EXHIBIT 10.7
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT"), made as of this 1st day of
August, 2004, by and between LUKE PROPERTIES, LLC, a Nevada limited liability
company (hereinafter referred to as "SELLER"), and VESTIN FUND III, LLC, a
Nevada limited liability company (hereinafter referred to as "PURCHASER").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and other good
and valuable consideration, receipt of which is hereby acknowledged, it is
agreed by and between the parties hereto as follows:
1. Agreement; the Property. Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, the Property, as hereinafter
defined, located at 0000 X. Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 and commonly
known as the "Vestin Building"; upon the terms and conditions hereinafter stated
in this Agreement. As used herein, the term "Property" means, and shall be
deemed to include the real estate described on Exhibit "A" attached hereto and
made a part hereof, together with all tenements, hereditaments, personal
property, privileges and appurtenances thereunto belonging or in any way
appertaining thereto.
2. Purchase Price. The purchase price to be paid for the Property shall be
Nine Million Nine Hundred Thousand Dollars ($9,900,000.00) (the "PURCHASE
PRICE").
3. Payment of Purchase Price. The Purchase Price, less the Deposit, as
hereinafter defined, and plus or minus the net of those adjustments, prorations
and credits hereinafter provided, shall be paid simultaneously with the
conveyance of the Property to Purchaser (the "CLOSING") by certified funds or
federal wire transfer, at Purchaser's option.
4. Adjustments. Prorations and Credits. The Purchase Price shall be
adjusted by the following adjustments, prorations and credits which shall be
computed in the following manner:
A. All real and personal property taxes and assessments (general
or special) which have become a lien on the Property and all
assessments (general or special) arising out of or in
connection with any assessment district created or confirmed
prior to the date hereof shall be prorated to the Closing
Date. All current taxes shall be prorated and adjusted as of
the Closing Date in accordance with the standard practice for
prorating taxes in Xxxxx County, Nevada.
B. No proration shall be made for water, sewer, electricity, gas
or other public utilities, if any, if the respective utility
company is able to xxxx separately for the amount of its
service consumed through the morning of
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the Closing Date. In such event Seller shall pay the bills
rendered for such utilities consumed to the morning of the
Closing Date upon receipt thereof. For utilities that cannot
be determined prior to Closing, a suitable reserve, based on
estimates of normal expenditures for such items, shall be held
by Title Company as hereinafter defined. As soon as
practicable following the Closing, Purchaser shall obtain
bills for the unprorated utilities, and such utility bills
shall be adjusted and prorated to the Closing Date, and the
reserve shall be disbursed by Title Company in accordance with
such prorations.
C. Federal, state and local documentary stamps which are required
to be affixed to the instrument of conveyance, or taxes or
fees imposed or assessed on the instrument of conveyance shall
be paid by Seller. Purchaser shall pay for (i) recording of
the deed; (ii) Title Company's escrow closing fees; and (iii)
its owner's policy of title insurance. Each party shall pay
their respective attorney's fees. Any other prorations which
are not specifically addressed in this Agreement shall be
prorated in accordance with the standard practice in Xxxxx
County, Nevada.
If after the Closing, either Seller or Purchaser discovers any
inaccuracies or errors in adjustments, prorations or credits computed at the
Closing or at the re-computation, Seller and Purchaser shall each take such
action and pay such sums as may be necessary so that the said adjustments,
prorations and credits shall be in accordance with the terms of this Agreement,
and the obligations of either party to take any such actions and pay any such
amounts shall survive the Closing until the first anniversary of the Closing
Date.
5. Deposit. Within three (3) Business Days after the Effective Date
Purchaser shall deliver the sum of Fifty Thousand Dollars ($50,000.00) (the
"DEPOSIT") with Equity Title Company ("TITLE COMPANY") to be held in escrow in a
money market type bank account pursuant to an Escrow Agreement to be prepared by
Title Company and entered into by and among Seller, Purchaser and Title Company
upon opening of Escrow as set forth below. Purchaser shall be entitled to a
refund of the Deposit and all interest accrued on the Deposit: (i) if, by the
end of the expiration of the Inspection Period, as hereinafter defined,
Purchaser elects, for any reason, not to proceed to purchase the Property, (ii)
if, after the Inspection Period, Seller is unable to convey to Purchaser fee
simple title to the Property, subject only to the Permitted Exceptions, as
defined in Paragraph 8 of this Agreement, or (iii) if Seller fails to consummate
the Closing for any reason other than for Purchaser's default under this
Agreement.
