FIRST AMENDMENT DATED AS OF SEPTEMBER 30, 1998
TO THE
CREDIT AGREEMENT
DATED AS OF NOVEMBER 15, 1995
- - - - - - - - - -
THIS FIRST AMENDMENT DATED AS OF SEPTEMBER 30, 1998 TO THE CREDIT
AGREEMENT DATED AS OF NOVEMBER 15, 1995 (the "Agreement"), is entered into
among FRP PROPERTIES, INC., a Florida corporation (the "Company"), SUNTRUST
BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION (in its individual capacity,
"SunTrust"), as agent (in such capacity, the "Agent"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, a national bank, successor by
merger to Bank of America Illinois, BARNETT BANK, N. A. (formerly known as
Barnett Bank of Jacksonville, N.A.), ("Barnett") and FIRST UNION NATIONAL
BANK, (successor by merger to First Union National Bank of Florida)
("FUNB")
Recitals:
The Company has requested that the Banks modify the Agreement as set
forth herein. Capitalized terms not otherwise defined herein have the
meanings assigned to them in the Agreement.
Therefore, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to the Company by the Banks, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree that the Agreement is hereby amended
as follows (hereinafter, as amended, the "Agreement"):
Section 1. Clauses (a), (b) and of Section 1.3 are amended in
their entirety to read as follows:
"(a) a sum equal to twenty-five percent (25%) of the
principal balance outstanding on the Commitment Termination
Date shall be payable on November 15, 2001;
"(b) a sum equal to twenty-five percent (25%) of the
principal balance outstanding on the Commitment Termination
Date shall be payable on November 15, 2002; and
"(c) the remaining principal balance outstanding on the
Commitment Termination Date shall be due and payable in full on
November 15, 2003."
Exhibit "A", as referred to in Section 1.3 and attached to the Agreement,
is amended in its entirety in the form of Exhibit "A" attached to this
First Amendment.
Section 2. Section 1.5 is hereby amended to read as follows:
"Section 1.5 Interest on Loans.
"(a) Each Prime Loan shall bear interest on its
principal amount outstanding from time to time at a rate per
annum (computed on the basis of the actual number of days
elapsed over a year of 360 days) (I) from the Closing Date
through November 15, 2000 at a rate per annum equal to the
Prime Rate, and (ii) from November 16, 2000 through November
15, 2003 at a rate per annum equal to the Prime Rate plus 1/4
of 1%. Interest shall be payable on each Prime Loan quarterly
on each Interest Payment Date, commencing with the first of
such dates after the date of such Prime Loan, and at maturity
or the date of conversion of such Prime Loan to a Loan of a
different type.
"(b) Each Certificate of Deposit Loan shall bear
interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) (I) from the Closing Date
through November 15, 2000, at a rate per annum of 3/4 of 1% in
excess of the CD Rate for the Interest Period in effect for
such Loan, (ii) from November 16, 2000 through November 15,
2003, at a rate per annum of 1% in excess of the CD Rate for
the Interest Period in effect for such Loan. Interest shall be
payable on each Certificate of Deposit Loan on each applicable
Interest Payment Date and at maturity or the date of conversion
of such Certificate of Deposit Loan into a Loan of a different
type. The Agent shall determine the applicable CD Rate for
each Interest Period at 10:00 a.m., Atlanta time, on the first
day of the applicable Interest Period, or as soon as
practicable thereafter, and shall notify the Company and the
Banks of the CD Rate so determined. Such determination shall
be conclusive absent manifest error.
"(c) Each Eurodollar Loan shall bear interest (computed
on the basis of the actual number of days elapsed over a year
of 360 days) (I) from the Closing Date through November 15,
2000, at a rate per annum 5/8 of 1% in excess of the LIBOR Rate
for the Interest Period in effect for such Loan, and (ii) from
November 16, 2000 through November 15, 2003, at a rate per
annum 3/4 of 1% in excess of the LIBOR Rate for the Interest
Period in effect for such Loan. Interest shall be payable on
each Eurodollar Loan on each applicable Interest Payment Date
and at maturity or the date of conversion of such Eurodollar
Loan into a Loan of a different type. The Agent shall notify
the Company and the Banks of the applicable LIBOR Rate for each
Interest Period at 10:00 a.m., Atlanta time, or as soon as
practicable thereafter, on the date when the determination is
to be made in respect of such Interest Period. Such
determination shall be conclusive absent manifest error"
Section 3. Section 2.3 is hereby amended to read as follows:
"Section 2.3. Financial Statements.
