EXHIBIT 10.2
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (the "Agreement") is entered into as of January
23, 2004, by and among 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"), the principal place of business and post office address of which are
0000 Xx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (collectively
sometimes referred to herein as the "Assignors"), on the one hand, and XXXXX
FINANCIAL GROUP, INC., a California corporation ("Xxxxx Financial") and XXXXX
MORTGAGE INVESTMENT FUND, a California limited partnership ("Xxxxx Mortgage
Investment Fund") the principal place of business and post office address of
which are 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 (collectively
sometimes referred to herein as the "Assignees"), on the other hand, with
reference to the following:
RECITALS
A. Vestin Fund I is a direct participation program registered with the
Securities and Exchange Commission ("SEC") that provides financing secured by
deeds of trust or mortgages on real property. Vestin Fund I owns loans in the
approximate principal amount of One Hundred Million Dollars ($100,000,000.00).
B. Vestin Fund II is an SEC-registered direct participation program that
provides financing secured by deeds of trust or mortgages on real property.
Vestin Fund II owns loans in the approximate principal amount of Four Hundred
Million Dollars ($400,000,000.00).
C. Vestin Mortgage is the manager of Vestin Fund I and Vestin Fund II.
X. Xxxxx Mortgage Investment Fund is an SEC-registered public partnership
that provides financing and owns notes secured by deeds of trust and mortgages
on real property.
X. Xxxxx Financial is the general partner of Xxxxx Mortgage Investment
Fund.
F. Each of the Assignors desires to assign to the Assignees all of that
Assignor's rights and obligations with respect to those certain loans set forth
on Exhibit "A" hereto (the "Participation Pool") to the extent of the
Assignees' Participation Interest (as hereinafter defined), all upon the terms
and subject to the conditions set forth herein, and each of the Assignees
wishes to acquire and accept the assignment of such rights and to assume such
obligations from the Assignors on such terms and subject to such conditions.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions: Each of the capitalized terms used in this Agreement
shall have the respective meaning accorded to it in this Section 1:
"Agreement" shall mean this Assignment Agreement as amended, modified or
restated in accordance with the terms hereof.
"Assignees' Participation Interest" shall mean the Assignees' interest in
the Loans included in the Participation Pool and the corresponding Loan
Documents, expressed in terms of dollars or a percentage (as the case may be).
"Assignors' Participation Interest" shall mean the Assignors' interest in
the Loans included in the Participation Pool and the corresponding Loan
Documents, expressed in terms of dollars or a percentage (as the case may be).
"Assignment" shall mean the actual recorded assignment of a specific
Participation Interest in a Loan.
"Bankruptcy Proceeding" shall mean, with respect to any person or entity
("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 included in the Participation Pool.
"Collateral" shall mean, as to all of the Loans in the Participation Pool,
all of the real and personal property security that is pledged as 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, constitute an
event of default pursuant to the Loan Documents relating to any Loan in the
Participation Pool.
"Interest Rate" shall mean the rate of interest to be paid to the
Assignees with respect to the Loans in the Participation Pool. This rate shall
be a fixed rate for the portion of the term of each Loan while it has been
assigned to the Assignees and shall be set forth at the time of the Assignment
in a side letter between the Assignors and the Assignees.
"Late Charges" shall mean the late charges and or default rate charged to
Borrowers in the event of late payments or a Default under the Loan Documents.
"Loan Documents" shall mean all of the various notes, deeds of trusts,
guarantees, title polices, security agreements, loan agreements, assignment of
rents and profits and other documents and instruments evidencing a Loan
included in the Participation Pool.
"Loan" shall mean the indebtedness of each of the Borrowers owed to any of
the Assignors.
"Priority of Payment" shall mean the order in which payments are to be
made hereunder to the Assignors and to the Assignees.
"Participation Pool" shall mean those Loans more fully identified and
described on Exhibit "A" attached hereto in which the Assignees shall acquire
an interest hereunder in a principal amount of up to Twenty-Million Dollars
($20,000,000.00).
