--------------------------------------------------------------------------------
BOND GUARANTY AGREEMENT
Dated February 1, 1999
by
ALCOOL, INC.
in favor of
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
As Trustee
This instrument prepared by:
Xxxx X. Xxxxxxx
Xxxxxx & Xxxxxx, P.C.
P. O. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Parties ............................................................................1
Recitals ............................................................................1
ARTICLE I
Provisions of General Application
SECTION 1.01 Definitions.................................................................2
SECTION 1.02 Action Taken Directly or Indirectly.........................................3
SECTION 1.03 Governing Law...............................................................3
SECTION 1.04 Other Provisions............................................................3
SECTION 1.05 Effect of Hearings and Table of Contents....................................3
ARTICLE II
Guaranty
SECTION 2.01 Guaranty of Payment of Bonds................................................3
SECTION 2.02 Trustee to Draw on Letter of Credit.........................................4
SECTION 2.03 Character of Obligations Hereunder..........................................5
ARTICLE III
Determination of Taxability
SECTION 3.01 Payments by the Guarantor ..................................................8
SECTION 3.02 No obligation to Contest or Appeal..........................................8
ARTICLE IV
Events of Default and Remedies
SECTION 4.01 Events of Default...........................................................8
SECTION 4.02 Remedies....................................................................9
SECTION 4.03 Limitation on Suits.........................................................9
SECTION 4.04 Unconditional Right of Bondholders to Receive
Principal, Premium and Interest............................................10
SECTION 4.05 Application of Money Collected.............................................10
SECTION 4.06 Agreement to Pay Attorneys' Fees...........................................10
(i)
SECTION 4.07 Waiver of Past Defaults....................................................10
SECTION 4.08 No Additional Waiver Implied by One Waiver.................................10
SECTION 4.09 Remedies Subject to Applicable Law.........................................11
(ii)
ARTICLE V
Miscellaneous
SECTION 5.01 Consent to Service of Process..............................................11
SECTION 5.02 Benefit of the Agreement...................................................11
SECTION 5.03 Notices....................................................................11
SECTION 5.04 Amendments.................................................................12
SECTION 5.05 Reproduction of Documents..................................................13
SECTION 5.06 Survival...................................................................13
SECTION 5.07 Successors and Assigns.....................................................13
SECTION 5.08 Effective Date of Agreement................................................13
SECTION 5.09 Entire Agreement; Counterparts.............................................14
SECTION 5.10 Severability...............................................................14
SECTION 5.11 Date of Identification Purposes Only.......................................14
SECTION 5.12 Exceptions to Covenants....................................................14
SECTION 5.13 Subrogation................................................................14
SECTION 5.14 Termination of Agreement...................................................14
SECTION 5.15 Rights of Guarantor under other Financing Documents........................14
Testimonium ...........................................................................15
Signatures ...........................................................................15
(iii)
BOND GUARANTY AGREEMENT
THIS BOND GUARANTY AGREEMENT dated as of February 1, 1999 is entered
into by Alcool, Inc. (the "Guarantor") for the benefit of SouthTrust Bank,
National Association, a national banking association with a principal place of
business in Montgomery, Alabama (the "Trustee"), as trustee under the indenture
referred to below.
Recitals
Pursuant to and for the purposes expressed in Division 1 of Article 4
of Chapter 54 of Title 11 of the Code of Alabama 1975, as amended, (the
"Enabling Law"), the Issuer has duly authorized the creation, execution and
delivery of Variable/Fixed Rate Industrial Development Revenue Bonds (Alcool,
Inc. Project) Series 1999, dated the date of delivery and payment therefor (the
"Bonds") pursuant to a Indenture dated February 1, 1999 (the "Indenture") from
the Issuer to SouthTrust Bank, National Association, as trustee (the "Trustee")
to finance a "project" within the meaning of the Enabling Law, as more
particularly described herein (the "Project").