In the event that Purchaser gives notice of its election to proceed
at the end of the Inspection Period, the Deposit shall be non-refundable except
upon the occurrence of any of the following: (w) if any event shall have
occurred which causes any of the representations or warranties set forth in
Paragraph 13 of this Agreement to be materially untrue or incorrect prior to the
Closing, (x) if, after the Inspection Period, Seller is unable to convey to
Purchaser fee simple title to the Property, subject only to the Permitted
Exceptions, as defined in Paragraph 8 of this Agreement, or (y) if Seller fails
to consummate the Closing for any reason other than for Purchaser's default
under this Agreement.
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In the event Purchaser consummates the transaction contemplated
hereby, the Deposit and all interest accrued on the Deposit shall be applied to
the Purchase Price. Subject to the terms and conditions set forth in Paragraph
9, in the event Purchaser fails to consummate the transaction contemplated
hereby through no fault of Seller, the Deposit, plus the accrued interest,
shall, as Seller's sole and exclusive remedy, be forfeited to Seller as
liquidated damages.
Any and all sums deposited pursuant to this Paragraph shall be
applied or refunded as provided herein.
The purchase and sale of the Property shall be consummated through
an escrow (the "ESCROW") to be established with Title Company. The Escrow shall
be opened within three (3) Business Days following the Effective Date by
delivery to Title Company of: (i) from either Seller or Purchaser, a copy of
this Agreement executed by Seller and Purchaser, and (ii) from Purchaser, the
Deposit Seller and Purchaser agree to execute and deliver to Title Company such
additional and supplemental instructions as Title Company may reasonably require
to clarify Title Company's duties under this Agreement or the Escrow Agreement.
Absent a clear written expression signed by Seller and Purchaser that Seller and
Purchaser intend to change a provision in this Agreement, if a conflict or
inconsistency exists between this Agreement and the Escrow Agreement or any
additional or supplemental instructions delivered to Title Company, the terms of
this Agreement shall prevail.
6. Title. Seller shall convey to Purchaser fee simple title to the
Property, subject only to the Permitted Exceptions.
7. Evidence of Title. Seller hereby agrees to furnish to Purchaser, at
Seller's expense, no later than five (5) days after the date hereof, a report of
title issued by Title Company (the "TITLE REPORT"). At Closing, Purchaser, not
Seller, shall be obligated to pay to Title Company the entire amount of the
premium payable for an owner's title insurance policy, with standard exceptions,
and subject only to the Permitted Exceptions, in the amount of the Purchase
Price, naming Purchaser as the insured (the "TITLE POLICY").
8. Objections to Title. For purposes of this Agreement, the term
"Permitted Exceptions" means those exceptions set forth in the Title Report
which are not objected to by Purchaser pursuant to this Paragraph 8. In the
event the Title Report contains any exceptions to title, Purchaser shall have
five (5) days from and after its receipt of the Title Report to approve or
object to the condition of title disclosed in the Title Report. Purchaser's
approval of any such exceptions to title which are not Permitted Exceptions
shall be a condition precedent to Purchaser's obligation to close the
transaction contemplated by this Agreement, which condition Purchaser reserves
the right to waive. If objection to the title is made, that title is not in the
condition required for performance hereunder for reason other than any lien,
judgment, debt, security interest or other lien, financial encumbrance or
obligation in a liquidated amount, Purchaser shall give Seller five (5) days
from the date it is notified in writing of the particular defects claimed,
either, as Seller shall elect, (i) to remedy the title, or (ii) to obtain title
insurance as required above, or (iii) to decline to remedy the title or obtain
title insurance as required above, or, if Purchaser has not elected to waive
such defect, the Deposit, plus accrued interest, shall be refunded forthwith in
full termination of this Agreement. Provided all other conditions
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precedent set forth in Paragraph 9 of this Agreement have been met to
Purchaser's satisfaction or have been waived by Purchaser, if Seller remedies
the title or obtains a Title Report acceptable to Purchaser within the time
specified, Purchaser agrees to complete the sale, and if Seller is unable to
remedy the title or obtain title insurance within the time specified, the
Deposit, plus accrued interest, shall be refunded forthwith in full termination
of this Agreement. Purchaser shall have the right to notify Title Company of any
matters materially affecting the title to the Property which have not been
disclosed by the Title Report after reviewing same with Seller and permitting
Seller the opportunity to cure or dispose of same. In the event such matters, in
the opinion of Purchaser, adversely affect the title to the Property, Purchaser
shall have the right to object to the condition of the title as provided herein.
