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Exhibit 4.12
AGENCY AGREEMENT
10.35% COLLATERALIZED CONVERTIBLE NOTES
CIRCLE CREEK AQUACULTURE VIII, L.P.
THIS AGENCY AGREEMENT is entered into by and among CIRCLE CREEK
AQUACULTURE VIII, L.P., a Tennessee Limited Partnership (hereinafter referred to
as the "Partnership"), and the undersigned, a Registered Holder of one or more
of the Partnership's 10.35% Collateralized Convertible Notes, each of whom is
referred to herein as "Noteholder" and together referred to as "Noteholders"),
and CHG Properties, Inc., a California corporation (the "Agent").
PREFACE
A. The Noteholder is payee of one or more of the Notes (the "Notes")
issued by the Partnership. Up to $700,000 of the Notes are, or may be, issued by
the Partnership.
B. A copy of the form of the Notes is set forth as Exhibit "A" to this
Agreement.
C. The Notes were offered and sold by the Partnership to the
Noteholder, pursuant to a Private Placement Memorandum dated August 15, 1995
(the "Memorandum"). The Agent has been provided with copies of the Memorandum
and form of the Notes, and will hold the Security Instruments as they are, from
time to time, created. Certain terms used herein have the same meanings as those
set forth in the Memorandum, which is incorporated herein by reference.
D. The Notes are, or will be, secured by the Collateral by means of
one or more chattel mortgages, or other security agreements ("Security
Instruments").
E. The Noteholder desires that the Agent act as Noteholder's exclusive
agent under this Agreement for the sole purposes of providing the services and
performing the duties specified in Section 1 of this Agreement, and of enforcing
the obligations of the Partnership under the Notes and the Security Instruments
as provided herein.
F. The Agent understands the purposes of its appointment as
Noteholder's agent and accepts the appointment as such for the stated purposes
only, and on the terms and conditions of this Agreement.
AGREEMENT
SECTION 1. AGENT'S DUTIES
(a) The Noteholder hereby authorizes the Agent to:
(i) act on behalf of the Noteholder, and as the Noteholder's
exclusive agent, upon the occurrence of an Event of Default, as defined herein;
(ii) have the Security Instruments executed in its own name as
trustee thereunder and to hold and release the same upon the Agent's
signature alone, as provided herein. The Agent is authorized and
directed to take all appropriate steps to release the Collateral, or
any part thereof, from time to time, upon payment of the Notes, or part
thereof, and to otherwise release portions of the Collateral pursuant
to the terms of this Agreement including, but not limited to, the
substitution therefor by other Security Instruments upon the
Partnership's request.
EXHIBIT "D"
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Memorandum
(b) The authority given the Agent hereunder to take the acts provided
herein, constitutes a limited power of attorney given by Noteholder to the Agent
to carry out the actions for the Noteholder authorized herein, which limited
power of attorney is coupled with an interest and is irrevocable, so long as
this Agreement remains in effect.
(c) Nothing herein shall act to appoint the Agent as depository for the
Notes and the Agent shall have no authority to establish or maintain the records
of the Registered Holders of the Notes, hold Noteholder's original Note(s), nor
to accept any payments made to Noteholder with respect to the Note(s) except as
Noteholder authorizes the Agent to hold any funds received for the benefit of
the Noteholders pursuant to instructions received from the Noteholders pursuant
to Section 3 hereof.
(d) The Agent shall act upon the written instructions of the
Noteholders then holding of record a majority of the outstanding unpaid
principal balance of the Notes ("a Majority Vote"). The Noteholders shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to them only through the Agent and shall have the right to
direct the Agent to exercise any trust or power conferred on it pursuant to this
Agency Agreement only by written instructions approved by a Majority Vote.
(e) The Agent shall promptly provide Noteholder a copy of notice the
Agent receives respecting the Notes in its capacity as the Agent hereunder.
