MARKETING SUPPORT AGREEMENT
EXHIBIT 10.7
This MARKETING SUPPORT AGREEMENT (this “Agreement”) is entered into on this the day of
, 200_, by and between UNITED DEVELOPMENT FUNDING IV, a Maryland real estate investment
trust (the “Trust”), and UMTH Funding Services, L.P., a Delaware limited partnership (“UMTH
Funding”).
WITNESSETH
WHEREAS, the Trust will offer its common shares of beneficial interest to the public in an
offering to be registered with the Securities and Exchange Commission and the securities
commissions of certain identified states (the “Offering”);
WHEREAS, the Trust desires to avail itself of the experience, sources of information, advice
and assistance of UMTH Funding and to have UMTH Funding undertake the duties and responsibilities
hereinafter set forth, subject to the supervision of the Chief Executive Officer of the Trust; and
WHEREAS, UMTH Funding is willing to undertake to render such services, subject to the
supervision of the Chief Executive Officer of the Trust, on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
MARKETING SUPPORT SERVICES
1.01 Appointment. The Trust hereby appoints UMTH Funding to provide to the Trust marketing
support services on the terms and conditions set forth in this Agreement, and UMTH Funding hereby
accepts such appointment.
1.02 Duties of UMTH Funding. UMTH Funding undertakes to use its best efforts to provide
the Trust, its wholesalers and selected dealers with such services as may be reasonably requested
by the Trust to support the Trust’s offering of its common shares of beneficial interest. In
performance of this undertaking, subject to the supervision of the Chief Executive Officer of the
Trust and consistent with the provisions of the Trust’s most recent prospectus relating to the
Offering (the “Prospectus”) and Declaration of Trust, as amended (the “Charter”), UMTH Funding
shall, either directly or by engaging a third party approved by the Chief Executive Officer of the
Trust:
| (a) | advise the Trust with respect to marketing its common shares of beneficial interest; | ||
| (b) | oversee the selection of selected dealers and direct proper documentation and recordkeeping relating to such selected dealers; | ||
| (c) | coordinate the due diligence process conducted by the various selected dealers including coordinating the gathering of requested information and preparation of due diligence response packages and correspondence, as well as serving as liaison among the respective due diligence |
| officers, the Trust and other constituencies, such as outside auditors and attorneys, from whom information relating to the Trust is required; and | |||
| (d) | investigate, select, and, on behalf of the Trust, engage such vendors or other persons UMTH Funding deems necessary to the proper performance of its obligations hereunder, including but not limited to creative design and printing firms. |
1.03 Prohibited Activities of UMTH Funding. UMTH Funding hereby represents that it is not
associated with (i) a broker as defined in Section 3(a)(4) of the Securities Exchange Act of 1934,
as amended, or (ii) an investment adviser as defined in Section 202(a)(11) of the Investment
Advisers Act of 1940, and does not engage in the sale of securities. As such, UMTH Funding agrees
that it will not negotiate with or make any recommendations, render any investment advice, provide
any opinion or make representations to any potential investor or any of such potential investor’s
directors, officers, employees, agents or other representatives, regarding a potential investment
in the Trust.
1.04 Other Activities of UMTH Funding. Nothing herein contained shall prevent UMTH Funding
or its affiliates from engaging in other activities, including, without limitation, the rendering
of services to other persons (including affiliates of the Trust); nor shall this Agreement limit or
restrict the right of the general partner of UMTH Funding or any director, officer, employee or
affiliate of UMTH Funding to engage in any other business or to render services of any kind to any
other person.
ARTICLE II
COMPENSATION
2.01 Marketing Support Fee. The Trust shall pay UMTH Funding a monthly Marketing Support
Fee in an amount equal to 0.9% of the gross proceeds received by the Trust in connection with the
Offering during the preceding month, provided however, that no Marketing Support Fee will be paid
with respect to proceeds to the Trust from the sale of common shares of beneficial interest under
the Trust’s distribution reinvestment plan as described in the Prospectus. The Marketing Support
Fee may or may not be taken, in whole or in part as to any given month, in the sole discretion of
UMTH Funding. All or any portion of the Marketing Support Fee not taken as to any given month
shall be deferred without interest and may be taken in such other months as UMTH Funding shall
determine.
2.02 Expenses.
| (a) | In addition to the compensation paid to UMTH Funding pursuant to Section 2.01 hereof, the Trust shall pay directly or reimburse UMTH Funding for all of the expenses paid or incurred by UMTH Funding in connection with the services it provides to the Trust pursuant to this Agreement. | ||
| (b) | Expenses incurred by UMTH Funding on behalf of the Trust and payable pursuant to this Section 2.02 shall be reimbursed no less than quarterly to UMTH Funding within 60 days after the end of each quarter. UMTH Funding shall prepare a statement documenting the expenses of the Trust during each quarter, and shall deliver such statement to the Trust within 45 days after the end of each quarter. |
2.03 Other Services. Should the Trust request that UMTH Funding or any officer or employee
thereof render services for the Trust other than set forth in Section 1.02, such services shall be
separately compensated at such rates and in such amounts as are agreed by UMTH Funding and the
Trust, subject to
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the limitations contained in the Prospectus and the Charter, and shall not be deemed to be services
pursuant to the terms of this Agreement.
