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EXHIBIT 10.1
DATE: FEBRUARY 1, 0000
XXXXXX XXXXX BANK
000 X. XXXXX XXXXXX XXXXXXX
XXXXXXXXX, XXXXXX 00000
ATTN: XXXXX X. XXXXX
VESTIN FUND II, LLC-BANK ESCROW AGREEMENT
Vestin Mortgage, Inc., a Nevada corporation, is the manager of Vestin Fund II,
LLC, a Nevada limited liability company (the "company"), the issuer and
registrant for an offering of shares of limited liability company interest of
the Company ("Shares"), under a Registration Statement on Form S-11, filed with
the Securities and Exchange Commission on December 21, 2000. The Shares will be
offered and sold by Vestin Capital, Inc., a Nevada corporation (the "Dealer
Manager") and other securities broker-dealers who participate with the Dealer
Manager in the offering of the Shares.
The terms of the offering require that the payments of the purchase price of the
first 150,000 shares sold in the offering ($1,500,000) be placed in a bank
escrow account, and this Escrow Agreement ("Agreement") sets forth the terms and
conditions under which, Silver State Bank will hold such funds (the " Required
Proceeds") as the Escrow Agent hereby appointed by the Company and the Dealer
Manager for the offering to hold and distribute the Required Proceeds.
1. Persons subscribing to purchase the Shares will be instructed by the
Dealer Manager or any participating broker-dealers to remit the purchase
price in the form of checks, drafts or money orders (herein called "
Instruments of payment") payable to the order of, or funds wired in
favor of "Silver State Bank as Escrow Agent" until such time as the
150,000 shares have been sold and the $1,500,000 received. Within one
business day after receipt of instruments of payment from the offering,
the manager will send to Silver State Bank: (a) each accepted
subscriber's name, address, number of shares purchased and purchase
price remitted (" Evidence of Subscriptions"), and (b) the instruments
of payment from such subscribers for deposit into the deposit account
entitled "Silver State Bank as escrow Agent for Vestin Fund II, LLC",
which deposit will occur within one business day after you receive such
materials. The credit to the account will be handled according to Silver
State Bank's normal deposit procedures and policies.
2. The aforesaid instruments of payment are to be promptly processed for
collection by Silver State Bank following deposit by the Manager for the
Company into the Escrow Account. The proceeds thereof are to be held in
the Escrow Account until such funds are either returned to the
subscribers in accordance with paragraph 3 hereof or otherwise disbursed
in accordance with paragraph 6 hereof. In the event any of the
instruments of payment are returned to Silver State Bank for non-payment
prior to receipt of the Required Proceeds, Silver State Bank shall
promptly notify the Manager in writing of such non-payment, and is
authorized to debit the Escrow Account in the amount of such return
payment as well as interest earned on the investment represented by such
payment, less applicable fees assessed by Silver State Bank for a
returned deposited item.
3. In the event that at the close of Silver State Bank's business on
_____________, 2001 (the "Expiration Date") you are not in receipt of
Evidence of Subscriptions, and instruments of payment dated not later
than that date (or actual wired funds), for the purchase of Shares
providing for total purchase proceeds that equal or exceed the required
Proceeds (exclusive of any funds received from subscriptions for shares
from entities which we have notified you are affiliated with the Company
or Manager and their affiliates) or in the event that instruments of
payment are returned to the Escrow Agent for non-payment and the
subtraction, to the account pursuant to paragraph 2 above reduces the
amount in the account to less than the capital required , you shall
promptly notify the Manager that such instruments of payment have not
been received by you.
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Promptly following the Expiration Date, and in any event no later than
ten business days after the Expiration Date, Silver State Bank shall
promptly return by check the funds deposited in the Escrow Account, or
shall return the instruments of payment delivered to you if such
instruments have not been processed for collection prior to such time,
directly to each subscriber at the address given by the Company.
Included in the remittance shall be a proportionate share of the income
earned in the account allocable to each subscriber's investment in
accordance with the terms and conditions specified in paragraph 7
hereof, except that in the case of subscribers who have not provided to
Silver State Bank an executed form W-9, you shall withhold thirty-one
percent (31%) of the earnings attributable to those subscribers in
accordance with IRS Regulations. In the event Silver State bank receives
an executed Form W-9 from a subscriber after you have returned such
subscriber's proceeds, net of the thirty-one percent (31%) withholding,
you shall promptly refund by your check the amount withheld to such
subscriber. Notwithstanding the foregoing, you shall not be required to
remit any payments until funds represented by such payments have been
collected by you.
In the event that the Company rejects any subscription for which Silver
State Bank has already collected funds, you will be so informed in
writing by the Manager to promptly issue a refund check to the rejected
subscriber. If the Manager rejects any subscription for which you have
not yet collected funds but have submitted the subscriber's check for
collection, you shall promptly issue a check in the amount of the
subscriber's check to the rejected subscriber after such funds clear. If
you have not yet submitted a rejected subscriber's check for collection,
you shall promptly remit the subscriber's check directly to the
subscriber.
4. Following receipt by Silver State Bank of cash and instruments of
payment (or wired funds) of the Required Proceeds prior to the
Expiration Date, you shall notify the Company in writing within five
business day when such funds have been collected through normal banking
channels and deposited in the Escrow Account.
5. Prior to the disbursement of funds deposited in the Escrow Account in
accordance with the provisions of paragraph 3 or 6 hereof, Silver State
Bank shall invest all of the funds deposited in the Escrow Account in
"Short-term Investments" (as defined below), and you are further
authorized and you agree to reinvest all earnings and interest derived
therefrom in any of the Short-term Investments specified below. In the
event that instruments of payment are returned to you for nonpayment,
you are authorized to debit the Escrow Account in accordance with
paragraph 2 hereof. Escrow Agent will have no liability for any loss of
interest or penalties assessed if a Short-term Investment is liquidated
before maturity.
"Short-term Investment" include, obligations guaranteed by, the United
States government or bank money-market accounts or certificates of
deposit of national or state banks that have deposits insured by the
Federal Deposit Insurance Corporation ( including money market accounts
and certificates of deposits of any bank acting as a depository or
custodian for any such funds, including, without limitation, such money
market accounts or certificates or instruments of Silver State Bank,
which mature on or before the Expiration Date, unless such instruments
cannot be readily sold or otherwise disposed of for cash by the
Expiration Date without any dissipation of the offering proceeds
invested.
The following securities are not permissible investments: money-market
mutual funds; corporate equity or debt securities; repurchase
agreements; banker's acceptances; commercial paper; and municipal
securities.
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6. All disbursements from the Escrow Account; except for disbursements
under the provisions of paragraph 3 hereof, shall be made by Silver
State Bank only pursuant to the provisions of this paragraph 6. Except
for disbursements authorized upon court order, you shall hold all funds
in the Escrow Account until (i) the date checks for Required Proceeds
have cleared normal banking channels after receipt by you of the
Required Proceeds, and (ii) receipt of letter instructions from the
Company directing disbursements of such funds to the Company.
In disbursing such funds, you are authorized to rely solely upon such
letter instructions which you receive from the Company whether or not
such instructions are correct, true or authentic; provided that, if in
your opinion such letter instructions from the Company are unclear, you
are authorized to rely upon the legal counsel to the Company in
distributing such funds to the effect that distribution of the funds is
authorized by the letter instructions of the Company and that
distribution of the funds in that manner is authorized by and in
compliance with such letter.
However, you shall not be required to disburse any funds attributable to
instruments of payment which have not been collected by you, provided
that you shall use your best efforts to promptly collect such funds
after your receipt of disbursement instructions from the Company in
accordance with this paragraph, and shall disburse such funds in
compliance with the disbursement instructions from the Company.
7. In the event the offering of Shares terminates prior to receipt of the
Required Proceeds, income earned on subscription proceeds deposited in
the Escrow Account ("Gross Escrow Income") minus the total escrow
expenses ("Net Escrow Income") shall be remitted to subscribers in
compliance with paragraph 3. Each subscriber's pro rata portion of Net
Escrow Income shall be determined as follows: The total amount of Net
Escrow Income shall be multiplied by a fraction, the numerator of which
is determined by multiplying the number of Shares purchased by said
subscriber times the number of days said subscriber's proceeds are
invested prior to termination of the offering, and the denominator of
which is the total of the numerators for all such subscribers.
