Filed by Avantafile.com - The Parking REIT, Inc. - Exhibit 10.2




CLASS A UNIT AGREEMENT


 


MVP REIT II OPERATING PARTNERSHIP, L.P.


 


and


 


HSCP STRATEGIC III, L.P. 


 


CLASS A UNIT AGREEMENT


 


Dated as of November 2, 2021


 


THIS CLASS A UNIT AGREEMENT (this “Agreement”),
dated as of November 2, 2021, is by and between MVP REIT II Operating
Partnership, L.P., a Maryland limited partnership (the “Company”), and HSCP Strategic III,
L.P., a Delaware limited partnership (the “Purchaser”).


 


WHEREAS, the
Purchaser, the Company and The Parking REIT, Inc., a Maryland corporation (the “General
Partner”), have entered into a Securities Purchase Agreement, dated as of even
date herewith (the “Purchase Agreement”), providing for, among
other things, the issuance by the Company to the Purchaser of 425,532 units of limited
partnership of the Company designated as “Class A Common Units” (the “Class
A Units”) in the Company’s Second Amended & Restated Agreement of
Limited Partnership, dated as of even date herewith (the “Partnership
Agreement”).  Each Class A Unit
entitles the holder thereof to purchase one unit of limited partnership of the
Company (“OP Unit”) designated as a “Common Unit” in the Partnership
Agreement, for $11.75 per OP Unit, subject to adjustment as described herein
(such OP Units, the “Additional OP Units”); and


 


WHEREAS, the Company desires to provide for the
form and provisions of the Class A Units, the terms upon which the Additional
OP Units shall be issued and exercised, and the respective rights, limitation
of rights, and immunities of the Company and the holders of the Class A Units.


 


NOW, THEREFORE, in consideration of the mutual
agreements herein contained, the parties hereto agree as follows:


 


1.                 
Class A Units.


 


1.1.           
Form of Class A Unit.  Each Class A Unit shall be issued in
registered form and shall be substantially in the form of Exhibit A
hereto, the provisions of which are incorporated herein and shall be signed by,
or bear the facsimile signature of, the Chief Executive Officer, President,
Chief Financial Officer, Secretary or other officer of the Company or the
General Partner.  In the event the Person
whose electronic signature has been placed upon any Class A Unit shall have
ceased to serve in the capacity in which such Person signed the Class A Unit
before such Class A Unit is issued, it may be issued with the same effect as if
he or she had not ceased to be such at the date of issuance.








1.2.           
Registration.


 


1.2.1.      Partnership
Register.  The Company shall maintain
books (the “Partnership Register”) for the registration of original
issuance and the registration of transfer of the Class A Units.  Upon the initial issuance of the Class A Units,
the Company shall register the Class A Units in the names and denominations of
the respective holders thereof.


 


1.2.2.      Registered
Holder.  Prior to due presentment for
registration of transfer of any Class A Unit, the Company may deem and treat
the Person in whose name such Class A Unit is registered in the Partnership
Register (the “Registered Holder”) as the absolute owner of such Class A
Unit and of each Class A Unit represented thereby (notwithstanding any notation
of ownership or other writing on the Class A Unit Certificate (as defined
below) made by anyone other than the Company), for the purpose of any exercise
thereof, and for all other purposes, and the Company shall not be affected by
any notice to the contrary.


 


2.                 
Terms and Exercise of Class A Units.


 


2.1.           
Class A Unit Price.  Each Class A Unit shall entitle the
Registered Holder thereof, subject to the provisions of such Class A Unit and
of this Agreement, to purchase from the Company one OP Unit, at the price of $11.75
per OP Unit, subject to the adjustments provided in Section 3.  The term “Class A Unit Price” as used
in this Agreement shall mean the price per OP Unit at which OP Units may be
purchased at the time a Class A Unit is exercised.


 


2.2.           
Duration of Class A Units.  A Class A Unit may be exercised only during
the period (the “Exercise Period”) commencing on a Liquidity Event and
terminating at 5:00 p.m., New York City time, on the date that is five (5)
years after the date hereof (the “Expiration Date”); provided, however,
that the exercise of any Class A Unit shall be subject to the satisfaction of
any applicable conditions set forth in this Agreement.


 


2.3.           
Exercise of Class A Units.


 


2.3.1.      Exercise
Procedure.  Subject to the provisions
of the Class A Unit and this Agreement, a Class A Unit may be exercised by the
Registered Holder thereof (A) by delivering to the Company at its address set
forth in Section 9.2 hereof, (i) the Class A Unit Certificate (in the form
attached hereto as Exhibit A, the “Class A Unit Certificate”)
evidencing the Class A Units to be exercised, and (ii) an election to purchase
(in the form attached hereto as Exhibit B) (the “Election to Purchase”)
any OP Units pursuant to the exercise of the Class A Units, properly completed
and executed by the Registered Holder on the reverse of the Class A Unit Certificate,
and (B) by paying full the Class A Unit Price for each full OP Unit as to which
the Class A Unit is exercised in lawful money of the United States, by wire
transfer to the Company, unless the Registered Holder exercises Class A Units
pursuant to a cashless exercise set forth in Section 2.3.2 below.


