Exhibit 10.1
SUBSCRIPTION ESCROW AGREEMENT
SUBSCRIPTION ESCROW AGREEMENT (the "Agreement") executed this _____day of
_________, 2002 ("Effective Date") by and among AmeriFirst Fund I, LLC, a
Florida limited liability company (the "Issuer"), AmeriFirst Capital Corp., a
California corporation (the "Depositor") and SOUTHTRUST BANK, a national banking
association, 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 10 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 dated December ____, 2002.
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 6 months from the date of the prospectus or the sale of
$2,5000,000 in Units is complete or is terminated by the Issuer 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"). 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 (i) actions taken at the request of
either Depositor or Issuer; (ii) inaction resulting from the failure of either
Depositor or Issuer to provide the Escrow Agent with written instructions as to
investment directives; (iii) inaction resulting from the exercise of the Escrow
Agent's sole discretion in the choice of requested investments; or, (iv) 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
conduct, 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.
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
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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 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
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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: South Trust Bank
_______, Florida
Telephone:
Attention:
(b) If to Issuer: AmeriFirst Fund I, LLC
000 Xxxxxxx X0-X, Xxxxx 000
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Attention: Xxxx Xxxxx
(c) If to Depositor: AmeriFirst Capital Corp.
000 Xxxxxxx X0-X, Xxxxx 000
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Attention: Xxxx Xxxxx
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, modified, amended, altered or supplemented, in whole or in
part, except by a writing signed by all the parties hereto.
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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
_____________________________________
By:__________________________________
Its:_________________________________
ISSUER
_____________________________________
By: Xxxx Xxxxx
Its: President
DEPOSITOR
_____________________________________
By: Xxxx Xxxxx
Its: President
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Exhibit "A"
Escrow Agent shall pay over to the Depositor from the Escrow Funds, by wire
transfer of immediately available funds to a bank account of the Issuer, the
amount of Two Million Five Hundred Thousand ($2,500,000) dollars upon the
occurrence of sales of at least $2,500,000 in Units. The Escrow Fund shall then
be terminated.
The Federal Employer Identification Number of the Issuer is 00-0000-000. The
Federal Employer Identification Number of the Depositor is _________.
Exhibit "B"
Interest-bearing bank accounts, money market funds or short-term U.S. Treasury
bills.
Exhibit "C"
As compensation for services rendered under this Agreement, Escrow Agent shall
receive $_________ , which shall be paid by the Issuer and Depositor [upon
(event or occurrence)]. 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.
