FIRST AMENDMENT TO SECURED LINE OF CREDIT PROMISSORY NOTE
Exhibit
10.5
FIRST
AMENDMENT TO SECURED LINE OF CREDIT PROMISSORY NOTE
This First Amendment to Secured Line of
Credit Promissory Note (this “Amendment”)
effective as of the 26th day of
August, 2008 (the “Effective
Date”), is made and entered into by and between UNITED DEVELOPMENT FUNDING X,
L.P., a Delaware limited partnership (“Borrower”),
and UNITED DEVELOPMENT FUNDING
III, L.P., a Delaware limited partnership (“Lender”).
R
E C I T A L S:
A. Lender
has committed to advance funds to Borrower pursuant to that certain Secured Line
of Credit Promissory Note dated November 12, 2007, in the original principal
amount of up to U.S. Seventy Million and NO/100 Dollars ($70,000,000.00) (the
“Note”;
capitalized terms not defined in this Amendment shall have the respective
meanings given to such terms in the Note).
B. Lender’s
maximum Commitment to Borrower under the Note is U.S. Seventy Million and NO/100
Dollars ($70,000,000.00).
C. Pursuant
to this Amendment, Lender and Borrower desire that, effective as of the
Effective Date, Lender’s maximum Commitment to Borrower under the Note shall be
reduced to U.S. Twenty-Five Million and NO/100 Dollars
($25,000,000.00).
A
G R E E M E N T:
NOW, THEREFORE, in consideration of the
premises and the mutual covenants and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and Borrower agree as follows:
1. Reduction in
Commitment. Effective as of the Effective Date, the definition
of “Commitment”
set forth in Section
1 of the Note is hereby deleted and replaced in its entirety with the
following:
“Commitment” shall
mean the aggregate amount of up to U.S. Twenty-Five Million and NO/100 Dollars
($25,000,000.00).
2. Principal Amount. All
references in the Note and the other Loan Documents to the U.S. Seventy Million
and NO/100 Dollars ($70,000,000.00) principal amount of the Note, whether in
words or numbers, are hereby deleted and deemed replaced with U.S. Twenty-Five
Million and NO/100 Dollars ($25,000,000.00).
3. Renewal of Note and
Liens. Borrower hereby renews, but does not extinguish, the
Note and promises to pay to the order of Lender, all amounts due under the Note,
or so much thereof as may be outstanding, together with interest at the rate and
in the manner specified in the Note, as modified herein. Borrower
promises to observe, comply with and perform each and every of the terms and
provisions of the Loan Documents as herein modified. Borrower further
agrees that all terms and provisions of the Note and the other Loan Documents,
including, without limitation, all instruments creating or fixing the liens
securing the same, shall be and remain in full force and effect as therein
written, except as otherwise expressly provided herein. All liens are
hereby carried forward from the original inception thereof, and Borrower hereby
ratifies, reaffirms and confirms all of said liens from the original inception
thereof. Except as otherwise specified herein, the terms and
provisions hereof shall in no manner impair, limit, restrict, or otherwise
affect the obligations of Borrower under the Loan Documents.
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4. Amendment to Loan
Documents. Each Loan Document is hereby deemed to be amended
in order to comply with the terms and conditions of this
Amendment. This Amendment shall be deemed to satisfy the requirement
of any Loan Document that states an amendment thereto shall be in writing and
executed by the parties or the party affected thereby, or any such similar
language.
5. Ratification of Note and
Loan Documents. Except as expressly amended as set forth in
this Amendment, the Note and the other Loan Documents remain unchanged and are
hereby ratified and confirmed in all respects.
6. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one
instrument.
7. Conflicts. If
there is a conflict between the terms of this Amendment and the terms of any
Loan Document, the terms of this Amendment shall control.
8. Amendments;
Waivers. No amendment or waiver of any provision of this
Amendment nor consent to any departure by any party herefrom, shall in any event
be effective unless the same shall be in writing and signed by the party
affected thereby, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
9. ENTIRE
AGREEMENT. THE LOAN DOCUMENTS, AS AMENDED BY THIS AMENDMENT,
CONSTITUTE THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
10. ACKNOWLEDGEMENT AND CONSENT
TO PLEDGE. THIS FIRST AMENDMENT TO SECURED PROMISSORY NOTE IS
SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO,
PREMIER BANK AND ITS ASSIGNS (“PREMIER”). BY EXECUTION HEREOF,
BORROWER CONSENTS TO SUCH SECURITY INTEREST AND PLEDGE OF THIS AMENDMENT TO
PREMIER, AND CONSENTS TO THE ASSIGNMENT OF THIS AMENDMENT TO PREMIER IN
ACCORDANCE THEREWITH.
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IN WITNESS WHEREOF, this Amendment has
been executed and delivered on this the ____ day of __________, 2008, effective
for all purposes as of the Effective Date.
BORROWER: UNITED
DEVELOPMENT FUNDING X, L.P.
a Delaware limited
partnership
By: United
Development Funding X, Inc.
Its: General
Partner
By:
/s/ Xxxxxx
Xxxxxxxx
Name: Xxxxxx
X. Xxxxxxxx
Its:
President and Chief Executive Officer
LENDER: UNITED
DEVELOPMENT FUNDING III, L.P.,
a Delaware limited
partnership
By: UMTH Land Development,
L.P.
Its: General
Partner
By: UMT Services,
Inc.
Its: General
Partner
By: /s/ Xxx
Xxxxxxx
Name: Xxx
Xxxxxxx
Its:
Chief Operating Officer