 


2.3.2.      Cashless Exercise.  On
any exercise of a Class A Unit, in lieu of payment of the aggregate Class A
Unit Price in the manner specified in Section 2.3.1 above, the Registered Holder may elect for the
Company to deliver to such Registered Holder, without payment by the Registered
Holder of any exercise price in cash, such number of fully paid and
non-assessable OP Units determined by the following formula:


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X = Y(A-B)/A


            


where:


            


X =      the number of OP Units to be issued to the Registered Holder; 


Y =      the number of OP Units with respect to which the Class A Units are being exercised (inclusive of the Class A Units surrendered to the Company in payment of the aggregate Class A Unit Price); 


A =      the fair market value (as determined pursuant to the methodology set forth immediately below) of one OP Unit; and 


B =      the Class A Unit Price (as adjusted hereunder).


 


The fair market value of an OP
Unit shall be equal to the closing price or last sale price of a share of Common
Stock reported on the Business Day immediately preceding the date on which the
Registered Holder delivers the Class A Units together with its Election
to Purchase to the Company. 


 


2.3.3.      Issuance
of OP Units on Exercise.  As soon as
practicable after the exercise of any Class A Unit, and the clearance of the
funds in payment of the Class A Unit Price in the case of cash exercise, or
delivery of such Class A Units in the case of a cashless exercise under Section
2.3.2, the Company shall issue to the Registered Holder of such Class A Unit a
certificate or certificates for the whole number OP Units to which he, she or
it is entitled, registered in such name or names as may be directed by him, her
or it, and if such Class A Unit shall not have been exercised in full, a new
countersigned Class A Unit for the number of OP Units as to which such Class A
Unit shall not have been exercised.  


 


2.3.4.     
Date of Issuance.  Each person in whose name any certificate, if
any, for OP Units is issued shall for all purposes be deemed to have become the
holder of record of such OP Units on the date on which the Class A Unit was surrendered
and payment of the Class A Unit Price was made, if applicable, irrespective of
the date of delivery of such certificate, if any, except that, if the date of
such surrender and payment, if applicable, is a date when the unit transfer
books of the Company are closed, such person shall be deemed to have become the
holder of such OP Units at the close of business on the next succeeding date on
which the unit transfer books are open.


 


3.                 
Adjustments. 
The Class A Unit Price and number of OP Units issuable upon exercise of a
Class A Unit shall be subject to adjustment from time to time as follows; provided,
that no single event shall cause an economically duplicative adjustment under
more than one subsection of this Section 3.


 


3.1.           
Split-Ups/Dividends.  If after the date hereof, and subject to the
provisions of Section 3.6 below, the number of outstanding OP Units
is increased by a dividend payable in OP Units, or by a split-up of OP Units or
other similar event, then, on the effective date of such dividend, split-up or
similar event, the number of OP Units issuable on exercise of each Class A Unit
shall be increased in proportion to such increase in the outstanding OP Units.


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3.2.           
Aggregation of OP Units.  If after the date hereof, and subject to the
provisions of Section 3.6 hereof, the number of outstanding OP Units is
decreased by a consolidation, combination, reverse split or reclassification of
OP Units or other similar event, then, on the effective date of such
consolidation, combination, reverse split, reclassification or similar event,
the number of OP Units issuable on exercise of each Class A Unit shall be
decreased in proportion to such decrease in outstanding OP Units. 


 


3.3.           
Adjustments in Class A Unit Price.  Whenever the number of OP Units purchasable
upon the exercise of the Class A Units is adjusted, as provided in Section
3.1 or 3.2 above, the Class A Unit Price shall be adjusted (to the
nearest cent) by multiplying such Class A Unit Price immediately prior to such
adjustment by a fraction (x) the numerator of which shall be the number of OP
Units purchasable upon the exercise of the Class A Units immediately prior to
such adjustment, and (y) the denominator of which shall be the number of OP
Units so purchasable immediately thereafter. 
The aggregate Class A Unit Price payable for
the total number of Additional OP Units purchasable under the Class A Units (as
adjusted) shall remain the same.


 


3.4.           
Replacement of Securities upon Reorganization, etc.  In case of any reclassification or
reorganization of the outstanding OP Units (other than a change under Section
3.1 or Section 3.2 hereof), or in the case of any merger or
consolidation of the Company with or into another entity (other than a
consolidation or merger in which the Company is the continuing partnership and
that does not result in any reclassification or reorganization of the
outstanding OP Units), or in the case of any sale or conveyance to another
entity of the assets or other property of the Company as an entirety or
substantially as an entirety in connection with which the Company is dissolved,
the holders of the Class A Units shall thereafter have the right to purchase
and receive, upon the basis and upon the terms and conditions specified in the Class
A Units and in lieu of the OP Units immediately theretofore purchasable and
receivable upon the exercise of the rights represented thereby, the kind and
amount of partnership units or other securities or property (including cash)
receivable upon such reclassification, reorganization, merger or consolidation,
or upon a dissolution following any such sale or transfer, that the holder of
the Class A Units would have received if such holder had exercised his, her or
its Class A Unit(s) immediately prior to such event. 


 


3.5.           
Notices of Changes in Class A Unit.  Upon every adjustment of the Class A Unit
Price or the number of units issuable upon exercise of a Class A Unit, the
Company shall give written notice thereof to the each holder of a Class A Unit
pursuant to Section 9.2 of this Agreement, which notice shall state the Class
A Unit Price resulting from such adjustment and the increase or decrease, if
any, in the number of units purchasable at such price upon the exercise of a Class
A Unit, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. 
Upon the occurrence of any event specified in Section 3.1, 3.2,
3.3 or 3.4, the Company shall give written notice of the
occurrence of such event to each holder of a Class A Unit, at the last address
set forth for such holder in the Partnership Register, of the record date or
the effective date of the event.  Failure
to give any such notice, or any defect therein, shall not affect the legality
or validity of such event.


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3.6.           
No Fractional Units.  Notwithstanding any provision contained in
this Agreement to the contrary, the Company shall not issue fractional units upon
the exercise of Class A Units.  If, by
reason of any adjustment made pursuant to this Section 3, the holder of
any Class A Unit would be entitled, upon the exercise of such Class A Unit, to
receive a fractional interest in a unit, the Company shall, upon such exercise,
pay cash equal to the product of such fraction
multiplied by the fair market value of one Additional OP Unit.


 


3.7.           
Form of Class A Unit.  The form of Class A Unit need not be changed
because of any adjustment pursuant to this Section 3, and Class A Units
issued after such adjustment may state the same Class A Unit Price and the same
number of units as is stated in the Class A Units initially issued pursuant to
this Agreement; provided, however, that the Company may at any
time in its sole discretion make any change in the form of Class A Unit that
the Company may deem appropriate and that does not affect the substance
thereof, and any Class A Unit thereafter issued or countersigned, whether in
exchange or substitution for an outstanding Class A Unit or otherwise, may be
in the form as so changed.


 


3.8.           
Other Events. 
In case any event shall occur affecting the Company as to which none of
the provisions of preceding subsections of this Section 3 are strictly
applicable, but which would require an adjustment to the terms of the Class A
Units in order to (i) avoid an adverse impact on the Class A Units and (ii)
effectuate the intent and purpose of this Section 3, then, in each such
case, the Company shall appoint a firm of independent public accountants, investment
banking or other appraisal firm of recognized national standing, reasonably
acceptable to the Registered Holder, which shall give its opinion as to whether
or not any adjustment to the rights represented by the Class A Units is
necessary to effectuate the intent and purpose of this Section 3 and, if
they determine that an adjustment is necessary, the terms of such
adjustment.  The Company shall adjust the
terms of the Class A Units in a manner that is consistent with any adjustment
recommended in such opinion.


 


4.                 
Transfer and Exchange of Class A Units.


 


4.1.           
Restrictions on Transfer.  Except as permitted pursuant to this Section
4.1, the Class A Units may not be sold, assigned, disposed of, pledged,
hypothecated, encumbered or otherwise transferred (collectively, a “Transfer”)
by the Registered Holder without the prior written consent of the Company which
consent may be withheld in its sole and absolute discretion.  Notwithstanding the foregoing, the
restriction on Transfer shall not apply to a Transfer by a Registered Holder to
a Permitted Transferee.  Notwithstanding
the preceding sentence, following any Transfer any such Class A Units subject
to a Transfer permitted pursuant to this Section 4.1 shall at all times
remain subject to the terms and restrictions set forth in this Agreement.  Any
Transfer of the Class A Units and Additional OP Units must be in compliance
with the Securities Act of 1933, as amended (the “Act”), and applicable
state securities Laws and, if requested by the Company, receipt by the Company
of an opinion of counsel, reasonably satisfactory to the Company, that such
Transfer is in compliance with the Act and applicable state securities Laws.
Additionally, the Registered Holder shall not be entitled to transfer its Class
A Units if doing so would constitute a “measurement event” under Regulations
Sections 1.761-3(c)(1)(iii)(A) and 1.761-3(c)(2)(i).  


5








4.2.           
Registration on Transfer.  Subject to the instructions set forth in Section 4.1,
the Company shall register the transfer, from time to time, of any outstanding Class
A Unit upon the Partnership Register, upon surrender of such Class A Unit by
the Registered Holder to the Company for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer.  Upon any such transfer, a new Class
A Unit shall be issued and the old Class A Unit shall be cancelled by the
Company.


 


4.3.           
Procedure for Surrender of Class A Units.  Class A Units may be surrendered to the
Company, together with a written request for exchange or transfer, and
thereupon the Company shall issue in exchange therefor one or more new Class A
Units as requested by the Registered Holder of the Class A Units so
surrendered, representing an equal aggregate number of Class A Units; provided,
however, that in the event that a Class A Unit surrendered for transfer
bears a restrictive legend, the Company shall not cancel such Class A Unit and
issue new Class A Units in exchange thereof until the Company has received an
opinion of counsel stating that such transfer may be made and indicating
whether the new Class A Units must also bear a restrictive legend.


