FIFTH AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS FIFTH AMENDMENT TO REIMBURSEMENT AGREEMENT, dated as of September
24, 1997 (this "Amendment"), is by and between THE LANDOVER COMPANY, a
Pennsylvania corporation (the "Company"), and NBD BANK, a Michigan banking
corporation formerly known as NBD Bank, N.A. (the "Bank").
RECITALS
A. The Company and the Bank have entered into that certain
Reimbursement Agreement, dated as of August 1, 1991, as previously amended
pursuant to that certain letter agreement, dated December 30, 1991 and pursuant
to: (1) that certain Second Amendment to Reimbursement Agreement dated March 1,
1993; (2) that certain Third Amendment to Reimbursement Agreement dated December
15, 1994; and (3) that certain Fourth Amendment to Reimbursement Agreement dated
September 30, 1995 (as amended, the "Reimbursement Agreement").
B. The Company has requested that the stated expiry date of the letter
of credit issued in connection with the Reimbursement Agreement be extended to
September 30, 1998, and in connection with such request the parties desire to
amend the Reimbursement Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein and in the Reimbursement Agreement contained, the parties
hereto agree as follows:
ARTICLE 1. AMENDMENTS TO REIMBURSEMENT AGREEMENT
The Reimbursement Agreement hereby is amended as follows:
1.1 Section 1.01 is hereby amended by deleting the
reference therein to "September 30, 1996", (as substituted therein
pursuant to the Fourth Amendment to Reimbursement Agreement referenced
above) and substituting in its place "September 30, 1998."
1.2 The first paragraph of Section 1.02(b) is hereby deleted in its
entirety and the following substituted in its place:
(b) The Company further agrees to pay to the
Bank a commission with respect to the Letter of Credit
(the "Commission"), computed at the rate of one
percent (1%) per annum (the "Commission Rate") on the
maximum amount available to be drawn from time to time
under the Letter of Credit in accordance with the
terms thereof from and including the date of issuance
or extension of the Letter of Credit to and
including the last day a drawing is available under
the Letter of Credit (the "Termination Date"). Such
maximum amount shall include any amount subject to
reinstatement under the terms of the Letter of
Credit.
1.3 The first paragraph of Section 4.01(g) is amended
to read in full as follows:
(g) Optional Redemption of the Bonds.
Exercise its option to call the Bonds for redemption
pursuant to Section 2.03(a) of the Indenture so that
the Bonds are redeemed in part on the following dates
and in the following amounts:
January 1 Amount
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2000 $500,000
2001 500,000
2002 500,000
2003 500,000
2004 500,000
2005 500,000
2006 500,000
2007 500,000
2008 500,000
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
In order to induce the Bank to enter into this Amendment, the Company
represents and warrants to the Bank that:
2.1 The execution, delivery and performance of this Amendment are
within its corporate powers, have been duly authorized by all necessary
corporate action and are not in contravention of any law, rule or regulation, or
any judgment, decree, writ, injunction, order or award of any arbitrator, court
or governmental authority, or of the terms of its Articles of Incorporation or
By-laws, or of any contract or undertaking to which the Company is a party or by
which it or its property is or may be bound or affected.
2.2 This Amendment is legal, valid and binding and enforceable in
accordance with its terms.
2.3 No consent, approval or authorization of or declaration,
registration or filing with any governmental authority or any non-governmental
person or entity, including without limitation any creditor or stockholder of
the Company, is required on the part of the Company in connection with the
execution, delivery and performance of this Amendment or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of this Amendment.
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2.4 After giving effect to the amendments contained in Article 1 of
this Amendment, the representations and warranties contained in the
Reimbursement Agreement are true on and as of the date hereof with the same
force and effect as if made on and as of the date hereof.
ARTICLE 3. MISCELLANEOUS
3.1 All references to the Reimbursement Agreement in any Security
Document or any other document, instrument or certificate referred to in the
Reimbursement Agreement or delivered in connection with or pursuant hereto,
hereafter shall be deemed references to the Reimbursement Agreement, as amended
hereby.
3.2 The Security Documents, any and all certificates executed pursuant
to the Reimbursement Agreement or in connection therewith and, subject to the
amendments herein provided, the Reimbursement Agreement shall in all respects
continue in full force and effect.
3.3 Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Reimbursement Agreement.
3.4 This Amendment shall be governed by and construed in accordance
with the laws of the State of Michigan.
3.5 The Company agrees to pay the reasonable fees and expenses of
Dickinson, Wright, Moon, Van Dusen & Xxxxxxx, counsel for the Bank, in
connection with the negotiation and preparation of this Amendment and the
documents referred to herein and the consummation of the transactions
contemplated hereby, and in connection with advising the Bank as to its rights
and responsibilities with respect thereto.
3.6 This Amendment may be executed upon any number of counterparts with
the same effect as if the signatures thereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first above written.
THE LANDOVER COMPANY
By: /s/ Xxxx X. Xxxx, Xx.
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Its: Secretary/Treasurer
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NBD BANK
By: /s/ Xxxxxxx X. Goodhugh
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Its Vice President
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