Notwithstanding the foregoing, escrow expenses may be deducted from the
Escrow Account only to the extent of Gross Escrow Income, and the
Manager shall reimburse the Escrow Agent for any escrow expenses in
excess of such amount. Silver State Bank shall promptly remit all such
Net Escrow Income in accordance with paragraph 3.
8. As compensation for serving as Escrow Agent hereunder, Silver State Bank
shall receive a fee, as set forth on Schedule A attached hereto.
9. Silver State Bank, in performing any of its duties hereunder, shall not
incur any liability to anyone for any damages, losses or expenses,
except for willful default, breach of trust, or gross negligence, and
accordingly you shall not incur any such liability with respect to any
action taken or omitted (1) in good faith upon advice of your counsel
given with respect to any question relating to your duties and
responsibilities under this Agreement, or (2) in reliance upon any
instrument, including any written instrument or instruction provided for
in this Agreement, not only as to its due execution and validity and
effectiveness of its provisions but also as to the truth and accuracy of
information contained therein, which you shall in good faith believe to
be genuine, and (3) to have been signed or presented by a proper person
or persons and to conform to the provisions of this Agreement. You have
no duty under this Agreement to ascertain or assure that the Company
shall be in compliance with the terms and conditions of the offering of
the Shares.
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10. Company covenants to defend and indemnify Silver State Bank as Escrow
Agent, its directors, officers, employees and agents harmless from any
and all losses, liabilities, claims, damages, costs or expenses
(including without limitation reasonable attorney's fees and
disbursements) suffered or incurred by it arising out of or in
connection with Escrow Agent's status as a party to and in the
administration of this Agreement (including but not limited to the costs
and expenses of defending against any claim of liability in connection
therewith), or in connection with Escrow Agent's performance (excluding
breach of trust, gross negligence or willful misconduct) of any of the
obligations hereunder, or Escrow Agent's action pursuant to any
instruction received by Escrow Agent from any party hereto reasonably
believed by Escrow Agent to have been properly given hereunder, without
the necessity of making any investigation with respect thereto. Escrow
Agent shall not be required to defend legal proceedings which may be
instituted against it with respect to the subject matter of this
Agreement or any written instructions, unless requested to do so by
Company and indemnified to Escrow Agent's satisfaction against the cost
and expense of such defense. Escrow Agent shall not be requested to
institute legal proceedings of any kind.
11. In the event of a dispute between the parties hereto or between any
person or persons who have subscribed for Shares and delivered an
instrument of payment therefor and the Company, the Manager, the Dealer
Manager, or any participating broker-dealer sufficient in Silver State
Bank's discretion to justify doing so, you shall be entitled to tender
into the registry or custody of any court of competent jurisdiction of
the State of Nevada all money or property in your hands under this
Agreement, together with such legal pleadings as you deem appropriate,
and thereupon be discharged from all further duties and liabilities
under this agreement.
In the event of any uncertainty as to Silver State Banks duties
hereunder, you may refuse to act under the provisions of this Agreement
pending order of such court of competent jurisdiction and you shall have
no liability to the Company or to any other person as a result of such
action. Any such legal action may be brought in such court as you shall
determine to have jurisdiction thereof. The filing of any such legal
proceedings shall not deprive you of your compensation earned prior to
such filing.
12. All written notices and letters required hereunder to you shall only be
effective if delivered personally or by certified mail, return receipt
requested to Silver State Bank, 000 X. Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxx 00000, Attn: Xxxxx Xxxxx. All written notices and letters
required hereunder to the Company or the Dealer Manager shall only be
effective if delivered personally or by certified mail, return receipt
requested to Vestin Mortgage, Inc., Xxxxxxx X. Xxxxx, President, 0000 Xx
Xxxxxx Xxx., Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000.
13. This Agreement shall be governed by the laws of the State of Nevada as
to both interpretation and performance.
14. The provisions of this Agreement shall be binding upon the legal
representatives, heirs, successors and assigns of the parties hereto.
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15. The Company hereby acknowledges that Silver State Bank is serving as
Escrow Agent only for the limited purposes herein set forth, and hereby
agrees that it will not represent or imply that you, by serving as
Escrow Agent hereunder or otherwise, have investigated the desirability
or advisability of investment in the Company, or have approved, endorsed
or passed upon the merits of the Shares or the Company. The Company
further agrees to instruct the Dealer Manager, and each of its
representatives, and any other representatives who may offer Shares to
persons from time to time, that they shall not represent or imply that
you have investigated the desirability or advisability of investment in
the Company, or have approved, endorsed or passed upon the merits of the
Shares or the Company, nor shall they use your name in any manner
whatsoever in connection with the offer or sale of the Shares other than
by acknowledgment that you have agreed to serve as Escrow Agent for the
limited purposes herein set forth.
