ASHLEY CAPITAL MANAGEMENT, INCORPORATED
SUBORDINATED LOAN AGREEMENT
FOR EQUITY CAPITAL
AGREEMENT dated October 24th, 1996, between Xx. Xxxxx Xxxxxx, (the
"Lender") and Ashley Capital Management, Incorporated, a Delaware
corporation,(the "Borrower").
I. THE TERMS OF THE LOAN
In consideration of the loan of up to five hundred thousand and no/100
dollars ($500,000) (the "Payment Obligation"), and subject to the terms and
conditions hereinafter set forth, the Borrower promises to pay to the order of
the Lender, or her assigns, on demand anytime after February 1, 2019, at the
principal office of the Borrower, the amount of Payment Obligation loaned, as
evidenced by the promissory notes in substantially the form attached hereto,
from the Borrower, together with interest thereon payable at the rate of
twelve percent (12%) per annum from the date the Payment Obligation is loaned
to the Borrower, to the date of repayment of such Payment Obligation by the
Borrower to the Lender.
The Borrower may immediately record this loan agreement as an account
receivable and anticipate the loan of the Payment Obligation to the Borrower
from the Lender but the Lender is not obligated to contribute any more than
the maximum amount of the Payment Obligation expressed above in the form of
either a loan or equity contribution to the Borrower.
During the first three (3) years of this Agreement, the Borrower shall
have the right, but not the obligation, to deliver a promissory note, or
notes, in the form attached to this agreement and to otherwise provide notice
to the Lender of the amount of money to be advanced and the name of the bank
where the deposit is to be made for the account of the Borrower. Within ten
days after receipt of such notice, Lender shall deposit the amount evidenced
by the note, up to the maximum provided above, to the designated bank.
The cash proceeds to be paid by Lender to Borrower pursuant to the terms
of this Agreement shall be used and dealt with by the Borrower as a
contribution to equity capital and shall be subject to the risks of the
business of the Borrower which includes, but is not limited to, serving as the
General Partner (sic commodity pool operator) of limited partnerships (sic
pools) whose interests are sold to the public to raise equity to engage in the
business of commodity trading.
The Borrower shall have the right to deposit any cash proceeds of this
Subordinated Loan Agreement in any account or accounts in its own name in any
bank or trust company free from any security interest of the Lender.
The Lender irrevocably agrees that the obligations of the Borrower under
this Agreement with respect to the payment of principal and interest shall be
and are subordinate in right of payment and subject to the prior payments or
provision for payment, in full, of all claims of all other present and future
creditors of the Borrower arising out of any matter occurring from the date of
the loan to the date of repayment.
Upon loan of the amount of the Payment Obligation requested by Lender to
Borrower or after the lapse of three (3) years following the execution of this
Agreement, there shall be no further obligation of the Lender to advance any
additional funds pursuant to the terms of this Agreement; i.e., all obligation
of Lender to loan money to Borrower, pursuant to the terms of this Agreement,
shall expire on October 24, 1999, and all loans made to Borrower to that date
shall be fixed as an obligation of Borrower to be repaid pursuant to the terms
of the Notes.
II. PERMISSIVE REPAYMENTS
At the option of the Borrower, but not at the option of the Lender,
payment of all or any part of the Payment Obligation amount hereof prior to
the maturity date may be made by the Borrower; provided, however, such
prepayment may be made only after receipt of an audit report of the Borrower
conducted by an independent certified public accountant which discloses that
the net capital or equity of the Borrower is above the percentage required to
maintain the Fremont Fund, Limited Partnership, as a partnership, for tax
purposes. The requirement of the audit shall be for the protection of the
limited partners in the Fund and any of them shall have the right to demand,
at their expense, a copy of the audit submitted to support any such repayments
made in advance of the above due date. The Borrower agrees that if its
obligation to pay the Payment Obligation is not made within ten days after the
due date, the Borrower will immediately commence a rapid and orderly complete
liquidation of its' business.
III. LIMITATION ON WITHDRAWAL OF EQUITY CAPITAL AND INDEBITNESS
As long as this subordination loan agreement remains unpaid, the Borrower
will make no distributions in the form of dividends or pay salaries to any
director or officer who is also a shareholder. The Borrower will not make any
other loans or indebitness which is senior to or xxxx xxxxx with this
subordinated loan agreement.
IV. SUBORDINATION OF ACCRUED INTEREST PAYABLE
The Lender and the Borrower hereby elect to have all eligible accrued
interest payable, on this loan, considered as additional subordinated capital
for purposes of computing equity. Any Repayments shall be first be allocated
to accrued interest and the balance, if any, to principal.
V. GENERAL
In the event of the appointment of a receiver or trustee of the Borrower
or in the event of its insolvency, liquidation, bankruptcy, assignment for the
benefit of creditors, reorganizations whether or not pursuant to bankruptcy
laws, or any other marshaling of the assets and liabilities of the Borrower,
the Payment Obligation of the Borrower shall mature, and the holder hereof
shall not be entitled to participate or share, ratably or otherwise, in the
distribution of the assets of the Borrower until all claims of all other
present and future creditors of the Borrower, whose claims are senior hereto,
have been fully satisfied. This Agreement shall not be subject to
cancellation by either the Lender or the Borrower, and no payment shall be
made, nor the Agreement terminated, rescinded or modified by mutual consent or
otherwise. The Borrower may not be transfer, sell, assign, pledge, or
otherwise encumber or otherwise dispose of this Agreement, and no lien,
charge, or other encumbrance may be created or permitted to be created
thereon.