 


4.4.           
Fractional Class A Units.  The Company shall not be required to effect
any registration of transfer or exchange of a Class A Unit which shall result
in the issuance of a Class A Unit Certificate for a fraction of a Class A Unit.


 


4.5.           
Service Charges. 
No service charge shall be made for any exchange or registration of Transfer
of Class A Units.


 


5.                 
Other Provisions Relating to Rights of Holders of Class
A Units.


 


5.1.           
No Rights as Limited Partner.  A Class A Unit does not entitle the
Registered Holder thereof to any of the rights of a limited partner of the
Company, including, without limitation, the right to receive dividends, or
other distributions, exercise any preemptive rights, to vote or to consent or
to receive notice as limited partners in respect of the meetings of limited
partners or any other matter.


 


5.2.           
Lost, Stolen, Mutilated, or Destroyed Class A Units.  If any Class A Unit is lost, stolen,
mutilated, or destroyed, the Company shall, on such terms as to indemnity or
otherwise as the Company may in its discretion reasonably impose (which shall,
in the case of a mutilated Class A Unit, include the surrender thereof), issue
a new Class A Unit of like denomination, tenor, and date as the Class A Unit so
lost, stolen, mutilated, or destroyed.  Any
such new Class A Unit shall constitute a substitute contractual obligation of
the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed
Class A Unit shall be at any time enforceable by anyone.


 


5.3.           
Registration of Common Shares. Any shares of Common
Stock issuable to Purchaser upon the redemption of Additional OP Units issued
to the Purchaser upon exercise of the Class A Units shall constitute
“Registrable Securities,” as such term is defined in that certain Amended and
Restated Registration Rights Agreement, dated as of the date hereof, by and
among the Company, the Purchaser and such other parties signatory thereto, and
entitled to the registration rights provided therein. 


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6.                 
Covenants. 



 


6.1.           
The Company covenants and agrees for the benefit of the
Registered Holder that:


 


6.1.1.      Due
Authorization and Valid Issuance.  All
OP Units which may be issued upon the exercise of the Class A Units will, upon
issue be duly authorized, validly issued, fully paid and non-assessable, issued
without violation of any preemptive or similar rights of any limited partner of
the Company and free and clear of all liens and encumbrances, with no personal
liability attaching to the ownership thereof.


 


6.1.2.      Compliance
with Law.  The Company shall take all
such actions as may be necessary to ensure that all such Additional OP Units
are issued without violation by the Company of any applicable Law or
governmental regulation or any requirements of any domestic securities exchange
upon which OP Units or other securities constituting Additional OP Units may be
listed at the time of such exercise (except for the official notice of issuance
which shall be immediately delivered by the Company upon each such issuance).


 


6.1.3.      Sufficient
Number of Units.  During the Exercise
Period, the Company will at all times have authorized and reserved for the
purpose of issue upon exercise of the rights evidenced by the Class A Units, a
sufficient number of shares of OP Units to provide for the exercise of the Class
A Units.


 


6.1.4.      Listing
on National Exchange. The Company shall use its best efforts to cause all
shares of Common Stock issued to Purchaser upon redemption of any Additional OP
Units issued to Purchaser upon exercise of the Class A Units, immediately upon
such issuance, to be listed on any domestic national securities exchange upon
which shares of Common Stock or other successor securities are listed at the
time of such redemption.


 


6.2.           
The Registered Holder covenants and agrees for the
benefit of the Company that it shall comply in all respects with Article 20 of
the Partnership Agreement in respect of the Class A Units.


 


7.                 
Representations and Warranties.


 


7.1.           
Representation by the Company.  The Company represents that (a) the Class A
Units are, and any Class A Units issued in substitution for or replacement of
the Class A Units shall be, upon issuance, duly authorized and validly issued
and (b) all partnership actions on the part of the Company necessary for the
issuance of the Class A Units and the OP Units issuable upon exercise of the Class
A Units have been taken.


 


7.2.           
Representations and Warranties by the Registered
Holder.  The Registered Holder represents
and warrants to the Company as follows:


 


(a)               
The Class A Units and the Additional OP Units issuable
upon exercise thereof are being acquired for its own account, for investment
and not with a view to, or for resale in connection with, any distribution or
public offering thereof within the meaning of the Act.  


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(b)              
The Registered Holder understands that the Class A Units
and the Additional OP Units have not been registered under the Act by reason of
their issuance in a transaction exempt from the registration and prospectus
delivery requirements of the Act pursuant to Section 4(a)(2) thereof, and that
they must be held by the Registered Holder indefinitely, and that the
Registered Holder must therefore bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under the
Act or is exempted from such registration.


 


(c)               
The Registered Holder has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the acquisition of the Class A Units and the Additional OP Units
purchasable pursuant to the terms of the Class A Units and of protecting its
interests in connection therewith.


 


(d)              
The Registered Holder is able to bear the economic risk
of the purchase of the Additional OP Units pursuant to the terms of the Class A
Units.


 


(e)               
The Registered Holder is an “accredited investor” as
such term is defined in Rule 501 of Regulation D promulgated under the Act. 


 


8.                 
Taxes.


 


8.1.           
Withholding. 
The Company and its paying agent shall be entitled to deduct and
withhold taxes on all payments and distributions (or deemed distributions) on
the Class A Units and Additional OP Units to the extent required by applicable
Law.  To the extent that any amounts are
so deducted or withheld, such deducted or withheld amounts shall be treated for
all purposes of a Class A Unit or Additional OP Unit as having been paid to the
Person in respect of which such deduction or withholding was made.  In the event the Company previously remitted
any amounts to a governmental authority on account of such taxes required to be
deducted or withheld in respect of any payment or distribution (or deemed
distribution) with respect to a Class A Unit or Additional OP Unit (or in
respect of any payment or distribution (or deemed distribution) in respect
thereof), the Company shall be entitled (i) to offset any such amounts against
any amounts otherwise payable in respect of such Class A Unit or Additional OP
Unit or (ii) to require the Person in respect of whom such deduction or
withholding was made to reimburse the Company for such amounts (and such Person
shall promptly so reimburse the Company upon demand).  The Company shall take commercially
reasonable steps to minimize or eliminate any withholding or deduction
described in this Section 8.1, including by giving the Person in
respect of whom such deduction or withholding may be made an opportunity to
provide additional information or to apply for an exemption from, or a reduced
rate of, withholding.  Notwithstanding
anything to the contrary in this Section 8.1, the Company shall (i) make
commercially reasonable efforts to notify each holder of Class A Units or Additional
OP Units at least ten (10) Business Days prior to any withholding of its
intention of any such withholding (it being understood that any such notice
shall include a brief written description of the basis for such withholding)
and (ii) not withhold with respect to any U.S. federal withholding tax if it
receives a properly completed and duly executed IRS Form W-9 certifying its
exemption from withholding from a holder of Class A Units or Additional OP Units.


8








8.2.           
Transfer Tax. 
The Company shall pay any and all documentary, stamp and similar issue
or transfer tax (“Transfer Tax”) due on the issue of Additional OP Units
or certificates representing such units or securities.  However, the Company shall not be required to
pay any Transfer Tax that may be payable in respect of the issue or delivery
(or any transfer involved in the issue or delivery) of Additional OP Units to a
beneficial owner other than the beneficial owner of the Additional OP Units
immediately prior to the event pursuant to which such issue or delivery is
required, and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the Company the amount of
any such Transfer Tax or has established to the satisfaction of the Company
that such Transfer Tax has been paid or is not payable.


 


8.3.           
Valuation. 
Consistent with sections 18.11, 20.4 and 20.7 of the Limited Partnership
Agreement and Treasury Regulations section 1.704-1(b)(5)(Example 31) (the fair
market value of the noncompensatory option in such example is equal to its
liquidation entitlement), such operative provisions and legal authority
collectively to the effect that equity and equity-like interests in the
Company, at the time of receipt, can be properly valued for federal income tax
purposes according to their respective entitlements to liquidation proceeds
from the Company at such time, as well as consistent with contemporaneous
arms-length transactions consummated at or about the date hereof, the parties
intend that the Class A Units have a value of zero for federal income tax
purposes and that the entire Aggregate Purchase Price (as defined in the
Purchase Agreement) be allocated to the Common Units that are the subject of
the subscription.


 


9.                 
Miscellaneous Provisions.


 


9.1.           
Successors. 
All the covenants and provisions of this Agreement by or for the benefit
of the Company shall bind and inure to the benefit of its respective successors
and assigns.


 


9.2.           
Notices.  Any
notice, statement or demand authorized by this Agreement to be given or made by
the holder of any Class A Unit to or on the Company shall be in writing and
shall be given or made (and shall be deemed to have been duly given or made
upon receipt) by delivery in person, by overnight courier service, by email
with receipt confirmed, or by registered or certified mail (postage prepaid,
return receipt requested) at the following addresses (or at such other address
as shall be specified in a notice given in accordance with this Section 9.2):


 


MVP
REIT II Operating Partnership, L.P.


250 E. 5th Street, Suite 2110 


Cincinnati,
Ohio 


45202 


Attention: Manuel Chavez, III


Email:  [ 
]        


 


With a copy to (which copy alone shall not
constitute notice):


9








Sullivan
& Worcester LLP 


1633
Broadway, 32nd Floor 


New
York, NY 10019 


Attn:
Natalie S. Lederman 


Email:
[  ]


 


Any notice, statement or demand authorized by this Agreement to be given or made by the Company to the holder of any Class A Unit shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email with receipt confirmed, or by registered or certified mail (postage prepaid, return receipt requested) at the following addresses (or at such other address as shall be specified in a notice given in accordance with this Section 9.2):


 


HSCP Strategic III, L.P. 


