EXHIBIT 10.18
AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
THIS AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of April
18, 2003 (this "AGREEMENT"), replaces and supercedes that certain AMENDED AND
RESTATED INTERCREDITOR AGREEMENT dated as of November 26, 2002 and any
subsequent amendments, and is entered into by and between VESTIN MORTGAGE, INC.,
a Nevada corporation ("VESTIN MORTGAGE"), VESTIN FUND I, LLC, a Nevada limited
liability company ("VESTIN FUND I") and VESTIN FUND II, LLC, a Nevada limited
liability company ("VESTIN FUND II") whose principal place of business and post
office address is 0000 Xx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000,
(individually, "LEAD LENDER, or collectively, "LEAD LENDERS" and XXXXX FINANCIAL
GROUP, INC., a California corporation ("XXXXX FINANCIAL") and Xxxxx Mortgage
Investment Fund, a California Limited Partnership ("XXXXX MORTGAGE INVESTMENT
FUND") whose principal place of business and post office address is 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, (individually, a "Lender", or
collectively, "LENDERS")
RECITALS:
A. Vestin Fund I is an SEC registered direct participation
program that provides financing secured by deeds of trust or mortgages on real
property. Vestin Fund I contains loans in the approximate amount of
$100,000,000.
B. Vestin Fund II is a SEC registered direct participation
program that provides financing secured by deeds of trust or mortgages on real
property. Vestin Fund II contains loans in the approximate amount of
$342,000,000.
C. Vestin Mortgage is the Manager for Vestin Fund I and Vestin
Fund II.
X. Xxxxx Mortgage Investment Fund is a SEC registered public
partnership that provides financing and owns notes secured by deeds of trust or
mortgages on real property.
X. Xxxxx Financial is the General Partner of Xxxxx Mortgage
Investment Fund.
X. Xxxxx Financial and Xxxxx Mortgage Investment Fund intend to
purchase a portion of some of the loans held by Vestin Fund I and Vestin Fund II
as hereinafter set forth in Exhibit "A".
G. Vestin Mortgage wishes to sell by assignment a portion of some
of the loans held by Vestin Fund I and Vestin Fund II, as hereinafter set forth
in Exhibit "A".
H. The Lead Lenders and Lenders enter into this Agreement to,
among other things, further define their respective rights, duties, authorities
and responsibilities regarding their proposed shared interests in the various
loans which make up the portfolio of Vestin I and Vestin II and to define the
priority of payment for all of the proceeds from the assigned participation in
those loans.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and based upon the foregoing
Recitals which are an integral part of this Agreement, as well as the mutual
covenants and promises contained herein, Vestin Mortgage, Vestin Fund I, Vestin
Fund II, Xxxxx Financial, and Xxxxx Mortgage Investment Fund hereby agree as
follows:
SECTION 1. DEFINITIONS
Section 1.1. Definitions. All capitalized terms used in this Agreement
shall have the meanings assigned to them below in this Section 1 or in the
provisions of this Agreement referred to below:
1
"Agreement" shall mean this Intercreditor Agreement as amended,
modified or restated in accordance with the terms hereof.
"Assignment" shall mean the actual recorded assignment of a specific
percentage interest in a "Loan".
"Bankruptcy Proceeding" shall mean, with respect to any Person, a
general assignment by such Person for the benefit of its creditors, or the
institution by or against such Person of any proceeding seeking its relief as
debtor, or seeking to adjudicate such Person as bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of such Person or
its debts, under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seeking appointment of a receiver, trustee, custodian or
other similar official for such Person or for any substantial part of its
property.
"Borrower" shall mean any person or entity that obligates itself or its
property as security for a "Loan".
"Collateral" shall mean all the real and personal property collateral
under the "Loan Documents".
"Default" shall mean any event or condition, the occurrence of which
would, with the lapse of time or the giving of notice, or both, pursuant to the
"Loan Documents" constitute an Event of Default.
"Interest Rate" shall mean a fixed rate of interest equivalent to
twelve percent (12%) per annum to be paid to Xxxxx Financial or Xxxxx Mortgage
Investment Fund in accordance with this Agreement for their "Participation
Interest" in the "Loans" assigned by Vestin Mortgage and Vestin Fund I and
Vestin Fund II.
"Late Charges" shall mean the late charges and or default rate charged
to Borrower in the event of default or late payments under the "Loan Documents".
"Lead Lender and Lead Lenders" shall mean Vestin Mortgage, Vestin Fund
I, Vestin Fund II or any successor lead lender.
"Lender and Lenders" shall mean Xxxxx Financial or Xxxxx Mortgage
Investment Fund or their assignee.
"Loan Documents" shall mean of all the various notes, deeds of trusts,
guarantees, title policies, security agreements, loan agreements, assignment of
rents and profits, and whatever documents are in existence to protect and secure
the repayment of the Borrowers obligations under the "loan".
"Loan" shall mean the note, and all of the documents and agreements
that evidence and secure the debt of the "Borrower", owned by Vestin I and
Xxxxxx XX.
"Priority of Payment" shall mean the order in which payments are made
to the "Lead Lender" and to the "Lender".
2
"Participation Interest" shall signify amount in dollars of the
"Assignment" owned by Xxxxx Financial and Xxxxx Mortgage Investment Fund in the
"Loan".
"Participation Pool" shall mean those "Loans" identified on Exhibit "A"
attached hereto in which "Lenders" shall acquire up to Thirty-seven Million Six
Hundred Fifty Thousand Dollars ($37,650,000) of "Participation Interests", as
such Participation Pool may be periodically modified in accordance with this
Agreement.
"Substitution of Security" shall mean the exchange of one
"Participation Interest' in a "Loan" for a "Participation Interest" in a
different "Loan" of an equal amount.
1.2 Effectiveness of this Agreement. The effectiveness of this
Agreement is conditioned upon (a) the execution and delivery of this Agreement
by the Lead Lenders and the Lenders, (b) the execution, delivery and
effectiveness of the Loan Assignments and the Loan Documents by the Lead
Lenders, and (c) the payment of the Participation Interest by Lenders to the
Lead Lenders, which payment shall be made by Lenders to Lead Lenders as follows:
(i) on June 7, 2002, or before, if requested by the Lead Lenders, Lenders shall
remit to Lead Lenders in immediately available funds the sum of $10,000,000
representing its Participation Interest in certain Loans; (ii) on June 28, 2002,
or before, if requested by the Lead Lenders, Lenders shall remit to Lead Lenders
in immediately available funds the sum of $10,000,000 representing its
additional Participation Interest in certain Loans; and (iii) on July 19, 2002,
or before, if requested by the Lead Lenders, Lenders shall remit to Lead Lenders
in immediately available funds the sum of $10,000,000 representing its
additional Participation Interest in certain Loans. Thereafter, any additional
payments of Participation Interest shall be made subject to the mutual agreement
of Lenders and Lead Lenders.
SECTION 2. RELATIONSHIP AMONG LENDERS
2.1 Restrictions on Actions. Lead Lenders agree that, so long as
any portion of a Loan is outstanding or unpaid they shall, for the benefit of
Lenders, except as permitted under this Agreement:
(a) Notify Lenders before taking or filing any action,
judicial or otherwise, to enforce any rights or
pursue any remedy under the Loan Documents, except
for delivering notices hereunder.
(b) Refrain from (1) selling any portion of the Loan to
the Borrowers or any affiliate of the Borrowers and
(2) accepting any substitute guaranty or any other
security for, the Loan from the Borrowers or any
Affiliate of the Borrowers, without Lenders consent.
In the event Lender refuses to consent to such
requested action, Lead Lenders shall be entitled to
either repurchase Lenders Participation Interest for
the amount of principal and accrued interest
outstanding or offer the Lenders a Substitution of
Security.
2.2 Representations and Warranties. Lead Lenders and Lenders
represent and warrant to each other that:
(a) It (i) is a legal entity duly organized, existing and
in good standing under the laws and governmental authority of the jurisdiction
of its domicile, and (ii) has all requisite corporate power to own its property
and conduct its business as now conducted and as presently contemplated.
3
(b) The execution, delivery and performance by such Lead
Lenders or Lenders of this Agreement has been authorized by all necessary
proceedings (corporate or otherwise) and does not and will not contravene any
provision of law, its charter or by-laws or operating agreement or any amendment
thereof, or of any indenture, agreement, instrument or undertaking binding upon
such Lead Lenders or Lenders.
(c) The execution, delivery and performance by such Lead
Lenders or Lenders of this Agreement will result in a valid and legally binding
obligation of such Lead Lenders or Lenders enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in a
proceeding in equity or at law).
(d) It has received and approved, as to form and content,
sample copies of the Loan Documents and Assignments, however, such approval
shall not operate as a warranty or representation of the adequacy, validity or
binding effect of any of the Loan Documents or Assignments.
(e) Lead Lender represents that none of the Loans are in
default at the time of the Assignment to Lender, and that, to the knowledge of
Lead Lenders, none of the Borrowers or their assignees have notified Lead
Lenders of any claims or offsets under the Loan Documents.
2.3 Cooperation; Accountings. Lead Lenders will, upon the
reasonable request of Lenders, from time to time execute and deliver or cause to
be executed and delivered in a timely fashion such further instruments, and do
and cause to be done such further acts as may be necessary or proper to carry
out more effectively the provisions of this Agreement. The Lead Lenders agree to
provide to Lenders upon reasonable request, but in no event more frequently than
once a month, a statement of all payments received in respect of the Loans
Assigned.
2.4 Reliance on Lead Lenders. Lenders agree that it has
independently made its own analysis of the Loans and the decision to enter into
this Agreement based upon such documents and information as it has deemed
appropriate. The Lead Lenders shall promptly provide to Lenders a copy of all
financial statements and reports of operating results and other documents and
information received by the Lead Lenders in its capacity as such pursuant to the
Loan Documents. The Lead Lenders shall have a duty and responsibility to provide
Lenders with any credit or other information concerning the affairs, financial
condition or business of the Borrowers which may come into the possession of the
Lead Lenders, including financial statements, credit reports and any other
documents and information upon the reasonable request of Lenders.
2.5 Limitation on Lead Lender's Liability.
(a) In addition to the Lead Lender's failure to comply
with the terms of this Agreement, including the Priority of Payment, the Lenders
shall have full recourse against Lead Lenders for the amounts payable by the
terms of this agreement. Lead Lenders obligation with respect to such payments
shall be to remit to the Lenders a monthly payment based on the Interest Rate
calculated on the Participation Interest and the principal amount of the
Participation Interest when a Loan pays off or matures in accordance with this
Agreement.
4
(b) Although Lead Lenders will exercise the same care in
administering the Loan as if the Loan were made entirely for Lead Lenders' own
account, Lead Lenders liability shall be limited to the Lenders Participation
Interest and the amount payable on that at the Interest Rate, except for a loss
due to Lead Lenders' own gross negligence, willful acts or willful misconduct.
(c) Lead Lenders shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telegram, cable or telecopy) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the Lenders. Should
approval of any action, any inaction or any proposed course of conduct in
administering the Loan (either before or after the occurrence of an Event of
Default) be requested in writing by the Lead Lenders from Lenders, such Lenders
shall approve or deny such request in writing and shall deliver the writing to
the Lead Lenders within ten (10) calendar days after the Lenders' receipt of the
Lead Lender's request. Any Lenders' failure to respond within the ten (10)
calendar days shall be deemed consent by such Lender to such request.
(d) Lead Lenders do not assume and shall have no
responsibility or liability, express or implied, for (i) the collectibility of
the Loan made to Borrowers under, or the enforceability of, any of the Loan
Documents, or (ii) the financial condition or creditworthiness of the Borrowers,
or (iii) any credit or other information furnished by the Borrowers to Lead
Lenders, or (iv) the value of any collateral for the Loan.
2.6 Lead Lender Rights as Lender. The Lead Lender in its capacity
as a lender hereunder shall have the same rights, powers and obligations
hereunder as all other Lenders and may exercise the same as though it were not
acting as the Lead Lender.
SECTION 3. ADMINISTRATION OF LOAN
3.1 Administration and Servicing of Loan. In administering and
servicing the Loan, Lead Lenders shall act in its own behalf as to its interest
in the Loan and shall act as an independent contractor (and not as an agent or
trustee) for the Lenders with respect to their respective interests in the Loan.
