EXHIBIT 10.56
Case No. FF-G-008
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GUARANTY AGREEMENT
RECITALS: THIS GUARANTY AGREEMENT, is made and entered into by Omega Protein
Corporation, 0000 Xx. Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (hereinafter,
the "Guarantor"), and the UNITED STATES OF AMERICA, acting by and through the
Secretary of Commerce, National Oceanic and Atmospheric Administration, National
Marine Fisheries Service, Financial Services Division (hereinafter, the
"Government").
DEFINITIONS: All terms contained herein are defined in the Acknowledgment of
Definitions executed by all parties to this transaction.
WHEREAS, in connection with the Government providing financing to the Borrower,
the Borrower has executed and delivered to the Government its promissory note
(hereinafter, the "Note") dated October 19, 2001, in the principal amount of
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$1,900,000.00 and has agreed to execute and deliver a certain Preferred Ship
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Mortgages, Deed of Trust and Security Agreement, UCC Financing Statements
(hereinafter, the "Loan Documents") to the Government for the purpose of
securing the payment of the principal of and interest on the Note and all other
sums due the Government in accordance with its terms and the terms contained in
the Loan Documents.
WHEREAS, the Guarantor understands that the Government is unwilling to enter
into the aforementioned transaction, unless this Guaranty Agreement is executed
by the Guarantor, therefore, in order to induce the Government to enter into the
aforementioned transaction with the Borrower, the Guarantor has agreed to
execute and deliver to the Government an absolute and unconditional guaranty,
(hereinafter, the "Guaranty") of the above-referenced Note, thereby guaranteeing
that all sums stated in the Note and all other sums of any nature owed to the
Government by the Borrower, shall be promptly paid in full when due.
WHEREAS, Omega Protein Corporation further represents to the Government that it
is a corporation in good standing in the State of Nevada and that it will not
allow or permit said status to change, except with the express, written consent
of the Government.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt whereof is hereby acknowledged, the parties agree as
follows:
1. The Guarantor unconditionally guarantees that all sums stated in, arising
under the Note, including any and all amendments thereto, to be payable to the
Government, shall be promptly paid in full when due, in accordance with the
provisions governing such payment. This Guaranty Agreement is unconditional and
absolute and if for any reason such
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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 set-off or
counterclaims which the Borrower, Guarantor or any other party may have or
assert, and regardless of whether the Government shall have taken any steps to
enforce any rights against the Borrower, the Guarantor or any other person to
collect such sums, or any part thereof, and regardless of any other condition or
contingency. The Guarantor also expressly agrees to pay the Government all the
costs and expenses of collecting such sums, or any part thereof, or of enforcing
this Guaranty Agreement, expressly including, but not limited to, attorney's
fees. It is expressly understood by the Guarantor that collection expenses may
accrue rapidly and result in significant expenses for which the Guarantor agrees
to be liable. It is further agreed to and understood by the Guarantor that
"costs and expenses" of collection are deemed to include any and all costs,
including but not limited to, accelerated interest charges, attorney fees, and
all other costs and expenses, which the Government may incur to collect sums due
under the Note or hereunder or to protect and preserve collateral pledged in
relation to the obligation, regardless of whether said collateral was pledged by
the Guarantor. The Guarantor agrees to be liable for and pay for said costs and
expenses (including all interest charges thereon) which will continue to accrue
until such time as the Guarantor fully satisfies and discharges the obligation
arising under this Guaranty Agreement.
2. The Guarantor unconditionally guarantees that the Borrower will promptly and
punctually pay all other sums payable under the Note and the Loan Documents,
including any amendments or substitutions therefor, and will duly perform and
observe each and every agreement, covenant, term and condition in such Note and
Loan Documents, or amendments thereto, to be performed or observed by the
Borrower, and upon the Borrower'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 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, including amendments or substitutions therefor, or any other document
executed in connection therewith, although without notice to or the further
consent of the Guarantor:
a. the waiver by the Government, or its successors or assigns, of the
performance or observance by the Borrower, the Guarantor or any other party of
any of the agreements, covenants, terms or conditions contained in the Note and
the Loan Documents, or any other document executed in connection therewith;
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b. the extension, in whole or in part, of the time for payment by the
Borrower, the Guarantor or any other party to the obligation of any sums owing
or payable under the Note, the Loan Documents or this Guaranty Agreement or of
the time for performance by the Borrower, the Guarantor or any other party to
the obligation of any other obligations under or arising out of or on account of
the Note, the Loan Documents any other document executed in connection
therewith;
c. the modification or amendment (whether material or otherwise) of any of
the obligations of the Borrower, the Guarantor or any other party to the
obligation as set forth in the Note, the Loan Documents or any other documents
executed in connection therewith;
d. the doing or the omission of any of the acts referred to in the Note,
the Loan Documents or any other document executed in connection therewith;
e. any failure, omission, or delay of the Government to enforce, assert, or
exercise any right, power or remedy conferred on the Government in the Note, the
Loan Documents or any other document or agreement executed in connection
therewith, or any action on the part of the Borrower or the Government granting
indulgence or extension in any form whatsoever; and
f. the voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the assets, 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 Borrower or any of its assets or any other party to the
obligation; and
g. the release of the Borrower, the Guarantor or any other party from the
performance or observance of any of the agreements, covenants, terms or
conditions contained in the Note, the Loan Documents or any other document
executed in connection therewith, by the operation of law; and
h. any Order of 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; and
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 Borrower or any other party to the
obligation 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
Government.
