EXHIBIT 10.5 INTERCREDITOR AGREEMENT

 

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                                                                    EXHIBIT 10.5

 

 

 

                            INTERCREDITOR AGREEMENT

 

         This Intercreditor Agreement, dated as of April 22, 2004 this

"Agreement"), is entered into by and between VESTIN MORTGAGE, INC., a Nevada

corporation ("Vestin Mortgage"), whose principal place of business and post

office address is 2901 El Camino Avenue, Suite 206, Las Vegas, Nevada 89102,

("Lead Lender") and OWENS MORTGAGE INVESTMENT FUND, a California Limited

Partnership ("Owens Mortgage Investment Fund") whose principal place of

business and post office address is 2221 Olympic Boulevard, Walnut Creek,

California 94595, ("Lender") hereinafter collectively referred to as the

"Lenders",

 

                                   RECITALS:

 

         A.       The Lenders have concurrently herewith entered into that

                  certain Loan Agreement, dated as of April 22, 2004 (the "Loan

                  Agreement"), with Mesquite Real Estate Partners, LLC, a Nevada

                  limited liability company (the "Borrower") and Christopher A.

                  Villareale and James A. Slinker, (collectively "the

                  Guarantors").

 

         B.       The Lenders have severally agreed to make the Loan to the

                  Borrowers in the aggregate principal amount of $20,000,000.00

                  of which each Lender's commitment is set forth in Section 2.1

                  of this Agreement.

 

         C.       The Lenders enter into this Agreement to, among other things,

                  further define the rights, duties, authority and

                  responsibilities of the Lenders and the relationship among the

                  Lenders regarding their interests in the Loan Documents and

                  collateral which secures 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, Vestin Mortgage and Owens 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 Intercreditor Agreement as amended,

modified or restated in

 

 

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accordance with the terms hereof.

 

     "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 or 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.

 

     "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 a fixed rate of interest equivalent to twelve

percent (12%) per annum to be paid to Owens Mortgage Investment Fund in

accordance with this Agreement for their "Participation Interest" in the

"Loan" assigned by Vestin Mortgage.

 

     "Late Charges" shall mean the late charges and/or default rate charged to

Borrower in the event of default or late payments under the "Loan Documents".

 

     "Lead Lender" shall mean Vestin Mortgage or any successor lead lender.

 

     "Lender" shall mean Owens Mortgage Investment Fund or their assignee.

 

     "Loan Documents" shall mean the note, deed of trust, guaranty, title

policy, security agreement, loan agreement, assignment of rents and profits,

and whatever documents are in existence to protect and secure the repayment of

the Borrowers obligations under the "Loan".

 

     "Loan" shall mean the note, and all of the documents and agreements that

evidence and secure the debt of the "Borrower".

 

     "Loan Agreement" shall have the meaning assigned thereto in the Recitals

hereof, and shall include such agreements as amended or modified in accordance

with their respective rights.

 

     "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 owned by Owens

Mortgage

 

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Investment Fund in the "Loan".

 

     1.2  Effectiveness of the Agreement. The effectiveness of this Agreement

is conditioned upon (a) the execution and delivery of this Agreement by the

Lenders, (b) the execution, delivery and effectiveness of the Loan Agreement and

the Loan Documents by the parties hereto.

 

                      SECTION 2. PRORATA SHARE; LOAN FEES

 

     2.1  Advance of Loan Funds; Pro Rata Share. Each of the Lenders shall

advance their respective amounts of the Loan to the Borrower at Closing, and

have a "Pro Rata Share" as indicated on the following schedule:

 

 

<Table>

<Caption>

Lender                             Amount              Pro Rata Share

------                             ------              --------------

<S>                                <C>                 <C>

Vestin Mortgage Inc.               $13,000,000.00            65.00%

Owens Mortgage Investment Fund      $7,000,000.00            35.00%

                                   --------------           ------

Totals                             $20,000,000.00           100.00%

 

</Table>

 

 

     2.2  Allocation of Loan Fees. In respect of the Loan, the Borrower has

paid or will pay loan fees in the aggregate amount of $1,000,000.00 (5% of the

face amount of the note), which fees shall be allocated among the Lenders as

follows:

 

 

<Table>

 

<S>                                              <C>             <C>

          Owens Mortgage Investment Fund          $210,000.00    (3% based on its participation Interest)

          Vestin Mortgage, Inc.                   $790,000.00    (remaining balance of the loan fee)

</Table>

 

 

                     SECTION 3. RELATIONSHIP AMONG LENDERS

 

     3.1  Restrictions on Actions. Lead Lender agrees that, so long as any

portion of the Loan is outstanding or unpaid the provisions of this Agreement

shall provide the exclusive method by which either Lender may exercise rights

and remedies under the Loan Documents. Therefore, each Lender shall, for the

benefit of all Lenders, except as permitted under this Agreement.

 

          (a)  Refrain from 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; and

 

          (b)  Refrain from (1) selling any portion of the Loan to the Borrower

or any affiliate of the Borrower and (2) accepting any guaranty (other that the

guarantees contemplated by the Loan Agreement) of, or any other security for,

the Loan from the Borrowers or any Affiliate of the Borrowers, except any

guaranty or security granted to the Lenders for the benefit of all Lenders; and

 

 

 

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          (c) Refrain from exercising any rights or remedies under the Loan

Documents which have or may have arisen or which may arise as a result of a

Default or Event of Default or otherwise provided, however, that nothing

contained in subsections (a) through (c) above, shall prevent any Lender from

imposing a default rate of interest in accordance with the Loan Agreement, or

prevent a Lender from raising any defenses in any action in which it has been

made a party defendant or has been joined as a third party, except that Lead

Lender may, but shall not be obligated to, direct and control any defense

directly relating to the Real Property and/or the Collateral or any one or more

of the Loan Documents, which shall be governed by the provisions of this

Agreement.

 

     3.2 Representations and Warranties. Each of the 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 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 Lender or

Lender 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

Lender or Lender.

 

          (c) The execution, delivery and performance by such Lead Lender or

Lender of this Agreement will result in a valid and legally binding obligation

of such Lead Lender or Lender 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 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.

 

     3.3 Cooperation: Accountings. Lead Lender will, upon the reasonable request

of Lender, 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 Lender agrees to provide

to Lender upon reasonable request, but in no event more frequently than once a

month, a statement of all payments received in respect of the Loan.

 

     3.4 Reliance on Lead Lender. Lender agrees that it has independently made

its own analysis of the Loan and the decision to enter into this Agreement based

on such documents and

 

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information as it has deemed appropriate. The Lead Lender shall promptly provide