EXHIBIT 1.1
AMERIFIRST FUND I, LLC
UNITS
$100,000,000 (Maximum)
$2,500,000 (Minimum)
UNDERWRITING AGREEMENT
January ___, 2003
AmeriFirst Capital Corp.
814 North Highway A1A, Suite 300
Ponte Vedra Beach, FL 32082
Ladies and Gentlemen:
AMERIFIRST FUND I, LLC, a Florida limited liability company (the "Fund"),
is offering and selling to the public up to a maximum of 100,000 units of
limited liability company beneficial interests ("Units") in the Fund at $1,000
per Unit, with an initial minimum investment of 100 Units at $100,000 (with
discretion to accept initial investments of less than $100,000), in accordance
with the Fund's Prospectus (defined below) and Operating Agreement dated as of
September 25, 2002, attached as an Exhibit to the Prospectus. Terms not defined
herein shall have the same meaning as in the Prospectus. In connection
therewith, the Fund hereby enters into this Underwriting Agreement ("Agreement")
with AmeriFirst Capital Corp. (the "Underwriter") as follows:
1. Representations and Warranties of the Fund
The Fund represents and warrants to the Underwriter and each dealer with
whom the Underwriter has entered into or will enter into a selected dealer
agreement (said dealers being hereinafter called the "Dealers") that:
1.1 A registration statement (File No. 333-98651) on Form S-1
("Registration Statement") of the Fund has been prepared by the Fund 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 Units. Copies of such Registration Statement and each amendment
thereto have been or will be delivered to the Underwriter. As used herein, the
Term "Preliminary Prospectus" shall mean each prospectus filed pursuant to Rule
430 or Rule 424(a) of the Rules and Regulations. The Preliminary Prospectus bore
the legend required by Item 501 of Regulation S-K under the Act and Rules and
Regulations. Such registration statement (including all financial statements,
schedules and exhibits) as amended at the time it becomes effective and the
final prospectus included therein are herein respectively called the
"Registration Statement"
and the "Prospectus", except that (i) if the prospectus filed by the Company
pursuant to Rule 424(b) or Rule 430A of the Rules and Regulations shall differ
from such final prospectus as then amended, then the term "Prospectus" shall
instead mean the prospectus first filed pursuant to said Rule 424(b) or Rule
430A, and (ii) if such registration statement is amended or such prospectus is
amended or supplemented after the effective date of such registration statement
then (unless the context necessarily requires otherwise) the term "Registration
Statement" shall include such registration statement as so amended, and the term
"Prospectus" shall include such prospectus as so amended or supplemented, as the
case may be.
1.2 The Fund has been duly and validly organized and formed as a limited
liability company under the Florida Limited Liability Company Act and is in good
standing under the laws of Florida with full power and authority to own its
properties and conduct its business as described in the Prospectus. The Fund is
duly qualified or licensed to do business as a foreign corporation and is in
good standing in each other jurisdiction in which the nature of its business or
the character or location of its properties requires such qualification, except
where failure so to qualify will not have a material adverse effect on the
business, properties or financial condition of the Fund.
1.3 The Registration Statement and Prospectus comply with the Securities
Act and the Rules 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 Underwriter or any of
the Dealers and are based upon information furnished by the Underwriter or any
Dealer in writing to the Fund specifically for inclusion therein.
1.4 The Fund intends to use the funds received from the sale of the Units
as set forth in the Prospectus under "Use of Proceeds."
1.5 No consent, approval, authorization or other order of any governmental
authority, is required in connection with the execution or delivery by the Fund
of this Agreement, the issuance and sale by the Fund of the Units, or the
conduct by the Fund of its business as described in the Prospectus, except such
as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge
of the Fund, threatened against the Fund or its manager, AmeriFirst Financial
Services, Inc. ("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 Fund.
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 Fund will not conflict with or constitute a default under the Fund's
Articles of Organization, Operating Agreement, or any charter, by-law,
indenture, mortgage, deed of trust, lease, rule, regulation,
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writ, injunction or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the Fund, 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 federal and state securities laws.
