Filed by Avantafile.com - The Parking REIT, Inc. - Exhibit 10.1




SECURITIES PURCHASE AGREEMENT


 


SECURITIES
PURCHASE AGREEMENT (this “Agreement”),
dated as of November 2, 2021, by and among HSCP STRATEGIC III, L.P., a Delaware
limited partnership (the “Buyer”), MVP REIT II OPERATING PARTNERSHIP,
L.P., a Maryland limited partnership (the “Seller”), and THE
PARKING REIT, INC., a Maryland corporation (the “Company”).


 


R
E C I T A L S:


 


WHEREAS, pursuant to this Agreement, the Buyer wishes to
purchase, and the Seller wishes to issue and sell, upon the terms and
conditions set forth herein, $20,000,000 of units of limited partnership of the
Seller designated as “Common Units” (the “OP Units”) in the Seller’s
Amended & Restated Agreement of Limited Partnership, dated as of August 26,
2021, as the same may be further amended in accordance with the terms thereof
(the “Partnership Agreement”), together with units of limited
partnership of the Seller designated as “Class A Units” (the “Class A Units”)
to purchase OP Units in the Partnership Agreement pursuant to the form of Class
A Unit agreement attached hereto as Exhibit A (the “Class A Unit
Agreement”); and


 


WHEREAS, the Seller and the Buyer are executing and
delivering this Agreement in reliance upon the registration exemption afforded
by Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D (“Regulation
D”) as promulgated by the United States Securities and Exchange Commission
(the “Commission”) under the Securities Act.


 


NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller, the Buyer and the Company
hereby agree as follows:


 


1.              
PURCHASE OF OP
UNITS AND CLASS A UNITS.


 


(a)                     
Purchase of OP
Units.  Subject to the terms and conditions set forth
in this Agreement, the Seller hereby issues, sells and delivers to the Buyer,
and the Buyer hereby purchases and acquires from the Seller, 1,702,128 OP Units
(the “Purchased OP Units”) at a purchase price of $11.75 per OP Unit
(the “Purchase Price”), for an aggregate cash Purchase Price of
$20,000,000 (the “Aggregate Purchase Price”).


 


(b)                    
Purchase of
Class A Units.  Subject to the terms and conditions set forth
in this Agreement, the Seller hereby issues, sells and delivers to the Buyer,
and the Buyer hereby purchases and acquires from the Seller, 425,532 Class A
Units (the “Purchased Class A Units” and together with the Purchased OP
Units, the “Purchased Units”) to purchase, in the aggregate, up to 425,532
additional OP Units (the “Additional OP Units”).  Each Purchased Class A Unit
shall give the holder the right to purchase one (1) Additional OP Unit at an
exercise price equal to $11.75 per Additional OP Unit (subject to adjustment as
provided by the terms of such Class A Units and the Class A Unit Agreement).  


 


(c)                     
Payment for
Purchase of OP Units and Class A Units.  Simultaneous with the consummation of the other
transactions set forth under Section 1(e), the Buyer shall pay to the Seller
the Aggregate Purchase Price as full payment for the Purchased Units by wire
transfer of immediately available funds at the Closing to the bank account(s) heretofore
designated in writing by the Seller.








(d)                    
Taxes.  The Buyer shall
pay any and all transfer, stamp or similar taxes that may be payable with
respect to the issuance and delivery of the Purchased Units to the Buyer made
in accordance with this Agreement.  Consistent
with Sections 18.11, 20.4 and 20.7 of the Second A&R Partnership Agreement
(as defined below) 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 Seller,
at the time of receipt, can be properly valued for federal income tax purposes
according to their respective entitlements to liquidation proceeds from the Seller
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 be allocated to the Purchased OP Units.


 


(e)                     
Transactions
to Be Effected at the Closing.  Simultaneously
with the execution on delivery of this Agreement (the “Closing”):


 


(i)                
The Seller shall deliver to the Buyer:


 


A)               
the Purchased Units;


 


B)                
a
Class A Unit Agreement, duly executed by the Seller;


 


C)                
a
waiver from the Aggregate Share Ownership Limit (as such term is defined in the
Charter) pursuant to a Request for Waiver of Ownership Limit for
the Company (the “Waiver”) substantially in the form of Exhibit B
attached hereto, duly executed by the Seller, the Company and the other parties
thereto (other than the Buyer);


 


D)               
a
Second Amended and Restated Limited Partnership Agreement of the Company,
substantially in the form attached hereto as Exhibit C (the
“Second A&R
Partnership Agreement),
and


 


E)                
an
Amended and Restated Registration Rights Agreement,
in substantially the form attached hereto as Exhibit D
(the “Registration Rights Agreement” and together with this Agreement, the Class
A Unit Agreement, the Waiver and the Second A&R Partnership Agreement,
each, a “Transaction Agreement” and collectively, the “Transaction Agreements”), duly executed by the Company and the
other parties thereto (other than the Buyer).


 


F)                 
A
certificate, in the form acceptable to such Buyer, executed by the Secretary of
the Company, dated as of the date hereof, as to (A) the resolutions consistent
with Sections 3(b) and (p) as adopted by the Company’s Board of
Directors (the “Board of Directors”), in a form reasonably acceptable to the
Buyer, and (B) the organizational documents of the Company and the Seller, each
as in effect at the Closing.


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(ii)                 
The Buyer shall deliver or cause to be
delivered:  


 


A)               
the Aggregate Purchase Price by wire transfer of immediately available funds to the bank account(s)
heretofore designated in writing by the Seller;


 


B)                
the
Waiver duly executed by the Buyer;



 


C)                
the
Second A&R Partnership Agreement duly executed by the Buyer, and


 


D)               
the
Registration Rights Agreement duly
executed by the Buyer.


 


2.              
BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


The Buyer represents and
warrants to the Company and the Seller that, as of the date hereof:


 


(a)                     
Organization
and Authority.  The Buyer is a limited partnership duly
organized, validly existing and in good standing with the State of Delaware
with the requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement and such other
Transaction Agreements (collectively, the “Transactions”) and otherwise to carry out its obligations
hereunder and thereunder.  The execution
and delivery of this Agreement by the Buyer and performance by the Buyer of the
Transactions have been duly authorized by all necessary action on the part of
the Buyer.  This Agreement has been duly
executed by the Buyer, and when delivered by the Buyer in accordance with the
terms hereof, will constitute the valid and legally binding obligation of the
Buyer, enforceable against it in accordance with its terms, except (1) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting
generally the enforcement of, creditors’ rights and remedies or by other
equitable principles of general application, (2) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (3) insofar as indemnification and contribution provisions may be
limited by applicable law (collectively, the “Enforceability Exceptions”).


 


(b)                    
No Conflicts.  The
execution, delivery and performance by the Buyer of this Agreement and the consummation
by the Buyer of the Transactions do not and will not (1) conflict with or
violate any provisions of the organizational documents of the Buyer, as
amended, or otherwise result in a violation of the organizational documents of
the Buyer, (2) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would result in a default) under, result in the
creation of any Lien upon any of the properties or assets of the Buyer or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any material contract or
agreement of the Buyer, or (3) conflict with or result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Buyer is subject (including
federal and state securities laws), or by which any property or asset of the
Buyer is bound or affected, except in the case of clauses (2) and (3) such as
would not, individually or in the aggregate, have, or would reasonably be
expected to result in, a Buyer Material Adverse Effect.


 


(c)                     
Investment
Intent.  The Buyer understands that the Purchased
Units and the Additional OP Units are “restricted securities” and have not been,
and will not be, registered for issuance and sale under the Securities Act or
any applicable state securities law (except as otherwise set forth under the
Registration Rights Agreement and the Class A Unit Agreement), and the Buyer is
acquiring the OP Units, the Class A Units and any Additional OP Units issued
upon exercise of the Class A Units as principal for its own account and not
with a view to, or for distributing (as such term is used under the Securities
Act) or reselling such OP Units, Class A Units or Additional OP Units or any
part thereof in violation of the Securities Act or any applicable state
securities laws; provided, however, that by making the representations herein,
the Buyer does not agree to hold any of the OP Units, the Class A Units or any Additional
OP Units for any minimum period of time. The Buyer does not presently have any
agreement, plan or understanding, directly or indirectly, with any Person to
distribute or effect any distribution (as such term is used under the
Securities Act) of any of the Purchased Units (or any securities which are
derivatives thereof) to or through any person or entity. The Buyer is not a
registered broker-dealer under Section 15 of the Exchange Act or an entity
engaged in a business that would require it to be so registered as a
broker-dealer.


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(d)                    
Buyer Status.  The Buyer is
an “accredited investor” as defined in Rule 501(a) under the Securities Act.


 


(e)                     
General
Solicitation.  The Buyer acknowledges that the Purchased
Units were not offered to the Buyer as a result of any advertisement, article,
notice or other communication regarding the Purchased Units published in any
newspaper, magazine or similar media or broadcast over television or radio or
presented at any seminar or any other general advertisement.


 


(f)                     
Experience.  The Buyer has
such knowledge, sophistication and experience in business and financial matters
so as to be capable of evaluating the merits and risks of the prospective
investment in the OP Units, the Class A Units and the Additional OP Units, and
has so evaluated the merits and risks of such investment.  The Buyer is able to bear the economic risk
of an investment in the Purchased Units and the Additional OP Units and, at the
present time, is able to afford a complete loss of such investment.  The Buyer acknowledges that an investment in
the Purchased Units and the Additional OP Units is speculative and involves a
high degree of risk.


 


(g)                    
Access to
Information.  The Buyer acknowledges that it has had the
opportunity to review the SEC Reports and has been afforded (1) the opportunity
to ask such questions as it has deemed necessary of, and to receive answers
from, representatives of the Seller and the Company concerning the terms and
conditions of the Transactions and the merits and risks of investing in the Purchased
Units and the Additional OP Units, (2) access to information about the Seller
and the Company and each of their respective financial condition, results of
operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment and (3) the opportunity to obtain such additional
information that the Seller and the Company possess or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment. 
Neither such inquiries nor any other investigation conducted by or on
behalf of the Buyer or its representatives shall modify, amend or affect the
Buyer’s right to rely on the truth, accuracy and completeness of the SEC
Reports and the Seller’s and the Company’s representations and warranties contained
in this Agreement.


 


(h)                    
Brokers and
Finders.  No Person will have, as a result of this
Agreement or the Transactions, any valid right, interest or claim against or
upon the Company, the Seller or the Buyer for any commissions, fees or expenses
or other compensation based upon arrangements made by or on behalf of the Buyer.


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(i)                      
Independent
Investment Decision.  The Buyer has independently evaluated the
merits of its decision to purchase the Purchased Units and the Additional OP
Units pursuant to this Agreement and the Class A Unit Agreement.  The Buyer understands that nothing in this
Agreement or any other materials presented by or on behalf of the Seller or the
Company to the Buyer in connection with the purchase of the Purchased Units and
the Additional OP Units constitutes legal, tax or investment advice.  The Buyer has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Purchased Units and the
Additional OP Units.


 


(j)                      
Reliance on
Exemptions.  The Buyer understands that the Purchased
Units and the Additional OP Units are being offered and sold to it in reliance
on specific exemptions from the registration requirements of federal and state
securities laws and that the Seller is relying upon the truth and accuracy of,
and the Buyer’s compliance with, the representations, warranties, agreements,
acknowledgements and understandings of the Buyer set forth herein in order to
determine the availability of such exemptions and the eligibility of the Buyer
to acquire the Purchased Units and the Additional OP Units.


 


(k)                    
No Governmental
Review.  The Buyer understands that no federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the OP Units, the Class A Units or
the Additional OP Units or the fairness or suitability of the investment in the
Purchased Units or the Additional OP Units nor have such authorities passed
upon or endorsed the merits of the Transactions.


 


(l)                      
No Other
Representations. Except for the
representations and warranties set forth in this Section 2, the Buyer makes no
other express or implied representation or warranty with respect to itself or any
other information provided to the Company or the Seller in connection with this
Agreement or the other Transaction Agreements.


 


3.              
REPRESENTATIONS
AND WARRANTIES OF THE SELLER AND THE COMPANY.


 


Except as set forth in
the SEC Reports, the Seller and the Company, jointly and severally, hereby
represent and warrant as of the date hereof, to the Buyer:


 


(a)                     
Organization
and Qualification.  Each of the Company, the Seller and each of
their Subsidiaries is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, with the
requisite power and authority to own or lease and use its properties and assets
and to carry on its business as currently conducted.  None of the Seller, the Company nor any of
their Subsidiaries is in violation or default in any material respect of any of
the provisions of its respective organizational or charter documents.  The Seller, the Company and each of their
Subsidiaries is duly qualified to conduct business and is in good standing as a
foreign entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be,
would not have a Company Material Adverse Effect.


 


(b)                    
Authorization;
Enforcement; Validity.  The Company has the requisite corporate power
and authority to enter into this Agreement and the other Transaction Agreements
and to consummate the Transactions and otherwise to carry out its obligations
hereunder and thereunder.  The Seller has
the requisite partnership power and authority to enter into and to consummate
the Transactions and otherwise to carry out its obligations.  Each of the Company’s and the Seller’s
execution and delivery of this Agreement and the other Transaction Agreements,
and the consummation by each of them of the Transactions (including, but not
limited to, the sale and delivery of the Purchased Units and the Additional OP
Units in accordance with the terms hereof and the Class A Unit Agreement) have
been duly authorized by all necessary action and no further action is required
by the Seller, the Company, the Board of Directors, its Disinterested Directors
or its shareholders in connection herewith other than in connection with the
Required Approvals.  This Agreement has
been duly executed by each of the Company and the Seller and, when delivered in
accordance with the terms hereof, will constitute the legal, valid and binding
obligation of the Company and the Seller, as applicable, enforceable against
the Company and the Seller, as applicable, in accordance with its terms, except
for the Enforceability Exceptions.


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(c)                     
No Conflicts.  The
execution, delivery and performance by each of the Company and the Seller of
this Agreement and the consummation by the Company and the Seller of the
Transactions (including, without limitation, the issuance of the Purchased
Units and the Additional OP Units) do not and will not (1) conflict with or
violate any provisions of the Partnership Agreement, the Second A&R
Partnership Agreement, the Articles of Amendment and Restatement of the
Company, dated as of September 22, 2015 (the “Charter”) or the Bylaws of
the Company, dated as of June 12, 2015, or otherwise result in a violation of
the organizational documents of the Company, the Seller or any of their
Subsidiaries, (2) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would result in a default) under, result in the
creation of any Lien upon any of the properties or assets of the Company, the Seller
or any of their Subsidiaries or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any Material Contract of the Company, the Seller or any of their
Subsidiaries, or (3) subject to the Required Approvals, conflict with or result
in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company, the Seller or any of their Subsidiaries is subject (including federal
and state securities laws, assuming the correctness of the representations and
warranties made by the Buyer herein), or by which any property or asset of the
Company, the Seller or any of their Subsidiaries is bound or affected, except
in the case of clauses (2) and (3) such as would not, individually or in the
aggregate, have, or would reasonably be expected to result in, a Company
Material Adverse Effect.


