Termination Agreement, dated as of April 11, 2019, by and among Carter Validus Mission Critical REIT, Inc., Carter/Validus Operating Partnership, LP and Carter/Validus Advisors, LLC
April 11, 2019
Carter/Validus Advisors, LLC
4890 West Kennedy Blvd., Suite 650
Tampa, FL 33609
Re: Carter Validus Mission Critical REIT, Inc. Advisory Agreement
Ladies and Gentlemen:
This letter agreement sets forth certain agreements and understandings that each of Carter/Validus Advisors, LLC (the Advisor) and Carter Validus Mission Critical REIT, Inc. (the Company) has agreed to undertake in connection with the Companys proposed business combination with Carter Validus Mission Critical REIT II, Inc. (the Merger) pursuant to the Agreement and Plan of Merger among them and certain affiliated entities dated as of the date hereof (the Merger Agreement). Capitalized terms used but not defined herein shall have the respective meanings given to such terms in the Amended and Restated Advisory Agreement among the Company, its operating partnership and the Advisor, dated November 26, 2010, as amended.
1. Disposition Fees.
(a) The Advisor hereby waives any claim for a Disposition Fee in connection with the proposed Merger.
(b) In the event the Company completes a Sale in connection with a Superior Proposal (as defined in the Merger Agreement), the Advisor acknowledges that, consistent with the Companys past public disclosures, the amount of the Disposition Fee shall be the lesser of (i) 0.5% of the Contract Sales Price and (ii) one-half of the real estate commissions and/or investment banking fees paid in the aggregate to third-party brokers and/or investment bankers for such transaction. The Disposition Fee may be paid in addition to the Disposition Fee paid to non-Affiliates, provided that the total Disposition Fee paid to all Persons by the Company (including the Disposition Fee paid to the Advisor) shall not exceed an amount equal to the Competitive Disposition Fee. As used herein, Competitive Disposition Fee shall mean the real estate brokerage commissions and/or investment banking fees paid, or if no such commission is paid, the amount that would customarily be paid for the sale of the Company (or its Properties) that are reasonable, customary and competitive in light of the form of the Superior Proposal and the size and business of the Company (or the size, type or location of the Properties), as determined by the Special Committee of the Board of Directors of the Company formed for the purpose of evaluating the Merger.
2. Termination. In accordance with Section 4.02(i) of the Advisory Agreement, the Advisor and the Company hereby terminate the Advisory Agreement, effective upon consummation of the Merger.
3. Successors and Assigns. No party shall assign (voluntarily, by operation of law or otherwise) this letter agreement or any right, interest or benefit under this letter agreement without the prior written consent of each other party. Subject to the foregoing, this letter agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
4. Invalid Provision. The invalidity or unenforceability of any provision of this letter agreement shall not affect the other provisions hereof, and this letter agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
5. Applicable Law. This letter agreement and any disputes relative to the interpretation or enforcement hereto shall be governed by and construed under the internal laws, as opposed to the conflicts of laws provisions, of the State of Florida.
6. Waiver. EACH OF THE PARTIES HERETO WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS LETTER AGREEMENT. The parties hereto each hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Florida and the Federal courts of the United States of America located in Hillsborough County, Florida, in respect of the interpretation and enforcement of the terms of this letter agreement, and in respect of the transactions contemplated hereby, and each hereby waives, and agrees not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this letter agreement may not be enforced in or by such courts, and the parties hereto each hereby irrevocably agrees that all claims with respect to such action or proceeding shall be heard and determined in such a Florida State or Federal court.
7. Attorneys Fees. If a dispute arises concerning the performance, meaning or interpretation of any provision of this letter agreement or any document executed in connection with this letter agreement, then the prevailing party in such dispute shall be awarded any and all costs and expenses incurred by the prevailing party in enforcing, defending or establishing its rights hereunder or thereunder, including, without limitation, court costs and attorneys and expert witness fees. In addition to the foregoing award of costs and fees, the prevailing also shall be entitled to recover its attorneys fees incurred in any post-judgment proceedings to collect or enforce any judgment.
8. Entire Agreement. This letter agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This letter agreement may not be amended or supplemented other than by an agreement in writing signed by the parties hereto.
9. Nonwaiver. The failure of any party to insist upon or enforce strict performance by any other party of any provision of this letter agreement or to exercise any right under this letter agreement shall not be construed as a waiver or relinquishment to any extent of such partys right to assert or rely upon any such provision or right in that or any other instance; rather, such provision or right shall be and remain in full force and effect.
10. Counterparts. This letter agreement may be executed (including by facsimile transmission) with counterpart signature pages or in counterpart copies, each of which shall be deemed an original but all of which together shall constitute one and the same instrument comprising this letter agreement.
If the foregoing accurately sets forth your understanding of our agreement, please sign and return the enclosed copy of this letter agreement.
|Very truly yours,|
|CARTER VALIDUS MISSION CRITICAL REIT, INC.|
|By: /s/ Michael A. Seton|
|Name: Michael A. Seton|
|Title: Chief Executive Officer|
Acknowledged and Agreed to
as of the date first written above:
CARTER/VALIDUS ADVISORS, LLC
/s/ Michael A. Seton
Name: Michael A. Seton
Title: Chief Executive Officer
[Signature Page to Termination Side Letter]