1.8 The Fund 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 federal
and state securities laws. This Agreement has been duly and validly authorized,
executed and delivered by the Fund and, assuming due execution of this Agreement
and such other agreements by the other party or parties hereto and thereto,
constitute valid and binding obligations of the Fund enforceable against the
Fund in accordance with its terms. The Fund has full right and power and lawful
authority to authorize, issue and sell the Units on the terms and conditions set
forth herein.
1.9 At the time of issuance of the Units, the Units will have been duly
authorized and validly issued, and upon payment therefor, will be fully paid and
nonassessable and will conform to the description thereof contained in the
Registration Statement and Prospectus.
1.10 The respective financial statements contained in the Registration
Statement and the Prospectus fairly present the financial condition of the Fund
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.
1.11 Except as disclosed in the Prospectus, the Fund has filed all
necessary Federal, state, local and foreign income and franchise tax returns and
has paid all taxes shown as due thereon on or before the date such taxes are due
to be paid; and there is no tax deficiency which has been or, to the knowledge
of the Fund might be asserted against the Fund.
1.12 Neither the Fund nor, to the knowledge of the Fund, any of its
employees or officers or directors, agents or any other person acting on behalf
of the Fund has, directly or indirectly, contributed or agreed to contribute any
money, gift or similar benefit (other than legal price concessions to customers
in the ordinary course of business) to any customer, supplier, employee or agent
of a customer, supplier, or official or governmental agency or instrumentality
of any government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person who was, is or may be in a position
to help or hinder the business of the Fund (or assist it in connection with any
actual or proposed transaction) which (i) could reasonably be expected to
subject the Fund to any material damage or penalty in any civil, criminal or
governmental litigation proceeding.
1.13 All contracts and other documents of the Fund described in the
Registration statement or the Prospectus or to be filed as exhibits to the
Registration Statement, have been described in the Registration Statement or the
Prospectus or filed with the Commission, as required under the Rules and
Regulations.
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2. Covenants of the Fund
The Fund covenants and agrees with the Underwriter that:
2.1 It will, at no expense to the Underwriter, furnish the Underwriter
with such number of printed copies of the Registration Statement, including all
amendments and exhibits thereto, as the Underwriter may reasonably request. It
will similarly furnish to the Underwriter and others designated by the
Underwriter as many copies as the Underwriter 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 Fund 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 Fund to register or qualify the Units for
offer and sale under the securities laws of such jurisdictions as the
Underwriter may reasonably designate and will file and make in each year such
filings as may be required. The Fund will furnish to the Underwriter a copy of
such papers filed by the Fund 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 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 Underwriter; (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 Fund or the Underwriter, 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 Fund will promptly
notify the Underwriter thereof (unless the information shall have been received
from the Underwriter) and will effect the preparation of an amended or
supplemental prospectus which will correct such statement or omission. The Fund
will then promptly prepare such amended or supplemental prospectus for the Fund
or prospectuses as may be necessary to comply with the requirements of Section
10 of the Securities Act.
2.5 The Fund shall, at its own expense, use its best efforts to qualify or
register the Units for sale (or obtain an exemption from registration) under the
securities or "blue sky" laws of such jurisdictions as you may designate, and
shall make such applications and furnish such information to the Underwriter as
may be required for that purpose, and shall comply with such laws: provided,
however, that the Fund shall not be required to qualify as a foreign corporation
or a dealer in securities or to execute a general consent to service of process
in any jurisdiction in
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any action other than one arising out of the offering or sale of the Units. The
Fund shall bear all of the expense of such qualifications and registrations.
After each closing date the Fund shall, at its own expense, from time to time
prepare and file such statements and reports as may be required to continue each
such qualification (or maintain such exemption from registration) in effect for
so long a period as required by law, regulation or administrative policy in
connection with the offering of the Units.
3. Obligations and Compensation of Underwriter
3.1 The Fund hereby appoints the Underwriter as its agent and principal
distributor for the purpose of selling up to a maximum of $100,000,000 aggregate
principal amount of Units itself or through Dealers, all of whom shall be
members of the NASD. The Underwriter may also sell Units directly to its own
clients and customers at the public offering price and subject to the terms and
conditions stated in the Prospectus. The Underwriter hereby accepts such agency
and distributorship and agrees to use its best efforts to sell the Units on said
terms and conditions. The Underwriter represents to the Fund 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 Underwriter agrees to be bound by the terms of the Escrow Agreement
executed December __, 2002 ("Escrow Agreement") by and among SouthTrust Bank, as
escrow agent ("Escrow Agent"), the Underwriter and the Fund, a signed copy of
which the Underwriter acknowledges has been furnished to it by the Fund.
3.2 Promptly after the effective date of the Registration Statement, the
Underwriter and the Dealers shall commence the offering of the Units to the
public in jurisdictions in which the Units are registered or qualified for sale
or in which such offering is otherwise permitted. The Underwriter and the
Dealers will suspend or terminate offering of the Units upon request of the Fund
at any time and will resume offering the Units upon subsequent request of the
Fund.
3.3 As provided in the "Plan of Distribution" section of the Prospectus,
as compensation for the services rendered by the Underwriter, the Fund agrees
that it will pay the Underwriter a fee as more fully described in Attachment 3.3
of this Agreement. The Underwriter may engage other dealers registered with the
NASD to sell Units. All sales commission will be paid by the Underwriter. The
Fund will not be liable or responsible to any Dealer for direct payment of
commissions to such Dealer, it being the sole and exclusive responsibility of
the Underwriter for payment of commissions. The Manager is responsible for all
organizational and offering expenses without limitation, however, AmeriFirst,
Inc. the parent holding company of the Underwriter may receive up to .5% of the
gross proceeds to cover a portion of the actual accountable expenses. Without in
any way limiting the foregoing, no commissions, Underwriter fee or expense
reimbursement will be paid to the Underwriter 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 Underwriter
under this Section 3.3 unless and until $2,500,000 of Units have been sold by
the Underwriter and the Dealers (the "Minimum Offering"). Until the Minimum
Offering is obtained, all investments will be held in an interest-bearing escrow
account and, if the Minimum Offering is not obtained, all investments with
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interest earned thereon will be returned to the investors in accordance with the
terms and conditions of the Prospectus and Escrow Agreement.
3.4 The Underwriter represents and warrants to the Fund, 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 Fund by the Underwriter 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 Underwriter represents and warrants to the Fund that it will not
represent or imply that the Escrow Agent, 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 Fund, nor will
it use the name of said Escrow Agent 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 Fund will indemnify and hold harmless the Dealers and the
Underwriter, their officers and directors and each person, if any, who controls
such Dealer or Underwriter 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 Underwriter, 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 Fund or
the Manager on their 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 Fund 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 Underwriter, its officers and directors and each such controlling
person for any legal or other expenses reasonably incurred by such Dealer or
Underwriter, its officers and directors, or such controlling persons in
connection with investigating or defending such loss, claim, damage, liability
or action; provided that the Fund 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
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omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Fund by or on behalf of any Dealer or
Underwriter specifically for use with reference to such Dealer or Underwriter 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 Fund will not be liable in any such case
if it is determined that such Dealer or Underwriter was at fault in connection
with the loss, claim, damage, liability or action.
4.2 The Underwriter will indemnify and hold harmless the Fund, the Manager
and each person or firm which has signed the Registration Statement and each
person, if any, who controls the Fund and the 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 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 Fund or Manager by or on behalf of the
Underwriter specifically for use with reference to the Underwriter 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 Underwriter 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 Underwriter may otherwise have.