 


(d)                    
Filings,
Consents and Approvals.  None of the Company, the Seller nor any of
their Subsidiaries is required to obtain any consent, waiver, authorization or
order of, give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority,
self-regulatory organization or other Person in connection with the execution,
delivery and performance by the Company and the Seller of this Agreement, the
other Transaction Agreements and the Transactions (including, without
limitation, the issuance of the Purchased Units and the Additional OP Units),
other than (1) filings required by applicable federal and state securities
laws, including the filing of a Notice of Exempt Offering of Securities on Form
D with the Commission under Regulation D of the Securities Act, (2) those that
have been made or obtained prior to the date of this Agreement (collectively,
the “Required Approvals”), or (3) where the failure to receive such
consent, waiver, authorization, provide notice or make such filing or
registration would not, individually or in the aggregate, have or would
reasonably be expected to result in a Company Material Adverse Effect.


 


(e)                     
Issuance of
the OP Units; Class A Units and Additional OP Units.  The Purchased
Units and the Additional OP Units have been duly authorized and, when issued
and paid for in accordance with the terms of this Agreement and the Class A
Unit Agreement, as applicable, will be duly and validly issued, fully paid,
non-assessable and free and clear of all Liens, other than restrictions on
transfer (1) provided for in the Partnership Agreement or (2) imposed by
applicable securities laws, and shall not be subject to preemptive or similar
rights.  Assuming the accuracy of the
representations and warranties of the Buyer in this Agreement and the timely
filing of the Required Approvals, the Purchased Units and the Additional OP
Units will be issued in compliance with all applicable federal and state
securities laws.


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(f)                     
Capitalization.  


 


(i)                
The authorized capital
stock of the Company is as set forth in the SEC Reports.  The Common Shares, the Series A Preferred
Shares and the Series 1 Preferred Shares conform in all material respects to
the descriptions thereof in the SEC Reports. 
All of the outstanding Common Shares, Series A Preferred Shares and
Series 1 Preferred Shares are duly authorized, validly issued, fully paid and
non-assessable and have been issued in compliance with the Company’s
organizational documents and all applicable federal and state securities laws,
and none of such outstanding Common Shares, Series A Preferred Shares or Series
1 Preferred Shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. 
As of the date of this Agreement, there are 15,479,902 Common Units (as
defined in the Partnership Agreement), 2,862 Series A Preferred Units (as
defined in the Partnership Agreement), and 39,811 Series 1 Preferred Units (as
defined in the Partnership Agreement) outstanding.  The OP Units conform in all material respects
to the descriptions thereof in the SEC Reports. All of the outstanding  partnership units are validly issued and were
issued in compliance with all applicable federal and state securities laws, and
none of such outstanding partnership units were issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
securities.  No Person has any right of
first refusal, preemptive right, right of participation, or any similar right
to participate in the Transactions that has not been effectively waived.  Except as disclosed in the SEC Reports, (i)
there are no outstanding options, rights (preemptive or otherwise) or warrants
to purchase or subscribe for any Common Shares, Common Units or any other
securities of the Company or the Seller and (ii) there are no outstanding
equity or debt securities convertible into or exchangeable or exercisable for
any securities of the Company.  The
issuance and sale of the OP Units and the Class A Units will not obligate the
Company or the Seller to issue Common Shares or OP Units, as applicable, or
other securities to any Person (other than the Buyer) and will not result in a
right of any holder of the Company’s or the Seller’s securities to adjust the exercise,
conversion, exchange or reset price under any of such securities.


 


(ii)              
None of the
Company, the Seller or any of their Subsidiaries is under any obligation,
contingent or otherwise, by reason of any agreement to register the offer and
sale or resale of any of their securities under the Securities Act. Neither the
Company, the Seller nor any Subsidiary has a “poison pill” or similar
shareholder rights plan.


 


(iii)            
There are no (i)
voting trusts, proxies or other similar agreements or understandings to which
the Company, the Seller or any of their Subsidiaries was bound with respect to
the voting of any shares of stock of the Company, the Seller or other equity
interests in any such Subsidiary, (ii) contractual obligations or commitments
of any character to which the Company, the Seller or any of their Subsidiaries
was a party or by which the Company, the Seller or any of their Subsidiaries
was bound restricting the transfer of, or requiring the registration for the
sale of, any shares of stock of the Company, the Seller or other equity
interests in any such Subsidiary, or (iii) stock appreciation rights,
performance shares, performance share units, contingent value rights, “phantom”
stock or similar securities rights that are derivative of, or provide economic
rights based, directly or indirectly, on the value or price of, any shares of
stock or other voting securities or ownership interests in the Company, the
Seller and any of their Subsidiaries.


7








(g)                    
Subsidiaries.  As of the
date hereof, the only Subsidiaries of the Seller and the Company are the
entities listed in the SEC Reports. The Company owns, directly or indirectly,
all of the capital stock or comparable equity interests of each such Subsidiary
free and clear of any and all Liens, and all of the issued and outstanding
shares of capital stock or comparable equity interest of each such Subsidiary,
if any, are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase securities.


 


(h)                    
Financial
Statements.  The financial statements of the Company
included in the SEC Reports comply in all material respects with applicable
accounting requirements of the Exchange Act and the rules and regulations of
the Commission with respect thereto as in effect at the time of filing (or to
the extent corrected or updated by a subsequent amendment or restatement).  Such financial statements (i) have been
prepared in accordance with GAAP, except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, (ii) fairly present
in all material respects the financial position of the Company and its
consolidated subsidiaries taken as a whole as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to normal and recurring audit adjustments and
(iii) were
prepared from, and are in accordance with, the books and records of the Company
and its consolidated subsidiaries.


 


(i)                      
SEC Reports;
Disclosure Materials. The Company has
filed with the Commission all SEC Reports on a timely basis or
has received a valid extension of such time of filing and has filed any such
SEC Reports prior to the expiration of any such extension. As of their
respective filing dates, or to the extent corrected or updated by a subsequent
amendment or restatement, the SEC Reports complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Each Material Contract has been filed (or incorporated by
reference) as an exhibit to the SEC Reports.  


 


(j)                      
Internal
Accounting Controls; Sarbanes-Oxley Act.
The Company maintains a system of internal accounting controls that comply with
the requirements of the Exchange Act and the rules and regulations of the
Commission with respect thereto and are sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management’s
general or specific authorizations, (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (3) access to assets is permitted only in
accordance with management’s general or specific authorization, and (4) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Since the date of the latest audited financial statements included
within the SEC Reports, there have been no changes in the Company’s internal
control over financial reporting (as such term is defined in the Exchange Act)
that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting. Except as disclosed in the
SEC Reports, the Company, the Seller and each of their Subsidiaries are in
material compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and
regulations promulgated by the Commission thereunder.


