Shiel 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.
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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
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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.
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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:
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JORGAN CHASE BANK,N.A.
By:PM
Name:
Title:
0
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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
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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:
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