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HomeMy WebLinkAboutAmended and Restated Guaranty Agreement between Shiel-Sexton and JPMorgan Chase Bank, NA - 12/1/2001/$1,118,623 AMENDED AND RESTATED GUARANTY AGREEMENT THIS AMENDED AND RESTATED GUARANTY AGREEMENT is executed as of the 1s` day of February, 2006 ("Effective Date"), between and among SHIEL-SEXTON COMPANY, INC., an Indiana corporation ("Shiel"), ANDREW SHIEL, MICHAEL DILTS, BRIAN SULLIVAN (the "Individual Guarantors"), and JPMORGAN CHASE BANK, N.A. (successor by merger to Bank One, N.A. (Main Office Chicago), successor by merger to Bank One, Indiana, N.A.) (the "Bank"). Shiel, the Individual Guarantors, SSD Investments, LLC ("SSD"), and the Bank are parties to a Guaranty Agreement dated as of December 1, 2001 (the "Original Guaranty"). Shiel, the Individual Guarantors, and the Bank are executing this Amended and Restated Guaranty Agreement for the purpose of amending certain provisions of the Original Guaranty and releasing SSD from its obligations under the Original Guaranty. ARTICLE I Definition of Terms Section 1.01. Accounting Terms/Financial Statements. All accounting and financial terms used in this Agreement are used with the meanings such terms would be given in accordance with GAAP, except as may be otherwise specifically provided in this Agreement. Section 1.02. Definitions. The following terms have the meanings indicated when used in this Agreement with the initial letter capitalized: "Agreement" means this Amended and Restated Guaranty Agreement, as amended, modified, supplemented andlor restated from time to time and at any time. "Authorized Officer" means, with respect to Shiel, its Chief Executive Officer. "Bank" has the meaning ascribed to such term in the preamble to this Agreement. "Banking Day" means a day on which the principal offices of the Bank in the City of Indianapolis, Indiana, are open for the purpose of conducting substantially all of the Bank's business activities. "Bankruptcy Code" has the meaning ascribed to that term in Section 2.01 of this Agreement. "Bank Prime Rate" means the per annum rate announced or established by the Bank from time to time as its "prime rate" (it being acknowledged that such BDDBOI 4284347v2 announced or established rate may not necessary be the lowest rate charged by the Bank to any of its customers). "Capital Lease" means, at any time, any lease of property (whether real, personal or mixed) with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP. "Change of Control" means the Individual Guarantors cease to own, in the aggregate, 78% of the Voting Stock of Shiel, calculated on a fully diluted basis, including Convertible Securities convertible into or exchangeable for Voting Stock of such corporation. "Closing Date" means December 1, 2001. "Code" means the Internal Revenue Code of 1986, as amended. "Collateral" means all present and future assets of any Guarantor upon which a Lien is or may hereafter be created, or is purported to be created, by this Agreement or any other Loan Document executed in connection with, pursuant to or by virtue of this Agreement, and all proceeds and products of any of the foregoing. "Company" means Shiel. "Company's Accountants" means Somerset Financial Services or such other independent certified public accounting firm in the United States as is acceptable to the Bank. "Convertible Securities" means evidences of indebtedness, shares of stock or other securities which are convertible into or exchangeable for, with or without payment of additional consideration, shares of common stock, either immediately or upon the arrival of a specified date or the happening of a specified event. "Debt" means, with reference to any Person, as of any date, without duplication: (a) all indebtedness, liabilities and obligations of such Person for borrowed money and its redemption obligations in respect of mandatorily redeemable preferred stock; (b) obligations of such Person to pay the deferred purchase or acquisition price of property (tangible or intangible, real or personal) or services, other than trade accounts payable (if not for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business; (c) all obligations of such Person appearing as a liability on its balance sheet in accordance with GAAP in respect of Capital Leases; (d) all obligations, indebtedness and liabilities which are secured by any Lien on any asset of such Person, whether or not the obligation, indebtedness or liability secured thereby shall have been assumed by such Person; and (e) all obligations, indebtedness and Iiabilities of others similar in character to - 2 - BDDBOI 4284347v1 those described in clauses (a) through (d) of this definition for which such Person is liable, contingently or otherwise, as obligor, guarantor or in any other capacity, or in respect of which obligations, indebtedness or liabilities such Person assures a creditor against loss or agrees to take any action to prevent any such loss (other than endorsements of negotiable instruments for collection in the ordinary course of business), including without limitation all reimbursement obligations of such Person in respect of letters of credit, surety bonds or similar obligations and all obligations of such Person to advance funds to, or to purchase assets, property or services from, any other Person in order to maintain the financial condition of such other Person. Debt of any Person shall include all obligations of such Person of the character described in clauses (a) through (e) above to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP. "Debtor" has the meaning ascribed to that term in Section 2.01 of this Agreement. "Default Rate" has the meaning ascribed to that term in Section 2.02(c) of this Agreement. The Default Rate shall change each day with any change in the Prime Rate. "Environmental Laws" means all federal, state and local laws and implementing regulations, now or hereafter effective during the term of this Agreement, relating to pollution or protection of the environment, including laws or regulations relating to or permitting emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment (including without limitation ambient air, surface water, ground water, or land), or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, industrial wastes, or hazardous substances. Such laws shall include, but not be limited to: (a) the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601 et seq., as in effect from time to time ("CERCLA"); (b) the Resource Conservation and Recovery Act, as amended 42 U.S.C. § 6901 et seq., including the statutes regulating underground storage tanks, 42 U.S.C. 6991-6991h; (c) the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.; and (d) the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq., including the statute regulating the National Pollutant Discharge Elimination System, 33 U.S.C. § 1342. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Event of Default" means any of the events described in Section 7.01 of this Agreement. - 3 - BDDB01 4284347v1 "Federal Funds Rate" means, for any day, the average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published by the Federal Reserve Bank of New York for such day, or, if such rate is not so published for any day, the average of the quotations for such rates received by the Bank from three federal funds brokers of recognized standing selected by the Bank in its discretion from time to time as the opening federal funds rate paid or payable by the Bank in its regional federal funds market for overnight borrowings from other banks. "Financial Statements" includes, but is not limited to, balance sheets, profit and loss statements, and cash flow statements, prepared in accordance with GAAP. "GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time, which shall include the official interpretations thereof by the Financial Accounting Standards Board, consistently applied (from and after the date hereof) and for the period as to which such accounting principles are to apply. Except as otherwise provided in this Agreement, to the extent applicable, all computations and determinations as to accounting or financial matters and all Financial Statements to be delivered pursuant to this Agreement shall be made and prepared in accordance with GAAP (including principles of consolidation where appropriate), and, to the extent applicable, all accounting or financial terms shall have the meanings ascribed to such terms by GAAP. "Governmental Authority" means, collectively, the federal government of the United States, the government of any foreign country that is recognized by the