EXHIBIT 10.1
SUBSCRIPTION ESCROW AGREEMENT
SUBSCRIPTION ESCROW AGREEMENT (the "Agreement") executed this _____day of
December 2002 ("Effective Date") by and among AmeriFirst Fund I, LLC, a Florida
limited liability company (the "Issuer"), AmeriFirst Capital Corp., a Florida
corporation (the "Depositor") and SOUTHTRUST BANK, a state banking institution
organized and existing under the laws of the State of Alabama, as escrow agent
("Escrow Agent").
WHEREAS, the Issuer has filed a registration statement, Form S-1, File No.
333-98651, with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, concerning the subscription and sale of
membership units ( the "Units") in the Issuer with a minimum purchase
requirement of 100 Units ("Minimum Purchase") at the price of $1,000.00 per
Unit.
WHEREAS, the Depositor has been named as the underwriter pursuant to the
proposed subscription and sale of the Units under the terms of the Underwriting
Agreement by and between Issuer and Depositor to be dated the effective date of
the above registration statement (the "Effective Date").
WHEREAS, the Issuer and Depositor propose to establish a escrow fund in
accordance and compliance with 17 C.F.R. section 240.15c2-4 to be held by the
Escrow Agent until the earlier of six months from the Effective Date of the
prospectus or the sale of $2,5000,000 in Units is complete or is terminated by
the Issuer unless extended for up to an additional six months in accordance with
the terms of the prospectus.
NOW THEREFORE, in consideration of the promises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Issuer and the Depositor do hereby
appoint the Escrow Agent as escrow agent for the purposes described herein.
2. ACCEPTANCE OF APPOINTMENT BY ESCROW AGENT. The Escrow Agent does hereby
accept the appointment as escrow agent and agrees to act on the terms and
conditions described herein.
3. ESCROW FUND. All funds received by Depositor and Issuer in connection
with the sale of Units shall be deposited with the Escrow Agent ("Escrow Funds")
by noon of the next business day after receipt by the Depositor. The Escrow
Agent shall hold, maintain and secure the Escrow Funds subject to the terms,
conditions and restrictions herein described. Escrow Agent shall release Escrow
Funds only in accordance with the instructions as set forth in Exhibit "A", or
as otherwise expressly set forth in this Agreement.
4. INVESTMENT OF ESCROW FUND. The Escrow Agent shall invest and reinvest
the Escrow Funds in the investment(s) set forth in Exhibit "B" or any other
investment which shall be requested in writing by both Issuer and Depositor and
which shall be considered acceptable in the sole discretion of the Escrow Agent.
Escrow Agent shall have sole discretion
to select the brokers, dealers or other traders of securities in connection with
the investment of Escrow Funds. During the term of this Agreement the Escrow
Agent shall provide the Depositor and the Issuer with written monthly statements
containing the beginning balance of the Escrow Funds, as well as all principal
and income transactions for the statement period. Escrow Agent shall have the
express authority to liquidate any and all investments consisting in whole or in
part of Escrow Funds to make any and all payments under this Agreement.
5. LIABILITY OF ESCROW AGENT. The Escrow Agent shall not be liable for any
loss to Escrow Funds resulting from the investment(s) enumerated in Exhibit "B"
or any investment(s) requested in writing by either Depositor or Issuer. The
Escrow Agent shall not be liable for any (a) actions taken at the request of
either Depositor or Issuer; (a) inaction resulting from the failure of either
Depositor or Issuer to provide the Escrow Agent with written instructions as to
investment directives; (a) inaction resulting from the exercise of the Escrow
Agent's sole discretion in the choice of requested investments; or, (a) any loss
resulting from the liquidation of any investment(s) prior to such investment's
maturity date for the purpose of making required payments under this Agreement.
The Escrow Agent shall not be held liable for any actions taken in good faith
reliance upon written instructions by Depositor and/or Issuer. The Escrow Agent
shall not be held liable for any action or inaction taken in good faith, except
that it may be held liable for its own gross negligence or willful misconduct,
if so determined by a court of competent jurisdiction. Under no circumstances
shall the Escrow Agent be held liable for any special, indirect or consequential
damages of any kind, even though the Escrow Agent may have been placed on notice
of the likelihood of such loss.
