AGREEMENT AND PLAN OF MERGER AND CONTRIBUTION

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER AND CONTRIBUTION

dated as of

JANUARY 5, 2006

among

FLORIDA EAST COAST INDUSTRIES, INC.,

FOXX HOLDINGS INC.,

FOXX MERGER SUB, INC.,

ARMANDO CODINA,

C/COUNTYLINE, LLC,

and

C/WDL, LTD.

 

TABLE OF CONTENTS

(i)

 

(ii)

 

(iii)

 

 

Codina Disclosure Schedule

(iv)

 

FECI Disclosure Schedule

(v)

 

AGREEMENT AND PLAN OF MERGER AND CONTRIBUTION

          AGREEMENT AND PLAN OF MERGER AND CONTRIBUTION dated as of January 5, 2006 (this “ Agreement ”) among Florida East Coast Industries, Inc., a Florida corporation (“ FECI ”), Foxx Holdings, Inc., a Florida corporation and a wholly owned subsidiary of FECI (“ Parent ”), Foxx Merger Sub, Inc., a Florida corporation and a wholly owned subsidiary of Parent (“ Foxx Merger Sub ”), Armando Codina (“ Mr. Codina ”), C/Countyline, LLC, a Florida limited liability company (“ CC ”), and C/WDL, Ltd., a Florida limited partnership (“ C/WDL ” and together with Mr. Codina, and CC, the “ Contributors ” with each being referred to herein as a “ Contributor ”).

          WHEREAS , the Boards of Directors of each of FECI and Foxx Merger Sub have approved this Agreement and the merger of Foxx Merger Sub with and into FECI with FECI continuing as the surviving corporation (the “ FECI Merger ”) and deem it advisable and in the best interests of their respective stockholders to consummate the Merger and the other transactions contemplated hereby on the terms and conditions set forth herein;

          WHEREAS , each of the Contributors desires to contribute and Parent desires to acquire the securities listed on Schedule A hereto (collectively, the “ Contributed Assets ”) in exchange for shares of common stock, no par value of Parent (as described below) (the “ Contribution ” and collectively with the Merger, the “ Transactions ”) on the terms and conditions set forth herein;

          WHEREAS , the Board of Directors of Parent has approved this Agreement, the Transactions and the other transactions contemplated hereby on the terms and conditions set forth herein; and

          WHEREAS , it is intended that, for United States federal income tax purposes, the Merger and the Contribution, taken together shall qualify as exchanges described in Section 351 of the Internal Revenue Code of 1986, as amended (the “ Code ”) and the regulations promulgated thereunder.

          NOW, THEREFORE , in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, the parties hereto agree as follows:

ARTICLE 1
DEFINITIONS

          Section 1.01           Definitions.

                    (a)               The following terms, as used herein, have the following meanings:

          “ 1933 Act ” means the Securities Act of 1933.

          “ 1934 Act ” means the Securities Exchange Act of 1934.

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          “ Acquisition Proposal ” means, other than the transactions contemplated by this Agreement, any offer or proposal by a Third Party for (a) any acquisition or purchase, direct or indirect of any shares of capital stock, voting securities, membership interests or partnership interests of any Codina Entity, or (b) a merger, consolidation, share exchange, business combination sale of all or substantially all the assets, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving any Codina Entity.

          “ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person.  The concept of control, controlling or controlled as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.  No Person shall be deemed an Affiliate of any Person by reason of the exercise or existence of rights, interests or remedies under this Agreement.

          “ Beacon Commons ” means an approximately 92 acre site in Doral, Florida owned by Atlas Property II, LLC.

          “ BN Expansion ” means an approximately 40 acre site in Hialeah, Florida owned by BN Expansion, LLC.

          “ Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York, Miami, Florida or Saint Augustine, Florida are authorized or required by law to close.

          “ CC Property ” means an approximately 457 acre site in Hialeah, Florida owned by Beacon Countyline, LLC.

          “ Codina Disclosure Schedule ” means the disclosure schedule delivered by the Contributors to FECI in connection with the execution of this Agreement.

          “ Codina Entity ” means the Codina Group, each of its Subsidiaries, and each Codina Property Entity.

          “ Codina Group Stock ” means the common stock, $0.01 par value per share, of Codina Group.

          “ Codina Material Adverse Effect ” means a material adverse change in or effect on the Contributors’ ability to perform their respective obligations under this Agreement or on the condition (financial or otherwise), results of operations, properties, assets, liabilities, business or prospects of the Contributed Assets, taken as a whole, excluding any effect resulting from any change in economic, real estate industry, capital market or financial conditions generally in the United States.

          “ Codina Option Plan ” means Codina Group, Inc. 1998 Incentive Stock Option Plan.

          “ Codina Property Entity ” means each of the entities listed on Schedule B hereto.

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          “ Codina Reports ” means the reports listed on Section 1.1(a) of the Codina Disclosure Schedule.

          “ Closing Date ” means the date of Closing as set forth in Section 2.03.

          “ Closing Working Capital ” means as of the Closing Date, the Current Assets minus the Current Liabilities of Codina Group and its wholly owned Subsidiaries on a consolidated basis plus the Current Assets minus the Current Liabilities of each Codina Property Entity that is directly or indirectly wholly-owned by the Contributors (i.e. excluding the Specified Entities).

          “ Confidentiality Agreement ” means the Confidentiality Agreement, dated August 5, 2005, between FECI, Codina Group and Oak Hill Realty, LLC.

          “ Contract ” means any legally binding written or oral contract, agreement, note, bond, indenture, mortgage, guarantee, option, lease, license, sales or purchase order, warranty, commitment or other instrument of any kind.

          “ Current Assets ” means cash, accounts receivable, prepaid expenses, notes receivables, and other current assets, excluding any deferred income tax asset reflecting either differences between the treatment of items for accounting and income tax purposes or carryforwards, in each case as determined in accordance with GAAP; provided, however , that there shall be subtracted from Current Assets an amount equal to (i) any development incentive payment advance or similar receivable for payments from CM Doral Development Company LLC and (ii) the amount of any distribution made by a Codina Property Entity to another Codina Property Entity or, if approved by FECI, to a Contributor or any Affiliate of a Contributor after December 31, 2005.

          “ Current Liabilities ” means accounts payable, accrued liabilities, the current portion of long term indebtedness, including any current taxes payable but excluding any deferred income tax liability reflecting either differences between the treatment of items for accounting and income tax purposes or carryforwards, in each case as determined in accordance with GAAP; provided, however , that (i) ad valorem real property taxes and (ii) interest on the debt listed on Section 9.02(n) of the Codina Disclosure Schedule accruing after December 31, 2005 shall be excluded.

          “ Disclosure Schedule ” means the Codina Disclosure Schedule and the FECI Disclosure Schedule.

          “ Environmental Liabilities ” means any cost, damages, expense, liability, obligation, or other responsibility arising from or under Environmental Law and consisting of or relating to (a) any environmental, health, or safety matters or conditions (including on-site or off-site contamination, occupational safety and health, and  regulation of chemical substances or products); (b) fines, penalties, judgments, awards, settlements, legal or administrative proceedings, damages, losses, claims, demands and response, investigative, remedial, or inspection costs and expenses arising under Environmental Law; (c) financial responsibility under Environmental Law for cleanup costs or corrective action, including any investigation, cleanup, removal, containment, or other remediation or response actions required by applicable Environmental Law (whether or not such action has been required or requested by any Governmental Entity or any other Person) and for any natural resource damages; or (d) any other compliance, corrective, investigative, or remedial measures required under Environmental Law. The terms “ removal ,” “ remedial ,” and “ response action ,” include the types of activities covered by the United States Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., as amended (“ CERCLA ”).

