EXHIBIT 10.1
VESTIN FUND III, LLC
BANK ESCROW AGREEMENT
Vestin Mortgage, Inc., a Nevada corporation, is the manager of Vestin Fund III,
LLC, a Nevada limited liability company (the "Company"). The Company is an
issuer and registrant for an offering of shares of limited liability company
interest (the "Shares") under a Registration Statement on Form S-11, filed with
the Securities and Exchange Commission on __, 2003. 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 1,000,000 shares sold in the offering ($10,000,000) be placed in a bank
escrow account. This Escrow Agreement ("Agreement") sets forth the terms and
conditions under which, X.X.Xxxx National Association (referred to herein as "US
Bank" or "you" or "Your" will hold such funds (the "Required Proceeds") as the
Escrow Agent who is 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 "US Bank as Escrow Agent" until such time as the 1,000,000 shares have
been sold and the $10,000,000 received. By noon of the next business day
after receipt of instruments of payment from the offering, the Manager
will send to US 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 "US Bank as Escrow Agent for
RE Investments III, LLC", which deposit will occur within one business day
after you receive such materials. The credit to the account will be
handled according to US Bank's normal deposit procedures and policies.
2. The aforesaid instruments of payment are to be promptly processed for
collection by US 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 US Bank for non-payment prior to receipt of the Required
Proceeds, US 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 US Bank for
a returned deposited item.
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3. In the event that at the close of US Bank's business on __________, 2003
(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.
Promptly following the Expiration Date, and in any event no later than ten
business days after the Expiration Date, US 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 US 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 US 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 US 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 US 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.
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5. Prior to the disbursement of funds deposited in the Escrow Account in
accordance with the provisions of paragraph 3 or 6 hereof, US Bank shall
invest all of the funds deposited in the Escrow Account only in
investments permissible under SEC Rule 15c2-4(as defined below), and you
are further authorized and you agree to reinvest all earnings and interest
derived therefrom in any of the 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 an investment is liquidated before maturity.
"Authorized Investments" represents any bank account, including savings
accounts, 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 US 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.
6. All disbursements from the Escrow Account, except for disbursements under
the provisions of paragraph 3 hereof, shall be made by US 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.
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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 ("Escrow Income") shall be remitted to subscribers, without
any deductions for escrow expenses, in compliance with paragraph 3. Each
subscriber's pro rata portion of Escrow Income shall be determined as
follows: The total amount of 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. US Bank shall promptly remit all such Escrow Income in
accordance with paragraph 3.
8. As compensation for serving as Escrow Agent hereunder, US Bank shall
receive a fee, as set forth on Schedule A attached hereto.
9. US 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.
10. Company covenants to defend and indemnify US 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.
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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 the
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 US 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 US 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 US Bank, 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx, Xxxxxx 00000,
Attn: Xxxxx Xxxxxxx. 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., Xxxxx May, President, 0000 Xx Xxxxxx Xxx., 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.
15. The Company hereby acknowledges that US 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.
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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 US 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. US 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 30th day of July, 2003
Vestin Fund III, LLC,
A Nevada limited liability company
By: Vestin Mortgage, Inc., a Nevada
corporation and sole manager of
RE Investments III, LLC
ATTEST:
By: By:
-------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Agreed to as of the 30th day of July, 2003
VESTIN Capital, INC.,
a Nevada corporation
(Dealer/Manager)
ATTEST:
By: By:
-------------------------------- ---------------------------------
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 ______________, 2003 by:
US Bank,
By: By:
-------------------------------- ---------------------------------
Name: Name:
Title:
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Schedule A
Bank Escrow Agreement
Fees subject to US Bank's Master Disclosure Statement dated the ____ day of
______________, 2003. 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 US Bank is directed to refund a subscribers
funds, a fee of $25 per subscriber will be charged.
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