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Exhibit 4.11
10.35% COLLATERALIZED CONVERTIBLE NOTE
CIRCLE CREEK AQUACULTURE VIII, L.P.
NOTE NO. _______________ $__________________________________
MATURITY DATE: December 31, 2000
DATE OF ISSUANCE: ________, 19__
NASHVILLE, TENNESSEE
CIRCLE CREEK AQUACULTURE VIII, L.P. (the "Partnership") promises to pay to:
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("Registered Holder") the principal sum of $____________________, together with
interest at the rate of TEN AND THIRTY-FIVE ONE-HUNDREDTHS PERCENT (10.35%) PER
ANNUM, in the manner and at the times specified herein.
THIS NOTE IS ONE of a class of up to $700,000 of Collateralized
Convertible 10.35% Notes of the Partnership (the "Notes"). Each Note is issued
pursuant to the terms of the LOAN AGREEMENT (the "Loan Agreement") wherein each
Registered Holder has agreed to make a loan to the Partnership.
THIS FORM OF NOTE IS A FACSIMILE AND NOT NEGOTIABLE. THE OWNERSHIP OF
THIS NOTE IS DOCUMENTED ON THE PARTNERSHIP'S BOOKS AND RECORDS IN THE
NAME OF REGISTERED HOLDER, WHICH SHALL CONSTITUTE THE SOLE EVIDENCE OF
OWNERSHIP THEREOF.
1. PAYMENT
(a) The Partnership agrees to pay interest on the principal amount of
the Note as follows:
(i) Interest shall accrue on the unpaid principal amount of
the Notes from the Date of Issuance and thereafter at the rate of ten and
thirty-five one hundredths percent (10.35%) per annum, simple interest.
(ii) Interest shall be payable quarterly, in arrears, on the
first day of the first month following the quarter to which the interest payment
relates (the "Payment Date"). Interest shall be computed on the basis of a
360-day year comprised of four 90-day quarters, except for the quarter in which
the Note is issued or if the Note is redeemed prior to maturity, interest shall
be calculated on the actual number of days the Note is outstanding during the
month it is redeemed. The Partnership may pay interest by check mailed to the
Registered Xxxxxx's address of record as of the Payment Date.
(iii) Any accrued but unpaid interest shall be due in full
upon such date as the principal balance of the Note is due and payable.
EXHIBIT "C"
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Memorandum
(iv) Anything herein to the contrary notwithstanding, the rate
of interest provided herein shall not exceed the maximum rate permitted by
applicable usury laws.
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(b) The principal amount of this Note, together with any accrued and
unpaid interest thereon, shall be payable in full to the Registered Holder
thereof on the Principal Payment Date. The Principal Payment Date shall be the
earlier of: (i) December 31, 2000; or (ii) the Call Date called pursuant to
Section 2 below; or (iii) the Redemption Date pursuant to Section 3 below. The
Registered Holder need not surrender this form of Note, which is a facsimile and
not of legal tender.
2. THE PARTNERSHIP'S RIGHT TO PREPAY THE NOTE
The Partnership may prepay ("Call") all or any portion of the
indebtedness represented by this Note at any time, or from time to time, by
giving written notice to the Registered Holder not less than 30 days nor more
than 60 days prior to the date set for such prepayment (the "Call Date").
3. NOTEHOLDER'S OPTION TO REDEEM THE NOTE
(a) At any time after January 1, 1998, the Registered Noteholder may
cause the Partnership to redeem this Note on the next following December 31 (the
"Redemption Date") by delivery of a written request to the Partnership at least
one hundred twenty (120) days prior to the requested Redemption Date. Upon
receipt of the redemption request, the Partnership will be required to redeem
this Note as of the respective Redemption Date by the payment of the unpaid
balance of principal and accrued interest adjusted to reflect a reduced
effective annual yield set forth below for the respective Redemption Date.
Redemption Date Adjusted Effective Yield
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December 31, 1998 8.35%
December 31, 1999 9.35%
Any request for early redemption must be delivered to the Partnership
at its principal business office address.