6. RIGHTS AND DUTIES OF ESCROW AGENT. This Agreement shall represent the
entire understanding of the parties hereto, and the Escrow Agent shall only be
required to perform the duties expressly described herein, and no further duties
shall be implied from this Agreement or any other written or oral agreement by
and between the Escrow Agent, the Depositor and the Issuer made previous or
subsequent to this Agreement, unless such written amendment to this Agreement is
executed by all parties to this Agreement. The Escrow Agent may rely upon any
written instructions believed in good faith to be genuine when signed and
presented by the requesting party and shall not have a duty to inquire or
investigate the validity of any such written instruction. The Escrow Agent shall
not be required to solicit funds from either Depositor or Issuer in connection
with this Agreement. The Escrow Agent shall be permitted to execute any and all
powers under this Agreement directly or through its agents and/or attorneys, and
shall be allowed to seek counsel from any professional regarding the performance
of this Agreement, which professionals shall be selected at the sole discretion
of the Escrow Agent. Should the Escrow Agent become uncertain as to its duties
under this Agreement, it shall be permitted to immediately abstain from further
action until such duties are expressly defined in writing by the parties hereto,
and shall only be required to protect and keep the Escrow Funds in their current
investment(s) until such time as a written agreement among the parties is
executed or a court of competent jurisdiction shall render an order directing
further action. Upon release of Escrow Funds as set forth in Exhibit "A" hereto,
Escrow Agent shall be fully released from any and all further obligations,
except for the provision of written notice to the other parties to this
Agreement, setting forth in such notice the date of release of the Escrow Funds,
the party to whom released, the amount released and a statement setting forth
Escrow Agent's release from further obligations to any other party to this
Agreement.
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7. RESIGNATION AND SUCCESSION OF ESCROW AGENT. The Escrow Agent may resign
and be discharged of all duties and obligations under this Agreement by
providing ten (10) days written notice of such resignation to both the Depositor
and the Issuer. If no successor escrow agent shall have been named at the
expiration of the ten (10) day notice period, the Escrow Agent shall have no
further obligations hereunder except to hold the Escrow Funds as a depository.
Upon notification by Depositor and Issuer of the appointment of a successor
escrow agent, the Escrow Agent shall promptly deliver the Escrow Funds and all
materials and instruments in its possession which relate to the Escrow Funds to
such successor, and the duties of the resigning Escrow Agent shall terminate in
all respects, and it shall be released and discharged from all further
obligations herein. The Escrow Agent shall have the right to withhold an amount
equal to any amount due and owing the Escrow Agent, plus any costs and fees
incurred by the Escrow Agent in connection with the termination of this
Agreement. Any merger, consolidation or the purchase of all or substantially all
of the Escrow Agent's corporate assets resulting in a new corporate entity shall
not be considered a successor for the purposes of this Agreement, and the Escrow
Funds shall be transferred to such entity without written consent or further
action under this Agreement.
8. TERMINATION OF ESCROW AGENT. The Escrow Agent may be discharged from
its duties under this Agreement upon thirty days (30) written notice from
Depositor and Issuer and upon the payment of any and all costs and fees due to
Escrow Agent. In such event, the Escrow Agent shall be entitled to rely upon
written instructions from Depositor and Issuer as to the disposition and
delivery of the Escrow Funds. Upon thirty (30) days after receipt of such
written notice of termination, if no successor has been named, the Escrow Agent
shall immediately cease further action under this Agreement and shall have no
further obligations hereunder except to hold the Escrow Funds as a depository.
9. TAXES AND FEES. Depositor and Issuer each represent that its Federal
Tax Identification Number listed in Exhibit "A" is true and correct, and that
each will notify the Escrow Agent in writing immediately upon any change to such
number. Depositor and Issuer each grant to the Escrow Agent a right of set-off
which may be exercised to pay any and all taxes, whether federal, state or
local, incurred by the investment of the Escrow Funds. Depositor and Issuer
shall, jointly and severally, indemnify and hold harmless the Escrow Agent
against and in respect to liability for taxes and/or any penalties or interest
attributable to the investment of Escrow Funds by Escrow Agent pursuant to this
Agreement. The Depositor and Issuer shall also agree to pay, jointly and
severally, compensation for the services rendered by the Escrow Agent under this
Agreement. Compensation for services rendered by the Escrow Agent shall be paid
per the instructions set forth on Exhibit "C", and Issuer and Depositor jointly
and severally agree to pay or reimburse the Escrow Agent for all expenses and
disbursements, including attorney's fees, incurred in connection with the
preparation, execution, performance, delivery, modification or termination of
this Agreement.
10. INDEMNIFICATION OF ESCROW AGENT. Depositor and Issuer shall jointly
and severally indemnify, defend and hold harmless the Escrow Agent and its
directors, officers, agents and employees from all loss, liability or expense
arising from the execution and/or performance of this Agreement or the
undertaking of any instructions from Depositor or Issuer, except for those acts
by the Escrow Agent which shall constitute gross negligence or willful
misconduct, and such indemnification shall include attorney's fees. The Escrow
Agent's
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right of indemnification shall survive the resignation or termination of the
Escrow Agent and the termination of the duties described in this Agreement. The
Depositor and Issuer further grant the Escrow Agent a right of set-off and a
security interest against the Escrow Funds for the payment of any claim for
indemnification, expenses or compensation due hereunder.
