Exhibit 10.2
REVOLVING
NOTE
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$35,000,000.00
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October 21, 2009
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FOR VALUE RECEIVED, OMEGA PROTEIN
CORPORATION , a Nevada corporation, and OMEGA PROTEIN,
INC. , a Virginia corporation, each having its principal place
of business at 2105 Citywest Blvd., Suite 500, Houston, Texas 77042
(collectively, “ Borrowers ”), jointly
and severally promise to pay to the order of WELLS FARGO BANK,
NATIONAL ASSOCIATION , a national banking association (“
Lender ”), the principal sum of Thirty Five Million
and No/100 Dollars ($35,000,000.00) or, if less, the Principal Debt
(as defined in the Agreement referred to in Section 1
below), together with interest on the unpaid principal balance as
set forth below. All sums hereunder are payable to Lender at its
principal office in Houston, Harris County, Texas.
1. Definitions. Unless the
context hereof otherwise requires or provides, the terms used
herein have the same meanings as defined in that certain Loan
Agreement of even date herewith among Borrowers and Lender (as the
same has been or may be amended or supplemented from time to time,
the “ Agreement ”).
2. Interest Rate . The unpaid
principal balance from time to time outstanding from the date
hereof until maturity (whether by acceleration or otherwise) shall
bear interest as provided in the Agreement.
3. Payment of Interest and
Principal . The principal of and interest on this Note shall be
due and payable as provided in the Agreement. The principal and
interest due hereunder shall be evidenced by Lender’s records
which, absent manifest error, shall be conclusive evidence of the
computation of principal and interest balances owed by Borrowers to
Lender.
4. Default . Upon the
occurrence of a Bankruptcy Default, the entire principal of and
accrued interest on this Note shall forthwith be due and payable
without demand, presentment for payment, notice of nonpayment,
protest, notice of protest, notice of intent to accelerate, notice
of acceleration and all other notices and further actions of any
kind, all of which are hereby expressly waived by Borrowers. If any
other Event of Default occurs and is continuing, the holder of this
Note may, without demand or notice of its election declare the
entire unpaid balance of this Note and all other indebtedness of
Borrowers to Lender (but not any obligations under any Swap
Agreement with any Lender Swap Provider, which shall be due in
accordance with and governed by the provisions of said Swap
Agreement), or any part thereof, immediately due and payable,
whereupon the principal of and accrued interest on this Note shall
be forthwith due and payable without demand, presentment for
payment, notice of nonpayment, protest, notice of protest, notice
of intent to accelerate, notice of acceleration and all other
notices and further actions of any kind , all of which are
hereby expressly waived by Borrowers.
5. Waiver . Each surety,
endorser, guarantor and any other party now or hereafter liable for
the payment of this Note in whole or in part (“ Surety
”) and Borrowers hereby severally (a) waive grace,
demand, presentment for payment, notice of nonpayment, protest,
notice of protest, non-payment or dishonor, notice of intent to
accelerate, notice of acceleration and all other notices, filing of
suit and diligence in collecting this Note or enforcing any other
security
with respect to same, (b) agree to any
substitution, surrender, subordination, waiver, modification,
change, exchange or release of any security or the release of the
liability of any parties primarily or secondarily liable hereon,
(c) agree that Lender is not required first to institute suit
or exhaust its remedies hereon against any Borrower, any Surety or
others liable or to become liable hereon or to enforce its rights
against them or any security with respect to same or to join any of
them in any suit against any others of them, and (d) consent
to any extension or postponement of time of payment of this Note
and to any other indulgence with respect hereto without notice
thereof to any of them. No failure or delay on the part of Lender
in exercising any right, power or privilege hereunder shall operate
as a waiver thereof.
6. Attorneys’ Fees . If
this Note is not paid at maturity, regardless of how such maturity
may be brought about, or is collected or attempted to be collected
through the initiation or prosecution of any suit or through any
probate, bankruptcy or any other judicial proceedings, or through
any arbitration proceeding, or is placed in the hands of an
attorney for collection, Borrowers shall pay, in addition to all
other amounts owing hereunder, all actual expenses of collection,
all court costs and reasonable attorney’s fees incurred by
the holder hereof.
7. Limitation on Agreements .
All agreements between Borrowers and Lender, whether now existing
or hereafter arising, are hereby limited so that in no event shall
the amount paid, or agreed to be paid to or charged or demanded by
Lender for the use, forbearance, or detention of money or for the
payment or performance of any covenant or obligation contained
herein or in any other document evidencing, securing or pertaining
to this Note, exceed the Maximum Rate. If any circumstance
otherwise would cause the amount paid, charged or demanded to
exceed the Maximum Rate, the amount paid or agreed to be paid to or
charged or demanded by Lender shall be reduced to the Maximum Rate,
and if Lender ever receives interest which otherwise would exceed
the Maximum Rate, such amount which would be excessive interest
shall be applied to the reduction of the principal of this Note and
not to the payment of interest, or if such excessive interest
otherwise would exceed the unpaid balance of principal of this Note
such excess shall be applied first to other indebtedness of
Borrowers to Lender, and the balance, if any, shall be refunded to
Borrowers. In determining whether the interest paid, agreed to be
paid, charged or demanded hereunder exceeds the highest amount
permitted by applicable law, all sums paid or agreed to be paid to
or charged or demanded by Lender for the use, forbearance or
detention of the indebtedness of Borrowers to Lender shall, to the
extent permitted by applicable law, (i) be amortized,
prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the actual rate of
interest on account of such indebtedness is uniform throughout such
term, (ii) be characterized as a fee, expense or other charge
other than interest, and (iii) exclude any voluntary
prepayments and the effects thereof. The terms and provisions of
this Section shall control and supersede every other provision of
all agreements between Lender and Borrowers in conflict
herewith.
8. Governing Law and
Venue.
(a) THIS NOTE SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS (BUT NOT THE RULES
GOVERNING CONFLICTS OF LAWS) OF THE STATE OF TEXAS AND SHALL BE
PERFORMABLE IN HARRIS COUNTY, TEXAS . Chapter 346 of the
Texas Finance Code does not apply to this Note. Borrowers
irrevocably submit to the jurisdiction of any Texas
state
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court or any United States court located in the
State of Texas (or any court having jurisdiction over appeals from
any such court) in any proceeding between or among them arising out
of or in any way relating to this Note or the Loan Documents
whether arising in contract, tort or otherwise. Any suit, action or
proceeding may be brought in the courts of the State of Texas,
County of Harris, or in the United States District Court for the
Southern District of Texas, Houston Division. Borrowers