ARTICLE III
TERM AND TERMINATION
3.01 Term; Renewal. This Agreement shall continue in force until the termination of the
Offering, unless terminated earlier at the option of either party upon 30 days written notice to
the other party without cause or penalty. This Agreement may be renewed for any period of time
mutually agreed upon by the parties in writing.
3.02 Payments to and Duties of UMTH Funding upon Termination. After the termination of
this Agreement, UMTH Funding shall not be entitled to compensation for further services hereunder
except it shall be entitled to receive from the Trust within 30 days after the effective date of
such termination all earned but unpaid fees payable to UMTH Funding prior to termination of this
Agreement and all reimbursements of expenses incurred prior to the termination of this Agreement.
ARTICLE IV
INDEMNIFICATION
4.01 Indemnification by UMTH Funding. UMTH Funding shall indemnify and hold harmless the
Trust from contract or other liability, claims, damages, taxes or losses and related expenses,
including attorneys’ fees, to the extent that such liability, claims, damages or losses and related
expenses are not fully reimbursed by insurance and are incurred by reason of UMTH Funding’s bad
faith, fraud, misfeasance, misconduct, negligence or reckless disregard of its duties.
ARTICLE V
MISCELLANEOUS
5.01 Assignment to an Affiliate. This Agreement may be assigned by UMTH Funding to an
affiliate of UMTH Funding with the approval of the Chief Executive Officer of the Trust. UMTH
Funding may assign any rights to receive fees or other payments under this Agreement without
obtaining the approval of the Chief Executive Officer of the Trust. This Agreement shall not be
assigned by the Trust without the consent of UMTH Funding, except in the case of an assignment by
the Trust to a corporation or other organization which is a successor to all of the assets, rights
and obligations of the Trust, in which case such successor organization shall be bound hereunder
and by the terms of said assignment in the same manner as the Trust is bound by this Agreement.
This Agreement shall be binding on successors to the Trust and shall likewise be binding upon any
successor to UMTH Funding.
5.02 Relationship of UMTH Funding and Trust. The Trust and UMTH Funding are not partners
or joint venturers with each other, and nothing in this Agreement shall be construed to make them
such partners or joint venturers or impose any liability as such on either of them.
5.03 Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing unless some other method of giving such notice or other communication
is accepted by the
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party to whom it is given, and shall be given by being delivered by hand or by overnight mail or
other overnight delivery service to the addresses set forth herein:
To the Trust:
|
United Development Funding IV The United Development Funding Building Suite 100 0000 Xxxxxxxxx Xxx Xxxxxxxxx, Xxxxx 00000 |
|
To UMTH Funding:
|
UMTH Funding Services, L.P. The United Development Funding Building Suite 100 0000 Xxxxxxxxx Xxx Xxxxxxxxx, Xxxxx 00000 |
Either party shall, as soon as reasonably practicable, give notice to the other party of a change
in its address for the purposes of this Section 5.03.
5.04 Modification. This Agreement shall not be changed, modified, or amended, in whole or
in part, except by an instrument in writing signed by both parties hereto, or their respective
successors or assignees.
5.05 Severability. The provisions of this Agreement are independent of and severable from
each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of
the fact that for any reason any other or others of them may be invalid or unenforceable in whole
or in part.
5.06 Choice of Law; Venue. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Texas, and venue for any action brought
with respect to any claims arising out of this Agreement shall be brought exclusively in Dallas
County, Texas.
5.07 Entire Agreement. This Agreement contains the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof. The express terms
hereof control and supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
5.08 Waiver. Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege, nor shall any
waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by the party asserted to have granted such
waiver.
5.09 Headings. The titles and headings of sections and subsections contained in this
Agreement are for convenience only, and they neither form a part of this Agreement nor are they to
be used in the construction or interpretation hereof.
5.10 Execution in Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same instrument. This Agreement
shall become binding when
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one or more counterparts hereof, individually or taken together, shall bear the signatures of all
of the parties reflected hereon as the signatories.
IN WITNESS WHEREOF, the parties hereto have executed this Marketing Support Agreement as of
the date and year first above written.
| UNITED DEVELOPMENT FUNDING IV |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| UMTH FUNDING SERVICES, L.P. |
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| By: | ||||
| its General Partner | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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