Case No. OG-G-862
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 September 27, 1994, 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 $768,108.00 by the Payor to Sun Bank of Tampa Bay
(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 certain First Preferred Ship Mortgage to
the UNITED STATES OF AMERICA on the fishing vessel, TIGER POINT, Official Number
508606, and a Real Estate Mortgage from the Payor to the Secretary to be
executed and delivered by the Payor to the Secretary (the "Mortgage"). The
consideration for the Note and Mortgage 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 Mortgage
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 Mortgage to be payable to the Secretary, 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
Mortgage, and will duly perform and observe each and every agreement, covenant,
term, and condition in such Note and Mortgage to be performed or observed by the
Payor, and
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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 Mortgage, 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 owned under
the Note and 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.
(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
Secretary.
6. This Guaranty Agreement may be assigned to any holder of the Note
and the Mortgage.
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 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 and to
the 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 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.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty Agreement.
Date: September 27, 1994
Attest: GUARANTOR: Xxxxxx Protein, Inc.
By:_____________________________ By:________________________________
Secretary Executive Vice President-Finance
and Administration
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ACKNOWLEDGMENT
STATE OF LOUISIANA )
) ss
PARISH OF ORLEANS )
On the 27th day of September, 1994, before me personally appeared Xxxxxx
X. Xxxxxx to me known, who being by me duly sworn, did depose and say that he is
the Executive Vice President-Finance and Administration of Xxxxxx Protein, Inc.,
the corporation described in and which executed the foregoing instrument; and
that he signed his name to said instrument by order of the Board of Directors of
said corporation; and the said Xxxxxx X. Xxxxxx acknowledged to me that he
executed said instrument as the Executive Vice President-Finance and
Administration 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-Finance and Administration, for the uses and purposes therein
expressed.
______________________________________
Notary Public
My commission expires_________________
UNITED STATES OF AMERICA
Secretary of Commerce
National Oceanic and Atmospheric Administration
_______________________________________________
Chief, Financial Services Branch
Southeast Region
National Marine Fisheries Service