"The Company has heretofore furnished to each Bank (a)
the consolidated balance sheet of the Company and the
Subsidiaries, dated as of September 30, 1997, and the related
consolidated statements of income, stockholders' equity and
cash flows of the Company for the fiscal year ended on such
date, reported on by Deloitte & Touche LLP, independent
certified public accountants, (b) June 30, 1998 consolidated
balance sheet, income statement and statement of cash flows,
unaudited, and an unaudited consolidated balance sheet dated
August 31, 1998, and the related unaudited consolidated
statement of income of the Company and the Subsidiaries for the
eleven months ended on such date. Such financial statements
were prepared in accordance with generally accepted accounting
principles applied on a consistent basis, are complete and
correct and fairly present the consolidated financial condition
and the consolidated results of operations of the Company and
the Subsidiaries as of the dates and for the periods indicated,
subject, in the case of the aforesaid unaudited statements,
only to normal year-end audit adjustments and the addition of a
cash flow statement (August 31, 1998 statement) and footnotes
thereto. Such balance sheets show all liabilities, either
direct or contingent, which would normally be reported in
accordance with generally accepted accounting principles as of
the respective dates thereof of the Company and the
Subsidiaries."
Section 4. Section 2.4 is hereby amended to read as follows:
"Section 2.4 No Material Adverse Changes.
"There has been no material adverse change in
the condition, financial or otherwise, of the
Company and Subsidiaries, taken and considered
together, since August 31, 1998, except as may be
reflected by this Credit Agreement."
Section 5. Section 3.2 is supplemented by adding a new paragraph at
the end thereof to read as follows:
"On the date of closing of the First
Amendment hereto, the Agent shall have received an
opinion of LeBoeuf, Lamb, Greene & MacRae L.L.P.,
counsel to the Company, addressed to the Agent and
the Banks, as to the legal status and corporate
powers of the Company and the authorization,
execution, delivery and binding effect of the
Credit Agreement, the First Amendment to the Credit
Agreement and the Notes."
Section 6. Clause (b) of Section 5.1 is hereby amended to read as
follows:
"(b) unsecured Short Term Indebtedness of
the Company or a Subsidiary, provided that such
indebtedness does not in an aggregate amount exceed
30% of Consolidated Tangible Net Worth and is not
outstanding for more than 270 days in the aggregate
during any 12-month period; provided, further, that
if there is an unused Commitment which is equal to
or greater that such outstanding unsecured Short
Term Indebtedness of the Company or a Subsidiary
for a period of 90 consecutive days, then such
indebtedness shall be deemed to have been reduced
by the amount of such unused Commitment during such
period;"
Section 7. In Article VII, Definitions, "Commitment Termination
Date" is changed from "November 15, 1998" to "November 15, 2000".
Section 8. Schedule I, as referred to in Sections 5.1(f) and 5.3 and
attached to the Agreement, is amended in its entirety in the form of
Schedule I attached to this First Amendment.
Section 9. Schedule II, as referred to in Section 2.6 and attached
to the Agreement, is amended in its entirety in the form of Schedule II
attached to this First Amendment.
Section 10. Schedule III, as referred to in Section 2.10 and attached
to the Agreement, is amended in its entirety in the form of Schedule III
attached to this First Amendment.
Section 11. Schedule IV, as referred to in Sections 2.11 and 5.3 and
attached to the Agreement, is amended in its entirety in the form of
Schedule IV attached to this First Amendment.
Section 12. Schedule V (Part A and Part B), as referred to in
Sections 2.11 and 5.3 and attached to the Agreement, is amended in its
entirety in the form of Schedule V (Part A and Part B) attached to this
First Amendment.
