EXHIBIT 1.1
CAPITAL BENEFITS, LLC
UNITS
$100,000,000 (Maximum)
$2,500,000 (Minimum)
FORM OF
UNDERWRITING AGREEMENT
______________, 2005
AmeriFirst Capital Corp.
0000-X Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
CAPITAL BENEFITS, LLC, a Florida limited liability company (the "Fund"),
is offering and selling to the public on a "best efforts" basis a minimum of
2,500 units and 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 the Fund's Amended and Restated Operating Agreement dated as
of ___________, 2005 ("Operating Agreement"), attached as an exhibit to 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
licensed with the NASD, or any foreign entity not licensed with the NASD, with
whom the Underwriter has entered into or will enter into a selected dealer
agreement (said dealers and foreign entities hereinafter collectively referred
to as the "Dealers") that:
1.1 A registration statement (File No. 333-98651) on Form S-1
("Registration Statement") of the Fund covering the Units was declared effective
by the Securities and Exchange Commission (the "SEC") on May 14, 2003, as
amended by Post-Effective Amendment No. 4, which was declared effective on May
4, 2004. The Registration Statement was 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 SEC. Copies of the Registration Statement and each
amendment or
supplement thereto, have been or will be delivered to the Underwriter.
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 the prospectus included in the
Registration Statement or any post-effective amendment or supplement thereto, as
so amended or supplemented (the "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 sentence 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 the heading "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, as amended, the Operating Agreement, or any charter,
by-law, indenture, mortgage, deed of trust, lease, rule, regulation, 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
officers, directors, employees, 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 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 SEC, as required under the Rules and Regulations.
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 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) furnish copies of any proposed amendment or supplement of
the Registration Statement or Prospectus to the Underwriter; (b) file every
amendment or supplement to the Registration Statement or the Prospectus that may
be required by the SEC; and (c) 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 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 or prospectuses for the Fund 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 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. 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 the Units itself or through Dealers, all
of whom shall be members of the NASD unless such Dealer is a foreign entity. The
Underwriter may also sell the 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
dated as of June 26, 2005 ("Escrow Agreement") by and among the Fund, the
Underwriter and Wachovia Bank, National Association, as escrow agent ("Escrow
Agent"), a signed copy of which the Underwriter acknowledges has been furnished
to it by the Fund.
3.2 The Underwriter and the Dealers shall promptly commence offering 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 compensation for the services rendered by the Underwriter, the Fund
agrees that it will pay the Underwriter a fee equal to two percent (2%) of the
gross proceeds of the sale of the Units by the Underwriter. The Fund will not be
liable or responsible to any Dealer engaged by the Underwriter for direct
payment of commissions to such Dealer, it being the sole and exclusive
responsibility of the Underwriter for payment of commissions to such Dealers.
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 amount permitted by the 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") within the time period set forth in the Prospectus. 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
within the time periods set forth in the Prospectus, all investments with
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 executes 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 or the Prospectus 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 Underwriter and any
Dealers, their respective officers and directors and each person, if any, who
controls the Underwriter or any such Dealer within the meaning of Section 15 of
the Securities Act from and against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter or any such Dealer, their respective
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 or any post-effective amendment thereto, or in
the Prospectus or any amendment or supplement thereto, 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 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 the Underwriter or each Dealer, its officers and
directors and each such controlling person for any legal or other expenses
reasonably incurred by the Underwriter or such Dealer, its officers and
directors, or such controlling persons in connection with investigating or
defending such loss, claim, damage, liability or action; provided, however, 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 omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Fund by or on
behalf of the Underwriter or any Dealer specifically for use with reference to
the Underwriter or such Dealer in the preparation of the Registration Statement
or any such post-effective amendment thereof, the Prospectus or any such
amendment thereof or supplement thereto, or any such Blue Sky Application;
provided, further, that the Fund will not be liable in any such case if it is
determined that the Underwriter or such Dealer 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 executed 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 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
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/her consent, as about to become a
director), each of their respective officers who has executed 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- 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 the Prospectus or in any amendment or supplement
thereto 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 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 this
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 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 of and compliance with the representations and
warranties of the Fund contained herein, the performance by the Fund of all of
its obligations hereunder and the following further conditions:
5.1 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 SEC, and all
requests on the part of the SEC 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.
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 procedures set forth in this
Section 8.
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
The validity, interpretation and construction of this Agreement 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 sixty (60) days' prior written notice.
[Signature Page Follows]
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,
CAPITAL BENEFITS, LLC
By: AMERIFIRST FINANCIAL
SERVICES, INC., its sole manager
___________________________
Name:
Title:
Accepted and agreed as of
the date first above written.
AMERIFIRST CAPITAL CORP.
By:________________________
Name:
Title:
