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EXHIBIT 1
GUARANTY AGREEMENT
WHEREAS, the execution of this Guaranty Agreement is a condition to
SOUTHWEST BANK OF TEXAS, N.A., a national banking association ("Lender"),
making certain loans to TRANSAMERICAN WASTE INDUSTRIES, INC., a Delaware
corporation ("Borrower"), pursuant to that certain Loan Agreement dated as of
August 15, 1997, between Borrower and Lender (such Loan Agreement, as it may
hereafter be amended or modified from time to time, is hereinafter referred to
as the Loan Agreement");
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the undersigned, XXXXXX X. XXXXX, XX., an
individual (the "Guarantor"), hereby irrevocably and unconditionally guarantees
to Lender the full and prompt payment and performance of the Guaranteed
Indebtedness (hereinafter defined). This Guaranty Agreement shall be upon the
following terms:
1. The term "Guaranteed Indebtedness", as used herein means the
indebtedness and obligations of Borrower to Lender evidenced by that certain
promissory note in the original principal amount of $5,000,000.00 dated as of
August 15, 1997, executed by Borrower and payable to the order of Lender, and
all renewals, extensions and modifications, but not increases or reborrowings,
thereof and thereunder. The term "Guaranteed Indebtedness" shall include any
and all post-petition interest and expenses (including attorneys' fees incurred
in connection with the enforcement of this Guaranty Agreement) whether or not
allowed under any bankruptcy, insolvency, or other similar law.
2. This instrument shall be an absolute, irrevocable, and
unconditional guaranty of payment and performance, and not a guaranty of
collection, and Guarantor shall remain liable on its obligations hereunder
until the payment and performance in full of the Guaranteed Indebtedness. No
setoff, counterclaim, recoupment, reduction, or diminution of any obligation,
or any defense of any kind or nature which Borrower may have against Lender or
any other party, or which Guarantor may have against Borrower, Lender, or any
other party, shall be available to, or shall be asserted by, Guarantor against
Lender or any subsequent holder of the Guaranteed Indebtedness or any part
thereof or against payment of the Guaranteed Indebtedness or any part thereof.
3. If Guarantor becomes liable for any indebtedness owing by
Borrower to Lender by endorsement or otherwise, other than under this Guaranty
Agreement, such liability shall not be in any manner impaired or affected
hereby, and the rights of Lender hereunder shall be cumulative of any and all
other rights. that Lender may ever have against Guarantor. The exercise by
Lender of any right
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or remedy hereunder or under any other instrument, or at law or in equity,
shall not preclude the concurrent or subsequent exercise of any other right or
remedy.
4. In the event of default by Borrower in payment or performance of
the Guaranteed indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or otherwise,
Guarantor shall promptly pay the amount due thereon to Lender without notice or
demand in lawful money of the United States of America and it shall not be
necessary for Lender, in order to enforce such payment by Guarantor, first to
institute suit or exhaust its remedies against Borrower or others liable on
such Guaranteed Indebtedness, or to enforce any rights against any collateral
which shall ever have been given to secure such Guaranteed Indebtedness.
Notwithstanding anything to the contrary contained in this Guaranty Agreement,
Guarantor hereby irrevocably waives any and all rights it may now or hereafter
have under any agreement or at law or in equity (including, without limitation,
any law subrogating the Guarantor to the rights of Lender) to assert any claim
against or seek contribution, indemnification or any other form of
reimbursement from Borrower or any other party liable for payment of any or all
of the Guaranteed Indebtedness for any payment made by Guarantor under or in
connection with this Guaranty Agreement or otherwise.
5. If acceleration of the time for payment of any amount payable by
Borrower under the Guaranteed Indebtedness is stayed upon the insolvency,
bankruptcy, or reorganization of Borrower, all such amounts otherwise subject
to acceleration under the terms of the Guaranteed Indebtedness shall
nonetheless be payable by Guarantor hereunder forthwith on demand by Lender.
