GUARANTY AGREEMENT
BORROWER: LENDER:
Xxxxxx Protein (USA), Inc. Hibernia National Bank
0000 Xxxxxxx 00 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
GUARANTOR:
Xxxxxx Protein, Inc.
0000 Xxxxxxx 00
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
This Guaranty Agreement (this "Agreement"), dated as of August 29, 1997, is
made by XXXXXX PROTEIN, INC. (the "Guarantor") in favor of HIBERNIA NATIONAL
BANK (the "Lender"), guaranteeing the Indebtedness (as hereinafter defined) of
Xxxxxx Protein (USA), Inc. (the "Borrower") pursuant to that certain Loan
Agreement to be entered into between the Borrower and the Lender (as same may be
amended, supplemented or restated, the "Loan Agreement").
SECTION 1. GUARANTY OF BORROWER'S INDEBTEDNESS. Guarantor absolutely and
unconditionally does hereby guarantee the prompt and punctual payment of all
present and future indebtedness, amounts and liabilities of the Borrower to the
Lender incurred pursuant to the Loan Agreement between the Borrower and the
Lender of even date herewith (as amended from time to time, the "Loan
Agreement"), liquidated or unliquidated, now existing or hereafter arising, in
principal, interest, deferral and delinquency charges, prepayment premiums,
costs and attorneys' fees (collectively, the "Indebtedness"). The maximum amount
of Indebtedness guaranteed hereby is fifty million dollars.
SECTION 2. JOINT, SEVERAL AND SOLIDARY LIABILITY. Guarantor further agrees
that its obligations and liabilities for the prompt and punctual payment,
performance and satisfaction or purchase of all of Borrower's Indebtedness shall
be on a "joint and several" and "solidary" basis with Borrower to the same
degree and extent as if Guarantor had been and/or will be a co-borrower,
co-principal obligor and/or co-maker of all of Borrower's Indebtedness, but
limited to the amount of Borrower's Indebtedness guaranteed hereunder. In the
event that there are other guarantors, endorsers or sureties of all or any
portion of Borrower's Indebtedness, Guarantor's obligations and liabilities
hereunder shall be on a "joint and several" and "solidary" basis along with such
other guarantor or guarantors, endorsers and/or sureties, up to the Amount
Guaranteed.
SECTION 3. DURATION. This Agreement and Guarantor's obligations and
liabilities hereunder shall remain in full force and effect until such time as
all of Borrower's Indebtedness shall be paid, performed and/or satisfied in
full, in principal, interest, costs and attorneys' fees, or Guarantor has paid
the Amount Guaranteed, whichever event occurs first.
SECTION 4. DEFAULT BY BORROWER. Should an Event of Default occur, Guarantor
unconditionally and absolutely agrees to pay the unpaid amount of Borrower's
Indebtedness guaranteed hereunder. Such payment or payments shall be made
immediately following written demand by Lender at Lender's address stated above.
Guarantor hereby waives notice of acceptance of this Agreement and of any
Indebtedness to which it applies or may apply. Guarantor further waives
presentment and demand for payment of Borrower's Indebtedness, notice of
dishonor and of nonpayment, notice of intention to accelerate, notice of
acceleration, protest and notice of protest, collection or institution of any
suit or other action by Lender in collection thereof, including any notice of
default in payment thereof or other notice to or demand for payment thereof on
any party. Guarantor additionally waives any and all rights and pleas of
division and discussion as provided under Louisiana law, as well as, to the
degree applicable, any similar rights as may be provided under the laws of any
other state.
SECTION 5. GUARANTOR'S SUBORDINATION OF RIGHTS. In the event that Guarantor
should for any reason (A) advance or lend monies to Borrower, whether or not
such funds are used by Borrower to make payment(s) under Borrower's
Indebtedness, and/or (B) make any payment(s) to Lender or others for and on
behalf of Borrower under Borrower's Indebtedness, and/or (C) make any payment to
Lender in total or partial satisfaction of Guarantor's obligations and
liabilities under this Agreement, Guarantor hereby agrees that any and all
rights that Guarantor may have or acquire to collect from or to be reimbursed by
Borrower (or from or by any other guarantor, endorser or surety of Borrower's
Indebtedness), whether Guarantor's rights of collection or reimbursement arise
by way of subrogation to the rights of Lender or otherwise, shall in all
respects, whether or not Borrower is presently or subsequently becomes
insolvent, be subordinate, inferior and junior to the rights of Lender to
collect and enforce payment, performance and satisfaction of Borrower's then
remaining Indebtedness until such time as Borrower's Indebtedness are fully paid
and satisfied. In the event of Borrower's insolvency or consequent liquidation
of Borrower's assets, through bankruptcy, by an assignment for the benefit of
creditors, by voluntary liquidation or otherwise, the assets of Borrower
applicable to the payment of claims of both Lender and Guarantor shall be paid
to Lender and shall be first applied by Lender to Borrower's then remaining
Indebtedness. Guarantor hereby assigns to Lender all claims which it may have or
acquire against Lender for full payment of Borrower's Indebtedness guaranteed
under this Agreement.
