EXHIBIT 1.1
AMERIFIRST FUND I, LLC
UNITS
$100,000,000 (Maximum)
$2,500,000 (Minimum)
UNDERWRITING AGREEMENT
_______ ___, 2002
AmeriFirst Capital Corp.
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
AMERIFIRST FUND I, LLC, a Delaware limited liability company (the "Fund"),
is offering and selling to the public 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 ten Units at $10,000, in
accordance with the Fund's Prospectus (defined below) and Operating Agreement
dated as of April 22, 2002, attached as an exhibit to the Prospectus. Terms not
defined herein shall have the same meaning as in 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 with
whom the Underwriter has entered into or shall enter into a selected dealer
agreement (said dealers being hereinafter called the "Dealers") that:
1.1 A registration statement (File No. 333-_______) on Form S-1
("Registration Statement") of the Fund has been 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 Securities and Exchange Commission (the "SEC"),
covering the Units. Copies of such Registration Statement and each amendment
thereto have been or will be delivered to the Underwriter. As used herein, the
term "Preliminary Prospectus" shall mean each prospectus filed pursuant to Rule
430 or Rule 424(a) of the Rules and Regulations. The Preliminary Prospectus bore
the legend required by Item 501 of Regulation S-K under the Securities Act and
the Rules and Regulations. Such registration statement (including all financial
statements, schedules and exhibits) as amended at the time it
becomes effective and the final prospectus included therein are herein
respectively called the "Registration Statement" and the "Prospectus", except
that (i) if the prospectus filed by the Company pursuant to Rule 424(b) or Rule
430A of the Rules and Regulations shall differ from such final prospectus as
then amended, then the term "Prospectus" shall instead mean the prospectus first
filed pursuant to said Rule 424(b) or Rule 430A, and (ii) if such registration
statement is amended or such prospectus is amended or supplemented after the
effective date of such registration statement then (unless the context
necessarily requires otherwise) the term "Registration Statement" shall include
such registration statement as so amended, and the term "Prospectus" shall
include such prospectus as so amended or supplemented, as the case may be.
1.2 The Fund has been duly and validly organized and formed as a limited
liability company under the Delaware Limited Liability Company Act and is in
good standing under the laws of Delaware 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 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 Prospectus comply with the Securities
Act and the Rule 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 provisions of this Paragraph 1.3 shall 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 "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 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 Capital
Corp. ("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 shall not conflict with or constitute a default under the Fund's
Certificate of Formation,
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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, except to the extent that the enforceability of the indemnity
and/or contribution provisions contained in Paragraph 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 Paragraph 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 shall have been duly
authorized and validly issued, and upon payment therefor, shall be fully paid
and nonassessable and shall 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 the 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
employees or officers or directors, 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
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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 shall, 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
shall 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: (a) the Prospectus in preliminary and
final form and every form of supplemental or amended prospectus; (b) this
Agreement; and (c) any other printed sales literature or other materials;
provided, however, 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 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 the Underwriter 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. After each closing date, 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. The Fund shall furnish to the Underwriter a copy of such papers filed by
the Fund in connection with any such registration or qualification.
2.3 It shall: (a) use its best efforts to cause the Registration Statement
to become effective with the SEC; (b) file for review and use its best efforts
to obtain approval of the offering by the National Association of Securities
Dealers, LLC ("NASD") under Rule 2810 of the NASD Conduct Rules and applicable
guidelines; (c) furnish copies of any proposed amendment or supplement of the
Registration Statement or Prospectus to the Underwriter; (d) file every
amendment or supplement to the Registration Statement or the Prospectus that may
be required by the SEC; and (e) if at any time the SEC shall issue any stop
order suspending the effectiveness of the Registration Statement, it shall 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 or any other prospectus then in
effect would include an untrue statement of a material fact or, in view of the
circumstances under which they were made, omit to state any
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material fact necessary to make the statements therein not misleading, the Fund
shall promptly notify the Underwriter thereof (unless the information shall have
been received from the Underwriter) and shall effect the preparation of an
amended or supplemental prospectus which will correct such statement or
omission. The Fund shall then promptly prepare such amended or supplemental
prospectus for the Fund or prospectuses as may be necessary to comply with the
requirements of Section 10 of the Securities Act.
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 up to a maximum of $100,000,000 aggregate
principal amount of Units itself and/or through Dealers, all of whom shall be
members of the NASD. The Underwriter may also sell 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 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
executed as of _________, 2002 ("Escrow Agreement") by and among Bank of
America, as escrow agent ("Escrow Agent"), the Underwriter and the Fund, a
signed copy of which the Underwriter acknowledges has been furnished to it by
the Fund.
3.2 Promptly after the effective date of the Registration Statement, the
Underwriter and/or the Dealers shall commence the offering of 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 shall suspend or terminate offering the Units upon request of the Fund
at any time and shall resume offering the Units upon subsequent request of the
Fund.