[  ] 


Email: [ 
]


 


With a copy to (which copy alone shall not
constitute notice): 


 


Taft Stettinius &
Hollister LLP 


425 Walnut Street, Suite 1800 


Cincinnati, OH 45202 


Attn: Art McMahon, III and
David Zimmerman 


Email: [  ]


 


9.3.           
Amendments. 
All modifications or amendments to this Agreement, including any
amendment to increase the Class A Unit Price or shorten the Exercise Period,
shall require the vote or written consent of the Registered Holders of a majority
of the then outstanding Class A Units.  Notwithstanding
the foregoing, the Company may lower the Class A Unit Price pursuant to Section
3 of this Agreement or extend the duration of the Exercise Period without
the consent of the Registered Holders.


 


9.4.           
Counterparts. 
This Agreement may be executed in one or more counterparts (including by
facsimile or electronic mail), each of which shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties hereto and delivered to the other parties hereto.


 


9.5.           
Entire Agreement; No Third-Party Beneficiaries.  This Agreement, together with the other
Transaction Agreements (as defined in the Purchase Agreement), constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties and their Affiliates, or any of them,
with respect to the subject matter hereof. 
No provision of this Agreement shall confer upon any Person other than
the parties hereto, the Registered Holders of the Class A Units and their
permitted assigns any rights or remedies hereunder.  This Agreement may only be enforced against,
and any claims or causes of action that may be based upon, arise out of or
relate to this Agreement, or the negotiation, execution or performance of this
Agreement may only be made against the entities that are expressly identified
as parties hereto and the Registered Holders of the Class A Units.


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9.6.           
Governing Law; Jurisdiction.


 


9.6.1.      This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Maryland applicable to contracts executed in and to be performed
entirely within that State, regardless of the laws that might otherwise govern
under any applicable conflict of Laws principles.


 


9.6.2.      All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined exclusively in any Maryland state or federal court.  The parties hereto hereby (a) submit to the
exclusive jurisdiction of any Maryland state or federal court, for the purpose
of any action or proceeding arising out of or relating to this Agreement
brought by any party hereto, and (b) irrevocably waive, and agree not to assert
by way of motion, defense, or otherwise, in any such action or proceeding, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution,
that the action or proceeding is brought in an inconvenient forum, that the
venue of the action or proceeding is improper, or that this Agreement or the
transactions contemplated hereby may not be enforced in or by any of the
above-named courts.


 


9.7.           
Specific Enforcement.  The parties hereto agree that irreparable
damage for which monetary relief, even if available, would not be an adequate
remedy, would occur in the event that the parties hereto do not perform the
provisions of this Agreement in accordance with its specified terms or
otherwise breach such provisions.  Accordingly
the parties acknowledge and agree that the parties shall be entitled to an
injunction or injunctions, specific performance or other equitable relief to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in the courts without proof of damages or otherwise, this
being in addition to any other remedy to which they are entitled under this
Agreement and this right of specific enforcement is an integral part of the transactions
contemplated hereby and without that right, the parties would not have entered
into this Agreement.  The parties agree
not to assert that a remedy of specific enforcement is unenforceable, invalid,
contrary to Law or inequitable for any reason, and agree not to assert that a
remedy of monetary damages would provide an adequate remedy or that the parties
otherwise have an adequate remedy at law. 
The parties acknowledge and agree that any party shall not be required
to provide any bond or other security in connection with its pursuit of an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof.


 


9.8.           
Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE CLASS A UNITS
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER
VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9.8.


11








9.9.           
Severability. 
If any term, condition or other provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced by any rule of Law or public policy, all other
terms, provisions and conditions of this Agreement shall nevertheless remain in
full force and effect.  Upon such
determination that any term, condition or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable
Law.


 


9.10.       
Interpretation. 
When a reference is made in this Agreement to a Section, Exhibit, such
reference shall be to a Section of, or an Exhibit to this Agreement unless
otherwise indicated.  The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.” The words “hereof,” “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement
unless the context requires otherwise.  The
words “date hereof” when used in this Agreement shall refer to the date of this
Agreement.  The terms “or,” “any” and
“either” are not exclusive.  The word
“extent” in the phrase “to the extent” shall mean the degree to which a subject
or other thing extends, and such phrase shall not mean simply “if.” The word
“will” shall be construed to have the same meaning and effect as the word
“shall.” All terms defined in this Agreement shall have the defined meanings
when used in any document made or delivered pursuant hereto unless otherwise
defined therein.  The definitions
contained in this Agreement are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as to the feminine and
neuter genders of such term.  Any
agreement, instrument or statute defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.  Unless otherwise specifically indicated, all
references to “dollars” or “$” shall refer to the lawful money of the United
States.  References to a Person are also
to its permitted assigns and successors. 
When calculating the period of time between which, within which or
following which any act is to be done or step taken pursuant to this Agreement,
the date that is the reference date in calculating such period shall be
excluded and, unless otherwise required by Law, if the last day of such period
is not a Business Day, the period in question shall end on the next succeeding
Business Day.


12








10.             
Definitions. 
For purposes of this Agreement and the Class A Units, the following
terms have the following meanings:


 


“Affiliate” has the meaning specified
under the Purchase Agreement.


 


 “Business
Day” has the meaning specified under the Purchase Agreement.


 


“Charter” means the
charter of the General Partner, as may be amended, restated, or amended and
restated from time to time, in the form filed with, and accepted for record by,
the State Department of Assessments and Taxation of Maryland.


 


“Code” means the Internal
Revenue Code of 1986, as amended and in effect from time to time or any
successor statute thereto, as interpreted by the applicable Regulations
thereunder. Any reference herein to a specific section or sections of
the Code shall be deemed to include a reference to any corresponding provision
of future law.


 


“Common
Stock” means the common stock of the General Partner, par value $0.0001 per
share.


 


“Law”
has the meaning specified under the Purchase Agreement. 


 


“Liquidity
Event” means an initial public offering and/or listing on a Trading Market
of the Common Stock.


 


“Permitted
Transferee” means, with respect to
an Registered Holder, (i) any controlled affiliate of such Registered Holder, (ii) any partner of HSCP Strategic
III, L.P., or (iii) any direct or indirect member or limited partner of such
Registered Holder of which the Registered Holder serves as the general partner,
managing member or discretionary manager or advisor.  


 


“Person” has the meaning specified under
the Purchase Agreement.


 


“Regulations”
means the income tax regulations under the Code, whether such regulations are
in proposed, temporary or final form, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).


 


“Trading
Market” means any of the following markets or exchanges on which the Common
Stock may be listed or quoted for trading on the date in question: the Nasdaq
Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange
(or any successors to any of the foregoing). 


 


 [Remainder of
page intentionally left blank]


13








IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.


 



	 	
        COMPANY:

         

        MVP REIT II OPERATING PARTNERSHIP, L.P., 

        a Maryland limited partnership 

         

        By: THE PARKING REIT, INC., a Maryland 

        corporation, its general partner

         

         

        By:  /s/ Manuel Chavez, III                                        

        Name:  Manuel Chavez, III 

        Title:  Chief Executive Officer



 


[Signature Page to Class A Unit Agreement]








 



	 	
        PURCHASER:

         

        HSCP STRATEGIC III, L.P., a Delaware limited 

        partnership

         

         

         

        By:  /s/ Jeffrey Osher                                                 

        Name:  Jeffrey Osher 

        Title:  Authorized Signatory



 


[Signature Page to Class A Unit Agreement] 








EXHIBIT A


 


[Form of Class A Unit Certificate]


 


[FACE]


 


Number


 


Class A Units


 


THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.


 


THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO
RESTRICTIONS SET FORTH IN THE CLASS A UNIT AGREEMENT AND THE PARTNERSHIP
AGREEMENT (AS DEFINED HEREIN), COPIES OF WHICH ARE ON FILE WITH THE GENERAL
PARTNER OF THE ISSUER.


 


THIS CLASS A UNIT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE CLASS A UNIT AGREEMENT DESCRIBED BELOW


 


MVP REIT II OPERATING PARTNERSHIP, L.P.


 


Organized Under the Laws of the State of Maryland


 


Class A Unit Certificate


 


This Class A Unit Certificate certifies that
____________, or registered assigns, is the Registered Holder of ____________ limited
partnership units (the “Class A Units”) to purchase units of limited
partnership of the Company designated as “Class A Common Units” (“OP Units”)
of MVP REIT II Operating Partnership, L.P., a Maryland limited partnership (the
“Company”).  Each Class A Unit
entitles the holder, upon exercise during the period set forth in the Class A
Unit Agreement referred to below, to receive from the Company that number of
fully paid and nonassessable OP Units (each, an “OP Unit”) as set forth
below, at the unit price (the “Class A Unit Price”) as determined
pursuant to the Class A Unit Agreement, upon surrender of this Class A Unit
Certificate at the office of the Company subject to the conditions set forth
herein and in the Class A Unit Agreement. 
Defined terms used in this Class A Unit Certificate but not defined
herein shall have the meanings given to them in the Class A Unit Agreement.


 


Each Class A Unit is initially exercisable for
one fully paid and non-assessable OP Unit. 
The number of OP Units issuable upon exercise of the Class A Units is
subject to certain limitations and adjustment upon the occurrence of certain
events, in each case as set forth in the Class A Unit Agreement.








The initial Class A Unit Price is equal to $11.75
per unit.  The Class A Unit Price is
subject to adjustment upon the occurrence of certain events set forth in the Class
A Unit Agreement.  The Class A Units may
be exercised on a cashless basis pursuant to Section 2.3.2 of the Class A Unit
Agreement, resulting in the net issuance of OP Units.


 


Subject to the conditions set forth in the Class
A Unit Agreement, the Class A Units may be exercised only during the Exercise
Period.


 


Reference is hereby made to the further
provisions of this Class A Unit Certificate set forth on the reverse hereof and
such further provisions shall for all purposes have the same effect as though
fully set forth at this place.


 


This Class A Unit Certificate shall be governed
by, and construed in accordance with, the laws of the State of Maryland applicable
to contracts executed in and to be performed entirely within that State,
regardless of the laws that might otherwise govern under any applicable
conflict of Laws principles.