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          “ Environmental Law ” means any Law (including common law) or permit that requires or relates to (a) advising appropriate authorities, employees, and the public of intended or actual releases of pollutants or hazardous substances or materials, violations of discharge limits, or other prohibitions and of the commencements of activities, such as resource extraction or construction, that could have significant impact on the environment; (b) preventing or reducing to acceptable levels the release of pollutants or hazardous substances or materials into the environment; (c) reducing the quantities, preventing the release, or minimizing the hazardous characteristics of wastes that are generated; (d) assuring that products are designed, formulated, packaged, and used so that they do not present unreasonable risks to human health or the environment when used or disposed of; (e) protecting resources, species, or ecological amenities; (f) reducing to acceptable levels the risks inherent in the transportation of hazardous substances, pollutants, oil, or other potentially harmful substances; (g) cleaning up pollutants that have been released, preventing the threat of release, or paying the costs of such clean up or prevention; or (h) making responsible parties pay private parties, or groups of them, for damages done to their health or the Environment, or permitting self-appointed representatives of the public interest to recover for injuries done to public assets.

          “ Environmental Permits ” means, with respect to any Person, all permits, licenses and approvals required by Environmental Laws and affecting, or relating in any way to, the business of such Person or any of its Subsidiaries.

          “ Equity Incentive Plans ” means the FECI 1998 Stock Incentive Plan, as amended, the FECI Amended and Restated Stock Incentive Plan and the FECI 2002 Employee Stock Purchase Plan.

          “ ERISA ” means the Employee Retirement Income Security Act of 1974.

          “ ERISA Affiliate ” of any entity means any other entity that, together with such entity, would be treated as a single employer under Section 414 (b) or (c) of the Code.

          “ Escrow Agent ” means SunTrust Bank, N.A.

          “ FBCA ” means the Florida Business Corporations Act, as amended.

          “ FECI Average Trading Price ” means $42.458.

          “ FECI Disclosure Schedule ” means the disclosure schedule delivered by FECI to Codina in connection with the execution of this Agreement.

          “ FECI Material Adverse Effect ” means a material adverse change in or effect on the ability of FECI, Parent or Foxx Merger Sub to perform their respective obligations under this Agreement or on the condition (financial or otherwise), results of operations, properties, assets, liabilities, business or prospects of FECI and its Subsidiaries taken as a whole, excluding any effect resulting from any change in economic, real estate industry, capital market or financial conditions generally in the United States.

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          “ FECI Stock ” means the common stock, no par value, of FECI together with attached Rights.

          “ Hazardous Activity ” means the distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, storage, transfer, transportation, treatment, or use (including any withdrawal or other use of groundwater) of Hazardous Materials in, on, under, about, or from the Codina Real Property or any part thereof into the environment.

          “ Hazardous Materials ” means any waste or other substance that is listed, defined, designated, or classified as, or otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or a contaminant under or pursuant to any Environmental Law, including any admixture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor and asbestos or asbestos-containing materials.

          “ Initial Valuation Amount ” means $70,750,000 reduced by (x) the amount of any capital calls payable by the Contributors or their Affiliates with respect to any of the Codina Property Entities that are unfunded as of December 31, 2005 and (y) the excess, if any, of (1) Parent’s pro rata portion of indebtedness for borrowed money of AMB Codina Beacon Lakes, LLC at the Effective Time over (2) $6,200,000; and increased by the amount of any capital contributions made by Mr. Codina or other direct or indirect owners of a Codina Property Entity to any Codina Property Entity after December 31, 2005 for obligations incurred after December 31, 2005 and approved by FECI in accordance with Section 6.05.  The capital contributions set forth in Section 1.1(b) of the Codina Disclosure Schedule are anticipated over the 90 day period beginning January 1, 2006 and are hereby preapproved in the amounts set forth therein.

          “ Intellectual Property ” means all trademarks, trade names, service marks, domain names, patents, copyrights, trade secrets, and all applications and registrations of such worldwide; and technology (including but not limited to computer software programs, applications, algorithms, models, databases or documentation), inventions, know-how and tangible or intangible proprietary information or materials.

          “ Intended Improvements ” means the improvements being or intended to be constructed on the Codina Real Property as set forth in Section 1.1(c) of the Codina Disclosure Schedule.

          “ Knowledge ” means (a) with respect to the Contributors, the actual knowledge of Mr. Codina or any of the Persons listed on Section 1.1(d) of the Codina Disclosure Schedule; and (b) with respect to FECI, the actual knowledge of any of the Persons listed on Section 1.1(a) of the FECI Disclosure Schedule.

          “ Law ” means any federal, state or local law (including common law), statute, ordinance, rule, regulation, order, judicial decision, judgment or decree of or by any Governmental Entity.

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          “ Lien ” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance, easement, right-of-way, use restriction, real property covenant, restrictive sale agreement, right of first refusal or first offer or other adverse claim of any kind, but excluding Permitted Encumbrances. For purposes of this Agreement, a Person shall be deemed to own subject to a Lien any property or asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset.

          “ NYSE ” means the New York Stock Exchange, Inc.

          “ Parent Stock ” means the common stock, no par value, of Parent together with attached Rights.

          “ Permitted Encumbrances ” means (a) mechanics’, carriers’, workmen’s, repairmen’s or other like liens or other encumbrances arising or incurred or in the ordinary course of business relating to obligations that are not delinquent or that are being contested in good faith by the relevant party or any Subsidiary of the relevant party and for which the relevant party or a Subsidiary of the relevant party has established adequate reserves, (b) liens or other encumbrances for Taxes that are not due and payable, that are being contested in good faith by appropriate proceedings or that may thereafter be paid without interest or penalty or (c) as set forth on Schedule C.

          “ Person ” means an individual, corporation, partnership (general or otherwise), limited liability company, firm, joint venture, unincorporated association, trust, Governmental Entity or other entity or organization, whether or not a legal entity.

          “ Pre-Closing Tax Period ” means any Tax period ending on or before the Closing Date; and, with respect to a Tax period that begins on or before the Closing Date and ends thereafter, the portion of such Tax period ending on the Closing Date.

          “ Proceeding ” means any suit, litigation, arbitration, proceeding at law or in equity (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel.

          “ Release ” means any actual or threatened spilling, leaking, emitting, discharging, depositing, escaping, leaching, dumping, or other releasing or threatened releasing into the environment, whether intentional or unintentional.

          “ Rights ” means, prior to the Effective Time, the preferred stock purchase rights issued under the Rights Agreement, and after the Effective Time, the preferred Share purchase rights issued under the Parent Rights Plan.

          “ Rights Agreement ” means the Amended and Restated Rights Agreement effective as of September 22, 2003 between FECI and First Union National Bank, as rights Agent.

          “ SEC ” means the Securities and Exchange Commission.

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          “ Subsidiary ” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such Person.

