ECONOMIC INTEREST PARTICIPATION AGREEMENT AND PURCHASE OPTION
Exhibit
10.6
This Economic Interest Participation
Agreement and Purchase Option (this “Agreement”)
is entered into effective as of the 19th day of
September, 2008 (the “Effective
Date”) by and between UNITED MORTGAGE TRUST, a real
estate trust organized under the laws of the State of Maryland with an address
of 0000 X. Xxxxxxx
Xxxx., Xxxxx 000, Xxxxxxxxxx, XX 00000, as lender, agent and assignor (“Assignor”),
and UNITED DEVELOPMENT FUNDING
III, L.P., a Delaware limited partnership with an address of 0000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, as assignee (“Assignee”).
R
E C I T A L S:
A. United
Development Funding, L.P., a Delaware limited partnership (“Borrower”)
has executed and delivered that certain First Amended and Restated Secured Line
of Credit Promissory Note, dated as of September 30, 2004, executed by Borrower
and payable to the order of Assignor in the original principal amount of
$30,000,000, as amended and restated in its entirety by that certain Second
Amended and Restated Secured Line of Credit Promissory Note dated as of June 20,
2006 in the increased principal amount of $45,000,000, as modified by that
certain First Modification of Second Amended and Restated Secured Line of Credit
Promissory Note dated as of September 1, 2006 (as so amended, and as it may be
further amended, modified, renewed, extended, superseded or replaced from time
to time, the “Note”).
B. The
payment and performance of Borrower’s obligations under the Note is secured by
that certain First Amended and Restated Security Agreement dated as of September
30, 2004, executed by Borrower in favor of Assignor (as it may be amended,
modified, renewed, extended, superseded or replaced from time to
time, the “Security
Agreement”).
C. The
Note, the Security Agreement, and all other instruments, agreements, mortgages,
guarantees, certificates executed or entered into in connection with the Note
are referred to herein collectively as the “Loan
Documents”.
D. Assignee
desires to purchase (i) an economic interest in the payments of principal and
interest made by Borrower under the Note relating to amounts funded by Assignee
towards Assignor’s funding obligations under the Note (the “Economic
Interest”) and (ii) an option to purchase a Participation Interest (as
defined in Section
1 below) in the Note and the other Loan Documents (the “Option”),
and Assignor has agreed to sell, assign, transfer and convey the Economic
Interest and the Option to Assignee.
A
G R E E M E N T:
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor and Assignee agree as follows:
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1. Assignment. In
consideration for the payment of the Purchase Price (as defined in Section 3 below),
Assignor hereby agrees to sell, transfer, assign and convey, and does hereby
sell, transfer, assign and convey to Assignee, and Assignee hereby agrees to
purchase, accept and receive, and does hereby purchase, accept and receive from
Assignor, the Economic Interest and the Option. The Economic Interest
is the right of Assignee to receive payment of principal and accrued interest
thereon under the Note relating to amounts funded by Assignee towards Assignor’s
funding obligations under the Note. The Option is the right of
Assignee to purchase a participation interest in ownership of the Note and the
Loan Documents relating to the Economic Interest purchased by Assignee hereunder
including, without limitation, a participation in all rights incidental to
ownership of the Note and the Loan Documents (a “Participation
Interest”).
2. Economic
Interest. Commencing on the Effective Date, each time that
Borrower requests an advance of principal under the Note (a “Borrower
Advance”), Assignor shall notify Assignee in writing of the principal
amount requested by Borrower and the wire transfer and funding
instructions. Thereafter, Assignee shall fund an amount to Assignor
equal to the amount of the Borrower Advance and upon such funding, Assignee
shall own the Economic Interest related to the Borrower Advance so funded by
Assignee. Assignor shall clearly notate the Economic Interest of
Assignee in its books and records by marking each Borrower Advance funded by
Assignee and notating that the Economic Interest for such Borrower Advance is
owned by Assignee. Each time Assignee funds a Borrower Advance,
Assignee’s Economic Interest shall be increased accordingly.
3. Purchase
Price. The purchase price for the Economic Interest and the
Option shall be (i) Assignee’s funding of each Borrower Advance made
under the Note after the Effective Date and (ii) Assignee’s funding of its
pro-rata share of any costs of collection, including attorney fees
(collectively, the “Purchase
Price”).
4. Payment of Economic
Interest. Assignor shall pay the Economic Interest to Assignee
as follows:
(a) Interest. For
each payment of interest made by Borrower on the Note, Assignor shall pay
Assignee its pro rata share of accrued interest paid on the Note based on
Assignee’s Economic Interest. For example and not necessarily
representative of real transactions hereunder, if $20,000,0000 in principal is
outstanding under the Note, Assignor has funded $16,000,000 of such outstanding
principal amount and Assignee has funded $4,000,0000 of such outstanding
principal amount, and Borrower makes a payment equal to all accrued interest
then due and payable under the Note, then Assignee’s pro rata share of
Borrower’s interest payment shall be 20% ($4,000,000 /
$20,000,000).
(b) Principal. For each
repayment of principal made by Borrower under the Note, Assignor shall pay
Assignee its pro rata share of the principal repaid based on Assignee’s Economic
Interest. For example and not necessarily representative of real
transactions hereunder, if $32,000,0000 in principal is outstanding under the
Note, Assignor has funded $16,000,000 of such outstanding principal amount and
Assignee has funded $16,000,0000 of such outstanding principal amount, and
Borrower makes a principal payment equal to $1,000,000, then Assignee’s pro rata
share of Borrower’s principal payment shall be $500,000.
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(c) Payments. Assignor
shall make all payments of the Economic Interest to Assignee by wire transfer
promptly upon receipt of payments from Borrower under the Note.
5. Abatement. Assignee
may temporarily xxxxx its obligation to purchase the Economic Interest by
funding Borrower Advances under Section 2 by giving
Assignor written notice of the abatement which includes the number of months
during which Assignee’s obligations shall be abated, not to exceed (12)
months.
6. Appointment of Agent.
While Assignee
owns the Economic Interest:
(a) Assignee
hereby appoints Assignor as its agent with respect to the Economic Interest, and
hereby authorizes Assignor on its behalf, and as deemed advisable by Assignor in
its reasonable discretion, to do any and all acts and to make any and all
decisions required, contemplated or advisable in connection with the Note and
the other Loan Documents that may effect the Economic Interest, including,
without limitation, modification or amendment of the Note and the Loan
Documents, and enforcement of the rights and remedies available to Assignor
under the Note and the Loan Documents. Assignor’s powers to act with
respect to the Note and the other Loan Documents shall not be limited or impeded
in any manner by this Agreement despite any impact such exercise or non-exercise
of powers by Assignor may have on the Economic Interest.
(b) Assignor
has complete authority to manage and control the Note and the Loan
Documents. Assignee shall rely solely upon Assignor with respect to
its Economic Interest in the Note and the enforcement of Assignor’s rights under
the Note and the Loan Documents. Assignee shall not have any rights
separate from Assignor to take any action, make any decision, or enforce any
right under the Note and the Loan Documents.
7. Exercise of
Option. Assignee shall give Assignor written notice of its
intent to exercise the Option and acquire a Participation Interest in the Note
and other Loan Documents. Upon exercise of the Option and payment of One Hundred
and NO/100 Dollars (the “Exercise
Price”), the Economic Interest purchased by Assignee hereunder shall be
converted to a Participation Interest. The exercise of the Option and
the conversion of the Economic Interest into a Participation Interest shall be
effective on the date of Assignee’s notice to Assignor. The terms and
conditions of the Participation Interest in the Note and Loan Documents shall be
set forth in a Participation Agreement which shall be executed by Assignor and
Assignee upon exercise of the Option, in substantially the form attached hereto
as Exhibit
“A”. Once Assignee and Assignor have executed the
Participation Agreement, its terms and conditions shall govern and control the
Participation Interest despite any terms and conditions in this Agreement to the
contrary that governed the Economic Interest prior to its conversion into a
Participation Interest.
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8. Term. This
Agreement shall terminate upon the earlier of (i) payment in full of the
Economic Interest, (ii) exercise of the Option by Assignee and conversion of the
Economic Interest into a Participation Interest (in which case, the
Participation Agreement shall govern the Participation Interest), (iii) mutual
written agreement of Assignor and Assignee, or (iv) thirty (30) days prior
written notice given by one party to the other party. Upon any
termination of this Agreement without conversion of the Economic Interest into a
Participation Agreement, Sections 4, 6, 11, 13, 18, 19
and 21 shall
survive such termination. A termination of this Agreement shall not
cause or be implied to have caused a termination of the Participation
Agreement.
9. Assignee’s Representations
and Warranties. Assignee hereby represents and warrants to
Assignor that: (i) Assignee is a limited partnership, organized, validly
existing and in good standing under the laws of the State of Delaware, (ii)
Assignee has all requisite limited partnership power and authority to execute
and deliver, and to perform all of its obligations under, this Agreement and
each other agreement executed and delivered by Assignor in connection herewith,
(iii) this Agreement has been duly authorized, executed and delivered by
Assignee and constitutes the legal, valid and binding obligation of Assignee,
enforceable against Assignee in accordance with its terms; and (iv) Assignee has
obtained all necessary consents, releases and agreements required to enter into
this Agreement and to consummate the transactions contemplated
hereby.