The Lenders hereby appoint and authorize Lead Lenders to act for and on behalf
of the Lenders with regard to the Loan, subject to the restrictions set forth in
this Agreement. Lead Lenders shall utilize its own facilities and equipment and
its own employees and other persons authorized under the Loan Documents in the
administering and servicing of the Loans, all without cost to the Lenders.
In its administering and servicing of the Loan, Lead Lenders
shall perform the following duties (the enumeration of said duties not being
intended to limit the duties to be performed by Lead Lenders in accordance with
the foregoing paragraph) and shall be subject to the following restrictions and
shall have the following rights:
(a) Possession of Loan Documents. For the
benefit of the Lenders, Lead Lenders shall hold in its possession at its
principal office executed originals of all the Loan Documents for each Loan
assigned and shall deliver conformed copies of each thereof to the Lenders.
5
(b) Expenses/Losses. In the event that any
reasonable legal expenses or other expenses for the preservation of the
collateral for the Loan or for the enforcement of the Loan are incurred by Lead
Lenders in connection with the Loan or on or after or in connection with the
occurrence of an Event of Default or the enforcement of any of the Loan
Documents (including fees of counsel and other expenses), Lead Lenders shall
bear and advance all such costs. Upon receipt of reimbursement for such expenses
from Borrowers or any other person, Lead Lenders shall be entitled to retain
such reimbursement.
(c) Collections. Lead Lenders shall use
reasonable efforts to collect all payments of principal, interest and fees due
from the Borrowers under the Loan Documents and shall remit to the Lenders on a
monthly basis a payment calculated at the agreed Interest Rate based on the
outstanding balance of the Participation Interest. The Lenders shall have the
right to an accounting for all monies received by Lead Lenders in connection
with each Loan that has a Participation Interest by Lenders.
(d) Payment Returns. If any payment received by
Lead Lenders and distributed or credited to the Lenders is later rescinded or is
otherwise required to be returned by Lead Lenders to the Borrowers for whatever
reason (including, without limitation, settlement of an alleged claim), the
Lenders shall be entitled to retain any payment received. The covenant contained
in this paragraph shall survive the termination of this Agreement.
(e) Records. Lead Lenders shall maintain such
books and records relating to the Loan as it would were the Loan made solely by
Lead Lenders, which books and records shall be made available to the Lenders at
Lead Lender's main branch in Las Vegas, Nevada at all reasonable times for
purposes of inspection, examination and audit upon no less than forty-eight (48)
hours prior notice.
(f) Information. During the term of this
Agreement, Lead Lenders shall provide to the Lenders complete and current
information as to the accrual status of the Loan and the status of principal and
interest payments, and all information supplied by Borrowers in connection with
the Loan. The Lenders will treat all such information as confidential, except
that disclosure thereof may be made if required by law or the order of a court
having jurisdiction.
(g) Administrative Decisions. Lead Lenders shall
not, without written consent of Lenders, (1) release, or agree to the
substitution of other security for any portion of the Real Property, Leasehold
Rights and/or Collateral securing the Loans, (2) grant any release in favor of
the Borrowers under the Loan Documents, or waive the Lenders' rights to enforce
the obligations of the Borrowers, (3) agree to the revision, modification or
amendment of any of the Loan Documents, or (4) consent to or accept the
cancellation or termination of any of the Loan Documents, except upon payment in
full of each Loan. Subject to the foregoing limitations, and until the
occurrence and declaration of an Event of Default under the Loan Documents and
Borrowers failure to cure within twenty (20) days thereof, Lead Lenders shall
have the right to make decisions in connection with the day-to-day
administration and servicing of the Loans, relating to inspections, review of
financial data, and other matters of an ordinary nature involved in the
administration and servicing of the Loans, without the Lenders' prior review or
approval.
(h) Reasonable Efforts. If any Event of Default
shall occur under any of the Loans, Lead Lenders shall use reasonable efforts in
accordance with the Loan Documents to cause the Borrowers, Guarantors and/or
Limited Guarantors to remedy the default.