16. This Agreement and any amendment hereto may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed to be
an original.
17. In the event that Silver State Bank receives instruments of payment (or
wired funds) after the Required Proceeds have been received and the
proceeds of the Escrow Account have been distributed to the Company, you
are hereby authorized to deposit such instruments of payment to any
deposit account as directed by the Company. The application of said
funds into a deposit account directed by the Company shall be a full
acquittance to you and you shall not be responsible for the application
of said funds.
18. Silver State Bank as the Escrow Agent shall be bound only by the terms
of this Escrow Agreement and shall not be bound or incur any liability
with respect to any other agreements or understanding between any other
parties, whether or not the Escrow Agent has knowledge of any such
agreements or understandings.
19. Indemnification provisions set forth herein shall survive the
termination of this Agreement.
20. Upon acceptance and distribution of the Required Proceeds, this Escrow
Agreement shall terminate and the Escrow Agent shall have no further
responsibility or liability with regard to the terms of this Agreement.
21. The Escrow Agent has no responsibility for accepting, rejecting or
approving subscriptions.
22. This Agreement shall not be modified, revoked, released or terminated
unless reduced to writing and signed by all parties hereto, subject to
the following paragraph.
Should at any time, any attempt be made to modify this Agreement in a
manner that would increase the duties and responsibilities of the Escrow
Agent or to modify this Agreement in any manner which the Escrow Agent
shall deem undesirable, or at any other time, the Escrow Agent may
resign by notifying the Company in writing, by certified mail, and until
(i) the acceptance by a successor escrow agent as shall be appointed by
the Company; or (ii) thirty (30) days following the date upon which
notice was mailed, whichever occurs sooner, the Escrow Agent's only
remaining obligation shall be to perform its duties hereunder in
accordance with the terms of the Agreement.
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23. The Escrow Agent may resign at any time from its obligations under this
Escrow Agreement by providing written notice to the Company. Such
resignation shall be effective on the date specified in such notice,
which shall be not less than thirty (30) days after such written notice
has been given. The Escrow Agent shall have no responsibility for the
appointment of a successor escrow agent. The Company shall within 20
days designate a successor agent, the Escrow Agent shall promptly
deliver all funds to the successor agent. Unless otherwise provided in
this Agreement, final termination of this Escrow Agreement shall occur
on the date all funds held in the Escrow Account are distributed either
(a) to the Company pursuant to paragraph 6 hereof, (b) to subscribers
pursuant to paragraphs 3 and 7 hereof, or (c) upon delivery of all funds
to a successor agent as described herein. The Company shall give notice
of the name and address of the successor agent to each subscriber.
24. The Escrow Agent may be removed for cause by the Company by written
notice to the Escrow Agent effective on the date specified in such
notice. The removal of the Escrow Agent shall not derive the Escrow
Agent of its compensation earned prior to such removal.
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Agreed to as of the 1st day of February, 2001
VESTIN FUND II, LLC,
A Nevada limited liability company
By: Vestin Mortgage, Inc. (Manager)
Attest: A Nevada corporation
By: By:
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Name: Xxxxxxx Xxxxxxxxx Name: Xxxxx Xxxxx
Title: Chief Executive Officer
Agreed to as of the 1st day of February, 2001
VESTIN , INC.,
Attest: A Nevada corportation
(Dealer Manager)
By: By:
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Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President
The terms and conditions contained above are hereby accepted and agreed to as of
the ____ day of ______________, 2001 by:
Silver State Bank,
Attest: A Nevada State Bank
By: By:
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Name: Name:
Title:
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Schedule A
to Bank Escrow Agreement
Fees subject to Silver State Bank's Master Disclosure Statement dated February
1, 2001. Fees may be waived if earnings credits exceed monthly expenses on the
account. This is determined by Account Analysis.
In addition, in the event that Silver State Bank is directed to refund a
subscribers funds, a fee of $25 per subscriber will be charged.
