NOTE PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit 10.1
THIS
NOTE PURCHASE, ASSIGNMENT AND
ASSUMPTION AGREEMENT (this “Agreement”) is dated March
20, 2007 (the “Effective Date”), and is by and between
XXXXXXXX FAMILY PARTNERSHIP, LTD., a Texas limited partnership
(“Assignor”), and UNITED DEVELOPMENT FUNDING
III, L.P., a Delaware limited partnership, or its
assigns (“Assignee”).
RECITALS:
A. Assignor
is the owner of that certain Modification and Extension Agreement (the
“Note”) and the other loan documents identified on
Exhibit “A” attached hereto (collectively with the
Note, the
“Loan Documents”), all of which relate to the
indebtedness (the “Loan”) of Llano Development
Company, a Texas corporation (“Borrower”), which is
currently owed to Assignor.
B. Assignee
has offered to purchase from Assignor, and Assignor has agreed to sell to
Assignee, all of Assignor’s right, title and interest in, to and under the Loan
Documents, subject to the terms and conditions contained herein.
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Purchase
of Loan. Assignor hereby sells, transfers and assigns to
Assignee, and Assignee hereby purchases from Assignor, all right, title and
interest of Assignor in, to and under the Loan Documents. Assignee
hereby assumes all of Assignor’s obligations under the Loan
Documents.
2. Assignee’s
Representations and Warranties. Assignee hereby represents and
warrants to Assignor, and agrees, that:
(a) Assignee
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 Assignee in connection herewith;
(b) Assignee
has made such examination, review and investigation of Borrower, and of facts
and circumstances necessary to evaluate Borrower, as it has deemed necessary
and
appropriate;
(c) Assignee
has received copies of each of the Loan Documents and has made such examination,
review and investigation of the Loan and the Loan Documents, and of the related
facts and circumstances necessary to evaluate the Loan and the Loan Documents,
as it has deemed necessary and appropriate;
(d) Assignee
has not relied on any statement, representation or warranty, express or implied,
of Assignor or any of Assignor’s directors, officers, employees, attorneys or
agents, Assignee having made its own independent evaluation of Borrower, the
Loan and each Loan Document;
(e) Assignee
is acquiring the Loan and Loan Documents for its own account and not with a
view
to, or for sale in connection with, any public distribution thereof, and
Assignee has no present intention of making any distribution of the Loan or
any
Loan Documents in a manner which would violate any applicable securities
law;
(f) This
Agreement constitutes a legal, valid and binding obligation of Assignee
enforceable against it in accordance with its terms; and
(g) The
transaction contemplated by this Agreement is an arms-length transaction for
fair value.
3. Assignor’s
Representations and Warranties. Assignor hereby represents and
warrants to Assignee, and agrees, that:
(a) Assignor
is the sole owner of the Loan Documents;
(b) 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;
(c) This
Agreement constitutes a legal, valid and binding obligation of Assignor
enforceable against it in accordance with its terms;
(d) The
transaction contemplated by this Agreement is an arms-length transaction for
fair value;
(e) According
to Assignor’s records, as of March 20, 2007, the unpaid principal balance of the
Loan is $3,500,000.00 (the “Loan Balance”) and accrued
and unpaid interest is $96,663.41 (the “Accrued
Interest”), with a daily per diem of $996.53 (the
“Daily Per Diem”); and
(f) Upon
the closing of the purchase and sale contemplated by this Agreement, Assignor
shall assign to Assignee the UCC-1 Financing Statements described on Exhibit
“A” attached hereto.