6
(i) Hazard Insurance and Condemnation Awards. If
Lead Lenders becomes aware of any damage to or actual or potential condemnation
affecting any material portion of the Real Property, Leasehold Rights and/or
Collateral securing the Loans, Lead Lenders will promptly notify Lenders
thereof. The proceeds of any insurance recovery or condemnation award received
by Lead Lenders and not immediately disbursed or applied to the repayment of the
Loan or not otherwise distributed by Lead Lenders shall be deposited in an
interest-bearing account, in trust for all lenders, and the income, if any,
received by Lead Lenders from such account and not payable to others shall be
shared with the Lenders in accordance with terms of this Agreement.
3.2 Payment Priorities Between Lead Lenders and Lenders.
(a) Lead Lenders and Lenders agree that all payment
and/or prepayment of principal due on the Loan, received by the Lead Lenders,
shall be held for the account of the Lenders and Lead Lenders as their
respective interests may appear, and such payment shall be applied in the
following order of priority: (i) first to the payment of that pro rata portion
of principal of the Loan provided by Xxxxx Financial and Xxxxx Mortgage
Investment Fund, (ii) next to pay any pro rata portion of accrued or outstanding
interest due Lenders at the agreed Interest Rate, (iii) next to that portion of
the principal of the Loan provided by Vestin Mortgage and Vestin Fund I and
Vestin Fund II. In the Event of Default under the Loan Documents, and the
Borrowers failure to cure such Event of Default within twenty (20) days thereof,
Vestin and Vestin Fund I and Vestin Fund II shall be entitled, in their sole and
absolute discretion, to either (i) continue to remit to Lenders on a monthly
basis the interest due at the Interest Rate on the Participation Interest of
said Loan notwithstanding the occurrence and continuation of such Event of
Default until such time as Lead Lenders repurchase the Participation Interest of
Lenders in such Loan or a Substitution of Security for such Loan occurs, or (ii)
substitute an alternative Loan acceptable to the Lenders at the Lenders sole
discretion. In the event no acceptable alternative Loan is found acceptable to
Lenders, and Lead Lenders make a determination not to continue to remit to
Lenders the monthly interest payment as set forth in (i) above, the Lead Lenders
will repurchase the Participation Interest of Xxxxx Financial and Xxxxx Mortgage
Investment Fund for the outstanding balance of that Participation Interest plus
any accrued interest together with Lender's pro rata portion of any Late Charges
collected from Borrowers for the period commencing on the date immediately
following the expiration of the aforesaid twenty (20) day period following the
occurrence of such Event of Default up to the date that Lead Lenders either (i)
repurchase the Participation Interest of Lenders in such defaulted Loan, or (ii)
a Substitution of Security occurs, as applicable. Vestin Mortgage, Vestin Fund I
and Vestin Fund II shall not be entitled to receive any payment of its pro rata
share of the principal of the Loan in question until Xxxxx Financial and Xxxxx
Mortgage Investment Fund has received payment in full of its Participation
Interest of the principal of the Loan and all accrued interest payable to
Lenders under this Agreement.
(b) Each payment of interest on the Loan, received by the
Lead Lender, shall be for the account of the Lenders and Lead Lenders as their
respective interests may appear, and such payment shall be applied first to the
payment of agreed Interest Rate due on the Participation Interest of the Loan
assigned to Xxxxx Financial or Xxxxx Mortgage Investment Fund for such period
that the interest is due.
(c) As an example, assume Lenders purchase an Assignment
of a 25% Participation Interest in a $10,000,000 Loan. The Loan carries an
interest rate of 14% and pays monthly interest only payments. The Lenders agreed
Interest Rate is 12%. Lenders and Lead Lenders would receive the following.
7
Example 1: Borrowers make a monthly payment of
$116,666.67. Lenders are paid their full share of interest at 12% on $2,500,000
or $25,000. Vestin Mortgage, Vestin Fund I or Vestin Fund II receives $91,666.67
or the balance of the interest paid.
Example 2: Borrowers make a monthly payment of
$50,000. Lenders are paid their full share of interest at 12% on $2,500,00 or
$25,000. Vestin Mortgage, Vestin Fund I or Vestin Fund II receives $25,000, or
the balance of the interest paid.