 


(k)                    
Material
Changes. Since the date of the latest
audited financial statements included within the SEC Reports, except as
disclosed in a subsequent SEC Report filed prior to the date hereof, as
applicable, (1) there have been no events, occurrences or developments that
have or would reasonably be expected to have, either individually or in the
aggregate, a Company Material Adverse Effect, (2) neither the Company nor the
Seller has incurred any material Liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the ordinary course of
business and (B) Liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the
Commission, (3) neither the Company nor the Seller has declared or made any
dividend or distribution of cash or other property to its shareholders or
holders of OP Units, as applicable, or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock or OP Units,
as applicable, and (4) there has not been any entry into, or any material
change or amendment to, or any waiver of any material right by the Seller, the
Company or any of their Subsidiaries under, any Material Contract of the
Company. Neither the Company, the Seller nor any of their
Subsidiaries has taken any steps to seek protection
pursuant to any law or statute relating to bankruptcy, insolvency, reorganization,
receivership, liquidation or winding up, nor does the Company, the Seller or
any of their Subsidiaries have any knowledge
or reason to believe that any of their respective creditors intend to initiate
involuntary bankruptcy proceedings or any actual knowledge of any fact which
would reasonably lead a creditor to do so.


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(l)                      
Litigation. There is no action, suit, arbitration, proceeding,
inquiry or investigation before or by the any court, public board, governmental
entity, self-regulatory organization or body (each, an “Action”) pending or, to the knowledge of the Company or the
Seller, threatened, which (1) adversely affects or challenges the legality,
validity or enforceability of this Agreement, the other Transaction Agreements
or the issuance of the OP Units, the Class A Units or the Additional OP Units
or (2) except as disclosed in the SEC Reports, would, individually or in the
aggregate, have, or would reasonably be expected to result in, a Company
Material Adverse Effect.


 


(m)                  
Private
Placement.  Assuming the accuracy of the Buyer’s
representations and warranties set forth in Section 2 of this Agreement,
no registration under the Securities Act is required for the offer and sale of
the Purchased Units and the Additional OP Units by the Seller to the Buyer under
this Agreement.


 


(n)                    
Investment
Company.  Neither the Company, the Seller nor any of
their Subsidiaries is, and immediately after receipt of payment for the
Purchased Units or the Additional OP Units, will be an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.


 


(o)                    
No General
Solicitation.  Neither the Seller nor, to the Seller’s
knowledge, any Person acting on behalf of the Seller, has offered or sold any
of the OP Units or Class A Units by any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with the offer
or sale of any of the OP Units or Class A Units.


 


(p)                    
Disinterested
Director Approval. The Disinterested
Directors have approved and have taken all action to cause the Company and the
Seller to approve the Company’s and Seller’s entry into this Agreement and the
other Transaction Agreements and the performance by the Company and the Seller
of the Transactions in all respects. 


 


(q)                    
Foreign
Corrupt Practices; Illegal or Unauthorized Payments; Money Laundering. Neither the Company, the Seller or any
of their Subsidiaries
nor, to the knowledge of the Company and the Seller, any director, officer,
partner, employee, agent or any other person acting for or on behalf of the
foregoing (individually and collectively, a “Company Affiliate”) has
violated the U.S. Foreign Corrupt Practices Act or any other applicable
anti-bribery or anti-corruption laws (individually and collectively, “Anti-Corruption
Law”), nor, to the Company’s or the Seller’s knowledge, has any Company Affiliate
offered, paid, promised to pay, or authorized the payment of any money, or
offered, given, promised to give, or authorized the giving of anything of
value, to any officer, employee or any other person acting in an official
capacity for any governmental entity to any political party or official thereof
or to any candidate for political office (individually and collectively, a “Government
Official”) or to any person under circumstances where such Company
Affiliate knew or was aware of a high probability that all or a portion of such
money or thing of value would be offered, given or promised, directly or
indirectly, to any Government Official, for the purpose of: (i)(A) influencing
any act or decision of such Government Official in his/her official capacity,
(B) inducing such Government Official to do or omit to do any act in violation
of his/her lawful duty, (C) securing any improper advantage, or (D) inducing
such Government Official to influence or affect any act or decision of any
governmental entity, or (ii) assisting the Company, the Seller or their Subsidiaries in obtaining or retaining business for or
with, or directing business to, the Company, the Seller or their Subsidiaries. Neither of the Company nor the Seller will
use, directly or indirectly, any part of the proceeds of the offering in any
manner that would constitute a violation of Anti-Corruption Laws. Neither the Company, the Seller nor any of their Subsidiaries
nor, to the best of the Company’s and the Seller’s knowledge, any of the officers,
directors, partners, employees, agents or other representatives of the Company,
the Seller or any of their Subsidiaries or
affiliates, has, directly or indirectly, made or authorized any payment,
contribution or gift of money, property, or services, whether or not in
contravention of applicable law, (i) as a kickback or bribe to any Person or
(ii) to any political organization, or the holder of or any aspirant to any
elective or appointive public office to influence official action or secure an
improper advantage, except for personal political contributions not involving
the direct or indirect use of funds of the Company, the Seller or any of their
Subsidiaries.
The operations of the Company, the Seller and their Subsidiaries are and have been conducted at all times in
material compliance with the USA Patriot Act of 2001 and all other applicable
U.S. and non-U.S. anti-money laundering laws and regulations.


9








(r)                      
Indebtedness
and Other Contracts.
Except as set forth in the SEC Reports, neither the Company, the Seller nor any
of their Subsidiaries
(i) has any material outstanding debt securities, notes, credit agreements,
credit facilities or other agreements, documents or instruments evidencing indebtedness
of the Company, the Seller or any of their Subsidiaries
or by which the Company, the Seller or any of their Subsidiaries is or may become bound, (ii) has any financing
statements securing obligations in any amounts filed in connection with the Company,
the Seller or any of their Subsidiaries; (iii)
is in violation of any term of, or in default under, any contract, agreement or
instrument relating to any indebtedness, except where such violations and
defaults would not result, individually or in the aggregate, in a Company
Material Adverse Effect, or (iv) is a party to any contract, agreement or
instrument relating to any indebtedness, the performance of which, in the
judgment of the Company’s officers, has or is expected to have a Company
Material Adverse Effect. Neither the Company, the Seller nor any of their
Subsidiaries have any liabilities or obligations
required to be disclosed in the SEC Reports which are not so disclosed in the
SEC Reports, other than those incurred in the ordinary course of the Company’s,
the Seller’s or their Subsidiaries’ respective
businesses and which, individually or in the aggregate, do not or could not
have a Company Material Adverse Effect.


 


(s)                     
Title. Each of the Company, the
Seller and their Subsidiaries holds good title
to all real property, leases in real property, facilities or other interests in
real property owned or held by the Company, the Seller or any of their Subsidiaries that are material to the business of the
Company, the Seller or their Subsidiaries (the
“Real Property”). Except as set forth in the SEC Reports, the Real Property is
free and clear of all Liens and is not subject to any rights of way, building
use restrictions, exceptions, variances, reservations, or limitations of any
nature except for (a) Liens for current taxes not yet due, (b) zoning laws and
other land use restrictions that do not impair the present or anticipated use
of the property subject thereto and (c) those that are not likely to result in
a Company Material Adverse Effect. Any Real Property held under lease by the Company,
the Seller or any of their Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere in any material respect with the use made and proposed to be made of
such property and buildings by the Company, the Seller or any of their Subsidiaries.


10








(t)                      
Intellectual
Property Rights. The Company, the Seller and their Subsidiaries own or possess adequate rights or licenses to
use all trademarks, trade names, service marks, service mark registrations,
service names, original works of authorship, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental authorizations, trade
secrets and other intellectual property rights and all applications and
registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective
businesses as now conducted. Neither the Company, the Seller nor any of their Subsidiaries has any
knowledge of any infringement by the Company, the Seller or their Subsidiaries of Intellectual Property Rights of others.
There is no claim, action or proceeding made or brought, or to the knowledge of
the Company and the Seller, threatened, regarding any Intellectual Property
Rights owned by the Company, the Seller or any of their Subsidiaries, except
where such claim, action or proceeding is not reasonably likely to result in a
Company Material Adverse Effect. Neither the Company, the Seller nor any of their
Subsidiaries has received any notice alleging any
such infringement or claim, action or proceeding.