Simultaneously with the issuance of the Bonds the Issuer and the
Guarantor will enter into a Lease Agreement dated February 1, 1999 (the "Lease
Agreement"), whereby the Issuer will agree to lease the Project Equipment to the
Guarantor and the Guarantor will agree to pay rentals to the Issuer at such
times and in such amounts as shall be sufficient to pay when due the principal
of, premium (if any) and interest on the Bonds and the purchase price of Bonds
tendered for purchase pursuant to the mandatory or optional tender provisions of
the Indenture.
The Bonds shall be limited obligations of the Issuer payable solely out
of the rentals payable by the Guarantor pursuant to the Lease Agreement and any
other revenues, rentals or receipts derived by the Issuer from the leasing or
sale of the Project Equipment.
As additional security for the payment of Debt Service on the Bonds,
the Guarantor will enter into this Bond Guaranty Agreement dated February 1,
1999 in favor of the Trustee, whereby the Guarantor will guarantee payment when
due of Debt Service on the Bonds.
As additional security for the payment of the Bonds, SouthTrust Bank,
National Association, (in its capacity as issuer of the initial letter of credit
referred to below, the "Bank") will issue an irrevocable letter of credit in
favor of the Trustee in the amount of (i) the aggregate principal amount of the
Bonds, to enable the Trustee to pay the principal amount of the Bonds when due
and to pay the principal portion of the purchase price of Bonds tendered (or
deemed tendered) for purchase, plus (ii) interest on the Bonds for a period of
50 days at the rate of 13% per annum, to enable the Trustee to pay interest on
the Bonds when due and to pay the interest portion of the purchase price of
Bonds tendered (or deemed tendered) for purchase. The initial letter of credit
to be delivered to the Trustee and any substitute letter of credit delivered to
the Trustee pursuant to the Indenture are herein referred to as the "Letter of
Credit."
The initial Letter of Credit will be issued by the Bank pursuant to
application by the Guarantor to the Bank and a Credit Agreement dated February
1, 1999 (the "Credit Agreement")
1
between the Bank and the Guarantor whereby the Guarantor will agree, among other
things, to pay the Bank for all amounts drawn by the Trustee pursuant to the
initial Letter of Credit.
As security for the Guarantor's obligations under the Credit Agreement,
the Issuer and the Guarantor shall execute a Mortgage, Security Agreement and
Assignment of Rents and Leases dated as of February 1, 1999 in favor of the
Bank, whereby the Issuer and the Guarantor will mortgage the Project Equipment
and assign the Guarantor's interest in the Lease Agreement and revenues
therefrom to the Bank.
NOW, THEREFORE, for and in consideration of the premises, the
consummation by the Issuer and the Trustee of the transactions contemplated by
the Indenture and the Lease Agreement and the purchase of the Bonds by all
holders thereof, the Guarantor hereby covenants, agrees and binds itself as
follows:
ARTICLE I
Provisions of General Application
SECTION 1.01 Definitions
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
"Beneficial Owners" shall mean the owners of the beneficial interests
in the Bonds.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Default" shall mean an event or condition the occurrence of which
would, with or without the lapse of time or the giving of notice or both, be an
Event of Default.
"Event of Default" shall mean an event as defined in Article VI.
"Financing Participants" shall have the meaning ascribed in Section
2.03(xiv).
"Holder" shall mean the Beneficial Owners of any of the Bonds or a
former Beneficial Owner of any of the Bonds entitled to enforce any rights
hereunder.
"Lien" shall mean any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest or lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease assignment or bailment for
security purposes. For the purposes of this Agreement, the Guarantor shall be
deemed to be the owner of any Property which it has acquired or holds or hold
subject to a conditional sale agreement,
2
financing lease or other arrangement pursuant to which title to the Property has
been retained by or vested in some other person for security purposes.
