LOAN AGREEMENT

Exhibit 10.1

 

LOAN AGREEMENT

by and among

OMEGA PROTEIN CORPORATION

and

OMEGA PROTEIN, INC.

as Borrowers

and

WELLS FARGO BANK, NATIONAL ASSOCIATION

as Lender

$35,000,000.00 Revolving Line of Credit

dated as of

October 21, 2009

 

TABLE OF CONTENTS

(The Table of Contents if not a part of the Loan

Agreement but for convenience of reference only.)

 

 

i

 

ii

 

iii

LOAN AGREEMENT

THIS LOAN AGREEMENT is made as of October 21, 2009 by and between OMEGA PROTEIN CORPORATION , a Nevada corporation, and OMEGA PROTEIN, INC. , a Virginia corporation (each a “ Borrower ” and collectively, “ Borrowers ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“ Lender ”).

In consideration of the creation of the revolving credit facility described below and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, Lender and Borrowers agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 Certain Definitions . In addition to any other terms defined herein, the following terms shall have the meanings set forth with respect thereto:

“ AAA ”: See Section 10.27 .

“ Acceptable Swap Agreements ” means (i) any Swap Agreement having terms reasonably satisfactory to Lender entered into with a Lender Swap Provider or other Person satisfactory to Lender for the purpose of hedging the interest rate risk hereunder, and (ii) any commodities Swap Agreement entered into with a Lender Swap Provider or other Person satisfactory to Lender in the ordinary course of business to mitigate risks and not entered into for speculative purposes.

“ Acquisition ” means, by any Person, the acquisition by such Person, in a single transaction or in a series of transactions, of either (a) all or any substantial portion of the property of, or a line of business or division of, another Person, or (b) at least a majority of the Equity Interests of another Person which are entitled to vote for the election of the board of directors (or similar governing body) of such Person, in each case whether or not involving a merger or consolidation with such other Person.

“ Act ”: See Section 10.30 .

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“ Agreement ” means this Loan Agreement, including all schedules and exhibits attached hereto, and all subsequent modifications and amendments hereto.

“ Aircraft Security Agreement ” means each aircraft security agreement, in form and substance satisfactory to Lender, that purports to grant to Lender a security interest in the aircraft owned by any Loan Party.

 

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“ Applicable Margin ” means the percentage, based on the ratio of Total Funded Debt as of any determination date to EBITDA for the twelve (12) month period ending on such determination date as set forth on the most recent Compliance Certificate received by Lender, set forth opposite such ratio below:

 

The Applicable Margin will be determined from Borrowers’ most recent Compliance Certificate received by Lender, as required by this Agreement. The Applicable Margin determined with respect to each Compliance Certificate will be in effect from the first day of the month following receipt of that Compliance Certificate until the first day of the month following receipt of the next Compliance Certificate. Until Lender receives the first Compliance Certificate, the Applicable Margin will be Level 3. Thereafter, if any Compliance Certificate is not delivered on time, the Applicable Margin from the date such Compliance Certificate was due until Lender receives it will be the highest level set forth above.

“ Asset Coverage Ratio ” means the ratio of (a) the sum of gross accounts receivable, gross inventory, and net property, plant and equipment (excluding NMFFP Collateral), to (b) Principal Debt.

“ Assignment of Insurances ” means each assignment of insurances, in form and substance satisfactory to Lender, executed and delivered by a Loan Party in favor of Lender and relating to insurances with respect to any Vessel.

“ Bankruptcy Default ” means an Event of Default described in Section 8.01(g) .

“ Base Rate ” means, for any day, a fluctuating rate equal to the highest of: (i) the Prime Rate in effect on such day, (ii) a rate determined by Lender to be one and one-half percent (1.50%) above Daily One Month LIBOR, and (iii) the Federal Funds Rate plus one and one-half percent (1.50%).

“ Base Rate Principal ” means, at any time, the Principal Debt minus the portion, if any, of such Principal Debt which is LIBOR Principal.

“ Business Day ” means any day except a Saturday, Sunday or any other day on which commercial banks in Texas are authorized or required by law to close.

 

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“ Change of Control ” means an event or series of events by which:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all Equity Interests that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of thirty-five percent (35.00%) of the Equity Interests of Omega Protein Corporation entitled to vote for members of the board of directors or equivalent governing body of Omega Protein Corporation on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);

(b) during any period of twenty four (24) consecutive months, a majority of the members of the board of directors or other equivalent governing body of Omega Protein Corporation cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or

(c) any Person or two (2) or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Omega Protein Corporation, or control over the Voting Stock of Omega Protein Corporation on a fully-diluted basis (and taking into account all such Voting Stock that such Person or group has the right to acquire pursuant to any option right) representing thirty-five percent (35.00%) or more of the combined voting power of such Voting Stock; and

(d) with respect to Omega Protein, Inc., the failure of Omega Protein Corporation to directly or indirectly own all of the outstanding Equity Interests of Omega Protein, Inc.

“ Closing Date ”: See Section 7.01 .

 

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“ Collateral ” means a collective reference to all real and personal property with respect to which Liens in favor of Lender are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.

“ Collateral Documents ” means a collective reference to the Security Agreements, the Mortgages, the Aircraft Security Agreements, the First Preferred Ship Mortgages, the Assignment of Insurances and other security documents as may be executed and delivered by the Loan Parties hereunder.

“ Commitment ” means the obligation of Lender, subject to the terms and conditions of this Agreement, to make Loans which shall not exceed at any one time outstanding $35,000,000.00 less L/C Obligations.

“ Compliance Certificate ”: See Section 5.01(d) .

“ Contested in Good Faith ” means, as to any payment, tax, assessment, charge, levy, lien, encumbrance or claim, contesting the amount, applicability or validity thereof in good faith by appropriate proceedings or other appropriate actions promptly initiated and diligently conducted in a manner satisfactory to Lender, provided that the enforcement of any related Lien is stayed in a manner satisfactory to Lender pending the resolution of such contest.

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

“ Daily One Month LIBOR ” means, for any day, the rate of interest equal to LIBOR then in effect for delivery for a one (1) month period.

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Default Rate ” means the lesser of (a) the Maximum Rate or (b) the Base Rate plus four percent (4%).

“ Disposition ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by a Loan Party (including the Equity Interests of any Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of a Loan Party.

“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia.

 

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“ EBITDA ” means, for any period, for Borrowers and their consolidated Subsidiaries on a consolidated basis, an amount equal to the consolidated net income of Borrowers and their consolidated Subsidiaries for such period plus the following to the extent deducted in calculating such consolidated net income: (a) consolidated interest expense for such period, (b) the provision for federal, state, local and foreign income taxes payable for such period, (c) the amount of depreciation and amortization expense and other non-cash charges for such period, and (d) one-time charges incurred in connection with the repayment of Borrowers’ Existing Credit Agreement and the closing of this Agreement.

“ Eligible Vessels ” means each of the Vessels, other than any Ineligible Vessels and any Excluded Vessel.

“ Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such Equity Interest.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder, as in effect as of the date hereof and any subsequent provisions which are amendatory thereof, supplemental thereto or substituted therefor.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with Borrowers within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

“ ERISA Plan ” means, at any time, any employee benefit plan as defined under Section 3(3) of ERISA and in respect of which Borrowers or any ERISA Affiliate is (or, if such plan were terminated at such time, would under ERISA be deemed to be) an “employer” as defined in ERISA.

“ Event of Default ”: See Section 8.01 .

“ Excluded Property ” means, with respect to any Loan Party, (a) any owned real property which is located outside of the United States, (b) unless requested by Lender, any leasehold interests in real property, (c) unless requested by Lender, any trademarks, services marks, trade names, copyrights, patents, patent rights, franchises, licenses, and other intellectual property rights for which a perfected Lien thereon is not effected either by filing of a Uniform Commercial Code financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (d) unless requested by Lender, any personal property (other than personal property described in clause (b) above) for which the attachment or perfection of a Lien thereon is not governed by the Uniform Commercial Code, (e) unless requested by Lender, the Equity Interests of any direct or indirect Foreign Subsidiary of a Loan Party, (f) any property which is subject to a Lien securing purchase money indebtedness permitted under clause (d) of Section 6.04 pursuant to documents which prohibit such Loan Party from granting any other Liens in such property, (g) NMFFP Collateral, (h) the Equity Interests of any Foreign Subsidiary that is an Inactive Subsidiary, (i) unless requested by Lender, Equity Interests of Omega Protein, Inc., (j) the Excluded Vessels,

 

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(k) Borrowers’ existing account numbers 2330943275, 3299122483, 3751624994, 3751625003, 3751625016, 3752140309, 3752140312, 3752140325, 3752196104, 4426328113, and 488004025483 at Bank of America, N.A. and the funds on deposit therein from time to time, provided that such accounts shall only be Excluded Property so long as they are permitted to be maintained at Bank of America, N.A. under Section 5.11 hereof, (l) Borrowers’ existing account numbers 243916, 877880, 220-22218-1-4, and 223-08752-1-9 at Bank of America Securities and the funds on deposit therein from time to time, provided that such accounts shall only be Excluded Property so long as they are permitted to be maintained at Bank of America Securities under Section 5.11 hereof, (m) Borrowers’ existing account number 475053001 at JPMorgan Chase Bank, N.A. and the funds on deposit therein from time to time, provided that such account shall only be Excluded Property so long as it is permitted to be maintained at JPMorgan Chase Bank, N.A. under Section 5.11 hereof, and (n) up to $2,000,000.00 in cash or cash equivalents if Bank of America, N.A. requires Borrowers to cash collateralize the Acceptable Swap Agreements that Borrowers have entered into with Bank of America, N.A. prior to the Closing Date, provided that such cash or cash equivalents shall only be Excluded Property so long as Bank of America, N.A. requires that such Acceptable Swap Agreements be cash collateralized.

“ Excluded Vessels ” means the Vessels identified as “Excluded Vessels” on Schedule 4.16 , provided that if any such Vessel is not scrapped or sold within twelve (12) months of the Closing Date, such Vessel shall cease to be an Excluded Vessel.

“ Exclusive Economic Zone ” means the zone established by Presidential Proclamation 5030, of March 10, 1983 (16 U.S.C. § 1453 note), and any successor thereto.