SECTION 6. COVENANTS RELATING TO THE INDEBTEDNESS. Guarantor further agrees
that Lender may, at its sole option, at any time, and from time to time, without
the consent of or notice to Guarantor, or any one of them, or to any other party
and without incurring any responsibility to Guarantor or to any other party, and
without impairing or releasing the
- 2 -
obligations of Guarantor under this Agreement:
A. Discharge or release any party (including, but not limited to,
Borrower or any co-guarantor under this Agreement) who is or may
be liable to Lender for any of Borrower's Indebtedness;
B. Sell, exchange, release, surrender, realize upon or otherwise
deal with, in any manner and in any order, any collateral
directly or indirectly securing repayment of any of Borrower's
Indebtedness;
C. Change the manner, place or terms of payment, or change or extend
the time of payment of or renew, as often and for such periods as
Lender may determine, or alter, any of Borrower's Indebtedness;
X. Xxxxxx or compromise any of Borrower's Indebtedness;
E. Subordinate and/or agree to subordinate the payment of all or any
part of Borrower's Indebtedness or Lender's security rights in
and/or to any collateral directly or indirectly security any such
Indebtedness, to the payment and/or security rights of any other
present and/or future creditors of Borrower;
F. Apply any sums paid to any of Borrower's Indebtedness, with such
payments being applied in such priority or with such preferences
as Lender may determine in its sole discretion, regardless of
what Indebtedness of Borrower remain unpaid; provided that Lender
shall apply sums paid by Guarantor under this Guaranty to the
Amount Guaranteed;
G. Take or accept any other security or guaranty for any or all of
Borrower's Indebtedness;
H. Enter into, deliver, modify, amend or waive compliance with, any
instrument or arrangement evidencing, securing or otherwise
affecting, all or any part of Borrower's Indebtedness.
In addition, no course of dealing between Lender and Borrower (or any other
guarantor, surety or endorser of Borrower's Indebtedness), nor any failure or
delay on the part of Lender to exercise any of Lender's rights and remedies, or
any other agreement or agreements by and between Lender and Borrower (or any
other guarantor, surety or endorser) shall have the affect of impairing or
releasing Guarantor's obligations and liabilities to Lender or of waiving any of
Lender's rights and remedies. Any partial exercise of any rights and remedies
granted to Lender shall furthermore not constitute a waiver of any of Lender's
other rights and remedies, it being Guarantor's intent and agreement that
Lender's rights and
- 3 -
remedies shall be cumulative in nature. Guarantor further agrees that, should
Borrower default under any of Borrower's Indebtedness, any waiver or forbearance
on the part of Lender to pursue the rights and remedies available to Lender
shall be binding upon Lender only to the extent that Lender specifically agrees
to such waiver or forbearance in writing. A waiver or forbearance on the part of
Lender as to one default shall not constitute a waiver or forbearance as to any
other default.
SECTION 7. NO RELEASE OF GUARANTOR. Guarantor's obligations and liabilities
under this Agreement shall not be released, impaired, reduced (except to the
extent that Borrower's indebtedness is reduced or the Amount Guaranteed hereby
is reduced) or otherwise affected by, and shall continue in full force and
effect, notwithstanding the occurrence of any event, including, without
limitation, any one or more of the following events:
A. Death, insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of
authority (whether corporate, partnership or trust) of Borrower
(or any person acting on Borrower's behalf), or any other
guarantor, surety or endorser of any of Borrower's Indebtedness;
B. Partial payment or payments of any amount due and/or outstanding
under any of Borrower's Indebtedness other than payments by
Guarantor to Lender of the Amount Guaranteed hereunder;
C. Any payment by Borrower or any other party to Lender is held to
constitute a preferential transfer or a fraudulent conveyance
under any applicable law, or for any reason Lender is required to
refund such payment or pay such amount to Borrower or to any
other person;
D. Any dissolution of Borrower or any sale, lease or transfer of all
or any part of Borrower's assets; and/or
E. Any failure of Lender to notify Guarantor of the acceptance of
this Agreement or of the making of loans or other extensions of
credit in reliance on this Agreement or of the failure of
Borrower to make any payment due by Borrower to Lender.
This Agreement and Guarantor's obligations and liabilities hereunder shall
continue to be effective, and/or shall automatically and retroactively be
reinstated if a release or discharge has occurred, as the case may be, if at any
time any payment or part thereof to Lender with respect to any of Borrower's
Indebtedness is rescinded or must otherwise be restored by Lender pursuant to
any insolvency, bankruptcy, reorganization, receivership or any other debt
relief granted to Borrower or to any other party. In the event that Lender must
rescind or restore any payment received by Lender in satisfaction of Borrower's
Indebtedness, any prior release or discharge from the terms of this Agreement
given to
- 4 -
Guarantor shall be without effect, and this Agreement and Guarantor's
obligations and liabilities hereunder shall automatically be renewed or
reinstated and shall remain in full force and effect to the same degree and
extent as if such a release or discharge was never granted. It is the intention
of Lender and Guarantor that Guarantor's obligations and liabilities hereunder
shall not be discharged except by Borrower's and Guarantor's full and complete
performance of such obligations and liabilities and then only to the extent of
such performance.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants that the representations and warranties made in writing by the Borrower
and Guarantor pursuant to the Loan Agreement are true and correct.
SECTION 9. COVENANTS CONTAINED IN LOAN AGREEMENT. Guarantor will at all
times comply with the affirmative and negative covenants imposed on Guarantor
pursuant to the Loan Agreement.
SECTION 10. ENFORCEMENT OF GUARANTOR'S INDEBTEDNESS AND LIABILITIES.
Guarantor agrees that following the occurrence of an Event of Default, should
Lender deem it necessary to file an appropriate collection action to enforce
Guarantor's obligations and liabilities under this Agreement, Lender may
commence such a civil action against Guarantor without the necessity of first
(i) attempting to collect Borrower's Indebtedness from Borrower or from any
other guarantor, surety or endorser, whether through filing of suit or
otherwise, (ii) attempting to exercise against any collateral directly or
indirectly securing repayment of any of Borrower's Indebtedness, whether through
the filing of an appropriate foreclosure action or otherwise or (iii) including
Borrower or any other guarantor, surety or endorser of any of Borrower's
Indebtedness as an additional party defendant in such a collection action
against Guarantor. If there is more than one guarantor under this Agreement,
Guarantor additionally agrees that Lender may file an appropriate collection
and/or enforcement action against any one or more of them, without impairing the
rights of Lender against any other guarantor under this Agreement. In the event
that Lender should ever deem it necessary to refer this Agreement to an
attorney-at-law for the purpose of enforcing Guarantor's obligations and
liabilities hereunder, or of protecting or preserving Lender's rights hereunder,
Guarantor agrees to reimburse Lender for the reasonable fees of such an
attorney. Guarantor additionally agrees that Lender shall not be liable for
failure to use diligence in the collection of any of Borrower's Indebtedness or
any collateral security therefor, or in creating or preserving the liability of
any person liable on any such Indebtedness, or in creating, perfecting or
preserving any security for any such Indebtedness.
SECTION 11. ADDITIONAL DOCUMENTS. Upon the reasonable request of Lender,
Guarantor will, at any time and from time to time, duly execute and deliver to
Lender any and all such further instruments and documents and supply such
additional information as may be necessary or advisable in the opinion of Lender
to further evidence or perfect this Agreement.
- 5 -
SECTION 12. TRANSFER OF INDEBTEDNESS. This Agreement is for the benefit of
Lender and for such other person or persons as may from time to time become or
be the holders of any of Borrower's Indebtedness hereby guaranteed, and this
Agreement shall be transferrable and negotiable with the same force and effect
and to the same extent as Borrower's Indebtedness may be transferrable, it being
understood that, upon the transfer or assignment by Lender of any of Borrower's
Indebtedness hereby guaranteed, the legal holder of such Indebtedness shall have
all of the rights granted to Lender under this Agreement.
