Exhibit 10.2 - Negative Pledge Agreement - between Controlled Environment
Aquaculture Technology, Inc. and Hibiscus Investments, Inc.
NEGATIVE PLEDGE AGREEMENT
This is an AGREEMENT between CONTROLLED ENVIRONMENT AQUACULTURE
TECHNOLOGY, INC., a Colorado corporation ("Ceatech") and HIBISCUS INVESTMENTS,
INC., a California corporation ("Hibiscus") for Ceatech to provide collateral to
Hibiscus in connection with and as a part of that certain "Convertible Debenture
Subscription Agreement" dated March 22, 2000 between Ceatech and Hibiscus (the
"Subscription Agreement") for the purchase by Hibiscus of not more than two
7.75% Convertible Subordinated Debentures of $500,000.00 each (the
"Debentures"), to be issued by Ceatech at such time or times as Ceatech may
determine within twelve months after the date of the Subscription Agreement.
BACKGROUND
A. Ceatech has entered into a contract to acquire the leasehold
interest in certain land and improvements located at 0000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxx 00000, more particularly described as Tax Map Key Parcel No.
(4) 1-9-010: 037 (the "Site"), for the purposes of further improving and
constructing on the Site and equipping a processing and packaging facility (the
"Facility") to prepare the production from its shrimp aquaculture business for
distribution and sale.
B. Ceatech is in need of capital to acquire the Site and to construct
and equip the Facility, and has entered into the Subscription Agreement with
Hibiscus as a means of raising capital for such purposes.
C. In accordance with the Subscription Agreement, Hibiscus has agreed
to purchase up to $1,000,000.00 in Debentures to provide Ceatech with the
capital needed to acquire the Site and construct and equip the Facility, and has
requested that Ceatech mortgage and pledge the Site and Facility as security for
the indebtedness to be evidenced by the Debentures.
D. Ceatech is willing to mortgage and pledge the Facility as
collateral for the Debentures, as and when the Site has been
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acquired and construction of the improvements and major equipping of the
Facility has been completed, and if the Lessor of the Site, being the State
of Hawaii, through its Department of Land and Natural Resources, permits and
consents to the mortgaging and pledging of the Site and Facility to Hibiscus.
AGREEMENT
NOW, THEREFORE, in consideration of the BACKGROUND information set forth
above and of the promises and agreements of the parties contained in the
Subscription Agreement, Ceatech and Hibiscus hereby covenant and agree to and
with each other as follows:
1. As and when both of the following events shall have occurred: (i)
Ceatech has acquired the leasehold interest in the Site; and (ii) at least one
of the Debentures has been issued by Ceatech and purchased by Hibiscus under and
pursuant to the terms and provisions of the Subscription Agreement, then Ceatech
will prepare a mortgage and collateral pledge agreement of the Site and of the
improvements, fixtures and equipment to be constructed and located thereon
"Security Instrument"), in form and substance satisfactory to both Ceatech and
Hibiscus, to secure repayment of the indebtedness of Ceatech to Hibiscus
pursuant to the Subscription Agreement and as evidenced by the Debenture or
Debentures issued or to be issued thereunder. Ceatech shall then proceed in good
faith to secure the consent and agreement of the Lessor of the Site to the
giving and granting of such Security Instrument to Hibiscus.
2. Hibiscus acknowledges that Ceatech has made no representation or
warranty that the Lessor of the Site will consent and agree to the giving and
granting of such Security Instrument to Hibiscus; and Ceatech hereby represents
to Hibiscus that it has no information or reason to believe that the Lessor will
not consent and agree to such Security Instrument.
3. However, Ceatech does hereby further notify Hibiscus that as a
condition of its consent and agreement to giving and granting of such Security
Instrument, the Lessor of the Site may require significant exceptions to and/or
limitations on the security interest of Hibiscus in and to the property as
provided by the Security Agreement, including, but not limited to, a
subordination of the security interest of Hibiscus to a paramount Lessor's lien
in all real and personal property for unpaid rent; and Hibiscus agrees that if
any such exceptions and/or limitations imposed by the Lessor are
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unacceptable to Hibiscus, Ceatech will not be deemed to have defaulted on its
obligation under this Agreement to give and grant a Security Instrument to
Hibiscus.
4. If Ceatech acquires the Site prior to the issuance and purchase of
at least one of the Debentures by Hibiscus, Ceatech expressly covenants and
agrees that it will not mortgage, pledge, hypothecate or otherwise make a
voluntary transfer of the Site, or any material or equipment owned by Ceatech
and intended to be incorporated into or used at the Facility, as collateral to
secure the repayment of indebtedness to any other person or party; and if
Ceatech commits a breach of this covenant and agreement, such breach shall
likewise be deemed a breach by Ceatech of its covenants and agreements contained
in the Subscription Agreement. For the purposes of this paragraph, Lessor's or
vendors' liens arising by operation of law shall not be considered voluntary
collateral transfers.
5. For as long as Ceatech is indebted to Hibiscus under Debentures
issued pursuant to the Subscription Agreement, Ceatech covenants and agrees that
it will not, without the express prior written consent of Hibiscus, mortgage,
pledge, hypothecate or otherwise make a voluntary transfer of the Site, or any
material or equipment owned by Ceatech and intended to be incorporated into or
used at the Facility, as collateral to secure the repayment of indebtedness to
any other person or party, whether or not any such proposed security interest is
junior and subordinate to the security interest of Hibiscus, if any; and
Hibiscus covenants and agrees that its consent to the giving and granting of any
such proposed security interest will not be unreasonably withheld.
6. This Agreement and the representations, acknowledgements,
covenants and agreements of the parties hereto shall be binding upon and inure
to the benefit of Ceatech and its successors and assigns, and Hibiscus and its
successors and assigns as registered holders of Debentures issued under and
pursuant to the Subscription Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
this ______ day of ____________, 2000.
CONTROLLED ENVIRONMENT HIBISCUS
AQUACULTURE TECHNOLOGY, INC. INVESTMENTS, INC.
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By: By:
XXXXXX XXXXX XXXXX XXXX
Its Executive Vice President Its President
By:
XXXXXX X. X. XXX
Its Secretary
"Ceatech" "Hibiscus"
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