Exhibit 10.4
[LOGO] AmeriFirst FUNDING GROUP, INC.
INSURED: ___________________
POLICY NUMBER: _____________
ADDRESS:
____________________
____________________
____________________
INSURANCE COMPANY: ____________________
FACE VALUE: ________________
PHONE NUMBER: ______________
SOCIAL SECURITY NUMBER: ____ ___ _____
Dear
We would like to take this opportunity to thank you for choosing AmeriFirst
Funding Group, Inc. To ensure rapid processing of your application, please sign
and return the enclosed agreements in the self-addressed Federal Express package
we have provided.
THIS PACKET, COMBINED WITH THE APPLICATION YOU FILLED OUT WITH YOUR POLICY
BROKER, CONSTITUTE THE ENTIRE CONTRACT BETWEEN AMERIFIRST FUNDING GROUP, INC.
AND YOU, THE VIATOR.
Enclosed you will find the following forms:
I. DISCLOSURE STATEMENT - Initial, sign and notarize.
II. VIATICAL SETTLEMENT CONTRACT AND ESCROW AGREEMENT - Sign
III. NOTICE OF INTENT TO CHANGE OWNERSHIP AND BENEFICIARY - Sign and notarize
IV. POLICY NOTICE - Sign and notarize.
V. RELEASE AND CONSENT TO CHANGE OF BENEFICIARY FORM - Sign notarize and
witness signature.
VI. MEDICAL RELEASE - Sign and notarize.
VII. POWER OF ATTORNEY - Sign and notarize
VIII. ACKNOWLEDGEMENT AND CONSENT FORM - Sign and notarize
IX. CHANGE OF OWNERSHIP OR ABSOLUTE ASSIGNMENT - Sign.
X. DISTRIBUTION DIRECTIONS (2) - Please fill out ONE page that describes how
you would like to receive your settlement. CHECK or WIRE TRANSFER.
XI. PERSONAL REFERENCES - Please fill this out completely.
XII. NOTICE - Please read and keep for your records.
The funds, which will be used to purchase your policy are currently held by
AmeriFirst Fund I, LLC herein known as ("The Fund") a Florida based company
authorized to transact business in Georgia. Upon return receipt of these forms
two transactions will take place:
1. Your money will be transferred from The Fund to an escrow account
held by AmeriFirst Funding Group and held until closing.
2. Your forms will be sent to the insurance company. Upon written
notification from the insurance company that your life insurance
policy has been assigned to Funding Group the policy will close.
3. At closing Funding Group will transfer ownership to The Fund and
assign The Fund as the beneficiary.
If you have any questions, please feel free to call us.
Sincerely,
DISCLOSURE
You, ______________(hereinafter referred to as "viator") are about to enter into
a Viatical Settlement contract, which involves an irrevocable transfer and
Assignment of Ownership and beneficial interests in your life insurance policy
to The Fund or its nominees. This agreement is for an amount less than the face
value of the policy. Before agreeing to the contract, you should be informed of
the following:
I. Persons with catastrophic or life threatening illnesses or conditions may
have alternatives to viatical settlements, including accelerated benefits
offered by the issuer of the policy, loans secured by the policy and the
surrender of the policy for cash value.
II. A viator may incur tax consequences from entering into a viatical
settlement. Persons interested in entering into a viatical settlement should
consult their tax advisor.
III. A viator has the unconditional and absolute right to cancel and rescind the
viatical settlement contract at any time prior to the full payment of the
proceeds. Additionally, a viator may cancel and rescind this contract not later
than the 15th day after full payment of proceeds to the viator provided the full
amount of the proceeds and any premiums paid by AmeriFirst Funding Group, Inc.
on said policy are returned by the viator to AmeriFirst Funding Group, Inc.
IV. A viatical settlement may affect a viator's ability to receive supplemental
social security income, public assistance and public medical services. Persons
interested in entering into viatical settlements should consult an attorney,
financial advisor or social services agency regarding these potential
consequences.
V. The proceeds of a viatical settlement payable to the viator may not be exempt
from the viator's creditors, personal representatives, trustees in bankruptcy
and receivers in state and federal court. Persons interested in entering into a
viatical settlement should consult an attorney of financial advisor regarding
these potential consequences.
