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Home My WebLink AboutShiel Sexton - Agmt Regarding Amendment of Letter of Credit and Reimbursement Agmt and Related Documents - 2/1/2006 • AGREEMENT REGARDING AMENDMENT OF LETTER OF CREDIT, LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT, AND RELATED DOCUMENTS THIS AGREEMENT REGARDING AMENDMENT OF LETTER OF CREDIT, LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT, AND RELATED DOCUMENTS ("Agreement") is made and entered into as of the 1st day of February, 2006 (the "Effective Date"), among CARMEL REDEVELOPMENT COMMISSION ("CRC"), SHIEL- SEXTON COMPANY, INC., an Indiana corporation ("Shiel"), ANDREW SHIEL, MICHAEL DILTS, BRIAN SULLIVAN (collectively, the "Individual Guarantors," and together with Shiel and SSD, the "Guarantors", and JPMORGAN CHASE BANK, N.A. (successor by merger to Bank One,N.A. (Main Office Chicago), successor by merger with Bank One, Indiana, National Association) (the"Bank"). Recitals 1. CRC and the Bank are parties to a Letter of Credit and Reimbursement Agreement dated as of December 1, 2001 (the "Reimbursement Agreement"), pursuant to which the Bank has issued its Irrevocable Letter of Credit No. 330836 (formerly numbered "STI 18841") (the "Letter of Credit") to Merchants Trust Company, N.A. (f/k/a First Merchants Bank, N.A.), as Trustee (the "Trustee") under the Trust Indenture dated as of December 1, 2001,between the Trustee and CRC. 2. The Guarantors, SSD Investments, LLC, an Indiana limited liability company ("SSD") and the Bank are parties to Guaranty Agreement dated as of December 1, 2001, pursuant to which the Guarantors and SSD Investments, LLC have guaranteed payment and performance of the Obligations of CRC under the Reimbursement Agreement (the "Original Guaranty," and together with the Reimbursement Agreement, the "Prior Agreements"). 3. CRC and the Guarantors have requested the Bank to extend the expiration date of the Letter of Credit for an additional five years, to release SSD from its obligations under the Guaranty, and to release the Mortgage, and the Bank is willing to do the same,subject to the terms and conditions set forth in this Agreement. Agreement NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements of the parties herein, each of CRC, the Guarantors, and the Bank agree as follows: 1. Definitions. Terms used in this Agreement with their initial letters capitalized and which are not defined herein are used herein with the meanings ascribed to them in the Prior Agreements. BDDB01 4284133v3 V3 xi ltiAftv.lovio, ,;-4*.: .!.,t. -vokkviekori- '.'4eis-§rN*-S4.4,:-*W-le,tz,t14.`--:444,,'7.P'/:44t-',:','‘. 174Aw'' .i.- 4Ki‘,W44;4, 744r1/4- '-'"7440r-1`4'l' , 'if', '41te4-V4 "'‘'. Ali*,::p 4 T41U.;-0.4p4V44.4f4.1S3,5 ,,,,.',At, fiP, fr44,-. , tr?f,4144:443,,4' 2. Extension of Expiration Date of Letter of Credit. Upon satisfaction of the conditions precedent set forth in Section 6 below, the Bank shall issue to the Trustee an amendment of the Letter of Credit in form and substance as Exhibit A attached hereto. 3. Amendment of Reimbursement Agreement. Subject to satisfaction of the conditions precedent set forth in Section 6 below, the Reimbursement Agreement is amended as follows: (a) All references to the "Bank" therein shall mean JPMorgan Chase Bank,N.A.. (b) All references to the "Guarantors" therein shall mean the Individual Guarantors and Shiel. 4. Amendment of Guaranty. Subject to satisfaction of the conditions precedent set forth in Section 6 below, the Bank shall enter into an Amended and Restated Guaranty Agreement (the "Guaranty"), with Shiel and the Individual Guarantors, in form and substance as Exhibit B, and SSD shall thereby be released from its obligations under the Original Guaranty. 5. Release of Mortgage. Subject to satisfaction of the conditions precedent set forth in Section 6 below, the Bank shall release the Mortgage. 6. Conditions. The obligation of the Bank to execute and to perform this Agreement shall be subject to full satisfaction of the following conditions precedent on or before the Effective Date: (a) The Bank shall have received copies, certified as of the Effective Date, of such organizational documents and resolutions of Shiel as the Bank may request evidencing necessary action by Shiel to obtain necessary authorization for the execution and performance of this Agreement and all other agreements or documents delivered pursuant hereto. (b) This Agreement shall have been duly executed by CRC and each of the Guarantors, and delivered to the Bank. (c) The Guaranty shall have been duly executed by each of the Guarantors, and delivered to the Bank. (d) CRC shall have executed and delivered to the Bank a Promissory Note in form and substance as Exhibit C attached hereto. (e) The Bank shall have received from the Trustee a completed Certificate in the form of Exhibit D, certifying as to the principal of the Project Bonds paid prior to the Effective Date, the principal amount of the Outstanding Bonds, the maximum amount of interest that could accrue on the Project Bonds, the Interest Stated -2- BDDBOI 4284133v3 1g`s�.r�444:ftt Ml t"-.i>'' ,. "" 4+1F "a'-# Y?' c"'.-,. n- A `� '. ,jF s•r,. k'e xv4 L r,.* k s., .:t, p t.,e a fti,, + reNV*2?,!" 3' ,.:.fire?z F� � .: kc44101*` 1 1 T « 4'� .�y j-0' i �?Y , � „ td�1 - t ',, ,Ifi ,-r1,^ASPA=n n�+4 �'` a r � �a a 'tyC :m sue' ' .. '+ ,�i�t ,4i .._�. J r P,a U '2- �. .ivi,a. .k'. - n'fx"N�r 'k c,� :mss .gym .0 Amount, the Principal Stated Amount, and the Stated Amount, all as of the Effective Date and in substance satisfactory to the Bank. (f) The Guarantors shall have paid all costs and expenses incurred by the Bank in connection with the negotiation, preparation, and closing of this Agreement and the other documents and agreements delivered pursuant hereto, including the reasonable fees and out-of-pocket expenses of Baker& Daniels LLP, special counsel to the Bank. (g) CRC and the Guarantors shall have delivered to the Bank such additional legal opinions, agreements, documents, and certifications, fully executed by CRC and the Guarantors, as may be reasonably requested by the Bank, including, without limitation a current certificate of existence for Shiel issued by the Indiana Secretary of State. 7. Guarantor Consent/Affirmation. CRC, Shiel, and each Individual Guarantor, by their execution of this Agreement, expressly consent to the execution, delivery, and performance by each of the others and the Bank of this Agreement, including without limitation, the release of SSD from its obligations under the Original Guaranty and the release of the Mortgage, and further consent to the execution, delivery, and performance of the Guaranty, and agree that neither the provisions of this Agreement or the Guaranty, nor any action taken or not taken in accordance with the terms of this Agreement or the Guaranty shall constitute a termination, extinguishment, release, or discharge of any of their respective obligations under the Prior Agreements, or provide a defense, set off, or counter claim to any of them with respect to any of such obligations. Each of CRC, Shiel, and each Individual Guarantor affirms to the Bank that each Prior Agreement, as amended by or pursuant to this Agreement, and each other Related Document to which it is a party remains in full force and effect and is its valid and binding obligation. CRC, Shiel, and each Individual Guarantor further acknowledge and agree that neither the provisions of this Agreement nor any actions taken or not taken pursuant to or in reliance upon the terms of this Agreement, including without limitation the execution, delivery and performance of the Guaranty, shall constitute a novation of any Prior Agreement or any of the Related Documents, all of which remain in full force and effect in accordance with their respective terms. 8. Binding on Successors and Assigns. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors, assigns and legal representatives. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. 9. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana, without regard to its principles of conflicts or choice of law rules. -3- BDDBOt 4284133v3 l' '4 L P '. . Y f" 6 3 K :;t 5 a` V M A `� hh d s ' ' ; 4 41. Sn41 F # A74144141` t � 4` T.... '�3^ � a ry m, :„ 6 # 11 7 � t • 44174"k <} eief tx .s+ r, 10. Survival. All covenants, agreements, undertakings, representations, and warranties made in this Agreement shall survive the execution and delivery of this Agreement, and shall not be affected by any investigation made by any party. 11. Entire Agreement. This Agreement constitutes and expresses the entire understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings, commitments, inducements or conditions with respect thereto,whether express or implied,oral or written. 12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one agreement. IN WITNESS WHEREOF, CRC, Shiel, each Individual Guarantor, and the Bank have executed this Agreement as of the l5`day of February, 2006. SHIEL-SEXTON COMPANY, INC. By: Name: Andrew K. Shiel Title: Chief Executive Officer Andrew K. Shiel Michael T. Dilts Brian Jr. Sullivan CARMEL REDEVELOPMENT COMMISSION By: Name: Title: -4- BDDBOI 4284133v3 � �.+�� S £ �`' �� +nN'. ..✓j� �'� � ,—,�"tat''`s` ��l�- ��"'"`, «c '`�a;. ��.';� Y �:nv�. ,'�#', }"£� j. 4 #� 4 n 'n 4+'— '.�.=: d z r aY � r a.� fi x. . b 1 s WT.:A'q K fir,{ y ? . : �t v 1._4 t_ Ya r gee °.. 7. JORGAN CHASE BANK,N.A. By:PM Name: Title: 0 -5- BDDB01 4284133x3 y..� 1 "3�y,`i9 ky ^' i rs' g =� '�a 'v.:. ° n +v v." . i; , ' ` r',Fi ^, " a a ii' S"'Et.��i}w�,k a J^L"�..7 '�°7 3�,�," my� �'f ' n +a.• S k'� }�.x �. t• 'SF � �� ,fn ,d �^ k qy �,r 'c , +.`, • — r� €s r 'bal k �,,, ' z {. Y..t xtx`. + PI t, ..F r 4y Cpl 1r F '� ,�. • �r - „„TT`` • # `T,�,1 4 k.'�Y'\ 55 _ ,V�'. y a4. F �a`� .r. :6 .2 d.�yht 11. Entire Agreement. This Agreement constitutes and expresses the entire understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings, commitments, inducements or conditions with respect thereto, whether express or implied, oral or written. 12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one agreement. IN WITNESS WHEREOF, CRC hiel, each Individual Guarantor, and the Bank have executed this Agreement as of the 1St day 4 Fee ruary, 2116. S 1 L-SE O 11;0 INC. BY: •.� #AA • ame:Andrew K. hie e: Chief Executive Of d . -,Z)Q 4 Andrew K. Shiel Michael. Dilts A LUlI L; /Brian J. �uvan CARMEL REDEVELOPMENT COMMISSION I �� By / e:` 7<c 4}04,"—0 .r Title: fi— S/(')e,7,— JPMORGAN CHASE BANK,N.A. 4 h. By: �. ►. Name: _ _ • ,+ . E 15 Title: -4- BDDBOI 4284133v2