EXHIBIT 10.7
CONSULTING AGREEMENT
This Agreement is between Amerifirst Financial Services, Inc., 814 A1A North,
Suite 300, Ponte Vedra Beach, FL 32082, (together with its affiliates
"Amerifirst") and 21st Services, 401 2nd Avenue South, Suite 820, Minneapolis,
MN 55401, (together with its affiliates "21st").
W I T N E S S E T H:
WHEREAS, Amerifirst desires to assure itself of the Non-Exclusive services of
21st and desires to enter into an Non-Exclusive Consulting Agreement of Services
with 21st, upon the terms and conditions hereinafter set forth; and
WHEREAS, 21st is desirous of entering into such an agreement of Consulting
Services;
NOW, THEREFORE, in consideration of this Agreement and the mutual promises and
covenants hereinafter set forth, Amerifirst agree as follows:
1. Duties
A. Amerifirst shall submit viatical or senior settlement files, which
include all medical and other information needed to produce a life
expectancy estimate. Amerifirst warrants that such files fully
contain accurate and complete information. Files may be transmitted
electronically in a secure manner or in hard copy to 21st Services
at 401 2nd Avenue South, Suite 820, Minneapolis, MN 55401 or to such
other addresses as 21st shall designate. Hard copy files shall
consist of single sided copies. Amerifirst shall submit a volume of
files and file sizes as shall be agreed upon by Amerifirst and 21st.
B. 21st shall review submitted files in timely fashion. If necessary,
21st may contact attending physicians or providers to obtain
clarification or verbal updates, provided files contain the
respective physician or provider's name, address and phone number
and provided files contain an authorization for release of
information. However, Amerifirst shall be responsible for ordering
any attending physician statements, paramedical exams or other
medical or underwriting information that may be required.
C. Based on information included in files provided by Amerifirst, 21st
will produce a Life Expectancy Report, similar in format to the
attached sample report, Exhibit A, which is attached and
incorporated into this agreement. Life Expectancy Reports shall
include an estimate of life expectancy or "not predictable" if
appropriate.
D. Life expectancy estimates (LE's) may be based on underwriting "table
ratings" converted into LE's by use of mortality tables, statistical
studies, and clinical judgment or by some combination of the above.
21st will use its best professional judgment in estimating life
expectancy. However, 21st will not be liable for the accuracy or
appropriateness of any mortality tables used or for any mortality
rating or
estimated life expectancy provided; it being recognized that life
expectancy estimates are by their very nature imprecise.
E. Only Amerifirst shall use the Life Expectancy Reports prepared for
Amerifirst by 21st. Amerifirst shall indemnify and hold 21st
harmless from any third party who may, in whole or in part, directly
or indirectly, rely on such reports prepared by 21st.
2. Term. This Agreement shall become effective on November 1, 2002 and shall
continue for a term of ninety (90) days. Thereafter, this Agreement shall
renew automatically for subsequent ninety (90) day terms, unless
terminated in writing by either party.
3. Compensation. 21st will be paid $225.00 for each file reviewed of up to
250 single sided pages subject to market price increase to other clients.
There may be additional charges for files in excess of 250 single sided
pages, which Amerifirst and 21st shall agree to before any analysis is
begun. Also, Amerifirst shall reimburse 21st for any expenses it incurs in
returning files to Amerifirst. 21st shall be compensated $100 for the
re-review of a file, provided such re-review is requested within three (3)
months of 21st's initial review. Re-review of files submitted after three
(3) months will be treated as a new submission. Amerifirst shall pay 21st
within fifteen (15) days of receipt of any invoice for files reviewed.
Past due bills shall bear interest at the rate of 1.5% per month.
4. Termination. After the initial ninety (90) day term, either party may
terminate this Agreement upon giving fifteen (15) days advance written
notice to the other party.
5. Non-Solicitation. During the term of this Agreement and for a period of
two years thereafter, Amerifirst and 21st agree not to solicit or
interfere with the other party's employees, subcontractors or agents for
employment or contracting without the express advance written approval of
the other party. The parties further agree that any violation of this
provision will be cause for entry of a preliminary, temporary or permanent
mandatory or restraining injunctions, orders, judgments or decrees as may
be necessary to protect the non-defaulting party. In the event such action
becomes necessary to enforce this provision of the agreement, the
prevailing party shall be entitled to payment of its reasonable attorney's
fees and court costs.
6. Independent Contractor. It is understood and agreed that 21st is acting as
an independent contractor in rendering services pursuant to this Agreement
and its employees and subcontractors are not employees of Amerifirst. As
an Independent Contractor, 21st retains sole and absolute discretion in
the manner and means of providing the contracted services. Amerifirst
shall not be responsible for payment of employment taxes or withholding of
income or other taxes.
7. Confidential Information.
A. It is recognized by each party to this Agreement that certain
information, including but not limited to medical records of
applicants, Life Expectancy Reports, business practices, proprietary
know-how, marketing, pricing, financial information, customer lists
and data (collectively "confidential information"), which is
proprietary and non-public may be disclosed to the other party
pursuant to the Agreement. Amerifirst and
2
21st agree that confidential information will only be available to
officers, employees or agents of the parties who may be required to
have access to such confidential information, in order to perform
their duties under this Agreement and that confidential information
will not be disclosed to any other person, firm or entity without
obtaining the prior written consent of the other party.
B. 21st may destroy all file materials reviewed after completion of its
review. However, 21st may retain such files as long as it maintains
adequate security over them.
8. Any disputes relating to this Agreement will be governed by the laws of
the State of Florida, without regard to conflict of law provisions.
Parties hereby agree that the venue for any legal proceedings relating to
this Agreement will be held in the state or federal courts of the State of
Florida in St. John's County.
9. Any controversy or claim arising out of or relating to this contract, or
the breach of this contract shall be settled by arbitration administered
by the American Arbitration Association under its Commercial Arbitration
Rules as amended, and judgment on the award rendered by an arbitrator(s)
may be entered in any court having jurisdiction thereof. The prevailing
party shall be entitled to payment of its reasonable attorney's fees and
court costs.
10. This Agreement is expressly intended to govern the respective rights and
duties of the parties both during the term of this Agreement and
thereafter.
11. Entire Agreement and Amendments. Amerfirst and 21st agree that this
Agreement constitutes the entire agreement between them with respect to
this subject matter. The terms and provisions of this Agreement shall not
be changed, amended, waived, modified or terminated in any respect
whatsoever, except by a written instrument executed by Amerifirst and
21st.
In witness whereof, the parties have executed this Agreement as of November 1,
2002.
On behalf of On behalf of
Amerifirst Financial Services, Inc. 21st Services
/s/ John Tooke /s/ Steven Walker
- ---------------------------- ------------------------------------
Signature Signature
John Tooke Steven Walker
- ---------------------------- ------------------------------------
Printed Name Printed Name
President Managing Director
- ---------------------------- ------------------------------------
Title Title
3
EXHIBIT A
SAMPLE LIFE EXPECTANCY REPORT
Insured: Xxxxxx Xxxxxx Report Requested By: Amerifirst
Social Security Number: xxx-xx-xxxx Gender: Male
Date of Birth: 23 July 1950 Height: 72" (6/08/01)
Age: 51 Weight: 225lbs. (6/08/01)
Control Number: xxxxxxxx Smoking Status: NS
Medical History:
We have reviewed records from 1994 to 10 July 2001. The 8 June 2001 neurology
note indicates that Mr. Xxxxxx has "possible probable ALS." He developed slurred
speech in December 2000. The 10 July 2001 neurology note reports that he
recently developed difficulty with ambulation and rising from a sitting
position. Bulbar signs and diffuse motor neuron dysfunction were noted.
On 14 November 1994, Mr. Xxxxxx had cardiac catheterization following a SPECT
cardiolite that was suggestive of ischemia. Two 50% LAD lesions were found. On
26 March 1999, he had a negative stress test and a negative nuclear scan. No
recent angina was reported.
Estimated Life Expectancy: 21 months*
Discussion of Significant Medical Conditions Affecting Mortality*:
Mr. Xxxxxx has stable coronary artery disease, as well as treated and controlled
hypertension. While his cardiac conditions are of some concern, of most
significance by far is the presumptive diagnosis of ALS. Mr. Xxxxxx has a
neurologic condition that is progressing rapidly.
*Please note: Our estimated life expectancy is an estimate base on those records
provided to us by Amerifirst through 7/10/01 and our best judgment. There can be
no guarantee as to the accuracy of any specific estimated life expectancy and
21st Services assumes no liability for any estimated life expectancy provided.
- ------------------------------- -----------------------
Date of Report
This report is intended only for the specific use of the company or individual
requesting the report and may not be distributed to any other party without the
written consent of 21st Services or the insured. All medical information and/or
information specific to the identity of any individual is considered
confidential under certain state and Federal laws. If your state or the insured
individual's state of residence requires such protection then state law
prohibits you from making further disclosure of the information without specific
written consent of the person to whom it pertains or as otherwise permitted by
law.
4