4. THE AGENCY AGREEMENT
The Partnership, CHG Properties, Inc. (the "Agent"), and the Registered
Holder have entered into the Agency Agreement dated August 15, 1995 (the "Agency
Agreement") wherein the Agent is authorized to act as the exclusive Agent of
Registered Holder and all Registered Holders of the Notes in exercising any
rights of Registered Holder upon the occurrence of a default or Event of
Default. The Agency Agreement, as it may from time to time be amended, provides
for the rights, limitation of rights, obligations, duties, indemnities and
immunities of Agent, the Partnership and Registered Holder. In the event Agent's
services are terminated and no replacement Agent is elected, any action an Agent
could take under the Agency Agreement may be taken by a Majority Vote of the
Registered Holders (i.e., the written vote or consent of the Registered Holders
holding more than fifty percent (50%) of the unpaid principal balance of the
Notes then outstanding).
5. CONTINUING COVENANTS
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(a) Limitation On Partnership Debt. Nothing in this Note shall in any
way restrict or prevent the Partnership from incurring any debt, including
secured debt, to operate its business except:
(i) During the period the Notes are outstanding, the
Partnership shall not, at any time, voluntarily incur aggregate debt (as defined
below), excluding collateralized, secured debt, in an amount exceeding fifty
percent (50%) of the Partnership's total equity at the end of each fiscal
quarter of the Partnership as shown on its applicable report on Form 10-Q or
10-K (or, if the Partnership is not required to file such reports, then on its
financial statements); and
(ii) The Partnership shall not be in default with respect to
any other of its debt obligations including any payment of principal or
interest. For the purposes hereof, "default" means the Partnership's failure to
cure any default under the terms of any debt obligation within thirty (30) days
of notice of such default by creditor under the respective debt obligations.
For the purposes of the foregoing, "debt" means any unsecured
indebtedness, contingent or otherwise, with respect to borrowed money (whether
or not the recourse of the lender is to the whole of the assets of the
Partnership or only to a portion thereof), or evidenced by bonds, notes,
debentures or similar instruments or letters of credit, except any such balance
that constitutes a trade payable, if and to the extent such indebtedness would
appear as a liability upon the balance sheet of the Partnership in accordance
with generally accepted accounting principles.
(b) Limitation On Merger, Consolidation Or Sale Of Assets. During the
time any principal or interest is owing on the Notes, the Partnership shall not
merge, consolidate with or transfer all or substantially all of its assets to
another corporation, Partnership, person or entity, unless (i) the successor is
organized under the laws of the United States or a state thereof, (ii) the
successor assumes all obligations of the Partnership with respect to the Notes,
and (iii) after such transaction no Event of Default under the Notes exists.
6. EVENTS OF DEFAULT
(a) An "Event of Default" under the terms of the Notes, is one or more
of:
(i) a default for 30 days in the payment of interest on the
Notes; or
(ii) a default for 30 days in payment of principal on the
Notes; or
(iii) failure by the Partnership for 60 days after written
notice from Agent to comply with any of its covenants set forth in Sections 5
above or Section 7 below hereof; or
(iv) an event of the Partnership's bankruptcy or insolvency;
or
(v) the Partnership's failure to maintain the Collateral (as
defined in Section 7 below) as required under the terms of a Security Agreement;
or
(vi) Any default by the Partnership under the Agency
Agreement.
(b) For the purposes of this Note, "bankruptcy" or "insolvency" means
the filing in any court pursuant to any statute of the United States or of any
state, a petition in bankruptcy or insolvency, or filing
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for reorganization or for the appointment of a receiver or trustee of all or a
material portion of the Partnership's assets, an assignment for the benefit of
creditors, if the Partnership admits in writing its inability to pay its debts
as they fall due or the seeking, consenting to, or acquiescing in the
appointment of a trustee, receiver or liquidator of any material portion of its
property. Bankruptcy or insolvency shall also include the filing against the
Partnership, in any court, pursuant to any statute of the United States or of
any state, of a petition in bankruptcy or insolvency, or for reorganization, or
for appointment of a receiver or trustee of all or a substantial portion of the
Partnership's property, and within 90 days after such commencement of any such
proceeding against the Partnership such petition shall not have been dismissed.
