EXHIBIT 10.4
Case No. OG-G-867
1998 CERTIFICATION AND INDEMNIFICATION AGREEMENT
REGARDING ENVIRONMENTAL MATTERS
THIS INDEMNITY AGREEMENT is entered into this 12th day of May, 1998, between
Omega Protein, Inc., formerly ▇▇▇▇▇▇ Protein (USA), Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter called the "Borrower"), Omega Protein
Corporation, formerly Marine Genetics Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (hereinafter called the "Guarantor") and the United States
of America, acting by and through the Secretary of Commerce, National Oceanic
and Atmospheric Administration, National Marine Fisheries Service, Office of
Financial Services, Southeast Region, 9721 Executive ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (herein after called the "Government"); and
RECITALS:
1. The Borrower is the owner of certain real property, (the "Premises"),
located in the Commonwealth of Virginia, which is more particularly
described in Exhibit A, attached hereto and incorporated herein by this
reference, and defined below.
2. The Government has guaranteed certain obligations of the Borrower (the
"Guarantees") in consideration for which the Borrower has executed and
delivered to the Government certain promissory notes to the United States
of America, as amended, payable to the Government (the "Notes"), which
Notes are secured by, among other things, certain mortgages and/or deeds of
trust, as amended, and certain mortgages and security agreements and/or
deeds of trust and security agreements, respecting the Premises (the
"Mortgage"). These mortgages and/or deeds of trust are more particularly
described in Exhibits B and C, attached hereto and incorporated herein by
this reference.
3. As a condition to providing the Guarantees, the Government requires the
Borrower and Guarantor to provide certain indemnities concerning Hazardous
Materials or Contamination (both as hereinafter defined) affecting the
Premises.
DEFINITIONS:
The following definitions shall apply for purposes of this Agreement:
1. "PREMISES" shall mean all real property, along with all improvements
thereon, now or hereafter owned, leased or possessed by The Borrower and
which is now or hereafter subject to a mortgage in favor of the Government.
2. "LOAN DOCUMENTS" shall mean this agreement and any other loan documents,
instruments or agreements now or hereafter existing between the Borrower,
and/or the Guarantor and the Government, including, but not limited to,
Mortgages, Deeds of Trust,
Mortgage and Security Agreement, Deed of Trust and Security Agreement,
Financial Agreement and Approval Letter.
3. "THIS TRANSACTION" shall mean all transactions between the Government and
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., and/or its successors, ▇▇▇▇▇▇ Protein (USA), Inc.,
Marine Genetics Corporation, Omega Protein Corporation. Omega Protein,
Inc., and/or any other successors.
4. "CONTAMINATION" shall mean the presence of any Hazardous Materials on,
about or beneath the Premises or arising from the Premises which may
require clean-up, or other costs, or which may be in violation of any of
the Environmental Laws.
5. "ENVIRONMENTAL LAWS" shall mean any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees or requirements of any Governmental Authority regulating, relating
to or imposing liability or standards of conduct concerning environmental
protection matters, including without limitation, Hazardous Materials, as
now or may at any time hereafter be in effect.
6. "GOVERNMENTAL AUTHORITIES" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, but only to the extent that any such Governmental
Authority shall exercise jurisdiction over the Borrower and the Guarantor
or the Government, as the case may be.
7. "HAZARDOUS MATERIALS" shall mean any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum products
(including crude oil or any fraction), defined or regulated as such in or
under any Environmental law; or any substance or conditions that may
require clean-up or other costs.
