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Exhibit 1.1
Vestin Fund II, LLC
Up To
$500,000,000
(Units of Limited Liability Company Interest)
DEALER MANAGER AGREEMENT
December ____, 2000
Vestin Capital,Inc.(formerly DM Financial Services, Inc.)
2901 El Camino Avenue, Suite 207
Las Vegas, Nevada 89102
Ladies and Gentlemen:
Vestin Mortgage, Inc. (formerly CAPSOURCE, INC.), a Nevada corporation, as the
Manager (the "Manager") of Vestin Fund II, LLC, a Nevada limited liability
company (the "Company"), proposes that the Company issue and sell up to
$500,000,000 aggregate principal amount of units of limited liability company
interest ("Units") in the Company. Such Units are to be sold for cash for $10.00
each; the minimum purchase by any one person shall be 200 Units (except as
otherwise indicated in the Prospectus or in any letter or memorandum from the
Manager to you). Terms not defined herein shall have the same meaning as in the
Prospectus. In connection therewith, the Company and the Manager hereby enter
into this Dealer Manager Agreement ("Agreement") with you (the "Dealer Manager")
as follows:
1. Representations and Warranties of the Company
The Company represents and warrants to the Dealer Manager and each
dealer with whom the Dealer Manager has entered into or will enter into a
Selected Dealer Agreement in the form attached to this Agreement as Exhibit A
(said dealers being hereinafter called the "Dealers") that:
1.1 A Registration Statement of the Company has been prepared by the
Company in accordance with applicable requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the applicable rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "SEC"), covering the 500,000,000 Units. Said Registration
Statement, which includes a preliminary prospectus, was filed with the SEC on or
about December ____, 2000. Copies of such Registration Statement and each
amendment thereto have been or will be delivered to the Dealer Manager. (The
Registration Statement and Prospectus, as finally amended and revised, are
respectively hereinafter referred to as the "Registration Statement" and the
"Prospectus."
1.2 The Company has been duly and validly organized and formed as a
limited liability company under the Nevada Revised Statutes with the power and
authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities
Act and the Rule and Regulations and do not contain any untrue statements of
material facts or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; provided,
however, that the foregoing provisions of this Section 1.3 will not extend to
such statements contained in or omitted from the Registration Statement or
Prospectus as are primarily within the knowledge of the Dealer Manager or any of
the Dealers and are based upon information furnished by the Dealer Manager or
any Dealer in writing to the Company specifically for inclusion therein.
1.4 The Company intends to use the funds received from the sale of the
Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any
governmental authority, including the Nevada Financial Institutions Division, is
required in connection with the execution or delivery by the Company of this
Agreement, the issuance and sale by the Company of the Units, or the conduct by
the Company of its business as described in the Prospectus, except such as may
be required under the Securities Act or applicable state securities laws.
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1.6 There are no actions, suits or proceedings pending or to the
knowledge of the Company, threatened against the Company or its Manager , at law
or equity or before or by any federal or state commission, regulatory body or
administration agency or other governmental body, domestic or foreign, which
will have a material adverse effect on the business or property of the Company,
except as are described on Attachment 1.6 to this Agreement.
1.7 The execution and delivery of this Agreement, the consummation of
the transactions herein contemplated and compliance with the terms of this
Agreement by the Company will not conflict with or constitute a default under
the Company's Articles of Organization, Operating Agreement, or any charter,
by-law, indenture, mortgage, deed of trust, lease, rule, regulation, writ,
injunction or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company, or the Manager,
except to the extent that the enforceability of the indemnity and/or
contribution provisions contained in Section 4 of this Agreement may be limited
under applicable securities laws.
1.8 The Company has full legal right, power and authority to enter into
this Agreement and to perform the transactions contemplated hereby, except to
the extent that the enforceability of the indemnity and/or contribution
provisions contained in Section 4 of this Agreement may be limited under
applicable securities laws.
1.9 At time of issuance of the Units, the Units will have been duly
authorized and validly issued, and upon payment therefore, will be fully paid
and nonassessable and will conform to the description thereof contained in the
Prospectus.
1.10 The respective financial statements contained in the Registration
Statement and the Prospectus fairly present the financial condition of the
Company and Manager and the results of their respective operations as of the
dates and for the periods therein specified; and such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved; and the accountants who
have certified certain of such financial statements are independent public
accountants as required by the Securities Act and the Rules and Regulations.
