THIRD AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10(q)
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
January 26, 2007 among FLORIDA EAST COAST INDUSTRIES, INC., a Florida corporation (the
“Borrower”), certain Subsidiaries of the Borrower as guarantors (the “Guarantors”),
the Lenders party hereto and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and
L/C Issuer (the “Administrative Agent”). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Credit Agreement (defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent are parties to
that certain Credit Agreement, dated as of February 22, 2005 (as previously amended or modified,
the “Credit Agreement”); and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement as more fully set forth
herein.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Amendments to Credit Agreement.
(a) The following definition is added to Section 1.01 of the Credit Agreement in the
appropriate alphabetical order:
"Performance/Completion Guarantee” of any Person means a Guarantee
guaranteeing or having the economic effect of guaranteeing any obligations (other
than payment of Debt) performable or payable, as applicable, by another Person in
any matter (each, a “Primary Obligation”), whether directly or indirectly, and
including, without limitation, any obligation of such Person, direct or indirect,
(i) to purchase (or pay or advance or supply funds for the purchase or payment of)
labor, materials or services to enable the performance of such Primary Obligation
(including, without limitation, guarantees of completion in connection with
construction of facilities), (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such Primary
Obligation of the performance thereof, (iii) to guarantee to any other such Person
rental income levels (or shortfalls) or re-tenanting costs (including, without
limitation, tenant improvements, moving expenses, lease commissions and any other
costs associated with procuring new tenants); or (iv) entered into for the purpose
of assuring in any other manner such other Person in respect of such Primary
Obligation of the performance, or to protect such other Person against loss, in
respect thereof. Performance/Completion Guarantee shall include, without limitation,
any bond, letter of credit or other financial instrument provided by such Person to
secure its obligations described herein unless such bond, letter of credit or
financial instrument shall constitute Debt under this Agreement.
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(b) The definition of Debt set forth in Section 1.01 of the Credit Agreement is amended
by amending and restating clause (d) thereof to read as follows:
(d) all obligations of such Person or consolidated group of Persons in respect of
any Guarantee (other than endorsements of checks for deposit in the ordinary course
of business and other than Performance/Completion Guaranties),
(c) Section 8.05 of the Credit Agreement is amended by adding the following at the end
of such Section:
Notwithstanding the foregoing, one or more Loan Parties may enter into
Performance/Completion Guaranties; provided that the aggregate liability under such
Performance/Completion Guaranties may not exceed $200 million at any one time
outstanding. For the purposes hereof, the liability under any
Performance/Completion Guarantee shall be calculated by taking twenty percent (20%)
of (i) with respect to any Primary Obligation described in subparagraph (i) of the
definition of Performance/Completion Guarantee, the total amount of the project cost
(excluding land cost), or such lesser amount thereof to which the Loan Party’s
obligation is specifically limited or (ii) with respect to any other Primary
Obligation, the maximum amount of such Primary Obligation.
2. Effectiveness; Conditions Precedent. This Amendment shall be and become effective
upon receipt by the Administrative Agent of copies of this Amendment duly executed by the
Borrowers, the Guarantors, and the Required Lenders.
3. Ratification of Credit Agreement. The term “Credit Agreement” as used in each of
the Loan Documents shall hereafter mean the Credit Agreement as amended and modified by this
Amendment. Except as herein specifically agreed, the Credit Agreement, as amended by this
Amendment, is hereby ratified and confirmed and shall remain in full force and effect according to
its terms. Each of the Loan Parties acknowledge and consent to the modifications set forth herein
and agree that this Amendment does not impair, reduce or limit any of its obligations under the
Loan Documents (including, without limitation, the indemnity obligations set forth therein) and
that, after the date hereof, this Amendment shall constitute a Loan Document.
4. Authority/Enforceability. Each of the Loan Parties represents and warrants as
follows:
(a) It has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person and constitutes
such Person’s legal, valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is required in
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connection with the execution, delivery or performance by such Person of this Amendment.
(d) The execution and delivery of this Amendment does not (i) violate, contravene or
conflict with any provision of its, or its Subsidiaries’ organizational documents or (ii)
materially violate, contravene or conflict with any Requirement of Law or any other law,
regulation, order, writ, judgment, injunction, decree or permit applicable to it or any of
its Subsidiaries.
