DEED OF TRUST DATED AS OF DECEMBER 29, 2003 MADE BY OMEGA PROTEIN, INC. TO MATSON C. TERRY, II, OF NORTHUMBERLAND COUNTY, VIRGINIA AND LANCASTER COUNTY, VIRGINIA, TRUSTEES FOR THE BENEFIT OF THE UNITED STATE OF AMERICA
EXHIBIT 10.65
DATED AS OF DECEMBER 29, 2003
MADE BY
OMEGA PROTEIN, INC.
TO
XXXXXX X. XXXXX, XX, OF
NORTHUMBERLAND COUNTY, VIRGINIA
AND
B.H.B. XXXXXXX, III, OF
LANCASTER COUNTY, VIRGINIA, TRUSTEES
FOR THE BENEFIT OF
THE UNITED STATE OF AMERICA
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DEED OF TRUST AND SECURITY AGREEMENT
COMMONWEALTH OF VIRGINIA
COUNTY OF NORTHUMBERLAND
1. PARTIES: WHEREAS, OMEGA PROTEIN, INC., a Virginia corporation, hereinafter “Grantor”, whether one or more, is indebted to the UNITED STATES OF AMERICA acting by and through the Secretary of Commerce, Office of the Financial Services Division, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, hereinafter “Beneficiary”, in the aggregate amount of Five Million, Three Hundred Thousand, and No/100 Dollars ($5,300,000.00), together with interest thereon, as evidenced by a certain promissory note, payable to the order of the United States of America, acting by and through the Secretary of Commerce, Office of the Financial Services Division, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, which bears interest and is payable according to the terms of said note and which has a final maturity date of December 29, 2018.
2. THE PROMISSORY NOTE TO THE UNITED STATES OF AMERICA: NOW, THEREFORE, in consideration of the premises and in order to secure the prompt and full payment of said indebtedness, and any future advance(s), additional advance(s), and/or readvance(s), and/or any renewal(s), extension(s), restructuring(s), reamortization(s), any other sums provided for in any loan document, and/or any other loan treatment(s) thereof, or any part thereof, and the interest thereon and any and all other indebtedness(es) (including future advance(s) now or hereafter owed by any of the undersigned to the Beneficiary), whether such indebtedness(es) is primary or secondary, direct or indirect, contingent or absolute, matured or unmatured, joint or several, and otherwise secured or not, and the faithful performance of and compliance with all the terms, agreements, provisions, obligations, covenants, conditions, warrants, representations, and stipulations herein made, or made in any Loan Agreement or in any other document related to the promissory note described as follows:
(a.) The Promissory Note to the United States of America executed by Grantor in the principal amount of Five Million, Three Hundred thousand & No/100 Dollars, ($5,300,000.00), with interest on the unpaid principal computed from the 29th day of
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December, 2003, at the rate of Six and six tenths per cent (6.6 %) per year, payment to be made in installments of One hundred thirty-nine thousand eight hundred twenty-nine and No/100 Dollars ($139,829.00), including principal and interest quarterly, with the balance of principal and interest due 15 years from the date of said Note. The first quarterly payment shall be due on the 29th day of March, 2004, and each quarterly payment thereafter shall be due on the day of the month that the first quarterly payment is due thereunder.
3. THE PROPERTY: OMEGA PROTEIN, INC., hereinafter Grantor, whether one or more, in consideration of the premises and other good and valuable consideration paid to Grantor by Xxxxxx X. Xxxxx, XX, Esq., and B.H.B. Xxxxxxx, III, Esq., as Trustees, either of whom may act, whose address is 000, Xxxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxx 00000, hereinafter, “Trustee”, does hereby convey and warrant unto Trustees with General Warranty the real estate, hereinafter “The Property”, situate in Northumberland County, Virginia, more particularly described on Exhibit A, attached hereto, recorded herewith, and, by this reference, expressly made a part hereof for a further and more accurate description of the real estate hereby encumbered, 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 rents arising therefrom. Grantor does hereby intend to convey and does convey all of Grantor’s right, title and interest in and to any strips and gores Grantor may now own contiguous to the above described property.
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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 revenues 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 Grantor 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; 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, plate freezers, coolers, or other refrigeration equipment) of whatsoever 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 tolls 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 Project Property or any other premises whatsoever; and/or (8) all tangible or intangible property found on the premises and products, proceeds, and additions and/or replacement of any or all of the property described above in items 1 through 8.
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Additionally, Grantor does hereby assign, pledge and transfer to the Beneficiary, and grant to the Beneficiary a security interest in any transferable fishing conservation and management allocation (including, but not limited to, allocations, permits, quotas, licenses, cage tags, or any other fisheries access restriction or right, however characterized, of whatsoever nature) affecting, necessary for, or in any other way, however characterized, associated with any of the property included in the collateral, the Grantor agrees to grant to the Beneficiary a full senior security interest in such allocation by whatsoever means deemed by the Beneficiary to be appropriate (including, but not limited to, the Grantor’s execution of security agreements and the filing of financing statements under the UCC), presently owned or acquired at any time in the future. Further, if the Grantor fails to do so, the Grantor agrees that the Beneficiary may use, for the purpose of executing and otherwise perfecting whatever documents may be required to effect the grant to the Beneficiary of such a full security interest in such fisheries conservation and management allocation, the attorney-in-fact authority conferred upon the Beneficiary by Article XI of the Title XI Financial Agreement.
IN TRUST, however, to secure and enforce the repayment of all of Grantor’s obligations under the promissory note set forth above and to secure Grantor’s promises contained hereinafter.
GRANTOR FURTHER COVENANTS, WARRANTS AND AGREES:
7. TAXES, FEES: To pay when due all taxes, liens, judgments, assessments or fees assessed against said property and to promptly furnish Beneficiary with tax receipts or like documents evidencing payment of or release from all taxes, liens, judgments, assessments or fees. By execution hereof, Grantor agrees to pay when due all community water system assessment and meter fees, if any, applicable to said property, and in the event of foreclosure, hereby does transfer and assign to the purchaser all of Grantor’s interest and membership, if any, in said community water system applicable to said property, and agrees to execute such documents as are necessary to effectuate such transfer.
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subject to flood, any policy evidencing such insurance to be deposited with, and the loss thereunder to be payable to Beneficiary as its interest may appear, and providing for immediate notification to Beneficiary of any lapse, cancellation or other impairment of said insurance. All policies shall be written by reliable insurance companies authorized to write policies of insurance in the State of Virginia, acceptable to Beneficiary. At the option of Beneficiary, and subject to the general regulations of U.S. Department of Commerce, where applicable, sums received by Beneficiary from such insurance companies may be used to pay for reconstruction or repair of destroyed or damaged buildings or improvement(s); or, if not so applied may, at the sole option of the Beneficiary, be applied in payment of any indebtedness, matured or unmatured, secured by this deed of trust and security agreement. The Beneficiary will be listed on any insurance policy and named as First Loss Payee on all insurance covering real property, except Liability coverage, in which case the Beneficiary is named a Loss Payee as its interest may appear. The Beneficiary will also be listed as a First Loss Payee on all insurance covering personal property, as its interest may appear.
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sums secured hereby or if default is made by Grantor (or any one of them) in the payment or performance of any of the obligations under the Note, Promissory Note to the United States, Deed of Trust and Security Agreement, Title XI Agreement, or any other document or agreement associated with this transaction, or in case Grantor should become insolvent, commit an Act of Bankruptcy, or apply to a bankruptcy court to be adjudicated a voluntary bankrupt, or proceedings be instituted to put Grantor in involuntary bankruptcy, or should any proceedings be taken against Grantor for the appointment of a receiver, assignee or trustee, or should Grantor make an assignment for benefit of one or more creditors, or should Beneficiary in good xxxxx xxxx itself insecure and its prospect of payment impaired, or if any loan proceeds are used for a purpose that will: (1) contribute to excessive erosion of highly erodible land or to the conversion of wetlands to produce an agricultural commodity, as further explained in 7 CFR Part 1940, Subpart G, Exhibit M, or (2) result in poor aquaculture practices, then in that event all of the obligations shall, at the option of Beneficiary, be and become at once due and payable without notice to Grantor, and Trustee herein named or his successor or successors shall, at the request of Beneficiary, sell all or any part of the Property as set out in ¶ 30 of this Deed of Trust and Security Agreement. In the event of any such default, Beneficiary shall also have all the remedies of a secured party under the Uniform Commercial Code of Virginia and any other applicable law, including, but not limited to the right to seek a judgment for any deficiency in the amount owed, following liquidation of collateral. All remedies of Beneficiary shall be cumulative. A failure on the part of Beneficiary to exercise any remedy or option contained in this Deed of Trust and Security Agreement in the event of default shall not constitute a waiver of Beneficiary’s right to exercise said remedy or option in the event of that or any subsequent default.
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13. SURVIVAL OF GRANTOR’S LIABILITY: Grantor’s representations, warranties, covenants and indemnities contained herein shall survive the occurrence of any event whatsoever, including without limitation, the satisfaction of the promissory note secured hereby, the reconveyance or foreclosure of the mortgage, the acceptance by Beneficiary of a deed in lieu of foreclosure, or any transfer or abandonment of the property, failure to comply strictly with the representations, warranties, covenants and indemnities commenced herein shall constitute a default under this deed of trust.
14. VALID SIXTH LIEN: That this deed of trust and security agreement is a valid sixth lien against all the land, interests and improvements offered and/or appraised as security for this loan and that the property and interests described herein is now free and clear of any and all other liens and encumbrances except as otherwise set forth herein. If the validity of this deed of trust, or if Grantor’s title to any of said land, interests or improvements is questioned in any manner, or if any part of such land, interests or improvements is not properly described herein, Beneficiary may, in its discretion, investigate and take such action as it considers necessary or desirable for the protection of its interests and for this purpose may employ legal counsel or expert assistance and the Grantor will promptly pay all expenses so incurred by Beneficiary.
The lien of this deed of trust is subordinate and of inferior dignity to the lien of that certain prior deed of trust dated July 18, 1989, from Xxxxxx Xxxxxx Corporation to Xxxxxxx X. Xxxxxxxx, et al, Trustees, securing the United States of America in the original amount of $4,675,000.00, recorded
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in Deed Book 298, at Page 80, in the Clerk’s Office of the Circuit Court of Northumberland County, Virginia, as amended by that certain Amendment dated March 31, 1993, recorded in Deed Book 348, at Page 130, in the Clerk’s Office aforesaid.
The lien of this deed of trust further is subordinate and of inferior dignity to the lien of that certain prior deed of trust dated October 30, 1996, from Xxxxxx Protein (USA), Inc., to Xxxxx X. Xxxxxxx, et al, Trustees, securing the United States of America in the original amount of $1,848,562.00, recorded in Deed Book 407, at Page 706, in the Clerk’s Office of the Circuit Court of Northumberland County, Virginia.
The lien of this deed of trust further is subordinate and of inferior dignity to the lien of that certain prior deed of trust dated May 12, 1998, from Omega Protein, Inc., to Xxxxxx X. Xxxxx, XX, et al, Trustees, securing the United States of America in the original amount of $2,593,761.00, recorded in Deed Book 431, at Page 200, in the Clerk’s Office of the Circuit Court of Northumberland County, Virginia.
The lien of this deed of trust further is subordinate and of inferior dignity to the lien of that certain prior deed of trust dated December 21, 1999, from Omega Protein, Inc., to Xxxxxx X. Xxxxx, XX, et al, Trustees, securing the United States of America in the original amount of $2,030,661.00, recorded in Deed Book 460, at Page 721, in the Clerk’s Office of the Circuit Court of Northumberland County, Virginia.
The lien of this deed of trust further is subordinate and of inferior dignity to the lien of that certain prior deed of trust dated October 19, 2001, from Omega Protein, Inc., to Xxxxxx X. Xxxxx, XX, et al, Trustees, securing the United States of America in the original amount of $1,900,000.00, recorded in Deed Book 495, at Page 338, in the Clerk’s Office of the Circuit Court of Northumberland County, Virginia.
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way releasing, vitiating or discharging the Grantor’s liability hereunder or for the debt(s) and obligation(s) hereby secured and extension(s) of time for payment or other loan treatment(s) described herein given or permitted by Beneficiary shall not operate to release, vitiate, or discharge the liability of the Grantor herein, either in whole or in part.
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payment to the loan, and such advance of premiums shall be secured by this mortgage and bear interest the same as other advances provided for in this Deed of Trust and Security Agreement. Any policy evidencing such insurance to be deposited with and any loss thereunder to be payable to Beneficiary as its interest may appear.
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sale or transfer, Beneficiary and the person to whom the Property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to Beneficiary and that the interest payable on the sums secured by the Deed of Trust and Security Agreement shall be at such rate as Beneficiary shall request and the party assuming the obligations meets the criteria set out in Title XI for all borrowers. Regardless of any assumption or transfer of the Property and/or the obligations arising under the Deed of Trust and Security Agreement, Grantor will not be released from any obligation to Beneficiary until the entire debt and all sums associated therewith are paid in full. If Beneficiary exercises such option to accelerate, Beneficiary shall mail Grantor notice of acceleration. Such notice shall provide a period of not less than 30 days from the date of notice is mailed within which Grantor may pay the sums ordered due. If Grantor fails to pay such sums prior to the expiration of such period, Beneficiary may, without further notice or demand on Grantor, invoke any remedies permitted by this Deed of Trust and Security Agreement, or any other security document associated with this transaction.
ADVERTISEMENT REQUIRED: Four times in a newspaper
published or having general circulation in Northumberland County
BIDDER’S DEPOSIT: of Ten Percent (10%) may be required.
EXEMPTIONS WAIVED.
SUBJECT TO CALL UPON DEFAULT.
RENEWAL OR EXTENSIONS PERMITTED.
Grantor acknowledges that Beneficiary will have the right to seek a deficiency judgment in the event of default, sale of the property and Beneficiary not being made whole from the proceeds of such sale.
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All riders, appendages, exhibits, erasures, corrections and interlineations, if any, have been made and approved before signing hereof.
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Omega Protein, Inc. |
By: |
Its Controller/Assistant Treasurer |
ATTEST: |
|
STATE OF , |
CITY/COUNTY OF , |
Personally appeared before me, the undersigned authority in and for said County and State the within named Xxxxx X. Xxxxx, the Controller/Assistant Treasurer, and Xxxxxx Xxxxxxxx, the Secretary, Vice President and Chief Financial Officer of Omega Protein, Inc., who acknowledged that they signed and delivered the above and foregoing instrument on the day and year and for the purposes therein mentioned as their own voluntary acts and deeds.
WITNESS my hand and official seal this day of December, 2003.
Notary Public |
My commission expires:
NOTARY AFFIX SEAL HERE!
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