3.3 As provided in the Prospectus under the caption "Plan of Distribution"
in connection with compensation for services rendered by the Underwriter, the
Fund agrees that it will pay the Underwriter a fee as more fully described in
Attachment 3.3 of this Agreement. The Underwriter may engage other dealers
registered with the NASD to sell the Units. All sales commissions shall be paid
by the Underwriter. The Fund shall not be liable or responsible to any Dealer
for direct payment of commissions to such Dealer, it being the sole and
exclusive responsibility of the Underwriter for payment of commissions. The
Manager is responsible for all organizational and offering expenses without
limitation; however, the Underwriter may receive up to .5% of the gross proceeds
for reimbursement of actual direct expenses. Without in any way limiting the
foregoing, no commissions, Underwriter fee or expense reimbursement shall be
paid to the Underwriter or any Dealer in excess of the maximum permitted by 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 shall be paid to the Underwriter under this Paragraph 3.3
unless and until $2,500,000 of Units have been sold by the Underwriter and/or
the Dealers (the "Minimum Offering"). Until the Minimum Offering is obtained,
all investments shall be held in an interest-bearing escrow account and, if
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the Minimum Offering is not obtained, all investments with interest earned
thereon shall be returned to the investors in accordance with the terms and
conditions of the Prospectus and the Escrow Agreement.
3.4 The Underwriter represents and warrants to the Fund, the Manager and
each person and firm that signs the Registration Statement, that the information
in the Prospectus under the caption "Plan of Distribution" and all other
information furnished to the Fund by the Underwriter in writing expressly for
use in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto, 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 shall indemnify and hold harmless the Underwriter and the
Dealers, their respective officers and directors and each person, if any, who
controls the Underwriter or 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 such Dealers, 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 (including the Prospectus as a part thereof)
or any post-effective amendment thereto or in the Prospectus or any amendment or
supplement to the Prospectus or (ii) in any application or other document
executed by the Fund or the Manager on its 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 any
Preliminary Prospectus, if used prior to the effective date of the Registration
Statement, or 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, their respective officers and
directors and each such controlling person for any legal or other expenses
reasonably incurred by the Underwriter or such Dealer, their respective officers
and directors, or such controlling
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persons in connection with investigating or defending such loss, claim, damage,
liability or action; provided, however, that the Fund shall 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, any such Blue Sky Application or any such Preliminary
Prospectus or the Prospectus or any such amendment thereof or supplement
thereto; and further provided that the Fund, shall 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 shall indemnify and hold harmless the Fund, the
Manager and each person or firm which has signed 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 any Preliminary Prospectus, if used prior to the
effective date of the Registration Statement, or 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 any such Preliminary Prospectus 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 shall be in addition to any
liability which the Underwriter may otherwise have.
4.3 Each Dealer severally shall indemnify and hold harmless the Fund, the
Manager, the Underwriter, all directors thereof (including any persons named in
the Registration Statements with its consent, as about to become a director),
each of their respective officers who has signed 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
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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 any
Preliminary Prospectus, if used prior to the effective date of the Registration
Statement, or in the Prospectus, of in any amendment or supplement to the
Prospectus 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 any
such Preliminary Prospectus 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
shall reimburse the Fund, the Manager, the Underwriter, their respective
officers or directors, or controlling person, in connection with investigating
or defending any such loss, claim, damage, liability or action. This indemnity
agreement shall be in addition to any liability which such Dealer may otherwise
have.
4.4 Promptly after receipt by an indemnified party under this Paragraph 4
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against any indemnifying party under this
Paragraph 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 Paragraph 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 shall 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 Paragraph 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
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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. In the event a majority of such indemnified
parties are 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 the 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 the
account of legal services performed by another law firm.
5. Conditions to Underwriter's Obligations
The obligations of the Underwriter to offer the Units on behalf of the
Fund are subject to the accuracy (as of the date thereof and as of each closing
date) of and compliance with the representations and warranties of the Fund
contained herein and the performance by the Fund of its obligations hereunder.
5.1 Effective Registration Statement; No Stop Order. The Registration
Statement shall have become effective and you shall have received notice thereof
not later than 6:00 p.m., Eastern Standard Time, on the date of this Agreement,
or at such later time or on such later date as to which you may agree in
writing. In addition, on each closing date (i) 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 the knowledge of the Fund, shall be contemplated by the
SEC, and (ii) 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 shall offer the Units and in its agreements with the
Dealers, shall require that the Dealers offer Units, only to persons who meet
the qualifications set forth in the Prospectus under the caption "Investor
Suitability Standards," and shall 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 shall,
and in its agreements with Dealers, the Underwriter shall 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.
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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 Paragraph 8. Transmittal of received
investor funds shall be made in accordance with the following procedures.
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 shall 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 shall
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 shall 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
shall 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 shall 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,
the Manager its officers or directors or any person controlling the Fund, and
(c) the delivery of any Units and acceptance of payment for the Xxxxx.
00
00. Applicable Law
This Agreement was executed and delivered in, and its validity,
interpretation and construction shall be governed by the laws of the State of
Delaware.
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 Paragraphs 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 60 days' prior written notice.
[Signature Page Follows]
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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,
AMERIFIRST FUND I, LLC
By: AMERIFIRST CAPITAL CORP., its sole manager
--------------------------------
Xxxx Xxxxx, President
Accepted and agreed as of the date first above written.
AMERIFIRST CAPITAL CORP.
By: ______________________________
____________, ________
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ATTACHMENT 3.3
TO THE UNDERWRITING AGREEMENT
Compensation for the services rendered by the Underwriter
Up to a maximum of ten percent (10%) of the gross proceeds of the sale of the
Units, plus up to one-half percent (.5%) for reimbursement of actual direct
expenses. The Underwriter may negotiate fees to be paid to Dealers on Units sold
by them.
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