5. No Default. The Loan Parties represent and warrant to the Administrative Agent and
the Lenders that after giving effect to this Amendment, no event has occurred and is continuing
which constitutes a Default or an Event of Default.
6. Release. In consideration of the Administrative Agent and the Required Lenders
entering into this Amendment on behalf of the Lenders, the Loan Parties hereby release the
Administrative Agent, the L/C Issuer, each of the Lenders, and the Administrative Agent’s, the L/C
Issuer’s and each of the Lenders’ respective officers, employees, representatives, agents, counsel
and directors from any and all actions, causes of action, claims, demands, damages and liabilities
of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to
the extent that any of the foregoing arises from any action or failure to act solely in connection
with the Loan Documents on or prior to the date hereof.
7. Counterparts/Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of executed counterparts of this Amendment
by telecopy shall be effective as an original and shall constitute a representation that an
original shall be delivered promptly upon request.
8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be
duly executed and delivered and this Amendment shall be effective as of the date first above
written.
BORROWER:
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FLORIDA EAST COAST INDUSTRIES, INC., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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GUARANTORS:
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FLORIDA EAST COAST RAILWAY, L.L.C., a Florida limited liability company |
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| FEC HIGHWAY SERVICES, INC., a Florida corporation |
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| FLORIDA EXPRESS LOGISTICS, INC., a Florida corporation |
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| FLORIDA EAST COAST DELIVERIES, INC., a Florida corporation |
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| RAILROAD TRACK CONSTRUCTION CORPORATION, a Florida corporation |
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| FLAGLER TRANSPORTATION SERVICES, INC., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Vice President, of each of the above Guarantors |
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| BEACON STATION 22, 23 AND 24 LIMITED PARTNERSHIP, a Delaware limited partnership |
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| By: | GCC BEACON 22, 23 & 24, LLC, is general partner By: FLAGLER DEVELOPMENT COMPANY, LLC, its sole member |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||||||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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| GCC BEACON 22, 23 & 24, LLC, a Florida limited liability company |
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| By: FLAGLER DEVELOPMENT COMPANY, LLC, its sole member |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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| GRAN CENTRAL-DEERWOOD NORTH, L.L.C., a Delaware limited liability company |
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| By: FLAGLER DEVELOPMENT COMPANY, LLC, its sole member |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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| FLAGLER DEVELOPMENT REALTY, LLC, a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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| FLAGLER DEVELOPMENT COMPANY, LLC, a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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| FDC LAND HOLDINGS, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FECI COMPANY, a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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| FECR LAND HOLDINGS, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| BN EXPANSION, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FLAGLER COMMONS, LLC a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| ATLAS PROPERTY II, LLC a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| ATLAS PROPERTY III, LLC a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FLAGLER DEVELOPMENT GROUP, INC. a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Vice President |
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| FLAGLER REAL ESTATE DEVELOPMENT CORPORATION, a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FLAGLER CONSTRUCTION CORPORATION, a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FLAGLER REAL ESTATE SERVICES, INC., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| C&S REAL ESTATE DEVELOPMENT CORP., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| CODINA RESIDENTIAL, INC., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| CODINA RESIDENTIAL, LTD., a Florida limited partnership |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| CODINA/FAIRFIELD I, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| SEVILLA BUILDING, INC., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| SEVILLA BUILDING, LTD., a Florida limited partnership |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| C/XX XXXXXXX, INC., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| C/XX XXXXXXX, LTD., a Florida limited partnership |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| XX XXXXXXX, INC., a Florida corporation |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FLAGLER DORAL, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| BEACON COUNTYLINE, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FEC LAKES, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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| FLAGLER BOCA 54, LLC, a Florida limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx Title: Treasurer |
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ADMINISTRATIVE |
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AGENT:
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BANK OF AMERICA, N.A., as Administrative Agent |
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| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: Xxxxxxx Xxxxxxxx Title: Vice President |
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LENDERS:
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BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender |
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| By: | /s/ Xxxx X. Xxxx | |||
| Name: Xxxx X. Xxxx Title: Senior Vice President |
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| SUNTRUST BANK | ||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxx Title: Vice President |
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| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxxx Title: Senior Vice President |
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| LASALLE BANK, NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx Title: First Vice President |
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