"Material Adverse Effect" shall mean any act or circumstance or event
which (i) causes an Event of Default or Default, (ii) otherwise might be
material and adverse to the financial condition or business operations of the
Guarantor or (iii) would adversely affect the validity or enforceability of any
of the papers executed in connection with the Bonds.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, an association, a trust, a limited liability company, an
unincorporated organization and a government or any department, agency or
political subdivision thereof.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
SECTION 1.02 Action Taken Directly or Indirectly
Where any provision in this Agreement refers to action to be taken by
any Person, or which such Person is prohibited from taking, such provision shall
be applicable whether such action is taken directly or indirectly by such
Person.
SECTION 1.03 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Alabama.
SECTION 1.04 Other Provisions
(1) Capitalized terms used herein without definition shall have the
meaning assigned to them in the Indenture.
(2) Singular terms shall include the plural as well as the singular,
and vice versa.
(3) All references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
subdivisions of this instrument as originally executed.
(4) The terms "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
SECTION 1.05 Effect of Hearings and Table of Contents
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
3
ARTICLE II
Guaranty
SECTION 2.01 Guaranty of Payment of Bonds
The Guarantor hereby absolutely and unconditionally guarantees (i) the
punctual payment when due (whether at stated maturity, by acceleration or call
for redemption or otherwise), in lawful money of the United States of America,
of any and all sums which may become due at any time or from time to time to
each Holder as principal of, purchase price of, premium, if any, and interest on
the Bonds, including interest on any past due amounts of Debt Service or such
purchase price (but without regard to any provision set forth in the Bonds or
the Indenture limiting the sources of payment of amounts becoming due on the
Bonds), (ii) the full and prompt payment of all costs and expenses, including
court costs and reasonable attorneys' fees, incurred by the Trustee or any
Holder in attempting to collect or enforce any such obligations), and (iii) the
prompt payment of all other amounts payable by the Issuer under the Indenture.
If a Holder or the Trustee shall fail to receive any such payment when due as
aforesaid, the Guarantor shall immediately pay to the Holder or the Trustee, as
appropriate, in lawful money of the United States of America, an amount equal to
the required payment; provided, anything herein to the contrary notwithstanding,
there shall be credited against any amounts to be paid to the Holders hereunder
(i) any amount drawn by the Trustee pursuant to the Letter of Credit for the
payment of amounts due such Holders and (ii) all amounts theretofore paid to the
Trustee by the Guarantor pursuant to any of the Financing Documents with respect
to the Bonds held by such Holders.
The guaranty set forth in this Section is an absolute and irrevocable
guaranty of payment and not of collectibility or performance and is in no way
conditioned or contingent upon any attempt to collect from the Issuer or any
other Person or to realize upon any Property subject to the lien of the
Indenture or the Mortgage or upon any other direct or indirect security for the
Bonds, or to resort to any other remedies, except as specifically provided in
Section 2.02.
The guaranty set forth in this Section shall remain in full force and
effect without reference to future changes in conditions, including, to the
extent permitted by applicable law, changes in law, until all Holders shall have
been indefeasibly paid in full all sums due under the terms and provisions of
the Bonds and the Lease Agreement notwithstanding any terms or provisions
contained in the Bonds (including any discharge or termination of the Indenture
as a result of deposits being made with the Trustee), and until such sums are
not subject to rescission or repayment upon any bankruptcy, insolvency,
arrangement, reorganization, moratorium, receivership or similar proceeding
affecting the Issuer or the Guarantor. Each default in payment of Debt Service
shall give rise to a separate cause of action hereunder and separate suits may
be brought hereunder as each cause of action arises.
The Guarantor hereby waives (a) any right (i) to have the Issuer joined
with the Guarantor in any suit brought against the Guarantor on this Agreement,
(ii) to require the Trustee or a Holder to forthwith bring suit against the
Issuer on the Bonds, and (ii) to require that the Trustee or a Holder obtain any
judgment against the Issuer on the Bonds in connection with the enforcement of
any rights
4
against the Guarantor hereunder; (b) notice of acceptance hereof, notice of any
action taken or omitted in reliance hereon, notice of any defaults by the Issuer
in the payment of any such sums, and notice of the creation, renewal, or accrual
of any liability of the Issuer, (c) any presentment, demand, notice or protest
of any kind; and (d) any defense, counterclaim or offset which may in any manner
or to any extent vary the risk of the Guarantor or which might otherwise operate
as a discharge of the Guarantor and (d) all rights of exemption under the
constitution and laws of any state as to any levy on and sale of Property.
SECTION 2.02 Trustee to Draw on Letter of Credit
The Trustee agrees, by acceptance hereof, to submit a draft under the
Letter of Credit, if then in effect, in accordance with its terms, to the extent
of the amounts available to be drawn thereunder to pay amounts then due to the
Holders as principal of, purchase price of, premium (if any) and interest on the
Bonds (whether at stated maturity or due dates, by tender for optional or
mandatory purchase, acceleration, redemption or otherwise), prior to making any
claim or demand upon the Guarantor hereunder for the payment of such amounts.
The Guarantor agrees that honor in whole or in part by the Bank of any draft
upon the Letter of Credit shall not be a condition to the performance by the
Guarantor of its obligations hereunder.
SECTION 2.03 Character of Obligations Hereunder
All obligations of the Guarantor under this Agreement are joint,
several, unconditional, primary, absolute and irrevocable under any and all
circumstances. Without limiting the generality of the foregoing, to the fullest
extent permitted under applicable law, the obligations of the Guarantor
hereunder shall not be subject to or impaired by:
(i) any inability or failure on the part of any party thereto
to perform or comply with the Letter of Credit, the Financing Documents
or the Bonds;
(ii) any invalidity or irregularity in any statutory or other
proceedings relating to the formation or existence of the Issuer, to
the issuance of the Bonds or to the execution and delivery of any
Financing Document;
(iii) any invalidity or unenforceability of, or any
impairment, modification or release of liability of any party under, or
any impossibility, impracticability, illegality or frustration of
performance by any part of, the Letter of Credit, the Financing
Documents or the Bonds, for any reason whatsoever, including, without
limitation, any decision by any court invalidating or otherwise
affecting the obligations of any party under or in connection with the
Letter of Credit, the Financing Documents or the Bonds;
(iv) any inability or failure on the part of the Guarantor to
perform or comply with the Lease Agreement;
5
(v) any invalidity or unenforceability of, or any impairment,
modification or release of liability of the Guarantor under, or any
impossibility, impracticability, illegality or frustration of
performance by the Guarantor of this Agreement;
(vi) the voluntary or involuntary liquidation, dissolution,
merger, consolidation, sale or other disposition of all or
substantially all of the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, moratorium, arrangement, composition with
creditors or readjustment of debt of, or other similar proceedings
affecting, the Issuer (including any payments to be received by the
Issuer under the Lease Agreement in connection with any of the
aforementioned proceedings or events), the Bank or the Guarantor;
(vii) any waiver, consent, extension, indulgence or other
action or inaction in respect of the Letter of Credit, any Financing
Document, or the Bonds, including any modification, amendment or
supplement to any of the foregoing, the renewal or extension of the
Bonds, the release of any Property subject to the Lien of the Indenture
or the Mortgage or the Lease Agreement or any other similar act;
(viii) any right of setoff, counterclaim or defense, or any
act, omission or breach on the part of the Issuer, the Bank or the
Guarantor;
(ix) any claim whatsoever against the Issuer;
(x) any defect in the title, compliance with specifications,
value, condition, design, operation, merchantability, quality,
durability or suitability of, consequences of use or misuse of, or
unfitness for use of, the Project Equipment or any part thereof, any
abandonment, destruction, noncompletion, requisition, foreclosure of or
damage to the Project Equipment or any part thereof, or any event of
force majeure relating to the Project Equipment or any part thereof;
(xi) any breach of any representation or warranty relating to
the Bonds or the Project Equipment;
(xii) any release, extinguishment or satisfaction of the
Issuer's obligations to make payments of Debt Service until there have
been paid to the Trustee or the Holders in lawful currency of the
United States an amount sufficient to pay all Debt Service (including
interest on overdue amounts of Debt Service including, to the extent
permitted by applicable law, interest) that would have been due and
owing to the Holders by the Issuer had the Issuer's obligations not
been so released, extinguished or satisfied;
(xiii) the failure to give notice to the Guarantor of the
occurrence of any default or event of default under the Bonds, the
Letter of Credit or the Financing Documents;
6
(xiv) the compromise, settlement, release or termination of
any or all of the obligations, covenants or agreements of any of the
parties to any of the Financing Documents (the "Financing
Participants") under the Bonds, the Letter of Credit or the Financing
Documents;
(xv) any assignment, pledge or mortgage of all or any part of
the interest of any of the Financing Participants in the Project
Equipment, the Trust Estate or the Collateral;
(xvi) any waiver of the payment, performance or observance by
any of the Financing Participants of any obligation, agreement or
covenant of any of them contained in the Bonds, the Letter of Credit or
the Financing Documents;
(xvii) the extension of the time for payment of Debt Service
on the Bonds or any part thereof or of the time for performance of any
other obligations, agreements or covenants of any of the Financing
Participants under the Bonds, the Letter of Credit or the Financing
Documents;
(xviii) the modification or amendment (whether material or
otherwise) of any obligation, agreement or covenant contained in the
Bonds, the Letter of Credit or the Financing Documents;
(xix) any failure, omission, or delay on the part of any of
the Financing Participants to enforce, assert or exercise any right,
power or remedy conferred upon any of them by the Bonds, the Letter of
Credit or the Financing Documents;
(xx) the bankruptcy, insolvency, reorganization, appointment
of a receiver for, or dissolution of any of the Financing Participants,
or the entering by any or all of them into an agreement of composition
with creditors, or the making by any or all of them of an assignment
for the benefit of creditors;
(xxi) any rights of set-off, recoupment, counterclaim or other
defense, whether similar or dissimilar to the foregoing, which the
Guarantor might otherwise have against any of the Financing
Participants or any other person;
(xxii) the default or failure of any one or more of the
Financing Participants to perform fully any obligation, covenant or
agreement contained in the Bonds, the Letter of Credit or the Financing
Documents;
(xxiii) the release or discharge of any one or more of the
Financing Participants by operation of law, to the extent that such
release or discharge may be lawfully avoided, from the performance or
observance of any agreement or covenant contained in the Bonds, the
Letter of Credit or the Financing Documents;
7
(xxiv) the invalidity or unenforceability of the Bonds, the
Letter of Credit or any of the Financing Documents or of any provision
of such instruments.
The Guarantor acknowledges that this Agreement is executed for the
benefit of the Holders and the Trustee and that the Bonds will be purchased in
reliance on this Agreement. No act of commission or omission of any kind at any
time on the part of the Trustee or any Holder in respect of any matter
whatsoever shall in any way affect or impair any right, power or benefit of the
Trustee, or any Holder under this Agreement and, to the extent permitted by
applicable law, no setoff, claim, reduction, diminution of any obligation, or
any defense of any kind or nature which the Guarantor may have against the
Trustee or any Holder, shall be available against the Trustee or any Holder in
any suit or action brought by the Trustee or any Holder to enforce any right,
power or benefit under this Agreement. Any conflict or ambiguity between this
Agreement and the other Financing Documents shall be interpreted and determined
in the manner most favorable to the Trustee and the Holders.
The representations, warranties and covenants of the Guarantor
contained in this Agreement, and any other document, instrument and agreement
referred to or contemplated by this Agreement, shall remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf
of the Issuer, any Holder or any other Person, or (ii) delivery of, and payment
for, the Bonds.
8
ARTICLE III
Determination of Taxability
SECTION 3.01 Payments by the Guarantor
In connection with a Determination of Taxability, the Guarantor agrees
to pay, in addition to amounts specified in the Bonds, the reasonable fees and
expenses of the Trustee incurred in connection therewith.
