EXHIBIT 10.3
Case No. OG-G-867
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, is made and entered into by Omega Protein
Corporation, formerly Marine Genetics Corporation, (the "Guarantor"), and the
UNITED STATES OF AMERICA, acting by and through the Secretary of Commerce (the
"Government").
Heretofore the Government has made, entered into, and delivered a
certain Commitment to Guarantee Note (the "Commitment"), dated January 28, 1988,
as amended on November 15, 1988, the Commitment to Guarantee Note executed on
November 22, 1988, and further amended by an Approval Letter dated January 22,
1998, and such Commitment has been accepted by Omega Protein, Inc., formerly
Xxxxxx Protein (USA), Inc., (the "Payor"). The Guarantor is advised that the
Commitment contemplates the issuance of an obligation in the amount of
$668,399.00 by the Payor to Hibernia National Bank (the "Payee") which will be
guaranteed by the Government (the "Guaranteed Note"). The consideration for the
Guaranteed Note is a loan from the Payee to the Payor. The Commitment also
contemplates the issuance of a promissory note by the Payor (the "Note") which
will be secured by a Deed of Trust and Security Agreement (the "Deed of Trust
and Security Agreement"), a First Preferred Ship Mortgage on the fishing vessel
GRAND CALLIOU, Official Number 509018 (the "Ship Mortgage"), and UCC Security
Interests from the Payor to the Government to be executed and delivered by the
Payor to the Government. The consideration for the Note, Deed of Trust and
Security Agreement, Ship Mortgage and UCC Security Interests is the Government's
guarantee contained in the Guaranteed Note.
The Guarantor understands that the Government is unwilling to enter into
the aforementioned transaction unless payment pursuant to the Note, Deed of
Trust and Security Agreement and Ship Mortgage shall be guaranteed
unconditionally by the Guarantor. This Guaranty Agreement is executed and
delivered by the Guarantor in order to induce the Government to enter into the
aforementioned transaction with the Payor and Payee.
NOW, THEREFORE, in consideration of the premises and the mutual promises
of the Guarantor, the Guarantor (jointly, severally and in solido, if the
Guarantor consists of more than one person or entity) agrees with and
unconditionally guarantees to the Government the following:
1. The Guarantor unconditionally guarantees that all sums stated in
either the Note, Deed of Trust and Security Agreement or the ship Mortgage to be
payable to the Government, and all other indebtedness of the Payor to the
Government presently existing or which may in any manner or means hereafter be
incurred, including any further loans and advances made to Payor by the
Government under the provisions hereof, shall be promptly paid in full when due,
in United States currency, in accordance with the provisions governing such
payment. This Guaranty is unconditional and absolute and if for any reason such
sums, or any part thereof, shall not be paid promptly when due, the Guarantor
will immediately pay the same to the Government pursuant to the provisions
governing such payment, regardless of any defenses or rights of setoff or
counterclaims which the Payor may have or assert, and regardless of whether the
Payee or the Government shall have taken any steps to enforce any rights against
the Payor or any other person to collect such sums, or any part thereof, and
regardless of any other condition or contingency. The Guarantor also agrees to
pay the Government the costs and expenses of collecting such sums, or any part
thereof, or of enforcing this Guaranty Agreement, including attorneys' fees.
2. The Guarantor unconditionally guarantees that the Payor will
promptly and punctually pay all other sums payable under either the Note, Deed
of Trust and Security Agreement or the Ship Mortgage, and will duly perform and
observe each and every agreement, covenant, term, and condition in such Note,
Deed of Trust and Security Agreement and Ship Mortgage to be performed or
observed by the Payor, and upon the Payor's failure to do so, the Guarantor will
promptly pay such sums and duly perform and observe each such agreement,
covenant, term and condition, or cause the same promptly to be performed and
observed.
3. The obligations, covenants, agreements and duties of the Guarantor
under this Guaranty Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following with respect to the
Note, Deed of Trust and Security Agreement or the Ship Mortgage, although
without notice to or the further consent of the Guarantor:
(a) The waiver by the Payee or the Government, or the successors or
assigns of either of them, of the performance or observance by the Payor or the
Guarantor of any of the agreements, covenants, terms or conditions contained in
either of such instruments;
(b) The extension, in whole or in part, of the time for payment by
the Payor or the Guarantor of any sums owing or payable under either of such
instruments, or of the time for performance by the Payor or the Guarantor of any
other obligations under or arising out of or on account of either of such
instruments;
(c) The modification or amendment (whether material or otherwise)
of any of the obligations of the Payor or any of the Guarantor as set forth in
either of such instruments;
(d) The doing or the omission of any of the acts referred to in
either of such instruments;
(e) Any failure, omission, or delay of the Payee or the Government
to enforce, assert, or exercise any right, power or remedy conferred on the
Payee or the Government in each of such instruments, or any action on the part
of the Payee or the Government granting indulgence or extension in any form
whatsoever;
(f) The voluntary or involuntary liquidation, dissolution or sale
of all or substantially all of the assets, the marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition, or readjustment of, or
other similar proceeding affecting the Payor or any of its assets; and
(g) The release of the Payor or the Guarantor or any of them from
the performance or observance of any of the agreements, covenants, terms or
conditions contained in either of such instruments by the operation of the law.
(h) Any Order or Judgment entered by a Bankruptcy Court which
diminishes, discharges or declares any of the obligations or amounts owed under
the Note, Deed of Trust and Security Agreement and Ship Mortgage to be paid or
satisfied. The undersigned hereby waive any defense based upon any Bankruptcy
Court order or judgment with respect to any action based upon this Guaranty
Agreement, which is brought against the undersigned in Federal District Court,
or any other court of competent jurisdiction.
(i) The assumption and/or refinancing of the underlying
indebtedness by a third party.
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4. Notice of acceptance of this Guaranty Agreement and notice of any
obligations or liabilities contracted or incurred by the Payor are hereby waived
by the Guarantor.
5. This Guaranty Agreement may not be modified or amended except by a
written agreement executed by the Guarantor with the consent in writing of the
Government.
6. This Guaranty Agreement may be assigned to any holder of the Note,
Deed of Trust and Security Agreement and the Ship Mortgage.
7. All agreements, covenants, terms and conditions in this Guaranty
Agreement shall inure to the benefit of the Government and his successors and
assigns, and, without limitation of the generality of the foregoing, shall in
particular inure to the benefit of any holder of the Note, Deed of Trust and
Security Agreement and Ship Mortgage.
8. The signature of the Guarantor hereto is, in addition to and not in
limitation of the foregoing, intended as and to have the effect of an
endorsement of the Note by the Guarantor, who hereby waives presentment, demand
of payment, opportunity to cure, notice of intent to accelerate, protest and
notice of nonpayment or dishonor, and of protest of the Note and any and all
other notices and demands whatsoever.
9. The terms of this Guaranty Agreement shall apply to the Note, the
Deed of Trust and Security Agreement and to the Ship Mortgage, and shall bind
the Guarantor to the same extent as though each of them executed and delivered a
separate instrument of guaranty with respect to each of such instruments and
annexed the same thereto.
10. This Guaranty shall be binding upon the Guarantor and the
Guarantor's heirs, executors, administrators, successors, assigns and other
legal representatives.
11. Prior written consent must be granted by the Government, consent of
which will not be unnecessarily withheld, before the Guarantor shall split-up,
split-off, spin-off, merge, consolidate, or transfer or allow transfer of its
shares and/or assets as to effect a change in its controlling interest,
management, and financial conditions.
12. If the Guarantor is a corporation, this Guaranty Agreement shall be
binding upon its parent corporation and its subsidiaries.
13. SEVERABILITY: The unenforceability or invalidity of any provision(s)
of this Guaranty Agreement shall not render any other provisions(s) herein
unenforceable or invalid.
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty Agreement.
Date: May 12, 1998
ATTEST: GUARANTOR: Omega Protein Corporation
By: By:
----------------------------- --------------------------------
Secretary
(SEAL)
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ACKNOWLEDGMENT
STATE OF FLORIDA )
) ss
COUNTY OF PINELLAS )
On the ____ day of ______________ , 1998, before me appeared
______________ personally known to me or who has produced __________________ as
identification, who being by me duly sworn, did depose and say that he is the
_______________________________of Omega Protein Corporation, the corporation
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is the seal of
said corporation; that said seal was so affixed by order of the Board of
Directors of said corporation, and that he signed his name to said instrument by
like order, and the said ________________________ acknowledged to me that he
executed said instrument as the ________________ of said corporation; that the
same is the free and voluntary act and deed of said corporation and of himself
as such _________________________, for the uses and purposes therein expressed.
_______________________________
Notary Public
UNITED STATES OF AMERICA
Secretary of Commerce
National Oceanic and Atmospheric Administration
_____________________________________________
Chief, Financial Services Branch
Southeast Region
National Marine Fisheries Service
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