The Lender irrevocably agrees that the loan evidenced hereby is not being
made in reliance upon the standing of the Borrower as a member of the National
Futures Association ("NFA") or upon the NFA surveillance of the Borrowers
financial position or its compliance with the by-laws, rules and practices of
the NFA. The Lender is affiliated with the Borrower and either is personally
aware of all material facts or has made such investigation of the facts
attendant to the provision of this loan, including the employment of
independent legal counsel other than The Xxxxx Law Firm, P.A., to confirm the
need for and the reasonableness of the terms of this subordinated loan
agreement. The Lender is not relying upon the NFA to provide any information
concerning or relating to the Borrower and agrees that the NFA and the
Commodity Futures Trading Commission have no responsibility to disclose to the
Lender any information concerning or relating to the Borrower which they may
now, or at any future time, have.
The term "Borrower", as used in this Agreement, shall include the
Borrower, its successors and assigns. The term "Payment Obligation" shall
mean the obligation of the Borrower to repay cash loaned to it pursuant to
this Subordinated Loan Agreement. The provisions of this Agreement shall be
binding upon the Borrower and the Lender, and their respective heirs,
executors, administrators, successors, and assigns. Any controversy arising
out of or relating to this Agreement shall be submitted to and settled by
arbitration pursuant to the by-laws and rules of the American Arbitration
Association. The Borrower and the Lender shall be conclusively bound by such
arbitration. This instrument embodies the entire agreement between the
Borrower and the Lender and no other evidence of such agreement has been or
will be executed. This Agreement shall be deemed to have been made under, and
shall be governed by, the laws of the State of Delaware in all respects.
IN WITNESS WHEREOF, the parties have set their hands and seal as of the date
above.
Borrower: ASHLEY CAPITAL MANAGEMENT, INCORPORATED
By: s/ Shira Del Xxxxxx
Xxxxx Xxxxxx, President
Lender:
s/ Shira Del Xxxxxx
Xxxxx Xxxxxx, Individually
ASHLEY CAPITAL MANAGEMENT, INCORPORATED
SUBORDINATED LOAN AGREEMENT
LENDER'S ATTESTATION
It is recommended that you discuss the merits of this investment with an
attorney, accountant or some other person who has knowledge and experience in
financial and business matters, other than those affiliated with the Borrower,
prior to executing this Agreement.
1. I am aware that the funds or securities subject to this Agreement are
not covered by the Securities Investor Protection Act of 1970 or any other
repayment insurance.
3. I understand that I will be furnished financial statements of Ashley
Capital Management, Incorporated, in accordance with the laws and regulations
related to commodity pool operators, as they are required to be delivered to
limited partners of any commodity pool it serves as General Partner.
4. On the date this Agreement was entered into, the Borrower carried funds
or securities for my account in that I am the sole shareholder of the
Borrower.
5. Lender's business relationship to the Borrower is: sole Shareholder,
Director, and sole officer.
Lender:
s/ Shira Del Xxxxxx
Xxxxx Xxxxxx, Individually
PROMISSORY NOTE
$_______________ Date:
FOR VALUE RECEIVED, Ashley Capital Management, Incorporated (the "Borrower")
promises to pay to the order of Shira Del Xxxxxx, at 0000 X. 000 Xxxx,
Xxxxxxx, XX 00000, or at such other place as she or any subsequent holder may
designate in writing to the Undersigned, the principal sum of
_________________($__________), on demand at anytime after February 1, 2019,
with interest at the rate of twelve percent (12%) per year, from the date of
this note to the date of repayment, payable at the time of repayment of the
principal. Prepayments may be made by the Borrower in accordance with the
terms of the loan agreement dated October 24, 1996.
In the event of any default by the Borrower in the payment of principal when
due for ten days after notice of non-payment to the address provided herein,
the unpaid balance of the principal sum of this promissory note shall bear
interest from thirty days from the date of the default at the rate of eighteen
percent (18%) upon the balance due. In case suit or action is instituted to
collect this note, or any portion hereof, the maker and all guarantors promise
to pay such additional sum, as the court may adjudge reasonable, for
attorneys' fees and costs in said proceedings
The Borrower and all other persons who guarantee payment hereof, if any,
severally waive demand, presentment, protest, notice of dishonor or
nonpayment, notice of protest, and any and all lack of diligence or delays in
collection which may occur, and expressly consent and agree to each and any
extension or postponement of time of payment hereof from time to time at or
after maturity or other indulgence and waive all notice thereof. This note is
made and executed under, and is in all respects governed by, the laws of the
State of Delaware.
Ashley Capital Management, Incorporated
___________________________
Shira Del Xxxxxx, President