 


(u)                    
Taxes.  The Company and the Seller make the following representations
and warranties with respect to Tax matters:


 


(i)                
Each of the
Company, the Seller and their Subsidiaries (x) has timely filed (or had filed
on its behalf) all material Tax Returns required to be filed by any of them
(after giving effect to any filing extension granted by a governmental entity),
and such Tax Returns are true, correct and complete in all material respects, and
(y) has timely paid (or had timely paid on its behalf) all material Taxes
required to be paid by it, other than Taxes being contested in good faith and
for which adequate reserves have been established in the Company's most recent
financial statements contained in the Disclosure Materials.   


 


(ii)              
The most recent
financial statements contained in the Disclosure Materials reflect an adequate
reserve for all Taxes payable by the Company, the Seller and their Subsidiaries
for all taxable periods and portions thereof through the date of such financial
statements in accordance with GAAP, whether or not shown as being due on any
Tax Returns. 


 


(iii)            
No material
deficiencies for any Taxes have been asserted or assessed in writing against
the Company, the Seller or any of their Subsidiaries and remain outstanding as
of the date of this Agreement, and no requests for waivers of the time to
assess any such Taxes are pending. 


 


(iv)            
There are no
audits, investigations by any governmental entity or other proceedings ongoing
or, to the knowledge of the Company, threatened in writing with regard to any
material Taxes or material Tax Returns of the Company, the Seller or any of
their Subsidiaries, including claims by any governmental entity in a
jurisdiction where the Company, the Seller or any of their Subsidiaries does
not file Tax Returns that the Company, the Seller or such Subsidiary is
required to file Tax Returns in such jurisdiction. 


11








(v)              
Neither the
Company, the Seller nor any of their Subsidiaries has entered into any “closing
agreement” as described in Section 7121 of the Code (or any corresponding or
similar provision of state, local or foreign income Tax law).


 


(vi)            
Neither the
Company, the Seller nor any of their Subsidiaries has requested or received a
ruling from, or requested or entered into a binding agreement with, the IRS or
other governmental entity related to Taxes. 


 


(vii)          
The Company, the
Seller and their Subsidiaries have complied, in all material respects, with all
applicable laws, rules and regulations relating to the payment and withholding
of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445,
1446, 1471 through 1474, and 3402 of the Code or similar provisions under any
state and foreign laws) and have duly and timely withheld and, in each case,
have paid over to the appropriate governmental entity all material amounts
required to be so withheld and paid over on or prior to the due date thereof
under all applicable laws. 


 


(viii)        
There are no
Liens for Taxes upon any property or assets of the Company, the Seller or any
of their Subsidiaries except Liens for Taxes not yet due and payable or that
are being contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP or in the SEC Reports.



 


(ix)            
There is no Tax
allocation or sharing agreement or similar arrangement with respect to which
the Company, the Seller or any of their Subsidiaries is a party (other than
customary arrangements under commercial contracts or borrowings entered into in
the ordinary course of business). 


 


(x)              
Neither the
Company, the Seller nor any of their Subsidiaries (x) has, or has ever had, a
permanent establishment in any country other than the country in which it is
organized and resident, (y) has engaged in a trade or business in any country
other than the country in which it is organized and resident that subjected it
to Tax in such country, or (z) is, or has ever been, subject to Tax in a
jurisdiction outside the country in which it is organized and resident. 


 


(xi)            
The Seller is
classified as a partnership for U.S. federal income Tax purposes.


 


(v)                    
Off Balance
Sheet Arrangements. There is no transaction, arrangement, or other relationship
between the Company, the Seller or any of their Subsidiaries and an
unconsolidated or other off balance sheet entity that is required to be
disclosed by the Company in its Exchange Act filings and is not so disclosed or
that otherwise could be reasonably likely to have a Company Material Adverse
Effect.


 


(w)                  
Insurance. The Company, the Seller
and each of their Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
of the Company believes to be prudent and customary in the businesses in which
the Company, the Seller and their Subsidiaries are engaged. Neither the Company,
the Seller nor any of their Subsidiaries has any reason to believe that it will
be unable to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Company Material
Adverse Effect.


 


(x)                    
Compliance
with Data Privacy Laws. In connection with its collection, storage, transfer
(including without limitation, any transfer across national borders) and/or use
of any personal identifiable information from any individuals, including,
without limitation, any customers, prospective customers, employees, tenants
and/or other third parties (collectively, “Personal Information”), the Company is and has been in
material compliance with all applicable laws, the Company’s own and
then-current privacy policies, and the applicable requirements of any contract
to which the Company is a party, except where the failure so to comply would
not, singly or in the aggregate, result in a Company Material Adverse Effect.
The Company has commercially reasonable physical, technical, organizational and
administrative security measures and policies in place to protect all Personal
Information collected by it or on its behalf from and against unauthorized
access, use and/or disclosure. The Company is in compliance in all material
respects with all federal and state laws relating to data loss, theft and
breach of security notification obligations, except where the failure so to
comply would not, singly or in the aggregate, result in a Company Material
Adverse Effect. To the knowledge of the Company, there has been no loss of, or
unauthorized access, use, or disclosure of any Personal Information.


12








(y)                    
Brokers and
Finders.  No Person will have, as a result of this
Agreement or the Transactions, any valid right, interest or claim against or
upon the Company, the Seller or the Buyer for any commissions, fees or expenses
or other compensation based upon arrangements made by or on behalf of the Company,
the Seller or any of their Subsidiaries.


 


(z)               
Environmental
Laws. 


 


(i)                
Neither the
Company, the Seller nor any of their Subsidiaries is in violation of any Law,
or any judicial or administrative interpretation thereof, including any
judicial or administrative order, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental
Laws”) that could reasonably be expected to have a Company
Material Adverse Effect; 


 


(ii)              
The Company, the Seller
and their Subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements; except where the failure to obtain such permit, authorization or
approval or to be in compliance would not, singly or in the aggregate, result
in a Company Material Adverse Effect; 


 


(iii)            
There are no
pending or, to the knowledge of the Company, threatened Actions, Liens, notices
of noncompliance or violation relating to any Environmental Law against the
Company, the Seller or any of their Subsidiaries that could reasonably be
expected to have a Company Material Adverse Effect; and 


 


(iv)            
To the knowledge
of the Company, there are no events or circumstances that would reasonably be
expected to form the basis of a governmental order for clean-up or remediation,
or an Action by any private party or Governmental Entity, against or affecting
the Company, the Seller or any of the Subsidiaries or any of their real properties
relating to Hazardous Materials or any Environmental Laws. 


 


(aa)                 
No
Other Representations.
Except for the representations and warranties set forth in this Section 3,
none of the Company, the Seller nor any other Person makes any express or
implied representation or warranty with respect to the Company or the Seller
with respect to any other information provided to the Buyer in connection with
this Agreement or the other Transaction
Agreements.


13








4.              
COVENANTS.


 


(a)                     
Filing of Form
8-K. 
The Company agrees that it shall, within the time required under the
Exchange Act, file a Current Report on Form 8-K (or disclose under Item 5 of
Form 10-Q), disclosing all material terms of the Transactions contemplated by
this Agreement and the other Transaction Agreements to the extent required
pursuant to Form 8-K.


