CERTIFICATION AND INDEMNIFICATION AGREEMENT REGARDING ENVIRONMENTAL MATTERS

Environmental Indemnity Agreement

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Omega Protein Corporation | National Marine Fisheries Service,

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Title: CERTIFICATION AND INDEMNIFICATION AGREEMENT REGARDING ENVIRONMENTAL MATTERS
Date: 2/27/2004
Industry: AGRLIV Sector: NONCYC

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Certification and Indemnification Agreement

Exhibit 10.70

CERTIFICATION AND INDEMNIFICATION AGREEMENT

REGARDING ENVIRONMENTAL MATTERS

THIS INDEMNITY AGREEMENT is entered into this 29th day of December 2003, between Omega Protein, Inc., 835 B Pride Drive, Hammond, Louisiana 70401, (hereinafter, the “Borrower”), Omega Protein Corporation, 1717 St. James Place, Suite 550, Houston, Texas 77056, (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 Center Drive North, St. Petersburg, Florida 33702, (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.

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 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 (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. 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 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”);

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;

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:

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: