Moody National REIT II 8-K


Exhibit
10.1


 





 


AMENDMENT
NO. 1 TO THE SECOND AMENDED AND 

RESTATED ADVISORY AGREEMENT


 


THIS
AMENDMENT NO. 1 TO THE SECOND AMENDED AND RESTATED ADVISORY AGREEMENT, dated as of January 16, 2018, (this “Amendment”)
is entered into by and among Moody National REIT II, Inc., a Maryland corporation (the “Company”), Moody National
Operating Partnership II, LP, a Delaware limited partnership (the “Operating Partnership”), and Moody National
Advisor II, LLC, a Delaware limited liability company (the “Advisor,” and collectively with the Company and
the Operating Partnership, the “Parties”).


RECITALS


WHEREAS,
the Parties first entered into that certain Advisory Agreement, dated as of January 12, 2015, and effective January 20, 2015,
which provided for, among other matters, the management of the Company’s and the Operating Partnership’s day-to-day
activities by the Advisor and the Parties subsequently entered into a Second Amended and Restated Advisory Agreement dated June
7, 2017 (together, the “Advisory Agreement”), pursuant to which the Advisor agreed to provide certain services
to the Company and the Operating Partnership, and the Company agreed to provide certain compensation to the Advisor in exchange
for such service;


WHEREAS,
in connection with the Advisor’s paying certain compensation related to sales of the Company’s Shares, the Parties
desire to amend the Advisory Agreement to provide for a higher acquisition fee under certain circumstances;


WHEREAS,
the initial term of the Advisory Agreement is for a one year term which agreement may be renewed for an unlimited number of successive
one year terms; and


WHEREAS,
pursuant to Section 15 (Term of the Agreement) of the Advisory Agreement, the Parties desire to amend the Advisory Agreement pursuant
to this Amendment in order to renew the term of the Advisory Agreement for an additional one year term.


NOW
THEREFORE, the Company, the Operating Partnership and the Advisor hereby modify and amend the Advisory Agreement as follows:


		1.	Defined
                                         Terms. Capitalized terms used herein and not defined herein shall have the meanings
                                         set forth in the Advisory Agreement.



		2.	Amendment
                                         to Advisory Agreement.



Section
9(a) is hereby deleted and replaced with the following:


		(a)	Acquisition
                                         Fees. The Advisor shall receive an Acquisition Fee payable by the Company as
                                         compensation for services rendered in connection with the investigation, selection and
                                         acquisition (by purchase, investment, exchange, sourcing or origination) of Investments.
                                         The total Acquisition Fee payable to the Advisor or its Affiliates shall equal up to
                                         3.85% of (i) the cost of all Investments, including Acquisition Expenses and any debt
                                         attributed to such Investments and excluding Acquisition Fees and Financing Coordination
                                         Fees, or (ii) the amount funded by the Company to acquire or originate a Loan, including
                                         Acquisition Expenses related to such Investments and any debt used to fund the acquisition
                                         or origination of a Loan





    	 	 	 



     


    

 


and
excluding Acquisition Fees and Financing Coordination Fees. The Acquisition Fee consists of (i) a 1.5% base acquisition fee and
(ii) up to an additional 2.35% contingent acquisition fee (the “Contingent Advisor Payment”); provided,
however, that the first $3,500,000 of aggregate Contingent Advisor Payments (the “Contingent Advisor Payment Holdback”)
will be retained by the Company until the date that is one year from the date of this Amendment, at which time such amounts will
be paid to the Advisor. The amount of the Contingent Advisor Payment to be paid in connection with the closing of an acquisition
will be reviewed on an acquisition-by-acquisition basis and such payment shall not exceed the then-outstanding amounts paid by
the Advisor for Dealer Manager Fees, Sales Commissions or stockholder servicing fees as described in the most recent Prospectus
at the time of such closing. For these purposes, the amounts paid by the Advisor and considered “outstanding” will
be reduced by the amount of the Contingent Advisor Payment previously paid and taking into account the amount of the Contingent
Advisor Payment Holdback. The Advisor may waive or defer all or a portion of the Acquisition Fee at any time and from time to
time, in the Advisor’s sole discretion. With respect to the acquisition of Real Estate Assets through a Joint Venture,
the Acquisition Fee payable by the Company to the Advisor shall be calculated based on the Company’s allocable cost of such
Real Estate Assets, including Acquisition Expenses and any debt attributed to such Investments and excluding Acquisition Fees
and Financing Coordination Fees. The Advisor shall submit an invoice to the Company following the closing or closings of each
Investment, accompanied by a computation of the Acquisition Fee. The Acquisition Fee payable to the Advisor shall be paid upon
receipt of the invoice by the Company and in accordance with the terms of this Section 9(a).


		3.	Renewal
                                         of Advisory Agreement. Pursuant to Section 15 of the Advisory Agreement, the Parties
                                         hereby renew the term of the Advisory Agreement effective as of January 20, 2018 for
                                         an additional one year term ending on January 20, 2019.



		4.	Amendment. This
                                         Amendment may not be amended or modified except in writing signed by all parties.



		5.	Governing
                                         Law. This Amendment shall be governed by and construed in accordance with the
                                         laws of the State of Texas.



		6.	Counterparts. This
                                         Amendment may be executed in counterparts, each of which shall be deemed an original,
                                         and all of which together shall constitute a single instrument.



 


[Signatures
appear on next page]


 




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IN
WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the Advisory Agreement to be effective for all purposes
as of the date first above written.


 


	 	Moody National REIT II, Inc.
	 	 	 
	 	By:	/s/
    Brett C. Moody
	 	 	Brett C. Moody
	 	 	Chief Executive Officer and President
	 	 	 
	 	 	 
	 	Moody National Operating Partnership
    II, LP
	 	 	 
	 	By:	Moody National REIT II, Inc., its
    General Partner
	 	 	 
	 	 	By:	/s/
    Brett C. Moody
	 	 	 	Brett C. Moody
	 	 	 	Chief Executive Officer and President
	 	 	 
	 	 	 
	 	Moody National Advisor II, LLC
	 	 	 
	 	By:	Moody National REIT Sponsor, LLC
	 	 	 
	 	 	By:	Moody National REIT Sponsor SM,
    LLC
	 	 	 	 
	 	 	 	By:	/s/
    Brett C. Moody
	 	 	 	 	Member






 


    	 	Signature Page to Amendment No. 1 to the Second Amended and Restated Advisory Agreement