EXHIBIT 10.57
Case No. FF-G-008
--------
CERTIFICATION AND INDEMNIFICATION AGREEMENT
REGARDING ENVIRONMENTAL MATTERS
THIS INDEMNITY AGREEMENT is entered into this 19th day of October, 2001, between
Omega Protein, Inc., 000 X Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, (hereinafter,
the "Borrower"), Omega Protein Corporation, 0000 Xx. Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, (hereinafter, 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 Xxxxxx Xxxxx Xxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000, (hereinafter, the "Government"); and
RECITALS:
1. The Borrower is the owner of certain real property, (hereinafter, 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 agreed to lend a certain sum to the Borrower
(hereinafter, the "Loan") in consideration for which the Borrower has
executed and delivered to the Government a certain Promissory Note payable
to the Government (hereinafter, the "Note"), which Note is secured by,
among other things, a certain mortgage and/or deed of trust, respecting the
Premises (hereinafter, the "Mortgage"). This mortgage and/or deed of trust
is more particularly described in Exhibit B, attached hereto and
incorporated herein by this reference.
3. As a condition to providing the Loan, the Government requires the Borrower
and Guarantor to provide certain indemnities concerning Hazardous Materials
or Contamination (both as hereinafter defined) affecting the Premises.
DEFINITIONS:
All terms contained herein are defined in the Acknowledgement of Definitions
executed by all parties to this transaction.
IN CONSIDERATION OF the issuance of certain Loans pursuant to the provisions of
Title XX xx xxx Xxxxxxxx Xxxxxx Xxx, 0000, as amended, found at 46 USC
Section.1271 et seq., and 50 CFR 253, as amended by Public Law 104-297 on
October 11, 1996, known as the Fisheries Finance Program (FFP), 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:
1
EXHIBIT 10.57
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.
6. 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
2
EXHIBIT 10.57
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.
7. 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 Borrower further warrants that it has fully disclosed all actions, law
suits, notices, citations or any other incident or condition that has ever
existed on the Premises.
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.
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;
3
EXHIBIT 10.57
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.
4
EXHIBIT 10.57
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;
5
EXHIBIT 10.57
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.
000 X Xxxxx Xxxxx
Xxxxxxx, XX 00000
U.S. Department of Commerce
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
Financial Services Branch, Southeast Region
0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
3. GOVERNING LAW: Except to the extent that Federal Law controls, this
Agreement 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
EXHIBIT 10.57
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
Environmental Matters executed by some of the parties on December 20, 1999.
Where a provision in this agreement conflicts with a provision of said 1999
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 19th day of October, 2001.
---- -------------
ATTEST: BORROWER: Omega Protein, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- ----------------------------
Title: Executive Vice President, Title: Controller and
---------------------------------- ----------------------------
Chief Financial Officer & Secretary Assistant Treasurer
----------------------------------------- ----------------------------
Date: October 19, 2001 Date: October 19, 2001
----------------- ----------------
(SEAL)
7
EXHIBIT 10.57
ATTEST: GUARANTOR:Omega Protein Corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- ----------------------------
Title: Controller and Assistant Treasurer Title: Executive Vice President,
---------------------------------- ----------------------------
Chief Financial Officer & Secretary
-----------------------------------
Date: October 19, 2001 Date: October 19, 2001
----------------- ----------------
(SEAL)
