EXHIBIT 10.67
SECURITY AGREEMENT
This Security Agreement
(hereinafter, the “Agreement”), made between Omega
Protein, Inc., (hereinafter, the “Borrower”), whose
address is P.O. Box 1799, Hammond, Louisiana 70404 and the UNITED
STATES OF AMERICA, acting by and through the Secretary of Commerce,
National Oceanic and Atmospheric Administration, National Marine
Fisheries Service, Financial Services Division, 1315 East-West
Highway, Silver Spring, Maryland 20910, which is the Secured Party,
(hereinafter the “Government”).
All terms contained herein are
defined in the Acknowledgment of Definitions executed by all
parties to this transaction.
W
I T N
E S S E T
H
WHEREAS, the Borrower desires to
enter into a Promissory Note to the United States (hereinafter, the
“Note”), dated December 29, 2003, in the amount of FIVE
MILLION, THREE HUNDRED THOUSAND, and no/Dollars ($5,300,000.00),
pursuant to the provisions of Title XI of the Merchant Marine Act,
1936, as amended, found at 46 USC § 1271 et seq., and 50 CFR
253, as amended by Public Law 104-297 on October 11, 1996, known as
the Fisheries Finance Program, (hereinafter, the “FFP
Debt”); and
WHEREAS, the Government will not
enter into this transaction unless the Government is granted a
security interest in certain property.
NOW THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
whereof being hereby acknowledged, the parties agree as
follows:
Section 1 . The Borrower hereby grants to the Government a
security interest in the following described property, together
with all accessories, substitutions, additions, replacements, parts
and accessions affixed to or used in connection therewith
(hereinafter, the “Collateral”):
(a) The whole of the fishing vessels
TIGER POINT, Official Number 508606, and JOHN DEMPSTER, Official
Number 547685, MERMENTAU, Official Number 932019, KIMBERLEY,
Official Number 517498, BARATARIA BAY, Official Number 508201, and
GULF ISLAND, Official Number 619983 together with all related gear,
boilers, machinery, electronics, equipment, motors, skiffs,
inventory, supplies, contracts, contract rights, charter
hire,
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freight, licenses and/or permits, general
intangibles, transferable fishery conservation and management
allocations, now owned or hereafter acquired, attached or not
attached or to be attached, to secure payment of the
Borrower’s debt to the Government as evidenced hereby and by
Borrower’s Promissory Note, (hereinafter, the
“Note”), to the Government of even date herewith
payable to the Government, in accordance with the Note, in the
amount of FIVE MILLION, THREE HUNDRED THOUSAND, and no/Dollars,
($5,300,000.00) payable on the terms, at the times, and with
interest as set forth in said Note. Borrower agrees to pay the Note
and, if any portion thereof, principal or interest, is not paid
when due, Borrower agrees to pay, in addition to the foregoing, the
reasonable collection costs of the Government;
(b) Any and all federal or state
fisheries permits, individual fishing quotas (IFQ), individual
transferable quotas (ITQ), community development quotas (CDQ),
quota shares, allocations, endorsements, rights, licenses, or tags,
whether vested individually with the Borrower or appurtenant to the
Vessel, whether now owned or hereafter acquired, whether now
existing or hereafter created by rule, regulation, statute or
fishery management council action, which now exist or are hereafter
created pursuant to any limited entry programs, moratorium periods,
high seas permits, license limitation programs or total allowable
catch and domestic annual processing assessments or like programs
or assessments whether or not any of the foregoing relate to or
affect the fishing operations of the vessel.
(c) All insurances pertaining to the
Collateral, including, without limitation, hull and machinery,
increased value, war risk, protection and indemnity, pollution,
workmen’s liability and compensation, loss of earnings,
personal property, liability and all other insurances and
association entries, and all claims and all returns of premiums,
dues, calls, and assessments that are not immediately applied to
future premiums, dues, calls, and assessments, and all other sums
or claims for sums due or to become due thereunder;
(d) All debts and obligations owing
to the Borrower, including, without limitation, interest thereon,
charges and other expenses and fees advanced by or incurred by or
for the Government, and all liens and encumbrances securing any or
all of the foregoing;
(e) Borrower grants the Government a
security interest in the following real estate situated in
Northumberland County, Commonwealth of Virginia and fully described
in Exhibit A.
EXHIBIT “A” IS ATTACHED
AND MADE A PART HEREOF
together with all buildings and other
improvements, hereditaments and appurtenances thereunto belonging,
or in any wise appertaining now existing or hereafter erected upon
the premises and all the income and
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rents arising therefrom. Borrower does hereby
intend to convey and does convey all of Borrower’s right,
title and interest in and to any strips and gores Borrower may now
own contiguous to the above described property;
(f) It is expressly understood and
agreed, as a part of the consideration for the loan made to the
Borrower and secured by the premises described in Exhibit A, this
instrument covers and includes all surface, subsurface and/or
mineral estate ownership now or after acquired by the undersigned
in the above property and whether or not expressly excepted from
the description to the above security premises, any provisions
herein to the contrary being of no force and effect;
(g) For the consideration aforesaid,
and as further security for any and all debt(s) and obligation(s)
described above, said Borrower does hereby assign, pledge and
transfer to the Government, and grant to the Government a security
interest in and to the following described property and interests
which are listed on Exhibit B and/or set out as follows: (1) all
timber of all kind, character and description planted and/or
growing, or to be planted and/or grown, on the hereinabove
described property; (2) all crop allotments, quotas, and/or (3) all
rents, profits, issues, income, royalties, bonuses, and revenue of
said property, or any part or interest herein, from time to time
accruing whether under leases or tenancies now existing or
hereafter created; (4) each and every policy of hazard insurance,
or the like, now or hereafter in effect which insures said property
or any building, fixture and/or improvement thereon, or any part
thereof, together with all the right, title and interest of
Borrower in and to such policy, including but not limited to any
premiums paid (or rights to return premiums) and/or all proceeds or
payments thereunder; (5) all judgments, award of damages and
settlements hereafter made resulting from condemnation proceedings
or the taking of the real property, or any part thereof, under the
power of eminent domain, or for any damage (whether caused by such
taking or otherwise) to the property, or any part thereof, or to
any rights appurtenant thereto; (6) all building materials,
equipment, fixtures and fittings of all kind, character, and
description used in connection with or relating to said property
and/or buildings, fixtures or improvements thereon; (7) all
equipment, including, but not limited to: forklifts, bobcats,
cranes, pallet trucks, lift trucks and other product or material
movement equipment of whatsoever nature; all trailers, tanks,
trucks or other rolling stock of whatsoever nature; all fish
unloading, transfer and conveying equipment of whatsoever nature;
fungible goods, including fish; all fish processing equipment of
whatsoever nature; all fish weighing equipment of whatsoever
nature; all cooling, refrigerating, freezing and other fish holding
equipment (blast freezers, coolers, or other refrigeration
equipment) of whatsoever
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nature; all fish packaging equipment of
whatsoever nature; all fish baskets, totes, tanks, tubs and other
fish holding equipment of whatsoever nature; all ice makers of
whatsoever nature, all hand and power tools of whatsoever nature;
all office equipment of whatsoever nature; all fish hatching,
releasing, rearing, growing, tending and other equipment of
whatsoever nature in any way associated with fisheries cultivation
of every sort—all together with all associated equipment,
machinery, parts, tools, or other items of whatsoever nature and
whether fixed or unfixed to the property or any other premises
whatsoever; and/or (8) all tangible or intangible property found on
the premises which is not listed on Exhibit “B”, and
products, proceeds, and additions and/or replacements of any or all
of the property described above in Items 1 through 7, also
including all after-acquired personal property to be located in or
about the said facility of Borrower, subject to any purchase-money
security interest acquired by any vendor of said after-acquired
personal property;
EXHIBIT “B” IS ATTACHED
AND MADE A PART HEREOF
Section 2 . The Borrower hereby warrants and covenants
that:
(a) Except as may otherwise be
required in the ordinary course of business, at all times the items
listed on Exhibit B will be kept on the property itself, in
transit, or in storage and shall not be removed from said location,
in whole or in part, until such time as written consent to a change
of location is obtained by the Borrower from the
Government;
(b) The Collateral is to be used
primarily for business use and kept at the Borrower’s
principal place of business.
Section 3 . Other terms and conditions:
(a) In the event that this Security
Agreement, the Note, or any provisions hereof or thereof shall be
deemed invalid in whole or in part by reason of any present or
future law of the United States or any decision of any
authoritat