          “ Tax ” means (i) any tax, governmental fee or other like assessment or charge of any kind whatsoever (including withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Entity (a “Taxing Authority”) responsible for the imposition of any such tax (domestic or foreign), and any liability for any of the foregoing as transferee or successor, (ii) in the case of any Codina Entity, liability for the payment of any amount of the type described in clause (i) as a result of being or having been before the Effective Time a member of an affiliated, consolidated, combined or unitary group, or a party to any agreement or arrangement, as a result of which liability of any Codina Entity to a Taxing Authority is determined or taken into account with reference to the activities of any other Person, and (iii) liability of any Codina Entity for the payment of any amount as a result of being party to any Tax Sharing Agreement.

          “ Taxing Authority ” means any instrumentality, subdivision, court, administrative agency, commission, official or other authority of any country or any state, province, prefect, municipality, locality or other government or political subdivision thereof, or any quasi governmental or private body, having jurisdiction over the assessment, determination, collection or other imposition of Taxes.

          “ Tax Return ” means any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information.

          “ Tax Sharing Agreements ” means all existing agreements or arrangements (whether or not written) binding any Codina Entity that provide for the allocation, apportionment, sharing or assignment of any Tax liability as a result of being or having been before the Effective Time, a member of an affiliated, consolidated, combined or unitary group, or a party to any agreement as a result of which liability of any Codina Entity in respect of a Tax is determined or taken into account with reference to the activities of any other Person.

          “ Third Party ” means any Person other than FECI or Mr. Codina or any of their respective Affiliates.

          “ Transaction Documents ” means this Agreement, the Escrow Agreement, the Employment Agreement, the Change in Control Agreement and the Registration Rights Agreement.

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                    (b)          Each of the following terms is defined in the Section set forth opposite such term:

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          Section 1.02           Other Definitional and Interpretative Provisions. The words “ hereof ”, “ herein ” and “ hereunder ” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. References to Articles, Sections and Exhibits are to Articles, Sections and Exhibits of this Agreement, and all references to Schedules are to corresponding sections of the applicable Disclosure Schedule or lettered schedule to this Agreement, in each case unless otherwise specified. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “ include ”, “ includes ” or “ including ” are used in this Agreement, they shall be deemed to be followed by the words “ without limitation ”, whether or not they are in fact followed by those words or words of like import. “ Writing ”, “ written ” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute are to that statute as amended from time to time, and to the rules and regulations promulgated thereunder, and, in each case, to any successor statute, rules or regulations thereto. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

ARTICLE 2
THE MERGER AND CONTRIBUTIONS

          Section 2.01           The FECI Merger.

                    (a)               At the Initial Effective Time (as defined below), Foxx Merger Sub shall be merged with and into FECI in accordance with the FBCA, and upon the terms set forth in this Agreement, whereupon the separate existence of Foxx Merger Sub shall cease and FECI shall be the surviving corporation (the “ FECI Surviving Corporation ”).

                    (b)               Within five Business Days after satisfaction or, to the extent permitted hereunder, waiver of all conditions to the Transactions set forth in Article 9 other than conditions that by their nature are to be satisfied at the Closing and will in fact be satisfied or waived at the Closing, or on such other day as agreed to in writing by the parties, FECI shall file articles of merger in form agreed to by Mr. Codina and FECI, certified by the Secretary of FECI in accordance with Section 11045 of the FBCA (the “ Merger Filing ”), with the Florida Secretary of State and make all other filings or recordings required by the FBCA in connection with the FECI Merger. The FECI Merger shall become effective at the Initial Effective Time. As used herein, the term “ Initial Effective Time ” means the time at which the articles of merger are filed (or at any other time indicated therein and mutually agreed to by FECI and Codina).

                    (c)               From and after the Initial Effective Time, the FECI Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of FECI and Foxx Merger Sub, all as provided under the FBCA.

          Section 2.02           Contribution. Upon the terms and conditions set forth in this Agreement, at the Effective Time, each Contributor will convey to Parent, and Parent will obtain title to all of such Contributor’s right, title and interest in and to the Contributed Assets owned by such Contributor as noted on Schedule A, free and clear of all Liens other than Permitted Encumbrances.  As used herein the term “ Effective Time ” means one minute following the Initial Effective Time.

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          Section 2.03           Closing. Upon the terms and subject to the conditions set forth herein, the closing of the Transactions (the “ Closing ”) will take place on the date on which the Initial Effective Time and the Effective Time occur, unless this Agreement has been theretofore terminated pursuant to its terms. The Closing shall be held at the offices of Greenberg Traurig, P.A., 1221 Brickell Avenue, Miami, Florida 33131, unless another place is agreed to in writing by the parties hereto.

          Section 2.04           Articles of Incorporation and Bylaws.

                    (a)               At the Initial Effective Time, the articles of incorporation of FECI shall be the articles of incorporation of the FECI Surviving Corporation, until thereafter changed or amended as provided therein or by applicable law; provided that the articles of incorporation of FECI Surviving Corporation shall be amended at the Initial Effective Time as required or permitted by Section 11045 of the FBCA to reflect the changes agreed to by Mr. Codina and FECI.

                    (b)               At the Initial Effective Time, the bylaws of FECI shall be the bylaws of the FECI Surviving Corporation.

                    (c)               The articles of incorporation and bylaws of Parent in effect immediately after the Initial Effective Time will contain provisions identical to the articles of incorporation and bylaws of FECI in effect immediately before the Initial Effective Time, in each case other than as required or permitted by Section 11045 of the FBCA, and the name of Parent immediately after the Initial Effective Time shall be Florida East Coast Industries, Inc.

          Section 2.05           Directors and Officers of the FECI Surviving Corporation.

                    (a)               From and after the Initial Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, (a) the directors of Foxx Merger Sub at the Initial Effective Time shall be the directors of the FECI Surviving Corporation and (b) the officers of FECI at the Initial Effective Time shall be the officers of the FECI Surviving Corporation. Until successors are duly elected or appointed and qualified in accordance with applicable law, (a) the directors of FECI immediately before the Initial Effective Time shall be the directors of Parent immediately after the Initial Effective Time and (b) the officers of FECI immediately before the Initial Effective Time shall be the officers of Parent immediately after the Initial Effective Time.

          Section 2.06           Parent Rights Plan. At or prior to the Initial Effective Time, Parent shall adopt a Second Amended and Restated Shareholder Rights Plan (the “ Parent Rights Plan ”), effective at the Initial Effective Time having terms and conditions substantially identical to the Rights Plan and the Rights Plan shall be amended to provide for its termination upon the Effective Time as to FECI.

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          Section 2.07           Equity Incentive Plans .  At or prior to the Effective Time, Parent shall adopt and assume all rights and obligations of FECI under the Equity Incentive Plans, effective upon the Effective Time.

          Section 2.08           FECI Employment Agreements .  Prior to the Effective Time, Parent shall assume all then effective employment agreements between FECI and its employees, effective as of the Effective Time.

ARTICLE 3
CONVERSION AND EXCHANGE OF SECURITIES

          Section 3.01           FECI and Foxx Merger Sub . At the Initial Effective Time, by virtue of the FECI Merger and without any action on the part of FECI, Parent, Foxx Merger Sub or any holder of any shares of FECI Stock:

                    (b)               Each share of FECI Stock that is held by FECI as treasury stock immediately prior to the Initial Effective Time shall be converted into one share of Parent Stock held by Parent as treasury stock.

