INTERCREDITOR AGREEMENT
Exhibit
10.8
THIS
INTERCREDITOR AGREEMENT, dated as of October 13, 2006 (this “Agreement”), is
entered into by and between VESTIN MORTGAGE, INC., a Nevada corporation
(“Vestin”), VESTIN ORIGINATIONS, INC., a Nevada corporation (“Originations”),
VESTIN REALTY MORTGAGE I, Inc., a Maryland corporation (“VRM
I”), VESTIN
REALTY MORTGAGE II, Inc., a Maryland corporation (“VRM
II”) and
VESTIN FUND III, LLC, a Nevada limited liability company (“VF III”) whose
principal place of business and post office address is 0000 Xxxx Xxxxxx Xxxx,
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. |
VRM
I is a publicly traded Mortgage REIT that provides financing secured
by
deeds of trust or mortgages on real
property.
|
| B. |
VRM
II is a publicly traded Mortgage REIT that provides financing secured
by
deeds of trust or mortgages on real
property.
|
| C. |
Vestin
Fund III is a SEC registered direct participation program that provides
financing secured by deeds of trust or mortgages on real
property.
|
| X. |
XXXXXX
is a duly formed Nevada corporation, and is responsible for the daily
operations of VRM I and VRM II and is the Manager of VF
III.
|
| E. |
Originations
is a licensed Mortgage Broker that arranges loans for the benefit
of VRM
I, VRM II, VF III and other commercial real estate
lenders.
|
| 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 have agreed to fund
a
$20,000,000.00 portion of a $31,250,000.00 loan to Cliff Shadows
Properties, LLC, a Nevada limited liability company, a loan originated
by
Originations.
|
| 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
and to
define the priority of payment for all of the proceeds from the assigned
participation in the loan.
|
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, Originations, Vestin, VRM 1, VRM II, VF III, 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:
“Agreement”
shall mean this lntercreditor 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.
“Borrowers”
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 the rate of interest paid to Xxxxx Financial or Xxxxx Mortgage
Investment Fund for their “Participation Interest” in the “Loan”. This rate
shall be a fixed rate of Eleven Percent (11.0%) for the duration of the
Loan.
“Late
Charges” shall mean the late charges and or default rate charged to Borrowers in
the event of default or late payments under the “Loan Documents”.
“Lead
Lender and Lead Lenders” shall mean Originations, Vestin, VRM I, VRM II, VF III
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 note.
“Loan”
shall mean the note, and all of the documents and agreements that evidence
and
secure the debt of the “Borrowers”.
“Priority
of Payment” shall mean the order in which payments are made to the
“Lead
Lender” and to the “Lender”.
“Participation
Interest” shall signify amount in dollars of the “Assignment” owned by Xxxxx
Financial and Xxxxx Mortgage Investment Fund in the “Loan”.
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 Documents by the Lead Lenders,
and the payment of the Participation Interest by Lenders to the 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.
(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.
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 Loan.
2.4
Reliance
on Lead Lenders.
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.
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 agreed 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.
(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 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.
(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, Lead Lenders shall
have
the right to make decisions in connection with the day-to-day administration
and
servicing of the Loan, relating to inspections, review of financial data,
and
other matters of an ordinary nature involved in the administration and servicing
of the Loan, 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
(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 for 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 portion of principal of the Loan provided by Xxxxx Financial
and
Xxxxx Mortgage Investment Fund (ii) next to pay any accrued or outstanding
interest due Lenders at the agreed Interest Rate (iii) next to that portion
of
the principal of the Loan provided by Originations, VRM I, VRM II and VF
III. In
the event of default under the Loan Documents: (I) Originations, VRM I, VRM
II
and VF III agree to purchase the Participation Interest of Xxxxx Financial
and
Xxxxx Mortgage Investment Fund for the outstanding balance of that Participation
Interest plus any accrued interest; and (ii) Originations, VRM I, VRM Il
and VF
III shall not be entitled to receive any payment of their Pro Rata Share
of the
principal of the Loan in question until Xxxxx Financial and Xxxxx Mortgage
Investment Fund has received payment of its Participation Interest of the
principal of the Loan and all accrued interest, late charges, default interest,
and any other charges 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 fund a 64.0% Participation Interest in a $31,250,000.00
Loan. The Loan carries an interest rate of 12.0% and pays monthly interest
only
payments. Lenders and Lead Lenders would receive the following, provided
however, that any reduction of the principal balance of the Loan through
partial
payoffs shall reduce proportionately the amounts shown in the examples
below.