“ Existing Credit Agreement ” means that certain Credit Agreement dated as of March 26, 2007, among Omega Protein Corporation and Omega Protein, Inc. as borrowers, the subsidiaries of Omega Protein Corporation identified therein as guarantors, Bank of America, N.A. as Administrative Agent, and the lenders party thereto, as amended.

“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers for the immediately preceding day, as published by the Federal Reserve Bank of New York; provided that if no such rate is so published on any day, then the Federal Funds Rate for such day shall be the rate most recently published.

“ First Preferred Ship Mortgage ” means each first preferred fleet mortgage or first preferred ship mortgage, in form and substance satisfactory to Lender, executed and delivered by a Loan Party in favor of Lender with respect to an Eligible Vessel.

“ Fixed Rate Term ” means a period commencing on a Business Day and continuing for one (1), two (2), three (3) or six (6) months, as designated by Borrower, during which all or a portion of the outstanding principal balance of the Note bears interest determined in relation to LIBOR; provided however , that no Fixed Rate Term may be selected for a principal amount less than $1,000,000.00; and provided further , that no Fixed Rate Term shall extend beyond the Maturity Date hereof. If any Fixed Rate Term would end on a day which is not a Business Day, then such Fixed Rate Term shall be extended to the next succeeding Business Day.

“ Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

“ Funding Date ”: See Section 7.02 .

 

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“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applied to the circumstances as of the date of determination, consistently applied.

“ Governmental Authority ” means any nation, country, commonwealth, territory, state, county, parish, municipality or any political subdivision, agency, department, commission, board or other instrumentality of any of the foregoing.

“ Governmental Requirements ” means any and all present and future judicial decisions, laws, statutes, rulings, rules, regulations, permits, certificates, or ordinances of any Governmental Authority in any way applicable to any Borrower, any Guarantor or the Property, including, without limiting the generality of the foregoing, the ownership, use, occupancy, possession, construction, operation, maintenance, alteration, repair, or reconstruction thereof.

“ Guarantors ” means Protein Finance Company, a Delaware corporation, Omega International Marketing Company, a Delaware corporation, Omega International Distribution Company, a Delaware corporation, Omega Shipyard, Inc., a Delaware corporation, Protein Industries, Inc., a Delaware corporation, and any other Person which subsequently guaranties the payment and performance of the Obligations.

“ Guaranty Agreement ”: See Section 3.03 .

“ Hazardous Materials ” include all materials defined as hazardous materials or hazardous substances under any Governmental Requirements relating to the environment, and petroleum, petroleum products, oil and asbestos.

“ Inactive Subsidiary ” means any direct or indirect Subsidiary of Omega Protein Corporation which (a) individually has assets not exceeding $500,000.00 and (b) together with all other Inactive Subsidiaries, has assets not exceeding $2,500,000.00 in the aggregate. As of the Closing Date, Omega Protein Mexico S. de R.L. de. C.V. is the only Inactive Subsidiary of Omega Protein Corporation.

“ Indemnified Party ”: See Section 10.02 .

“ Ineligible Vessel ” means (a) the Vessels identified on Schedule 4.16 as collateral for the NMFFP Financing permitted under clause (b) of Section 6.04 , and (b) any Vessel that at the time of determination is mortgaged to secure any NMFFP Financing owed by any Loan Party under the NMFFP to the extent such NMFFP Financing is permitted under clause (c) of Section 6.04 ; provided that if any such Vessel described in clause (a) or clause (b) above shall cease to secure any NMFFP Financing, including as the result of the satisfaction or discharge of such NMFFP Financing, the release of all Loan Parties’ obligations thereunder or the release of such Vessel as security therefore, such Vessel shall no longer constitute an “Ineligible Vessel”.

“ Interest Payment Date ” means (a) with respect to any Base Rate Principal, the last Business Day of each December, March, June and September commencing December 31, 2009,

 

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and (b) with respect to any LIBOR Principal, the last day of the Fixed Rate Term applicable thereto, provided that in the case of LIBOR Principal with a Fixed Rate Term of more than three (3) months’ duration, each day prior to the last day of such Fixed Rate Term that occurs at intervals of three (3) months’ duration after the first day of such Fixed Rate Term.

“ Joinder Agreement ” means a joinder agreement substantially in the form of Exhibit A executed and delivered by a Subsidiary in accordance with the provisions of Section 5.20 .

“ Jones Act ” means Section 27 of the Merchant Marine Act of 1920, as amended (recodified at 46 U.S.C. § 55101 et seq.), and all successors statutes thereto, and any and all regulations promulgated under any thereof.

“ L/C Obligations ”: See Section 2.08 .

“ Lender Swap Agreement ” means any Swap Agreement between any Borrower and any of its Affiliates, on the one hand, and a Lender Swap Provider, on the other.

“ Lender Swap Provider ” means Lender or an Affiliate of Lender.