VI. A viator has the right to know, upon request, the identity of any person who
will receive a commission or other form of compensation from the viatical
settlement company with respect to the viatical settlement and the amount and
terms of such compensation.
VII. The proceeds to the viator shall be made in a lump sum. No portion of the
proceeds by the viatical settlement provider or escrow agent will be held back.
VIII. A viator may designate any adult individual in regular contact with the
viator as the contact for all inquiries about the viator's health status, and,
if such designation is made, a viatical settlement company cannot make such an
inquiry to the viator, unless the company is unable, after diligent effort, to
contact the designee for more than thirty days. The viator may change this
designation at any time, upon written notice to the viatical
settlement company.
IX. The viator should be aware that all medical, financial or personal
information solicited or obtained by a viatical settlement company about a
viator, including the viator's identity or the identity of family members, a
spouse or a significant other, is confidential and shall not be disclosed in any
form to any person, unless disclosure is necessary to effect the viatical
settlement between the viator and the viatical settlement company and the viator
provides prior and knowing written consent to the disclosure. All persons to
whom confidential information is disclosed pursuant to the viator's consent
shall maintain the confidentiality of such information, and not disclose it to
any other person in any form, without prior and knowing written consent of the
viator.
X. By entering into a viatical settlement contract all of the right, title,
interest and benefit in and to the viator's life insurance policy, including all
supplementary contracts and riders attached thereto, will become the property of
The Fund. This includes disposition of proceeds, cash values, dividends, double
or additional indemnity, accidental death or other riders insuring the lives of
spouses, family members or anyone else other than the viator. The premium
payments on the viator's life insurance policy will no longer be the
responsibility of the viator. If this is not acceptable to the viator, it is the
viator's responsibility to provide a statement, in writing, with the return of
this document package stating that the rights to these riders shall be reserved
by the viator. Arrangements will be made with the insurance company to preserve
the viator's interest in said riders. If the arrangements are not satisfactory
to both the viator and the viatical settlement company, the ownership of the
policy shall not be transferred to The Fund and the viatical settlement contract
will be rendered null and void.
XI. The proceeds of the viatical settlement are in escrow where they shall
remain until they are disbursed to the viator. Proceeds will be disbursed to the
viator upon acknowledgement of the transfer of the policy by the issuer of the
policy. Proceeds will be available within 3 business days of our receipt of the
assignment from your life insurance carrier. The source of the funds originates
from The Fund and are held in the escrow account of AmeriFirst Funding Group,
Inc.
XII. AmeriFirst Funding may transfer the policy that is the subject of the
viatical settlement to a person unknown to the viator, without the viator's
consent. Because AmeriFirst Funding Group, Inc. intends to transfer the policy
that is the subject of the viatical settlement contract, a form disclosing the
intent to sell or otherwise transfer the policy, and the identity of the person
or persons to whom AmeriFirst Funding Group, Inc. proposes to sell or otherwise
transfer the policy as provided herein.
XIII. If you are selling a group insurance contract and if for any reason the
Assignment reverts back to you, the Viator, you are bound by this Viatical
Settlement contract to re-Assign this group insurance contract to The Fund.
XIV. The amount available at death without this Viatical Settlement is
$_____________
XV. The amount being received under this Viatical Settlement contract is
$_____________
XVI. The difference between this and the total death benefit is $______________
XVII. The name and address of the Escrow Agent is:
XVIII. The name and address of the entity to whom your life insurance policy is
being assigned is:
AmeriFirst Fund I, LLC
814 A1A North Ste 300
Ponte Vedra Beach, FL 32082
I acknowledge that I have read and accept receipt of this disclosure statement,
this ________ day of _________________, 2002.
_________________________________ (Insured)
Signed, sealed and delivered in the presence of:
State of __________________
County of _________________
_________________________________
NOTARY PUBLIC (seal)
My commission expires:________________________
VIATICAL SETTLEMENT CONTRACT AND ESCROW AGREEMENT
BETWEEN
AMERIFIRST FUNDING GROUP, INC.
