UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____________ to _________________
Commission File Number 33-14751-D
FIRST AMERICAN RAILWAYS, INC.
-----------------------------
(Exact name of small business issuer as specified in its Charter)
NEVADA 87-0443800
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3700 North 29th Avenue, Suite 202; Hollywood, Florida 33020
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number (954) 920-0606
- -------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such report(s), and (2)
has been subject to such filing requirements for the past 90 days. Yes x No
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS
Check whether the issuer filed all documents and reports required to be
filed by Section 12, 13 or 15(d) of the Exchange Act after the distribution of
securities under a plan confirmed by the court. Yes No NOT APPLICABLE
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes
of common equity as of the latest practicable date:
AT MAY 5, 1997 9,355,078 SHARES OF COMMON STOCK, PAR
VALUE $.001 PER SHARE
Transitional Small Business Disclosure Format (check one): Yes [ ] No [X]
<PAGE>
INDEX
(Three Months Ended March 31, 1997)
PART I - FINANCIAL INFORMATION
PAGE
----
Item 1. Consolidated Financial Statements
Consolidated Balance Sheets 3
Consolidated Statements of Operations 4
Consolidated Statements of Cash Flows 5
Notes to Consolidated Financial Statements 6
Item 2. Plan of Operation 7
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 12
Signatures 13
2
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<TABLE>
<CAPTION>
FIRST AMERICAN RAILWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED BALANCE SHEETS
MARCH 31, DECEMBER 31,
1997 1996
(UNAUDITED)
====================================================================================================================
<S> <C> <C>
ASSETS
CURRENT:
Cash $ 5,087,692 $ $7,174,020
Restricted cash 434,997 430,834
- --------------------------------------------------------------------------------------------------------------------
Cash and cash items 5,522,689 7,604,854
Inventories 750,000 -
Prepaids and other 202,521 255,372
- --------------------------------------------------------------------------------------------------------------------
Total current assets 6,475,210 7,860,226
Fixed assets, net 33,528,701 2,413,320
Deposit for acquisition - 2,000,000
Deferred loan costs and other assets, net 1,059,702 867,107
- --------------------------------------------------------------------------------------------------------------------
$ 41,063,613 $ 13,140,653
====================================================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT:
Accounts payable $ 503,615 $ 166,722
Accrued liabilities 1,195,369 459,561
Current maturities of long-term debt 900,000 -
- --------------------------------------------------------------------------------------------------------------------
Total current liabilities 2,698,984 626,283
Long-term debt 25,900,682 8,250,682
- --------------------------------------------------------------------------------------------------------------------
Deferred income taxes and other 8,328,765 -
- --------------------------------------------------------------------------------------------------------------------
Total liabilities 36,828,431 8,876,965
- --------------------------------------------------------------------------------------------------------------------
Commitments and contingencies - -
- --------------------------------------------------------------------------------------------------------------------
Stockholders' equity (deficit):
Preferred stock ($.001 par value, 500,000 shares authorized) - -
Common stock ($.001 par value, 100,000,000 shares authorized),
9,355,778 and 9,061,078 shares issued and outstanding 9,355 9,061
Additional paid-in capital 8,984,046 8,189,798
Deficit accumulated during the development stage (4,758,219) (3,935,171)
- --------------------------------------------------------------------------------------------------------------------
Total shareholders' equity 4,235,182 4,263,688
- --------------------------------------------------------------------------------------------------------------------
$ 41,063,613 $ 13,140,653
====================================================================================================================
See accompanying notes to consolidated financial statements.
</TABLE>
3
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<TABLE>
<CAPTION>
FIRST AMERICAN RAILWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
CUMULATIVE FROM
FEBRUARY 14, 1994
(INCORPORATION) FOR THE THREE MONTHS
THROUGH, ENDED MARCH 31,
MARCH 31, 1997 1997 1996
============================================================================================================================
<S> <C> <C> <C>
EXPENSES:
Salaries and payroll taxes $ 1,919,554 $ 368,005 $ 69,249
General and administrative 989,473 265,906 73,141
Interest, net 225,591 39,601 624
Professional and consulting fees 348,563 54,690 -
Legal and accounting fees 246,477 24,829 12,450
Marketing study 176,800 - -
Trackage rights expenses 63,079 16,972 -
Amortization of deferred loan costs 270,384 49,662 -
Depreciation 11,735 3,383 530
Expenses from offerings not completed 506,563 - 36,000
- ----------------------------------------------------------------------------------------------------------------------------
Total expenses 4,758,719 823,048 191,994
- ----------------------------------------------------------------------------------------------------------------------------
Net loss, representing deficit
accumulated during the
development stage $ (4,758,219) $ (823,048) $ (191,994)
============================================================================================================================
Weighted average number of
common shares outstanding - 9,116,911 4,275,000
============================================================================================================================
Net loss per common share - ($0.09) ($0.04)
============================================================================================================================
The Company had no operating activities from February 14, 1994 (incorporation) through April 30, 1994.
See accompanying notes to consolidated financial statements.
</TABLE>
4
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<TABLE>
<CAPTION>
FIRST AMERICAN RAILWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
CUMULATIVE FROM
FEBRUARY 14, 1994
(INCORPORATION) FOR THE THREE MONTHS
THROUGH ENDED MARCH 31,
March 31, 1997 1997 1996
=========================================================================================================================
<S> <C> <C> <C>
Operating Activities:
Net loss $ (4,758,219) $ (823,048) $(191,994)
Adjustments to reconcile net loss to net
cash used in operating activities:
Salaries forgiven 136,000 - -
Depreciation 11,735 3,383 530
Amortization of deferred loan costs 270,384 49,662 -
Write-off of deferred offering costs 25,000 - -
Salaries and consulting fees paid in common stock 74,314 36,514
Changes in assets and liabilities excluding effects of
Acquisition:
Increase in restricted cash (434,997) (4,163) -
(Increase) decrease in prepaids and other (42,521) 68,859 -
Increase (decrease) in accounts payable 99,325 (67,397) (96,076)
Increase (decrease) in accrued liabilities 304,222 (155,339) (11,925)
- -------------------------------------------------------------------------------------------------------------------------
Total adjustments 443,462 (68,481) (107,471)
- -------------------------------------------------------------------------------------------------------------------------
Net cash used by operating activities (4,314,757) (891,529) (299,465)
- -------------------------------------------------------------------------------------------------------------------------
Investing Activities:
Capital expenditures (4,075,771) (1,654,099) -
Cash paid for acquisition (5,604,938) (3,460,946) -
- -------------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities (9,680,709) (5,115,045) -
- -------------------------------------------------------------------------------------------------------------------------
Financing Activities:
Borrowings from related parties 338,388 - -
Repayments of notes payable to related parties and others (338,388) - -
Net proceeds from issuance of notes payable 17,195,682 8,500,000 445,000
Repayment of notes payable (4,795,128) (4,350,128) -
Payment of loan costs and all other assets (1,328,395) (240,566) (94,599)
Net proceeds from issuance of common stock 8,035,999 10,940 43,308
Payment of offering costs (25,000) - -
- -------------------------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 19,083,158 3,920,246 393,709
- -------------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash 5,087,692 (2,086,328) -
Cash at beginning of period - 7,174,020 -
- -------------------------------------------------------------------------------------------------------------------------
Cash at end of period $ 5,087,692 $ 5,087,692 $ 94,244
=========================================================================================================================
Supplemental Disclosures:
Cash paid for interest $ 542,731 $ - $ -
Fees paid in common stock 102,188 102,188 -
Prepaids paid in common stock 100,000 100,000 -
=========================================================================================================================
See accompanying notes to consolidated financial statements.
</TABLE>
5
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FIRST AMERICAN RAILWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. Financial The consolidated financial information included herein
Statements is unaudited. Certain information and footnote disclosures
normally included in the consolidated financial statements
have been condensed or omitted pursuant to the rules and
regulations of the Securities and Exchange Commission,
although the Company believes that the disclosures made are
adequate to make the information presented not misleading.
These consolidated financial statements should be read in
conjunction with the financial statements and related notes
contained in the Company's 1996 Annual Report on Form 10-KSB.
Other than as indicated herein, there have been no significant
changes from the financial data published in said report. In
the opinion of Management, such unaudited information reflects
all adjustments, consisting only of normal recurring accruals,
necessary for a fair presentation of the unaudited information
shown.
Results for the interim period presented herein are not
necessarily indicative of results expected for the full year.
2. Acquisition On March 13, 1997, the Company purchased all of the common
stock of The Durango & Silverton Narrow Gauge Railroad Company
("D&SNG"). The purchase price consisted of the following: (i)
two promissory notes aggregating $10.05 million which are
subordinate to a purchase money loan provided by a third-party
lender in the amount of $8.5 million; (ii) 200,000 shares of
the common stock of the Company; (iii) a six-year warrant to
purchase 1,610,000 shares of the Company at an exercise price
of $3.50 per share; and (iv) cash of approximately $5 million,
including a $2 million deposit which was paid in December
1996.
For financial statement purposes, the acquisition is deemed to
have occurred on March 31, 1997. The openings for the period
from March 13, 1997 to March 31, 1997 are not deemed to be
material. The Company will not be reporting as a development
stage entity for periods beginning April 1, 1997.
In connection with the acquisition of D&SNG, the fair value of
the assets acquired was as follows:
Cash paid (net of cash acquired) $ 5,460,946
Liabilities assumed and/or incurred 24,775,102
Common stock and warrant issued 544,900
-----------
Fair value of assets acquired $30,924,940
===========
6
<PAGE>
FIRST AMERICAN RAILWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
The acquisition was accounted for under the purchase method
for accounting purposes and based upon a preliminary
allocation of the purchase price resulted in the following
significant assets acquired and liabilities assumed and/or
incurred in the Company's March 31, 1997 balance sheet:
Fixed assets $29,465,000
Inventories and other assets 1,459,940
Deferred tax liability 8,100,000
Long-term debt 17,650,000
Other Liabilities 2,220,765
The Company's unaudited proforma consolidated statements of
operations for the three months ended March 31, 1997 and 1996,
assuming the acquisition of D&SNG was effected at the
beginning of each such period are summarized as follows:
1997 1996
Total revenues $ 291,740 $ 284,260
Net loss $(1,928,528) $(1,304,954)
Loss per share $ (.21) $ (.29)
This proforma information does not purport to be indicative of
the results which may have been obtained had the acquisition
been consummated at the date assumed.
D&SNG's business is highly seasonal; historically, at least
60% of the total number of passengers who ride on D&SNG
annually do during the months of June, July and August.
7
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 2. PLAN OF OPERATION
GENERAL
The Company proposes to provide its guests with innovative, quality,
entertainment based passenger rail service. The Company is in the development
stage and to date it has had no material operations; however, the Company has
taken significant steps to commence operations of the Florida Fun-Train. In that
regard the Company has done the following: purchased its first passenger car;
entered into an agreement with Rader Railcar II, Inc. ("RRI"), a company owned
by a director and shareholder, to manufacture the remaining railcars for the
Florida Fun-Train; entered into an agreement with CSX Transportation, Inc. for
track use; entered into an agreement with the Florida Department of
Transportation for certain track usage in South Florida; selected a prospective
terminal site on the Orlando International Airport property and entered into a
letter of intent with the Greater Orlando Aviation Authority and is currently
negotiating with the Orlando Utilities Commision ("OUC") in connection with that
site and for the rights to use OUC tracks leading thereto; commenced, as an
alternative, negotiations with a land developer regarding an alternative
terminal location in Poinciana, Florida(Greater Orlando area) for a terminal
site and construction of a terminal to the Company's specifications thereon;
executed an agreement with the National Railroad Passenger Corporation ("Amtrak
Agreement") for the provision of certain technical services, (operating crew,
maintenance, etc.) and the leasing of locomotives in connection with the Florida
Fun-Train; completed a marketing study by an outside consultant (which included
discussions with wholesale travel and tour companies, rental car companies,
airlines and cruise lines); entered into an agreement with Universal Studios
Florida for joint marketing and sales efforts in connection with the Florida
Fun-Train services; and entered into a track rights agreement with Florida East
Coast Railway Company (FEC) for future use. The Company anticipates commencing
promotional rail service for the Florida Fun-Train in the summer 1997, and full
rail service in the fall 1997. During the next nine to twelve months the Company
expects to have significant capital expenditures for railcar construction,
terminal leasing and/or construction, track and leasehold improvements, and
significant operating expenses for salaries, marketing and when rail service
commences, track use.
The Company plans to use its current available funds to pay the
expenses and capital expenditures in connection with the commencement of the
operations of the Florida Fun-Train and provide working capital from prospective
leasing and financing opportunities to support the Florida Fun-Train's initial
operations to the extent that cash flow from such operations is insufficient.
8
<PAGE>
The Company has agreed to purchase additional Fun-Train railcars
pursuant to a construction agreement with RRI. The Company has contracted to
spend a maximum of approximately $8.8 million to purchase up to 11 railcars. In
connection with the Amtrak Agreement, the Company expects to pay approximately
$500,000 prior to commencing operations for leasehold improvements and other
development costs.
The railcar construction agreement with RRI required a significant down
payment with the balance of the contract price to be paid in installments;
however, this payment schedule will vary depending on the number and delivery
schedules of the cars actually purchased. The Company expects certain of the
railcars to be completed and delivery to begin in the summer 1997 and it expects
staggered delivery of additional railcars to continue during the summer 1997 so
that it can begin offering promotional rail service of the Florida Fun-Train at
that time. Service will begin with five passenger railcars in the fall 1997 and
it is anticipated to expand to eight passenger railcars by the Spring 1998.
Before the Florida Fun-Train rail operations can commence, the Company
must construct or otherwise obtain the use of terminals at each end of the
proposed route. The Company is currently in negotiations in this regard and it
is in the process of finalizing its cost estimates and determining the extent of
governmental support for these activities, if any. During the next 12 months the
Company expects to increase its work force from the fifteen persons currently
employed by the Company (seven of whom are senior management). The Company will
be required to hire approximately 70 additional employees; however, the exact
number of employees is dependent on the Company's decision with respect to
outsourcing its marketing and rail operations functions, etc.
ACQUISITION
The Company is actively pursuing its strategy of acquiring a tourist
destination train. In March 1997, the Company purchased all of the common stock
of The Durango & Silverton Narrow Gauge Railroad Company ("D&SNG"). The purchase
price consisted of the following: (i) two promissory notes aggregating
approximately $10.05 million which are subordinate to a purchase money loan
provided by a third-party lender in the amount of $8.5 million; (ii) 200,000
shares of the common stock of the Company; (iii) a six-year warrant to purchase
1,610,000 shares of the Company at an exercise price of $3.50 per share; and
(iv)cash of approximately $5 million. Portions of the seller financing are
personally guaranteed by two of the Company's officers for which the Company
will pay guaranty fees to the officers.
9
<PAGE>
DEVELOPMENT STAGE ACTIVITIES AND LIQUIDITY
GENERAL: Neither the Company (excluding its D&SNG subsidiary) nor its
predecessor by merger, First American Railways, Inc., a Florida corporation,
have had any revenue from operations, and the Company has had accumulated losses
of approximately $4.8 million for the period from February 14, 1994
(incorporation) through March 31, 1997. The Company expects such losses to
continue at least through commencement of its full rail operations in the fall
1997 and perhaps thereafter. Since inception the Company's (and its
predecessor's) activities have been funded by the private placement of its
securities and by borrowings, the net cash proceeds from which have totaled
approximately $15.2 million.
THREE MONTHS ENDED MARCH 31, 1996: In March 1996, the Company completed
a private placement of securities in which it sold an aggregate 375,004 shares
of common stock and issued $500,000 in convertible secured notes, bearing
interest at 10% per annum, for aggregate net proceeds of approximately $394,000.
THREE MONTHS ENDED MARCH 31, 1997: During the three months ended March
31, 1997, the Company had a net loss of approximately $823,000. The major
components of the loss were salary and payroll tax expense of approximately
$368,000 resulting from the addition of fourteen people (including five
executives) from the comparable period of the prior year. The loss for the three
months ended March 31, 1997, was also impacted by general and administrative
expenses of approximately $266,000 resulting from the additional expenses, i.e.
rent, insurance, etc., related to the commencing of operations for the Florida
Fun-Train.
LIQUIDITY: The Company's future cash requirements will be significant.
The Company expects that its existing cash resources, along with external
sources of cash, including prospective leasing and financing opportunities which
management believes are available on commercially reasonable terms, will be
sufficient to enable the Company to commence operations of the Florida Fun-Train
in the fall 1997. There can be no assurance, however, that operations will in
fact commence as scheduled, or that unanticipated problems will not arise which
necessitate the need for additional financing. Additionally, there can be no
assurance that the Company will be able to obtain or generate the required
capital to commence operations of the Florida Fun-Train in the fall 1997.
In connection with the acquisition of D&SNG by the Company, D&SNG
borrowed, and the Company guaranteed, $8.5 million from a commercial lending
institution pursuant to a five-year term loan, portions of which were used to
pay a pre-existing lender to fund a portion of the cash required to close the
acquisition. The
10
<PAGE>
balance was used for working capital for D&SNG's operations (approximately $1
million). This working capital and the funds generated from D&SNG's operations
are expected to be adequate to meet D&SNG's cash requirements (including capital
expenditures and debt service) for 1997. There are no material short-term or
long-term commitments for capital expenditures; however, the Company anticipates
expenditures in 1997 for property and equipment, but has not yet finalized its
plan in this regard, and does not expect such expenditures to be material.
Additionally, D&SNG is expected to incur in excess of $2 million of interest and
principal payments in 1997 resulting from the $8.5 million term loan and the
$10.05 million seller financing. Although D&SNG's business and cash flow are
historically seasonal in nature with the peak season being the months of June,
July and August, the seasonality is not expected to have a material adverse
impact on the Company's ability to meet cash requirements from existing cash
sources.
Capital expenditures and debt service in 1998 and subsequent years are
expected to be funded from the working capital generated from D&SNG's
operations. In the event that the working capital from D&SNG is not adequate to
fund D&SNG's cash requirements in 1998 and subsequent years, D&SNG will seek to
obtain unsecured lines of credit, or will borrow funds from the Company, if
available; however, there can be no assurance that these sources of funds will
be available to D&SNG in the future.
Further, there can be no assurance that the Company will not experience
adverse changes in its business prospects, its proposed operations, in the
transportation or tourism industries, or the U.S. economy generally.
To date the Company has not generated any revenue and as of March 31,
1997, it had accumulated losses of approximately $4.8 million. At March 31,
1997, the Company had working capital approximately of $3.8 million and
stockholders' equity of approximately $4.2 million.
11
<PAGE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS:
10.1 Agreement between the National Railroad Passenger Corporation and
Company dated April 28, 1997.
(b) REPORTS ON FORM 8-K:
On March 28, 1997, the Company filed a Current Report on Form 8-K with
respect to the acquisition of The Durango & Silverton Narrow Gauge
Railroad from Charles E. Bradshaw, Jr. (see note 2 of Notes to
Consolidated Financial Statements)
12
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant
has caused this form 10-QSB report to be signed on its behalf by the undersigned
hereunto duly authorized.
FIRST AMERICAN RAILWAYS, INC.
BY: /S/ ALLEN C. HARPER
-------------------------------------------
ALLEN C. HARPER, CHAIRMAN OF THE
BOARD OF DIRECTORS AND CHIEF
EXECUTIVE OFFICER
BY: /S/ DONALD P. CUMMING
-------------------------------------------
DONALD P. CUMMING, VICE PRESIDENT
AND ACTING CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL OFFICER)
DATED: MAY 12, 1997
13
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10.1 Agreement between the National Railroad Passenger Corporation
and Company dated April 28, 1997
27 Financial Data Schedule
EXHIBIT 10.1
TRANSPORTATION, MAINTENANCE, & LEASE AGREEMENT
BETWEEN
AMTRAK AND FUN TRAINS, INC.
--------------
THIS PURCHASE OF TRANSPORTATION AND MAINTENANCE SERVICES & LEASE
AGREEMENT (the "Agreement"), dated as of the 28th day of April, 1997, is entered
into by and between Fun Trains, Inc. ("Operator" or "FTI"), a Florida
corporation having its principal office at 3700 North 29 Avenue, Suite 202,
Hollywood, FL 33020, and the National Railroad Passenger Corporation ("Amtrak"),
a District of Columbia corporation having its principal office at 60
Massachusetts Avenue, N.E., Washington, D.C. 20002.
WHEREAS, Operator has negotiated agreements with CSX Transportation
("CSXT"), the Florida Department of Transportation ("FDOT") and the Orlando
Utilities Commission ("OUC") to operate an entertainment passenger train service
over tracks owned by those entities between the Miami/Fort Lauderdale and
Orlando areas in Florida; and
WHEREAS, Amtrak is engaged in the business of providing intercity
passenger rail transportation and has a statutory exclusive right to provide
such intercity rail passenger service; and
WHEREAS, Operator wishes to have Amtrak's consent to run the service
with Amtrak providing certain equipment, train and engine crews and maintenance
services; and
WHEREAS, Operator takes full responsibility for the operation of the
proposed Florida Fun Train service and any liability resulting therefrom; and
WHEREAS, Amtrak is willing to provide the requested consent and
services, all under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. SCOPE OF AGREEMENT
A. TRANSPORTATION. During the term of this Agreement, Amtrak will
supply train and engine crews daily to transport the Florida Fun Train between
the Miami/Fort Lauderdale and Orlando areas and to deadhead that train between
Miami/Fort Lauderdale and Amtrak's Hialeah facility, in accordance with the
schedule set forth in Attachment A, attached hereto and incorporated herein (the
"Service").
B. EQUIPMENT. The Florida Fun Train Service will consist of 9 cars
initially (growing to 12 and perhaps 15) provided by Operator ("FTI Cars"), 1
baggage car (another "FTI Car" provided by Operator or purchased or leased from
Amtrak), and three locomotives leased from Amtrak, all under the care, custody,
and/or control of Operator. The initial and future consists may be slightly
modified from time to time by Operator, subject to a corresponding increase or
decrease in Amtrak charges. In such an event, Operator shall provide advance
written notice to Amtrak to permit an orderly adjustment of the services.
<PAGE>
The planned equipment is also set forth in Attachment A. The Equipment Lease
Agreement for the Amtrak locomotives is incorporated into this Agreement as
Attachment B. FTI has the option to purchase a baggage car from Amtrak at fair
market value or to provide its own. The leased equipment and the FTI Cars are
referred to collectively as the "Equipment."
In the event one or more pieces of the Equipment become disabled, and Operator
requests substitution thereof, Amtrak shall make a good faith effort to furnish
suitable replacement(s) as soon as possible. However, it is clearly understood
that Amtrak is under no obligation to provide such replacements and that
additional compensation will be required for any replacement Equipment that is
provided.
C. MAINTENANCE. Amtrak will allow Operator to use Amtrak's Hialeah
Facility as its home base for maintenance and storage of the Equipment and will
provide maintenance, repair and related services to Operator in accordance with
the terms and conditions stated herein.
D. MOBILIZATION. Operator will also fund expenses required to start up
the Florida Fun Train such as custom modifications to the leased equipment and
to the Hialeah Facility to accommodate the new train and to prepare the people
who will work on it. Operator will also construct an appropriate terminal
facility at the Orlando Airport to include provisions for a crew base facility
for Amtrak personnel and for equipment servicing requirements. All planned
mobilization expenses will be subject to prior review by the Operator and
explicit approval where discretionary.
E. LIMITATION. Amtrak's responsibilities in relation to the Florida Fun
Train are limited to the specific services described in this Agreement. Amtrak
relies upon this limitation as a material condition to its entering into this
Agreement. Amtrak does not undertake to make any use of or recourse to its
existing agreements with CSXT and FDOT, or to its special statutory rights (such
as but not limited to the right to priority dispatching) in providing the
services under this Agreement. Furthermore, Amtrak provides these services to
Operator as an independent contractor, and not as a common carrier, and Amtrak
has no responsibility to any passengers or employees of the Florida Fun Train or
any other persons doing business or otherwise having a relationship with FTI.
This Agreement does not create any rights in any party not a signatory to this
Agreement.
F. AMTRAK CONSENT. On the basis of, and in reliance on, the terms
contained in this Agreement, Amtrak consents to Operator providing the Florida
Fun Train entertainment passenger train service between Fort Lauderdale and
Orlando, for the duration of this Agreement.