Example 3: Borrowers do not make a monthly payment,
default, declare bankruptcy or withhold payments for any reason then, Lead
Lenders in their sole and absolute discretion may (i) continue to pay Lenders
12% on $2,500,000 or $25,000 on a monthly basis notwithstanding the occurrence
and continuation of such default, or (ii) buy Lenders out of the Loan for
$2,500,000 plus any accrued interest, or (iii) offer a Substitution of Security
in a Loan acceptable to Lenders at Lenders sole and absolute discretion in the
amount of $2,500,000. In case of an acceptable Substitution of Security, Lead
Lender will pay any outstanding accrued interest.
Example 4: Borrowers payoff a portion of the Loan.
Lenders are paid their full pro rata share of the principal balance of the
Participation Interest and interest at 12% to the date of payoff.
Example 5: Borrowers pay off the Loan. Lenders are
paid their full pro rata share of the Loan equal to their Participation Interest
plus interest at 12%. Vestin Mortgage, Vestin Fund I or Vestin Fund II may offer
Xxxxx Financial or Xxxxx Mortgage Investment Fund a new Participation Interest
in another loan, but Lender has no obligation to accept such interest.
3.3 Defaults Under Loan Documents; Enforcement of Remedies.
(a) If foreclosure or similar proceedings are commenced
under the Loan Documents, Lead Lenders shall keep the Lenders informed as to the
progress of the proceedings.
(b) If Lead Lender (or a nominee acceptable to the
Lenders) shall acquire title to all or any part of the Real Property, Leasehold
Rights and/or Collateral securing the Loan, it shall buy out the Participation
Interest of Xxxxx Financial or Xxxxx Mortgage Investment Fund at the sole an
absolute discretion of Lenders.
3.4 Notices under Collateral Documents. Lead Lenders shall deliver
to the Lenders, promptly upon receipt thereof, duplicates or copies of all
notices, requests and other instruments received by it from any other party
under or pursuant to any of the Loan Documents, if not previously furnished to
the Lenders.
SECTION 4. MANDATORY REPURCHASE FOR CAUSE
Lead Lenders will repurchase the Participation Interests of Lenders, at
Lenders sole and absolute discretion, at any time "for cause". The term "for
cause" shall be limited to Lead Lenders' (i) material breach of a material term
of this Agreement, or (ii) fraud committed against Borrowers or Lenders, as
finally determined by a court of competent jurisdiction or (iii) criminal acts
committed against Borrowers or Lenders as finally determined by a court of
competent jurisdiction.
8
SECTION 5. TERMINATION OF AGREEMENT
Upon final payment in full of the Loans or all obligations owing to
Lenders, such Lenders shall cease to be a party to this Agreement; provided,
however, if all or any part of any payments to such Lenders are invalidated or
set aside or required to be repaid to any Person in any Bankruptcy Proceeding or
otherwise, then this Agreement shall be renewed as of such date and shall
thereafter continue in full force and effect to the extent of the Loan so
invalidated, set aside or repaid. If any portion of this agreement is declared
to be invalid or unenforceable then the remaining portions of the Agreement
shall remain in full force and effect.
SECTION 6. INDEMNIFICATION OF LENDER
Vestin Mortgage, Vestin Fund I and Vestin Fund II indemnifies Xxxxx
Financial and Xxxxx Mortgage Investment Fund for all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against them in any way relating to or arising out of this
Agreement or by their participation in any Loan or by any action brought by any
Borrower including all claims relating to the origination of the Loans, except
for the gross negligence or willful misconduct of Lenders or the breach by
Lenders of any of the terms of this Agreement.
SECTION 7. NOT A JOINT VENTURE
Neither the execution of this Agreement nor the Lenders' several
ownership of interests in Loans, nor any agreement to share in profits or losses
arising as a result of the Loans, is intended to be, nor shall it be construed
to be: (a) the formation of a partnership or joint venture between the Lead
Lenders and Lenders, or (b) the creation of a loan transaction between the Lead
Lenders, as borrower, and Lender, as lender. Vestin Mortgage, in its capacity as
Lead Lender, shall not be deemed to be a trustee for the Lenders in connection
with the Loans or their interests therein. Vestin Mortgage, in its capacity as
Lead Lender, shall owe to the Lenders no duty except as specifically set forth
in this Agreement, and no lender shall be liable to any other person for the
liability of any other lender arising in connection with the Loans or any
transaction related to the Loans, except as may be expressly set forth in this
Agreement.
