EXHIBIT 10.11
AMENDMENT NO. 1 TO
SUBSCRIPTION ESCROW AGREEMENT
This Amendment No. 1 dated as of December 23, 2003 (this "Amended
Agreement"), to the Subscription Escrow Agreement dated December 5, 2002 by and
among AmeriFirst Fund I, LLC, AmeriFirst Capital Corp. and SouthTrust Bank (the
"Agreement"), is entered into as of the 20th day of October 2003, 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"). Capital terms not otherwise
defined herein shall have the meanings assigned to them in the Agreement.
WHEREAS, the parties desire to amend the Agreement to (i) clarify that the
Effective Date of the Issuer's Registration Statement on Form S-1 is October 17,
2003, the date upon which the issuer's Post-Effective Amendment No. 2 to the
Registration Statement was declared effective by the Securities and Exchange
Commission; and (ii) amend Exhibits A and B to the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. The introduction and the three WHEREAS clauses contained in the Agreement are
hereby amended in their entirety to read as follows:
Subscription Escrow Agreement (the "Agreement") executed this 5th day of
December 2002, 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, in connection with the Issuer's initial public offering (the
"Offering") of a maximum of 100,000, and a minimum of 2,500 (the "Minimum
Purchase"), units of membership interest (the "Units") in the Issuer at 1,000
per unit, the Issuer has filed a Registration Statement on Form S-1 (File No.
333-98651) which was declared effective by the Securities and Exchange
Commission on May 14, 2003, as amended by Post-Effective Amendment No. 2, which
was declared effective on October 17, 2003 and is hereinafter referred to as the
"Effective Date."
WHEREAS, the Depositor has been named as the Underwriter in connection
with the Offering for the sale of the Units in accordance with, and pursuant to,
the terms and conditions of the Underwriting Agreement dated as of October 17,
2003 by and between the Issuer and the Depositor.
WHEREAS, the Issuer and the Depositor desire to establish an escrow fund
in compliance with 17 C.F.R. Section 240.15c2-4, to be held by the Escrow Agent
until the earlier of (i) April 17, 2004, six months from the Effective Date,
unless extended by the Issuer for an
additional 6 months until October 17, 2004, (ii) upon the sale of $2,500,000 in
Units, or (iii) upon termination of the Fund.
2. Exhibit A to the Agreement is hereby amended in its entirety to read as
follows:
Upon the sale of $2,500,000 (the "Minimum Escrow Funds") in Units, the
Escrow Agent shall transfer to the Issuer, by wire transfer or certified check,
to a bank account of the Issuer's description, the full amount of the Minimum
Escrow Funds, together with all interest accrued thereon. Upon transfer of the
Escrow Funds to the Issuer, the escrow fund with the Escrow Agent shall be
automatically terminated.
In the event that (i) the sale of the Minimum Purchase is not achieved on
or prior to April 17, 2004, six months from the Effective Date, or if extended
by the Issuer for an additional 6 months, on or prior to October 17, 2004, or
(ii) the Offering is terminated for any reason prior to the closing on the
Minimum Purchase, upon written instructions from the Issuer, the Escrow Agent
shall return to the respective investors the Escrow Funds, together with
interest accrued thereon.
The Federal Employer Identification Number of the Issuer is 00-0000-000.
The Federal Employer Identification Number of the Depositor is 00-0000000.
3. Exhibit B to the Agreement is hereby amended in its entirety to read as
follows:
In the absence of written direction from the Issuer, the Escrow Funds
shall be invested in the X.X. Xxxxxx Prime Money Market Reserve or SouthTrust
Money Market Fund or a similar money market fund that the Escrow Agent uses for
the investment of short term funds.
4. As amended hereby, the Agreement shall continue in full force and effect.
5. This Amended Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which taken together shall
constitute a single agreement. This Amended Agreement may be executed by
facsimile signature.
[Signature Page Follows]
IN WITNESS WHEREOF, this Amended Agreement has been executed as of the
date first written above in accordance with Section 13 of the Agreement.
AMERIFIRST FUND I, LLC
By: AmeriFirst Financial Services, Inc.
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx, President
AMERIFIRST CAPITAL CORP.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Chief Executive Officer
SOUTHTRUST BANK
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: VP & Manager