SECTION 3.02 No Obligation to Contest or Appeal
No Holder shall have any duty to make any contest of such a
Determination of Taxability or to pursue any appeal of, or have any
communication with the Internal Revenue Service concerning, such Determination
of Taxability.
ARTICLE IV
Events of Default and Remedies
SECTION 4.01 Events of Default
An "Event of Default" shall exist under this Agreement if any of the
following occurs and is continuing (whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) Particular Covenant Defaults. The Guarantor fails to
perform or observe any covenant or agreement contained in Sections 2.01
for a period of five Business Days after the earlier of (i)
notification by the Trustee or a Holder of such failure or (ii) such
other time as the Guarantor shall have actual knowledge thereof.
(b) Other Defaults. The Guarantor fails to comply with any
other provision of this Agreement, and such failure continues for a
period of 30 days after the earlier of (i) notification by the Trustee
or a Holder of such failure or (ii) such other time as the Guarantor
shall have actual knowledge thereof.
(c) Warranties or Representations. Any warranty,
representation or other statement by or on behalf of the Guarantor
contained in this Agreement, or in any instrument furnished in
compliance with or in reference to this Agreement, is false or
misleading in any material respect and action which eliminates such
falsity or misleading character is not completed for a period of 30
days after the earlier of (i)
9
notification by the Trustee or any Holder of such false or misleading
statement or (ii) such other time as the Guarantor shall have actual
knowledge thereof.
(d) Other Defaults. The occurrence of an Event of Default, as
therein defined, under the Indenture or the Lease Agreement and the
expiration of the applicable grace period, if any, specified therein.
SECTION 4.02 Remedies
If a Guaranty Default exists, the Trustee may, subject to its
agreements under Section 2.02, proceed to protect its rights and the rights of
the Holders of the Bonds by suit in equity, action at law or other appropriate
proceedings, whether for the specific performance of any covenant or agreement
of the Guarantor herein contained or in aid of the exercise of any power or
remedy granted to the Trustee under the other Financing Documents and the
Trustee may proceed directly against the Guarantor hereunder without resorting
to any other remedies which it may have and without proceeding against any other
security held by the Trustee.
SECTION 4.03 Limitation on Suits
No Holder shall have any right to institute any proceeding, judicial or
otherwise, under or with respect to this Agreement, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Bonds shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceedings; and
(5) no direction inconsistent with such written consent has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Bonds,
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Agreement to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal and ratable benefit of all Outstanding Bonds.
10
SECTION 4.04 Unconditional Right of Bondholders to Receive Principal,
Premium and Interest
Notwithstanding any other provisions in this Agreement, the Holder of
any Bond shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and interest on such Bond on
the respective stated maturity and due dates expressed in such Bond (or, in the
case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 4.05 Application of Money Collected
Any money collected by the Trustee pursuant to this Agreement shall be
applied to the payment of the whole amount then due and unpaid upon the
Outstanding Bonds for principal (and premium, if any) and interest, in respect
of which or for the benefit of which such money has been collected; and in case
such money shall be insufficient to pay in full the whole amount so due and
unpaid upon such Bonds, then to the payment of such principal (and premium, if
any) and interest, without any preference or priority, ratably according to the
aggregate amount so due.
SECTION 4.06 Agreement to Pay Attorneys' Fees
In the event the Guarantor should default under any of the provisions
of this Agreement and the Trustee (in its own name or in the name and on behalf
of the Holders) should employ attorney or incur other expenses for the
collection of any payments due hereunder or the enforcement of performance or
observance of any agreement or covenant on the part of the Guarantor herein
contained, the Guarantor will on demand therefor pay to the Trustee the
reasonable fees of such attorneys and such other reasonable expenses so
incurred.
SECTION 4.07 Waiver of Past Defaults
(a) Before any judgment or decree for payment of money due has been
obtained by the Trustee, the holders of not less than a majority in principal
amount of the Outstanding Bonds may, on behalf of the Holders of all the Bonds,
waive any past default hereunder and its consequences, except for a default in
the payment of any sums due pursuant to Article II.
(b) Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Agreement and the Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 4.08 No Additional Waiver Implied by One Waiver
If any agreement contained in this Agreement should be breached by the
Guarantor and thereafter waived by the Holders of not less than a majority in
principal amount of the Outstanding Bonds, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
11
SECTION 4.09 Remedies Subject to Applicable Law
All rights, remedies and powers provided by this Article may be
exercised only to the extent the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Article are intended to be subject to all applicable mandatory provisions of law
which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Agreement invalid or unenforceable.
ARTICLE V
Miscellaneous
SECTION 5.01 Consent to Service of Process
The Guarantor irrevocably (a) agrees that any suit, action or other
legal proceeding arising out of this Agreement may be brought in the courts of
record of the State of Alabama or the courts of the United States located in the
State of Alabama; (c) consents to the jurisdiction of each such court in any
such suit, action or proceeding, and (c) waives any objection which the
Guarantor may have to the laying of venue of any such suit, action or proceeding
in any of such courts.
SECTION 5.02 Benefit of the Agreement
This Agreement is entered into by the Guarantor for the benefit of the
Trustee and the Holders from time to time of the Bonds, all of whom shall,
subject to the provisions hereof, be entitled to enforce performance and
observance of each and every provision of this Agreement to the same extent as
if they were parties signatory hereto. The Guarantor hereby expressly waives
notice from the Trustee or the Holders from time to time of the Bonds of their
acceptance and reliance on this Agreement. The Guarantor agrees to pay all
reasonable and necessary costs, expenses and fees, including all reasonable
attorneys' fees, which may be incurred by the Trustee or any Holder in enforcing
or attempting to enforce this Agreement pursuant to the provisions hereof,
whether the same shall be enforced by suit or otherwise.
SECTION 5.03 Notices
(a) Any request, demand, authorization, direction, notice, consent, or
other document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with, the Guarantor or the Trustee shall be sufficient
for every purpose hereunder if in writing and (except as otherwise provided in
this Agreement) either (i) delivered personally to the party or, if such party
is not an individual, to an officer, or other legal representative of the party
to whom the same is directed (provided that any document delivered personally to
the Trustee must be delivered at its Principal Office during normal business
hours) at the hand delivery address specified in Section 16.01 of the Indenture
(with respect to the Trustee) or specified opposite the signature of the
Guarantor hereunder (with respect to the Guarantor) or (ii) mailed by
first-class, registered or certified mail, postage prepaid and addressed as so
specified. Either party may change the address
12
for receiving any such notice or document by giving notice of the change to the
other party as provided in this Section.
(b) Any such notice or other document shall be deemed delivered when
actually received by the party to whom directed (or, if such party is not an
individual, to an officer, or other legal representative of the party) at the
address specified pursuant to this Section, or, if sent by mail, three days
after such notice or document is deposited in the United States mail, proper
postage prepaid, addressed as provided above.
SECTION 5.04 Amendments
(a) This Agreement may not be amended without the prior written consent
of each party hereto and unless there has first been delivered to the Trustee,
the Guarantor and the Remarketing Agent an Opinion of Bond Counsel that such
action will not, whether solely or in conjunction with any other fact or
circumstances, cause the interest on the Bonds to be or to become Taxable.
(b) Without the consent of the Holders of any Bonds, the Guarantor may
from time to time enter into one or more amendments hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to add to the covenants of the Guarantor for the benefit
of the Holders and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Agreement or the Indenture; provided,
however, that with respect to any such additional covenant such
amendment to this Agreement may provide for a particular period of
grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee and the Holders upon such default; or
(2) to surrender any right or power herein conferred upon the
Guarantor; or
(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or to make any other provision, with respect to matters or
questions arising under this Agreement, which shall not be inconsistent
with provisions of this Agreement; provided such action shall not, in
the judgment of the Trustee, adversely affect the interests of the
Holders.
(c) With the consent of the Holders of not less than a majority in
principal amount of the Bonds then Outstanding, the Guarantor may enter into an
amendment hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Trustee or of the Holders under this Agreement;
provided, however, that no such amendment shall, without the consent of the
Holder of each Outstanding Bond affected thereby,
13
(1) reduce the amount, coverage or scope of the obligations
contained in Article II,
(2) change the absolute and unconditional nature of such
obligations, or
(3) reduce the principal amount of Outstanding Bonds, the
Holders of which are required to consent to such amendment, change or
modification.
(d) If the Bank is not in default under the Letter of Credit, no
amendment or change to this Agreement may be made without the prior written
consent of the Bank (as defined in the Indenture).
SECTION 5.05 Reproduction of Documents
The Guarantor hereby agrees that any Financing Document and all
documents relating thereto, including, without limitation, (a) supplements,
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any Holder at any closing of any purchase of the Bonds and
(c) financial statements, certificates and other information previously or
hereafter furnished to the Trustee or any Holder, may be reproduced by the
Trustee or such Holder by any photographic, photostatic, microfilm, microcard,
minature photographic or other similar process and they may destroy any original
document so reproduced. To the extent permitted by law, the Guarantor agrees and
stipulates that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by them
in the regular course of business) and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION 5.06 Survival
All warranties, representations and covenants made by the Guarantor
herein or on any certificate or other instrument delivered by them or on their
behalf under this Agreement shall be considered to have been relied upon by the
Trustee and the Holders regardless of any investigation made by them or on their
behalf. All statements in any such certificate or other instrument shall
constitute warranties and representations by the Guarantor hereunder.
SECTION 5.07 Successors and Assigns
The terms of this Agreement shall inure to the benefit of and be
binding upon the heirs, executors, administrators, successors and assigns of
each of the parties. The provisions of this Agreement are intended to e for the
benefit of all Holders, and shall be enforceable for the benefit of any such
Holder, whether or not an express assignment to such Holder of rights under this
Agreement has been made by any previous Holder or its successors or assigns.
14
SECTION 5.08 Effective Date of Agreement
The obligations of the Guarantor hereunder shall arise absolutely and
unconditionally when the Bonds shall have been issued, sold and delivered by the
Issuer.
SECTION 5.09 Entire Agreement; Counterparts
This Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof and may be executed simultaneously in
several counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
SECTION 5.10 Severability
The invalidity or unenforceability of any one or more phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
validity or enforceability of the remaining portions of this Agreement, or any
part thereof.
SECTION 5.11 Date for Identification Purposes Only
The date of this Agreement is for identification purposes only and is
not intended to indicate that this Agreement was executed on such date.
SECTION 5.12 Exceptions to Covenants
The Guarantor shall not be deemed to be permitted to take any action or
fail to take any action which is permitted as an exception to any of the
covenants contained herein or which is within the permissible limits of any of
the covenants contained herein if such action or omission would result in the
breach of any other covenant contained herein.
SECTION 5.13 Subrogation
Once the Bonds have been Fully Paid by virtue of payments by the
Guarantor under this Agreement, the Guarantor shall be subrogated to all rights
of the Trustee and the Bondholders under the Bonds, the Indenture and the other
Financing Documents.
SECTION 5.14 Termination of Agreement
This Agreement shall terminate when the Bonds have been Fully Paid.
SECTION 5.15 Rights of Guarantor under other Financing Documents
The provisions of this Guaranty Agreement shall not operate or be
construed to limit, restrict, or deny the exercise or enjoyment of any right,
privilege or option in favor of the Guarantor contained in any of the other
Financing Documents.
15
IN WITNESS WHEREOF the Guarantor has caused this Agreement to be
executed under seal, and the Trustee has executed this Agreement by causing its
name to be hereunto subscribed by one of its duly authorized officers, all as of
the day and year first above written.
ALCOOL, INC.
By: /s/
------------------------------------
Its President
ATTEST:
________________________________
Its Secretary
Accepted:
SOUTHTRUST BANK,
NATIONAL ASSOCIATION
By: /s/
----------------------------------
_________________________________ Its_________________________
_________________________________
16