 


(b)                    
Form D.  No more than
fifteen (15) days after the date of this Agreement, the Seller shall file a
Form D with the Commission pursuant to Regulation D of the Securities Act with
respect to the Purchased Units to be acquired pursuant to this Agreement.


 


(c)                     
Blue Sky.  The Seller
shall take such action, if any, as is reasonably necessary in order to obtain
an exemption for or to qualify the sale of the Purchased Units to the Buyer
under this Agreement under applicable securities or “blue sky” laws of the
states of the United States in such states as is necessary in connection with
such sales, as required under applicable law of such states.


 


(d)                    
Update to
Register.  Upon consummation of the Transactions, the OP
Units and the Class A Units purchased by Buyer shall be evidenced by an update
to the Register (as that term is defined in the Partnership Agreement) listing
Buyer as a General Partner Affiliate (as that term is defined in the
Partnership Agreement) and as a limited partner holding the OP Units and the
Class A Units purchased by Buyer as contemplated herein and having a Capital Contribution
(as that term is defined in the Partnership Agreement) of the Aggregate
Purchase Price.


 


(e)                     
Use of Proceeds.  Buyer hereby acknowledges that
the Seller intends to contribute the Aggregate Purchase Price to the Company for working capital purposes, including
expenses related to the Transactions and the acquisition of parking lots and
related assets in Miami, Florida and Denver, Colorado.


 


(f)                     
No Transfer or Redemption of OP Units.  Notwithstanding
Section 11.3A of the Partnership Agreement, Buyer acknowledges and agrees that
it shall not be permitted to transfer, and the Company hereby waives its right
to consent to the Buyer’s transfer of,  all
or any portion of the OP Units before the expiration of the Initial Holding
Period (as such term is defined in the Partnership Agreement). Buyer further
acknowledges and agrees that, consistent with Section 15.1A of the Partnership
Agreement, it shall not be permitted to require the Seller to redeem all or any
portion of the OP Units before the expiration of the Initial Holding Period.  Notwithstanding Section 15.1A of the
Partnership Agreement, the Company hereby waives its right to cause the Seller
to, and the Seller hereby waives its right to, redeem the OP Units prior to the
end of the Initial Holding Period.


 


(g)                    
Reservation of
Shares. So
long as any of the Class A Units remain outstanding, the Seller shall take all
action necessary to at all times have authorized and reserved for the purpose
of issuance, the maximum number of Additional OP Units to provide for the full
exercise of the Class A Units.


14








(h)                    
Legends.  No physical certificates shall be issued to evidence any OP Units,
Class A Units or Additional OP Units unless the Seller elects to issue
certificates to all other limited partners. 
Any certificate representing the Purchased Units or Additional OP Units
(and any certificates representing shares of Common Stock of the Company, par
value $0.0001 per share (“Common Shares”) issuable, in certain
circumstances, upon redemption of any of the foregoing (unless registered in
accordance with applicable U.S. securities laws)) deliverable to the Buyer
pursuant to this Agreement shall bear the following legend (in addition to any
legend required under applicable state securities laws):


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE.  SAID SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH APPLICABLE STATE SECURITIES LAWS.”


 


5.              
CERTAIN DEFINED
TERMS.


 


For purposes of this
Agreement, the following terms shall have the following meanings:


 


(a)                     
“Affiliate”
means, with respect to any Person, any other Person that, directly or
indirectly through one or more intermediaries, Controls, is controlled by or is
under common control with such Person.


 


(b)                    
“Business Day”
means any day other than a Saturday, Sunday or other day on which banks in Cincinnati,
Ohio are not required by Law to be open.


 


(c)                     
“Buyer
Material Adverse Effect” means any condition, occurrence, state of facts or
event that prohibits or otherwise materially interferes with or materially
delays the ability of the Buyer to perform any of its material obligations
under this Agreement.


 


(d)                    
“Code”
means the Internal Revenue Code of 1986, as amended, or any successor statute,
and the rules and regulations promulgated thereunder.


 


(e)                 “Company Material Adverse Effect” means
(i) any condition, occurrence, state of facts or event having any effect on the
business, operations (including the results thereof), properties, assets,
liabilities condition (financial or otherwise) or prospects of the Seller, the
Company or any of their Subsidiaries that is material and adverse to the
Seller, the Company and their Subsidiaries, taken as a whole, (ii) any material
and adverse effect on the Transactions or (iii) any condition, occurrence,
state of facts or event that prohibits or otherwise materially interferes with
or materially delays the ability or the authority of the Company or the Seller
to perform any of their respective obligations under this Agreement or the
other Transaction Agreements.


 


(f)                     
 “Control” (including the terms “controlling,”
“controlled by” or “under common control with”) means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.


15








(g)                    
“Disinterested
Directors” means Danica Holley, Damon Jones, Lorrence T. Kellar, and Shawn
Nelson, each in their capacities as members of the Board of Directors of the
Company.


 


(h)                    
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.


 


(i)                      
“GAAP”
means U.S. generally accepted accounting principles, as applied by the Seller.


 


(j)                  “Law”
means any code, directive, law (including common law), ordinance, regulation,
reporting or licensing requirement, rule, or statute, including those
promulgated, interpreted, or enforced by any government or governmental entity
or political subdivision thereof, whether federal, state, local or foreign, or
any agency, instrumentality or authority thereof, or any court or arbitrator
(public or private).


 


(k)                    
“Lien” or
“Liens” means any lien, charge, claim, encumbrance, security interest,
right of first refusal, preemptive right or other restriction of any kind.


 


(l)                      
“Material
Contract” means any contract that has been filed or was required to have
been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item
601(b)(10) of Regulation S-K.


 


(m)                  
 “Person” means an individual or entity
including any limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.


 


(n)                    
 “SEC Reports” means all reports,
schedules, forms, statements and other documents required to be filed by the
Company under the Exchange Act, including pursuant to Sections 13(a) or 15(d)
thereof, including the exhibits thereto and documents incorporated by reference
therein.


 


(o)                    
“Securities
Act” means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.


 


(p)                    
“Subsidiary”
or “Subsidiaries” means of a specified Person an affiliate controlled by
such Person directly or indirectly through one or more intermediaries.


 


(q)                    
“Tax” or “Taxes”
means any federal, state, local or foreign income, gross receipts, license,
payroll, employment-related, excise, goods and services, harmonized sales,
severance, stamp, occupation, premium, windfall profits, environmental, customs
duties, capital stock, franchise, profits, withholding, social security,
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.


 


(r)                      “Tax Returns”
means any return, declaration, report, claim for refund, or information return
or statement related to Taxes, including any schedule or attachment thereto,
and including any amendment thereof.


16








6.              
MISCELLANEOUS.


 


(a)                     
Fees and
Expenses.  The Company and the
Seller, jointly and severally, shall pay for the reasonable and documented legal
fees and expenses incurred by the Buyer in connection with the preparation,
negotiation, execution and delivery of this Agreement and the Transaction Agreement
and the performance of the Transactions (and the enforcement thereof by the
Buyer), including, without limitation, all reasonable and documented legal fees
and disbursements of Taft Stettinius & Hollister LLP.


 


(b)                    
Governing Law;
Jurisdiction.


 


(i)                
THIS AGREEMENT,
AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE
BASED UPON, ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE TRANSACTIONS, OR
THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT, SHALL BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF MARYLAND APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE CONFLICTS OF
LAW PRINCIPLES OF SUCH STATE THAT WOULD CASE THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION.