4.3 Each Dealer severally will indemnify and hold harmless the Fund, the
Manager, the Underwriter, 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 Fund, the Manager or the Underwriter within the
meaning of Section 15 of the Securities Act, from and against any losses,
claims, damages or liabilities to which the Fund, the Manager, the Underwriter,
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-
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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 Fund or the Underwriter 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 Fund, the Manager, the Underwriter,
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 commencement 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 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 below) 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
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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 Fund, the Manager or the Underwriter, or any officer or director
thereof, or by or on behalf of the Fund, the Manager or the Underwriter, (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. Conditions to Underwriter's Obligations
The obligations of the Underwriter to purchase and pay for the Units are
subject to the accuracy (as of the date thereof and as of each Closing Date) of
and compliance with the representations and warranties of the Company contained
herein, the performance by the Company of all of their respective obligations
hereunder and the following further conditions:
5.1 Effective Registration Statement; No Stop Order. The Registration
Statement shall have become effective and you shall have received notice thereof
not later than 6:00 p.m., Eastern Standard Time, on the date of this Agreement,
or at such later time or on such later date as to which you may agree in
writing. In addition, on each Closing Date (i) no stop order denying or
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for that or any similar purpose shall have been instituted or
shall be pending or, to your knowledge of the Fund, shall be contemplated by the
Commission, and (ii) all requests on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of the
Underwriter.
6. Confirmation
The Fund hereby agrees and assumes the duty to send an acknowledgment to
each investor whose subscription for Units is accepted in whole or in part by
the Fund.
7. Suitability of Investors
The Underwriter 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 (or to those it reasonably believes
to meet suitability standards in states that deviate from those standards set
forth in the Prospectus), 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 Underwriter will, and
in its agreements with Dealers the Underwriter 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 Administrators Association, Inc.
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8. Submission of Orders
8.1 Those persons who purchase Units will be instructed by the Underwriter
or the Dealer to make their checks payable to the Escrow Agent during the course
of the minimum offering, and thereafter either to the Fund or to the Escrow
Agent in accordance with the Escrow Agreement. The Underwriter 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 Underwriter or Dealer which
conform to the foregoing instructions shall be transmitted for deposit pursuant
to one of the methods described in this Section 8. Transmittal of received
investor funds will be made in accordance with the following procedures.
8.2 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 Underwriter by the end of the next business day
following receipt by the Dealer for deposit to the Escrow Agent, during the
course of the minimum offering, and thereafter either to the Fund or to the
Escrow Agent in accordance with the Escrow Agreement.
8.3 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 following receipt by the Final Review Office, transmit
such checks in care of the Underwriter for deposit to the Escrow Agent, during
the course of the minimum offering, and thereafter either to the Fund or to the
Escrow Agent in accordance with the Escrow Agreement.
8.4 Where the Underwriter is involved in the distribution process, checks
will be transmitted by the Underwriter for deposit to the Escrow Agent, during
the course of the minimum offering, and thereafter either to the Fund or to the
Escrow Agent in accordance with the Escrow Agreement, as soon as practicable,
but in any event by the end of the second business day following receipt by the
Underwriter. Checks of rejected subscribers will be promptly returned to such
subscribers.
9. Survival of Provisions
The respective agreements, representations and warranties of the Fund and
the Underwriter 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 Underwriter or any Dealer or any
person controlling the Underwriter or any Dealer or by or on behalf of the Fund,
its partners or any person controlling the Fund, and (c) the acceptance of any
payment for the Units.
10. Applicable Law
This Agreement was executed and delivered in, and its validity,
interpretation and
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construction shall be governed by the laws of, the State of Florida.
11. 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.
12. Successors and Amendment
12.1 This Agreement shall inure to the benefit of, and be binding upon,
the Fund, the Manager, the Underwriter, 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.
12.2 This Agreement may be amended by the written agreement of the Fund
and the Underwriter.
13. Term
Any party to this Agreement shall have the right to terminate this
Agreement on 60 days' written notice.
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,
AMERIFIRST FUND I, LLC
By: AMERIFIRST FINANCIAL
SERVICES, INC., its sole manager
--------------------------------
John Tooke, President
Accepted and agreed as of
the date first above written.
AMERIFIRST CAPITAL CORP.
By: ________________________
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ATTACHMENT 3.3
TO THE UNDERWRITING AGREEMENT
Compensation for the services rendered by the Underwriter
Up to a maximum of ten percent (10%) of the gross proceeds of the sale of the
Units. The Underwriter may negotiate fees to be paid to dealers on Units sold by
them. In addition, AmeriFirst, Inc. the parent of the underwriter, shall be paid
up to one-half percent (.5%) for reimbursement of actual accountable expenses.
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