Example
1:
Borrowers make a monthly payment of $312,500.00. Lenders are paid their full
share of interest at 11.0% on $20,000,000.00 or $183,333.33. Lead Lenders
receive $129,166.67
or
the
balance of the interest paid.
Example
2:
Borrowers make a monthly payment of $250,000.00. Lenders are paid their full
share of interest at 11.0% on $20,000,000.00 or $183,333.33. Lead Lenders
receive $66,666.67, 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 pay to Lenders the full share
of
interest at 11.0% on $20,000,000.00 or $183,333.33. At this point Lead Lender
may buy Lender out of the loan for $20,000,000.00, plus any accrued
interest.
Example 4:
Borrowers payoff a portion of the Loan. Lenders are paid their Pro Rata Share
of
the principal balance of the Participation Interest and interest due under
the
terms of the Loan to the date of the partial 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 unpaid interest due under
the
terms of the Loan.
3.3
Defaults
Under Loan Documents; Enforcement of Remedies.
If
foreclosure or similar proceedings are commenced under the Loan Documents,
Lead
Lenders 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. RESIGNATION OR REMOVAL OF LEAD LENDER
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 the terms of this Agreement, or
(ii) fraud committed against Borrowers or Lenders, or (iii) criminal acts
committed against Borrowers or Lenders. Upon any such removal, the Lenders
shall
have the right to appoint a successor Lead Lender.
SECTION
5. TERMINATION OF AGREEMENT
Upon
final payment in full of the Loan 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
Originations,
Vestin, VRM I, VRM 11 and VF III 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 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 lender, and
Lender, as borrower. 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
Heading.
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
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 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 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.
8.9
Loan
Fees, Extension Fees, Late Charges. Default Interest, Etc.
At the
close of escrow, Lead Lender and/or Lead Lenders shall pay to Xxxxx Financial,
a
loan fee of $400,000.00 (2.0% of the face amount of the Note). In addition,
if
Lender and/or Lenders have not been paid in full by December 31, 2006, then
Lead
Lender and/or Lead Lenders shall pay to Xxxxx Financial an additional loan
fee
equal to 1% of the outstanding principal balance of Lender’s/Lenders’
Participation Interest in the Xxxx. Furthermore, Xxxxx Mortgage Investment
Fund
and/or Xxxxx Financial Group shall be entitled to their pro rate share of
any
extension fees, late charges, interest on advances, default interest, etc.
collected by Lead Lender and/or Lead Lenders under the terms of the
Note.
(END
OF
TEXT, CONTINUED ON NEXT PAGE]
IN
WITNESS WHEREOF, the Lenders have caused this instrument to be duly executed
as
of the day and year first above written.
|
VESTIN
ORIGINATIONS, INC.,
|
VESTIN
MORTGAGE, INC.,
|
|||
|
a
Nevada corporation
|
a
Nevada corporation
|
|||
|
By:
|
By:
|
|||
|
Xxxxxxx
X. Xxxxxxx
|
Xxxxxxx
X. Xxxxxxx
|
|||
|
President
|
President
|
|||
|
VESTIN
FUND I, LLC
|
VESTIN
FUND II, LLC
|
|||
|
a
Nevada corporation
|
a
Nevada corporation
|
|||
|
By:
|
Vestin
Mortgage, Inc.,
|
By:
|
Vestin
Mortgage, Inc.,
|
|
|
a
Nevada corporation, Manager
|
a
Nevada corporation, Manager
|
|||
|
By:
|
By:
|
|||
|
Xxxxxxx
X. Xxxxxxx
|
Xxxxxxx
X. Xxxxxxx
|
|||
|
President
|
President
|
|||
|
XXXXX
FINANCIAL GROUP, INC.,
|
||||
|
a
California corporation
|
||||
|
By:
|
||||
|
Xxxxxxx
X. Xxxxx
|
||||
|
Senior
Vice President
|
||||
|
XXXXX
MORTGAGE INVESTMENTS FUND,
|
||||
|
a
California Limited Partnership
|
||||
|
By:
|
Xxxxx
Financial Group, Inc.
|
|||
|
Xxxxxxx
X. Xxxxx,
|
||||
|
Senior
Vice President
|
||||
|
By:
|
||||
|
Xxxxxxx
X. Xxxxx,
|
||||
|
Senior
Vice President
|
||||
