THIRD AMENDMENT DATED AS OF JUNE 30, 1997
TO THE
AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED AS OF DECEMBER 5, 1990
AS AMENDED BY
THE FIRST AMENDMENT DATED AS OF SEPTEMBER 30, 1992, AND
THE SECOND AMENDMENT DATED AS OF JUNE 30, 1994
- - - - - - - - - -
THIS THIRD AMENDMENT DATED AS OF JUNE 30, 1997, TO THE AMENDED
AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT DATED AS OF
DECEMBER 5, 1990, as amended (the "Agreement"), is entered into
among FLORIDA ROCK INDUSTRIES, INC., a Florida corporation (the
"Company"), BANK OF AMERICA ILLINOIS (formerly known as Continental
Bank N.A.), an Illinois banking corporation having its principal
office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (in
its individual capacity, "BAI"), as agent (in such capacity, the
"Agent"), XXXXXXX BANK, N.A. ("Xxxxxxx"), SUNTRUST BANK, CENTRAL
FLORIDA, N.A. ("SunTrust"), CRESTAR BANK, N.A. ("Crestar"), FIRST
UNION NATIONAL BANK, (successor by merger to First Union National
Bank of Florida) ("FUNB"), and THE FIRST NATIONAL BANK OF MARYLAND
("FNBM"). BAI, Barnett, SunTrust, Crestar, FUNB and FNBM are
hereinafter collectively referred to as the "Banks" and individually
as a "Bank".
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:
1. Schedule I, as referred to in paragraph 2.1(a)(ii) and
attached to the Agreement, is amended in its entirety in the form
of Schedule I attached to this Third Amendment.
2. Schedule II, as referred to in paragraph 8.4 and attached
to the Agreement, is amended in its entirety in the form of
Schedule II attached to this Third Amendment.
3. Schedule III, as referred to in paragraph 6.7 and
attached to the Agreement, is amended in its entirety in the form
of Schedule III attached to this Third Amendment.
4. Schedule IV, as referred to in paragraph 6.11 and
attached to the Agreement, is amended in its entirety in the form
of Schedule IV attached to this Third Amendment.
5. Schedule V, as referred to in paragraph 6.12 and attached
to the Agreement, is amended in its entirety in the form of
Schedule V attached to this Third Amendment.
6. Schedule VI, as referred to in paragraphs 6.6 and
8.1(c)and attached to the Agreement, is amended in its entirety in
the form of Schedule VI attached to this Third Amendment.
7. In the definitions, "Conversion Date" is changed from
"June 30, 1997" to "June 30, 2000"; and "Available Commitment(s)" and
"Unavailable Commitment(s)" are deleted in their entirety.
8. Section 2.1(a)(I)is hereby amended to read as follows:
"(a) Revolving Loans. To make loans (collectively
called the "Revolving Loans" and individually called a "Revolving
Loan") to the Company, which Revolving Loans the Company may pay,
prepay and reborrow during the period from the date hereof to, but
not including, the Conversion Date, in such amounts as the Company
may from time to time request, but not exceeding in the aggregate
at any one time outstanding the amount (such Bank's "Commitment")
set forth on Schedule I attached to this Third Amendment."
9. Section 2.1(a)(ii) is hereby deleted in its entirety.
10. In Section 3.1(b), the phrase "one-half of one percent
(1/2%) is hereby amended to read " three-eighths of one percent
(3/8 %)."
11. In Section 3.1(c), the phrase "five-eighths of one
percent (5/8%) is hereby amended to read "one-half of one percent
(1/2%)."
12. Section 3.3 is hereby amended to read as follows:
"3.3 Commitment Fee. The Company shall pay in
immediately available funds to the Agent, for the account of each
Bank, a commitment fee equal to 3/16 of 1% per annum on the daily
average of the amount of the unused portion of the Commitment of
such Bank. The commitment fee shall be computed on the basis of
the actual number of days elapsed in a year of 360 days. The
commitment fee shall begin to accrue on (and including) June 30,
1997, and shall be paid quarterly thereafter on the last day of
September, December, March and June of each year."