SECTION 8. MISCELLANEOUS
8.1 Amendment. Neither this Agreement nor any provision hereof may
be amended, waived, discharged or terminated orally, but only by an instrument
in writing signed by all parties hereto.
8.2 Headings. The headings in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
8.3 Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Nevada.
8.4 Parties in Interest; Decisions by Majority Lenders. All of the
terms, covenants and conditions contained in this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their permitted successors
and assigns. There shall be no third-party beneficiaries of this Agreement
9
8.5 Further Sale, Pledge, etc. Lead Lender may not sell, pledge,
assign or otherwise transfer all or any part of its interest in any Loan which
is subject to this Agreement without the prior written consent of Lenders, which
consent shall not be unreasonably withheld. In the event all or any part of Lead
Lenders interest in any such Loan is sold, pledged, assigned or otherwise
transferred, Lead Lenders obligations under this Agreement will not be relieved.
8.6 Notices. Notices under this Agreement shall be in writing and
personally delivered or sent by certified or registered U.S. mail, or a
recognized air courier service, return receipt requested, or by telecopy,
acknowledgment of receipt requested, to the parties at their addresses specified
in the first paragraph of this Agreement. Such addresses may be changed from
time to time by the addressee by serving notice as provided above.
8.7 Counterpart Execution. This Agreement may be executed in any
number of counterparts with the same effect as if all parties had signed the
same document. All counterparts shall be construed together and shall constitute
one agreement.
8.8 Attorney's Clause. If legal action is instituted to enforce
the terms of this Agreement, the prevailing parties shall be entitled to recover
from the losing parties, all costs of collection and enforcement, including
reasonable attorney's fees. For purposes of this section, the award and recovery
of attorney's fees shall survive the entry of any judgment thereon and shall
include, without limitation, fees incurred in the following: (1) Post Judgment
Motions; (2) Contempt Proceedings; (3) Garnishment, levy, debtor and third party
examinations; (4) Discovery; (5) Bankruptcy proceedings or other litigation; and
(6) appeals.
IN WITNESS WHEREOF, the Lenders have caused this instrument to be duly
executed as of the day and year first above written.
VESTIN MORTGAGE, INC., A NEVADA CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Its: Executive Vice President
VESTIN FUND I, LLC, A NEVADA CORPORATION
By: Vestin Mortgage, Inc., a Nevada corporation
Its: Manager
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Its: Executive Vice President
10
VESTIN FUND II, LLC, A NEVADA CORPORATION
By: Vestin Mortgage, Inc., a Nevada corporation
Its: Manager
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Its: Executive Vice President
XXXXX FINANCIAL GROUP, INC., A CALIFORNIA CORPORATION
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
Its: President
XXXXX MORTGAGE INVESTMENT FUND, A CALIFORNIA LIMITED PARTNERSHIP
By: Xxxxx Financial Group, Inc., a California corporation
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
Its President
11
EXHIBIT "A"
PARTICIPATION POOL
Original Loan Participation
Balance Interest
-------------------------------
839 Corinthians $ 7,840,000 $ 3,800,000
809 Bear Creek at Briargate $ 3,200,000 $ 1,000,000
786 Xxxxxxxx'x Harbor $ 6,100,000 $ 1,500,000
771 Malibu Apartments $ 7,700,000 $ 2,500,000
762 Malibu Bay Suites $ 13,245,000 $ 5,000,000
000 Xxxxxxxxx Xxxxxxx $ 15,150,000 $ 5,350,000
814 The Cannery $ 48,000,000 $ 18,500,000
-------------------------------
Total loans $101,235,000 $ 37,650,000
-------------------------------
Initials XXXXXXX
------- -------
This exhibit dated April 18, 2003, replaces and supercedes the previously signed
Exhibit A
