Exhibit 10.7
Case No. FF-G-017A
GUARANTY AGREEMENT
RECITALS: THIS GUARANTY AGREEMENT,
is made and entered into by Omega Protein Corporation, 2101
CityWest Blvd., Building 3, Suite 500, Houston, Texas 77042,
(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, the Government has made,
entered into, and delivered that certain Approval in Principle
Letter dated December 1, 2005 , (the “Approval
Letter”), which Approval Letter has been accepted by Omega
Protein, Inc., (the “Borrower”) and the Guarantor, and
which Approval Letter contemplates the Government providing
financing to the Borrower in the amount of $16,442,000.00, in
separate tranches (the “Loan”). This transaction will
be evidenced by the issuance of various promissory notes to the
United States of America by the Borrower. Initially the Borrower
will issue a promissory note in the principal amount of
$6,349,000.00, (the “Note”) dated March 7,
2007 , and the Borrower has agreed to execute and deliver a
certain Preferred Ship Mortgage, a Deed of Trust and Security
Agreement, UCC Financing Statements, (collectively, 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 connection with the Loan and 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.
1
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 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 B