United States or is a member of the United Nations; any state of the United States; any local government or municipality within the territory or under the jurisdiction of any of the foregoing; any department, agency, division, or instrumentality of any of the foregoing; and any court, arbitrator, or board of arbitrators whose orders or judgments are enforceable by or within the territory of any of the foregoing. "Guarantors" means the Company and the Individual Guarantors, collectively, and "Guarantor" means any one of them. "Guaranty Obligations" means the Obligations, as that term is defined in the Reimbursement Agreement. "Hazardous Substance" means any hazardous or toxic substance regulated by any Environmental Laws, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act and the Toxic Substance Control Act, or by any federal, state or local governmental agencies having jurisdiction over the control of any such substance including but not limited to the United States Environmental Protection Agency. - 4 - BDDB01 4284347v1 "Highest Lawful Rate" means the maximum rate of interest which may be charged the Guarantors by the Bank under applicable state or federal usury law or regulation or any other law or regulation, however characterized, limiting the rate of interest which may be charged to corporations. "Indenture" means Trust Indenture dated as of December 1, 2001, between CRC and the Trustee, as the same may be amended, modifed, supplemented or restated from time to time and at any time. "Individual Guarantors" means, collectively, Andrew Shiel, Michael Dilts, and Brian Sullivan, and "Individual Guarantor" means any one of them. "Letter of Credit" means the letter of credit issued by the Bank pursuant to the Reimbursement Agreement, as the same may be amended, modified, extended, renewed or supplemented from time to time and at any time. "Lien" means any mortgage, security interest, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise) or other security interest or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the Uniform Commercial Code as in effect in any jurisdiction, or any other similar recording or notice statute, and any lease having substantially the same effect as the foregoing, but excluding any equipment operating leases and any precautionary filings related thereto). "Loan Documents" means, collectively, this Agreement, the Term Note, and all other instruments, agreements and documents executed and delivered or to be • delivered by all or any of the Guarantors pursuant to or by virtue of this Agreement, as each of the foregoing may be amended, modified, extended, renewed, supplemented and/or restated from time to time and at any time, and when used in the singular form, means any of the Loan Documents, as the context requires. "Material Adverse Effect" means any event, circumstance or condition that could reasonably be expected to have a material adverse effect on (a) the business, operations, financial condition, properties or prospects of the Company or an Individual Guarantor, (b) the ability of the Company or an Individual Guarantor to pay or perform the Obligations to be paid or performed by the Company or Individual Guarantor, (c) the validity or enforceability of any of the Loan Documents, or any material provision thereof or any transaction contemplated thereby, or (d) the rights and remedies of the Bank under any of the Loan Documents. - 5 - BDDB01 4284347v1 "Obligations" means all present and future indebtedness, obligations and liabilities, and all renewals and extensions thereof, now or hereafter owed to the Bank by the Guarantors, whether arising under, by virtue of or pursuant to any of this Agreement, the Term Note, any other Loan Documents, or otherwise, together with all costs, expenses and reasonable attorneys' fees incurred by the Bank in the enforcement or collection thereof, whether such indebtedness, obligations and liabilities are direct, indirect, fixed, contingent, liquidated, unliquidated,joint, several,joint and several, now exist or hereafter arise, or were prior to acquisition thereof by the Bank owed to some other Person. "Other Guarantors" has the meaning ascribed to that term in Section 2.01 of this Agreement. "Person" means an individual, a corporation, a limited or general partnership, a limited liability company, a joint venture, a trust or unincorporated organization, a joint stock company or other similar organization, a government or any political subdivision thereof, a court, or any other legal entity, whether acting in an individual, fiduciary or other capacity. "Plan" means an employee pension benefit plan as defined in ERISA. "Prime Rate" means for any date of determination, a rate of interest per annum equal to the higher of(i) the Bank Prime Rate for such date, and (ii) the Federal Funds Rate for such date, plus One-Half Percent (.50%) per annum. The Prime Rate shall change each day with any change in the Bank Prime Rate or Federal Funds Rate, if applicable. "Regulatory Change" means at any time after the Closing Date (a) any change in existing, or any introduction or adoption of new, United States federal, state or foreign laws, regulations, treaties or directives (including Regulation D of the Board of Governors of the Federal Reserve System), (b) any change in the interpretation of the foregoing by any Governmental Authority charged with the administration or interpretation thereof, or (c) any change in the manner in which existing guidelines of any federal or state governmental authority are enforced. "Reimbursement Agreement" means that certain Letter of Credit and Reimbursement Agreement dated as of December 1, 2001, between Carmel Redevelopment Commission and the Bank, as the same may be amended, modified, supplemented, renewed and/or restated from time to time and at any time. "Related Documents" has the meaning ascribed to such term in the Reimbursement Agreement. "Shiel" has the meaning ascribed to that term in the preamble to this Agreement. - 6 - BDDB01 4284347v1 "SSD" has the meaning ascribed to that term in the preamble to this Agreement. "Term Loan" has the meaning ascribed to such term in Section 2.02 of this Agreement. "Term Loan Maturity Date" means the earlier of (a) the day immediately preceding the fifth anniversary of the date of the Term Note, and (b) the date to which the Bank accelerates the maturity of the Term Loan in accordance with Section 7.02 of this Agreement. "Term Note" has the meaning ascribed to such term in Section 2.02(b) of this Agreement. "Unmatured Event of Default" means any event specified in Section 7.01 of this Agreement, which is not initially an Event of Default, but which would, if uncured, become an Event of Default with the giving of notice or the passage of time or both. "Voting Stock" means, with respect to any Person, all classes of capital stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency)to vote in the election of directors of such Person. ARTICLE II Guaranty and Term Loan Section 2.01. Guaranty. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of credit given, being given and to be given, and of other financial accommodations afforded or to be afforded by the Bank to Cannel Redevelopment Commission ("Debtor"), each of the Guarantors hereby unconditionally guarantees, jointly and severally, the full and prompt payment when due of the Guaranty Obligations (as defined herein), together with all costs, attorneys' fees and expenses paid or incurred by Bank in endeavoring to collect the Guaranty Obligations. This Agreement is an absolute and unconditional guarantee of the payment of the Guaranty Obligations, and shall continue and be in full force and effect until all of the Guaranty Obligations shall be fully paid and no further Guaranty Obligations may thereafter arise. Each Guarantor acknowledges that certain other Persons guaranty or may guarantee payment of all or part of the Guaranty Obligations (such Persons being referred to herein collectively as the "Other Guarantors"). Each Guarantor acknowledges and agrees that such Guarantor's liability with respect to the Guaranty Obligations shall not be diminished, discharged, released or otherwise affected in any way in the event any of the Other Guarantors fails to execute a guaranty of the Guaranty Obligations, fails to be bound thereby or hereby, fails to perform thereunder or hereunder or in the event that such guaranty shall be invalid or unenforceable in whole or in part for any reason. - 7 - BDDB01 4284347v1 Each Guarantor expressly waives presentment for payment, demand, notice of demand and of dishonor and nonpayment of the Guaranty Obligations, protest and