                    (c)               Subject to Section 3.01(b)and Section 3.05, each outstanding share of FECI Stock issued and outstanding immediately prior to the Initial Effective Time shall be converted into one fully paid and nonassessable share of Parent Stock (the “ FECI Merger Consideration ”). All shares of Parent Stock issued pursuant to this Section 3.01(c) shall be duly authorized, validly issued, fully paid and non-assessable and free of preemptive rights, with no personal liability attaching to the ownership thereof.

                    (d)               Each share of common stock, no par value, of Foxx Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one share of common stock, no par value, of the FECI Surviving Corporation.

          Section 3.02           Exchange for Contributed Assets . In exchange for the Contributed Assets, Parent shall issue to the Contributors shares of Parent Stock (certain of which because of the difficulty of valuing Contributed Assets, Parent, FECI and the Contributors have agreed to structure as contingent consideration), as follows:

                    (b)               At the Effective Time, Parent shall issue and (except as provided in the next sentence) deliver to the Contributors certificates representing the number of shares of Parent Stock (rounded to the nearest whole number) equal to the Initial Valuation Amount divided by the FECI Average Trading Price (the “ Initial Contribution Consideration ”), to be allocated among the Contributors as described on Schedule 3.02(a) of the Codina Disclosure Schedule and subject to adjustment as provided in Section 3.03.  Of these shares, the number of shares of Parent Stock (rounded to the nearest whole number) equaling ten percent (10%) of the Initial Contribution Consideration (the “ Indemnity Escrow ”) shall be held in escrow by the Escrow Agent pursuant to an escrow agreement in substantially the form attached hereto as Exhibit A (the “ Escrow Agreement ”).

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                    (c)               In addition, at the Effective Time, Parent shall issue the number of shares of Parent Stock provided in Section I of Schedule D (the “ CC Escrow ”), and deliver such shares to the Escrow Agent, to be held in escrow by the Escrow Agent for delivery as provided in Section I of Schedule D and in accordance with the Escrow Agreement.

                    (d)               [Reserved.]

                    (e)               In addition, at the Effective Time, Parent shall issue 471,054 shares of Parent Stock (the “ Additional Escrow ”), and deliver such shares to the Escrow Agent, to be held in escrow by the Escrow Agent for delivery as provided in Section II of Schedule D and in accordance with the Escrow Agreement.

                    (f)               In addition, at the Effective Time, Parent shall issue the number of shares of Parent Stock provided in Section III of Schedule D (the “ Red Road Escrow ” and together with the Indemnity Escrow, the CC Escrow and the Additional Escrow, the “ Escrowed Shares ”), and deliver such shares to the Escrow Agent, to be held in escrow by the Escrow Agent for delivery as provided in Section III of Schedule D and in accordance with the Escrow Agreement.

          Section 3.03           Working Capital and Other Adjustments.

                    (a)               As soon as practicable (and in no event later than 90 days after the Closing Date), Parent shall cause to be prepared and delivered to Mr. Codina (i) a calculation of the Closing Working Capital (the “ Working Capital Report ”), including such schedules and data as may be reasonably appropriate to support such calculation and (ii) a report (the “ Closing Date Cash Report ”) detailing the amount of cash and cash equivalents held by each of Codina Group and its wholly owned subsidiaries on a consolidated basis, and each of the Codina Property Entities other than the Specified Entities as of the Closing Date (the “ Closing Date Cash ”). Mr. Codina and his accountants shall be entitled to review the Working Capital Report, the Closing Date Cash Report, and any working papers, trial balances and similar materials relating to the Closing Working Capital and Closing Date Cash prepared by Parent or its accountants. Parent shall also provide Mr. Codina and his accountants with timely access, during Parent’s normal business hours, to Parent’s personnel and the properties, books and records to the extent related to the determination of the Closing Working Capital or the Closing Date Cash.  For purposes of calculating Closing Date Cash, cash shall exclude the aggregate amount of all, outstanding checks and pending wire transfers as of the Closing Date and shall include all deposits in transit.

                    (b)               Within sixty (60) days after delivery to Mr. Codina of Parent’s calculation of the Closing Working Capital and Closing Date Cash pursuant to this Section 3.03, Mr. Codina may deliver to Parent a written report (the “ Report ”) prepared by Mr. Codina’s accountants (the “ Codina Accountants ”) advising Parent that the Codina Accountants deem that one or more adjustments to Parent’s calculation are required, and specifically identifying such proposed adjustments.  The costs and expenses of the services of the Codina Accountants shall be borne by Mr. Codina.  If Parent shall concur with the adjustments proposed by the Codina Accountants, or if Parent shall not object thereto in a writing delivered to Mr. Codina within fifteen (15) days after Parent’s receipt of the Report, the calculations of the Closing Working Capital and/or Closing Date Cash set forth in such Report shall become final and shall not be subject to further review, challenge or adjustment absent fraud.  If Mr. Codina does not submit a Report within the 60-day period provided herein, then the Closing Working Capital and Closing Date Cash as calculated by Parent shall become final and shall not be subject to further review, challenge or adjustment absent fraud.

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                    (c)               In the event that Mr. Codina submits a Report and Parent and the Codina Accountants are unable to resolve the disagreements set forth in such report within thirty (30) days after the date of the Report, then such disagreements shall be referred to Deloitte & Touche, LLP or such other nationally recognized accounting firm agreed to by Parent and Mr. Codina (the “ Settlement Accountants ”), and the determination of the Settlement Accountants shall be final and shall not be subject to further review, challenge or adjustment absent fraud.  The Settlement Accountants shall use their reasonable best efforts to reach a determination not more than forty-five (45) days after such referral.  The costs and expenses of the services of the Settlement Accountants shall be paid equally by Parent and Mr. Codina.

                    (d)               (i)          If Closing Date Cash, as finally determined pursuant to the procedures in paragraphs (a) through (c) above, is less than $4,000,000, then within seven (7) Business Days after such final determination of the Closing Date Cash, the Contributors shall pay to Parent, in cash, an amount equal to the amount by which $4,000,000 exceeds final Closing Date Cash (such payment, the “ Cash Shortfall Payment ”). 

                                        (ii)          If  the sum of (r) Closing Working Capital, as finally determined pursuant to the procedures in paragraphs (a) through (c) above, plus (s) the Cash Shortfall Payment, if any, is less than $4,000,000, then the Initial Contribution Consideration shall be reduced by the number of shares (rounded to the nearest whole number) equal to (x) the excess of $4,000,000 over such sum, divided by (y) the FECI Average Trading Price, and such number of shares shall be released from the Indemnity Escrow and delivered to Parent for cancellation as provided in the Escrow Agreement; provided, however, that to the extent the number of shares in the Indemnity Escrow is insufficient (such insufficiency of shares, the “ Share Shortfall ”), then, within seven (7) Business Days after such final determination of the amount of Closing Working Capital, Mr. Codina shall pay to Parent, in cash, an amount equal to the product of the Share Shortfall multiplied by the FECI Average Trading Price

                                        (iii)        If the sum of (r) Closing Working Capital, as finally determined pursuant to the procedures in paragraphs (a) through (c) above, plus (s) the Cash Shortfall Payment, if any, exceeds $4,000,000, then the Initial Contribution Consideration shall be increased by the number of shares (rounded to the nearest whole number) equal to (x) such excess divided by (y) the FECI Average Trading Price, and such number of shares shall be issued and delivered by Parent to the Contributors within seven (7) Business Days after such final determination of the amount of Closing Working Capital.