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"Substitution of Security" shall mean the exchange of one Loan in the
Participation Pool for a different Loan having an equal principal amount.
2. ASSIGNMENT AND ASSUMPTION.
2.1 ASSIGNMENT. Subject to the terms and conditions of
this Agreement, as of the Effective Date each of the Assignors hereby jointly
and severally sells, transfers and assigns to the Assignees, without
representation or warranty (except as expressly provided in this Agreement),
and the Assignees hereby purchase, assume and undertake from the Assignors: (i)
that portion of the Assignors' rights and obligations under the Loan Documents
for all of the Loans in the Participation Pool, in the amount of the Assignees'
Participation Interest as more fully set forth on Exhibit "B" to this
Agreement; and (ii) all related rights, benefits, obligations, liabilities and
indemnities of the Assignors under the Loan Documents for all of the Loans in
the Participation Pool to the extent of the Assignees' Participation Interest
therein.
2.2 ASSUMPTION. As of the Effective Date, the Assignees
shall succeed to all of the rights and assume all of the obligations of the
Assignors under the Loan Documents for all of the Loans in the Participation
Pool, but only to the extent of the Assignees' Participation Interest. Each of
the Assignees agrees that it will perform, in accordance with the terms of the
Loan Documents for all of the Loans in the Participation Pool, all of the
obligations that are required to be performed by it as a lender thereunder. It
is the intent of the parties hereto that, as of the Effective Date, the
Assignors shall relinquish all of their rights and be released from all of
their obligations under the Loan Documents for all of the Loans in the
Participation Pool to the extent that such rights have been assigned to, and
such obligations have been assumed by, the Assignees pursuant to the terms
hereof.
2.3 PARTICIPATIONS INTERESTS. After giving effect to the
assignment and assumption set forth herein, on the Effective Date, the
respective Participation Interests of the Assignors and the Assignees in all of
the Loans in the Participation Pool shall be as set forth on Exhibit "B" hereto.
3. PAYMENT BY THE ASSIGNEES. At or before 3:00 p.m., Pacific
Time, on the Effective Date, the Assignees shall pay to Vestin Mortgage, for
the benefit of all Assignors, in immediately available funds, the following
amount, for the Assignees' Participation Interest in the Loans in the
Participation Pool, pursuant in the following payment instructions:
Wire to:
Vestin Fund II, LLC, Investment Account
Account #153790381963
at US Bank ABA #000000000
4. REALLOCATION OF PAYMENTS. Any interest, fees and other
payments payable to the Assignors with respect to the Loans in the
Participation Pool that have accrued up to the Effective Date with respect to
the Assignees' Participation Interest shall be for the account of the
respective Assignors. Any such interest, fees and other payments accrued on and
after the Effective Date with respect to the Assignees' Participation Interest
shall be for the account of the Assignees. Each of the Assignors and the
Assignees agrees that it will hold in trust for the other parties any interest,
fees and other amounts which it may receive to which the other parties is
entitled pursuant to the preceding sentence and pay to that other party any
such amounts which it may receive promptly upon receipt thereof; provided, that
all payments for the account of any Assignor shall be paid to Vestin Mortgage,
for the benefit of the respective Assignor, and all payments for the account of
either Assignee shall be paid to Xxxxx Financial, for the benefit of the
respective Assignee.
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5. INDEPENDENT CREDIT DECISION: APPOINTMENT OF AGENT.
5.1 INDEPENDENT CREDIT DECISION. Each of the Assignees: (i)
acknowledges that it has received a copy of each and every one of the Loan
Documents, as well as such other documents and information as it has deemed
appropriate in order to make its own credit and legal analysis and decision to
enter into this Agreement; and (ii) agrees that it will, independently and
without reliance upon the Assignors and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit and
legal analyses and decisions in taking or not taking action under the Loan
Documents.
5.2 APPOINTMENT OF AGENT. Each of the Assignees hereby appoints and
authorizes Vestin Mortgage to act as the Assignee's agent on its behalf and to
exercise such powers under the terms of the Loan Documents as the respective
Assignor as lender is authorized to exercise by the terms thereof, together with
such other powers as are reasonably incidental thereto. Notwithstanding the
foregoing, Vestin Mortgage agrees that, so long as any portion of a Loan is
outstanding or unpaid, it shall, for the benefit of each of the Assignees:
(i) notify Xxxxx Financial, on behalf of the Assignees, by
telephone and in writing, before taking or filing any action, judicial or
otherwise, to enforce any rights or pursue any remedy under any of the Loan
Documents; and
(ii) refrain from selling any Loan in the Participation
Pool, or accepting any substitute guaranty, substitute collateral, or any other
security for any Loan in the Participation Pool, without the consent of the
Assignees; provided, that in the event that the Assignees refuse to consent to
such requested action, Vestin Mortgage may either repurchase the Assignees'
Participation Interest relating to the Loan in question for the amount of
principal and accrued interest outstanding thereunder or provide the Assignees
a Substitution of Security acceptable to Assignees, in their sole discretion.
6. EFFECTIVE DATE. The effective date for this Agreement (the "Effective
Date") shall be the date set forth as such on Exhibit "B" hereto. On or before
the Effective Date, each and every one of the following conditions precedent
shall have been satisfied in full or shall have been waived by the party or
parties for whose benefit the condition was to be satisfied:
(i) this Agreement shall have been executed by all of the
Assignors and the Assignees and delivered to each;
(ii) the representations and warranties of each of the
Assignors and the Assignees contained in this Agreement shall be true and
correct on the Effective Date as if made thereon; and
(iii) each of the Assignors and the Assignees shall have paid
all sums required to be paid by it, whether pursuant to Sections 3 and 4 hereof
or otherwise.
7. REPRESENTATIONS AND WARRANTIES.
7.1 REPRESENTATIONS OF THE ASSIGNORS. Each of the Assignors
represents and warrants to the Assignees that: (i) it is the legal and
beneficial owner of the interests being assigned by it hereunder and that such
interests are free and clear of any adverse claim or lien other than those
which it has already disclosed to the Assignees in writing; (ii) it is duly
organized and validly existing under the laws of the jurisdiction in which it
was organized and is duly qualified to do business in each jurisdiction in
which it engages in business, and it has the full power and authority
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to take, and has taken, all action necessary to execute and deliver this
Agreement and any other documents required or permitted to be executed or
delivered by it in connection with this Agreement and to fulfill its
obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Agreement
and, no further action taken by, notice to or filing with any person is
required of it for such execution, delivery or performance; (iv) this Agreement
has been duly executed and delivered by it and constitutes the legal, valid and
binding obligation of that Assignor, enforceable against that Assignor in
accordance with the terms hereof, subject (as to enforcement) to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors rights and to general equitable principles;
(v) there exists no Default under any of the Loan Documents; and (vi) it holds
all licenses that are required, and has complied with all laws and regulations
with which it must comply, in order for it lawfully to engage in the businesses
in which it is currently engaged.
7.2 Representations of the Assignees. Each of the Assignees
represents and warrants to the Assignors that: (i) it is duly organized and
validly existing under the laws of the jurisdiction in which it was organized
and is duly qualified to do business in each jurisdiction in which it engages in
business, and it has full power and authority to take, and has taken, all
actions necessary to execute and deliver this Agreement and any other documents
required or permitted to be executed or delivered by it in connection with this
Agreement to fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Agreement and no further action by, notice to or filing with any person is
required of it for such execution, delivery or performance; and (iii) this
Agreement has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of that Assignee, enforceable against that Assignee
in accordance with the terms hereof, subject (as to enforcement) to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles.
8. Additional Obligations of the Assignors.
8.1 Payment Obligations. Each of the Assignors shall
promptly pay over to Xxxxx Financial, for the benefit of the Assignees, all
amounts received by that Assignor in connection with the Assignees'
Participation Interest.
8.2 Accountings. Each of the Assignors agrees to provide to
Xxxxx Financial, for the benefit of the Assignees, upon reasonable request but
in no event more frequently than once a month, a statement of all payments
received in respect of the Loans in the Participation Pool.
8.2 Additional Information. Each of the Assignors shall
promptly provide to Xxxxx Financial, for the benefit of the Assignees, a copy
of all financial statements and reports of operating results and other
documents and information received by that Assignor in its capacity as a lender
pursuant to the Loan Documents. Each of the Assignors shall have a duty and
responsibility to provide Xxxxx Financial, for the benefit of the Assignees,
with any credit or other information concerning the affairs, financial
condition or business of any of the Borrowers which may come into the
possession of that Assignor, including financial statements, credit reports and
any other documents and information.
8.4 Recourse Against the Assignors. Each of the Assignees
shall have full recourse against any or all of the Assignors for the amounts
payable by the terms of this Agreement, whether as a result of an Assignor's
failure to comply with the terms of this Agreement, including the
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Priority of Payment or otherwise. The joint and several obligations of each
Assignor with respect to such payments shall be to remit to Xxxxx Financial,
for the benefit of the Assignees, a monthly payment based upon the Interest
Rate calculated on the Assignees' Participation Interest and the principal
amount of Assignees' Participation Interest when a Loan is paid off or matures,
all in accordance with the Agreement.
8.5 Duty of Care. Each of the Assignors will exercise the same duty
of care in administering the Loans as if the Loans were made entirely for
that Assignor's own account; provided, however, that the Assignors' liability in
this regard shall be limited to the amount of Assignees' Participation Interest
and the amount payable thereon at the Interest Rate, except for a loss due to an
Assignor's gross negligence, willful acts or misconduct, in which case the
foregoing limitation of Assignors' liability shall not apply.
9. Limitation on Liability of the Assignors.
9.1 Reliance. Each of the Assignors shall be entitled to rely upon
any certification, notice or other communication (including any thereof by
telephone, telex, telegram, cable or telecopy) reasonably believed by it to be
genuine and correct and to have been signed or sent by Xxxxx Financial on
behalf of the Assignees. Should approval of any action, any inaction or any
proposed course of conduct in administering the Loans (either before or after
the occurrence of a Default) be requested in writing by Vestin Mortgage from
the Assignees, Xxxxx Financial (on behalf of the Assignees) shall approve or
deny such request in writing and shall deliver the writing to Vestin Mortgage
within ten calendar days after receipt of the request. If Xxxxx Financial fails
to respond to such request within the specified ten calendar day period, such
failure shall not be deemed to be a consent to such request.
9.2 Further Limitation. Subject to the provisions of Section 8.4
hereof and any other provision of this Agreement to the contrary, none of the
Assignors shall have liability, either express or implied, for (i) the
collectibility of the Loans made to Borrowers under, or the enforceability of,
any of the Loan Documents; (ii) the financial condition or creditworthiness of
any of the Borrowers; (iii) any credit or other information furnished by the
Borrowers to any Assignor; or (iv) the value of any Collateral.
10. Administration of the Loans.
10.1 Administration and Servicing. In administering and servicing the
Loans, Vestin Mortgage shall act on behalf of the Assignors as to the Assignors'
Participation Interest in the Loans and Xxxxx Financial shall act as agent for
the Assignees with respect to the Assignees' Participation Interest in the
Loans. Vestin Mortgage agrees to 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 Assignees.
10.2 Duties of Vestin Mortgage. In its administering and servicing
of the Loans, Vestin Mortgage shall perform the following duties (the
enumeration of said duties not being intended to limit the duties to be
performed by Vestin Mortgage in accordance with the foregoing Section 10.1),
shall be subject to the following restrictions and shall have the following
rights:
a. Vestin Mortgage shall hold, for the benefit of the
Assignees, in its possession at its principal office, executed originals of all
of the Loan Documents for each Loan in the Participation Pool, and shall
deliver conformed copies of each thereof to Xxxxx Financial for the benefit of
the Assignees.