 


(ii)              
EACH OF THE PARTIES
IRREVOCABLY AGREES THAT ANY LEGAL ACTION WITH RESPECT TO THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS ARISING HEREUNDER, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT OF THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
ARISING HEREUNDER BROUGHT BY THE OTHER PARTY HERETO OR ITS SUCCESSORS OR
ASSIGNS, SHALL BE BROUGHT AND DETERMINED EXCLUSIVELY IN THE CIRCUIT COURT FOR
BALTIMORE CITY, MARYLAND, OR, IF THAT COURT DOES NOT HAVE JURISDICTION, THE
U.S. DISTRICT COURT FOR THE DISTRICT OF MARYLAND, BALTIMORE DIVISION (THE “MARYLAND
COURTS”).  EACH OF THE PARTIES IRREVOCABLY AGREES TO
REQUEST AND/OR CONSENT TO THE ASSIGNMENT OF ANY SUCH PROCEEDING TO THE MARYLAND
COURT’S BUSINESS AND TECHNOLOGY CASE MANAGEMENT PROGRAM.  THE PARTIES FURTHER AGREE THAT NO PARTY
HERETO SHALL BE REQUIRED TO OBTAIN, FURNISH OR POST ANY BOND OR SIMILAR
INSTRUMENT IN CONNECTION WITH OR AS A CONDITION TO OBTAINING ANY REMEDY REFERRED
TO IN THIS SECTION 6(B), AND EACH PARTY WAIVES ANY OBJECTION TO THE
IMPOSITION OF SUCH RELIEF OR ANY RIGHT IT MAY HAVE TO REQUIRE THE OBTAINING,
FURNISHING OR POSTING OF ANY SUCH BOND OR SIMILAR INSTRUMENT.  EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS
WITH REGARD TO ANY SUCH LEGAL ACTION FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, TO THE PERSONAL JURISDICTION OF THE AFORESAID
COURTS AND AGREES THAT IT WILL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS IN ANY COURT OTHER THAN THE AFORESAID COURTS.  EACH OF THE PARTIES HEREBY IRREVOCABLY
WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM
OR OTHERWISE, IN ANY LEGAL ACTION WITH RESPECT TO THIS AGREEMENT, (1) ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE NAMED COURTS
FOR ANY REASON OTHER THAN THE FAILURE TO SERVE IN ACCORDANCE WITH THIS SECTION
6(B), (2) ANY CLAIM THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM
JURISDICTION OF ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH
COURTS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE)
AND (3) TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, ANY CLAIM THAT
(A) THE LEGAL ACTION IN SUCH COURT IS BROUGHT IN AN INCONVENIENT FORUM, (B) THE
VENUE OF SUCH LEGAL ACTION IS IMPROPER OR (C) THIS AGREEMENT, OR THE SUBJECT
MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURTS.


17








(c)                     
Indemnification.


 


(i)                
In consideration
of the Buyer’s execution and delivery of the Transaction Agreements and
acquiring the Purchased Units hereunder and in addition to all of the Company’s
and the Seller’s other obligations under the Transaction Agreements, the
Company and the Seller shall, jointly and severally, defend, protect, indemnify
and hold harmless the Buyer and all of their stockholders, partners, members,
officers, directors, employees and direct or indirect investors and any of the
foregoing Persons’ agents or other representatives  (collectively, the “Seller Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages, and expenses in connection
therewith, and including reasonable and documented attorneys’ fees and
disbursements (the “Seller Indemnified
Liabilities”), incurred by any Seller
Indemnitee as a result of, or arising out of, or relating to (A) any material breach
of any representation or warranty made by the Company or the Seller in any of
the Transaction Agreements as of the date hereof (except for representations
and warranties that expressly relate to a specified date, the inaccuracy or
breach of which will be determined with reference to such specified date), (B)
any material breach of any covenant, agreement or obligation of the Company or
the Seller contained in any of the Transaction Agreements or (C) any cause of
action, suit, proceeding or claim brought or made against such Seller Indemnitee
by a third party (including for these purposes a derivative action brought on
behalf of the Company or any Subsidiary) or which otherwise involves such Seller
Indemnitee that arises out of or results from (1) the execution, delivery,
performance or enforcement of any of the Transaction Agreements (including,
without limitation, any hedging or similar activities in connection therewith),
or (2) the status of the Buyer as an investor in the Company or the Seller
pursuant to the transactions contemplated by the Transaction Agreements or as a
party to this Agreement (including, without limitation, as a party in interest or
otherwise in any action or proceeding for injunctive or other equitable relief); provided, however, that the foregoing indemnity
will not, as to any Seller Indemnitee, be available to the extent that such Seller
Indemnified Liabilities are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted primarily from the bad faith,
gross negligence or willful misconduct of, the inaccuracy of any representation
or warranty made by, or material breach of any Transaction Agreement by, such Seller
Indemnitee. To the extent that the foregoing undertaking by the Company and the
Seller may be unenforceable for any reason, the Company and the Seller, jointly
and severally, shall make the maximum contribution to the payment and
satisfaction of each of the Seller Indemnified Liabilities which is permissible
under applicable law.  


18








(ii)              
In consideration
of the Seller’s and the Company’s execution and delivery of the Transaction
Agreements and sale of the Purchased Units hereunder and in addition to all of
the Buyer’s other obligations under the Transaction Agreements, the Buyer shall
defend, protect, indemnify and hold harmless the Seller, the Company, and all
of their respective stockholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’
agents or other representatives 
(collectively, the “Buyer Indemnitees”) from and against any and all actions, causes of
action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and expenses in connection therewith, and including reasonable and documented attorneys’
fees and disbursements (the “Buyer Indemnified
Liabilities”), incurred by any Buyer Indemnitee
as a result of, or arising out of, or relating to (A) any material breach of
any representation or warranty made by the Buyer in this Agreement as of the
date hereof (except for representations and warranties that expressly relate to
a specified date, the inaccuracy or breach of which will be determined with
reference to such specified date) or (B) any material breach of any covenant,
agreement or obligation of the Buyer contained in this Agreement; provided, however, that the foregoing indemnity
will not, as to any Buyer Indemnitee, be available to the extent that such Buyer
Indemnified Liabilities are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted primarily from the bad faith,
gross negligence or willful misconduct of, the inaccuracy of any representation
or warranty made by, or material breach of any Transaction Agreement by, such Buyer
Indemnitee. To the extent that the foregoing undertaking by the Buyer may be
unenforceable for any reason, the Buyer, shall make the maximum contribution to
the payment and satisfaction of each of the Buyer Indemnified Liabilities which
is permissible under applicable law.  