6. Guarantor hereby agrees that its obligations under this Guaranty
Agreement shall not be released, discharged, diminished, impaired, reduced, or
affected for any reason or by the occurrence of any event, including, without
limitation, one or more of the following events, whether or not with notice to
or the consent of Guarantor: (a) the taking or accepting of collateral as
security for any or all of the Guaranteed Indebtedness or the release,
surrender, exchange, or subordination of any collateral now or hereafter
securing any or all of the Guaranteed Indebtedness; (b) any partial release of
the liability of Guarantor hereunder, or the full or partial release of any
other guarantor or obligor from liability for any or all of the Guaranteed
Indebtedness; (c) any disability of Borrower, or the dissolution, insolvency,
or bankruptcy of Borrower, Guarantor, or any other party at any time liable for
the payment of any or all of the Guaranteed Indebtedness; (d) any renewal,
extension, modification, waiver, amendment, or rearrangement of any or all of
the Guaranteed Indebtedness or any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Indebtedness; (e) any adjustment, indulgence, forbearance, waiver,
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or compromise that may be granted or given by Lender to Borrower, Guarantor, or
any other party ever liable for any or all of the Guaranteed Indebtedness; (f)
any neglect, delay, omission, failure, or refusal of Lender to take or
prosecute any action for the collection of any of the Guaranteed Indebtedness
or to foreclose or take or prosecute any action in connection with any
instrument, document, or agreement evidencing, securing, or otherwise relating
to any or all of the Guaranteed Indebtedness; (g) the unenforceability or
invalidity of any or all of the Guaranteed Indebtedness or of any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or
all of the Guaranteed Indebtedness; (h) any payment by Borrower or any other
party to Lender is held to constitute a preference under applicable bankruptcy
or insolvency law or if for any other reason Lender is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the Guaranteed Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed
Indebtedness; (1) the failure of Lender to sell any collateral securing any or
all of the Guaranteed Indebtedness in a commercially reasonable manner or as
otherwise required by law; (m) any change in the corporate existence,
structure, or ownership of Borrower; or (n) any other circumstance which might
otherwise constitute a defense available to, or discharge of, Borrower or
Guarantor.
7. Guarantor represents and warrants to Lender as follows:
(a) Guarantor has the power and authority and legal right to
execute, deliver, and perform its obligations under this Guaranty
Agreement and this Guaranty Agreement constitutes the legal, valid, and
binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as limited by bankruptcy, insolvency,
or other laws of general application relating to the enforcement of
creditor's rights.
(b) The execution, delivery, and performance by Guarantor of
this Guaranty Agreement do not and will not violate or conflict with any
law, rule, or regulation or any order, writ, injunction, or decree of
any court, governmental authority or agency, or arbitrator and do not
and will not conflict with, result in a breach of, or constitute a
default under, or result in the imposition of any lien upon any assets
of Guarantor pursuant to the provisions of any indenture, mortgage, deed
of trust, security agreement, franchise, permit, license, or other
instrument or agreement to which Guarantor or its properties is bound.
(c) No authorization, approval, or consent of, and no filing
or registration with, any court, governmental
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authority, or third party is necessary for the execution, delivery, or
performance by Guarantor of this Guaranty Agreement or the validity or
enforceability thereof.
(d) The value of the consideration received and to be received
by Guarantor as a result of Borrower and Lender entering into the Loan
Agreement and Guarantor executing and delivering this Guaranty Agreement
is reasonably worth at least as much as the liability and obligation of
Guarantor hereunder, and such liability and obligation and the Loan
Agreement have benefited and may reasonably be expected to benefit
Guarantor directly and indirectly.
8. Guarantor covenants and agrees that, as long as the Guaranteed
Indebtedness or any part thereof is outstanding or Lender has any commitment
under the Loan Agreement:
(a) Guarantor will deliver to Lender his personal financial
statement, consisting of at least a balance sheet, a statement of income
and expenses, a list of liabilities (including contingent liabilities
and any security therefor and detailing amounts, lenders and repayment
terms), and a statement of cash flows on or before each February 28 as of
the preceding December 31.
(b) Guarantor will furnish promptly to Lender written notice
of the occurrence of any default under this Guaranty Agreement or an
Event of Default under the Loan Agreement of which Guarantor has
knowledge.
(c) Guarantor will furnish promptly to Lender such additional
information concerning Guarantor as Lender may request.