SECTION 2. THE PARTNERSHIP'S DEFAULT
(a) In the event that:
(i) The Agent receives written notice from one or more
Noteholders stating that: a breach or an Event of Default (as defined in the
Note) has occurred; the facts and circumstances constituting such Event of
Default; the breach or default occurred more than thirty (30) days before the
date of such notice and that the Event of Default has not been cured; or
(ii) The Partnership shall fail to timely deliver to the Agent
the Registered Holder Records pursuant to Section 5(a) below, any Notice of
Payment so required to be delivered pursuant to Section 5(a) below, or to timely
deliver any report required to be delivered pursuant to Section 5(b) or 5(c)
below or if any such Notice of Payment, if timely delivered, shows a default in
the payment of interest or principal on the Notes; or
(iii) The Partnership shall fail to timely make a payment owed
the Agent under the terms of this Agreement; or
(iv) There is issued against the Collateral any levy of
attachment, execution, tax assessment or other similar process and it is not
released within thirty (30) days of the date of issuance; or
(v) The Partnership shall fail to deliver or maintain to the
Agent, Collateral Instruments of a form acceptable to the Agent in an aggregate
amount sufficient to maintain the Collateral in the principal amount required,
and the Partnership has failed to deliver or maintain said Collateral
Instruments within thirty (30) days of written notice of such failure by the
Agent to the Partnership;
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then the Agent shall promptly give written notice thereof to the Noteholders and
to the Partnership, and request that the Noteholders give the Agent their
written instructions. Such instructions may include, but are not limited to,
judicial action, action in arbitration, or judicial or private sale of all or a
part of the Collateral.
(b) The Agent may rely on written notice to it of any of the foregoing
and shall have no obligation to independently investigate or determine whether
any act, failure to act, or occurrence constitutes a breach or Event of Default
by the Partnership with respect to its obligations and duties under the Notes.
(c) The Agent may, but shall not be required to, advance costs,
expenses or other payments on behalf of Noteholder; provided, however, that any
monies advanced by the Agent on behalf of Noteholder shall be reimbursed to the
Agent immediately upon the Agent's written notice to Noteholder. The Agent shall
not be required to do any further act or take any further action, except in
accordance with specific written instructions from a Majority Vote, which
written instructions may authorize the Agent, among other things, to retain on
behalf of the Noteholders such attorneys, accountants or other persons as the
Agent shall deem necessary or appropriate to effect such action; provided,
however, that the Agent shall be indemnified against its expense and liability
from such action in form and substance satisfactory to the Agent.
(d) The Agent shall have no liability for any act done by the Agent or
any action taken by the Agent in accordance with such written instructions.
Notwithstanding any other provisions of this Agreement, at any time after the
Agent gives the Partnership and Noteholder notice as provided in this section,
the Agent, at its election, may resign by mailing written notice of its
resignation to the Partnership and to Noteholder by U.S. Mail, postage prepaid.
After mailing such notice of resignation, the Agent shall have no further
obligation to do any further acts or take or prosecute any further action.
SECTION 3. LIMITATIONS AND QUALIFICATIONS TO THE AGENT'S DUTIES
(a) The Agent shall perform such duties, and only such duties, as are
specifically set forth in this Agreement and no implied covenants or obligations
shall be read into this Agreement against the Agent; and the Agent, in the
absence of bad faith, may conclusively rely on all reports received from the
Partnership or instructions received from Noteholder as true and correct and
signed by the persons purporting to sign them.
(b) No provision of this Agreement shall require the Agent to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
unless it shall have reasonable grounds for believing that repayment of such
funds will be made and such repayment is adequate indemnity against such risk or
liability.
(c) The Agent may consult with counsel and the written advice of such
counsel shall be full and complete authorization and protection with respect to
any action taken, suffered or omitted by it hereunder, if in good faith and in
reliance thereon.
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(d) The Agent shall have the right to decline to follow any such
direction if the Agent, having been advised by counsel, shall determine that the
action so directed may not be lawfully taken, or if the Agent determines that
the action so directed would be unduly prejudicial to the Noteholders not taking
part in such direction. The Noteholders may waive any past default under the
Notes and its consequences, except a default on the payment of principal or
interest on any of the Notes, by written instructions approved by a Majority
Vote. In the case of any such waiver, the Partnership, the Agent and the
Noteholder shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend any subsequent or other default or
impair any right consequent thereon.
(e) In performing its duties hereunder, the Agent may rely solely on
the Registered Holder Records and other documents provided to it by the
Partnership pursuant to Section 5 below. Also, the Agent may rely and shall be
protected in acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
Note, or other paper, or document believed by it to be genuine and to have them
signed or presented by the proper party or parties.
(f) The Agent may execute any of its powers or perform any of its
duties hereunder, either directly or by or through its agents or attorneys, and
the Agent shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed by it in good faith and with due care.
(g) The Agent and/or its Affiliates may invest in the Notes for their
own account, and hold any such Notes in their own name or the name of a
designee. Any actions taken by the Agent and/or its Affiliates with regard to
their own Notes shall be in their own best interests and shall not be deemed to
conflict with the Agent's duties or obligations to the other Noteholders
hereunder.
SECTION 4. MAINTENANCE OF COLLATERAL
(a) Under the terms of the Notes, the Partnership shall maintain the
Collateral as security for payment of interest and principal on the Notes. The
security interests in the Collateral shall be comprised of Security Instruments
delivered to the Agent and naming the Agent trustee thereunder. The Security
Instruments shall consist of chattel mortgages or other security instruments
constituting senior liens on security interests in the Collateral as described
in the Memorandum.
(b) The Partnership shall, at all times, maintain the Collateral in
good condition within the standards of the catfish farming industry.
(c) The Partnership may, from time to time, substitute one or more
Security Instruments for existing Security Instruments upon written request and
presentation to the Agent of an acceptable substitute Security Instrument(s).
Upon such written request and delivery to the Agent of the substitute Security
Instrument(s), the Agent shall forthwith reconvey the Security Instrument(s)
requested.
(d) In the event one or more Security Instruments becomes of no value,
the Partnership shall, upon request of the Agent, promptly deliver to the Agent
an acceptable Security Instrument(s) in replacement thereof.
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(e) All Security Instruments delivered by the Partnership to the Agent
shall be in proper form and shall be delivered with proof of recordation in the
appropriate public records. With each such Security Instrument, the Partnership
shall deliver to the Agent a description of the property secured by the Security
Instrument. The Agent shall have the right to reject any such Security
Instrument only if the Security Instruments are in a form unacceptable to the
Agent.
(f) The Agent's determination not to accept any Security Instrument
shall be in its sole discretion, and Noteholder shall have no recourse against
the Agent with respect to such determination. Noteholder, severally but not
jointly, and with all of the Noteholders, agrees to hold the Agent harmless and
to indemnify it against any loss or damage resulting from the failure of the
Noteholders to obtain or realize value for the Security Instrument, or any of
them, equal to or exceeding the amount of interest and principal owing on the
Notes.
SECTION 5. REPORTS BY THE PARTNERSHIP
(a) The Partnership shall, by the tenth (10th) day of each month in
which Notes remain outstanding, deliver to the Agent a schedule of the
Registered Holders of the Notes as of the last day of the preceding month
listing each Registered Holder's name, designated mailing address, and amount of
Notes held of record (the "Registered Holder Records").
(b) The Partnership shall, within ten (10) days following the end of
each calendar quarter in which any of the Notes remain outstanding, deliver to
the Agent by certified mail or express or registered mail, or its equivalent,
Notice of Payment which shall consist of a written schedule of the Notes
outstanding as of the payment record date for such calendar quarter and the
amount of interest and principal, if any, paid by the Partnership with respect
to each such Registered Holder for such calendar quarter.
(c) The Partnership shall, within ten (10) business days of the Agent's
written notice of request to the Partnership, provide the Agent with a report,
certified to be true and complete by the Partnership, as to the place, book
number and page number wherein any Security Instrument has been recorded and any
other information reasonably requested by the Agent as necessary and proper to
the exercise of its duties and authority hereunder.
(d) Within ten (10) business days of their preparation, the Partnership
shall provide the Agent with copies of its quarterly and annual financial
statements and its annual report to the Limited Partners, along with a
certificate duly executed by an officer of the Partnership that as of the date
of execution, no Event of Default by the Partnership exists under the terms of
the Notes.
SECTION 6. RESIGNATION AND REPLACEMENT OF THE AGENT
Subject to Section 3 hereof, the Agent may terminate this Agreement by
giving thirty (30) days prior written notice of such termination. In such event,
Noteholder, along with all other Noteholders, may by a Majority Vote elect a
replacement Agent to serve under the terms of this Agreement. In the event this
Agreement is terminated and the Agent is not replaced, any action the Agent can
take under this Agreement may be taken by a Majority Vote.
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SECTION 7. COMPENSATION
The Agent shall be entitled to reasonable compensation and to be
reimbursed, upon request, for all of its reasonable costs, expenses and/or
disbursements incurred or made in accordance with any provision of this
Agreement. The Agent's regular compensation shall be an amount payable in
advance on the first of January of each year equal to the greater of $1,000 or
an amount equal to two-tenths of one percent (0.2%) of the principal amount of
the Notes issued which is subject to this Agreement and outstanding on the
January first on which payment is due. Provided, however, that payment for 1995
shall be $500, which amount shall be payable upon execution of this Agreement.
SECTION 8. INDEMNIFICATION
Noteholder hereby agrees, severally but not jointly with the other
Noteholders, to indemnify the Agent and to hold it harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on its part,
or arising out of or in connection with the acceptance or administration of this
Agreement.
SECTION 9. TERM
(a) This Agreement shall continue for the term of the Notes, and shall
be terminated only upon final payment of all principal and interest due and
payable on the Notes and full release of the Collateral for the Notes.
(b) As between the Noteholder, the Agent and the Partnership, this
Agreement shall be deemed coupled with an interest and may not be terminated;
except that the Agent may, from time to time, be removed and replaced as herein
provided.
SECTION 10. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the
laws of the State of Tennessee.
SECTION 11. NOTICES
Except as otherwise provided in this Agreement, all notices shall be in
writing and shall be personally delivered or mailed first class, postage
prepaid, addressed as follows:
To Noteholder:
At the address set forth on the Noteholder's executed and accepted Loan
Agreement of even date herewith, or if of a later date in the Registered
Holder's Records referenced in Section 5(a) above.
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To The Partnership:
Xxxxxx X. Xxxxxxxx, Xx.
General Partner
Circle Creek Aquaculture, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
To the Agent:
CHG Properties, Inc.
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
SECTION 12. BINDING ON NOTEHOLDERS
By entering into this Agreement, Noteholder agrees that all of the
terms and conditions hereof shall be binding upon Noteholder, its assigns, heirs
and successors in interest, to the same extent and in the same manner as such
terms and conditions are binding on all Noteholders. Noteholder agrees that the
Agent's duties hereunder are owed to all Noteholders or holders of Notes.
SECTION 13. RECOGNITION OF TRANSFERS
The Notes are restricted as to transfer. The Agent acknowledges that
during the term of this Agreement, the Notes may be transferred to certain
individuals and/or entities, and that such transfers shall be effective, and the
transferee substituted as a Noteholder hereunder, only upon the Agent's receipt
from the Partnership of written notice of such transfer, setting forth the full
name and address of such transferee, who shall thereafter be deemed to be a
Noteholder hereunder, and without the necessity of any further amendment to this
Agreement.
SECTION 14. AMENDMENTS
This Agreement may be amended, from time to time, by the Majority Vote
of the Noteholders, the Partnership and the Agent; or by the Agent and the
Partnership, without the consent of the Noteholders, to:
(a) Conform to the requirements of federal and state laws and
regulations, provided that such amendment is for the benefit of and not adverse
to the interests of the Noteholders;
(b) Add to the representations, duties or obligations of the
Agent or the Partnership, or to surrender any rights or powers granted to the
Agent or the Partnership herein, for the benefit of the Noteholders; or
(c) Cure any ambiguity and to correct or to supplement any
inconsistent provision in this Agreement.
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SECTION 15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
Partnership, Noteholder and the Agent with respect to the matters addressed
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the _____ day of _______________ 1995.
THE AGENT THE PARTNERSHIP
CHG PROPERTIES, INC. CIRCLE CREEK AQUACULTURE VIII, L.P.
By: By:
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XXXXXX X. XXXXXXXX, XX.
General Partner
By: Circle Creek AquaCulture, Inc.,
a Tennessee corporation, General Partner
By:
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XXXXXX X. XXXXXXXX, XX., President
NOTEHOLDER:
Execution by Noteholder of the Loan Agreement for the Note(s),
reciting that it constitutes the signature page for the Agency
Agreement, shall constitute Noteholder's execution of this
Agreement.
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