AMENDED AND RESTATED INVESTMENT OPPORTUNITY ALLOCATION AGREEMENT
Exhibit 6b
AMENDED AND RESTATED
This
AMENDED AND RESTATED INVESTMENT OPPORTUNITY ALLOCATION AGREEMENT
(this “Agreement”) is entered
into and effective as of [______] 2021, by and between
MCI Secured Income Fund, LLC., a Delaware limited liability company
(“MCI
SIF”), MCI Preferred Equity Fund, LLC, a Delaware
liability company (“MCI PEF”), MCI Preferred
Income Fund II, LLC (“MCI PIF II”), MCI Preferred
Income Fund IV, LLC, a Delaware limited liability company
(“MCI PIF
IV”), and MCI Income Fund V, LLC (“MCI INC V”, and together
with MCI SIF, MCI PEF, MCI PIF II, and MCI PIF IV, the
“MCI
Funds”).
WHEREAS, the MCI
Funds have each engaged in separate, distinct securities offerings,
and each individually formed to invest available offering proceeds
in a secured master credit facility between the applicable MCI Fund
and Megatel Homes, L.L.C., a Texas limited liability company
(formerly known as Megatel Homes, Inc., a Texas
corporation); Megatel Holdings, LLC, a
Texas limited liability company; Megatel Homes III, LLC, a Texas
limited liability company; including any wholly-owned subsidiaries
of such entities and Affiliates that may now or hereafter be joined
thereunder pursuant to a joinder agreement (the
“Megatel
Entities”);
WHEREAS, each MCI
Fund will make loans (“Investments”, and each,
an “Investment”) to the
Megatel Entities pursuant to its respective master credit facility
on a per-project basis (a “project,” being so defined
in each respective master credit facility), and the Megatel
Entities will seek to use those loans for the acquisition and/or
development of real property and improvements thereon in accordance
with the requirements and criteria set forth in its respective
master credit facility and the applicable offering documents of
each MCI Fund;
WHEREAS, each MCI
Fund is managed by Megatel Capital Investment, LLC, a Delaware
limited liability company (the “Manager”), pursuant to
each MCI Funds’ limited liability company
agreement;
WHEREAS, the MCI
Funds wish to delineate their respective rights and obligations
with respect to each other in connection with opportunity to invest
in the Investments in the event a proposed Investment meets the
investment criteria and requirements for two or more of the MCI
Funds.
NOW,
THEREFORE, in consideration of the mutual agreements herein made
and intending to be legally bound, the parties hereto hereby agree
as follows:
ARTICLE
I
INVESTMENT
OPPORTUNITIES
1.1 Investment
Allocation. During the term of this Agreement, the parties
hereto agree that the first proposed Investment that meets the
requirements of two or more of the MCI Funds’ investment
criteria, as set forth in the respective master credit facilities
and the applicable securities offering documents, will be given to
MCI SIF. If MCI SIF does not have sufficient proceeds to make the
Investment (factoring in future draws and commitments), MCI PEF
will be given the opportunity to make the Investment. If MCI PEF
does not have sufficient funds to make the Investment at that time
(also factoring in future draws and commitments), MCI PIF II will
be given the opportunity to make the Investment. If MCI PIF II does
not have sufficient funds to make the Investment at that time (also
factoring in future draws and commitments), MCI PIF IV will be
given the opportunity to make the Investment. If MCI PIF IV does
not have sufficient funds to make the Investment at that time (also
factoring in future draws and commitments), MCI INC V will be given
the opportunity to make the Investment. The second proposed
Investment that meets the requirements of two or more of the MCI
Funds’ investment criteria, as set forth in the respective
master credit facilities and the applicable securities offering
documents, will be given to MCI PEF. If MCI PEF does not have
sufficient proceeds to make the Investment (factoring in future
draws and commitments), MCI PIF II will be given the opportunity to
make the Investment. If MCI PIF II
does not have sufficient funds to make the Investment at that time
(also factoring in future draws and commitments), MCI PIF IV will
be given the opportunity to make the Investment. If MCI PIF IV does
not have sufficient funds to make the Investment at that time (also
factoring in future draws and commitments), MCI INC V will be given
the opportunity to make the Investment. If MCI INC V does
not have sufficient proceeds to make the Investment (factoring in
future draws and commitments), MCI SIF
will be given the opportunity to make the Investment.
In the same manner as above, the third
proposed Investment that meets the requirements of two or more of
the MCI Funds’ investment criteria will be given to MCI PIF
II. If MCI PIF II does not have sufficient proceeds to make the
Investment, MCI PIF IV will be given the opportunity to make the
Investment. If MCI PIF IV does not have sufficient funds to make
the Investment, MCI INC V will be given the opportunity to make the
Investment. If MCI INC V does not have sufficient funds to make the
Investment, MCI SIF will be given the opportunity to make the
Investment. If MCI SIF does not have sufficient funds to make the
Investment, MCI PEF will be given the opportunity to make the
Investment. The fourth proposed Investment that meets the
requirements of two or more of the MCI Funds’ investment
criteria will be given to MCI PIF IV. If MCI PIF IV does not have
sufficient proceeds to make the Investment, MCI INC V will be given
the opportunity to make the Investment. If MCI INC V does not have
sufficient proceeds to make the Investment, MCI SIF will be given
the opportunity to make the Investment. If MCI SIF does not have
sufficient funds to make the Investment, MCI PEF will be given the
opportunity to make the Investment. If MCI PEF does not have
sufficient funds to make the Investment, MCI PIF II will be given
the opportunity to make the Investment.