IN CONSIDERATION OF the issuance of certain Guarantees pursuant to Title ▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, as amended, found at 46 USC (S)1271-80 and Part
253 of Title 50 of the Code of Federal Regulations, as amended on May 1, 1996,
found at ▇▇ ▇▇▇ ▇▇▇, known as the Fisheries Obligation Guarantee Program,
Borrower hereby represents, warrants, covenants, acknowledges and agrees in
favor of the Government, on a continuing basis, as follows:
BORROWER'S REPRESENTATIONS AND WARRANTIES:
The Borrower hereby represents and warrants, to the best of its knowledge, in
favor of the Government, as follows:
I. Except as shown in the report, dated January 15, 1996, of the Phase 1
Environmental Assessment performed by ENPRO on the Reedville, Virginia facility:
1. The Premises, and its existing and prior uses, comply, and have at all
times complied with, and neither the Borrower or any other individual or
entity is in violation of, nor has violated, in connection with the
ownership, use, maintenance or operation of the Premises or the conduct of
the business related thereto (including manufacturing,
importing, processing, using, distribution, discharging, storing, treating
and disposing of any substance) any applicable federal, state, county or
local statute, law, regulation, rule, ordinance, code, license and permit
of any and all governmental authorities relating to environmental matters,
including, but not limited to, the Clean Air Act, the Federal Water
Pollution Control Act of 1972, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Solid Waste Disposal Act, the
Resource Conservation and Recovery Act and the Toxic Substances Control
Act, and any amendments or extensions of the foregoing statutes, and all
other applicable environmental requirements.
2. The Borrower and/or any other individual or entity have operated the
Premises and have at all times received, handled, used, stored, treated,
shipped and disposed of all hazardous materials, substances, petroleum
products and waste in strict compliance with all applicable environmental,
health or safety statutes, ordinances, orders, rules, regulations or
requirements, and have removed in compliance with all applicable
environmental requirements from and off the Premises all hazardous
materials, substances, petroleum products and waste.
3. There are no statutes, orders, rules, regulations or agreements relating
to environmental matters requiring any work, repairs, feasibility studies,
remedial investigations, clean up costs, construction or capital
expenditures, or any other response costs with respect to the Premises, nor
have the Borrower or any other individual or entity received any notice of
any of the same.
4. No hazardous or toxic materials, substances, pollutants, contaminants or
wastes have been released, spilled, leaked, poured, dumped, deposited,
discharged or disposed of into the air, land or water at, on or from the
Premises, nor have the Premises been used at any time by any person or
entity as a landfill or a waste disposal site.
5. No notices of any violation of any of the matters referred to in the
preceding sections, above, relating to the Premises or its use have been
received by the Borrower and the Guarantor and/or any other individual or
entity, and there are no writs, injunctions, decrees, rulings, orders or
judgments outstanding, no law suits, claims, proceedings, investigations,
remedial investigations, feasibility studies, clean up costs or other
response costs pending or threatened, relating to the ownership, use,
maintenance or operations of the Premises, nor is there any basis for such
law suits, claims, proceedings or investigations being instituted or filed.
II Notwithstanding any matter shown in ENPRO's January 15, 1996, Phase 1
Environmental Assessment Report:
1. The Borrower and/or any other individual or entity will operate the
Premises and shall at all times receive, handle, use, store, treat, ship
and dispose of all hazardous materials, substances, petroleum products and
waste in strict compliance with all applicable environmental, health or
safety statutes, ordinances, orders, rules, regulations or requirements,
and will remove in compliance with all applicable environmental
requirements from and off the Premises all hazardous materials, substances,
petroleum products and waste.
2. The Borrower further covenants that it will promptly notify the
Government of any fact or event which affects, alters or limits the
representations and warranties made in the preceding sections, above, and
that it will provide the Government upon demand with information or access
to information relating to the Borrower's compliance with this Agreement.
The foregoing representations and warranties shall survive the execution of this
Agreement and any closing occurring under any of the Loan Documents (defined
hereafter) and shall be of continuing effect.
The Borrower and Guarantor acknowledge that they have read and understand the
Phase 1 Environmental Assessment Report dated January 15, 1996, and hereby
assume responsibility and liability for all matters shown therein and further
agree that the absolute indemnification of the Borrower and the Guarantor,
covers all matters contained in said report and the Government shall be held
harmless by the Borrower and the Guarantor from any liability arising from any
matter contained in said report.