“ LIBOR ” means the rate per annum determined pursuant to the following formula:

 

(i) “ Base LIBOR ” means the rate per annum for United States dollar deposits quoted by Lender (A) for the purpose of calculating effective rates of interest for loans making reference to LIBOR, as the Inter-Bank Market Offered Rate, with the understanding that such rate is quoted by Lender for the purpose of calculating effective rates of interest for loans making reference thereto, on the first day of a Fixed Rate Term for delivery of funds on said date for a period of time approximately equal to the number of days in such Fixed Rate Term and in an amount approximately equal to the principal amount to which such Fixed Rate Term applies, or (B) for the purpose of calculating effective rates of interest for loans making reference to the Daily One Month LIBOR Rate, as the Inter-Bank Market Offered Rate in effect from time to time for delivery of funds for one (1) month in amounts approximately equal to the principal amount of such loans. Borrowers understand and agree that Lender may base its quotation of the Inter-Bank Market Offered Rate upon such offers or other market indicators of the Inter-Bank Market as Lender in its discretion deems appropriate including, but not limited to, the rate offered for U.S. dollar deposits on the London Inter-Bank Market.

(ii) “ LIBOR Reserve Percentage ” means the reserve percentage prescribed by the Board of Governors of the Federal Reserve System (or any successor) for “Eurocurrency Liabilities” (as defined in Regulation D of the Federal Reserve Board, as amended), adjusted by Lender for expected changes in such reserve percentage during the applicable term of the Note.

“ LIBOR Principal ” means any portion of the Principal Debt which bears interest at an applicable LIBOR at the time in question.

 

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“ Lien ” means any mortgage, ship mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“ Loan Documents ” means this Agreement, the Note, the Guaranty Agreements, the Security Agreements, the Mortgages, the First Preferred Ship Mortgages, the Assignments of Insurances, the Aircraft Security Agreements, each other Collateral Document, any applicable UCC-1 financing statements, any applicable FAA filings, any applicable stock powers, the Partner’s Certificates, the Officer’s Certificates, the Notice of Final Agreement, the Post-Closing Letter, each Joinder Agreement, and such other documents evidencing, securing or pertaining to the Loan as shall from time to time be executed and delivered by Borrowers or any other Loan Party to Lender in connection with the Loan, including any future amendments hereto, or restatements hereof, or pursuant to the terms of any of the other Loan Documents, together with any and all renewals, extensions, and restatements of, and amendments and modifications to, any such agreements, documents, and instruments, but excluding any Lender Swap Agreements.

“ Loan Party ” means each Borrower, each Guarantor and each other Person who is, or whose property is, directly or indirectly liable for the Obligations.

“ Loans ”: See Section 2.01 .

“ Material Adverse Effect ” means (i) a material adverse effect upon the validity or enforceability of any of the Loan Documents, (ii) a material adverse change in, or a material adverse effect upon, the condition (financial or otherwise), business, assets, prospects, or operations of any Loan Party, (iii) a material impairment of the ability of either Borrower to fulfill its obligations under any of the Loan Documents, (iv) a material impairment of the ability of the Loan Parties taken as a whole to fulfill their obligations under any of the Loan Documents, or (v) a material impairment of the value of any Collateral from time to time securing the Obligations or the ability of Lender to realize thereon.

“ Maturity Date ” means October 21, 2012.

“ Maximum Rate ” means the higher of the maximum interest rate allowed by applicable United States or Texas law as amended from time to time and in effect on the date for which a determination of interest accrued hereunder is made. The determination of the maximum rate permitted by applicable Texas law shall be made pursuant to the weekly ceiling as determined pursuant to Chapter 303 of the Texas Finance Code, but Lender reserves the right to implement from time to time any other rate ceiling permitted by such law.

“ Monetary Obligations ”: See the definition of “Obligations” in this Section 1.01 .

“ Mortgage ” means each mortgage, deed of trust or deed to secure debt, in form and substance satisfactory to Lender, that purports to grant to Lender a Lien on the fee interests of any Loan Party in any real property.

 

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“ Mortgaged Property ” means any real property that is owned by a Loan Party and is subject to a Mortgage.

“ Multiemployer Plan ” has the meaning provided therefor in ERISA.

“ NMFFP ” means the National Marine Fisheries Finance Program.

“ NMFFP Collateral ” means (i) the Ineligible Vessels, (ii) any real property owned by any Loan Party and identified in Schedule 4.17 as collateral for the NMFFP Financing and any real property that at the time of determination is mortgaged to secure any NMFFP Financing owed by any Loan Party to the extent such NMFFP Financing is permitted by clause (c) of Section 6.04 , and (iii) any equipment or other property in which a Lien has been granted to secure NMFFP Financing permitted by clauses (b) and (c) of Section 6.04 .

“ NMFFP Financing ” means any obligation, whether actual or contingent, to repay any amount advanced or that may be advanced by the United States, acting under Title XI, by or through the Secretary of Commerce or any other instrumentality, pursuant to a loan guarantee made available pursuant to Title XI.

“ Note ” means that certain Revolving Note of even date herewith made by Borrowers payable to the order of Lender in the face amount of $35,000,000.00, as amended, modified, replaced, restated, extended or renewed from time to time.

“ Notice of Final Agreement ”: See Section 7.01(f) .