10. Assignor’s Representations
and Warranties. Assignor hereby represents and warrants to
Assignee, and agrees, that: (i) Assignor is a real estate investment trust
organized, validly existing and in good standing under the laws of the State of
Maryland, (ii) Assignor is the sole owner of the Note and the Loan Documents,
(iii) Assignor has all requisite power and authority to execute and deliver, and
to perform all of its obligations under, this Agreement and each other agreement
executed and delivered by Assignor in connection herewith and (iv) this
Agreement has been duly authorized, executed and delivered by Assignor and
constitutes the legal, valid and binding obligation of Assignor, enforceable
against Assignor in accordance with its terms.
11. Subordination
Agreement. This Agreement is subject to that certain Subordination and
Intercreditor Agreement executed by Assignor in favor of Textron Financial
Corporation, as agent for certain lenders to Borrower, dated as of June 14, 2006
(as it may be amended, modified, renewed, extended, superseded or replaced from
time to time, the “Subordination
Agreement”). Nothing herein shall effect or impede the
obligations of Assignor under the Subordination Agreement. Assignee
hereby accepts, assumes and agrees to be bound by, all of the terms and
provisions of the Subordination Agreement; provided however, that such agreement
shall not be deemed to create privity between Assignee and Textron Financial
Corporation.
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12.
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Successors and
Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
representatives, administrators, successors and assigns; provided,
however, that (i) Assignor may assign this Agreement and its rights and
obligations hereunder to any entity acquiring the Note and Loan Documents
with the prior written consent of Assignee, and (ii) Assignee may not
assign or transfer all or any portion of this Agreement and its rights and
obligations hereunder without the prior written consent of
Assignor.
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13. Indemnification. Assignor
shall not be liable or responsible for, Assignee shall protect, indemnify,
defend and hold Assignor harmless from and against, any and all claims and
damages of every kind relating to (i) its performance as agent for Assignee with
respect to the Economic Interest, (ii) the performance or nonperformance of
any act by Assignor under the Note and other Loan Documents,
(iii) Borrower’s failure to pay the Note in full or to comply with any of
its obligations under the Note or any other Loan Document, or any “default” or
“event of default” by Borrower under the Note or any other Loan Document, or any
breach by Borrower of any representation, warranty, covenant or agreement
contained in the Note or any other Loan Document, (iv) Assignor’s enforcement,
or lack of enforcement, of any right it may have arising under the Note and the
other Loan Documents; and (v) Assignee’s loss of its investment in the Economic
Interest, in whole or in part, should such loss occur for any reason; provided,
however, that Assignee shall have no indemnity obligations under this Section 13 to the
extent that any claims or damages arise from the gross negligence or willful
misconduct of Assignor.
14. Entire Agreement;
Amendment. This Agreement together with its exhibits contain
the entire understanding and agreement of Assignor and Assignee regarding the
subject matter hereof and may not in any way be altered, amended or modified
except by an instrument in writing signed by Assignor and Assignee.
15. Governing
Law. This Agreement and the rights of Assignor and Assignee
shall be governed by and construed in accordance with the laws of the State of
Texas, without giving effect to its rules regarding conflict of
laws.
16. Headings. The
headings of the sections in this Agreement are for convenience of reference only
and shall have no application in the interpretation of this
Agreement.
17. Exhibits. The
exhibits hereto are incorporated by reference to the same extent as if fully set
forth herein.
18. Severability. If
any provision of this Agreement or application to any party or circumstance
shall be determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances, other than those as to which
it is so determined invalid or unenforceable, shall not be affected thereby, and
each provision hereof shall be valid and shall be enforced to the fullest extent
permitted by law.
19. Further
Assurances. The parties agree to execute such other and
further documents as may be reasonably necessary or appropriate to consummate
the transactions contemplated by this Agreement.
20. Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original.
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21. Costs of
Collection. Assignee shall fund its pro-rata share of any
costs of collection of the Note, including attorney fees, upon Assignor’s
request.
22. Notices. All
notices under this Agreement shall be in writing and sent by hand delivery,
overnight courier, or certified or registered mail, return receipt requested, to
the parties at their respective addresses set forth in the introductory
paragraph hereof, or to such other address as a party shall have designated by
notice in the manner described above. Any notice shall be deemed to
be delivered upon actual receipt by the party to whom it is
addressed.
[The
remainder of this page is left blank intentionally.]
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IN
WITNESS WHEREOF, this Agreement has been executed on this the ______ day of
__________________, 2008, effective for all purposes as of the Effective
Date.
ASSIGNOR:
UNITED
MORTGAGE TRUST
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By:
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/s/ Xxxxx
Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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UMTH
GS L.P.- Advisor
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ASSIGNEE:
UNITED
DEVELOPMENT FUNDING III, L.P.
By: UMTH
Land Development, L.P.
Its: General
Partner
By: UMT
Services, Inc.
Its: General
Partner
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By:
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/s/ Xxx
Xxxxxxx
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Name:
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Xxx
Xxxxxxx
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Title:
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Chief
Operating Officer
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EXHIBIT
A
FORM OF PARTICIPATION
AGREEMENT
(See
Attached)