6. This Guaranty Agreement may be assigned to any holder of the Note.
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.
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, protest and notice of nonpayment of 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 all other
loan documents and shall bind the Guarantor to the same extent as though the
Guarantor executed and delivered a separate instrument of guaranty with respect
to each of such instruments and annexed the same thereto.
10. This Guaranty Agreement shall be binding upon the Guarantor and the
Guarantor's heirs, executors, administrators, successors, assigns and all other
legal representatives.
11. Community Property Rights: Each and every term and provision of this
Agreement shall, to the extent necessary or required to subject community
property rights, if any, in the collateral, to the terms hereof and herein
contained be read and interpreted to apply to the Guarantor.
12. The Guarantor acknowledges and represents to the Government that it is a
principal party of interest with respect to the past, present and future
operation of the Borrower's business and that the past, present and future
financial success of the Borrower's business has, does and will directly,
materially and substantially benefit the Guarantor. Accordingly, the Guarantor
acknowledges and consents to any and all regulations and/or Financial Services
Division requirements which require, permit or authorize the Government to
request that the Guarantor execute and deliver a guaranty of sums due under the
Note.
13. All provisions of this Guaranty Agreement shall be construed, given effect,
and enforced according to the laws of the United States. With respect to any
claim or proceeding relating to this Guaranty Agreement, the Guarantor hereby
consents to and subjects itself to the jurisdiction of the federal court of
competent jurisdiction of the
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State of Louisiana, and agrees that the venue of any action or proceeding
relating to this Guaranty Agreement shall lie exclusively in the federal court
situated in the State of Louisiana, unless the Government has instituted
proceedings where the collateral may be found and in such case, the Guarantor
consents to and subjects itself to the jurisdiction of the federal court which
maintains jurisdiction over the collateral.
14. Prior written consent must be granted by the Government, consent of which
will not be unnecessarily withheld, before the Guarantor shall split-up,
spin-off, merge, consolidate, transfer or allow transfer of its shares and/or
assets as to effect a change in its controlling interest, management, and
financial conditions.
15. If the Guarantor is a corporation, the Guaranty Agreement shall be binding
upon its parent corporation and its subsidiaries.
16. 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 has executed and delivered this Guaranty
Agreement.
UNITED STATES OF AMERICA
Acting by and through the Secretary of Commerce
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
Financial Services Division
By: /s/
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Title: Chief, Financial Services Branch,
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Southeast Region
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Date: December 19, 2001
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GUARANTOR:
Omega Protein Corporation
Attest: By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President,
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Chief Financial Officer and
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Corporate Secretary
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(SEAL)
Date: December 19, 2001
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ACKNOWLEDGMENT
STATE OF FLORIDA )
)ss
COUNTY OF PINELLAS )
On this the day of , 2001, Xxxx Xxxxxxx, Chief, Financial
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Services Branch, National Marine Fisheries Service, Southeast Region, who is the
duly authorized representative of the Secretary of Commerce of the United States
of America, acknowledged that he executed the foregoing instrument as such
representative of the Secretary of Commerce pursuant to the authority vested in
him by the laws of the United States. He is personally known to me and did not
take an oath.
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Notary Public
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ACKNOWLEDGMENT
STATE OF FLORIDA )
)ss
COUNTY OF PINELLAS )
On this the 19th of October, 2001, Xxxxxx X. Xxxxxxxx, Executive Vice
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President, Chief Financial Officer and Corporate Secretary, who is the duly
authorized representative of Omega Protein Corporation, acknowledged that he
executed the foregoing instrument as such representative of Omega Protein
Corporation. He is personally known to me and did not take an oath.
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Notary Public
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