11. NOTICES. All communications, notices and instructions required herein
shall be in writing and shall be deemed to have been duly given if delivered by
hand or first class, registered mail, return receipt requested, postage prepaid,
and addressed as follows:
(a) If to Escrow Agent: SouthTrust Bank
Corporate Trust Department
110 Office Park Drive, 2nd Floor
Birmingham, Alabama 35223
Telephone: (205) 254-5334
Facsimile: (205) 254-4180
Attention: Rebecca Brayman
(b) If to Issuer: AmeriFirst Fund I, LLC
1712-H Osborne Road
St. Marys, Georgia 31558
Telephone: (912) 673-9100
Attention: John Tooke
(c) If to Depositor: AmeriFirst Capital Corp.
814 Highway A1A, Suite 300
Ponte Verda Beach, Florida 32082
Telephone: (904) 373-3034
Attention: John Tooke
In the event the Escrow Agent shall receive such written instructions and shall
determine pursuant to its sole discretion that verification of such instructions
shall be required, then the Escrow Agent shall be permitted to seek confirmation
of such instructions by way of telephone contact to the author of such written
instructions. Verification of the instructions by the purported author of the
instructions called at the telephone number placed on the instructions shall
serve to verify such instructions.
12. ASSIGNMENT. This Agreement shall not be assignable absent written
consent of the parties hereto. Any assignment absent written consent shall be
deemed void ab initio, except that the merger or acquisition of all or
substantially all the assets of the parties shall not require written consent,
but shall require written notice to all the parties hereto. Notwithstanding the
foregoing, all covenants contained in this Agreement by or on behalf of the
parties hereto shall bind and inure to the benefit of such parties and their
respective heirs, administrators, legal representatives, successors and assigns.
13. MODIFICATION OF AGREEMENT. This Agreement shall constitute the
complete and entire understanding of the parties hereto, and shall supersede any
and all prior agreements between or among them. The provisions of this Agreement
shall not be waived,
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modified, amended, altered or supplemented, in whole or in part, except by a
writing signed by all the parties hereto.
14. CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida. The parties further waive any
right to a trial by jury with respect to any judicial proceeding arising out of
occurrences related to this Agreement.
15. FORCE MAJEURE. No party to this Agreement shall be liable to any other
party for losses arising out of, or the inability to perform its obligations
under the terms of this Agreement, due to acts of God, which shall include, but
shall not be limited to, fire, floods, strikes, mechanical failure, war, riot,
nuclear accident, earthquake, terrorist attack, computer piracy, cyber-terrorism
or other acts beyond the control of the parties hereto.
16. EXECUTION. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but such counterparts together shall
constitute one and the same instrument. The effective date of this Agreement
shall be the date it is executed by the last party to do so.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SOUTHTRUST BANK
/s/ Donald E. Evans
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By: Donald E. Evans
Its: Vice President and Trust Officer
ISSUER
/s/ John Tooke
-------------------------------------
By: John Tooke
Its: Managing Member
DEPOSITOR
/s/ John Tooke
-------------------------------------
By: John Tooke
Its: President
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Exhibit "A"
Escrow Agent shall pay over to the Depositor from the Escrow Funds, by wire
transfer or bank draft of immediately available funds to a bank account of the
Issuer's description, the amount of Two Hundred Fifty Thousand ($250,000)
dollars upon written instructions of the Issuer and Depositor following the
occurrence of sales of at least $2,500,000 in Units. The Escrow Agent shall pay
the Issuer all interest accrued thereon and deduct all Escrow Agreement costs
and fees. The Escrow Fund shall then be terminated.
In the event the offering of Units is terminated for any reason prior to the
closing on the minimum Purchase, upon written instructions from the Issuer, the
Escrow Agreement shall return to the respective investors the funds on deposit
with interest, less any Escrow Agent costs and fees.
The Federal Employer Identification Number of the Issuer is 16-1628-844. The
Federal Employer Identification Number of the Depositor is 41-2065933.
Exhibit "B"
In the absence of written direction Escrow Collateral is to be invested in the
J.P. Morgan Prime Money Market Reserve or SouthTrust Money Market Fund or a
similar money market fund that the Escrow Argent uses for the investment of
short term funds.
Exhibit "C"
As set forth in Section 9 of the Agreement, Issuer and Depositor shall be
jointly and severally liable for the compensation to be paid to Escrow Agent, as
set forth herein.
Acceptance $1,000
Annual administrative fee $2,750
Plus additional charges, if needed:
Preparation of receipts, each $ 2.50
Return of subscription price to investor each $15.00