4. Conditions
Precedent to Effectiveness. This Agreement shall be effective
upon the occurrence of all of the following:
(a) Receipt
by Assignor of $3,596,663.41 plus the Daily Per Diem for each day after March
20, 2007 until the closing date (the “Purchase
Price”), by wire-transfer to an account designated by
Assignor;
(b) Receipt
by Assignee of an original copy of each of the Loan Documents and the original
Note properly assigned by Assignor without recourse, representation or warranty
except as expressly provided in this Agreement;
(c) Receipt
by each party hereto of an original counterpart of this Agreement executed
by
each party; and
(d) Receipt
by Assignee of a fully executed Assignment of Note and Loan Documents in form
and substance reasonably satisfactory to the parties.
5. Assumption
and Release. Assignee hereby assumes and promises to perform in
accordance with the terms thereof each and all of the duties and obligations
of
the Assignor arising from, in connection with, in respect of or under the Note
and the other Loan Documents and interests assigned hereby. Except
for the rights created by this Agreement, Assignee agrees to and does
hereby irrevocably and unconditionally release the Assignor of and from any
and
all liability for performance or non-performance of such duties and obligations
and any and all claims, actions, suits, costs, demands and causes of action
that
may be asserted against Assignor by Assignee, or its successors or assigns,
in
respect of, in connection with or otherwise relating to or arising under the
Note or any of the other Loan Documents assigned hereby.
6. Further
Actions. Assignor and Assignee hereby covenant and agree to
execute and deliver all such documents and to take all such further actions
as
any of them may reasonably deem necessary from time to time to carry out the
intent and purpose of this Agreement and to consummate the transactions
contemplated hereby.
7. Survival
of Provisions. The agreements, representations and warranties of
the parties contained herein shall survive the consummation of the transactions
contemplated hereby.
8. Governing
Law. This Agreement and all documents executed in connection
herewith shall be deemed contracts made under the laws of Texas and shall be
construed and enforced in accordance with and governed by the laws of
Texas.
9. Indemnity. Assignee
shall indemnify, defend and hold Assignor harmless from and against any
liability, claim, cause of action, cost, loss, damage or expense arising out
of
the debt relationship evidenced by the Loan Documents which occurs on or after
the Effective Date. Assignor shall indemnify, defend and hold
Assignee harmless from and against any liability, claim, cause of action, cost,
loss, damage or expense arising out of the debt relationship evidenced by the
Loan Documents which occurred prior to the Effective Date.
10. Entire
Agreement. Except for any written agreement of confidentiality
between Assignor and Assignee which shall survive the consummation of the
transactions contemplated hereby, this Agreement sets forth the entire agreement
and understanding of the parties hereto, and supersedes all prior agreements
and
understandings between the parties hereto with respect to the transactions
contemplated hereby. This Agreement shall be binding on, and inure to
the benefit of, the parties hereto and their successors and
assigns.
11. Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original
and
all of which taken together shall constitute one agreement.
12. Modifications
to this Agreement. This Agreement may not be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by
the party against which enforcement of such change, waiver, discharge or
termination is sought.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the
Effective Date.
| ASSIGNOR: | |||
| XXXXXXXX FAMILY PARTNERSHIP, LTD. | |||
| By: | DCMC, L.C., its general partner | ||
|
|
|
/s/ Xxxx XxXxxxxx | |
| Name: Xxxx XxXxxxxx | |||
| Title: Manager | |||
| Address: 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 | |||
| ASSIGNEE: | |||
| UNITED DEVELOPMENT FUNDING III, L.P. | |||
| By: | UMTH Land Development, L.P., its general partner | ||
| By: | UMT Services Inc., its general partner | ||
|
|
|
/s/ Xxx Xxxxxxx | |
| Name: Xxx Xxxxxxx | |||
| Title: Vice President | |||
| Address: 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 | |||
EXHIBIT
A
LOAN
DOCUMENTS
1. Modification
and Extension Agreement, dated December 12, 2006, in the
unpaid principal amount of $3,500,000, payable by Llano Development
Company to the order of XxXxxxxx Family Partnership, Ltd.
2. Tri-Party
and Subordination Agreement, dated December 12, 2006, among Llano Development
Company, XxXxxxxx Family Partnership, Ltd. and United Development Funding,
L.P.