13. Section 4.4 is hereby amended to read as follows:
"4.4 Reduction or Termination of the Credit. The
Company may from time to time, upon at least three Banking Days'
prior written or telephonic notice received by the Agent (which
shall promptly advise each Bank thereof), permanently reduce the
amount of the Commitments, but only upon payment of the unpaid
principal amount of the Revolving Loans, if any, in excess of the
then reduced amount of the Credit, plus (I) accrued interest to the
date of such payment on the principal amount being repaid, (ii) any
amount required to indemnify the Bank pursuant to Section 2.7 in
respect of such payment, and (iii) the commitment fee on the amount
of each Bank's Commitment so reduced which is accrued but unpaid
through the date of such reduction, it being understood that at no
time may the unpaid principal amount of the Revolving Loans exceed
the aggregate Commitments. Any such reduction shall be in a
minimum amount of $1,000,000 and in an integral multiple of
$100,000. The Company may at any time on like notice terminate the
Credit upon payment in full of (a) the Revolving Loans, (b) accrued
interest thereon to the date of such payment,(c)any amount required
to indemnify the Banks pursuant to Section 2.7 in respect of such
payment, and (d) any other liabilities of the Company hereunder.
The Company shall promptly confirm any telephonic notice of
reduction or termination of the Credit in writing."
14. Section 6.4 is hereby amended to read as follows:
"6.4 Financial Statements. The Company has heretofore
furnished to each Bank the consolidated condensed financial
statements of the Company and its Subsidiaries dated March 31,
1997, and the consolidated financial statements of the Company and
its Subsidiaries dated as of September 30, 1996, reported on by
Deloitte & Touche LLP, independent certified public accountants.
Such financial statements were prepared in accordance with GAAP
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 indicated. The balance sheet and notes contained in the
consolidated condensed financial statements dated March 31, 1997,
show all liabilities, either direct or contingent, which would
normally be reported in accordance with GAAP as of the date thereof
of the Company and the Subsidiaries."
15. Section 6.5 is hereby amended to read as follows:
"6.5 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 March 31, 1997."
16. Section 8.1(b) is hereby amended to read as follows:
"(b) Short Term Indebtedness of the Company, provided
that such indebtedness in an aggregate amount does not at any time
exceed 20% 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
portion of the Commitment which in the aggregate is equal to or
greater than such outstanding Short Term Indebtedness of the
Company for a period of 90 consecutive days, then, only for
purposes of determining the number of days that Short Term
Indebtedness is outstanding, such Indebtedness shall be deemed to
have been reduced by the amount of such unused Commitment during
such period;"
17. Section 9.2(d) is hereby amended to read as follows:
"(d) Opinion. An opinion of LeBoeuf, Lamb, Xxxxxx &
XxxXxx L.L.P., counsel to the Company, addressed to the Agent and
the Banks."
18. Section 11.6 is hereby amended to read as follows:
"11.6 Bank of America Illinois and Affiliates. With
respect to Bank of America Illinois' commitment and any Loans by
Bank of America Illinois under this Agreement and any Note and any
interest of Bank of America Illinois in any Note, Bank of America
Illinois shall have the same rights and powers under this Agreement
and such Note, as any other Bank and may exercise the same as
though it were not the Agent. Bank of America Illinois and its
affiliates may accept deposits from, lend money to, and generally
engage, and continue to engage, in any kind of business with the
Company as if Bank of America Illinois were not the Agent.
19. 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.
20. This Amendment shall become effective as of June 30,
1997.
21. As modified herein, all provisions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed by their duly authorized officers,
all as of the day and year first above written.
FLORIDA ROCK INDUSTRIES, INC.
By:/s/Xxxxx X. Xxxxxxxx
Title: Vice President
Address:
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 904/355-0817
Telephone No.: 904/000-0000
BANK OF AMERICA ILLINOIS
By:/s/ Xxxxx X. Xxxxxxxxx
Title: Managing Director
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. XxXxxxxx
Vice President
Facsimile No.: 212/503-7771
Telephone No.: 212/000-0000
XXXXXXX BANK, N.A.
By:/s/ Xxxxx X. Xxxxxxx
Title: Vice President
Address:
24th Floor, Xxxxxxx Tower
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Vice President
Corp. Banking
Facsimile No.: 904/791-5645
Telephone No.: 904/000-0000
SUNTRUST BANK, CENTRAL
FLORIDA, N.A
By:/s/ H. Xxxxxx Xxxxxxx
Title: Senior Vice President
Address:
000 Xxxxx Xxxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: H. Xxxxxx Xxxxxxx
Xx. Vice President
Facsimile No.: 407/237-6817
Telephone No.: 407/000-0000
CRESTAR BANK, N.A.
By:/s/ Xxxxxxx X. Xxxxxxx
Title: Vice President/Manager
Address:
0000 Xxx Xxxx Xxxxxx X. X.
5th Floor
Corporate Trust Division
Washington, D.C. 20005
Attn: Xxxxxxx X. Xxxxxxx
Vice President/Manager
Facsimile No.: 202/879-6137
Telephone No.: 202/000-0000
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Vice President
Address:
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Vice President
Commercial Banking
Facsimile No.: 904/361-2417
Telephone No.: 904/000-0000
THE FIRST NATIONAL BANK OF
MARYLAND
By:/s/ Xxxxxx X. Xxxxxxxxx
Title: Vice President
Address:
00 Xxxxx Xxxxxxx Xxxxxx,
00xx Floor, National Division
Xxxxxxxxx, Xxxxxxxx 00000
Attn:Xxxxxxx X. Xxxxx
Assistant Vice President
Facsimile No.: 410/545-2047
Telephone No.: 410/000-0000
SCHEDULE I
Bank of America Illinois $15,875,000
Xxxxxxx Bank, N.A. 15,875,000
SunTrust Bank, Central 15,875,000
Florida, N.A.
First Union National Bank 15,875,000
Crestar Bank, N.A. 7,500,000
The First National Bank of 4,000,000
Maryland
TOTALS $75,000,000
SCHEDULE II
FLORIDA ROCK INDUSTRIES, INC.
Certain Notes Receivable
As of March 31, 1997
Xxxxx Concrete Company, Inc. $5,000,000
SCHEDULE III
FLORIDA ROCK INDUSTRIES, INC.
LITIGATION
March 31, 1997
Below is a true and correct description of all litigation
currently pending against the Company or any of the subsidiaries
except (I) litigation in which the amount of controversy is less
that $100,000.00 and (ii) litigation in which the Company believes
that it's potential liability or that of any subsidiary, as the
case may be, is covered by insurance (the reference to insurance
coverage above includes issues reserves for under the Company's
self-insured retention provisions of it's insurance program).
1. Xxxxxxx Xxxx Eagle vs. Coventry Home Assn., et al.
Parents of a minor child, who was killed when a retaining wall
fell on him, are seeking damages against the designer, developer
and/or builder of the retaining wall. A company subsidiary
owned the land, but sold it prior to its development and did not
participate in the development. The Company intends to file a
motion for summary judgment and expects to be dismissed from the
lawsuit.
2. Xxxxx Xxxxx vs. S & G Concrete.
Plaintiff seeks $1,750,000 in damages for personal injuries she
suffered as a result of here vehicle being struck in the rear by
a Company ready mix concrete truck.
3. Xxxxx X. XxXxx vs. Salisbury Towing Corp.
Plaintiff, a former employee of Salisbury Towing Corp., is
seeking damages for injuries suffered his back while working
aboard a Company tug boat. Plaintiff is claiming $500,000 in
compensatory damages.
4. D.C. Metro Area Transit Authority.
The Arundel Corporation (TAC) was a venture partner in
Mergentime, Steers & Arundel, a joint venture that contracted
with the Washington Metro Area Transit Authority (WMATA) to
construct a portion of the subway system in Washington, D. C.
WMATA has filed a claim against the joint venture for alleged
deficiencies in certain isolation pads used in the project. The
scope of the damages is undetermined at this time but TAC's
share of any damages shall be limited to 35% of those of the
joint venture.
SCHEDULE IV
SUBSIDIARIES OF FLORIDA ROCK INDUSTRIES, INC.
as of March 31, 1997
SUBSIDIARY PERCENTAGE OF VOTING STOCK
OWNED BY COMPANY
PART A - SIGNIFICANT SUBSIDIARIES
The Arundel Corporation 100
PART B - OTHER SUBSIDIARIES
Administrative & Accounting, Inc. 100
Cardinal Concrete Co., Inc. 100
Concrete Engineering, Inc.100
D C Materials, Inc. 100
Falcon Concrete Corp 100
Florida Rock Concrete, Inc 100
Xxxxxx Properties, Inc. 000
Xxxxxxxx Xxxx Industries, Inc 100
Mule Pen Quarry Corporation 100
Virginia Concrete Company, Inc. 100
The following companies are wholly owned
subsidiaries of The Arundel Corporation:
ARL Development Corporation (a wholly owned
subsidiary of TBS Enterprises, Inc.) 100
ARL Materials, Inc. 100
ARL Services, Inc. 100
Arundel Risk Managers, Inc. 100
Arundel Sand & Gravel Company 100
BWIP, Inc. 100
XxxXxx/Arundel, Inc. 100
Maryland Stone, Inc. 100
Patapsco Properties, Inc. 000
X & X Concrete Company 000
X & X Prestress Company 100
Xxxxxx Materials Company 100
Salisbury Towing Corporation 100
Scenic Hills, Inc. (a wholly owned sub-
sidiary of TBS Enterprises, Inc.) 100
TBS Enterprises, Inc. 100
Tidewater Materials Corporation 100
Tidewater Quarries, Inc. 100
SCHEDULE V - PART A
FLORIDA ROCK INDUSTRIES, INC. ("FRI")
NOTES, ADVANCES AND INVESTMENTS
(except to joint ventures and subsidiaries
reflected in Schedule V - Parts B and C)
As of March 31, 1997
Trade Accounts receivable converted $ 36,169
to Notes receivable
Notes, accounts and advances
receivable from officers and employees 35,500
Note from sale of auto 3,289
Pablo Creek Country Club stock 120,000
Rio Pinar Country Club stock 500
Note receivable, Myakka River Estates 2,275
Florida Rock Industries, Inc. and
Maryland Rock Industries, Inc.
Industrial Revenue Bonds
Repurchased by the Company:
Xxxxxx County, Florida 1,000,000
Xxxxxx County, Florida 1,000,000
Xxxxxx County, Florida 200,000
Xxxxx County, Florida 400,000
St. Marys County, Maryland 3,750,000
Notes receivable:
Xxxxx Concrete Co., Inc. 5,000,000
CTI, DC, Inc. 218,600
Notes, advances and investments of The Arundel
Corporation and its subsidiaries:
Notes, accounts and advances receivable
from officers and employees 429
Dev Credit Corporation 1,650
Investment Homestead Village 100
Bethlehem Steel Corporation 1,454
PNC-Mortgages Receivable 101,207
PNC-Mortgages Receivable 115,010
J. Xxxxxxx Xxxxxx 68,000
Phoenix Development Corporation 56,500
(Note Receivable from sale of real estate.
Such note is classified as real estate
investment under GAAP)
SCHEDULE V (PART B)
FLORIDA ROCK INDUSTRIES, INC. ("FRI")
LOANS, ADVANCES AND INVESTMENTS
IN CORPORATIONS AND JOINT VENTURES
LESS THAN 80% OWNED
(excludes Florida Rock Industries, Inc.'s equity
in net income or loss of such corporations)
As of March 31, 1997
LOANS, ADVANCES
AND INVESTMENTS
Leesburg Sand Company, Inc. $1,500
(a 50% owned corporation)
Receivable due from Leesburg Sand
Company, Inc. In the normal course
of business on items paid by FRI for $10,000
Leesburg. Reimbursement received
on a monthly basis. Estimated
SCHEDULE V - PART C
FLORIDA ROCK INDUSTRIES, INC. ("FRI")
LOANS, ADVANCES AND INVESTMENTS IN CORPORATIONS
AND JOINT VENTURES 80% OR MORE OWNED AS OF
March 31, 1997
(excludes Florida Rock Industries, Inc.'s equity
in net income or loss of such corporations)
Net advances
to(from)
Subsidiaries of FRI: Investment Subsidiary
VIRGINIA CONCRETE COMPANY, INC. $ 7,582,781 ($66,935,961)
CARDINAL CONCRETE COMPANY 16,000 (13,566,825)
D C MATERIALS, INC. 1,000 (335,090)
CONCRETE ENGINEERING, INC. 5,000 233,546
MARYLAND ROCK INDUSTRIES, INC. 1,000 0
XXXXXX PROPERTIES, INC. 100 (28,801)
ADMINISTRATIVE&ACCOUNTING, INC. 1,000 840,907
FALCON CONCRETE CORPORATION 25,000 7,889,601
FLORIDA ROCK CONCRETE, INC. 26,340,676 (32,952,897)
THE ARUNDEL CORPORATION 85,947,606 6,965,049
MULE PEN QUARRY CORPORATION 9,659,232 10,124,128
Subsidiaries of The Arundel Corporation:
ARL SERVICES, INC. 1,000 662,757
CHESAPEAKE MARINE PARTNERSHIP 3,403,403 (2,040,156)
SCHEDULE V - PART C
FLORIDA ROCK INDUSTRIES, INC. ("FRI")
LOANS, ADVANCES AND INVESTMENTS IN CORPORATIONS
AND JOINT VENTURES 80% OR MORE OWNED AS OF
March 31, 1997
(excludes Florida Rock Industries, Inc.'s equity
in net income or loss of such corporations)
(Page 2)
Net advances
to (from)
Investment Subsidiary
ARUNDEL SAND & GRAVEL COMPANY 500 (114,017)
S&G CONCRETE CO. 900,500 531,839
PATAPSCO PROPERTIES, INC. 60,173 (67,918)
MARYLAND ROCK INDUSTRIES, INC.(a) -0- (3,143,543)
ARUNDEL RISK MANAGEMENT, INC. 100 (33,963)
XXXXXX MATERIALS CORPORATION 1,835,065 31,428,976
MARYLAND STONE, INC. 50,000 7,030,947
S&G PRESTRESS COMPANY 1,265,535 0
XXXXXX/ARUNDEL, INC. 592,889 594,674
SALISBURY TOWING CORP. 1 (515,719)
BWIP, INC. 1,000 (1,020,388)
TBS ENTERPRISES, INC. 18,372,227 4,578,295
TIDEWATER QUARRIES, INC. 4,252,522 10,624,323
TIDEWATER MATERIALS CORPORATION 1,144,503 (830,366)
