Exhibit 10.1
SECOND AMENDED AND RESTATED ADVISORY AGREEMENT
AMONG
MVP REIT II, INC.,
MVP REIT II OPERATING PARTNERSHIP, LP,
AND
MVP REALTY ADVISORS, LLC
TABLE OF CONTENTS
1.
DEFINITIONS
2.
APPOINTMENT
3.
DUTIES OF THE ADVISOR
4.
AUTHORITY OF ADVISOR
5.
BANK ACCOUNTS
6.
RECORDS; ACCESS
7.
LIMITATIONS ON ACTIVITIES
8.
RELATIONSHIP WITH DIRECTORS
9.
FEES
10.
EXPENSES
11.
OTHER SERVICES
12.
REIMBURSEMENT TO THE ADVISOR
13.
RELATIONSHIP OF THE PARTIES
14.
OTHER ACTIVITIES OF THE ADVISOR
15.
TERM OF AGREEMENT
16.
TERMINATION BY THE PARTIES
17.
ASSIGNMENT TO AN AFFILIATE
18.
PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION
19.
INDEMNIFICATION BY THE COMPANY AND THE OPERATING PARTNERSHIP
20.
INDEMNIFICATION BY ADVISOR
21.
EXCLUSION OF CERTAIN TRANSACTIONS
22.
NON-SOLICITATION
23.
THE MVP NAME
24.
NOTICES
25.
MODIFICATION
26.
SEVERABILITY
27.
CONSTRUCTION
28.
ENTIRE AGREEMENT
29.
INDULGENCES, NOT WAIVERS
30.
GENDER
31.
TITLES NOT TO AFFECT INTERPRETATION
32.
EFFECTIVENESS OF AGREEMENT.
33.
EXECUTION IN COUNTERPARTS
SECOND AMENDED AND RESTATED ADVISORY AGREEMENT
THIS SECOND AMENDED AND RESTATED ADVISORY AGREEMENT, dated as of May 26, 2017
(this "Agreement"), is entered into by and among MVP REIT II, Inc., a Maryland
corporation (the "Company"), MVP REIT II Operating Partnership, LP, a Delaware
limited partnership (the "Operating Partnership"), and MVP Realty Advisors, LLC,
a Delaware limited liability company (the "Advisor," and together with the
Company and the Operating Partnership, the "Parties").
This Agreement amends
and restates in its entirety the Amended and Restated Advisory Agreement dated
October 5, 2015 entered into by and among the parties hereto (the "Original
Agreement").
Capitalized terms used herein shall have the meanings ascribed to
them in Section 1 below.
WITNESSETH
WHEREAS, the Company intends to qualify as a REIT, and to invest its funds in
investments permitted by the terms of Sections 856 through 860 of the Code;
WHEREAS, the Company is the general partner of the Operating Partnership and
intends to conduct all of its business and make all investments through the
Operating Partnership;
WHEREAS, the Company and the Advisor (which is a party thereto only for purposes
of Section 4.21, Section 4.22(b), Section 5.21, Section 5.23(b) and Section 6.4
therein) are parties to that certain Agreement and Plan of Merger dated as of
the date hereof (as the same may be amended from time to time, the "Merger
Agreement"), by and among the Company, the Advisor (only for the purposes of the
sections referenced above), MVP Merger Sub, LLC, a Delaware limited liability
company ("Merger Sub"), and MVP REIT, Inc., a Maryland corporation ("REIT I");
WHEREAS, pursuant to the Merger Agreement and subject to the terms and
conditions therein, upon the time that the Merger (defined below) becomes
effective (the "Merger Effective Time"), REIT I will be merged with and into
Merger Sub, with Merger Sub being the surviving entity and a wholly owned
subsidiary of the Company (the "Merger");
WHEREAS, pursuant to the terms of the Merger Agreement, the Parties desire to
amend and restate the Original Agreement pursuant to the terms hereof;