notice of protest, diligence in collecting and in the bringing of suit against any other party, and Bank shall be under no obligation to notify any Guarantor of its acceptance of this Agreement or of any advances made or credit extended on the faith hereof or the failure of Debtor to pay any of the Guaranty Obligations as they mature, or to use diligence in preserving the liability of any Person (including, without limitation, Debtor) on the Guaranty Obligations or in bringing suit to enforce collection of the Guaranty Obligations. To the full extent allowed by applicable law, each Guarantor waives all defenses given to sureties or guarantors at law or in equity other than the actual payment of the Guaranty Obligations and waives, to the full extent allowed by applicable law, all defenses based upon questions as to the validity, legality or enforceability of the Guaranty Obligations. Bank, without authorization from or notice to any Guarantor and without impairing or affecting the liability of any Guarantor hereunder, may from time to time at its discretion and with or without valuable consideration, alter, compromise, accelerate, extend or change the time or manner for the payment of any or all of the Guaranty Obligations owed to it, increase or reduce the rate of interest thereon, take and surrender security, exchange collateral by way of substitution, or in any way it deems necessary take, accept, withdraw, subordinate, alter, amend, modify or eliminate collateral, add or release or discharge endorsers, guarantors or other obligors (including, without limitation, Debtor) make changes of any sort whatever in the terms of payment of the Guaranty Obligations owed to it or of doing business with Debtor, settle or compromise with Debtor or any other Person or Persons liable on the Guaranty Obligations owed to it (including, without limitation, Debtor) and direct the order or manner of sale of any security or collateral, all on such terms at it may see fit, and may apply all moneys received from Debtor or others, or from any security or collateral held by it (whether held under a security instrument or not) in such manner upon the Guaranty Obligations owed to it (whether then due or not) as it may determine to be in its best interest, without in any way being required to marshal securities or assets or to apply all or any part of such moneys upon any particular part of the Guaranty Obligations. It is specifically agreed that Bank is not required to retain, hold, protect, exercise due care with respect thereto or perfect security interests in or otherwise assure or safeguard any collateral or security for the Guaranty Obligations. No exercise or nonexercise by Bank of any right or remedy of Bank shall in any way affect any of Guarantor's obligations hereunder or any security furnished by any Guarantor or give any Guarantor any recourse against Bank. The liability of each Guarantor hereunder shall continue notwithstanding the incapacity, death, disability, dissolution or termination of any other or others (including, without limitation, Debtor). Neither (i) the failure of Bank to file or enforce a claim against the estate (either in administration, bankruptcy or other proceeding) of Debtor or of any other or others, (ii) the disallowance or avoidance under the Federal Bankruptcy Code (11 U.S.C. § 101 et seq., as amended) (the "Bankruptcy Code") of all or any portion of Bank's claims for repayment of the Guaranty Obligations or any security for the Guaranty Obligations, (iii) the use of cash or non- cash collateral under Section 363 of the Bankruptcy Code or any financing, extension of credit by Bank or grant of security interest to Bank under Section 364 of the Bankruptcy Code, nor (iv) any election of Bank in a proceeding instituted under the Bankruptcy Code, including without - 8 - BDDB01 4284347v1 limitation any election of the application of Section 1111(b)(2) of the Bankruptcy Code, shall affect the liability of any Guarantor hereunder; nor shall any Guarantor be released from liability if recovery from Debtor or any other Person becomes barred by any statute of limitations or is otherwise restricted or prevented. Bank shall not be required to pursue any other remedies before invoking the benefits of the guaranty of payment contained herein, and specifically it shall not be required to exhaust its remedies against Debtor or any surety or Other Guarantor or to proceed against any security now or hereafter existing for the payment of any of the Guaranty Obligations. Bank may maintain an action on this Agreement, whether or not Debtor is joined therein or separate action is brought against Debtor. Each Guarantor absolutely and unconditionally covenants and agrees that in the event Debtor defaults in payment of the Guaranty Obligations, or any part thereof, for any reason, when such becomes due, either by its terms or as the result of the exercise of any power to accelerate, such Guarantor on demand and without further notice of dishonor and without any notice with respect to any matter or occurrence having been given to such Guarantor previous to such demand, shall pay the Guaranty Obligations. Each Guarantor further agrees that to the extent Debtor, any Guarantor or any other Person makes a payment or transfers an interest in any property to Bank or the Bank enforces any security interest or lien or exercises any rights of set-off, and such payment or transfer or proceeds of such enforcement or set-off, or any portion thereof, are subsequently invalidated, declared to be fraudulent or preferential, or otherwise is avoided, and/or required to be repaid to Debtor, Debtor's estate, a trustee, receiver or any other Person under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such avoidance or repayment, the Guaranty Obligations or part thereof intended to be satisfied shall be revived and this Agreement shall continue to be effective or shall be reinstated, as the case may be, and continued in full force and effect as if said payment or transfer had not been made or such enforcement or set-off had not occurred. The payment by a Guarantor of any amount pursuant to this Agreement shall not in any way entitle such Guarantor to any right, title or interest (whether by way of subrogation or otherwise) in and to any of the Guaranty Obligations or any proceeds thereof, or any security therefor. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR THE REIMBURSEMENT AGREEMENT, EACH GUARANTOR HEREBY UNCONDITIONALLY WAIVES: (1) ANY CLAIM OR OTHER RIGHT, NOW EXISTING OR HEREAFTER ARISING, AGAINST DEBTOR OR ANY OTHER PERSON PRIMARILY OR CONTINGENTLY LIABLE TO BANK FOR ALL OR ANY PART OF THE GUARANTY OBLIGATIONS, WHICH ARISES FROM OR BY VIRTUE OF THE EXISTENCE OR PERFORMANCE OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION: (A) ANY RIGHT OF SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNIFICATION, OR OTHER RIGHT TO PAYMENT, WHETHER OR NOT SUCH RIGHT IS REDUCED TO JUDGMENT, LIQUIDATED, UNLIQUIDATED, FIXED, CONTINGENT, MATURED, UNMATURED, DISPUTED, UNDISPUTED, LEGAL, EQUITABLE, SECURED OR UNSECURED; OR (B) ANY RIGHT TO AN EQUITABLE - 9 - BDDBO 14284347v 1 REMEDY FOR BREACH OF PERFORMANCE IF SUCH BREACH GIVES RISE TO A RIGHT TO PAYMENT, WHETHER OR NOT SUCH RIGHT TO AN EQUITABLE REMEDY IS REDUCED TO A JUDGMENT, FIXED, CONTINGENT, MATURED, UNMATURED, DISPUTED, UNDISPUTED, SECURED OR UNSECURED; AND (2) ANY RIGHT TO PARTICIPATE OR SHARE IN ANY RIGHT, REMEDY OR CLAIM OF BANK AGAINST ANY OF DEBTOR'S INCOME OR ASSETS OR WITH RESPECT TO ANY COLLATERAL OR OTHER SECURITY FOR ALL OR ANY PART OF THE GUARANTY OBLIGATIONS OR ANY OTHER RIGHT OR CLAIM OF BANK OF RECOURSE TO AND WITH RESPECT TO ANY ASSETS, INCOME OR PROPERTIES OF DEBTOR. Each Guarantor represents and warrants to Bank that (i) Guarantor is solvent; (ii) the execution and delivery of this Agreement by such Guarantor was not undertaken by such Guarantor with the "intent to hinder, delay, or defraud" (within the meaning of Indiana Code §32-18-2-14 and §548(a)(1) of the Bankruptcy Code) creditors or any other Persons; and (iii) that neither this Agreement nor the payment or performance by such Guarantor of its obligations arising under or pursuant to this Agreement do or are intended to render such Guarantor insolvent, undercapitalized or in a condition of financial stringency; and (iv) the Agreement is a legal, valid and binding obligation of such Guarantor, enforceable in accordance with its terms. If at any time any portion of the obligations of a Guarantor under this Agreement shall be determined by a court of competent jurisdiction to be invalid, unenforceable or avoidable, the remaining portion