Case No. OG-G-864
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, is made and entered into by Xxxxxx Protein,
Inc. (the "Guarantor"), and the UNITED STATES OF AMERICA, acting by and through
the Secretary of Commerce (the "Secretary").
Heretofore the Secretary 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 October 11,
1996, and such Commitment has been accepted by Xxxxxx Protein (USA), Inc., (the
"Payor"). The Guarantor is advised that the Commitment contemplates the issuance
of an obligation in the amount of $1,848,562.00 by the Payor to Coastal
Securities (the "Payee") which will be guaranteed by the Secretary (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 from the Payor to the Secretary to be executed and
delivered by the Payor to the Secretary (the "Deed of Trust and Security
Agreement"). The consideration for the Note and Deed of Trust and Security
Agreement is the Secretary's guarantee contained in the Guaranteed Note.
The Guarantor understands that the Secretary is unwilling to enter into
the aforementioned transaction unless payment pursuant to the Note and Deed of
Trust and Security Agreement shall be guaranteed unconditionally by the
Guarantor. This Guaranty Agreement is executed and delivered by the Guarantor in
order to induce the Secretary 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 Secretary the following:
1. The Guarantor unconditionally guarantees that all sums stated in
either the Note or the Deed of Trust and Security Agreement to be payable to the
Secretary, 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 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 Secretary
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 Secretary 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 Secretary 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 or the
Deed of Trust and Security Agreement, and will duly perform and observe each and
every agreement, covenant, term, and condition in such Note and Deed of Trust
and Security Agreement 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 or the Deed of Trust and Security Agreement, although without notice to or
the further consent of the Guarantor:
(a) The waiver by the Payee or the Secretary, 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 Secretary
to enforce, assert, or exercise any right, power or remedy conferred on the
Payee or the Secretary in each of such instruments, or any action on the part of
the Payee or the Secretary 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 and Deed of Trust and Security Agreement 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.
(i) The assumption and/or refinancing of the underlying
indebtedness by a third party.
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.
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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
Secretary.
6. This Guaranty Agreement may be assigned to any holder of the Note
and the Deed of Trust and Security Agreement.
7. All agreements, covenants, terms and conditions in this Guaranty
Agreement shall inure to the benefit of the Secretary 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 and Deed of Trust and
Security Agreement.
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 and to
the Deed of Trust and Security Agreement 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 Secretary, 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 provision(s)
herein unenforceable or invalid.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty Agreement.
Date: October 30, 1996
Attest: GUARANTOR: Xxxxxx Protein, Inc.
By: By:
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Assistant Secretary Vice President and Assistant
Secretary
(SEAL)
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ACKNOWLEDGMENT
STATE OF FLORIDA )
) ss
COUNTY OF PINELLAS )
On the 30th day of October, 1996, before me appeared Xxxxxx X. xxx
Xxxxxxxxx III, personally known to me or who has produced
as identification, who being by me duly sworn, did depose and say
that he is the Vice President and Assistant Secretary of Xxxxxx Protein, Inc.,
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 Xxxxxx X. xxx Xxxxxxxxx III acknowledged
to me that he executed said instrument as the Vice President and Assistant
Secretary of said corporation; that the same is the free and voluntary act and
deed of said corporation and of himself as such Vice President and Assistant
Secretary, for the uses and purposes therein expressed.
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Notary Public
UNITED STATES OF AMERICA
Secretary of Commerce
National Oceanic and Atmospheric Administrator
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Chief, Financial Services Branch
Southeast Region
National Marine Fisheries Service
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