                    (e)               If, between the date of this Agreement and the date on which any shares of Parent Stock are to be issued and delivered to any of the Contributors or the Escrow Agent hereunder, there is a reclassification, recapitalization, stock split, split-up, stock dividend, combination or exchange of shares with respect to, or rights issued in respect of, FECI Stock or Parent Stock, the number of shares of Parent Stock to be issued and delivered shall be adjusted accordingly to provide to the Contributors the same economic effect as contemplated by this Agreement prior to such event.

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          Section 3.04           Effect on Parent Stock . Immediately following the Effective Time, shares of Parent Stock owned by the FECI Surviving Corporation shall be cancelled by Parent without payment therefor.

          Section 3.05           FECI Stock Options and Restricted Stock Awards .  As of the Initial Effective Time, (a) each option to purchase FECI Stock under any stock option or compensation plan or arrangement of FECI or otherwise (each, an “ FECI Option ”) that is outstanding immediately prior to the Initial Effective Time, whether or not then vested or exercisable, shall cease to represent a right to acquire FECI Stock and shall be converted automatically into an option to purchase the same number of shares of Parent Stock, on substantially the same terms and conditions (including vesting schedule and per share exercise price) as applied to such FECI Option immediately prior to the Effective Time and (b) each share of FECI Stock that is restricted under any stock option or compensation plan, agreement or arrangement of FECI or otherwise (each a “ Restricted FECI Share ”) that is outstanding immediately prior to the Initial Effective Time, whether or not then vested or exercisable, shall cease to represent a Restricted FECI Share and shall be converted automatically into a share of restricted Parent Stock, restricted on substantially the same terms and conditions (including vesting schedule) as applied to such Restricted FECI Share immediately prior to the Initial Effective Time.

          Section 3.06           Conversion . Certificates representing shares of FECI Stock immediately prior to the Initial Effective Time shall, from and after the Initial Effective Time, represent the shares of Parent Stock constituting the FECI Merger Consideration. At the Effective Time, Parent shall exchange by book entry transfer all uncertificated shares of FECI Stock for the shares of Parent Stock constituting the FECI Merger Consideration. No separate certificates shall be issued in exchange for FECI Stock in accordance with Section 11045 of the FBCA.

          Section 3.07           Withholding Rights . Parent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement and the Escrow Agreement such amounts as it determines in good faith following receipt of advice of tax counsel (from a nationally-recognized law firm) are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Entity by or on behalf of Parent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made by or on behalf of Parent.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS

          Except as set forth in the corresponding section of Codina Disclosure Schedule, the Contributors, jointly and severally, represent and warrant to FECI and Parent, as of the date hereof and as of the Closing Date, and with respect to Section 4.26 only, as of any date of issuance of Parent Stock hereunder, that:

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          Section 4.01           Corporate Existence and Power .  Codina Group is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Florida; each of Codina Group’s Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Florida and each of the Codina Property Entities is a corporation, limited partnership or limited liability company, duly formed, validly existing and in good standing under the laws of the state of its incorporation or formation. Each of the Codina Entities has all corporate or equivalent powers required to carry on its business as now conducted. Each Codina Entity is duly qualified to do business as a foreign corporation or entity and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a Codina Material Adverse Effect. True and complete copies of (i) the articles of incorporation and bylaws of Codina Group and each of its Subsidiaries, and (ii) articles of incorporation, bylaws, articles of formation, operating agreements and limited partnership agreements or other organizational documents, as applicable, of each of the Codina Property Entities, each as currently in effect have been delivered or made available to FECI prior to the date hereof.

          Section 4.02           Corporate Authorization . The execution, delivery and performance by Codina Group and each Contributor of this Agreement and each of the other Transaction Documents to which it is a party, and the consummation by Codina Group and each Contributor of the transactions contemplated hereby and thereby are within Codina Group’s corporate powers and within the powers of each Contributor, as applicable, and, have been duly authorized by all necessary corporate action on the part of Codina Group and by all necessary action (corporate or otherwise) on the part of each Contributor. This Agreement and each of the other Transaction Documents to which it is a party constitutes a valid and binding agreement of Codina Group and each Contributor enforceable against such Person in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, reorganization, insolvency, moratorium and other similar Laws of general application from time to time in effect affecting creditors’ rights generally, (ii) by general principles of equity, and (iii) the power of a court to deny enforcement of remedies based upon public policy.

          Section 4.03           Governmental Authorization . The execution, delivery and performance by Codina Group and each of the Contributors of this Agreement and each of the other Transaction Documents to which it is a party and the consummation by Codina Group and each of the Contributors of the transactions contemplated hereby and thereby require no action by, or filing with, any federal, state or local governmental body, agency, official or authority (each a “ Governmental Entity ”).

          Section 4.04           Non-contravention . The execution, delivery and performance by Codina Group and each of the Contributors of this Agreement and each of the other Transaction Documents to which it is a party and the consummation by Codina Group and each of the Contributors of the transactions contemplated hereby and thereby do not and will not (a) contravene, conflict with, or result in any violation or breach of any provision of the articles of incorporation, bylaws or other organizational documents of any Codina Entity or any Contributor that is an entity, (b) contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (c) assuming that all consents set forth in Section 4.04 of the Codina Disclosure Schedule have been obtained or otherwise satisfied, require any consent under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit the termination, cancellation, acceleration or other material change of any right or obligation or the loss of any benefit to which any Codina Entity is entitled under, any provision of any Codina Significant Contract or any other Contract material to any Codina Entity or any Permit affecting, or relating in any way to, the assets or business of any Codina Entity, or (d) result in the creation or imposition of any Lien on any asset of any Codina Entity.

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          Section 4.05           Capitalization of Codina Group .

                    (a)               The authorized capital stock of Codina Group consists of 50,000 shares of Codina Group Stock. 5,000 shares of Codina Group Stock are issued and outstanding and held by Mr. Codina as of the Closing. All outstanding shares of Codina Group Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.

                    (b)               Except as set forth in Section 4.05 of the Codina Disclosure Schedule, there are no outstanding (i) shares of capital stock or voting securities of Codina Group, (ii) securities of Codina Group convertible into or exchangeable for shares of capital stock or voting securities of Codina Group, (iii) options, warrants or other rights or arrangements to acquire from Codina Group, or other obligations or commitments of Codina Group to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Codina Group (the items in clauses (i), (ii) and (iii) being referred to collectively as the “ Codina Group Securities ”), (iv) voting trusts, proxies or other similar agreements or understandings to which Codina Group or any of its Subsidiaries is a party or by which Codina Group or any of its Subsidiaries is bound with respect to the voting of any shares of capital stock of Codina Group or any of its Subsidiaries or (v) contractual obligations or commitments of any character to which Codina Group or any of its Subsidiaries is a party or by which Codina Group or any of its Subsidiaries is bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of Codina Group or any of its Subsidiaries. There are no outstanding obligations of Codina Group or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Codina Group Securities.

          Section 4.06           Subsidiaries and Codina Property Entities .