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b. In the event that any legal expenses or other expenses for
the preservation of the Collateral or for the enforcement of the Loans are
incurred by an Assignor in connection with the Loans on or after or in
connection with the occurrence of a Default or the enforcement of any the Loan
Documents (including fees of counsel and other expenses), the Assignors alone
shall bear and advance all such costs. Upon receipt of reimbursement for such
expenses from a Borrower or any other person, the Assignors alone shall be
entitled to retain such reimbursement. Neither of the Assignees shall be
obligated to reimburse any Assignor for any such costs.
c. Each of the Assignors 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 Xxxxx Financial, for the benefit of
the Assignees, on or before the 7th but not later than the 11th of each and
every month, a payment calculated at the Interest Rate based on the
outstanding balance of the Assignees' Participation Interest. Assignor shall pay
to Assignee a late charge of ten percent (10.00%) per annum of the payment, or
any portion thereof, not received by Assignee by the 11th of the month. Vestin
Mortgage shall concurrently provide Xxxxx Financial, for the benefit of the
Assignees, with an accounting of all monies received in connection with each
Loan as to which the Assignees hold a Participation Interest.
d. If any payment received by an Assignor and distributed or
credited to an Assignee is later rescinded or is otherwise required to be
returned by that Assignor to a Borrower for whatever reason (including, without
limitation, settlement of an alleged claim), the Assignee shall be entitled to
retain such payment so received. The covenant contained in this paragraph shall
survive the termination of this Agreement.
e. Each of the Assignors shall maintain such books and records
relating to the Loans as it would were the Loans made solely by that Assignor,
which books and records shall be made available to Xxxxx Financial, for the
benefit of the Assignees, at the Assignor'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. During the term of this Agreement, each of the Assignors
shall provide to Xxxxx Financial, for the benefit of the Assignees, complete
and current information as to the accrual status of the Loans and the status of
principal and interest payments, and all information supplied by Borrowers in
connection with the Loans. Each of the Assignees 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. No Assignor shall, without written consent of the Assignees:
(i) release, or agree to the substitution of other collateral or security for,
any portion of the Collateral; (ii) grant any release in favor of the Borrowers
under the Loan Documents, or waive its rights to enforce the obligations of
the Borrowers; (iii) agree to the revision, modification or amendment of any of
the Loan Documents; or (iv) 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 a Default under the Loan Documents and Borrowers' failure to
promptly cure same, Vestin Mortgage 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 Assignees' prior review or approval.
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h. If any Default shall occur under any of the Loans,
the Assignors shall use reasonable efforts in accordance with the Loan
Documents to cause the Borrowers, any guarantors and/or any limited guarantors
to remedy the Default.
i. If any Assignor becomes aware of any damage to or
actual or potential condemnation affecting any material portion of the
Collateral, that Assignor will promptly notify Xxxxx Financial, on behalf of
the Assignees. The proceeds of any insurance recovery or condemnation award
received by any Assignor and not immediately disbursed or applied to the
repayment of the Loan or not otherwise distributed by that Assignor shall be
deposited in an interest-bearing account, in trust for the Assignors and the
Assignees, and the income, if any, received by that Assignor from such account
and not payable to others shall be shared with the Assignees in accordance with
the terms of this Agreement and the interests of the parties.
11. Payment Priorities between the Assignors and the Assignees.
Each of the Assignors and the Assignees agrees that all payments and/or
prepayments of principal due on the Loans, received by any Assignor, shall be
held for the account of the Assignees and the Assignors as their respective
interests may appear, and such payments shall be applied in the following order
of priority: (i) first, to the payment of that portion of principal of the Loans
provided by the Assignees; (ii) second, to the payment of any accrued or
outstanding interest due either Assignee at the Interest Rate; and (iii) third,
to the payment of that portion of the principal of the Loans provided by the
Assignors. In the event of a Default under the Loan Documents, each of the
Assignors agrees to substitute an alternative Loan acceptable to the Assignees
in the Assignees' sole discretion. In the event that no acceptable alternative
Loan offered by Assignors is acceptable to Assignees, the Assignors will
purchase the Assignees' Participation Interest for the outstanding principal
balance of that Participation Interest plus any accrued interest within ten (10)
calendar days of Assignees' request. In the event of such Default under the Loan
Documents, no Assignor shall be entitled to receive any payment of its pro rata
share of the principal of the Loans in question until the Assignees have
received payment in full of their Participation Interest in the principal of the
Loans and all accrued interest, late charges, default interest and any other
charges payable to the Assignees under this Agreement.