Section 13. The Company hereby represents and warrants to each of the
Banks that there is no existing Event of Default, or event, which with the
lapse of time or the giving of notice, or both, could become an Event of
Default, under the Agreement and that at the date hereof the principal
balance outstanding on the loans is Fifteen Million and no/100 Dollars
($15,000,000.00), which loans and the Agreement are not subject to claims
or counterclaims by the Company.
Section 14. This Amendment shall become effective as of September
30, 1998.
Section 15. As modified herein, all provisions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed by their duly authorized officers, all as of
the day and year first above written.
FRP PROPERTIES, INC.
By: JAMES J. GILSTRAP
James J. Gilstrap
Title: Treasurer and Chief
Financial Officer
Address:
Post Office Box 4667
Jacksonville, Florida 32201
Facsimile No.: 904/355-0817
Telephone No.: 904/355-1781
SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION
By: SCOTT G. BALKE
Scott G. Balke
Title: Vice President
Address:
200 South Orange Avenue Tower
6th Floor
Orlando, Florida 32801
Attn: Scott G. Balke
Vice President
Facsimile No.: 407/237-4076
Telephone No.: 407/237-5879
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: STEVE A. ARONOWITZ
Steve A. Aronowitz
Title: Managing Director
Address:
335 Madison Avenue
New York, New York 10017
Attn.: Steve A. Aronowitz
Managing Director
Facsimile No.: 212/503-7066
Telephone No.: 212/503-7950
BARNETT BANK, N.A.
By: SUSAN S. DELGADO
Susan S. Delgado
Title: Vice President
Address:
24th Floor, Barnett Tower
50 North Laura Street
Jacksonville, Florida 32202
Attn: Susan S. Delgado
Vice President-Corp.
Banking
Facsimile No.: 904/791-7937
Telephone No.: 904/791-7570
FIRST UNION NATIONAL BANK
By: CHARLES N. KAUFFMAN
Charles N. Kauffman
Title: Vice President
Address:
225 Water Street
Jacksonville, Florida 32202
Attn: Charles N. Kauffman
Vice President - Commercial
Banking
Facsimile No.: 904/361-2417
Telephone No.: 904/361-3662
EXHIBIT A
PROMISSORY NOTE
[Name of Bank]
$[Insert Amount] Camden County, Georgia
September 30, 1998
FOR VALUE RECEIVED, FRP PROPERTIES, INC., a Florida corporation (the
"Company"), DOES HEREBY PROMISE to pay to the order of [Name of Bank] (the
"Bank") at [Bank's address] on the dates specified in the Credit Agreement
hereafter referred to and, if not sooner paid, then in any event on
November 15, 2003, in lawful money of the United States of America, the
principal amount of [Insert Amount] or the aggregate outstanding amount of
the Loan made by the payee hereof to the maker hereof, pursuant to the
Credit Agreement, whichever is less, and to pay interest on the unpaid
principal amount in like money in the manner and at the rate or rates on
the dates specified in the Credit Agreement.
This Note is one of the Notes referred to in, and evidences
indebtedness incurred under, a certain Credit Agreement dated as of
November 15, 1995, as amended by First Amendment dated as of September 30,
1998, between the Company and the Bank and other banks and is subject to
prepayment and the maturity hereof may be accelerated, all as provided in
said Credit Agreement.
FRP PROPERTIES, INC.
By:________________________________
JAMES J. GILSTRAP
Its: Treasurer and Chief Financial Officer
STATE OF GEORGIA
COUNTY OF CAMDEN
On this the __ day of September, 1998, personally appeared James J.
Gilstrap, the Treasurer and Chief Financial Officer of FRP Properties,
Inc., a Florida corporation (the "Borrower"), and before me executed this
Promissory Note in the principal amount of $____________, payable by the
Borrower to ______________ on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Signature of Notary Public, State of Georgia
[NOTARIAL SEAL] [Print, type or stamp commissioned name of
Notary Public]
Personally known __ OR produced
identification
Type of identification produced: