EXHIBIT 10.49
Case No. OG-G-868, 869, 870,
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871, and 872
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GUARANTY AGREEMENT
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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 Approval Letters dated August 13,
1999, 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 aggregate amount of
$5,590,203.00 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 promissory notes by the Payor (the "Notes") which
will be secured by a Deed of Trust and Security Agreement, an Assignment of
Lease, a Collateral Mortgage and Assignment of Leases, Preferred Ship Mortgages,
and UCC Security Interests (the "Loan Documents"), from the Payor to the
Government to be executed and delivered by the Payor to the Government. The
consideration for the Note and the Loan Documents 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 and Loan
Documents shall be guaranteed absolutely and 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 or the Loan Documents 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 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 or the Loan
Documents, and will duly perform and observe each and every agreement, covenant,
term, and condition in such Note and Loan Documents 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 Loan Documents, 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 and Loan Documents 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.
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.
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6. This Guaranty Agreement may be assigned to any holder of the Note and
the Loan Documents.
7. All agreements, covenants, terms and conditions in this Guaranty
Agreement shall inure to the benefit of the Government and its 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 Loan Documents.
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
Loan Documents 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.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty Agreement.
Date:
ATTEST: GUARANTOR: Omega Protein Corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President and Controller Title: Executive Vice President and CFO
(SEAL)
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ACKNOWLEDGMENT
STATE OF FLORIDA )
) ss
COUNTY OF PINELLAS )
On the 20th day of December, 1999, before me appeared Xxxxxx X. Xxxxxxxx
personally known to me, who being by me duly sworn, did depose and say that he
is the Executive Vice President and CFO 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 Executive Vice President and CFO
acknowledged to me that he executed said instrument as the Executive Vice
President and CFO of said corporation; that the same is the free and voluntary
act and deed of said corporation and of himself as such Executive Vice President
and CFO, for the uses and purposes therein expressed.
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Notary Public
UNITED STATES OF AMERICA
Secretary of Commerce
National Oceanic and Atmospheric Administration
/s/
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Financial Services Branch
Southeast Region
National Marine Fisheries Service
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