Exhibit 10.3
SECOND AMENDMENT TO AMENDED AND RESTATED
SECURITY AND PLEDGE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED SECURITY AND PLEDGE AGREEMENT(this “Amendment”) is effective as of October 11, 2013, by and amongOMEGA PROTEIN CORPORATION, a Nevada corporation (the “Parent”), andOMEGA PROTEIN, INC., a Virginia corporation (collectively with the Parent, the “Borrowers”), 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”)andWELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, in its capacity as administrative agent (the “Administrative Agent”) for the Secured Parties (as defined below).
RECITALS:
A. Pursuant to that certain Amended and Restated Loan Agreement (as heretofore or hereafter amended, modified, restated or supplemented from time to time, the “Loan Agreement”) dated as of March 21, 2012, by and among Administrative Agent, Lenders, and Borrowers, Lenders made certain Loans to Borrowers.
B. Wisconsin Specialty Protein, LLC, a Wisconsin limited liability company (“WSP”) has joined in the Loan Agreement as a Loan Party pursuant to that certain Joinder Agreement and Consent and Waiver dated February 27, 2013, and WSP has guaranteed the Secured Obligations pursuant to that certain Guaranty Agreement of even date therewith.
C. WSP is to grant a first priority Lien on all of its assets to Administrative Agent for the benefit of the Secured Parties pursuant to that certain Amended and Restated Security and Pledge Agreement (as heretofore or hereafter amended, modified, restated or supplemented from time to time, the “Security Agreement”) dated March 21, 2012, executed by each of the Obligors party thereto, as debtors, in favor of Administrative Agent for benefit of the Secured Parties, as secured parties. The grant of that Lien has been postponed, pending the termination of certain prior Liens in favor of WSP’s landlord, WSP Reedsburg Properties, LLP, which will be terminated contemporaneously with the execution of this Amendment.
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:
1. Definitions.
(a) The terms “Administrative Agent,” “Amendment,” “Borrowers,” “Loan Agreement,” “Merger Sub,” “Parent,” “Security Agreement,” and “WSP,” shall have the meanings set forth hereinabove.
(b) All capitalized terms used but not defined herein shall have the same meaning as set forth in the Security Agreement; specifically, and without limitation, the following terms are defined in the Security Agreement: “Collateral.”
(c) All capitalized terms used but not defined herein and not defined in the Security Agreement shall have the same meaning as set forth in the Loan Agreement; specifically, and without limitation, the following terms are defined in the Loan Agreement: “Domestic Subsidiary,” “Lenders,” “Lien,” “Loans,” “Loan Documents,” “Obligor(s),” “Secured Obligations,” and “Secured Parties”.
2. Grant of Security Interest.
(a) WSP, to secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations, hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing lien on and security interest in, and a right of set off against, any and all right, title and interest of WSP in and to all of the Collateral in which it has any rights, including without limitation that listed on the attached Schedule; and
(b) Obligors hereby amendSchedule 2(v) to the Security Agreement by adding the intellectual property described inSchedule 2(v)-1 attached hereto.
3. Representations, Warranties and Covenants. The representations, warranties and covenants of the Obligors contained in the Security Agreement are hereby again made and confirmed by each Obligor to Administrative Agent and are in full force and effect as of the date hereof.
4. Limitations. It is understood and agreed that nothing contained herein shall in any manner or way release, affect or impair: (a) the existence of the Secured Obligations or the Liens created by the Loan Documents, (b) the enforceability of the Liens created by, and the rights and remedies of Administrative Agent under the Loan Documents, or (c) the liability of Borrowers or any other Loan Party under the Loan Agreement or any other Loan Document.
5. Continuance of Notes and Loan Documents. Except as expressly modified by the terms and provisions of this Amendment: (i) each and every one of the terms and provisions of the Loan Agreement, the Security Agreement and the other Loan Documents are hereby confirmed and ratified as in full force and effect, and (ii) all rights, remedies, titles, Liens, and equities evidenced by the Loan Agreement, the Security Agreement and the other Loan Documents, are hereby acknowledged by each Obligor to be valid and subsisting and are hereby recognized, renewed, extended, modified and continued in full force and effect to secure the payment of the Secured Obligations.
6. Law. THIS AMENDMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT AS TO MATTERS OF CONFLICTS OF LAWS.
7. Successors in Interest. This Amendment shall be binding upon each Obligor that is a party to this Amendment, its successors and assigns and shall inure, together with the rights and remedies of the Administrative Agent and the Secured Parties under the Security Agreement, as amended by this Amendment, to the benefit of the Administrative Agent and the Secured Parties, and their respective successors and permitted assigns.
8. Counterparts. This Amendment may be executed in several counterparts, each copy of which shall serve as an original for all purposes, but all copies shall constitute but one and the same agreement.
9. Gender. Wherever the context shall solely require, all words herein in the male gender shall be deemed to include the female or neuter gender, all singular words shall include the plural and all plural words shall include the singular.
10. Exhibits. All exhibits hereto are fully incorporated herein by this reference for all purposes as though fully set out herein.
11. Recitals. The recitals contained in this Amendment are true and correct.
12. Modifications. This Amendment cannot be changed or terminated except by an instrument in writing signed by the party against whom the enforcement of any change or termination is sought. THIS WRITTEN AGREEMENT AND THE OTHER AGREEMENTS CONTEMPLATED BY THE LOAN AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature Pages Follow]
EXECUTED, to be effective as of the date set forth in the opening paragraph hereof.
OBLIGORS:
| OMEGA PROTEIN CORPORATION | | OMEGA PROTEIN, INC. | |
| | | | | | |
| | | | | | |
| By: | /s/ Andrew Johannesen | | By: | /s/ Andrew Johannesen | |
| | Andrew Johannesen | | | Andrew Johannesen | |
| | Executive Vice President and | | | Vice President and Treasurer | |
| | Chief Financial Officer | | | | |
| PROTEIN FINANCE COMPANY | | OMEGA SHIPYARD, INC. | |
| | | | | | |
| | | | | | |
| By: | /s/ Andrew Johannesen | | By: | /s/ Andrew Johannesen | |
| | Andrew Johannesen | | | Andrew Johannesen | |
| | Vice President and Treasurer | | | Vice President and Treasurer | |
| PROTEIN INDUSTRIES, INC. | | CYVEX NUTRITION, INC. | |
| | | | | | |
| | | | | | |
| By: | /s/ Andrew Johannesen | | By: | /s/ Andrew Johannesen | |
| | Andrew Johannesen | | | Andrew Johannesen | |
| | Vice President and Treasurer | | | Vice President and Treasurer | |
| | | WISCONSIN SPECIALTY | |
| INCON PROCESSING, L.L.C. | | PROTEIN, LLC | |
| | | | | | |
| | | | | | |
| By: | /s/ Andrew Johannesen | | By: | /s/ Andrew Johannesen | |
| | Andrew Johannesen | | | Andrew Johannesen | |
| | Vice President and Treasurer | | | Vice President and Treasurer | |
| | ADMINISTRATIVE AGENT:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
as Administrative Agent | |
| | | | |
| | | | |
| | By: | /s/ Geri E. Landa | |
| | | Geri E. Landa | |
| | | Senior Vice President | |
Signature Page