(a) Company is owned 100% by Florida Rock Industries
SCHEDULE V - PART C
FLORIDA ROCK INDUSTRIES, INC. ("FRI")
LOANS, ADVANCES AND INVESTMENTS IN CORPORATIONS
AND JOINT VENTURES 80% OR MORE OWNED AS OF
March 31, 1997
(excludes Florida Rock Industries, Inc.'s equity
in net income or loss of such corporations)
(Page 3)
INTERCOMPANY ADVANCES AMONG FLORIDA ROCK INDUSTRIES, INC. ("FRI")
AND ITS SUBSIDIARIES
S&G Prestress Company FRI $ 2,528
ARL Development Corp. FRI 5,526,203
TBS Enterprises, Inc. FRI 3,216,000
XxxXxx/Arundel, Inc. FRI 422,901
FRI S&G Concrete 4,434,132
Xxxxxx Materials Corp. FRI 23,149,610
Tidewater Materials Corp. FRI 3,761,618
Tidewater Quarries, Inc. FRI 21,123,161
The Arundel Corporation Virginia Concrete Co. 827,718
Salisbury Towing Corp. Xxxxxx Materials Corp. 77,907
Xxxxxx Materials Corp. Tidewater Materials Corp. 197,408
Xxxxxx Materials Corp. Tidewater Quarries, Inc. 7,572,858
Tidewater Quarries, Inc. Tidewater Materials Corp. 1,858,797
GUARANTEES
FRI has guaranteed a loan payable of Tidewater Quarries, Inc., a
wholly-owned subsidiary of The Arundel Corporation. Such debt is
reflected as debt in FRI's consolidated financial statements and in
Schedule VI of this agreement:
SOVRAN BANK, N.A. $2,019,000
The only other guarantees that FRI and its subsidiaries currently
have outstanding other than the guarantees listed above, are
guarantees under certain Industrial Revenue Bonds. The bonds are
carried in the Company's consolidated financial statements as funded
indebtedness.
Note: Excluded from this Schedule are guarantees of the types
described in Section 8.3(e) and (f) of this Amended and
Restated Revolving Credit and Term Loan Agreement and
guarantees of letters of credit issued on behalf of certain
subsidiaries.
SCHEDULE VI
FLORIDA ROCK INDUSTRIES, INC. ("FRI")
INDEBTEDNESS
March 31, 1997
Lender Secured By Amount
FLORIDA ROCK INDUSTRIES, INC.
Industrial Revenue Bonds:
Xxxxxx County, Florida(a) Real estate, plant & equipment $2,000,000
Xxxxxx County, Florida(a) Real estate, plant & equipment 2,000,000
Xxxxxx County, Florida(a) Real estate, plant & equipment 1,000,000
Xxxxx County, Florida(a) Real estate, plant & equipment 1,700,000
Osceola County, Florida(a) Real estate, plant & equipment 1,200,000
Unsecured Bank Loans:
Revolving Credit Agreement None -0-
Xxxxxxx Bank None 100,000
First Union National Bank of Florida None 100,000
SunTrust Bank, Central Florida, N.A. None 100,000
Other Unsecured Debt:
Oakland Concrete 420,000
Xxxxx 64,444
X.X. Xxxxxxxxx 1,000,000
Power Concrete 572,372
10,256,816
MARYLAND ROCK INDUSTRIES, INC.
Industrial Revenue Bond:
St. Mary's County, Maryland(a) Real estate, plant & equip. 6,000,000
THE ARUNDEL CORPORATION AND ITS SUBSIDIARIES:
Industrial Revenue Bonds Richmond Plant 2,019,000
Secured Debt
Xxxxxxx Real Estate 62,500
Xxxxxx & Xxxx Xxxxxx Real Estate 379,953
C. Xxxxxx Xxxxxxx Real Estate 993,528
C. Xxxxxx Xxxxxxx Real Estate 4,464
1,440,445
GRAND TOTAL $19,716,261
(a) The Company has repurchased a portion of these bonds. See
Schedule V-Part A for a listing of the bonds repurchased.