INDEMNITY:
To the maximum extent permitted by law, the Borrower and the Guarantor hereby
agree to defend and indemnify the Government against and hold it harmless from
any and all losses, claims, liabilities, judgments, damages (including
exemplary, actual, compensatory and punitive), penalties, expenditures, costs
and legal or other expenses which the Government may suffer or incur as a direct
or indirect consequence of any of the following:
1. The execution or performance of this Agreement or other loan documents,
instruments or agreements now or hereafter existing between the Borrower
and the Guarantor and the Government (together, the "Loan Documents");
2. The exercise, enforcement, release, defense or forbearance by the
Government of any of its rights, remedies, liens, interest or discretion
under this Agreement or any of the other Loan Documents, against the
Borrower and the Guarantor or any other person or entity, or in or to any
property now or hereafter constituting collateral for or on account of any
loans or obligations of the Borrower and the Guarantor;
3. The fact that any representation, warranty, acknowledgment or other
statement of fact by the Borrower and the Guarantor or any of the
undersigned was untrue or incomplete at any time;
4. The existence, for whatever reasons, of any contamination, including,
without limitation, the presence of any hazardous or toxic waste, substance
or material existing on, above, or under any of the Premises; or the fact
that the Borrower and the Guarantor or any other individual or entity is or
was responsible for the improper or unlawful production,
handling, storage, transportation or disposition of any hazardous or toxic
waste, substance or material;
5. Any investigation, feasibility studies, monitoring, clean up, removal,
restoration, remedial response or remedial work undertaken on or with
respect to any of the Premises at any time hereafter, voluntarily or
involuntarily, by the Government;
6. The imposition or attachment of any statutory lien, including any arising
under any environmental or land use matters.
The Government's equitable and implied rights of indemnity against the Borrower
and the Guarantor shall not be limited or impaired in any way by reason of the
explicit indemnities set forth in this Agreement. The Government's rights of
indemnity shall not be directly or indirectly limited, prejudiced, impaired or
eliminated in any way:
i. by any finding or allegation that the Government is directly or
indirectly responsible under any theory of any kind for any act or
omission of the Borrower and the Guarantor or any other individual or
entity; or
ii. by any finding or allegation that the Government is or was an "owner"
or "operator" of the Premises; or
iii. by the kind, character or nature of any act or omission of the
Government; except that the Borrower and the Guarantor shall not be
obligated to pay any judgment which any court of competent
jurisdiction may render against the Government upon an express finding
that the Government personally and directly committed an intentional
tort against the Plaintiff.
COVENANTS:
The Borrower shall, with respect to the Premises:
1. Comply with, and require all tenants and subtenants, if any, to comply
with, all Environmental Laws and obtain, comply with, and maintain, and
require that all such tenants and subtenants obtain, comply with, and
maintain, any and all licenses, approvals, registrations or permits
required by Environmental Laws.
2. Conduct and complete all investigations, studies, sampling and testing, all
remedial, removal and other actions required under Environmental Laws and
promptly comply with all lawful orders and directives of all Governmental
Authorities respecting Environmental Laws.
3. Defend, indemnify and hold harmless the Government, from and against any
claims, demands, penalties, fines, clean-up expenses, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known
or unknown, contingent or otherwise, arising out of, or in any way relating
to the violation or noncompliance by the Borrower or any predecessor or
successor of or with any Environmental Laws applicable to the Premises,
or any orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, removal, remedial, and response costs,
court costs and litigation expenses.
UNCONDITIONAL OBLIGATIONS:
The Borrower and the Guarantor hereby agree that their obligations, covenants
and agreements under this Agreement shall be irrevocable, absolute and
unconditional, and shall not be affected or impaired, notwithstanding, among
other things, any of the following, any defense on account of which is hereby
expressly waived by the Borrower and the Guarantor:
1. The waiver, compromise, settlement, termination or other release of the
performance or observance by the Borrower and the Guarantor, of any or all
of the agreements, covenants, terms or conditions in favor of the
Government contained herein or in any of the Loan Documents;
2. The granting of one or more extensions of time renewals or other
indulgence(s) to the Borrower, or by the Government heretofore, now or
hereafter acquiring, releasing or in any way modifying any guaranty from
any other person or persons or any security in whatever form for any or all
of the Borrower's obligations to the Government, whether or not notice
thereof shall have been or be given to the Borrower;
3. Any failure, omission, delay or lack on the part of the Government to
enforce, assert or exercise any right, power, remedy or claim conferred on
the Government herein or in any of the Loan Documents or by applicable law,
or the inability of the Government to enforce any provision of this
Agreement or any of the Loan Documents for any reason, or any other act or
omission on the part of the Government, including without limitation any
failure to obtain, perfect or realize upon any security, rights,
endorsements or guaranties which the Government may now or hereafter hold
or be offered with respect to any of the Borrower's obligations to the
Government;
4. Any change in ownership of any corporation which has executed this
agreement;
5. The voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization or other similar proceeding affecting the
Borrower, or any of its assets;
6. Any fraudulent, illegal, improper or invalid acts heretofore or hereafter
undertaken by the Borrower, or because of any failure of the Government to
discover any such acts or irregularities;
7. The invalidity or unenforceability of any of the Borrower's obligations to
the Government;
8. The modification or amendment (whether material or otherwise) of any term
or condition of any of the Loan Documents heretofore or hereafter
undertaken;
The Borrower and the Guarantor acknowledge and agree that the Government shall
have absolutely no responsibility to monitor the Borrower's compliance with
applicable laws, including without limitation environmental laws and
regulations, or to insure such compliance.