“ Obligations ” means the joint and several obligations of Borrowers to pay the indebtedness, advances, late charges, L/C Obligations and reimbursements described below (which indebtedness, advances, and other items are collectively called the “ Monetary Obligations ”) and to perform the agreements described below:

(a) to pay all indebtedness arising out of this Agreement, any future advances under this Agreement, and all renewals, extensions or amendments of such indebtedness or any part thereof or any such future advances, including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding;

(b) to pay the principal of and interest on the Note in accordance with the terms thereof, and all renewals, extensions, modifications and amendments of the Note or any part thereof, and any future advances made pursuant thereto;

(c) to repay to Lender all amounts advanced by Lender hereunder or under the other Loan Documents on behalf of Borrowers, including advances for principal or interest payments to prior secured parties, mortgagees, or lienors, or for taxes, levies, insurance, rent, repairs to or maintenance, storage or protection of any of the Collateral;

(d) to pay any and all other indebtedness of Borrowers to Lender of every kind, nature and description, direct or indirect, primary or secondary, secured or unsecured (including overdrafts), joint or several, absolute or contingent, due or to become due, now existing or hereafter arising, regardless of how it may be evidenced, including all future advances, whether or not presently contemplated by the parties hereto;

 

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(e) to pay any and all indebtedness and to perform all obligations of Borrowers or any of their Affiliates to the Lender Swap Providers arising out of any Lender Swap Agreement which Borrowers may have with such Lender Swap Providers;

(f) to pay any and all indebtedness and to perform all obligations of Borrowers or any of their Affiliates to Lender or Lender’s Affiliates arising out of any Treasury Management Agreement which Borrowers may have with Lender or Lender’s Affiliates;

(g) to pay the late charges as provided in this Agreement;

(h) to pay all L/C Obligations;

(i) to perform fully and cause all other Loan Parties to perform fully all of the terms and provisions of each of the instruments constituting the Loan Documents; and

(j) to reimburse Lender, on demand, for all of Lender’s expenses and costs, which Borrowers and the other Loan Parties are obligated to pay pursuant to the terms of the Loan Documents.

“ OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

“ Officer’s Certificate ” means, for each Loan Party that is a corporation or limited liability company, a certificate executed by an authorized officer having attached thereto (i) a copy of its articles of incorporation or organization and bylaws or operating agreement, and all amendments thereto, a certificate of incumbency of all of its officers who will be authorized to execute or attest any of the Loan Documents to which it is a party, and a copy of resolutions approving the Loan Documents to which it is a party and authorizing the transactions contemplated by this Agreement; and (ii) certificates of existence and good standing issued by the appropriate governmental officials of the state in which such corporation or limited liability company is organized, and, if different, satisfactory evidence of good standing in the state in which real estate owned by it and mortgaged to Lender is located .

“ Partner’s Certificate ” means, for each Loan Party that is a partnership, a certificate executed by an authorized officer having attached thereto (i) a true and complete copy of an executed copy of its partnership agreement and all amendments thereto, and (ii) for each limited partnership, a copy of the certificate of limited partnership accompanied by a certificate that the copy is true and complete, issued by the appropriate governmental officials of the state in which such limited partnership is organized, and, if different, satisfactory evidence of good standing in the state in which real estate owned by it and mortgaged to Lender is located.

“ PBGC ” means the Pension Benefit Guaranty Corporation.

“ Permitted Acquisitions ” means investments consisting of an Acquisition by a Loan Party, provided that (a) the property acquired (or the property of the Person acquired) in such Acquisition is used or useful in the same or a similar line of business as the Loan Parties were engaged in on the Closing Date (or any reasonable extensions or expansions thereof), (b) in the

 

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case of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (c) Borrowers shall have delivered to Lender a pro forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition, the Loan Parties would be in compliance with the financial covenants set forth in Sections 5.16 through and including 5.19 on a pro forma basis, (d) the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto), (e) if such transaction involves the purchase of an interest in a partnership between a Loan Party as a general partner and entities unaffiliated with Borrowers as the other partners, such transaction shall be effected by having such Equity Interest acquired by a corporate holding company directly or indirectly wholly-owned by such Loan Party newly formed for the sole purpose of effecting such transaction, (f) immediately after giving effect to such Acquisition, there shall be at least $5,000,000.00 of availability existing under the Commitment, and (g) the aggregate consideration (including cash consideration and non-cash consideration (other than Equity Interests of Omega Protein Corporation), any assumption of indebtedness, deferred purchase price and any earn-out payments ) paid by the Loan Parties for all such Acquisitions shall not exceed $5,000,000.00 during any fiscal year and shall not exceed $10,000,000.00 during the term of this Agreement.

“ Permitted Disposition ” means (a) Dispositions of inventory in the ordinary course of business, (b) Dispositions of machinery and equipment no longer used or useful in the conduct of business of a Loan Party that are made in the ordinary course of business, (c) Dispositions of property by a Loan Party to another Loan Party, provided that to the extent constituting an investment, such transaction is permitted by Section 6.09 , (d) Dispositions of accounts receivable in connection with the collection or compromise thereof, (e) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Loan Parties, and (f) the Disposition of cash equivalents for fair market value.

“ Permitted Liens ” means (a) the Liens evidenced by the Loan Documents, (b) other Liens in favor of Lender, (c) Liens existing on the date hereof and listed on Schedule 6.01 (including Liens securing the NMFFP Financing) and any renewals or extensions thereof, provided that (i) the scope of property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased, and (iii) the direct or any contingent obligor with respect thereto is not changed, (d) Liens on Vessels that at any time hereafter are mortgaged to secure NMFFP Financing permitted by clause (c) of Section 6.04 , (e) Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental charges or levies not yet due or which are being Contested in Good Faith, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, (f) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided that such Liens secure only amounts not yet due and payable or, if due and payable are not overdue by more than forty-five (45) days, are unfiled and no other action has been taken to enforce the same or are being Contested in Good Faith, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, (g) pledges or deposits made in the ordinary course of business to secure payment of workers’ compensation, or to participate in any funds in connection with workers’ compensation unemployment insurance, old age pensions, or other social security programs, (h) deposits to

 

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secure the performance of bids, trade contracts and leases (other than indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business, (i) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which (1) are not Liens which secure other indebtedness or obligations, and (2) in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person, (j) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(i) , (k) Liens securing purchase money indebtedness permitted under clause (d) of Section 6.04 (but only to the extent of the assets purchased with such purchase money indebtedness), (l) leases or subleases granted to others not interfering in any material respect with the business of Borrowers or any of their Subsidiaries, (m) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement, (n) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions, (o) Liens of a collection bank arising under Section 4.210 of the Uniform Commercial Code on items in the course of collection, (p) maritime Liens on Vessels arising by operation of law in the ordinary course of business that are not overdue by more than forty five (45) days or are being Contested in Good Faith, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor, (q) Liens on unearned insurance premiums securing indebtedness permitted under Section 6.04(h) , (r) a Lien on cash collateral to secure up to $2,000,000.00 of Acceptable Swap Agreements that Borrowers have entered into with Bank of America, N.A. prior to the Closing Date, and (s) other Liens on assets having an aggregate value not exceeding $500,000.00 at any time.

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“ Post-Closing Letter ” means that certain letter agreement of even date herewith between Borrowers and Lender setting forth the required time for delivery of certain items otherwise required under Section 7.01 to be delivered to Lender on the Closing Date.

“ Potential Default ” means any condition, event or act, which with the giving of notice or the lapse of time, or both, will constitute an Event of Default hereunder.

“ Prime Rate ” means at any time the rate of interest most recently announced within Lender at its principal office as its Prime Rate, with the understanding that the Prime Rate is one of Lender’s base rates and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the recording thereof after its announcement in such internal publication or publications as Lender may designate.

“ Principal Debt ”: See Section 2.03 .

“ Prohibited Transaction ” has the meaning provided therefor in ERISA.

“ Reportable Event ” has the meaning provided therefor in ERISA.

“ Rules ”: See Section 10.27 .

 

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“ Sanctioned Entity ” means (a) an agency of the government of, (b) an organization directly or indirectly controlled by, or (c) a Person resident in a country that is subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time as such program may be applicable to such agency, organization or Person.

“ Sanctioned Person ” means a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from time to time.

“ Security Agreement ” means each security agreement, pledge and other agreement, in form and substance satisfactory to Lender, that purport to grant to Lender a security interest in the personal property of any Loan Party.

“ Standby Letter of Credit ”: See Section 2.08 .

“ Subordinated Liabilities ” means liabilities subordinated to Borrowers’ obligations to Lender in a manner acceptable to Lender in its sole discretion.

“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of any Borrower.

“ Swap Agreement ” means any interest rate, currency, commodity, or equity cap, floor, collar, forward agreement, or other similar exchange or rate or price protection arrangement, or any similar transaction or any option with respect to any such transaction, including any swap agreement as defined in 11 U.S. Code Section 101.

“ Tangible Net Worth ” means at any time the consolidated stockholders equity of Borrowers and their consolidated Subsidiaries plus Subordinated Liabilities and minus intangibles (including goodwill, patents, trademarks, trade names, organization expense, unamortized debt discount and expense, capitalized or deferred research and development costs, deferred marketing expenses, and other like intangibles, and monies due from Affiliates, officers, directors, employees, shareholders, members or managers of Borrower).

“ Title XI ” means Title XI of the Merchant Marine Act of 1936 and any and all regulations promulgated under any provision thereof.

“ Total Funded Debt ” means, as of any date, with respect to Borrowers and their consolidated Subsidiaries on a consolidated basis, without duplication, all indebtedness for borrowed money (including obligations under capitalized leases).

 

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“ Total Liabilities ” means, at any time, consolidated total liabilities of Borrowers and their consolidated Subsidiaries.

“ Treasury Management Agreement ” means any agreement governing the provision of treasury or cash management services, including deposit accounts, funds transfer, automated clearinghouse, zero balance accounts, returned check, concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services.

“ U.S. Citizen ” means a person that (a) is an “eligible owner” within the meaning of 46 U.S.C. § 12103(b), and any and all successor statutes thereto, and any and all regulations promulgated under any thereof, and (b) if such Person is an entity, satisfies the ownership requirements of 46 U.S.C. § 12113(c) and 46 C.F.R. 356.3(e), and any and all successor statutes thereto, and any and all regulations promulgated under any thereof.

“ U.S. Coast Guard ” means the United States Coast Guard, a military organization under the Department of Homeland Security.

“ U.S. Fisheries Trade ” means processing, storing, transporting (except in foreign commerce), catching, taking and harvesting fish in the navigable waters of the United States or in the Exclusive Economic Zone, and landing any catch, wherever caught, in the United States.

“ Vessels ” means, at any time, each of the vessels owned by any Loan Party at such time, including the vessels listed on Schedule 4.16 , in each case together with all engines, boilers, machinery, masts, anchors, cables, rigging, tackle, apparel, furniture, boats, chains, equipment and all other appurtenances to such vessels whether aboard or removed from such vessels, together with any and all additions, improvements and/or replacements which may hereafter be made to, on or in such vessels or any part thereof.

“ Voting Stock ” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such contingency.

Section 1.02 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (d) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules

 

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to, the Loan Document in which such references appear, (e) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

Section 1.03 Accounting Terms . Unless specified elsewhere herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements to be delivered hereunder shall be prepared in accordance with GAAP.

Section 1.04 Counting Days . If any time period referenced herein ends on a day other than a Business Day, such period shall be deemed to end on the next succeeding Business Day.

Section 1.05 Rounding . Any financial ratio as required to be maintained by any Loan Party pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).

Section 1.06 Standby Letter of Credit Amounts . Unless otherwise specified, all references herein to the amount of a Standby Letter of Credit at any time shall be deemed to mean the maximum face amount of such Standby Letter of Credit after giving effect to all increases thereof contemplated by such Standby Letter of Credit or the issuer documents related thereto, whether or not such maximum face amount is in effect at such time.

ARTICLE II

REVOLVING CREDIT FACILITY

Section 2.01 The Loan . Lender agrees, subject to the terms and conditions hereof, to lend Borrowers at any time and from time to time on or before the Maturity Date sums (each herein called a “ Loan ” and collectively the “ Loans ”) which may be repaid and reborrowed pursuant to the terms hereof and which shall not exceed at any one time outstanding the amount of the Commitment. Whenever Borrowers desire to borrow hereunder, they shall comply with Lender’s standard procedures under its Internet-based program “CEO,” as the same may change from time to time.

Section 2.02 Use of Proceeds . The proceeds of Loans may be used solely to fund Borrower’s general corporate needs, including working capital and routine capital expenditures, and to pay off the indebtedness of Borrowers to Bank of America, N.A. and the other lenders for which Bank of America, N.A. is Administrative Agent.

Section 2.03 Promissory Note . The obligation of Borrowers to repay the aggregate principal balance of all Loans hereunder outstanding at any one time (the “ Principal Debt ”) shall be evidenced by the Note which shall (a) be payable for the amount of $35,000,000.00 or the

 

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Principal Debt then outstanding at the time payment in full is made or due, whichever is less, (b) bear interest from the date of each advance hereunder until paid as provided in Section 2.04 , (c) be payable as to principal and interest as provided in Section 2.05 , (d) be entitled to the benefits of this Agreement and the security provided for herein, and (e) be in such form as is acceptable to Lender. So long as no Event of Default exists, Borrower may select the interest rate for each Loan or change from one rate to the other, as provided in Section 2.04 . If an Event of Default exists, (i) Borrower may not change from one rate to another, and (ii) at Lender’s option, the interest rate for all Loans shall be the higher of the two rates or the Default Rate.

Section 2.04 Interest Rate .

(a) Interest . The outstanding principal balance of the Note shall bear interest (computed on the basis of a 360-day year, actual days elapsed, unless such calculation would result in a usurious rate, in which case interest shall be computed on the basis of a 365/366-day year, as the case may be, actual days elapsed) at the lesser of (i) at Borrower’s option, either (A) a fluctuating rate per annum equal to the Base Rate in effect from time to time plus the Applicable Margin, or (B) a fixed rate per annum determined by Lender to be equal to LIBOR in effect on the first day of the applicable Fixed Rate Term plus the Applicable Rate, or (ii) the Maximum Rate. When interest is determined in relation to the Base Rate, each change in the interest rate shall become effective each Business Day that Lender determines that the Base Rate has changed. Lender is hereby authorized to note the date, principal amount and interest rate applicable thereto and any payments made thereon on Lender’s books and records (either manually or by electronic entry) and/or on any schedule attached to the Note, which notations shall be prima facie evidence of the accuracy of the information noted.

(b) Selection of Interest Rate Options . At any time any portion of the Note bears interest determined in relation to LIBOR for a Fixed Rate Term, it may be continued by Borrower at the end of the Fixed Rate Term applicable thereto so that all or a portion thereof bears interest determined in relation to the Base Rate or to LIBOR for a new Fixed Rate Term designated by Borrower. At any time any portion of the Note bears interest determined in relation to the Base Rate, Borrower may at any time convert all or a portion thereof so that it bears interest determined in relation to LIBOR for a Fixed Rate Term designated by Borrower. At such time as Borrower requests an advance hereunder or wishes to select an interest rate determined in relation to the Base Rate or a Fixed Rate Term for all or a portion of the outstanding principal balance hereof, and at the end of each Fixed Rate Term, Borrower shall give Lender notice specifying: (i) the interest rate option selected by Borrower; (ii) the principal amount subject thereto; and (iii) for each LIBOR selection for a Fixed Rate Term, the length of the applicable Fixed Rate Term. Any such notice may be given by telephone (or such other electronic method as Lender may permit) so long as, with respect to each LIBOR selection for a Fixed Rate Term, (A) if requested by Lender, Borrower provides to Lender written confirmation thereof not later than three (3) Business Days after such notice is given, and (B) such notice is given to Lender prior to 10:00 a.m. on the first day of the Fixed Rate Term, or at a later time during any Business Day if Lender, at its sole option but without obligation to do so, accepts Borrower’s notice and quotes a fixed rate to Borrower. If Borrower does not immediately accept a fixed rate when quoted by Lender, the quoted rate shall expire and any subsequent LIBOR request from Borrower shall be subject to a redetermination by Lender of the applicable fixed rate. If, at the time any advance is requested hereunder or at the end of any Fixed Rate Term, Borrower does not designate whether such advance or the principal amount to which such Fixed Rate Term is applied is to bear interest at the Base Rate or at a Fixed Term Rate, Borrower shall be deemed to have made a Base Rate interest selection for such advance or principal amount.

 

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(c) Default Interest . From and after the Maturity Date, or such earlier date as all principal owing hereunder becomes due and payable by acceleration or otherwise, or at Lender’s option during the existence of an Event of Default, the outstanding principal balance of the Note shall bear interest (computed on the basis of a 360-day year, actual days elapsed, unless such calculation would result in a usurious rate, in which case interest shall be computed on the basis of a 365/366-day year, as the case may be, actual days elapsed) at an increased rate equal to the Default Rate.

Section 2.05 Amortization . Accrued unpaid interest shall be due and payable in arrears on each Interest Payment Date; provided that in the event of any conversion of any LIBOR Principal to Base Rate Principal prior to the end of the current Fixed Rate Term therefor, accrued interest on such LIBOR Principal shall be due and payable on the effective date of such conversion. Accrued unpaid interest shall also be due and payable at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. The Principal Debt then outstanding, plus accrued but unpaid interest then outstanding, plus accrued but unpaid interest to the date of payment, shall be due and payable on the Maturity Date. Lender is authorized to debit Borrowers’ operating accounts on the date payment is due for all Obligations, including all payments of principal and interest due under the Note (and Borrowers shall be deemed to have requested a Loan for such purpose irrespective of satisfaction of conditions precedent thereto or whether any Event of Default or Potential Default then exists).

Section 2.06 Prepayments .

(a) Base Rate . Borrowers may prepay Base Rate Principal at any time, in any amount and without penalty.

(b) LIBOR . Borrowers may prepay LIBOR Principal at any time. In consideration of Lender providing this prepayment option to Borrowers, or if any such portion of the Note shall become due and payable at any time prior to the last day of the Fixed Rate Term applicable thereto, Borrowers shall pay to Lender immediately upon demand a fee which is the sum of the discounted monthly differences for each month from the month of prepayment through the month in which such Fixed Rate Term matures, calculated as follows for each such month:

(i) Determine the amount of interest which would have accrued each month on the amount prepaid at the interest rate applicable to such amount had it remained outstanding until the last day of the Fixed Rate Term applicable thereto.

(ii) Subtract from the amount determined in (i) above the amount of interest which would have accrued for the same month on the amount prepaid for the remaining term of such Fixed Rate Term at LIBOR in effect on the date of prepayment for new loans made for such term and in a principal amount equal to the amount prepaid.

 

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(iii) If the result obtained in (ii) for any month is greater than zero, discount that difference by LIBOR used in (ii) above.

Borrowers acknowledge that prepayment of such amount may result in Lender incurring additional costs, expenses and/or liabilities, and that it is difficult to ascertain the full extent of such costs, expenses and/or liabilities. Borrowers, therefore, agree to pay the above-described prepayment fee and agree that said amount represents a reasonable estimate of the prepayment costs, expenses and/or liabilities of Lender.

Section 2.07 Unused Commitment Fee . Borrowers agree to pay Lender an unused commitment fee for the period commencing with the date of this Agreement to the Maturity Date, computed at the rate of three eighths of one percent (0.375%) per annum on the average daily unused portion of the Commitment. The phrase “unused portion of the Commitment” as used in the preceding sentence means the difference between (a) the Commitment, and (b) the sum of the Principal Debt and the L/C Obligations. The commitment fee shall be payable quarterly in arrears upon receipt of billing from Lender.

Section 2.08 Standby Letter of Credit Subfeature . As a subfeature under the revolving credit facility created by this Agreement, Lender shall from time to time up to and including seven (7) days prior to the Maturity Date, issue Standby Letters of Credit for the account of Borrowers (each a “ Standby Letter of Credit ” and collectively, the “ Standby Letters of Credit ”); provided that (a) the form and substance of each Standby Letter of Credit shall be subject to approval by Lender in its sole discretion, and (b) the aggregate undrawn amount of all outstanding Standby Letters of Credit shall not at any time exceed $7,500,000.00. If the expiry date of any Standby Letter of Credit is subsequent to the Maturity Date, then on the Maturity Date Borrowers shall provide to Lender cash collateral in an amount