Guarantor hereby recognizes and agrees that Lender may, from time to time,
one or more times, transfer all or any portion of Borrower's Indebtedness to one
or more third parties. Such transfers may include, but are not limited to, sales
of a participation interest in such Indebtedness in favor of one or more third
party lenders. Guarantor specifically agrees and consents to all such transfers
and assignments, and Guarantor further waives any subsequent notice of and right
to consent to any such transfers and assignments as may be provided under
applicable Louisiana law. Guarantor additionally agrees that the purchaser of a
participation interest in Borrower's Indebtedness will be considered as the
absolute owner of a percentage interest of such Indebtedness and that such a
purchaser will have all of the rights granted to the purchaser under any
participation agreement governing the sale of such a participation interest.
Guarantor further waives any right of offset that Guarantor may have against
Lender and/or any purchaser of such a participation interest in Borrower's
Indebtedness, and Guarantor unconditionally agrees that either Lender or such a
purchaser may enforce Guarantor's obligations and liabilities under this
Agreement irrespective of the failure or insolvency of Lender or any such
purchaser.
SECTION 13. RIGHT OF OFFSET. As collateral security for the repayment of
Guarantor's obligations and liabilities under this Agreement, Guarantor hereby
grants Lender, as well as its successors and assigns, the right to apply, at any
time and from time to time following the occurrence of an Event of Default under
the Loan Agreement, any and all funds that Guarantor may then have on deposit
with or in the possession or control of Lender and its successors or assigns
(with the exception of funds deposited in XXX, pension or other tax-deferred
deposit accounts) towards repayment of any of Borrower's Indebtedness subject to
this Agreement.
SECTION 14. CONSTRUCTION. The provisions of this Agreement shall be in
addition to and cumulative of, and not in substitution, novation or discharge
of, any and all prior or contemporaneous guaranty or other agreements by
Guarantor (or any one or more of them) in favor of Lender or assigned to Lender
by others, all of which shall be construed as complementing each other. Nothing
herein contained shall prevent Lender from enforcing any and all such other
guaranties or agreements in accordance with their respective terms. Nothing
herein shall constitute a waiver of any notice requirement in Borrower's favor,
or any curative right provided in the Loan Agreement.
- 6 -
SECTION 15. AMENDMENT. No amendment, modification, consent or waiver of any
provision of this Agreement, and no consent to any departure by Guarantor
therefrom, shall be effective unless the same shall be in writing signed by a
duly authorized officer of Lender, and then shall be effective only to the
specific instance and for the specific purpose for which given.
SECTION 16. SUCCESSORS AND ASSIGNS BOUND. Guarantor's obligations and
liabilities under this Agreement shall be binding upon Guarantor's successors,
heirs, legatees, devisees, administrators, executors and assigns. The rights and
remedies granted to Lender under this Agreement shall also inure to the benefit
of Lender's successors and assigns, as well as to any and all subsequent holder
or holders of any of Borrower's Indebtedness subject to this Agreement.
SECTION 17. CAPTION HEADINGS. Caption headings of the sections of this
Agreement are for convenience purposes only and are not to be used to interpret
or to define their provisions. In this Agreement, whenever the context so
requires, the singular includes the plural and the plural also includes the
singular.
SECTION 18. GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the substantive laws of the State of Louisiana.
SECTION 19. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable, this Agreement shall
be construed and enforceable as if the illegal, invalid or unenforceable
provision had never comprised a part of it, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom.
SECTION 20. NOTICES. Any notice or demand which, by provision of this
Agreement, is required or permitted to be given or served by Lender to or on
Guarantor shall be deemed to have been sufficiently given and served for all
purposes (if mailed) three calendar days after being deposited, postage prepaid,
in the United States Mail, registered or certified mail, or (if delivered by
express courier) one business day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case addressed (until
another address or addresses is given in writing by Guarantor) to the address
set forth above.
Any notice or demand which, by provision of this Agreement, is required or
permitted to be given or served by Guarantor to or on Lender shall be deemed to
have been sufficiently given and served for all purposes (if mailed) three
calendar days after being deposited, postage prepaid, in the United States Mail,
registered or certified mail, or (if delivered by express courier) one business
day after being delivered to such courier, or (if delivered in person) the same
day as delivery, in each case addressed (until another address or addresses are
given in writing by Lender to Guarantor) to the address set forth above.
- 7 -
SECTION 21. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER HEREBY WAIVE THE
RIGHTS TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER AGAINST THE OTHER.
SECTION 22. ACCEPTANCE. No formal acceptance by the Lender is necessary to
make this Agreement effective.
- 8 -
IN WITNESS WHEREOF, Guarantor has executed this Agreement in favor of
Lender on the day, month and year first above written.
XXXXXX PROTEIN, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Controller
- 9 -