2. Covenants of the Company
The Company covenants and agrees with the Dealer Manager that:
2.1 It will, at no expense to the Dealer Manager, furnish the Dealer
Manager with such number of printed copies of the Registration Statement,
including all amendments and exhibits thereto, as the Dealer Manager may
reasonably request. It will similarly furnish to the Dealer Manager and others
designated by the Dealer Manager as many copies as the Dealer Manager may
reasonably request in connection with the offering of the Units of: (a) the
Prospectus in preliminary and final form and every form of supplemental or
amended prospectus; (b) this Agreement; and (c) any other printed sales
literature or other materials (provided that the use of said sales literature
and other materials has been approved for use by the Company and all appropriate
regulatory agencies).
2.2 It will furnish such proper information and execute and file such
documents as may be necessary for the Company to register or qualify the Units
for offer and sale under the securities laws of such jurisdictions as the Dealer
Manager may reasonably designate and will file and make in each year such
filings as may be required. The Company will furnish to the Dealer Manager a
copy of such papers filed by the Company in connection with any such
registration or qualification.
2.3 It will: (a) use its best efforts to cause the Registration
Statement to become effective; (b) file for review and use its best efforts to
obtain approval by the NASD Corporate Financing Department of
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the offering under Rule 2810 of the NASD Conduct Rules and applicable
Guidelines; (c) furnish copies of any proposed amendment or supplement of the
Registration Statement or Prospectus to the Dealer Manager; (d) file every
amendment or supplement to the Registration Statement or the Prospectus that may
be required by the SEC; and (e) if at any time the SEC shall issue any stop
order suspending the effectiveness of the Registration Statement, it will use
its best efforts to obtain the lifting of such order at the earliest possible
time.
2.4 If at any time when a Prospectus is required to be delivered under
the Securities Act any event occurs as a result of which, in the opinion of
either the Company or the Dealer Manager, the Prospectus or any other prospectus
then in effect would include an untrue statement of a material fact or, in view
of the circumstances under which they were made, omit to state any material fact
necessary to make the statements therein not misleading, the Company will
promptly notify the Dealer Manager thereof (unless the information shall have
been received from the Dealer Manager) and will effect the preparation of an
amended or supplemental prospectus which will correct such statement or
omission. The Company will then promptly prepare such amended or supplemental
prospectus or prospectuses as may be necessary to comply with the requirements
of Section 10 of the Securities Act.
3. Obligations and Compensation of Dealer Manager
3.1 The Company hereby appoints the Dealer Manager as its agent and
principal distributor for the purpose of selling for cash up to a maximum of
500,000,000 Units through Dealers, all of whom shall be members of the NASD. The
Dealer Manager may also sell Units for cash directly to its own clients and
customers at the public offering price and subject to the terms and conditions
stated in the Prospectus. The Dealer Manager hereby accepts such agency and
distributorship and agrees to use its best efforts to sell the Units on said
terms and conditions. The Dealer Manager represents to the Company that it is a
member of the NASD and that it and its employees and representatives have all
required licenses and registrations to act under this Agreement.
The Dealer Manager agrees to be bound by the terms of the Bank Escrow
Agreement executed as of December _________________, 2000 ("Escrow Agreement")
by _________________ ("Bank"), as escrow agent, the Dealer Manager and the
Company, a signed copy of which the Dealer Manager acknowledges has been
furnished to it by the Manager, and a conformed copy of which is attached to
this Agreement and incorporated herein by this reference.
3.2 Promptly after the effective date of the Registration Statement, the
Dealer Manager and the Dealers shall commence the offering of the Units for cash
to the public in jurisdictions in which the Units are registered or qualified
for sale or in which such offering is otherwise permitted. The Dealer Manager
and the Dealers will suspend or terminate offering of the Units upon request of
the Company at any time and will resume offering the Units upon subsequent
request of the Company.
3.3 The Manager will pay the Dealer Manager a commission equal to 1% of
the aggregate gross proceeds generated from the sale of Units by the Dealer
Manager. In addition, the Manager will reimburse the Dealer Manager for any
commissions and expenses paid by the Dealer Manager to selected dealers pursuant
to Section IV of the Selected Dealer Agreement. Without in any way limiting the
foregoing, no commissions, Dealer Manager Fee or expense reimbursement will be
paid to the Dealer Manager or any Dealer in excess of the maximum permitted by
NASD Rules of Conduct and applicable Guidelines pertaining to sales compensation
in offerings of this kind. Notwithstanding the foregoing, no commissions,
payments or amount whatsoever will be paid to the Dealer Manager under this
Section 3.3 unless or until 1,500,000 Units have been sold by the Dealer Manager
and the Dealers (the "Minimum Offering"). Until the Minimum Offering is
obtained, investments will be held in the escrow account and, if the Minimum
Offering is not obtained, will be returned to the investors in accordance with
the Prospectus and Escrow Agreement. The Company will not be liable or
responsible to any Dealer for direct payment of
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commissions to such Dealer, it being the sole and exclusive responsibility of
the Dealer Manager for payment of commissions and reimbursements of expenses to
Dealers.
3.4 The Dealer Manager represents and warrants to the Company, the
Manager and each person and firm that signs the Registration Statement that the
information under the caption "Plan of Distribution" in the Prospectus and all
other information furnished to the Company by the Dealer Manager in writing
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus, or any amendment or supplement thereto does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
3.5 The Dealer Manager represents and warrants to the Company that it
will not represent or imply that the Bank, under the Escrow Agreement, has
investigated the desirability or advisability of investment in the Units, or has
approved, endorsed or passed upon the merits of the Units or the Company, nor
will it use the name of said Bank in any manner whatsoever in connection with
the offer or sale of the Units other than by acknowledgment that it has agreed
to serve as escrow agent.
4. Indemnification
4.1 The Manager will indemnify and hold harmless the Dealers and the
Dealer Manager, their officers and directors and each person, if any, who
controls such Dealer or Dealer Manager within the meaning of Section 15 of the
Securities Act from and against any losses, claims, damages or liabilities,
joint or several, to which such Dealers or Dealer Manager, their officers and
directors, or such controlling person may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of a material fact contained (i) in the
Registration Statement (including the Prospectus as a part thereof) or any
post-effective amendment thereto or in the Prospectus or any amendment or
supplement to the Prospectus or (ii) in any application or other document
executed by the Company or on its behalf specifically for the purposes of
registering or qualifying any or all of the Units for sale under the securities
laws of any state or based upon written information furnished by the Company
under the securities laws thereof (any such application, document or information
being hereinafter called a "Blue Sky Application"), or (b) the omission or
alleged omission to state in the Registration Statement (including the
Prospectus as a part thereof) or any post-effective amendment thereof or in any
Blue Sky Application a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (c) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, if used prior to the effective date of the Registration Statement,
or in the Prospectus or any amendment or supplement to the Prospectus or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and will reimburse
each Dealer or Dealer Manager, its officers and directors and each such
controlling person for any legal or other expenses reasonably incurred by such
Dealer or Dealer Manager, its officers and directors, or such controlling
persons in connection with investigating or defending such loss, claim, damage,
liability or action; provided that the Company and Manager will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of, or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company or Manager by or on behalf of any
Dealer or Dealer Manager specifically for use with reference to such Dealer or
Dealer Manager in the preparation of the Registration Statement or any such
post-effective amendment thereof, any such Blue Sky Application or any such
preliminary prospectus or the Prospectus or any such amendment thereof or
supplement thereto; and further provided that the Company will not be liable in
any such case if it is determined that such Dealer or Dealer Manager was at
fault in connection with the loss, claim, damage, liability or action.
4.2 The Dealer Manager will indemnify and hold harmless the Company, the
Manager and each person or firm which has signed the Registration Statement and
each person, if any, who controls the Company and Manager within the meaning of
Section 15 of the Securities Act, from and against any losses, claims, damages
or liabilities to which any of the aforesaid parties may become subject, under
the
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Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (a)
any untrue statement of a material fact contained (i) in the Registration
Statement (including the Prospectus as a part thereof) or any post-effective
amendment thereof or (ii) any Blue Sky Application, or (b) the omission to state
in the Registration Statement (including the Prospectus as a part thereof) or
any post-effective amendment thereof or in any Blue Sky Application a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (c) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, if used prior to the
effective date of the Registration Statement, or in the Prospectus, or in any
amendment or supplement to the Prospectus or the omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein in the light of the circumstances under which they were made
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or omission was made in reliance upon and in conformity with
written information furnished to the Company or Manager by or on behalf of the
Dealer Manager specifically for use with reference to the Dealer Manager in the
preparation of the Registration Statement or any such post-effective amendments
thereof or any such Blue Sky Application or any such preliminary prospectus or
the Prospectus or any such amendment thereof or supplement thereto, or (d) any
unauthorized use of sales materials or use of unauthorized oral representations
concerning the Units by the Dealer Manager and will reimburse the aforesaid
parties, in connection with investigation or defending such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Dealer Manager may otherwise have.
4.3 Each Dealer severally will indemnify and hold harmless the Company,
Manager, Dealer Manager, all directors thereof (including any persons named in
the Registration Statements with his consent, as about to become a director),
each of their officers who has signed the Registration Statement and each
person, if any, who controls the Company, the Dealer Manager within the meaning
of Section 15 of the Securities Act from and against any losses, claims, damages
or liabilities to which the Company, the Dealer Manager, the Manager, any such
director or officer, or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of a material fact contained
(i) in the Registration Statement (including the Prospectus as a part thereof)
or any post-effective amendment thereof or (ii) in any Blue Sky Application, or
(b) the omission or alleged omission to state in the Registration Statement
(including the Prospectus as a part thereof) or any post-effective amendment
thereof or in any Blue Sky Application a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (c) any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, if used prior to the effective date of the Registration
Statement, or in the Prospectus, of in any amendment or supplement to the
Prospectus or the omission therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company or the Dealer Manager by or on behalf of such Dealer specifically for
use with reference to such Dealer in the preparation of the Registration
Statement or any such post-effective amendments thereof or any such Blue Sky
Application or any such preliminary prospectus or the Prospectus or any such
amendment thereof or supplement thereto, or (d) any unauthorized use of sales
materials or use of unauthorized verbal representations concerning the Units by
such Dealer and will reimburse the Company, the Dealer Manager, the Manager, any
such directors or officers, or controlling person, in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which such Dealer
may otherwise have.
4.4 Promptly after receipt by an indemnified party under this Section 4
of notice of the commencements of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under the
Section 4, notify in writing the indemnifying party of the commencement thereof
and the omission so as to notify the indemnifying party will relieve it from any
liability under this Section 4 as to the particular item for which
indemnification is then being sought, but not from any other liability which it
may have to any indemnified party. In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled, to the extent it may wish,
jointly with any other indemnifying part
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similarly notified, to participate in the defense thereof, with separate
counsel. Such participation shall not relieve such indemnifying party of the
obligation to reimburse the indemnified party for reasonable legal and other
expenses (subject to Section 4.5) incurred by such indemnified party in
defending itself, except for such expenses incurred after the indemnifying party
has deposited funds sufficient to effect the settlement, with prejudice, of the
claim in respect of which indemnity is sought. Any such indemnifying party shall
not be liable to any such indemnified party on account of any settlement of any
claim effected without the consent of such indemnifying party.
4.5 The indemnifying party shall pay all legal fees and expenses of the
indemnified party in the defense of such claims or actions; provided, however,
the indemnifying party shall not be obliged to pay legal expenses and fees to
more than one law firm in connection with the defense of similar claims arising
out of the same alleged acts or omissions giving rise to such claims
notwithstanding that such actions or claims are alleged or brought by one or
more parties against more than one indemnified party. If such claims or actions
are alleged or brought against more than one indemnified party, then the
indemnifying party shall only be obliged to reimburse the expenses and fees of
the one law firm that has been selected by a majority of the indemnified parties
against which such action is finally brought; and in the event a majority of
such indemnified parties is unable to agree on which law firm for which expenses
or fees will be reimbursable by the indemnifying party, then payment shall be
made to the first law firm of record representing an indemnified party against
the action or claim. Such law firm shall be paid only to the extent of services
performed by such law firm and no reimbursement shall be payable to such law
firm on account of legal services performed by another law firm.
4.6 The indemnity agreements contained in this Section 4 shall remain
operative and in full force and effect regardless of (a) any investigation made
by or on behalf of any Dealer, or any person controlling any Dealer or by or on
behalf of the Company, the Dealer Manager or the Manager or any officer or
director thereof, or by or on behalf of the Company, the Dealer Manager or the
Manager, (b) delivery of any Units and payment therefore, and (c) any
termination of this Agreement. A successor of any Dealer or of any the parties
to this Agreement, as the case may be, shall be entitled to the benefits of the
indemnity agreements contained in this Section 4.
5. Survival of Provisions
The respective agreements, representations and warranties of the Company
and the Dealer Manager set forth in this Agreement shall remain operative and in
full force and effect regardless of (a) any termination of this Agreement, (b)
any investigation made by or on behalf of the Dealer Manager or any Dealer or
any person controlling the Dealer Manager or any Dealer or by or on behalf of
the Company, its partners or any person controlling the Company, and (c) the
acceptance of any payment for the Units.