AND
______________________________
This ESCROW AGREEMENT is made and entered into this _____ day of ________ in the
year 2002 by and between AmeriFirst Funding Group, Inc. ("funding Group"),
AmeriFirst Fund I, LLC, ("The Fund") and _____________.
WITNESSETH
WHEREAS, AmeriFirst Funding Group, Inc., desires to purchase from
_______________________a certain life insurance policy on the life of
________________ issued by _______________________________________ (Insurance
Co.) the same policy number (the "Policy") for the sum of $____________________
(the "Purchase Price"); and
WHEREAS, the parties desire for Funding Group to hold the funds representing the
Purchase Price in escrow, on the terms and conditions hereinafter set forth;
NOW, THEREFORE in consideration of the mutual covenants and agreements
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Simultaneously with the execution of this agreement, Client shall deliver to
AmeriFirst Funding Group, Inc., its nominees and/or assigns an assignment of the
policy in favor of The Fund. Escrow Agent shall hold the policy and funds
representing the Purchase Price in accordance with the terms of this Agreement.
2. Upon receipt of the assignment of the policy in favor of The Fund, AmeriFirst
Funding Group, Inc. shall forward such assignment to the insurance carrier who
issued the policy, and shall request from such insurance carrier an acceptance
of the assignment of the policy. Upon receipt of such acceptance of assignment,
Funding Group shall authorize the Escrow Agent to deliver the funds,
representing the Purchase Price, to Client within three (3) business days.
Failure to transfer the funds within three (3) business days renders the
viatical settlement contract and the transfer, assignment, bequest, or sale
voidable.
3. The Client has the unconditional and absolute right to cancel and rescind the
viatical settlement contract at any time prior to the full payment of the
proceeds. Additionally, the Client may cancel and rescind this contract not
later than the 15th day after full payment of proceeds to the Client provided
the full amount of the proceeds and any premiums paid by AmeriFirst Funding
Group, Inc. on said policy are returned by the Client.
4. In the event The Fund does not receive an acceptance of Assignment from the
insurance carrier within thirty (30) days after the date of this Agreement,
AmeriFirst Funding Group, Inc. shall give written notice of such fact to Client.
Thereafter, AmeriFirst Funding Group, Inc. and Client shall contact the
insurance carrier and attempt to make arrangements to obtain an acceptance of
the assignment of the policy from the insurance carrier. In the event such
acceptance cannot be obtained within an additional period of time (ten days),
AmeriFirst Funding Group, Inc. and Client shall redeliver the Assignment of the
Policy in favor of the Client.
5. I, the undersigned, understand and acknowledge that Funding Group has the
unconditional and absolute right to cancel and rescind the Life Insurance Policy
Purchase Contract at any time prior to the full payment of the proceeds.
Additionally, to the Client if for any reason Funding Group has reason to
believe that the policy was purchased, issued or sold under fraudulent
circumstances or if the insurance company advises Funding Group that the policy
has been rescinded or cancelled the Life Insurance Policy Purchase Contact
becomes null and void. Upon notification that the policy is being rescinded or
cancelled by the insurance company, or the Life Insurance Policy Purchase
Contact becomes null and void the Client must provide the full amount of any
proceeds and premiums paid by Funding Group to Funding Group within thirty (30)
days.
5. In performing its duties hereunder, Escrow Agent shall not incur any
liability to AmeriFirst Funding Group, Inc. or to Client for any damages, losses
or expenses which either party may sustain or incur, unless the same is a direct
result of the negligence or intentional misconduct of Escrow Agent. Escrow Agent
shall be protected in any action taken or omitted in good faith upon the advice
of its legal counsel given with respect to the duties and responsibilities of
Escrow Agent hereunder. Escrow Agent shall be entitled to rely on any document
or instrument, including any written notice or instruction provided for in this
Agreement, which Escrow Agent in good faith believes to be genuine or to have
been signed or presented by a proper person or persons in accordance with this
Agreement. AmeriFirst Funding Group, Inc. and Client hereby agree to indemnify
and hold harmless Escrow Agent from and against all losses, claims, damages,
liabilities and expenses which it may sustain or incur hereunder, including,
without limitation reasonable attorneys fees, which may be imposed upon Escrow
Agent or incurred by Escrow Agent in connection with the performance of its
duties hereunder.