of the Guaranty Obligations under this Agreement shall not in any way be affected, impaired, prejudiced or disturbed thereby and shall remain valid and enforceable to the full extent permitted by applicable law. Notwithstanding anything in this Agreement to the contrary, the liability of each Guarantor hereunder shall be limited to the maximum amount which would not result in any one of the following conditions: (1) this Agreement would constitute a fraudulent transfer within the meaning of Section 548(a) of the Bankruptcy Code; (2) this Agreement would constitute a fraudulent transfer within the meaning • of Ind. Code § 32-18-2-1, et seq.; or (3) this Agreement would constitute a fraudulent conveyance or fraudulent transfer within the meaning of any other applicable Federal or state bankruptcy, insolvency or other similar law or judicial decision. All principal of and interest on any and all indebtedness, liabilities and obligations of Debtor to each Guarantor (the "Subordinated Debt"), whether direct, indirect, fixed, contingent, liquidated, unliquidated,joint, several, or joint and several, now or hereafter existing, due or to become due to Guarantor, or held or to be held by such Guarantor, whether created directly or acquired by assignment or otherwise, and whether evidenced by a written instrument or not, shall be expressly subordinated to the Guaranty Obligations. Each Guarantor agrees not to receive or accept any payment of the Subordinated Debt at any time after and during the continuance of any Event of Default (as defined in the Reimbursement Agreement); and, in the event a Guarantor receives any payment on the Subordinated Debt in violation of the foregoing, such Guarantor - 10 - BDDBOI 4284347v1 will hold any such payment in trust for Bank and forthwith turn it over to Bank. in the form received, to be applied to the Guaranty Obligations. The rights of Bank are cumulative and shall not be exhausted by its exercise of any of its rights under this Agreement or otherwise against any Guarantor or by any number of successive actions until and unless each and all of the obligations of the Guarantors under this Agreement have been fully performed, satisfied and discharged. The failure of any Guarantor to execute or be bound by this Agreement shall not release or affect the liability of any other Guarantor, and the. liability of each Guarantor under this Agreement is not conditioned or contingent upon or subject in any way to obtaining or retaining the primary or secondary liability of any party or parties with respect to all or any part of the Guaranty Obligations (including, without limitation, Debtor and the Other Guarantors). Section 2.02. Term Loan. (a) Amount. The Bank will make a term loan ("Term Loan") to the Individual Guarantors in the principal sum not to exceed the lesser of $1,118,623.00, or the amount of the unpaid Guaranty Obligations at the time such Term Loan is requested by the Individual Guarantors, upon the fulfillment of the following conditions: (i) a drawing of all or substantially all of the Available Amount (as defined in the Reimbursement Agreement) is made under the Letter of Credit as a result of the maturity, mandatory redemption, or acceleration of the Project Bonds, for which the Bank has not been reimbursed in full pursuant to the Indenture and the Reimbursement Agreement; (ii) the Bank has made a demand for payment of the Guaranty Obligations hereunder, and the Guarantors have requested the Bank to make the Term Loan not later than ten (10) days after the date such demand is made; (iii) the Guarantors have acknowledged and confirmed, in a written document in form and substance acceptable to the Bank, their joint and several liability to the Bank for the Guaranty Obligations, and that none of them has any defense, set-off, or counterclaim with respect to such liability; (iv) no Event of Default or Unmatured Event of Default shall have occurred and being continuing unremedied; (v) the Guarantors shall have certified to the Bank in writing that each of the representations and warranties set forth in this Agreement are true and correct on the date such Term Loan is - 1 1 - B DDBOI 4284347v1 to be made (except to the extent such representations expressly relate to an earlier date); and (vii) the Individual Guarantors shall have executed and delivered to the Bank the Tenn Note, and the Company shall have executed and delivered to the Bank the guaranty required under Section 4.01 of this Agreement. (b) Term Note. The joint and several obligation of the Individual Guarantors to pay the Term Loan shall be evidenced by a promissory note (as the same may hereafter be amended, extended, renewed, replaced and/or restated from time to time and at any time, "Term Note") in form and substance acceptable to the Bank. The principal of and interest on the Term Loan and Term Note shall be payable in equal monthly installments in an amount at all times sufficient to amortize the principal of the Term Loan, with interest thereon at the rate(s) provided herein, in full over a term of sixty (60) months, which installments shall be due and payable on the first day of each calendar month, beginning on the first day of the calendar month following the date of the Term Note, and continuing on the first day of each successive calendar month thereafter until the Term Loan Maturity Date, on which date the entire unpaid principal balance of the Term Loan and Term Note shall be due and payable, together with all accrued and unpaid interest. The principal of the Term Loan may be prepaid at any time in whole or in part, provided that any partial prepayment shall be in an amount which is an integral multiple of Ten Thousand Dollars ($10,000), and provided further that all partial prepayments shall be applied to the scheduled installments of principal in the inverse order of their maturities. (c) Interest on the Term Loan. The principal amount of the Term Loan and Term Note outstanding each day from and after the Closing Date shall bear interest until the Term Loan Maturity Date at the Prime Rate. After the Term Loan Maturity Date and until paid in full, the principal amount of the Term Loan and Term Note outstanding from time to time shall bear interest at the Prime Rate, plus 3% per annum (the "Default Rate"). On the Term Loan Maturity Date, the entire unpaid principal balance of the Term Loan and Term Note and all unpaid, accrued interest thereon, shall be due and payable in full without demand. After the Term Loan Maturity Date, interest shall be payable as accrued and without demand. (d) Use of Proceeds of Term Loan . The proceeds of the Term Loan shall be used to pay the Guaranty Obligations. Section 2.03. Other Provisions Applicable to the Obligations. The following provisions are applicable to all of the Obligations: - 12 - BDDB01 4284347v1 (a) Manner of Payment -- Application. Unless otherwise directed by the Bank, all payments of principal and interest on the Term Loan and the other Obligations shall be payable in funds available for the Bank's immediate use to the following account: JPMorgan Chase Bank, N.A. [ABA #111000614 Further Credit S/C Banc One International Corp. Account No. 0109904748 Attention: Standby Letters of Credit for the reference STI 18841-Andrew Shiel-CRC- Carmel Redevelopment] No payment will be considered to have been made until received in such funds. Unless otherwise agreed to, in writing, or otherwise required by applicable law, payments will be applied first to accrued, unpaid interest, then to principal, and any remaining amount to any unpaid collection costs, late charges and other charges, provided, however, upon delinquency or other Event of Default, the Bank reserves the right to apply payments among principal, interest, late charges, collection costs and other charges at their discretion, as determined by the Bank. Except as otherwise provided herein, all prepayments shall be applied to the indebtedness owing hereunder in such order and manner as the Bank may from time to time determine in its sole discretion. (b) Discretionary Debit. The Bank may debit when due all payments of principal and interest due from the Guarantors under the terms of this Agreement or any other Loan Document to any deposit account(s) of any Guarantor carried with the Bank without further authority. (c) Unconditional Obligations and No Deductions. The Guarantors' obligations to make all payments provided for in this Agreement, the Term Note, and the other Loan Documents shall be unconditional and irrevocable. Each such payment shall be made without relief from valuation and appraisement laws and without deduction for any claim, defense or offset of any type, including without limitation any withholdings and other deductions on account of income or other taxes and regardless of whether any claims, defenses or offsets of any type exist. Each such payment shall be made strictly in accordance with the terms of the Loan Documents under all circumstances, including without limitation: (i) any lack of validity or enforceability of the Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which Debtor or any Guarantor at any time against a beneficiary or any transferee of any Letter of Credit or (or any Persons for whom any such transferee may be acting), or any other Person, whether in connection - 13 - BDDBOI 4284347v1 • with this Agreement, the Reimbursement Agreement, the Indenture or any of the Related Documents, the transactions contemplated herein or therein or any unrelated transaction ; (iii) any draft, demand, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by the Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; or (v) the fact that an Event of Default under the Reimbursement Agreement shall have occurred and be continuing. (d) Payment on Non-Banking Days. Whenever any payment to be made under this Agreement, the Term Note, or any other Loan Document shall be stated to be due on a day other than a Banking Day, such payment may be made on the next succeeding Banking Day, and such extension of time shall in such case be included in the computation of payment of fees, if any, and interest thereunder. (e) Calculation of Interest. Interest on all Obligations shall be calculated on the basis of actual days elapsed and that an entire year's interest is earned in three hundred sixty(360) days. (f) Additional Amounts Payable. If any Regulatory Change either shall (a) subject the Bank to any additional tax, duty, charge, deduction or withholding with respect to the Loan (other than a tax measure by the net or gross income of the Bank), or (b) impose or increase any reserve, special deposit or similar requirement on account of the Term Loan not otherwise provided in this Agreement or (c) impose increased minimum capital requirements on the Bank on account of its issuing or maintaining the Term Loan; and if any of the foregoing (i) results in any increase to the Bank in the cost of issuing or maintaining the Term Loan, or making any payment on account of the Term Loan, (ii) reduces the amount of any payment receivable by the Bank under this Agreement with respect to the Term Loan, (iii) requires the Bank to make any payment calculated by reference to the gross amount of any sum received or paid by the Bank pursuant to the Term Loan, or (iv) reduces the rate of return on the Bank's capital to a level below that which the Bank could otherwise have achieved (taking into consideration the Bank's policies with respect to capital adequacy), then the Company shall pay to the Bank, as additional compensation for the Term Loan, such amounts as will compensate the Bank for such increased costs, payments or reductions. Within twenty (20) days after (A) the initial demand therefor and (B) presentation by the Bank of a certificate to the Guarantors containing a • - 14 - BDDB01 4284347v1 statement of the cause of such increased costs, payments or reductions and a calculation of the amounts thereof (which statement and calculation shall be presumed prima facie to be correct), the Guarantors shall pay the additional amount payable measured from the date such change, enactment, adoption or interpretation first affects the Bank. (g) Indemnity. The Guarantors,jointly and severally, agree to protect, indemnify and save the Bank harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys' fees and allocated costs of internal counsel) which the Bank may incur or be subject to as a consequence, direct or indirect, of(a) the issuance of the Letter of Credit, other than as a result of the gross negligence or willful misconduct of the Bank, as determined by a court of competent jurisdiction, or (b) the failure of the Bank to honor a drawing under the Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omissions herein called "Government Acts"). As between each Guarantor, on the one hand, and the Bank, on the other, the Guarantors assume all risks of the acts and omissions of or misuse of the Letter of Credit by the beneficiary of such Letter of Credit. In furtherance and not in limitation of the foregoing, the Bank shall not be responsible and shall have no liability (a) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (c) for failure of the beneficiary of any such Letter of Credit to comply fully with the terms and conditions of the agreement pursuant to which the Letter of Credit was procured and pursuant to which the beneficiary is entitled to draw upon such Letter of Credit; (d) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (e) for errors in interpretation of technical terms; (f) for any loss or delay in the transmission or otherwise of any document required in order to make a draft under any such Letter of Credit or of the proceeds thereof; (g) for the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any draft under such Letter of Credit; (h) for any consequences arising from causes beyond the control of the Bank, including, without limitation, any Government Acts; and (i) for any action taken or omitted by the Bank under or in connection with the Letter of Credit, if taken or omitted in good faith. None of the above shall affect, impair, or prevent the vesting of any of the Banks' rights or powers hereunder. - 15 - BDDB01 4284347v1 ARTICLE III Representations and Warranties Section 3.01. Representations and Warranties. To induce the Bank to enter into this Agreement, the Guarantors represent and warrant to the Bank that: (a) Existence and Authority. Shiel is a corporation duly organized and validly existing under the laws of the State of Indiana. The Company is qualified to do business in every jurisdiction in which: (i) the nature of the business conducted by it or the character or location of properties owned or leased by it, or the residences or activities of its employees, make such qualification necessary; and (ii) failure so to qualify might have a Material Adverse Effect. No jurisdiction in which the Company is not qualified to do business has asserted that the Company is required to be qualified therein. All of the issued and outstanding capital stock of Shiel are owned by the Individual Guarantors. (b) Authorization., No Conflict. The execution and delivery of this Agreement, the execution and delivery of all of the other Loan Documents and the performance by the Company of its obligations under this Agreement and all of the other Loan Documents are within the powers of the Company, have been duly authorized by all necessary action, have received any required governmental or regulatory agency approvals and do not and will not contravene or conflict with any provision of law or of the organization documents of the Company, or of any agreement binding upon the Company or its properties. (c) Validity and Binding Nature. This Agreement and all of the other Loan Documents to which each Guarantor is a party are the legal, valid and binding obligations of such Guarantor, enforceable against such Guarantor in accordance with their respective terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws enacted for the relief of debtors generally and other similar laws affecting the enforcement of creditors' rights generally or by equitable principles which may affect the availability of specific performance and other equitable remedies. (d) Financial Statements. Shiel has delivered to the Bank its audited Financial Statements as of September 30, 2005, and for the fiscal year of such Company then ended and its unaudited interim consolidated Financial Statements as of June 30, 2005, and for the fiscal quarter and partial fiscal year then ended, which Financial Statements have been prepared in accordance with GAAP except, as to the interim statements, for the absence of a statement of cash flows, footnotes and adjustments normally made at year end which are not material in amount. Such Financial Statements present fairly the financial position of Shiel as of the dates thereof and the results of its operations for the periods covered and since the date of the most current Financial Statements provided by Shiel to the - 16 - BDDB01 4284347v1 Bank there has been no material adverse change in the financial position of Shiel and its Subsidiaries or in the results of their operations. (e) Litigation and Contingent Liabilities. Except as set forth on Schedule 3.01(e), no litigation, arbitration proceedings or governmental proceedings are pending or threatened against either Company which would, if adversely determined, have a Material Adverse Effect. Shiel has no material contingent liabilities not provided for or disclosed in the Financial Statements referred to in Section 3.01(d), above. (f) Employee Benefit Plans. Each Plan maintained by the Company is in material compliance with ERISA, the Code, and all applicable rules and regulations adopted by regulatory authorities pursuant thereto, and the Company has filed all reports and returns required to be filed by ERISA, the Code and such rules and regulations. To the knowledge of the Company, no Plan maintained by the Company and no trust created under any such Plan has incurred any "accumulated funding deficiency" within the meaning of Section 412(c)(1) of the Code, and the present value of all benefits vested under each Plan did not exceed, as of the last annual valuation date, the value of the assets of the respective Plans allocable to such vested benefits. The Company has no knowledge that any "reportable event" as defined in ERISA has occurred with respect to any Plan of the Company. (g) Payment of Taxes. Each Guarantor has filed all federal, state and local tax returns and tax related reports which the Guarantor is required to tile by any statute or regulation and all taxes and any tax related interest payments and penalties that are due and payable have been paid, except for such as are being contested in good faith and by appropriate proceedings and as to which appropriate reserves have been established. Adequate provision has been made for the payment when due of all tax liabilities which have been incurred, but are not as yet due and payable. (h) Investment Company Act. The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (i) Regulation U. None of the Guarantors is engaged principally, or as one of its or his important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System. Not more than twenty-five percent (25%) of the assets of the Company consists of margin stock, within the contemplation of Regulation U, as amended. • - 17 - BDDB01 4284347v1 ARTICLE IV Section 4.01. Guaranty of Term Loan. The Term Note shall be guaranteed under a valid and enforceable unconditional guaranty of payment from the Company given pursuant to a written guaranty executed and delivered by the Company, in form and substance acceptable to the Bank. ARTICLE V Affirmative and Negative Covenants Section 5.01. Affirmative Covenants. Until all Obligations terminate or are paid and satisfied in full, the Guarantors shall strictly observe each of the following covenants: (a) Existence. The Company shall preserve and maintain its existence and the right to do business in its jurisdiction of organization and in such other states wherein non-qualification would have a Material Adverse Effect. (b) Reports, Certificates and Other Information. The Guarantors shall furnish to the Bank the following Financial Statements, certificates and other information, in form satisfactory to the Bank: (i) Annual Statements. As soon as available and in any event within one hundred and twenty (120) days after the close of each fiscal year of Shiel, annual audited Financial Statements for Shiel, audited by the Company's Auditors, showing the financial condition and results of operations of Shiel as at the close of such fiscal year and for such fiscal year, all prepared in accordance with GAAP, accompanied by an opinion of the Company's Auditors, which opinion shall be without qualification and shall state that such audited Financial Statements present fairly the financial position of Shiel as of the date of such Financial Statements and the results of its operations and changes in its financial position for the period covered thereby, and that their examination in connection with such Financial Statements has been made in accordance with GAAP. (ii) Interim Quarterly Statements. On or before forty- five (45) days after the close of each fiscal quarter of Shiel, a balance sheet for Shiel as of the close of such fiscal quarter, prepared by Shiel and accompanied by the written certification of an Authorized Officer that such balance sheet has been prepared in accordance with GAAP (except for the absence of footnotes and the failure to include immaterial adjustments customarily done at the close of a fiscal quarter), consistently applied and fairly present the financial position of Shiel as of the close of such fiscal quarter. - 18 - BDDB01 4284347v1 (iii) Tax Returns. Within thirty (30) Banking Days after the filing thereof, a copy of each federal tax return of each of the Individual Guarantors. (iv) Personal Financial Statements. On or before June 30 of each calendar year, current personal Financial Statements of each of the Individual Guarantors. (v) Orders. Prompt notice of any orders in any material proceedings to which any of the Guarantors is a party, issued by any court or regulatory agency, federal or state, and if the Bank should so request, a copy of any such order. • (vi) Notice of Default or Litigation. Immediately upon learning of the occurrence of an Event of Default or Unmatured Event of Default, or the institution of or any adverse determination in any litigation, arbitration proceeding or governmental proceeding which is material to any of the Guarantors, or the occurrence of any event which could have a Material Adverse Effect, written notice thereof describing the same and the steps being taken with respect thereto. (vii) Other Information. From time to time such other information concerning the Guarantors as the Bank may reasonably request. (c) Books, Records and Inspections. The Company shall maintain complete and accurate books and records, and permit access thereto by the Bank for purposes of inspection, copying and audit, and the Company shall permit the Bank to inspect its properties and operations at all reasonable times and upon reasonable notice. (d) Insurance. In addition to any insurance required by any other Loan Documents to which it is a party, the Company shall maintain in full force and effect such insurance as may be required by law and such other insurance, to such extent and against such hazards and liabilities, as is customarily maintained by companies similarly situated. (e) Taxes and Liabilities. Each Guarantor shall pay when due all taxes, license fees, assessments and other liabilities except such as are being contested in good faith and by appropriate proceedings and for which appropriate reserves have been established. (f) Compliance with Legal and Regulatory Requirements. The Company shall maintain material compliance with the applicable provisions of all - 19 - BDDBOI 4284347v1 federal, state and local statutes, ordinances and regulations and any court.orders or orders of regulatory authorities issued thereunder. (g) Employee Benefit Plans. The Company shall maintain any Plan in material compliance with ERISA, the Code, and all rules and regulations of regulatory authorities pursuant thereto and shall file all reports required to be filed pursuant to ERISA, the Code, and such rules and regulations. (h) Issuance of Shares. The Company shall notify the Bank not fewer than thirty (30) days in advance, if the Company shall issue, sell or otherwise dispose of any shares of the capital stock, membership units, or other securities of the Company, or 'rights, warrants or options to purchase or acquire any such shares or securities. Section 5.02. Negative Covenants. Until all Obligations terminate or are paid and satisfied in full, each Guarantor shall strictly observe each of the following covenants: (a) Margin Stock. None of the Guarantors shall use or cause or permit the proceeds of the Term Loan to be used, either directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System, as amended from time to time. (b) Other Agreements. None of the Guarantors shall enter into any agreement containing any provision which would be violated or breached in material respect by the performance of its obligations under this Agreement or under any other Loan Document. (c) Judgments. None of the Guarantors shall permit any uninsured judgment or monetary penalty to be rendered against it in any judicial or administrative proceeding to remain unsatisfied for a period in excess of forty-five (45) days, unless such judgment or penalty is being contested in good faith by appropriate proceedings and execution upon such judgment has been stayed, and unless an appropriate reserve has been established with respect thereto. (d) Hazardous Substances. The Company shall not allow or permit to continue the release or threatened release of any Hazardous Substance in violation of any Environmental Laws on any premises owned or occupied by or under lease to it. (e) Accounting Policies/Change of Business. The Company shall not: (1) change its fiscal year or any of its significant accounting policies except to the extent necessary to comply with GAAP; (2) make any material change in the nature of its business as carried on the Closing Date; and (3) make any change in the management of its business as effective on the Closing Date. - 20 - BDDBOI 4284347v1 ARTICLE VI )Intentionally Omitted.) ARTICLE VII Events of Default--Acceleration Section 7.01. Events of Default. Each of the following shall constitute an Event of Default under this Agreement: (a) Nonpayment of Any Loan. Default in the payment within five (5) days of when due of any of the Guaranty Obligations. (b) Other Material Obligations. Subject to the expiration of any applicable grace period, default by any of the Guarantors in the payment when due, or in the performance or observance of any material obligation of, or condition agreed to by any of the Guarantors with respect to any agreement respecting any material purchase, sale or lease of goods, securities or services , except only to the extent that the existence of any such default is being contested in good faith and by appropriate proceedings and that appropriate reserves have been established with respect thereto. (c) Bankruptcy, Insolvency, etc. Any of the Guarantors admitting in writing its or his inability to pay debts as they mature or an administrative or judicial order of dissolution or determination of insolvency being entered any of the Guarantors; or any of the Guarantors applying for, consenting to, or acquiescing in the appointment of a trustee or receiver for any of the Guarantors or any property of any of them, or any of the Guarantors making a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee or receiver being appointed for any of the Guarantors or for a substantial part of the property of any of the Guarantors and not being discharged within sixty (60) days; or any bankruptcy, reorganization, debt arrangement, or other proceeding under any bankruptcy or insolvency law, or any dissolution or,liquidation proceeding being instituted by or against any of the Guarantors, and, if involuntary, being consented to or acquiesced in by any of the Guarantors, as applicable, or remaining for sixty(60) days undismissed. (d) Warranties and Representations. Any warranty or representation made by any Guarantor in this Agreement, or any of the other Loan Documents or Related Documents proving to have been false or misleading in any material respect when made, or any schedule, certificate, financial statement, report, - 21 - BDDBOI 4284347v1 notice, or other writing furnished by any Guarantor or Debtor to the Bank proving to have been false or misleading in any material respect when made or delivered. (e) Violations of Financial Covenants. Failure by any Guarantor to comply with or perform any covenant in this Agreement. (f) Change of Control. There shall be a Change of Control without the prior written consent of the Bank. (g) Noncompliance With Other Documents. The occurrence of any "Event of Default" or "Default", as such terms are defined in any of the Loan Documents other than this Agreement, the Reimbursement Agreement, the Indenture, or any Related Documents. (h) Termination of Guaranty. The termination or purported termination of any of Section 2.01 of this Agreement. Section 7.02. Effect of Event of Default. If any Event of Default described in Section 7.01(c) of this Agreement shall occur, the maturity of the Obligations (including the Term Loan if it is then outstanding) shall immediately be accelerated and all Obligations shall become immediately due and payable, all without notice of any kind. When any other Event of Default has occurred and is continuing, the Bank may accelerate payment of the Obligations (including the Term Loan if it is then outstanding) and declare the Obligations due and payable, whereupon maturity of the Term Loan shall be accelerated and the Term Note and the Term Loan and all other Obligations that are payment obligations shall become immediately due and payable, all without notice of any kind. The Bank or any other holder of the Term Note shall promptly advise the Guarantors in writing of any such declaration, but failure to do so shall not impair the effect of such declaration. Upon the occurrence of an Event of Default, and a demand therefor by the Bank, the Guarantors shall deposit with the Bank additional Collateral in the form of cash or cash equivalents acceptable to the Bank, in an amount equal to the Available Amount (as such term is defined in the Reimbursement Agreement) to secure the Obligations. Such Collateral shall be of character and value satisfactory to the Bank, and except to the extent it is applied in satisfaction of the Obligations, such Collateral in the form of cash shall be invested by the Bank at the request and direction of the Guarantor depositing it and at such Guarantor's risk, in investments acceptable to the Bank. All interest and income thereon may be held by the Bank as additional Collateral. The remedies of the Bank specified in this Agreement or in any other Loan Document shall not be exclusive, and the Bank may avail itself of any other remedies provided by law as well as any equitable remedies available to the Bank. - 22 - BDDB01 4284347v1 ARTICLE VIII Miscellaneous Section 8.01. Waiver -- Amendments. No delay on the part of the Bank, or any holder of the Term Note in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. No amendment, modification or waiver of, or consent with respect to any of the provisions of this Agreement or the other Loan Documents or otherwise of the Obligations shall be effective unless such amendment, modification, waiver or consent is in writing and signed by the Bank. Section 8.02. Notices. Any notice given under or with respect to this Agreement to the or a Guarantor or the Bank shall be in writing and, if delivered by hand or sent by overnight courier service, shall be deemed to have been given when delivered and, if mailed, shall be deemed to have been given five (5) days after the date when sent by registered or certified mail, postage prepaid, and addressed to such Guarantor or the Bank (or other holder of the Term Note) at its address shown below, or at such other address as any such party may, by written notice to the other party to this Agreement, have designated as its address for such purpose. To Guarantor: At the address stated below such Guarantor's signature on this Agreement To the Bank: JPMorgan Chase Bank, N.A. Suite 1361 111 Monument Circle P.O. Box 7700 Indianapolis, IN 46277-0136 Section 8.03. Costs, Expenses and Taxes. The Guarantors,jointly and severally, agree to pay (without duplication), all of the following fees, costs and expenses incurred by the Bank: (i) all reasonable costs and expenses in connection with the negotiation, preparation, and closing of the Loan Documents and any and all other documents furnished pursuant hereto or in connection herewith, including without limitation the reasonable fees and out-of-pocket expenses of Baker & Daniels LLP, special counsel to the Bank, as well as the fees and out-of-pocket expenses of such counsel in connection with the foregoing and the administration of this Agreement (to the extent they are not reimbursed by Debtor pursuant to the Reimbursement Agreement), (ii) all reasonable costs and expenses in connection with the negotiation, preparation, and closing of any amendments or modifications of(or supplements to) any of the foregoing and any and all other documents furnished pursuant thereto or in connection therewith, including without limitation the reasonable fees and out-of-pocket expenses of counsel retained by the Bank relative thereto (or, but not as well as, the reasonable allocated costs of staff counsel), (iii) all UCC and Lien search fees and costs and all fees and taxes payable in connection with the filing or recording of any Loan Documents or financing statements, and all title and lien search costs and fees, title insurance costs and fees, and fees and costs of appraisals of inventory, equipment, real estate, and other collateral, as the Bank may require from time to -23 - BDDB01 4284347v1 time; and (iv) all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses of the Bank), if any, in connection with the enforcement of this Agreement and/or any other Loan Documents or other agreement furnished pursuant hereto or thereto or in connection herewith or therewith. In addition, the Guarantors shall pay any and all stamp, transfer and other similar taxes payable or determined to be payable in connection with the execution and delivery of this Agreement, or any of the other Loan Documents, or the issuance of the Term Note, or the making of the Loan, and agrees to save and hold the Bank harmless from and against any and all liabilities with respect to or resulting from any delay in paying, or omission to pay, such taxes. Any portion of the foregoing fees, costs and expenses which remains unpaid following the Bank's statement and request for payment thereof shall bear interest from the date of such statement and request to the date of payment at the Default Rate. Section 8.04. Severability. If any provision of this Agreement or any other Loan Document is determined to be illegal or unenforceable, such provision shall be deemed to be severable from the balance of the provisions of this Agreement or such Loan Document and the remaining provisions shall be enforceable in accordance with their terms. Section 8.05. Captions/Time of Essence/Miscellaneous. Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement. Time is of the essence under the Loan Documents. This Agreement may be executed by original or facsimile signatures, in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one agreement. Section 8.06. Governing Law. Except as may otherwise be expressly provided in any other Loan Document, this Agreement and all other Loan Documents are made under and will be governed in all cases by the substantive laws of the State of Indiana, notwithstanding the fact that Indiana conflicts of law rules might otherwise require the substantive rules of law of another jurisdiction to apply. EACH GUARANTOR WAIVES PERSONAL SERVICE IN ANY MANNER REQUIRED OR PERMITTED BY THE INDIANA RULES OF TRIAL PROCEDURE OF ANY AND ALL PROCESS UPON SUCH GUARANTOR AND AGREES THAT ALL SERVICE OF PROCESS MAY BE MADE BY MESSENGER, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY REGISTERED MAIL DIRECTED TO ITS ADDRESS AS STATED IN SECTION 8.02 OF THIS AGREEMENT. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE RIGHT OF THE BANK TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. Section 8.07. Prior Agreements, Etc. This Agreement supersedes all previous agreements and commitments made by the Bank and the Guarantors with respect to the subjects of this Agreement, including, without limitation, any oral or written proposals or commitments made or issued by the Bank. The Guarantors,jointly and severally, agree to indemnify and hold harmless the Bank from and against all liabilities, obligations, losses, damages, penalties, action, judgments, suits, costs (including attorneys' fees), expenses or.disbursements of any kind whatever which may be imposed upon or asserted against the Bank in any way relating to the business operations of any of the Guarantors, execution of this Agreement or any other of the Loan Documents or Related Documents or the performance of its obligations thereunder. It is expressly agreed that the Bank shall not be deemed to control the business activities of any of the - 24 - BDDB01 4284347v1 Guarantors, as a result of this Agreement or the other Loan Documents or the performance thereof. Section 8.08. Successors and Assigns. This Agreement and the other Loan Documents shall be binding upon and shall inure to the benefit of the Guarantors and the Bank and their respective successors and assigns, provided that the rights of each Guarantor under this Agreement shall not be assignable without the prior written consent of the Bank. The Guarantors agree that the Bank may provide any information the Bank may have about the Guarantors or about any matter relating to this Agreement or any other Loan Documents to any of its subsidiaries or affiliates or their successors, or to any one or more purchasers or potential purchasers of the Term Note. The Guarantors agree that the Bank may at any time sell, assign, or transfer one or more interests or participations in all or any part of its rights or obligations in the Term Note to one or more purchasers whether or not related to the Bank. Section 8.09. Waiver of Jury Trial. EACH GUARANTOR AND THE BANK EACH HEREBY VOLUNTARILY, KNOWINGLY, ABSOLUTELY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY TRIAL OR HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN THE BANK AND SUCH GUARANTOR ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY RELATIONSHIP BETWEEN SUCH GUARANTOR AND THE BANK. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE FINANCING DESCRIBED IN THIS AGREEMENT OR IN THE OTHER LOAN DOCUMENTS. NEITHER ANY GUARANTOR NOR THE BANK WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED. Section 8.10. Highest Lawful Rate. Notwithstanding any provision to the contrary contained in this Agreement or in any of the other Loan Documents, it is expressly provided that in no case or event shall the aggregate of(a) all interest on the unpaid balance of the Term Note, accrued or paid from the date hereof, and (b) the aggregate of any other amounts accrued or paid pursuant to the Term Note, or any of the other Loan Documents, which under applicable laws are or may be deemed to constitute interest upon such Debt from the date hereof, ever exceed the maximum rate of interest which could lawfully be contracted for, charged or received on the unpaid principal balance of such Debt. In this connection, it is expressly stipulated and agreed that it is the intent of the Guarantors, and the Bank to contract in strict compliance with Indiana usury laws and with any other applicable state usury laws and with federal usury laws (whichever permit the higher rate of interest) from time to time in effect. In furtherance thereof, none of the terms of this Agreement or any of the other Loan Documents shall ever be construed to create a contract to pay, as consideration for the use, forbearance or detention of money, interest at a rate in excess of the Highest Lawful Rate. Neither any Guarantor, nor any other Person now or hereafter becoming liable for payment of indebtedness pursuant to the Loan - 25 - BDDBOI 4284347v1 Documents (the "Bank Debt") shall ever be liable for interest in excess of the Highest Lawful Rate. If under any circumstances the aggregate amounts paid on the Bank Debt include amounts which by law are deemed interest which would exceed the Highest Lawful Rate, each Guarantor stipulates that such amounts will be deemed to have been paid as a result of an error on the part of the Guarantors and the Bank, and the Person receiving such excess payment shall promptly, upon discovery of such error or upon notice thereof from the Person making such payment, refund the amount of such excess. The parties further stipulate that such refund shall be a sufficient and sole remedy for such error and that no party shall be entitled to any damages or penalties, whether statutory or otherwise, as a result of such error. In addition, all sums paid or agreed to be paid to the holder or holders of the Bank Debt for the use, forbearance or detention of the. Bank Debt shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of the Bank Debt. The provisions of this Section 8.10 shall control all agreements, whether now or hereafter existing and whether written or oral, among the Guarantors and the Bank. - 26 - BDDBO1 4284347v1 IN WITNESS WHEREOF, the Bank, the Company, and the Individual Guarantors, have executed this Amended and Restated Guaranty Agreement as of the date first set forth above. SHIEL-SEXTON COMPANY, INC. By: Name: Andrew K. Shiel Title: Chief Executive Officer Address: 902 North Capitol Avenue Indianapolis, Indiana 46204 Andrew K. Shiel Address: 902 North Capitol Avenue Indianapolis, Indiana 46204 Michael T. Dilts Address: 902 North Capitol Avenue Indianapolis, Indiana 46204 Brian J. Sullivan Address: 902 North Capitol Avenue Indianapolis, Indiana 46204 • JPMORGAN CHASE BANK, N.A. By: Name: Title: - 27 - BDDB01 4284347v1 IN WITNESS WHEREOF, the Bank, the Company, and the Individual Guarantors, have executed this Amended and Restated Guaranty A:; e-pent a of the da - first set forth above. SHI L- T•1 i �`, • N , INC. ► Name: Andrew . Shiel Title: Chief Executive Officer • ddress: 902 North Capitol Avenue Ind ana•, s, I r..Tana 46204 1 � • i drew K. Shiel Address: 902 North Capitol Avenue Indianapolis, Indiana 46204 Michael T.Dilts Address: 902 North Capitol Avenue Indianapolis, Indiana 46204 /Brian J. SUticvan Address! 902 North Capitol Avenue Indianapolis, Indiana 46204 JPMORGAN CHASE BANK,N.A. By: ' !ar Name: . .4 1_ ��4 rl e t Title: V 47 -27 - BDDBOI 4284347v2