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The fifth proposed Investment that meets the
requirements of two or more of the MCI Funds’ investment
criteria will be given to MCI INC V. If MCI INC V does not have
sufficient proceeds to make the Investment, MCI SIF will be given
the opportunity to make the Investment. If MCI SIF does not have
sufficient proceeds to make the Investment, MCI PEF will be given
the opportunity to make the Investment. If MCI PEF does not have
sufficient funds to make the Investment, MCI PIF II will be given
the opportunity to make the Investment. If MCI PIF II does not have
sufficient funds to make the Investment, MCI PIF IV will be given
the opportunity to make the Investment. The investment
opportunity pattern will continue to rotate in this
manner.
1.2 After
an Investment in a Project by one of the MCI Funds pursuant to
Section 1.1 above, the remaining MCI Funds may choose to invest
available proceeds in the same Investment, and additional
Investment opportunities on the same project may be offered to such
MCI Funds, so long each party that invests in a Project maintains
distinct and separate liens against the Project to fully
collateralize each Investment so made.
ARTICLE
II
MISCELLANEOUS
2.1 Termination.
Any of the parties herein may terminate their participation in this
Agreement on the earlier of the date on which (i) the respective
party liquidates, dissolves, or winds up and (ii) the parties
hereto agree in writing to terminate this Agreement.
2.2 Notices.
All notices, requests, and demands to or upon the respective
parties hereto to be effective shall be in writing, and, unless
otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered against receipt or upon actual
receipt of (i) personal delivery, (ii) delivery by reputable
overnight courier or (iii) delivery by registered or certified
mail, postage prepaid, return receipt requested, addressed as set
forth below ( or to such other address as may be hereafter notified
by the respective parties hereto in accordance with this Section
2.2):
MCI
SIF:
MCI Secured Income Fund, LLC
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Attention: ▇▇▇▇
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MCI
PEF:
MCI Preferred Equity Fund, LLC
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Attention: ▇▇▇▇
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MCI PIF
II:
MCI Preferred Income Fund II, LLC
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Attention: ▇▇▇▇
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MCI PIF
IV:
MCI Preferred Income Fund IV, LLC
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Attention: ▇▇▇▇
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MCI INC
V:
MCI Income Fund V, LLC
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Attention: ▇▇▇▇
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and, in
any and all herein, with a copy to (but which shall not constitute
notice):
▇▇▇▇▇
▇▇▇▇▇▇ Mandala, LLP
600
Banner Place Tower
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Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
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2.3 Binding
Nature of Agreement; Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, personal representatives,
successors, and assigns as provided herein.
2.4 Integration.
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.
2.5 Amendments;
Waivers. This Agreement and the terms hereof may not be
amended, supplemented, or modified except in an instrument in
writing executed by the parties hereto. No waiver of any term or
condition hereof or obligation hereunder shall be valid unless made
in writing and signed by the party to which performance is
due.
2.6 GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF TEXAS AND THE UNITED STATES DISTRICT
COURT FOR ANY DISTRICT WITHIN SUCH STATE FOR THE PURPOSE OF ANY
ACTION OR JUDGMENT RELATING TO OR ARISING OUT OF THIS AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND TO THE LAYING OF
VENUE IN SUCH COURT.
2.7 WAIVER
OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH
SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY
MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
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2.8 No
Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of a party hereto, any right,
remedy, power, or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power, or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power,
or privilege. The rights, remedies, powers, and privileges herein
provided are cumulative and not exclusive of any rights, remedies,
powers, and privileges provided by law.
2.9 Section
Headings. The section and subsection headings in this
Agreement are for reference only and shall not be deemed to alter
or affect the interpretation of any provision hereof.
2.10 Counterparts.
This Agreement may be executed by the parties to this Agreement on
any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same
instrument.
2.11 Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
[Signature Pages Follows]
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IN
WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
MCI
Secured Income Fund, LLC,
a
Delaware limited liability company
By:
Megatel Capital
Investment, LLC
a Delaware limited
liability company
Its:
Manager
By:
______________________
▇▇▇▇▇
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Co-President
MCI
Preferred Equity Fund, LLC,
a
Delaware limited liability company
By:
Megatel Capital
Investment, LLC
a Delaware limited
liability company
Its:
Manager
By:
______________________
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Co-President
MCI
Preferred Income Fund II, LLC,
a
Delaware limited liability company
By:
Megatel Capital
Investment, LLC
a Delaware limited
liability company
Its:
Manager
By:
______________________
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Co-President
[Signature Page Continued]
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MCI
Preferred Income Fund IV, LLC,
a
Delaware limited liability company
By:
Megatel Capital
Investment, LLC
a Delaware limited
liability company
Its:
Manager
By:
______________________
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Co-President
a
Delaware limited liability company
By:
Megatel Capital
Investment, LLC
a Delaware limited
liability company
Its:
Manager
By:
______________________
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Co-President
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