EX-10(p)



 





EXHIBIT 10(p)




SECOND AMENDMENT TO CREDIT AGREEMENT




     This SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
October 16, 2006 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”).



     WHEREAS, Flagler Development Company, Beacon Station 22, 23 and 24 LP and Gran Central –
Deerwood North LLC (collectively, the “MetLife Borrowers”) are borrowers under certain
loans with Metropolitan Life Insurance Company (the “MetLife Lender”) in an aggregate
amount of $352,000,000 (the “MetLife Loans”) and the MetLife Loans require the MetLife
Borrowers to maintain certain levels of windstorm insurance coverage (the “MetLife Insurance
Limit”).



     WHEREAS, the MetLife Borrowers have been unable to obtain insurance in satisfaction of the
MetLife Insurance Limit.



     WHEREAS, the MetLife Lender has agreed to forbear the MetLife Insurance Limit pursuant to that
certain letter agreement dated as of September 29, 2006 attached hereto as Exhibit A;
provided that the MetLife Borrowers meet certain conditions, including, that the MetLife
Borrowers repair damages resulting from windstorm events not covered by insurance (the “MetLife
Obligations”).



     WHEREAS, with respect to the Credit Agreement, the MetLife Obligations are “Guaranties” by
Loan Parties covering the obligations of other Loan Parties and such Guaranties are “Debt.”



     WHEREAS, the parties hereto have agreed to amend the Credit Agreement such that Leverage Ratio
covenant is not effected by the MetLife Obligations, as provided 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. The definition of “Debt” set forth in Section 1.01
of the Credit Agreement is amended by adding the following sentence to the end thereof:




     Notwithstanding anything in this definition to the contrary, for purposes of
calculating the financial covenant in Section 8.15(a), the obligations of Flagler
Development Company, Beacon Station 22, 23 and 24 LP and Gran Central – Deerwood North LLC
(collectively, the “MetLife Borrowers”) with respect to the repair of damages
resulting from a windstorm event not covered by insurance under that certain letter
agreement dated as of September 29, 2006 (the “Forbearance Letter”) with
Metropolitan Life Insurance Company (“MetLife”) shall not be considered “Debt” (it
being understood that should the MetLife Borrowers incur indebtedness to satisfy such
obligations then such indebtedness, while outstanding, shall be considered to be



 









 






“Debt”); provided that the MetLife Borrowers (i) maintain at least $60,000,000
in windstorm insurance coverage (whether self insured or otherwise) in connection with the
properties subject to the obligations to MetLife and (ii) use commercially reasonable
efforts to obtain insurance in satisfaction of the insurance requirements in those certain
loans among the MetLife Borrowers and MetLife as set forth in the Forbearance Letter.



     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
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



2









 




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.



[remainder of page intentionally left blank]




3









 








     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:	 	FLORIDA EAST COAST INDUSTRIES, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Vice President	 	 






	 	 	 	 	 	 	 
	GUARANTORS:	 	FLORIDA EAST COAST RAILWAY, L.L.C.,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 	 	FEC HIGHWAY SERVICES, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 	 	FLORIDA EXPRESS LOGISTICS, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 	 	FLORIDA EAST COAST DELIVERIES, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 	 	RAILROAD TRACK CONSTRUCTION CORPORATION,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 	 	FLAGLER TRANSPORTATION SERVICES, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Vice President, of each of the above Guarantors	 	 






	 	 	 	 	 
	 

	 	BEACON STATION 22, 23 AND 24 LIMITED PARTNERSHIP,

a Delaware limited partnership
	 	 
	 
	 	 	 	 
	 

	 	     By: GCC BEACON 22, 23 & 24, LLC, is general partner	 	 
	 

	 	          By FLAGLER DEVELOPMENT COMPANY,	 	 
	 

	 	               its sole member	 	 






	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	 Vice President	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	GCC BEACON 22, 23 & 24, LLC, a Florida limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	FLAGLER DEVELOPMENT COMPANY,

its sole member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Bradley D. Lehan
	 	 
	 

	 	 	 	 	 	Title:
	 	Vice President	 	 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	GRAN CENTRAL-DEERWOOD NORTH, L.L.C., a Delaware limited

liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	FLAGLER DEVELOPMENT COMPANY,

its sole member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	 	 	 	 	Title:
	 	Vice President	 	 






	 	 	 	 	 	 	 
	 	 	FLAGLER DEVELOPMENT REALTY, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	FLAGLER DEVELOPMENT COMPANY,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	FDC LAND HOLDINGS, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	FEC COMPANY,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	FECR LAND HOLDINGS, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BN EXPANSION, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	FLAGLER COMMONS, LLC

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	ATLAS PROPERTY II, LLC

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	ATLAS PROPERTY III, LLC

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CODINA GROUP, INC.

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CODINA REAL ESTATE MANAGEMENT, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 






 









 






	 	 	 	 	 	 	 
	 	 	CODINA CONSULTING, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CODINA DEVELOPMENT CORPORATION,

a Florida corporation	 	 
	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CODINA CONSTRUCTION CORPORATION,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CODINA REALTY SERVICES, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	C&S REAL ESTATE DEVELOPMENT CORP.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CODINA RESIDENTIAL, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CODINA RESIDENTIAL, LTD.,

a Florida limited partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 






 









 






	 	 	 	 	 	 	 
	 	 	CODINA/FAIRFIELD I, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	SEVILLA BUILDING, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	SEVILLA BUILDING, LTD.,

a Florida limited partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	C/CM LEJEUNE, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	C/CM LEJEUNE, LTD.,

a Florida limited partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CM LEJEUNE, INC.,

a Florida corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	FLAGLER DORAL, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BEACON COUNTYLINE, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	FEC LAKES, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	FLAGLER BOCA 54, LLC,

a Florida limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley D. Lehan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Bradley D. Lehan	 	 
	 

	 	Title:
	 	Treasurer	 	 






 









 






	 	 	 	 	 	 	 
	ADMINISTRATIVE
	 	 	 	 	 	 
	AGENT:	 	BANK OF AMERICA, N.A.,

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Brashler	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Michael Brashler	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	LENDERS:	 	BANK OF AMERICA, N.A.,

as a Lender, L/C Issuer and Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John M. Hall	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	John M. Hall	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sarah Hudson Anderson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Sarah Hudson Anderson	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Charles N. Kauffman	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Charles N. Kauffman	 	 
	 

	 	Title:
	 	Senior Vice President