3. Deed
of
Trust Security Agreement – Financing Statement dated
December 12, 2006, executed by Llano Development Company to Xxxxxxx X. XxXxxxxx,
Trustee for the benefit of XxXxxxxx Family Partnership, Ltd. and filed in the
Official Public Records of Lubbock County, Texas under Instrument Number
2006051361.
4. Transfer
of Liens from ABC to XxXxxxxx dated on or about December 12, 2006.
5. Loan
Agreement, dated as of October 29, 2004, between Llano Development Company
and
American Bank of Commerce, such note having been assigned to XxXxxxxx Family
Partnership, Ltd. on or about December 12, 2006.
6. Real
Estate Lien Note, dated October 29, 2004, in the original principal amount
of
$4,000,000, payable by Llano Development Company to the order of American Bank
of Commerce, such note having been assigned to XxXxxxxx Family Partnership,
Ltd.
on or about December 12, 2006, which note evidences a renewal and extension
of
that certain promissory note in the original principal amount of $3,250,000.00,
payable by Llano Development Company to American Bank of Commerce dated May
21,
2004.
7. [intentionally
deleted]
8. Security
Agreement, dated October 29, 2004, executed by Llano Development Company for
the
benefit of American Bank of Commerce and related UCC filings, such agreement
having been assigned to XxXxxxxx Family Partnership, Ltd. on or about December
12, 2006.
9. Security
Agreement, dated October 29, 2004, executed by Xxxxxxx Xxxxxxxxxx for the
benefit of American Bank of Commerce and related UCC filings, such agreement
having been assigned to XxXxxxxx Family Partnership, Ltd. on or about December
12, 2006.
10. Assignment
of Contracts, Plans, Permits and Plats dated October 29, 2004 executed by Llano
Development Company for the benefit of American Bank of Commerce filed in Volume
9486, Page 309, of the Real Property Records of Lubbock County, Texas, such
assignment having been assigned to XxXxxxxx Family Partnership, Ltd. on or
about
December 12, 2006.
11. Guaranty
Agreement, dated October 29, 2004, executed by United Development Funding,
L.P.
for the benefit of American Bank of Commerce, such agreement having been
assigned to XxXxxxxx Family Partnership, Ltd. on or about December 12,
2006.
12. Guaranty
Agreement, dated October 29, 2004, executed by Xxxxxxx Xxxxxxxxxx for the
benefit of American Bank of Commerce, such agreement having been assigned to
XxXxxxxx Family Partnership, Ltd. on or about December 12, 2006.
13. Deed
of
Trust, dated May 21, 2004, executed by Llano Development Company to Xxxxx
Xxxxxx, Trustee, for the benefit of American Bank of Commerce and recorded
in
Vol. 9159 Page 196, of the Official Public Records of Lubbock County, Texas,
such deed of trust having been assigned to XxXxxxxx Family Partnership, Ltd.
on
or about December 12, 2006.
14. Deed
of
Trust, dated October 29, 2004, executed by Llano Development Company to Xxxxx
Xxxxxx, Trustee, for the benefit of American Bank of Commerce and recorded
in
Vol. 9486 Page 298, of the Official Public Records of Lubbock County, Texas,
such deed of trust having been assigned to XxXxxxxx Family Partnership, Ltd.
on
or about December 12, 2006, which deed of trust extends the instrument described
in Item 13 above.
15. UCC
Financing Statement No. 04-0087036573 and all amendments thereto, naming Llano
Development Company as debtor and American Bank of Commerce as lender, having
been assigned to XxXxxxxx Family Partnership, Ltd. on or about December 12,
2006.
16. UCC
Financing Statement No. 04-0070085519 and all amendments thereto, naming Llano
Development Company as debtor and American Bank of Commerce as lender, having
been assigned to XxXxxxxx Family Partnership, Ltd. on or about December 12,
2006.
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