	
         
	
        MVP REIT II OPERATING PARTNERSHIP, L.P.

         

        By: The Parking REIT, Inc., its general partner

	
         
	
         

	
         
	
        By:
	
         

	
         
	
        Name:
	
         

	
         
	
        Title:
	
         









[Form of Class A Unit Certificate] 


[Reverse]


 


The Class A Units evidenced by this Class A
Unit Certificate are part of a duly authorized issue of Class A Units entitling
the holder on exercise to receive OP Units and are issued or to be issued
pursuant to a Class A Unit Agreement dated as of November 2, 2021 (the “Class
A Unit Agreement”), which Class A Unit Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words “holders”
or “holder” meaning the Registered Holders or Registered Holder) of the Class
A Units.  A copy of the Class A Unit
Agreement may be obtained by the holder hereof upon written request to the
Company.  Defined terms used in this Class
A Unit Certificate but not defined herein shall have the meanings given to them
in the Class A Unit Agreement.


 


Class A Units may be exercised at any time
during the Exercise Period set forth in the Class A Unit Agreement.  The holder of Class A Units evidenced by this
Class A Unit Certificate may exercise them by surrendering this Class A Unit
Certificate, with the form of election to purchase set forth hereon properly
completed and executed at the principal corporate office of the Company.  In the event that upon any exercise of Class
A Units evidenced hereby the number of Class A Units exercised shall be less
than the total number of Class A Units evidenced hereby, there shall be issued
to the holder hereof or his, her or its assignee, a new Class A Unit
Certificate evidencing the number of Class A Units not exercised.


 


The Class A Unit Agreement provides that upon
the occurrence of certain events the number of OP Units issuable upon exercise
of the Class A Units set forth on the face hereof may, subject to certain
conditions, be adjusted.  In lieu of any
fractional unit to which the Registered Holder would otherwise be entitled, the
Company shall make a cash payment equal to the fair market value of one OP Unit
on the payment date multiplied by such fraction.


 


Class A Unit Certificates, when surrendered at
the principal office of the Company by the Registered Holder thereof in person
or by legal representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided in the Class A
Unit Agreement, but without payment of any service charge, for another Class A
Unit Certificate or Class A Unit Certificates of like tenor evidencing in the
aggregate a like number of Class A Units.


 


Upon due presentation for registration of
transfer of this Class A Unit Certificate at the office of the Company a new Class
A Unit Certificate or Class A Unit Certificates of like tenor and evidencing in
the aggregate a like number of Class A Units shall be issued to the
transferee(s) in exchange for this Class A Unit Certificate, subject to the
limitations provided in the Class A Unit Agreement, without charge except for
any tax or other governmental charge imposed in connection therewith.








The Company may deem and treat the Registered
Holder(s) hereof as the absolute owner(s) of this Class A Unit Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and the Company shall not be
affected by any notice to the contrary.  Neither
the Class A Units nor this Class A Unit Certificate entitles any holder hereof
to any rights of a limited partner of the Company.








EXHIBIT B


 


Election to Purchase


 


 (To be signed only
upon exercise of Class A Unit)


 


To:__________________________


  


The
undersigned, the holder of a right to purchase units of limited
partnership of the Company designated as “Common Units”  (“OP Units”), of MVP REIT
II Operating Partnership, L.P., a Maryland limited partnership (the “Company”),
pursuant to the attached Class A Unit of MVP REIT II Operating Partnership,
L.P. (the “Class A Unit”), dated as of November 2, 2021, issued
pursuant to a Class A Unit Agreement dated as of November 2, 2021 (the “Class
A Unit Agreement”), hereby irrevocably elects to
exercise the purchase right represented by such Class A Unit for, and to
purchase thereunder:


 


[  
]                               ___________________________
(_________) OP Units and _______ herewith makes payment of
______________________________ Dollars ($__________) therefor by wire transfer
of immediately available funds to the account designated below by the Company:


 


Amount
of Transfer: $________________ 


Date
of Transfer: ________, 20__ 


Bank:
[•] 


ABA
Number: [•] 


A/C
Number: [•] 


A/C
Name: [•] 


Ref:
[•] 


ATT:
[•]


 


[   ]                               ___________________________
(_________) OP Units by cashless exercise pursuant to Section 2.3.2 of the
Class A Unit Agreement.


 


The undersigned requests that the certificates or book
entry position representing the OP Units to be acquired pursuant to such
exercise be issued in the name of, and delivered to
__________________________________________, whose address is _____________________________________________________________________________. 


 


By its
signature below the undersigned hereby represents and warrants that it is an
“accredited investor” as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act of 1933, as amended, and agrees to be bound by the
terms and conditions of the attached Class A Unit as of the date hereof.


 


DATED:
________________


 



	 	
        [NAME OF REGISTERED HOLDER]

           

                                   By:________________________________



 








 



	 	
        Name:______________________________

         

        Its:_________________________________



 





[Signature page to Notice of Exercise]