EXHIBIT 10.57
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 OF HOUSTON, INC., a Texan corporation
("Borrower"), pursuant to that certain Loan Agreement of even date herewith,
between Borrower and Lender (such Loan Agreement, an 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, TRANSAMERICAN WASTE INDUSTRIES,
INC., a Delaware corporation (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 Indebtednes", as used herein means all of the
"Obligations", as defined in the Loan Agreement. The term "Guaranteed
Indebtedness" shall include any and all postpetition interest and expenses
(including attorneys' fees) whether or not allowed under any bankruptcy,
insolvency, or other similar law. As of the date of this Guaranty Agreement, the
Obligations include, but are not limited to, (a) that certain promissory note in
the original principal amount of $1,000,000.00, dated as of January 27, 1997,
(b) that certain promissory note in the original principal amount of
$7,500,000.00, dated as of January 27, 1997, executed by Borrower and payable to
the order of Lender and (c) all renewals, extensions and modifications thereof.
2. This instrument shall be an absolute, continuing, 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 set-off,
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 currency 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 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
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otherwise relating to any or all of the Guaranteed Indebtedness; (e) any
adjustment, indulgence, forbearance, waiver, 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 is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation,
is qualified to do business in all jurisdictions in which the nature of
the business conducted by it makes such qualification necessary and
where failure to so qualify would have a material adverse effect on its
business, financial condition, or operations.
(b) Guarantor has the corporate power, 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 respective terms, except as limited by bankruptcy,
insolvency, or other laws of general application relating to the
enforcement of creditor's rights.
(c) The execution, delivery, and performance by Guarantor of
this Guaranty Agreement have been duly authorized by all requisite
action on the part of Guarantor and do not and will
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not violate or conflict with the articles of incorporation or bylaws of
Guarantor or 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.
(d) No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is
necessary for the execution, delivery or performance by Guarantor of
this Guaranty Agreement or the validity or enforceability thereof.
(e) 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 or indirectly.
(f) Each of the representations which Borrower has made
regarding Guarantor in the Loan Agreement are true and correct.
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 the financial statements of
Guarantor described in the Loan Agreement at the times required by the
Loan Agreement.
(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.
(d) Guarantor will be bound by and perform each of the covenants
and agreements which Borrower has made on behalf of
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Guarantor in the Loan Agreement as if Guarantor had made such covenants
and agreements directly with Lender.
9. Upon the occurrence of an Event of Default (as defined in the Loan
Agreement) Lender shall have the right to set off and apply against this
Guaranty Agreement or the Guaranteed Indebtedness or both, at any time and
without notice to Guarantor, subject to the rights of customers of Guarantor or
other contractual obligations of Guarantor related to such funds which are
superior to the rights of Lender, any and all deposits (general or special, time
or demand, provisional or final) or other sums at any time credited by or owing
from Lender to Guarantor whether or not the Guaranteed Indebtedness is then due
and irrespective of whether or not Lender shall have made any demand under this
Guaranty Agreement. In addition to Lender's right of setoff and as further
security for this Guaranty Agreement and the Guaranteed Indebtedness, Guarantor
hereby grants Lender a security interest in all deposits (general or special,
time or demand, provisional or final) and all other accounts of Guarantor now or
hereafter on deposit with or held by Lender and all other sums at any time
credited by or owing from Lender to Guarantor. The rights and remedies of Lender
hereunder are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which Lender may have.
10. Guarantor hereby agrees that the Subordinated Indebtedness shall be
subordinate and junior in right of payment to the prior payment in full of all
Guaranteed Indebtedness, in the manner provided in the next sentence. The
"Subordinated Indebtedness" shall not be payable, and no payment of principal
or, except as provided in the proviso to this sentence, interest on account
thereof, shall be made directly or indirectly, by or on behalf of Borrower or
received, accepted, retained or applied by Guarantor unless and until Borrower
has paid and satisfied in full all the Guaranteed Obligations and Lender has no
further commitment regarding the Guaranteed Obligations; provided, however, that
Borrower may pay to Guarantor and Guarantor may accept from Borrower interest on
the Subordinated Indebtedness if no Event of Default (as defined in the Loan
Agreement) has occurred. If any sums shall be paid to Guarantor by Borrower or
any other person or entity on account of the Subordinated Indebtedness, 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 indebtedness in the amount of $1,250,000
existing on the date of this Guaranty Agreement, whether such indebtedness,
liabilities, and obligations now exist or are hereafter incurred or arise, or
whether the obligations of Borrower
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thereon are direct, indirect, contingent, primary, secondary, 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. Notwithstanding any other provision of this
paragraph to the contrary, Parent Debt (an defined in the Loan Agreement) does
not constitute Subordinated Debt, and, provided that no Event of Default exists
at the time of such payment or would occur as a result of such payment, Borrower
may pay principal of and interest on Parent Debt.
11. No amendment or waiver of any provision of this Guaranty Agreement
or 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.
12. This Guaranty Agreement is for the benefit of Lender and its
successors and assigns, and in the event of an assignment of the Guaranteed
Indebtedness, or any part thereof, the rights and benefits hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty Agreement is binding not only on Guarantor, but on
Guarantor's successors and assigns.
13. 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.
14. This Guaranty Agreement is executed and delivered as an incident to
a lending transaction negotiated, consummated, and performable in ▇▇▇▇▇▇ County,
Texas, and shall be governed by and construed in accordance with the laws of the
State of Texas. Any action or proceeding against Guarantor under or in
connection with this Guaranty Agreement may be brought in any state or federal
court in ▇▇▇▇▇▇ 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
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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. Nothing herein shall
affect the right of Lender to serve process in any other matter permitted by law
or 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. Any action or proceeding by Guarantor against Lender shall be
brought only in a court located in ▇▇▇▇▇▇ County, Texas.
15. 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.
16. Guarantor hereby waives promptness, diligence, notice of any default
under the Guaranteed Indebtedness, demand of 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.
17. 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.
18. 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.
19. 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.
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DATED AND EXECUTED an of January 27, 1997.
GUARANTOR:
TRANSAMERICAN WASTE INDUSTRIES, INC.
By: _______________________
▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President and
Chief Financial Officer
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