6. Any notice required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given if sent by certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Client:
If to AmeriFirst Funding Group, Inc.: AmeriFirst Funding Group, Inc.
1712 H Osborne Rd
St. Marys, GA 31558
If to Escrow Agent: SouthTrust Bank
Corporate Trust Department
110 Office Park Drive, 2nd Floor
Birmingham, Alabama 35223
Attn: Rebecca Brayman
205-254-5334 - Direct
205-254-4180 - Facsimile
Any notice mailed as provided herein shall be deemed received by the party to
whom it is addressed on the date of receipt, or on the first date of attempted
delivery in the case of any notice which is undeliverable by the U.S. Post
Office. The foregoing shall not preclude any other method of giving notice.
7. This Agreement represents the entire agreement between the parties with
respect to the subject matter hereof, and may not be modified or amended except
by a written instrument signed by all of the parties hereunto. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereunto and
their respective heirs, successors and assigns. This Agreement has been made and
entered into in the State of Georgia and shall be construed and enforced in
accordance with Georgia Law. Venue for any litigation from this agreement or its
enforcement shall be in Camden county Georgia. This Agreement may be executed in
any number of counterparts, each of which shall constitute an original.
In witness whereof, the parties have executed and delivered this Agreement on
the day and in the year above written:
CLIENT: By: ___________________________________
Insured
AMERIFIRST FUNDING GROUP, INC. By: ___________________________________
ESCROW AGENT: By: ___________________________________
October 29, 2002
AmeriFirst Fund I, LLC
814 A1-A Highway, Suite 300
Ponte Vedra Beach, FL 32082
AmeriFirst Financial Services, Inc.
814 Highway AI-A, Suite 300
Ponte Vedra Beach, FL 32082
Re: AmeriFirst Fund I, LLC
LEGALITY OF THE SECURITIES BEING REGISTERED (File No. 333-98651)
Ladies and Gentlemen:
In connection with the registration of up to $100,000,000 aggregate
principal amount of units ("Units") representing limited liability company
interests in AmeriFirst Fund I, LLC, a Florida limited liability company (the
"Fund"), filed under the Securities Act of 1933, as amended, you have requested
our opinion as to whether the Units, when issued will be lawfully and validly
issued, fully paid and non-assessable.
For purposes of offering this opinion, we have examined originals or
copies of the documents listed below. In conducting such examination, we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals and conformity to original documents of all
documents submitted to us as copies. The documents we have examined are:
1. The Form S-1 Registration Statement first filed by the Fund with the
Securities and Exchange Commission on August 23, 2002, as amended, (the
"Registration Statement");
2. The Articles of Organization of the Fund dated September 20, 2002; and
3. The Operating Agreement of the Fund dated September 25, 2002.
AmeriFirst Fund I, LLC
AmeriFirst Financial Services, Inc.
October 29, 2002
Page 2
In addition, in rendering this opinion, we have relied upon your
representation that the Units will be offered to the public in the manner and on
the terms identified or referred to in the Registration Statement.
Based upon and subject to the forgoing and the effect, if any, of the
matters discussed below, after having given due regard to such issues of law as
we deemed relevant, and assuming that (i) the Registration Statement becomes and
remains effective, and the prospectus which is part thereof, and the prospectus
delivery requirements with respect thereto, fulfill all of the requirements of
the Securities Act of 1933, as amended, throughout all periods relevant to this
opinion, (ii) all offers and sales of the Units are made in a manner complying
with the terms of the Registration Statement, and (iii) all offers and sales of
the Units are in compliance with the securities laws of the states having
jurisdiction thereof, we are of the opinion that the Units, when issued, will be
lawfully and validly issued, fully paid and non-assessable.
This opinion is furnished to you in connection with the registration of
the Units in the Fund, is for your benefit, and may not be relied on by, nor
copies delivered to, any other person or entity without our prior written
consent. Notwithstanding the preceding sentence we hereby consent to the
reference to this firm in the prospectus included in this Registration Statement
under the caption LEGAL MATTERS and to the filing of this opinion as an exhibit
to the Registration Statement.
Sincerely yours,
SNOW BECKER KRAUSS P.C.