6. Applicable Law
This Agreement was executed and delivered in, and its validity,
interpretation and construction shall be governed by the laws of, the State of
Nevada.
7. Counterparts
This Agreement may be executed in any number of counterparts. Each
counterpart, when executed and delivered, shall be an original contract, but all
counterparts, when taken together, shall constitute one and the same Agreement.
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8. Successors and Amendment
8.1 This Agreement shall inure to the benefit of any be binding upon the
Dealer Manager, the Manager, the Company and their respective successors.
Nothing in this Agreement is intended or shall be construed to give to any other
person any right, remedy or claim, except as otherwise specifically provided
herein. This Agreement shall inure to the benefit of the Dealers to the extent
set forth in Sections 1 and 4 hereof.
8.2 This Agreement may be amended by the written agreement of the
Dealer Manager, the Company and the Manager.
9. Term
Any party to this Agreement shall have the right to terminate this
Agreement on 60 days' written notice.
10. Confirmation
The Manager hereby agrees and assumes the duty to send an
acknowledgement to each investor whose subscription for Units is accepted in
whole or in part by the Manager.
11. Suitability of Investors
The Dealer Manager will offer Units and in its agreements with Dealers
will require that the Dealers offer Units, only to persons who meet the
financial qualifications set forth in the Prospectus and the Subscription
Agreement in the form that is attached to the Prospectus as Exhibit B thereto
(or to those it reasonably believes to meet suitability standards in states that
deviate from those standards set forth in the Prospectus and Subscription
Agreement), and will only make offers to persons in the states in which it is
advised in writing that the Units are qualified for sale or that such
qualification is not required. In offering Units, the Dealer Manager will, and
in its agreements with Dealers the Dealer Manager will require that the Dealer
comply with the provisions of Rule 2310 of the Conduct Rules set forth in the
NASD Manual, as well as all other applicable rules and regulations relating to
suitability of investors, including without limitation, the provisions of
Article III.B. and C. of the Statement of Policy Regarding Mortgage Programs of
the North American Securities Administration Association, Inc.
12. Submission of Orders
12.1 Those persons who purchase Units will be instructed by the Dealer
Manager or the Dealer to make their checks payable to the Bank as escrow agent
during the course of the Minimum Offering, and to the Company after the Minimum
Offering has been achieved. The Dealer Manager and any Dealer receiving a check
not conforming to the foregoing instructions shall return such check directly to
such subscriber not later than the end of the next business day following its
receipt. Checks received by the Dealer Manager or Dealer which conform to the
foregoing instructions shall be transmitted for deposit pursuant to one of the
methods described in this Section 12. Transmittal of received investor funds
will be made in accordance with the following procedures.
12.2 Where, pursuant to a Dealer's internal supervisory procedures,
internal supervisory review is conducted at the same location at which
subscription documents and checks are received from subscribers, checks will be
transmitted in care of the Dealer Manager by the end of the next business day
following receipt by the Dealer for deposit to the Bank, as escrow agent, during
the course of the Minimum Offering and to the Company after the Minimum Offering
has been achieved.
12.3 Where, pursuant to a Dealer's internal supervisory procedures,
final internal supervisory review is conducted at a different location, checks
will be transmitted by the end of the next business day following receipt by the
Dealer to the office of the Dealer conducting such final internal supervisory
review (the "Final Review Office"). The Final Review Office will in turn by the
end of the next business day
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following receipt by the Final Review Office, transmit such checks in care of
the Dealer Manager for deposit to the Bank, as escrow agent, during the course
of the Minimum Offering and to the Company after the Minimum Offering has been
achieved.
12.4 Where the Dealer Manager is involved in the distribution process,
checks will be transmitted by the Dealer Manager for deposit to the Bank, as
escrow agent, during the course of the Minimum Offering and to the Company after
the Minimum Offering has been achieved, as soon as practicable, but in any event
by the end of the second business day following receipt by the Dealer Manager.
Checks of rejected subscribers will be promptly returned to such subscribers.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us
as of the date first above written.
Very truly yours,
Vestin Fund II, LLC
By: Vestin Mortgage, Inc.
(Manager)
By:
---------------------------------------------------------
Name:
Title:
Vestin Mortgage, Inc.
By:
---------------------------------------------------------
Name:
Title:
Accepted and agreed as of the
date first above written.
VESTIN CAPITAL, INC.
By:
--------------------------
President
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ATTACHMENT 1.6
TO THE DEALER MANAGER AGREEMENT
Response to Section 1.6 - Material Litigation
9