Further, if the state and quality of the title to the Property on the Closing
Date are not acceptable to Purchaser for reason of any lien, judgment, debt,
security interest or other lien, financial encumbrance or obligation in a
liquidated amount, after notice of the defect has been timely given as to any
items objected to on the Title Report initially delivered or as revised or
updated at Closing and Seller has had the opportunity to cure same, the
transaction contemplated hereunder may be consummated by (i) Seller making
payment in full or other complete satisfaction of any aforesaid obligation and
providing evidence to Purchaser of such payment or satisfaction in form and
substance satisfactory to Purchaser at Closing, or (ii) Purchaser's application
of a cash portion of the Purchase Price necessary, as determined by Purchaser in
its reasonable discretion, to discharge this obligation of Seller.
9. Conditions Precedent. Seller and Purchaser hereby agree that this
Agreement and all obligations hereunder are subject to and conditioned upon the
occurrence of all of the following conditions precedent to the sale prior to the
expiration of the Inspection Period, as hereinafter defined; provided, however,
that Purchaser, at its sole option, may waive all or any part of said conditions
precedent. The conditions precedent are:
A. Purchaser's satisfaction with the physical condition of the
Property. Purchaser's investigation may include, at
Purchaser's option: physical inspections of the Property and
all improvements thereon, including geological and other
tests, environmental audit, testing for Hazardous Substances,
as hereinafter defined, and review of all governmental matters
affecting the Property. Purchaser and/or its agents shall have
the right at all reasonable times, to conduct physical
inspections of the Property. Upon Purchaser's request, Seller,
or its employees or agents will arrange for physical
inspections of the Property by Purchaser, and/or its agents,
and give Purchaser and/or its agents access to all areas of
the Property. Purchaser's right of physical inspection of the
Property shall expire at midnight on the tenth (10th) day
after the Effective Date (said period from the Effective Date
to midnight on the tenth (10th) day after the Effective Date
is hereinafter referred to as the "INSPECTION PERIOD"). Prior
to the expiration of the Inspection Period, Purchaser shall
have the right to terminate this Agreement, and shall be
entitled to a full refund of its Deposit, if the results of
Purchaser's physical inspection of the Property are not
satisfactory to Purchaser. In the event that Purchaser gives
notice of its election to proceed, the parties shall proceed
to Closing in accordance with the terms hereof. In the event
that Purchaser gives Seller
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notice of Purchaser's election not to proceed, this Agreement
shall terminate and become null and void, and Purchaser shall
thereupon receive a full refund of its Deposit, together with
all interest earned thereon and, except as otherwise provided
in this Agreement, shall be relieved of any and all liability
hereunder. For purposes of this Agreement, the term "Business
Day" shall mean any day other than Saturday, Sunday or any
other day on which the national banks in the State of Nevada
are not open for business. In order to facilitate Purchaser's
and/or its agents' physical inspection of the Property, Seller
shall furnish to Purchaser, within five (5) days after the
date that both Seller and Purchaser have executed this
Agreement (the "EFFECTIVE DATE") the Title Report, with copies
of all easements, encumbrances and title exceptions, along
with an accurate legal description of the Property; and
B. Purchaser shall have obtained a mortgage loan commitment from
Xxxxxx Xxxxxxx Mortgage Capital Inc. in the amount of Four
Million Nine Hundred Fifty Thousand Dollars ($4,950,000.00),
which mortgage loan shall be for a minimum term of ten (10)
years at an interest rate per annum of no more than six
percent (6%) and an origination charge of no more than two
percent (2%) of such mortgage loan amount.
10. Closing; Condition of Property; Assignment of Warranties. Purchaser
acknowledges and agrees that Purchaser is acquiring the Property "AS IS", "WHERE
IS" and, as such, Seller makes (and has made) no express or implied
representation or warranty to Purchaser or any other person of any kind or
nature whatsoever, except as specifically set forth in this Agreement.
Notwithstanding the foregoing, Seller hereby assigns to Purchaser
all of Seller's right, title and interest in and to any and all building,
maintenance and equipment warranties in connection with the construction of the
building on the Property and all improvements thereto, which assignment shall
survive the Closing.
Subject to the terms and conditions of Paragraphs 8 and 9, Closing
of the purchase of the Property shall take place on or before August 23, 2004.
11. Possession. Purchaser shall be entitled to sole and exclusive
possession and occupancy of the Property at the time of the Closing.
12. Risk of Loss. In the event of destruction or condemnation of the
Property, or any material part thereof, prior to the Closing Date, Purchaser
shall have the right to consummate the purchase contemplated hereby and receive
the proceeds of insurance or the condemnation award paid as a result of such
destruction or condemnation, or, at its option, to elect to terminate this
Agreement, whereupon the full Deposit, plus accrued interest, shall be returned
to Purchaser. Such election shall be made by Purchaser by written notice to
Seller, by United States Certified mail, return receipt requested (or via
telephone facsimile transmission), received or refused within five (5) days
after Purchaser's receipt of notice of destruction or the filing of condemnation
proceedings against the Property. For purposes of this Agreement, in the event
of
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a destruction, a "material part" shall be where the restoration cost is greater
than $250,000.00, or in the event of a condemnation, a "material part" shall be
where the condemnation award is greater than $250,000.00.
13. Representations, Warranties and Covenants. Seller makes the following
representations, warranties and covenants to and with Purchaser, which
representations, warranties and convenants shall survive the Closing:
A. That Seller is a limited liability company, duly organized,
validly existing and in good standing under and by virtue of
the laws of the State of Nevada.
B. Seller has full power and authority to enter into this
Agreement and to perform and carry out all obligations,
covenants and provisions contained in this Agreement. Seller's
authority shall be evidenced by documentation reasonably
satisfactory to Title Company and Purchaser's counsel.
C. That Seller has not entered into any other agreements of sale
for the Property or any part thereof.
D. That all information provided under this Agreement is
complete, true and accurate in all material respects. That no
tests of any kind or nature whatsoever have been performed at,
on or of the Property for which Seller has not provided copies
of the results to Purchaser. Neither this Agreement nor any
other document submitted to Purchaser and executed or
authorized by Seller in connection herewith contains an untrue
statement of a material fact or omits a material fact
necessary to make the statements contained herein or in such
documents not misleading.
E. That Seller has not contracted for the furnishing of labor or
materials to the Property which will not be paid in full by
Seller prior to Closing. Seller shall indemnify Purchaser from
all loss, claims and costs which Purchaser may incur from the
imposition of construction liens, if any, arising from the
acts or omissions of Seller, which indemnification obligation
of Seller shall survive the Closing.
F. That there is no pending or threatened judicial, federal,
municipal or administrative proceeding with respect to, or in
any manner affecting the Property or any portion thereof or in
which Seller is or will be a party by reason of Seller's
ownership or operation of the Property or any portion thereof.
No bankruptcy, insolvency, rearrangement or similar action
involving the Property or the Seller is pending, threatened or
being contemplated.
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G. That no federal, state or local taxing authority has asserted
any tax deficiency, lien or assessment against the Property
which has not been paid or the payment for which adequate
provision has not been made, to Purchaser's satisfaction.
