Exhibit 10.6
AIRCRAFT SECURITY
AGREEMENT
THIS AIRCRAFT SECURITY
AGREEMENT (this “
Agreement ”) is entered into as of October 21,
2009 among OMEGA PROTEIN CORPORATION , a Nevada corporation
(the “ Company ”), OMEGA PROTEIN, INC. ,
a Virginia corporation (“ OPI ” and, together
with the Company, the “ Borrowers ” and each a
“ Borrower ”), together with the other parties
identified as “Obligors” on the signature page hereto
and such other parties that may become Obligors hereunder after the
date hereof (together with the Borrowers, individually an “
Obligor ”, and collectively the “
Obligors ”) and WELLS FARGO BANK, NATIONAL
ASSOCIATION , a national banking association (the “
Lender ”).
R E C I T A L S :
A. Pursuant to that certain Loan
Agreement dated as of the date hereof (as amended, modified,
extended, renewed or replaced from time to time, the “
Loan Agreement ”, the form of which, without Schedules
or Exhibits, is attached as Exhibit A hereto for
definitional purposes only and incorporated herein by reference)
among the Borrowers and Lender has agreed to make loans, issue
letters of credit and make other financial accommodations upon the
terms and subject to the conditions set forth therein;
and
B. This Agreement is required by the
terms of the Loan Agreement.
NOW, THEREFORE
, in consideration of these premises
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1.
(a) Defined Terms . The
following terms used herein shall have the meanings set forth
below:
“ Aircraft ”
means and includes (a) the Airframe, (b) the Engines, and
(c) any and all manuals, logbooks, flight records, maintenance
records, and other historical information or records of each
Obligor relating to (a) or (b).
“ Airframe ”
means and includes that certain airframe identified on
Exhibit B attached hereto and incorporated herein by
reference, together with any and all parts, appliances, components,
instruments, accessories, accessions, attachments, equipment, or
avionics (including, without limitation, radio, radar, navigation
systems, or other electronic equipment but excluding Engines or
engines installed thereon) installed in, attached to, appurtenant
to, or delivered with or in respect of such Airframe.
“ Collateral ”
has the meaning provided in Section 2 of this
Agreement.
“ Cape Town Treaty
” has the meaning provided in 49 U.S.C.
§ 44113(1).
“ Engine ” means
and includes those certain aircraft engines installed on an
Airframe together with any and all parts, appliances, components,
accessories, accessions, attachments or equipment installed on,
appurtenant to, or delivered with or in respect of such
Engines.
“ Event of Default
” means the failure of any Obligor to comply with the terms
of this Agreement or any Event of Default as defined in the Loan
Agreement.
“ International
Registry ” has the meaning provided in 49 U.S.C.
§ 44113(3).
“ Secured Obligations
” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Obligor arising under or in respect of
the Loan Agreement or otherwise with respect to any loan or letter
of credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that
accrue after the commencement by or against any Obligor or any
affiliate thereof of any proceeding under the United States
Bankruptcy Code or other applicable debtor relief laws naming such
person or entity as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such
proceeding. The foregoing shall also include (a) all
obligations under any interest rate, commodity, currency hedging or
swap transaction between any Obligor and any Lender or affiliate of
a Lender that is permitted by the terms of the Loan Agreement and
(b) all obligations under any Treasury Management Services
between any Obligor and any Lender or affiliate of a
Lender.
“ Treasury Management
Services ” means any agreements or amounts owed for 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.
(b) Terms Defined in the Loan
Agreement . All other terms used herein which are defined in
the Loan Agreement shall have the same meaning herein unless the
context otherwise requires. Such terms include, without limitation,
“ Closing Date ”, “ Loan Documents
”, and “ Loan Party ”
Section 2. Grant of Security
Interest . To secure the payment of the Secured Obligations,
however created, arising or evidenced, whether direct or indirect,
absolute or contingent, now existing or hereafter acquired, and
future advances, and all costs and expenses incurred by the Lender
to obtain, preserve, perfect and enforce the security interest
granted herein and to maintain, preserve and collect the property
subject to the security interest, each Obligor hereby grants to the
Lender a continuing first priority security interest in and lien
upon the following described property, whether now owned or
hereafter acquired (collectively, the “ Collateral
”): (i) the Aircraft (including, without limitation, the
Airframe and the Engines); (ii) all right, title, and interest
of each Obligor in and to any purchase agreement, rental agreement,
charter agreement, or other agreement(s) respecting the Aircraft
and/or any of the Engines, including, but not limited to,
Obligor’s right to receive, either directly or indirectly,
from any party or person, any rents or other payments due under
such agreement(s); (iii) the propellers (if any), appliances,
and spare parts identified and/or described by type and location on
Exhibit B hereto; (iv) any and all substitutions,
replacements, and proceeds of any of the foregoing items,
including, but not limited to, proceeds of insurance covering the
Airframe, the
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Engines, and or any other portion of the
Collateral, and any and all accounts, general intangibles, contract
rights, inventory, equipment, money, drafts, instruments, deposit
accounts, or other tangible or intangible property of each Obligor
resulting from the sale (authorized or unauthorized) or other
disposition of the Collateral, or any portion thereof, and the
proceeds thereof, and (v) all proceeds of the
foregoing.