(c) Upon the occurrence of an "Event of Default", the principal amount
hereof together with all accrued but unpaid interest thereon may, at the
discretion of Registered Holder, through the Agent as provided in the Agency
Agreement, be declared and upon such declaration shall become due and payable in
the manner, with the effect and subject to the conditions provided in the Agency
Agreement. All interest and principal payable under this Note shall be payable
in lawful money of the United States of America. In the event the Partnership
fails to make any payment of principal or interest hereunder when due,
Registered Holders of the Notes shall be entitled to recover from the
Partnership all costs of effecting collection, including, but not limited to,
reasonable attorneys' fees and costs.
(d) As a condition to the purchase of the Notes, Registered Holder
hereby agrees to execute the Loan Agreement whereby that person appoints Agent
to act as Registered Xxxxxx's exclusive agent for the exercise of his/her
remedies in the event of a default or if an Event of Default occurs. Registered
Holder may not take actions to enforce the terms of the Notes, except as
provided in the Note and the Agency Agreement.
7. SECURITY
The payment of these Notes shall be secured by one or more Security
Instruments to be held by Agent as trustee pursuant to the Agency Agreement. The
Security Instruments shall constitute liens on the catfish inventory of the
Partnership at the Partnership's real property in Bolivar County, Mississippi
(the "Collateral").
During all times the Notes are outstanding, the Partnership shall have
delivered to Agent fully executed and duly assigned Security Instruments on
behalf of all Registered Holders of the Notes. The Security Instruments shall
have been properly recorded in the public records and shall constitute a valid,
enforceable, and duly recorded senior lien on the Collateral. Each Security
Instrument shall be given as security for the payment of the Notes. As set forth
in the Agency Agreement, Agent shall have the exclusive right to reject one or
more of the Security Instruments on behalf of Registered Holder and to act as
trustee thereunder.
8. CONVERSION
(a) This Note will be convertible, in whole but not in part, at the
option of Registered Holder at any time from and after the date of issuance and
prior to its maturity, except if: (i) this Note is called for redemption at any
time from and after the date of its issuance and prior to its maturity, or (ii)
there is a merger, reorganization, consolidation involving the Partnership or
the Partnership sells all or substantially all of its assets (a
"reorganization"), then this Note will be so convertible at any time prior to
the close of business on the fifteenth (15th) day preceding the date fixed for
such redemption.
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(b) This Note is convertible into fully paid and nonassessable Units of
Limited Partner interest of the Partnership, as defined in the Partnership
Agreement, at the rate of $125.00 per Unit. In order to exercise the conversion
privilege granted, the Registered Holder will surrender this Note to the Company
with a duly executed form for conversion hereinafter provided. The Company shall
not be obligated to issue fractional Units but shall pay in cash such fractional
amount. To the extent the unpaid principal of this Note is not sufficient to
purchase an even multiple of Units under the terms hereof, Registered Holder
shall have the option to purchase the fraction of a Unit created by such
insufficiency by paying cash at the rate of $125.00 per Unit.
(c) To convert this Note into Units, Registered Holder must deliver to
the Partnership a duly executed Election to Xxxxxxx, together with this Note and
the additional cash payment, if any, at the principal business office of the
Partnership. The Partnership will promptly issue to the holder the Units into
which this Note is to be convertible. Units of the Partnership issued upon the
conversion of this Note will not be entitled to any distribution declared upon
such Unit(s) prior to the date of the receipt by the Partnership of such
Election To Convert and of this Note, and upon such conversion Registered Holder
will not be entitled to any interest on this Note not due and payable at or
prior to the date such Notice is received by the Partnership.
(d) This Note will be deemed to have been surrendered for conversion
and converted at the close of business on the date on which it is received by
the Partnership or a designated agent of the Partnership with the Election To
Convert duly executed, and on such receipt the Partnership will promptly issue
and deliver to the person or person entitled a certificate or certificates
evidencing the number of Units into which this Note will have been converted.
The Partnership will then cancel this Note. The Partnership agrees to reserve
for issuance sufficient Units of its authorized but unissued Units as will be
necessary to satisfy its obligation to issue such Units upon conversion of this
Note in accordance with its terms.
9. REGISTERED HOLDER OF NOTE
(a) The Partnership may deem and treat any person in whose name this
Note is registered on its records as the absolute owner of this Note, for the
purpose of making payments and giving notices hereunder, and for all other
purposes. Neither the Partnership nor the Agent shall be affected by any notice
to the contrary.
(b) The Registered Holder of this Note, or such person's address of
record, may be changed only upon prior written notice to the Partnership and a
showing of compliance with Section 10 below. The Partnership shall reflect any
such change no later than ten (10) business days after its receipt of such
written notice and showing of compliance with Section 10, whichever is the last
to occur.
10. TRANSFER OF NOTE
Registered Holder may transfer this Note, or any interest therein, only
in the event that either (i) all the Notes are registered under the Securities
Act of 1933, or (ii) there exists an exemption from registration under federal
or applicable state securities laws for such transaction. In the event the
Registered Holder asserts such an exemption, the Partnership may request an
opinion of legal counsel at the expense of the Registered Holder. This Note may
be transferred only on the records of the Partnership upon written request to
transfer in the form specified by the Partnership, delivered to the Partnership
at its principal business offices, together with this facsimile of the Note.
Transfer of the Note or any interest therein may be denied
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by the Partnership if, in its sole discretion, it
determines the foregoing restrictions on transfer have not been satisfied.
11. NATURE OF NOTE OBLIGATION
This Note constitutes a secured, general obligation of the Partnership.
The payment of any amounts owing on this Note remaining after the application of
the value of the Security in payment thereof (the "Deficiency"), shall be pari
passu in right of payment to the payment in full of all other unsecured debts of
the Partnership, whether outstanding on the date this Note is issued or
thereafter created, incurred, assumed or guaranteed.
Registered Holder shall be entitled to have recourse only against the
Collateral and the Partnership for payment of any principal and interest on this
Note, or for any recovery of attorneys' fees and/or costs, or for any other
claim based hereon, or otherwise in respect hereof, or based on, or in respect
of, the Agency Agreement, any amendment thereto or indenture supplemental
thereto; and Registered Holder may not seek to impose any personal liability for
any indebtedness on Agent, its successor or any General Partner, employee,
contractor, or agent of the Partnership by reason of this Note.
12. MISCELLANEOUS PROVISIONS
(a) Applicable Law. This Note shall be construed in accordance with the
laws of the State of Tennessee.
(b) Amendment. The terms and conditions of this Note may not be amended
or modified without the written consent of a Majority Vote of the Registered
Holders and the Partnership, except as provided in the Agency Agreement.
(c) Binding On Assignor. The terms and conditions hereof shall be
binding upon Registered Holder, his or her heirs, assigns and successors in
interest to the same extent and in the same manner as the terms and conditions
are binding on all Registered Holders.
(d) Attorneys' Fees, Costs
Should a dispute arise from this Note, the parties agree that the
prevailing party or parties shall be entitled to recover from the non-prevailing
party their costs, including reasonable attorneys' fees.
THE RIGHTS, LIMITATION OF RIGHTS, OBLIGATIONS, DUTIES, INDEMNITIES AND
IMMUNITIES OF THE PARTIES UNDER THIS NOTE ARE FURTHER DEFINED AND SET
FORTH IN THE AGENCY AGREEMENT, INCLUDING AMENDMENTS THERETO. THE AGENCY
AGREEMENT IS HEREBY INCORPORATED BY REFERENCE HEREIN.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR CERTAIN APPLICABLE STATE SECURITIES
ACTS. THIS NOTE MUST BE ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT
WITH A VIEW TOWARD DISTRIBUTION OR RESALE. THIS NOTE MAY NOT BE
TRANSFERRED UNLESS REGISTERED OR
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QUALIFIED FOR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER
FEDERAL AND STATE SECURITIES LAWS.
CIRCLE CREEK AQUACULTURE VIII, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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XXXXXX X. XXXXXXXX, XX., General Partner
By: Circle Creek Aquaculture, Inc.,
a Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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XXXXXX X. XXXXXXXX, XX., President
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