburse, defend and hold harmless Assignee, its affiliates and representatives from and against any and all damages of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against them, in any way by any third party relating to or arising out of any Retained Liabilities.
(iii)    In accordance with Section 8.3 of each Management Agreement, the Owners hereby consent to the assignment.
2.Further Assurances. The Parties covenant and agree to take such actions and execute and deliver such further deeds, assignments or other transfer documents, in each case, as a Party may reasonably request, to effectively contribute, transfer, assign and convey, and to evidence such contribution, transfer, assignment and conveyance of, the interests in the Management Agreements, if any.

3.Assignor Representations and Warranties.

(i)    Assignor hereby represents and warrants to Assignee as follows:
(a)    Existence and Power. It is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all power and authority required to carry on its business as now conducted.
(b)    Authorization. Subject to the receipt of the consent of each of the Owners, it has all requisite corporate or similar power, authority and legal capacity to execute and delivery, as applicable, this Agreement and to perform its obligations hereunder. The execution, delivery and performance of this Agreement have been duly approved by all requisite action on it and its applicable subsidiaries’ parts. This Agreement has been executed and delivered by it or such affiliate, as applicable, and, assuming the due authorization, execution

2




and delivery by the other parties hereto and thereto, constitutes or will constitute a legal, valid and binding obligation of it and such applicable subsidiaries, enforceable against each such person in accordance with its terms, subject to the Equitable Exceptions.
(c)    Non-Contravention. The execution, delivery and performance by it of this Agreement does not and will not, directly or indirectly, (a) violate, contravene or conflict with any provision of the organizational documents of such person, (b) contravene or conflict with, or constitute a violation of, any applicable order or provisions of any applicable law binding upon or applicable to any such person, (c) require it or any of its respective subsidiaries to make or obtain any registration, filing, application, notice, consent, approval, order, qualification, authorization, designation, declaration or waiver with, to or from any governmental authority or any other person, or (d) require a consent, approval or waiver from, or notice to, any party to any contract to which it or any of its respective affiliates (other than REIT I, OP I and their respective subsidiaries) is a party.
4.Amendments. Each Management Agreement is hereby amended as follows.

(a)
Section 8.1 (Notices - Manager):

Manager: CARTER VALIDUS REAL ESTATE MANAGEMENT SERVICES II, LLC
c/o Carter & Associates, L.L.C
4890 W. Kennedy Blvd., Suite 650
Tampa, FL 33609    
Attention: Legal Department


5.Entire Agreement. This Agreement together with the respective Management Agreements constitute the entire agreement and understanding among the Parties in respect of the subject matter hereof and thereof and supersedes all prior and contemporaneous arrangements, agreements and understandings, both oral and written, whether in term sheets, presentations or otherwise among the Parties, or between any of them, with respect to the subject matter hereof and thereof.

6.Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to the choice of laws provisions thereof.

7.Titles. The titles and captions of the Articles, Sections and paragraphs of this Agreement are included for convenience of reference only and shall have no effect on the construction or meaning of this Agreement.

8.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and it will not be necessary in making proof of this

3




Agreement or the terms of this Agreement to produce or account for more than one of such counterparts. All counterparts shall constitute one and the same instrument. Each party may execute this Agreement via a facsimile (or transmission of a .pdf file) of this Agreement. In addition, facsimile or .pdf signatures of authorized signatories of the parties shall be valid and binding and delivery of a facsimile or .pdf signature by any party shall constitute due execution and delivery of this Agreement.




[Remainder of Page Left Intentionally Blank; Signature Pages Follow]


4




IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the date first above written.
ASSIGNOR:
CARTER VALIDUS REAL ESTATE MANAGEMENT SERVICES, LLC,
a Delaware limited liability company
 
By: Carter/Validus REIT Investment Management Company, LLC, a Florida limited liability company, its sole member
 
By: /s/ Michael A. Seton
Name: Michael A. Seton
Title: Chief Executive Officer

Signature Page to Assignment and Amendment



ASSIGNEE:
CARTER VALIDUS REAL ESTATE MANAGEMENT SERVICES II, LLC
 
By: Carter Validus REIT Management Company II, LLC, a Florida limited liability company, its sole member
 
By: /s/ Kay C. Neely
Name: Kay C. Neely
Title: Chief Financial Officer

Signature Page to Assignment and Amendment




OWNERS:
 
HC-760 OFFICE PARKWAY, LLC
HC-2501 W. WILLIAM CANNON DR, LLC
HC-14024 QUAIL POINTE DRIVE, LLC,
each a Delaware limited liability company
 
By:Carter/Validus Operating Partnership, LP,
a Delaware limited partnership, its sole member
 
By:Carter Validus Mission Critical REIT II, LLC,
a Maryland limited liability company, its general partner
 
By:Carter Validus Mission Critical REIT II, Inc.,
a Maryland corporation, its sole member
 
 
By: /s/ Kay C. Neely
Name: Kay C. Neely
Title: Chief Financial Officer

Signature Page to Assignment and Amendment



HC-2727 E. LEMMON AVENUE, LLC
HC-8451 PEARL STREET, LLC
HC-4499 ACUSHNET AVENUE, LLC
HC-17322 RED OAK DRIVE, LLC
HC-1940 TOWN PARK BOULEVARD, LLC
HC-4201 WILLIAM D. TATE AVENUE, LLC
HC-2257 KARISA DRIVE, LLC
HC-3873 N. PARKVIEW DRIVE, LLC
HC-3436 MASONIC DRIVE, LLC
HC-3001 NORTH AUGUSTA NATIONAL DRIVE, LLC
HC-1946 TOWN PARK BOULEVARD, LLC
HC-5330 N LOOP 1604 WEST, LLC
HC-10323 STATE HIGHWAY 151, LLC
HC-5101 MEDICAL DRIVE, LLC
HC-4810 N. LOOP 289, LLC
HC-7502 GREENVILLE AVENUE, LLC
HC-42570 SOUTH AIRPORT ROAD, LLC
HC-200 BLOSSOM STREET, LLC
HC-116 EDDIE DOWLING HIGHWAY, LLC
HCP-SELECT MEDICAL, LLC
HC-5330L N. LOOP 1604 WEST, LLC
HCP-DERMATOLOGY ASSOCIATES, LLC
HC-1101 KALISTE SALOOM ROAD, LLC
HC-800 EAST 68TH STREET, LLC
HC-5829 29 PALMS HIGHWAY, LLC,
each a Delaware liability company
 
By:Carter/Validus Operating Partnership, LP,
a Delaware limited partnership, its sole member
 
By:Carter Validus Mission Critical REIT II, LLC,
a Maryland limited liability company, its general partner
 
By:Carter Validus Mission Critical REIT II, Inc.,
a Maryland corporation, its sole member
 
By: /s/ Kay C. Neely
Name: Kay C. Neely
Title: Chief Financial Officer

Signature Page to Assignment and Amendment




HC- 40055 BOB HOPE DRIVE, LLC
HC-77-840 FLORA ROAD, LLC
HC-6879 US HIGHWAY 98 WEST, LLC
HC-601 REDSTONE AVENUE WEST, LLC
HC-1026 MAR WALT DRIVE, NW, LLC
HC-2234 COLONIAL BLVD., LLC
HC-2270 COLONIAL BLVD., LLC
HC-8991 BRIGHTON LANE, LLC
HC-1120 LEE BOULEVARD, LLC
HC-7751 BAYMEADOWS RD. E., LLC
HC-#2 PHYSICIANS PARK DR., LLC
HC-6160 S. FORT APACHE ROAD, LLC
HC-52 NORTH PECOS ROAD, LLC
HC-187 SKYLAR DRIVE, LLC
HC-860 PARKVIEW DRIVE NORTH, UNITS A&B, LLC
HC-6310 HEALTH PKWY., UNITS 100&200, LLC
HCP-PAM WARM SPRINGS, LLC,
each a Delaware liability company
 
By:Carter/Validus Operating Partnership, LP,
a Delaware limited partnership, its sole member
 
By:Carter Validus Mission Critical REIT II, LLC,
a Maryland limited liability company, its general partner
 
By:Carter Validus Mission Critical REIT II, Inc.,
a Maryland corporation, its sole member
 
 
By: /s/ Kay C. Neely
Name: Kay C. Neely
Title: Chief Financial Officer

Signature Page to Assignment and Amendment




HC-239 S. MOUNTAIN BOULEVARD, LP,
a Delaware limited partnership
 
By:HC-239 S. Mountain Boulevard Management, LLC,
a Delaware limited liability company, its general partner
 
By:Carter/Validus Operating Partnership, LP,
a Delaware limited partnership, its sole member
 
By:Carter Validus Mission Critical REIT II, LLC,
a Maryland limited liability company, its general partner
 
By:Carter Validus Mission Critical REIT II, Inc.,
a Maryland corporation, its sole member
 
 
By: /s/ Kay C. Neely
Name: Kay C. Neely
Title: Chief Financial Officer

Signature Page to Assignment and Amendment




Exhibit A
OWNERS
1.
HC-760 Office Parkway, LLC
2.
HC-2501 W. William Cannon Dr, LLC
3.
HC-14024 Quail Pointe Drive, LLC
4.
HC-2727 E. Lemmon Avenue, LLC
5.
HC-8451 Pearl Street, LLC
6.
HC-4499 Acushnet Avenue, LLC
7.
HC-17322 Red Oak Drive, LLC
8.
HC-1940 Town Park Boulevard, LLC
9.
HC-4201 William D. Tate Avenue, LLC
10.
HC-2257 Karisa Drive, LLC
11.
HC-3873 N. Parkview Drive, LLC
12.
HC-3436 Masonic Drive, LLC
13.
HC-3001 North Augusta National Drive, LLC
14.
HC-1946 Town Park Boulevard, LLC
15.
HC-5330 N Loop 1604 West, LLC
16.
HC-10323 State Highway 151, LLC
17.
HC-5101 Medical Drive, LLC
18.
HC-4810 N. Loop 289, LLC
19.
HC-7502 Greenville Avenue, LLC
20.
HC-42570 South Airport Road, LLC
21.
HC-200 Blossom Street, LLC
22.
HC-116 Eddie Dowling Highway, LLC
23.
HCP-Select Medical, LLC
24.
HC-5330L N. Loop 1604 West, LLC
25.
HCP-Dermatology Associates, LLC
26.
HC-1101 Kaliste Saloom Road, LLC
27.
HC-800 East 68th Street, LLC
28.
HC-5829 29 Palms Highway, LLC
29.
HC- 40055 Bob Hope Drive, LLC
30.
HC-77-840 Flora Road, LLC
31.
HC-6879 US Highway 98 West, LLC
32.
HC-601 Redstone Avenue West, LLC
33.
HC-1026 Mar Walt Drive, NW, LLC
34.
HC-2234 Colonial Blvd., LLC
35.
HC-2270 Colonial Blvd., LLC
36.
HC-8991 Brighton Lane, LLC
37.
HC-1120 Lee Boulevard, LLC





38.
HC-7751 Baymeadows Rd. E., LLC
39.
HC-#2 Physicians Park Dr., LLC
40.
HC-6160 S. Fort Apache Road, LLC
41.
HC-52 North Pecos Road, LLC
42.
HC-187 Skylar Drive, LLC
43.
HC-860 Parkview Drive North, Units A&B, LLC
44.
HC-6310 Health Pkwy., Units 100&200, LLC
45.
HCP-PAM Warm Springs, LLC
46.
HC-239 S. Mountain Boulevard, LP


EX-10.4 5 ex104-terminationagreement.htm EXHIBIT 10.4 Exhibit

EXHIBIT 10.4
Termination Agreement
of
Amended and Restated Advisory Agreement
This Termination Agreement (this “Agreement”) is entered into on this October 4, 2019, by and among Carter Validus Mission Critical REIT, Inc., a Maryland corporation (the “Company”), Carter/Validus Operating Partnership, LP, a Delaware limited partnership (the “Partnership”) and Carter/Validus Advisors, LLC, a Delaware limited liability company (the “Advisor”).
Recitals
WHEREAS, the parties hereto have entered into that Amended and Restated Advisory Agreement dated November 26, 2010, as amended by that First Amendment dated March 29, 2011, that Second Amendment dated October 4, 2012 and that Third Amendment dated November 25, 2014 (collectively, the “Advisory Agreement”);
WHEREAS, the Company and the Partnership are party to that Merger Agreement dated April 11, 2019, by and among the Company, the Partnership, Carter Validus Mission Critical REIT II, Inc., Carter Validus Operating Partnership II, LP and Lightning Merger Sub, LLC (the “Merger Agreement”);
WHEREAS, as of the Closing Date (as defined in the Merger Agreement) which is expected to be on or around October 4, 2019, the Company will merge with and into Merger Sub (as defined in the Merger Agreement);
WHEREAS, such merger under the Merger Agreement would satisfy the definition of “Change of Control” as provided in the Advisory Agreement;
WHEREAS, Section 4.02 of the Advisory Agreement provides each party hereto an option to terminate the Advisory Agreement immediately upon a Change of Control (as defined in the Advisory Agreement); and
WHEREAS, the parties hereto desire to terminate the Advisory Agreement effective as of the Closing Date.
Agreement
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as the following which shall become effective as of the Closing Date:

1



1.
Termination of Advisory Agreement. The Advisory Agreement shall be terminated accordance with Section 4.02 and other applicable provisions thereof (the “Termination”).
 
 
2.
Waiver of Termination Fees. Notwithstanding any applicable provisions set forth in the Advisory Agreement, the Advisor waives any claim or right it has with respect to any fees which the Advisor may be entitled to receive in connection with the Termination, and other parties hereto acknowledges such waiver of the Advisor.
 
 
3.
Governing Law. This Termination Agreement shall be construed and interpreted in accordance with the laws of the State of Florida, and venue for any action brought with respect to any claims arising out of this Termination Agreement shall be brought exclusively in Hillsborough County, Tampa.
 
 
4.
Counterparts. This Termination Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.
 
 
5.
Conflicts. In the event of a conflict between the provisions of this Termination Agreement and the Advisory Agreement, the provisions of this Termination Agreement shall control.
 
 
[Signature Page Follows]


2



In Witness Whereof, the parties hereto have executed this Termination Agreement as of the date first mentioned above for effectiveness as of the Closing Date.
 
 
 
 
CARTER VALIDUS MISSION CRITICAL REIT, INC.
 
 
 
By: /s/ Michael A. Seton
Michael A. Seton
Chief Executive Officer and President
 
 
 
CARTER/VALIDUS ADVISORS, LLC
 
 
 
By: /s/ Kay C. Neely
Kay C. Neely
Chief Financial Officer
 


CARTER/VALIDUS OPERATING PARTNERSHIP, LP
 
 By: Carter Validus Mission Critical REIT, Inc.
 


By: /s/ Michael A. Seton
Michael A. Seton
Chief Executive Officer and President
 
 

[Signature Page to Termination Agreement of Amended and Restated Advisory Agreement]