9. Guarantor hereby agrees that the Subordinated Indebtedness (as
hereinafter defined) shall be subordinate and junior in right of payment to the
prior payment in full of all Guaranteed Indebtedness, and Guarantor hereby
assigns the Subordinated Indebtedness to Lender as security for the Guaranteed
Indebtedness, effective upon the occurrence of an Event of Default. If any sums
shall be paid to Guarantor by Borrower or any other person or entity on account
of the Subordinated Indebtedness after the occurrence and during the
continuance of an Event of Default, such sums shall be held in trust by
Guarantor for the benefit of Lender and shall forthwith be paid to Lender
without affecting the liability of Guarantor under this Guaranty Agreement. For
purposes of this Guaranty Agreement, the term "Subordinated Indebtedness" means
all indebtedness, liabilities, and obligations of Borrower to Guarantor,
including obligations under leases, whether such indebtedness, liabilities, and
obligations now exist or are hereafter incurred or arise, or whether the
obligations of Borrower thereon are direct, indirect, contingent, primary,
secondary,
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several, joint and several, or otherwise, and irrespective of the person or
persons in whose favor such indebtedness, obligations, or liabilities may, at
their inception, have been, or may hereafter be created, or the manner in which
they have been or may hereafter be acquired by Guarantor.
10. No amendment or waiver of any provision of this Guaranty
Agreement nor consent to any departure by the Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Lender.
No failure on the part of Lender to exercise, and no delay in exercising, any
right, power, or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power, or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power, or privilege. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
11. This Guaranty Agreement is for the benefit of Lender. This
Guaranty Agreement is binding not only on Guarantor, but on Guarantor's heirs
and personal representatives.
12. Guarantor recognizes that Lender is relying upon this Guaranty
Agreement and the undertakings of Guarantor hereunder in making extensions of
credit to Borrower under the Loan Agreement and further recognizes that the
execution and delivery of this Guaranty Agreement is a material inducement to
Lender in entering into the Loan Agreement. Guarantor hereby acknowledges that
there are no conditions to the full effectiveness of this Guaranty Agreement.
13. This Guaranty Agreement is executed and delivered as an incident
to a lending transaction negotiated, consummated, and performable in Xxxxxx
County, Texas, and shall be governed by and construed in accordance with the
laws of the State of Texas. Except as provided in the Arbitration Agreement (as
defined in the Loan Agreement), any action or proceeding against Guarantor
under or in connection with this Guaranty Agreement may be brought in any state
or federal court in Xxxxxx County, Texas, and Guarantor hereby irrevocably
submits to the nonexclusive jurisdiction of such courts, and waives any
objection it may now or hereafter have as to the venue of any such action or
proceeding brought in such court. Guarantor agrees that service of process upon
it may be made by certified or registered mail, return receipt requested, at
its address specified in the Loan Agreement. Except as provided in the
Arbitration Agreement, nothing herein shall limit the right of Lender to bring
any action or proceeding against Guarantor or with respect to any of
Guarantor's property in courts in other jurisdictions. Except as provided in
the Arbitration Agreement, any action or proceeding by Guarantor against Lender
shall be brought only in a court located in Xxxxxx County, Texas.
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14. Guarantor shall pay on demand all reasonable attorneys' fees and
all other costs and expenses incurred by Lender in connection with the
administration, enforcement, or collection of this Guaranty Agreement.
15. Guarantor hereby waives promptness, diligence, notice of any
default under the Guaranteed Indebtedness, demand for payment, notice of
acceptance of this Guaranty Agreement, presentment, notice of protest, notice
of dishonor, notice of the incurring by Borrower of additional indebtedness,
and all other notices and demands with respect to the Guaranteed Indebtedness
and this Guaranty Agreement.
16. The Loan Agreement, and all of the terms thereof, are
incorporated herein by reference, the same as if stated verbatim herein, and
Guarantor agrees that Lender may exercise any and all rights granted to it
under the Loan Agreement and the other Loan Documents (as defined in the Loan
Agreement) without affecting the validity or enforceability of this Guaranty
Agreement. Any notices given hereunder shall be given in the manner provided by
and to the addresses set forth in the Loan Agreement.
17. Guarantor hereby represents and warrants to Lender that Guarantor
has adequate means to obtain from Borrower on a continuing basis information
concerning the financial condition and assets of Borrower and that Guarantor is
not relying upon Lender to provide (and Lender shall have no duty to provide)
any such information to Guarantor either now or in the future.
18. THIS GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
INDEBTEDNESS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER
EXTRINSIC EVIDENCE OF ANY NATURE. THERE ARE NO ORAL AGREEMENTS BETWEEN
GUARANTOR AND LENDER. THIS GUARANTY AGREEMENT MAY NOT BE AMENDED EXCEPT IN
WRITING BY GUARANTOR AND LENDER.
DATED AND EXECUTED as of August 15, 1997.
GUARANTOR:
/s/ XXXXXX X. XXXXX, XX.
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XXXXXX X. XXXXX, XX.
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