 


(iii)            
 Reasonably promptly
after receipt by a Seller Indemnitee or a Buyer Indemnitee, as applicable
(each, an “Indemnitee”) under this Section 6(c) of
notice of the commencement of any action or proceeding (including, without
limitation, any governmental action or proceeding) involving a Seller Indemnified
Liability or a Buyer Indemnified Liability, as applicable (each, an
“Indemnified Liability”), such Indemnitee shall, if a claim in respect thereof is to be
made against any indemnifying party under this Section 6(c),
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnitee; provided, however, that an Indemnitee shall
have the right to retain its own counsel with the fees and expenses of such
counsel to be paid by the indemnifying party if: (i) the indemnifying party has
agreed in writing to pay such fees and expenses; (ii) the indemnifying party
shall have failed promptly to assume the defense of such Indemnified Liability
and to employ counsel reasonably satisfactory to such Indemnitee in any such
Indemnified Liability; or (iii) the named parties to any such Indemnified
Liability (including, without limitation, any impleaded parties) include both
such Indemnitee and the indemnifying party, and such Indemnitee shall have been
advised by counsel that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnitee and the indemnifying party (in which
case, if such Indemnitee notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party,
then the indemnifying party shall not have the right to assume the defense
thereof and such counsel shall be at the expense of the indemnifying
party), provided further that
in the case of clause (iii) above the indemnifying party shall
not be responsible for the reasonable fees and expenses of more than one (1)
separate legal counsel for such Indemnitee. The Indemnitee shall reasonably
cooperate with the indemnifying party in connection with any negotiation or
defense of any such action or claim by the indemnifying party and shall furnish
to the indemnifying party all information reasonably available to the
Indemnitee which relates to such Indemnified Liability. The indemnifying party
shall keep the Indemnitee reasonably apprised at all times as to the status of
the defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim or proceeding
effected without its prior written consent; provided, however,
the indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written consent of the
Indemnitee, consent to entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnitee of a release from all liability
in respect to such Indemnified Liability, and such settlement shall not include
any admission as to fault on the part of the Indemnitee. Following
indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnitee with respect to all third parties,
firms or corporations relating to the matter for which indemnification has been
made. The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnitee under this Section
6(c), except to the extent that the indemnifying party is materially and
adversely prejudiced in its ability to defend such action. The indemnification
required by this Section 6(c) shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or Indemnified Liabilities are
incurred. The indemnity and contribution agreements contained herein shall be
in addition to (i) any cause of action or similar right of the Indemnitees against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to applicable law.


19








(d)                    
Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.  Counterparts may be
delivered via facsimile, email (including .pdf) or other transmission method
and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.


 


(e)                     
Headings.  The headings
of this Agreement are for convenience of reference and shall not form part of,
or affect the interpretation of, this Agreement.


 


(f)                     
Severability.  If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction.


 


(g)                    
Entire
Agreement.  This Agreement supersedes all other prior
oral or written agreements between the Company, the Buyer, the Seller, their
respective affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement, the other Transaction Agreements
and the instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, none of the Company, the Seller nor
the Buyer makes any representation, warranty, covenant or undertaking with
respect to such matters.  Each of the
Company and the Seller acknowledges and agrees that it has not relied on, in
any manner whatsoever, any representations or statements, written or oral,
other than as expressly set forth in this Agreement.


 


(h)                    
Notices.  All notices
and other communications given or made pursuant to this Agreement shall be in
writing and shall be deemed effectively given upon the earlier of actual
receipt or:  (i) personal delivery to the
party to be notified, (ii) when sent, if sent by email during normal business
hours of the recipient, and if not sent during normal business hours, then on
the recipient’s next Business Day, (iii) five (5) days after having been sent
by registered or certified mail, return receipt requested, postage prepaid, or
(iv) one (1) Business Day after deposit with a nationally recognized overnight
courier, freight prepaid, specifying next Business Day delivery, with written
verification of receipt.  All
communications shall be sent to the respective parties at the following address
or to such other address or email address as subsequently modified by written
notice given in accordance with this Section 6(h):


20








If to the Company and/or the Seller, to:


 



	 	
        The Parking REIT, Inc. 

        250 E. 5th Street, Suite 2110 

        Cincinnati, Ohio 45202 

        Attn:  Manuel Chavez, III 

        Email:  [  ]

         

	With a copy to:   	
        Sullivan & Worcester LLP

        1633 Broadway, 32nd Floor

        New York, NY 10019

        Attn:  Natalie S. Lederman

        Email:  [  ]

         

	If to the Buyer, to: 	
        HSCP Strategic III, L.P.

        [  ]

        Email: [  ]

                     

	With a copy to: 	
        Taft Stettinius & Hollister LLP 

        425 Walnut Street, Suite 1800 

         Cincinnati, OH 45202 

        Attn: Art McMahon, III and David Zimmerman 

        Email: [  ] 



 


(i)                      
Survival of
Representations, Warranties and Agreements.  Subject to the limitations and
other provisions of this Agreement and the other Transaction Agreements, the representations
and warranties set forth in this Agreement and the other Transaction Agreements
or in any instrument delivered pursuant to this Agreement and the other Transaction
Agreements shall remain in full force and effect until six (6) months after the
Closing Date. All covenants and agreements of the parties contained herein and
in the other Transaction Agreements shall survive the Closing indefinitely or
for the period explicitly specified herein or therein.


 


(j)                      
Successors and
Assigns.  This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns.  Neither the Company nor the
Seller shall assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Buyer, including by merger or
consolidation, which consent shall not be unreasonably withheld or delayed.  The Buyer may not
assign its rights or obligations under this Agreement without the prior written
consent of the Seller and the Company; provided, however, nothing in this
Section 6(j) will restrict the Buyer’s rights to distribute to its limited partners
any of the securities issued or issuable, whether by exercise, redemption or
otherwise, under this Agreement and the other Transaction Agreements in
accordance with the terms hereof and thereof or (ii) transfer in accordance
with applicable law, the other Transaction Agreements and the Stockholders’
Agreement, dated as of August 25, 2021, by and among the Company and the other
parties signatory thereto, any of the securities issued or issuable, whether by
exercise, redemption or otherwise, under this Agreement and the other
Transaction Agreements in accordance with the terms hereof and thereof.


21








(k)                    
No Third Party
Beneficiaries.  This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.


 


(l)                      
Further
Assurances.  Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement, the other Transaction Agreements and
the Closing.


 


(m)                  
Amendments;
Waivers.  Neither this Agreement nor any provision
hereof may be amended, modified or supplemented unless in writing, executed by
all the parties hereto.  Except as
otherwise expressly provided herein, no waiver with respect to this Agreement
shall be enforceable unless in writing and signed by the party against whom
enforcement is sought.  Except as
otherwise expressly provided herein, no failure to exercise, delay in
exercising, or single or partial exercise of any right, power, or remedy by any
party, and no course of dealing between or among any of the parties, shall
constitute a waiver of, or shall preclude any other or further exercise of, any
right, power or remedy.


 


(n)                    
Failure or
Indulgence Not Waiver.  No failure or delay in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege.


 


[Remainder of
Page Intentionally Left Blank]


22








IN WITNESS WHEREOF, the Company, the Seller and the Buyer have caused
this Securities Purchase Agreement to be duly executed as of the date first
written above.


 



	 	
        HSCP STRATEGIC III, L.P.

         

         

        By: /s/ Jeffrey Osher               

        Name: Jeffrey Osher 

        Title: Authorized Signatory

         

         

        MVP REIT II OPERATING PARTNERSHIP, L.P.

         

        By:  The Parking REIT, Inc. 

        its general partner

         

        By: /s/ Manuel Chavez, III            

        Name:  Manuel Chavez, III 

        Title:  Chief Executive Officer

         

        THE PARKING REIT, INC.

         

        By: /s/ Manuel Chavez, III      

        Name:  Manuel Chavez, III 
Title:  Chief Executive Officer 


  


[Signature
Page to Securities Purchase Agreement]








EXHIBIT
A


CLASS
A UNIT AGREEMENT


 


 


 


 








EXHIBIT B


 


Amended
and Restated


 


Request
for Waiver of Ownership Limit


 


for


 


the
Parking REIT, Inc.


 


 


 


 








EXHIBIT C


 


SECOND
Amended and RESTATED


 


LIMITED
PARTNERSHIP AGREEMENT


 


 


 


 








EXHIBIT D


 Amended
and RESTATED REGISTRATION RIGHTS AGREEMENT