ADDITIONAL PROVISIONS:
1. RELATIONSHIP OF THE PARTIES: The Government is not (and shall not be
construed as) a partner, joint venturer, alter ego, manager, controlling
person or other business associate or participant of any kind of the
Borrower, nor an "owner" or "operator" for the Premises, nor a "facility"
(as such terms are defined by applicable state and federal statutes) and
the Government does not intend to assume any such status; and the
Government is not and shall not be deemed responsible for (or a participant
in) any acts, omissions or decisions of the Borrower.
2. NOTICES AND REQUESTS: Any and all notices, elections, demands, or requests
permitted or required to be made under this Agreement shall be in writing,
signed by the party giving such notice, election, demand or request, and
shall be delivered personally or sent by registered, certified, or Express
United States mail, postage prepaid, or Federal Express or any similar
service requiring a receipt, to the other party at the following address:
Omega Protein, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. Department of Commerce
National Oceanic and Atmospheric Administration
National Marine Fisheries
Financial Services Branch, Southeast Region
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. GOVERNING LAW: This Agreement has been delivered to the Government of
State or other appropriate filing authority in all states where the
Premises are located, and shall be construed in all respects in accordance
with and governed by the laws of the State in which the Premises are
located.
4. AMENDMENTS: No provision of this Agreement may be changed, waived,
discharged or terminated orally, by telephone or by any other means except
by an instrument in writing signed by the Government.
5. SEVERABILITY: Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by,
unenforceable or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition, un-enforceability or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
6. CONSTRUCTION: The singular form of any word used herein shall include the
plural, and vice versa. The use herein of a word of any gender shall
include each of the masculine, feminine, and neuter genders. The headings
or titles of the several sections and paragraphs of this Agreement shall be
solely for convenience of reference and shall not affect the meaning,
construction or effect of the provisions hereof.
7. BINDING EFFECT: Except as herein provided, this Agreement shall be binding
upon the Borrower and the Guarantor, their successors and permitted
assigns, and shall inure to the benefit of the Government, and its
successor and assigns. Notwithstanding the foregoing, the Borrower,
without the prior written consent of the Government in each instance, may
not assign, transfer or set over to another, in whole or in part, all or
any part of its benefits, rights, duties and obligations hereunder,
including, but not limited to, performance of and compliance with the
conditions hereof. Any reference to the Borrower shall include the
Borrower's successors and assigns.
8. SURVIVAL: The obligations set forth herein shall survive the payment of
any other obligations of the Borrower to the Government and shall not
terminate until this Agreement has been expressly canceled and terminated
by the Government in writing.
9. This agreement, supplements and reaffirms the Indemnity Agreement Regarding
Hazardous Materials executed by some of the parties on March 31, 1993.
Where a provision in this agreement conflicts with a provision of said 1993
agreement, the provisions of this agreement shall prevail.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly
executed and delivered to the Government on the 12th day of May, 1998.
ATTEST: BORROWER: Omega Protein, Inc.
By: By:
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Title: Secretary Title:
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Date: , 1998 Date: , 1998
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(SEAL)
ATTEST: GUARANTOR: Omega Protein Corporation
By: By:
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Title: Secretary Title:
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Date: , 1998 Date: , 1998
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(SEAL)