12. Defaults Under Loan Documents:
12.1 Information. If foreclosure or similar proceedings
are commenced under the Loan Documents, the Assignors shall keep the Assignees
informed as to the progress of the proceedings.
12.2 Buy-Out Rights. If any Assignor (or a nominee
acceptable to the Assignees) shall acquire title to all or any part of the
Collateral securing a Loan, the Assignor shall, upon demand of the
Assignees, buy out the Assignees' Participation Interest in such a loan at the
sole and absolute discretion of the Assignees.
13. Repurchase Rights. Each of the Assignors will repurchase the
Assignees' Participation Interests at the Assignees' sole and absolute
discretion at any time "for cause." The term "for cause" shall be limited to
an Assignor's (i) material breach of the terms of this Agreement, (ii) fraud
committed against a Borrower or an Assignee, or (iii) criminal acts committed
against a Borrower or an Assignee.
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14. Termination of this Agreement. Upon final payment in full of
the Loans and all obligations owing to the Assignees hereunder, this Agreement
shall terminate; provided, however, if all or any part of any payments to the
Assignees 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.
15. Indemnification of the Assignees. Each of the Assignors hereby
jointly and severally indemnifies each of the Assignees for all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Assignees' or any one of them,
in any way relating to or arising out of this Agreement or the Assignees'
participation in any Loan, or by any action brought by any Borrower, including
all claims relating to the originator of the Loans, except for the gross
negligence or willful misconduct of the Assignees or the breach by the Assignees
of the terms of this Agreement.
16. Miscellaneous.
16.1 Amendments. Any amendment or waiver of any provision
of this Agreement shall be in writing, signed by the parties hereto. No failure
or delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, and any waiver of any breach of the
provisions of this Agreement shall be without prejudice to any rights with
respect to any other or further breach thereof.
16.2 No Set-Off. All payments made hereunder shall be made
without any set-off or counterclaim.
16.3 Costs and Expenses. Each of the Assignors and the
Assignees shall pay its own costs and expenses incurred in connection with the
negotiation, preparation and execution of this Agreement.
16.4 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which when taken together shall be deemed to constitute one and the same
instrument.
16.5 Further Assurances. Each of the Assignors and the
Assignees hereby agrees to execute and deliver such other instruments, and take
such other actions, as any other party may reasonably request of it, including
the delivery of any notices or other documents or instruments to any Borrower
which may be required in connection with the assignment and assumption
contemplated hereby.
16.6 Choice of Law; Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, without regard to the conflicts of laws principles thereof. Any
dispute arising hereunder shall be heard by a court of competent jurisdiction
sitting in Contra Costa County, California.
16.7 Attorneys' Fees and Costs. In the event that a
dispute arises among the parties with respect to this Agreement or the
respective rights and obligations of the parties hereunder, the prevailing
party shall be awarded in costs and all attorneys' fees incurred by it in
connection with such dispute.
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16.8 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES ANY
RIGHT IT MIGHT HAVE TO REQUIRE A DISPUTE HEREUNDER TO BE HEARD BY A JURY.
16.9 TIME. Time of the essence with respect to the performance by
each party hereto of its respective obligations hereunder.
16.10. NOTICES. All notices shall be given in writing, to the
address of the party to be notified as set forth in the Preamble hereof.
[Execution Page Follows Immediately]
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IN WITNESS WHEREOF, each of the Assignors and the Assignees has caused
this Agreement to be executed and delivered by its duly authorized
representative as of the Effective Date.
VESTIN MORTGAGE, INC. XXXXX FINANCIAL GROUP, INC.
a Nevada corporation a California corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ [ILLEGIBLE]
--------------------------------- --------------------------------
Xxxxxx X. Xxxxxx Its Senior Vice President
Its: Senior Vice President --------------------------------
VESTIN FUND I, LLC, By: /s/ [ILLEGIBLE]
a Nevada limited liability company --------------------------------
Its President
By: Vestin Mortgage, Inc., a --------------------------------
Nevada corporation, Manager
By: /s/ Xxxxxx X. Xxxxxx XXXXX MORTGAGE INVESTMENT FUND,
--------------------------------- a California corporation
Xxxxxx X. Xxxxxx
Its: Senior Vice President
BY XXXXX FINANCIAL GROUP, INC.
a California corporation
VESTIN FUND II, LLC, ITS: General Partner
a Nevada corporation
By: Vestin Mortgage, Inc., a
Nevada corporation, Manager
By: /s/ [ILLEGIBLE]
--------------------------------
By: /s/ Xxxxxx X. Xxxxxx Its Senior Vice President
--------------------------------- --------------------------------
Xxxxxx X. Xxxxxx
Its: Senior Vice President
By: /s/ [ILLEGIBLE]
--------------------------------
Its President
--------------------------------
11
EXHIBIT A
LOANS COMPRISING
THE PARTICIPATION POOL
VESTIN LOAN NAME OF LOAN
NUMBER BORROWER AMOUNT
-------------------------------------------------------------------------------
Loan #000-00-00 Red Mountain Resorts $3,500,000.00
Loan #000-00-00 Emerald Suites Bonanza $6,800,000.00
Loan #000-00-00 Presidio Kauai $23,000,000.00*
* Incrementally funded loan. Figure indicated reflects total loan amount. Amount
funded to date is $14,781,272.00.
EXHIBIT B
PART I
Participations
Red Mountain Resorts
--------------------
Assignors: 42.85%
Assignees: 57.15%
Emerald Suites
--------------
Assignors: 41.17%
Assignees: 58.83%
Presidio Kauai
--------------
Assignors: 69.56%
Assignees: 30.44%
(Incrementally funded loan - figures indicated are based on loan as fully
funded. Actual amount after the agreement will be 52.65% Assignor / 47.35%
Assignee based on a principal balance of $14,781,272,00)
Advances Before Agreement
-------------------------
Assignors:
Red Mountain $3,500,000.00
Emerald Suites $6,800,000.00
Presidio Kauai $23,000,000.00 (Incrementally funded loan. Figure indicated
reflects total loan amount. Amount funded to date
is $14,781,272.00)
Assignees:
Red Mountain $0.00
Emerald Suites $0.00
Presidio Kauai $0.00
Advances After Agreement
------------------------
Assignors:
Red Mountain $1,500,000.00
Emerald Suites $2,800,000.00
Presidio Kauai $16,000,000.00 (Incrementally funded loan. Figure indicated
is based on the total loan amount. Assignor's actual balance
after agreement will be $7,781,272 based on a principal
balance of $14,781,272.00)
Assignees:
Red Mountain $2,000,000.00
Emerald Suites $4,000,000.00
Presidio Kauai $7,000,000.00
PART 2
Assignee: XXXXX FINANCIAL GROUP, INC., a
California corporation and
XXXXX MORTGAGE INVESTMENT FUND, a
California limited partnership
Lending Office: 0000 Xxxxxxx Xxxx., Xxxxxx Xxxxx, XX 00000
Address for Notices: c/o Xxxxxxx X. Xxxxx, Senior Vice President
0000 Xxxxxxx Xxxx./ X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
With a copy to Lender's Counsel:
Law Office of A. Xxxx Xxxxxxxx
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Wiring Instructions:
CALIFORNIA BANK & TRUST
COMMERCIAL BANKING DIVISION
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
ABA #000000000
Account #017002445-70
Xxxxx Financial Group General Account
PART 3
Effective Date: January 23, 2004