                    (a)               Section 4.06 of the Codina Disclosure Schedule sets forth a true and complete list of all of Codina Group’s Subsidiaries and all Codina Property Entities, including (x) the jurisdiction of incorporation or organization of each such entity and (y) the ownership of each such entity.  Except as set forth on Section 4.06 of the Codina Disclosure Schedule, all of the outstanding shares of capital stock or other ownership interests in each of the Subsidiaries of Codina Group and of each Codina Property Entity are duly authorized, validly issued, fully paid and nonassessable and are owned (of record and beneficially) by Codina Group, another Subsidiary of Codina Group, another Codina Property Entity or a Contributor free and clear of all Liens, and are not subject to preemptive rights created by statute, such entity’s respective articles of incorporation, bylaws, limited partnership agreement, limited liability company agreement or equivalent organizational documents or any agreement to which such entity is a party or by which such entity is bound.  Other than as set forth in Section 4.06 of the Codina Disclosure Schedule, no Codina Entity directly or indirectly owns any equity interest in any Person.

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                    (b)               There are no outstanding (i) securities of any Codina Entity convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of Codina Group or any Codina Property Entity or (ii) options, warrants or other rights or arrangements to acquire from any Codina Entity or other obligations or commitments of any Codina Entity to issue, any capital stock or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock or other voting securities or ownership interests in, any Subsidiary of Codina Group or any Codina Property Entity (the items in clauses (i) and (ii) being referred to collectively as the “ Codina Entity Securities ”). There are no outstanding obligations of any Codina Entity to repurchase, redeem or otherwise acquire any of the Codina Entity Securities.

                    (c)               Since its inception, none of Codina Residential, Inc., Sevilla Building, Inc., C/CM LeJeune, Inc., or CM LeJeune, Inc. has (i) engaged in any business other than acting as the general partner of  Codina Residential, Ltd., Sevilla Building, Ltd., C/CM LeJeune, Ltd., and CM LeJeune LP, respectively or (ii) incurred any liabilities, except by operation of law as the general partner of a limited partnership. None of the Codina Property Entities has had any employees.

          Section 4.07           Financial Statements .  Section 4.07 of the Codina Disclosure Schedule sets forth audited consolidated financial statements for Codina Group and its Subsidiaries as of and for each of the five years ended December 31, 2004 (“ Codina Group Audited Financials ”) and unaudited interim consolidated balance sheets and income statements for the Codina Group and its Subsidiaries as of and for the nine months ended September 30, 2004 and 2005 (“ Codina Group Interim Financials ”). The Codina Group Audited Financials and Codina Group Interim Financials fairly present, in conformity with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis (except as expressly set forth on Section 4.07 of the Codina Disclosure Schedule), the consolidated financial position of Codina Group and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows (excluding the cash flow statement in the Codina Group Interim Financials) for the periods then ended (subject to normal year-end adjustments in the case of the Codina Group Interim Financials). Section 4.07 of the Codina Disclosure Schedule sets forth unaudited (and in the case of AMB Codina Beacon Lakes, LLC, audited for the year ended December 31, 2004) balance sheets and income statements for the Codina Property Entities as of and for each of the three years ended December 31, 2004 or such shorter period as any such Codina Property Entity has been in existence (collectively, the “ Codina Property Financials ” and together with the Codina Group Audited Financials, the “ Codina Financials ”) and unaudited interim balance sheets and income statements as of and for the nine months ended September 30, 2004 and 2005, for the Codina Property Entities (collectively, the “ Codina Property Interim Financials ” and with the Codina Group Interim Financials, the “ Codina Interim Financials ”).  Each of the Codina Property Financials and each of the Codina Property Interim Financials fairly present, in conformity with GAAP applied on a consistent basis (except as expressly set forth on Section 4.07 of the Codina Disclosure Schedule), the financial position of the relevant Codina Property Entity as of the dates thereof and their results of operations and cash flows (excluding the cash flow statement in the Codina Property Interim Financials) for the periods then ended (subject to normal year-end adjustments in the case of the Codina Property Interim Financials).

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          Section 4.08           Internal Controls . Each Codina Entity’s system of internal controls over financial reporting is reasonably sufficient in all material respects to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (ii) that receipts and expenditures are executed in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Codina Group’s assets that would materially affect such Codina Entity’s financial statements. No significant deficiency or material weakness was identified in management’s assessment of internal controls as of December 31, 2004 (nor has any such deficiency or weakness been identified between that date and the date of this Agreement).

          Section 4.09           Absence of Certain Changes . Except as set forth on Section 4.09 of the Codina Disclosure Schedule, between December 31, 2004 (the “ Codina Balance Sheet Date ”) and the date of this Agreement, (a) the business of each Codina Entity has been conducted in the ordinary course consistent with past practices, (b) there has not been any event, change or development that, individually or in the aggregate, has had or would reasonably be expected to have a Codina Material Adverse Effect and (c) except in the ordinary course of business, there has not been any action or event, nor any authorization, commitment or agreement by any Codina Entity with respect to any action or event, that if taken or if it occurred after the date hereof would be prohibited by Section 6.01.

          Section 4.10           No Undisclosed Material Liabilities . Except as set forth on Section 4.10 of the Codina Disclosure Schedule, there are no liabilities or obligations of any Codina Entity of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances that could reasonably be expected to result in such a liability or obligation, other than:

                    (b)               liabilities or obligations disclosed and provided for in the Codina Financials or disclosed in the notes thereto,

                    (c)               liabilities or obligations incurred in the ordinary course of business consistent with past practices since December 31, 2004;

                    (d)               liabilities or obligations not incurred in the ordinary course of business that are not in excess of $250,000 in the aggregate or which are disclosed on Section 4.13 of the Codina Disclosure Schedule;

                    (e)               liabilities or obligations incurred pursuant to this Agreement;

                    (f)               liabilities and obligations associated with, arising out of or with respect to the future closure of the landfill located on the CC Property; and

                    (g)               liabilities and obligations which may occur in connection with materials or wastes disposed of or placed on CC Property in association with its former operation as a solid waste management facility.

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          Section 4.11           Litigation.

                    (a)               Except as set forth in Section 4.11(a) of the Codina Disclosure Schedule, there is no Proceeding pending or, to the Knowledge of the Contributors, threatened against, any Codina Entity or any of their respective businesses or assets or any of the directors, managers, general partners or employees of any Codina Entity or, to the Knowledge of the Contributors, the stockholders, members, limited partners or representatives of any Codina Entity (in each case insofar as any such matters relate to their activities with a Codina Entity).  No Codina Entity is subject to any outstanding judgment, injunction, order or decree (a “ Judgment ”) against such Codina Entity or naming a Codina Entity as a party or by which any of the employees or representatives of any Codina Entity is prohibited or restricted from engaging in or otherwise conducting the business of such Codina Entity as presently conducted).  Section 4.11(a)of the Codina Disclosure Schedule includes a summary of each claim, investigation, Proceeding and Judgment of which Contributors have Knowledge which would reasonably be expected to result in a liability to Codina or any of its Subsidiaries in excess of $25,000 (without application of insurance).