Section 3. Obligors’
Warranty of Title . Except for the security interest granted
under this Agreement, each Obligor warrants that such Obligor is
(or, to the extent that the Collateral is to be acquired hereafter,
will be) the owner of the Collateral free from any prior security
interest, lien or encumbrance. Each Obligor will defend the
Collateral against all claims and demands of all persons or
entities claiming any interest therein.
Section 4. International
Registry . Each Obligor warrants that none of the Aircraft are
capable of transporting eight (8) or more persons (including
crew), or goods in excess of 2750 kilograms and that each Engine
has less than 550 rated takeoff shaft horsepower or the equivalent
of such horsepower.
Section 5. Obligors Will
Execute and Deliver Documents . Each Obligor will, at the
Lender’s written request, furnish the Lender such information
and execute and deliver to the Lender such documents and do all
such acts and things as Lender may reasonably request and as are
necessary or appropriate to assist the Lender in establishing and
maintaining a valid security interest in the Collateral and to
assure that the Collateral is properly titled and registered and
the security interest perfected to the Lender’s satisfaction.
The Obligors will pay the cost of filing all appropriate documents
in all public offices where the Lender deems such filings to be
necessary or desirable. The Obligors will and, as applicable,
hereby authorize the Lender to: (a) record, register and file
the security interest under this Agreement, each and every
supplement hereto, and such notices, financing statements,
registrations and other instruments as may from time to time be
requested by the Lender with the appropriate agencies, if any, in
the United States of America (including the filing of UCC-1
financing statements in the United States of America) and with the
International Registry established under the Cape Town Treaty as
adopted by the United States of America, as the Lender may
reasonably require in its sole and absolute discretion to perfect,
maintain perfected or further protect the Lender’s security
interest in the Aircraft and the other items of the Collateral, the
value or priority thereof, and the rights and remedies of the
Lender hereunder, such recordation, registration and filing to be
in form and substance acceptable to the Lender; (b) furnish
evidence of every such recording, registering and filing; and
(c) execute and deliver or perform, or cause to be executed
and delivered or performed, such further and other instruments
reasonably requested by the Lender as are required to carry out the
intent and purpose of this Agreement and to subject the Collateral
to the lien created or intended to be created by this Agreement,
including (i) any and all acts and things which may be
reasonably requested by the Lender with respect to the terms of the
Convention on the International Recognition of Rights in Aircraft
signed at Geneva, Switzerland on June 19, 1948 and the laws
and regulations of the United States of America, including the Cape
Town Treaty, to perfect and preserve the rights of the Lender
hereunder, and (ii) defending the title of the Obligors to the
Collateral and any and all parts thereof, by means of negotiation
and, if necessary, appropriate legal proceedings, against every
party claiming the same through or under the Obligors or
otherwise.
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Section 6. Power of
Attorney . Each Obligor hereby irrevocably appoints the Lender
as its attorney-in-fact and agent with full power of substitution
and resubstitution for it and in its name (which power shall be
exercisable only during the existence of an Event of Default) and
coupled with an interest in the Collateral to endorse the name of
such Obligor on any checks or other instruments or evidences of
payment or other documents in connection with or pertaining to the
Collateral that may come into the possession of the Lender; to
compromise, prosecute or defend any action, claim or proceeding
concerning the Collateral provided that the Lender has given
notice of same to such Obligor; to do any and all acts which such
Obligor is obligated hereby to do with respect to the Collateral;
to exercise such rights as such Obligor might exercise with respect
to the Collateral; to give notice of the Lender’s security
interest in and to collect the Collateral and any proceeds thereof,
and to execute and file in such Obligor’s name any financing
statements, continuation statements, and amendments thereto
required to perfect, maintain perfected or further perfect the
Lender’s security interest in the Collateral granted
hereunder, for the purposes of protecting and preserving the
Collateral and the Lender’s rights hereunder and therein, as
and to the extent otherwise provided herein; and to do and perform
each and every act necessary and property to carry out the purposes
contemplated in this Agreement, as such Obligor might or could do,
if personally present, and such Obligor hereby ratifies and
approves