There are no impositions or special assessments which
currently encumber the Property or any portion thereof or any
interest therein, other than impositions or special
assessments disclosed in writing to Purchaser which are not
yet due or payable.
H. That Seller has obtained, or will obtain prior to Closing, all
consents, approvals and authorizations from any person, entity
or governmental authority required with respect to this
Agreement and the consummation of the transaction contemplated
herein. Neither the execution and delivery of this Agreement
by Seller nor Seller's performance hereof are restricted by or
violate any contractual or other obligation of Seller.
I. That Seller has not received any notice or complaint from any
person, private or public, and is not otherwise aware of any
unsafe or other condition which presents risk of injury to
persons or loss of or damage to property affecting or
concerning the Property.
J. That all utilities required for the normal operation of the
Property are installed to the Property, are connected with
valid permits, are adequate to service the Property, and are
in full compliance with the requirements of all laws and
regulations.
14. Default. In the event Purchaser fails to perform or comply with any of
the terms, covenants or conditions of this Agreement on Purchaser's part to be
performed or complied with, and such failure or non-compliance is not cured by
Purchaser within five (5) days after receipt of written notice thereof from
Seller, Seller's sole remedy shall be the retention of the Deposit, plus accrued
interest, set forth in Paragraph 5 as liquidated damages. In the event Seller
fails to perform or comply with any of the terms, covenants or conditions of
this Agreement on Seller's part to be performed or complied with, and such
failure or non-compliance is not cured by Seller within five (5) days after
receipt of written notice thereof from Purchaser, Purchaser, as Purchaser's sole
remedies for Seller's failure to so perform or comply prior to Closing, shall be
entitled to an immediate refund of the entire Deposit, plus accrued interest.
After the Closing, the parties shall have such remedy as may be provided in this
Agreement or by law for any breach of any provision of this Agreement, In the
event either party is required to retain the services of an attorney, the
prevailing party in any action shall be entitled to receive from the losing
party its attorney's fees and costs.
15. Closing Instruments. Seller shall be responsible for preparing and/or
delivering to Purchaser, at Closing, the following documents:
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A. A fully executed Grant Bargain and Sale Deed in statutory form
conveying title to the Property to Purchaser in the condition
required by this Agreement;
B. A Xxxx of Sale for all personal property located at or used in
connection with the Property:
C. Any affidavit or other document required under the Tax Reform
Act of 1986 and the Internal Revenue Code Section 1445
(non-foreign person affidavit);
D. A closing statement in accordance with the terms and
conditions of this Agreement; and
E. Copies of all current real estate tax bills.
Seller and Purchaser shall execute, acknowledge and deliver such other or
additional documents or instruments as may be reasonably necessary or requested
by either party in order to more effectively complete the transaction
contemplated by this Agreement and to otherwise carry out the intended purposes
of this Agreement.
16. Brokers. Except for a loan origination fee to X. X. Melody & Company
in the amount of Forty-Nine Thousand Five Hundred Dollars ($49,500.00) to be
paid by Purchaser, Seller and Purchaser each represent and warrant to the other
that no broker, or other person acting as such, was instrumental or had any part
in procuring this Agreement, and each party agrees to testify to such effect if
called upon to do so by the other. Seller agrees to indemnify, defend and hold
harmless Purchaser against any claim for compensation for or in connection with
the procurement of this Agreement which may be asserted against Purchaser by any
other party who claims to have dealt with Seller. Purchaser agrees to indemnify
and hold Seller harmless against any claim for compensation for or in connection
with the procurement of this Agreement which may be asserted against Seller by
any other party who claims to have dealt with Purchaser.
17. Miscellaneous Provisions.
A. Notices. Any notice, request, demand, consent, approval or other
communication given pursuant to this Agreement (hereinafter "NOTICE") shall be
in writing and shall be sent by registered or certified mail, return receipt
requested, by way of telephonic facsimile transmission during normal business
hours or by hand delivery or by means of a reputable express mail delivery
service which guarantees next day delivery. A Notice shall be deemed to have
been received (i) forty-eight (48) hours after a certified or registered letter
containing a Notice, properly addressed, with postage prepaid is deposited in
the United States mail, (ii) upon electronic confirmation that a telephonic
facsimile transmission has been sent and (iii) if given otherwise than by
certified or registered mail or by telephonic facsimile transmission, it shall
be deemed to have been received upon the date of actual receipt. Any notice by
either party shall be sufficient if signed on behalf of said party by any
partner or officer thereof or by the legal representative of such party. Any
party may, by notice given as aforesaid,
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change its address for any subsequent notice. All notices shall be given to the
parties hereto at the addresses set forth below:
Seller LUKE PROPERTIES, LLC
0000 X. Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxx, M.D.
Purchaser: VESTIN FUND III, LLC
0000 Xx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention; Xxxxx X. Xxxxxxxx
B. Further Documents and Actions. The parties hereto agree that
at any time or from time to time after the Effective Date,
they shall, upon request of the other, execute and deliver
such further documents and do such further actions and things
as may be reasonably requested in order to fully effect the
purposes of this Agreement.
C. Applicable Law. This Agreement shall be governed by and
constructed in accordance with the laws of the State of
Nevada.
D. Entire Agreement. This Agreement embodies the entire agreement
and understanding by and between the parties relating to the
subject matter hereof, and this Agreement may not be amended,
waived or discharged, except by an instrument in writing
executed by the party against which enforcement of such
amendment, waiver, or discharge is sought. Seller and
Purchaser acknowledge and agree that this Agreement supercedes
and replaces that certain Letter of Intent dated May 19, 2004,
as modified by that certain Counteroffer dated May 24, 2004.
E. Counterparts. This Agreement may be executed in any number of
duplicate counterparts, each of which may or may not have been
executed by all parties hereto, and each such duplicate
counterpart shall be deemed to constitute but one and the same
instrument.
F. Severability. Whenever possible, each provision of this
Agreement and all related documents shall be interpreted in
such a manner as to be valid under applicable law, but to the
extent any provision is invalid or prohibited under applicable
law, such provision shall be ineffective to the extent of such
invalidity or prohibition without invalidating the remainder
of such provision or the remaining provisions of this
Agreement.
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G. Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the heirs, legal representatives,
successors and assigns of the parties hereto.
H. Time of Essence. Time shall be deemed to be of the essence of
this Agreement.
I. Headings; Attachments; Cross References. The headings and
captions used in this Agreement are for convenience and ease
of reference only and shall not be used to construe,
interpret, expand or limit the terms of this Agreement. All
exhibits and schedules attached to this Agreement are
incorporated by the references thereto contained herein. Any
terms used in an exhibit or schedule hereto shall have the
meaning as in this Agreement unless otherwise defined in such
exhibit or schedule. All references in this Agreement to
sections, subsections, paragraphs, subparagraphs, exhibits or
schedules shall be to sections, subsections, paragraphs,
subparagraphs, exhibits or schedules of or to this Agreement,
unless otherwise specified.
J. No Third Party Beneficiaries. This Agreement is solely for the
benefit of Seller and Purchaser and their respective permitted
assigns and is not intended and shall not be construed as
conferring any benefit on any third party or on the general
public.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth below each of their signatures.
SELLER:
LUKE PROPERTIES, LLC, a Nevada limited
liability company
BY: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Manager
PURCHASER:
VESTIN FUND III, LLC, a Nevada limited
liability company
By: Vestin Mortgage, Inc., a Nevada corporation,
its Sole Manager
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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EXHIBIT "A"
LEGAL DESCRIPTION
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Pursuant to the terms of the offer and counter-offer Luke Properties, LLC hereby
agrees to reduce the purchase price for the purchase and sale of that certain
building located at 0000 X. Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 to Vestin Fund
III, LLC in the amount of $300,000. No commission will be paid by Luke
Properties, LLC.
Luke Properties, LLC, a Nevada limited Vestin Fund III, LLC, a Nevada
liability company limited liability company by Vestin
Mortgage, Inc., a Nevada corporation,
the Manager
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx Xxxxxxx
--------------------------------- ------------------------------------
Xxxxxxx X. Xxxx, Manager Xxxxxxx Xxxxxxx, President