                    (b)               Except as set forth in Section 4.11(b) of the Codina Disclosure Schedule, to the Knowledge of the Contributors, there is no investigation or review by any Governmental Entity with respect to any Codina Entity, any of their respective employees (insofar as any such investigation or review relates to their activities with a Codina Entity) or any Codina Real Property actually pending or threatened, nor has any Governmental Entity indicated to any Codina Entity in writing or, to the Knowledge of the Contributors, verbally, an intention to conduct the same.

          Section 4.12           Compliance With Applicable Law.

                    (a)               Each Codina Entity and its businesses and operations are, and since January 1, 2003 have been, in compliance in all material respects with all Laws applicable to such Codina Entity. Except as disclosed in Section 4.12 of the Codina Disclosure Schedule, no Codina Entity has received any written notice since January 1, 2003 (i) of any administrative, civil or criminal investigation or audit (other than Tax audits) by any Governmental Entity relating to a Codina Entity or (ii) from any Governmental Entity alleging that a Codina Entity is not in compliance in any material respect with any applicable Law.

                    (b)               Except as set forth in Section 4.12(b) of the Codina Disclosure Schedule, each Codina Entity and each Codina Real Property has in effect all approvals, authorizations, certificates, filings, franchises, licenses, variances, exemptions, notices, permits and rights of or with all Governmental Entities (“ Permits ”) necessary for it to own, lease, if applicable, or otherwise hold and to operate its real properties and tangible assets, to carry on its businesses and operations as now conducted. Since January 1, 2003, there have occurred no events which (with or without notice or lapse of time or both) would constitute defaults under, violations of, or events giving to others any right of termination, amendment or cancellation, with or without notice or lapse of time or both, of, any such Permit. The transactions contemplated hereby would not reasonably be expected to cause the revocation or cancellation (with or without notice or lapse of time or both) of any such Permit.

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                    (c)               Each employee and to the Knowledge of the Contributors each independent contractor of the Codina Group and its Subsidiaries has all Permits necessary for such employee to act in the capacity that such employee functions for the Codina Group or its Subsidiary.

          Section 4.13           Contracts . Except as set forth on Section 4.13 of the Codina Disclosure Schedule, as of the date of this Agreement, no Codina Entity is a party to any of the following types of Contracts (each such Contract and each Contract disclosed in Section 4.13 of the Codina Disclosure Schedule being referred to in this Agreement as a “ Codina Significant Contract ”):

                    (b)               Contract other than a construction Contract that provides for payments to or by a Codina Entity of $100,000 or more and construction Contracts that provide for payments of $250,000 or more (including any easement or license not set forth on Schedule C);

                    (c)               Contract that contains any exclusivity provisions restricting any Codina Entity or limiting the freedom of any Codina Entity to compete in any line of business or with any Person or in any area or which would so limit the freedom of any Codina Entity after the Closing Date;

                    (d)               lease or sublease of or contract to use or exploit (whether of real or personal property) to which any Codina Entity is party, providing for either (i) annual payments after the date hereof of $25,000 or more or (ii) aggregate payments after the date hereof of $25,000 or more;

                    (e)               material Contract relating in whole or in part to the purchase or sale of (i) any Codina Real Property or (ii) any other real property by a Codina Entity;

                    (f)               Contract relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) and a statement of the amounts outstanding thereunder as of the date hereof;

                    (g)               Contract under which any Codina Entity has made or has agreed to make, directly or indirectly, any loan, capital contribution to, or acquire any capital stock or other equity interest in, any Person;

                    (h)               Contract under which any Codina Entity has any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);

                    (i)               Contract providing for indemnification of any Person with respect to liabilities relating to any current or former business or real property of any Codina Entity or any predecessor Person;

                    (j)               Property management Contracts, broker Contracts, development Contracts, construction Contracts, leasing brokerage Contracts, and condominium unit purchase and sale Contracts;

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                    (k)               Letter of credit, surety bond, performance bond, guaranty or similar instrument or arrangement, none of which has been drawn upon or performed and, to the Knowledge of the Contributors, no circumstances exist that allow any beneficiary of such letter of credit, surety bond, performance bond, guaranty or similar instrument to draw thereon or request performance thereunder;

                    (l)               Contract pursuant to which any Codina Entity has any unexpired warranty obligation, which could result in a liability in the aggregate in excess of $100,000;

                    (m)               Other than Contracts disclosed in Section 4.13(i) of the Codina Disclosure Schedule, Contract with any Governmental Entity with respect to the development or permitted uses of any Codina Real Property;

                    (n)               Contract between a Codina Entity and Mr. Codina or any of his Affiliates;

                    (o)               partnership, joint venture, limited liability company or other similar Contract or arrangement; or

                    (p)               employee benefit plan, management service, consulting, employment or other similar Contract or arrangement, and any collective bargaining agreements or other Contract with a labor union (other than for employment at-will or similar arrangements).

          The Contributors have provided or made available to FECI a true and correct copy of each Codina Significant Contract.  No Codina Entity, nor, to the Knowledge of the Contributors, any other party thereto, is in violation of or in default under (nor does there exist any condition, and no event or circumstances have occurred, which upon the passage of time or the giving of notice would cause a violation of or default under) any Codina Significant Contract which would provide the right to exercise any remedy under or to accelerate the maturity or performance of, or to cancel, terminate or modify any Codina Significant Contract. Each Codina Significant Contract is a valid and binding agreement of the Codina Entity party thereto, and, to the Knowledge of the Contributors, every other party thereto, and is in full force and effect, enforceable against the Codina Entity(ies) party thereto, and, to the Knowledge of the Contributors, every other party thereto except as such enforceability may be limited by (i) bankruptcy, reorganization, insolvency, moratorium and other similar Laws of general application from time to time in effect affecting creditors’ rights generally, (ii) by general principles of equity and (iii) the power of a court to deny enforcement of remedies generally based upon public policy.

          Section 4.14           Taxes.

                    (a)               All material Tax Returns required to be filed on or before the Closing Date with any Taxing Authority by, or on behalf of, any Codina Entity have been filed when due in accordance with all applicable Laws (taking into account any extension of time which has been granted within which to file), and all such material Tax Returns are, or shall be at the time of filing, true and complete in all material respects.

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                    (b)               Each Codina Entity has paid (or has had paid on its behalf) or has withheld and remitted to the appropriate Taxing Authority all Taxes due and payable on or before the Closing Date, or, where payment is not yet due, has established (or has had established on its behalf and for its sole benefit and recourse) in accordance with GAAP an adequate accrual for all material Taxes through the end of the last period for which such Codina Entity ordinarily records items on its books.  Each Codina Entity has paid all ad valorem Taxes with respect to its real property with respect to the period ended December 31, 2005.

                    (c)               The income and franchise Tax Returns, if any, of each Codina Entity through the Tax year ended December 31, 1999 have been examined and closed or are Returns with respect to which the applicable period for assessment under applicable Law, after giving effect to extensions or waivers, has expired.

                    (d)               There are no material Liens or encumbrances for Taxes on any of the assets of any Codina Entity.

                    (e)               (i) No federal, state, local or foreign audits, examinations, investigations or other Proceedings are pending or, to the Knowledge of the Contributors, threatened with regard to any Taxes or Tax Returns of any Codina Entity and no written notice has been received from any Taxing Authority of the expected commencement of such a proceeding; (ii) no Codina Entity has received a ruling from any Taxing Authority relating to Taxes; (iii) no Codina Entity is a party to or bound by any written agreement with any Taxing Authority; (iv) there is currently no effective agreement or other document extending, or having the effect of extending, the period of assessment or collection of any Taxes with respect to any Codina Entity; (v) no Codina Entity has been a member of an affiliated, consolidated, combined or unitary group or is party to any Tax Sharing Agreement or to any other agreement or arrangement referred to in clause (ii) or (iii) of the definition of “Tax”; and (vi) no amount of the type described in clause (ii) or (iii) of the definition of “Tax” is currently payable by any Codina Entity and no Codina Entity has entered into any agreement or arrangement with any Taxing Authority with regard to the Tax liability of any Codina Entity affecting any Tax period for which the applicable statute of limitations, after giving effect to extensions or waivers, has not expired.

                    (f)               No Codina Entity is, or ever has been, engaged in a trade or business in any jurisdiction other than the United States.  No Codina Entity has ever had a permanent establishment, permanent representative or other taxable presence in any jurisdiction other than the United States. No Codina Entity constitutes or has ever constituted a permanent establishment or permanent representative of another person.

                    (g)               No Codina Entity will be required to include any item of income in, or exclude any item of deduction from, taxable income for any Post-Closing Tax Period as a result of any (A) change in method of accounting for a Pre-Closing Tax Period, (b) installment sale or open transaction or intercompany transaction made on or before the Closing Date, or (C) prepaid amount received on or prior to the Closing Date.

                    (h)               No Codina Entity owns or has, at any time, ever owned, property that (i) is “tax-exempt use property” within the meaning of Section 168(h) of the Code or (ii) is “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.

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                    (i)               Neither Mr. Codina nor any Codina Entity has entered into, engaged in or participated in any “reportable transaction” as described in Section 1.6011-4(b) of the Treasury Regulations.

                    (j)               No Codina Entity has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code in the five years prior to the date of this Agreement.

          Section 4.15           Employee Benefits Plans.

                    (a)               “ Codina Employee Plan ” means each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar contract, plan, arrangement or policy and each other plan or arrangement providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) (each, an “ Employee Plan ”) which (i) is maintained, administered or contributed to by any Codina Entity or Affiliate of a Codina Entity as of the date of this Agreement and covers any employee or former employee of any Codina Entity, or (ii) with respect to which any Codina Entity or Affiliate of a Codina Entity has or may reasonably be expected to have any actual liability or obligation (including any such obligations under any terminated plan or arrangement. Section 4.15(a) of the Codina Disclosure Schedule sets forth all Codina Employee Plans.

                    (b)               With respect to each Codina Employee Plan and to the extent applicable, the Contributors have made available to FECI (i) current, accurate and complete copies of each such Codina Employee Plan and all material contracts relating thereto (including, without limitation, all trust agreements, insurance or annuity contracts, investment management agreements, record keeping agreements and other material documents or instruments relating thereto) and in the case any Codina Employee Plan that is not in written form, an accurate description of all material aspects of that Codina Employee Plan, (ii) in the case of any Codina Employee Plan that includes a “cash or deferred arrangement” as defined in Section 401(k)(2) of the Code, copies of all nondiscrimination testing results for that Codina Employee Plan for the three most recent plan years and (iii) copies of the three most recent Form 5500 annual reports and accompanying schedules, the most recent actuarial report (to the extent applicable) and the most recent summary plan descriptions and any summaries of material modifications thereto.

                    (c)               No Codina Entity nor any ERISA Affiliate nor any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan subject to Title IV of ERISA, any non-U.S. defined benefit plan, or any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA.

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                    (d)               Each Codina Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination from the Internal Revenue Service, and the Contributors are not aware of any reason why any such determination letter should be revoked or not be reissued. The Contributors have made available to FECI copies of the most recent Internal Revenue Service determination letters with respect to each such Codina Employee Plan. Each Codina Employee Plan has been maintained in compliance in all material respects with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan. No events have occurred with respect to any Codina Employee Plan that could reasonably expected to result in payment or assessment by or against any Codina Entity of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code.

                    (e)               The consummation of the transactions contemplated by this Agreement will not (either alone or together with any other event) entitle any employee, director or independent contractor of any Codina Entity to severance pay or accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material obligation pursuant to, any Codina Employee Plan or other employee plan or agreement.

                    (f)               No Codina Entity has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees or directors of any Codina Entity except as required to avoid excise tax under Section 4980B of the Code or to comply with any other applicable Law.  In addition, each Codina Entity has complied in all material respects with the notice and continuation requirements, and all other requirements of Section 4980B of the Code and Parts 6 and 7 of Title I of ERISA and the regulations thereunder, with respect to each Codina Employee Plan that is a group health plan within the meaning of Section 5000(b)(1) of the Code.

                    (g)               There is no Proceeding pending against or involving (and, to the Knowledge of the Contributors, there is no audit or investigation pending or threatened, and there is no Proceeding threatened, against or involving), any Codina Employee Plan or any fiduciary thereof with respect to their duties under the Codina Employee Plan or the assets of any of the trusts thereunder, before any court or arbitrator or any Governmental Entity.  In addition, with respect to each Codina Employee Plan, all premiums, contributions or other payments required to have been made by law or under the terms of any Codina Employee Plan or any contract or agreement relating thereto as of the Closing Date have been made, all material reports, returns and similar documents required to be filed with a Governmental Entity or distributed to any plan participant have been timely filed or distributed and no “prohibited transaction” has occurred within the meaning of the Code.

                    (h)               Section 4.15(h) of the Codina Disclosure Schedule identifies and the Contributors have made available to FECI true and complete copies of (i) all severance plans and agreements and employment agreements (other than offer letters for “at will” employment) with or relating to directors or executive officers of any Codina Entity, and (ii) all plans, programs, agreements and other arrangements of each Codina Entity with or relating to its directors, officers, employees or consultants which contain change in control provisions.

                    (i)               All required payments, premiums, contributions, reimbursements, or accruals with respect to the Codina Employee Plans for all periods ending prior to or as of the Closing Date shall have been made or properly accrued on the Codina Interim Financials prior to the Closing Date; and except as disclosed in Section 4.15 of the Codina Disclosure Schedule, no Codina Entity has, or will as of the Closing Date, have any material unfunded actual or contingent liabilities or obligations with respect to any Codina Employee Plan which is an employee pension benefit plan within the meaning of Section 3(2) of ERISA, that are not reflected on the Codina Interim Financials.

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                    (j)               No Codina Entity nor any ERISA Affiliate has any unfunded liabilities pursuant to any Codina Employee Plan that is not intended to be qualified under Section 401(a) of the Code and is an employee pension benefit plan within the meaning of Section 3(2) of ERISA, a nonqualified deferred compensation plan or an excess benefit plan.  Each Codina Employee Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof and has not been materially modified since October 2, 2004.

          Section 4.16           Labor and Employment Matters.

                    (a)               No Codina Entity is a party to, or bound by, any collective bargaining agreements or understandings with any labor unions or labor organizations. There is no (i) unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the Knowledge of the Contributors, threatened against any Codina Entity relating to their businesses, (ii) activity or proceeding by a labor union or representative thereof to the Knowledge of the Contributors to organize any employees of Codina or any of its Subsidiaries, or (iii) lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees, and during the last three years there has not been any such action.