G. FUTURE OPERATIONS. This agreement marks the start of a relationship
that both parties hope will lead to new business opportunities, and in
particular, additional trains in Florida and elsewhere in the U.S., operated by
FTI or First American Railways, or their affiliates or subsidiaries, with
transportation and maintenance services provided by Amtrak.
H. COVENANT AGAINST COMPETITION. Amtrak shall neither operate directly
for itself nor contract with other private parties to provide a similar
entertainment train service between the Miami/Fort Lauderdale and Orlando areas
that would compete directly with the Florida Fun Train. Amtrak will also
coordinate future schedule planning with the Operator for Amtrak's own services
to minimize any adverse impact on the Florida Fun Train. Similarly, Operator
shall coordinate its service planning with Amtrak, and both parties will attempt
to work out joint ticketing and other mutually beneficial arrangements,
including potential Amtrak use of the Orlando Airport Station.
2
<PAGE>
2. TERM OF AGREEMENT
This Agreement begins on the date first written above and continues in
full force and effect for fifteen (15) years following the start of the Florida
Fun Train service on a commercial basis, unless terminated earlier pursuant to
this Agreement. The agreement may also be extended beyond this initial term by
mutual consent of the parties.
3. EQUIPMENT, TRANSPORTATION, AND PASSENGER RESPONSIBILITIES
A. GENERAL. Operator has full responsibility for ensuring that all
Florida Fun Train operations follow all governmental, commercial, and Amtrak
requirements relevant to those operations, especially those related to employee
and passenger safety. This would include any obligations that would arise by
virtue of Amtrak being held to common carrier standards, a position clearly
unintended by this Agreement.
B. AVAILABILITY AND CONDITION OF EQUIPMENT. Operator is responsible
(through maintenance contracts with Amtrak and otherwise) for making the
Equipment available and operationally reliable to permit on-time performance.
Amtrak is under no obligation to move the Equipment unless it is in good working
order and meets all Federal Railroad Administration ("FRA"), Association of
American Railroads, and Amtrak mechanical and engineering standards. As
previously noted, Amtrak has no obligation to provide substitute equipment but
will, if requested, attempt to do so.
C. ON-BOARD SERVICE. Operator is responsible for all on-board service
and for passengers, such service to be executed safely and with due regard for
Amtrak's public image and position.
D. TRANSPORTATION SERVICE. Amtrak agrees to use its best efforts to
fulfill the schedule set out in Attachment A. However, Amtrak does not guarantee
that schedule and reserves the right to change the route and to change or omit
any scheduled stops or cancel any train movement at any point, in consultation
with the Operator, if in Amtrak's judgment it is required by mechanical or
operating conditions. If any such conditions arise requiring the delay of any
train movement, Amtrak will proceed with that train movement at the earliest
possible time thereafter.
E. DISRUPTIONS. In the event of disruptions enroute which cause Amtrak
to cease operation on any train movement, Amtrak will coordinate arrangements
for disposition, enroute setout, and pickup of the Equipment with the operating
railroad. In such event and in consultation with the Operator, Amtrak will also
attempt to provide alternate bus transportation for Operator's passengers and
crews around a disruption. Any associated expenses incurred by Amtrak for
enroute disruptions or cancellations will be reimbursed by Operator. If a train
movement is canceled for mechanical or operating reasons within Amtrak's
reasonable control, Amtrak will provide Operator with a credit for such
cancellation.
F. AMTRAK'S OPERATING AUTHORITY. Notwithstanding Operator's ultimate
responsibility for the Florida Fun Train service, while Amtrak is providing
transportation, the Equipment and Operator's crews are at all times under the
exclusive operational control of Amtrak with regard to train operations, whose
instructions relating thereto must be strictly complied with. Amtrak reserves
the right of access to the Equipment by Amtrak operating crews and supervision
regarding safety and operating compliance matters.
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G. AVAILABILITY AND CONDITION OF FACILITIES. Operator has made its own
arrangements for use of Tri-Rail's Fort Lauderdale Station and for construction
and use of an Orlando Airport Station. Amtrak has no responsibility for these
stations or passenger handling at them. Operator has agreed to provide an
appropriate crew base and maintenance and servicing elements at the Orlando
Airport Station. Amtrak will provide for equipment maintenance and storage at
its Hialeah facility, making necessary improvements for the service at
Operator's expense. With appropriate arrangements, Amtrak will permit Operator's
employees and contractor access to the FTI Cars and leased baggage car for
interior maintenance and cleaning.
4. OPERATOR PERSONNEL TRAINING
Operator will cause all of its crews to be trained on FRA and Amtrak
safety and basic operating regulations. Amtrak will provide safety and operating
training to Operator's crews at the request of and at the expense of Operator;
PROVIDED, HOWEVER, that Amtrak does not undertake to perform any duty owed by
Operator with respect to the training services performed and Amtrak does not
assume any liability in providing training.
5. MAINTENANCE OF EQUIPMENT
A. ROUTINE MAINTENANCE. Amtrak will provide scheduled maintenance and
cleaning of the Equipment, except for the interiors of the FTI Cars and the
leased baggage car, in accordance with the Equipment supplier's maintenance
instructions and current Amtrak practice. Operator will provide vendor
specifications for maintenance of FTI cars. Once the interiors of the FTI cars
are known, Amtrak may propose to Operator a service package for interior
maintenance and cleaning by Amtrak personnel.
B. REPAIRS. Also with the exception of the interiors, Amtrak will
perform all repairs which, in its opinion, are necessary to the safe and proper
operation of the Equipment. Such repairs shall be performed at a suitable
facility, following appropriate vendor specifications and current Amtrak
practice. Where repair or maintenance work is discretionary, Amtrak will obtain
Operator's authorization before performing such work.
C. SERVICES AWAY FROM HOME BASE. Amtrak will arrange for the
Equipment's mechanical needs, with the exceptions previously noted, while the
Equipment is located away from the Hialeah Facility. This includes services at
the Orlando Airport station and at Amtrak's remote facilities when required for
heavier duty inspection and repair. Operator will provide appropriate facilities
for the performance of work required at the Orlando arrival and departure
location, including water and electrical service and access for the delivery of
fuel and other needs. Operator will also be responsible for transportation of
the Equipment to locations other than Hialeah and Orlando for other maintenance
as necessary.
D. REGULATORY COMPLIANCE. In performing their respective obligations
under this Agreement, both Operator and Amtrak (as Operator's contract equipment
maintenance provider) will comply with all safety and environmental regulations,
directives and instructions of the FRA and all governmental authorities
regardless upon whom such requirements are, by their terms, nominally imposed.
In performing their respective obligations under this Agreement, each party
shall be responsible for the payment of any fines assessed by any state or
federal regulatory or administrative agency in connection with the specific
duties each party has agreed to perform.
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E. INITIAL INSPECTIONS. Before put into service under this Agreement,
each of the FTI provided cars must be approved by Amtrak for passenger
operations. This will involve a review of plans and in-plant inspections by
Amtrak personnel at the expense of Operator or its designee. It is understood
that Operator has employed technical consultants and plant inspectors to help
ensure work quality, and Amtrak will coordinate directly with them.
Notwithstanding this coordination and the fact that Operator's equipment
supplier may be the ready source of payment for Amtrak review services, all
responsibility for equipment acceptance and payment rests with the Operator.
F. RIGHT OF ENTRY. All employees or agents of Operator must comply with
all Amtrak procedures, including signing a waiver statement, before being
permitted to enter onto Amtrak property.
G. STORAGE AND UTILITY SERVICES. Amtrak will provide storage and
utility services for the Equipment and for its daily maintenance and repair. The
services may require track, utility, and parts storage modifications to the
Hialeah Facility at the expense of Operator.
H. SECURITY. Amtrak will make good faith efforts to provide a safe and
secure base for the Equipment while at the Hialeah Facility, as it does for its
own equipment. Amtrak does not, however, assume any responsibility for loss or
damages that may occur to the Equipment when located at the Hialeah Facility.
Operator assumes full responsibility for determining and fulfilling the security
needs of the Equipment while at the Hialeah Facility.
I. PARTS. Operator will provide an adequate initial and continuing
supply of parts not ordinarily on hand at the Hialeah Facility and a container
for storing those parts. A procedure for the procurement, billing, and inventory
of all parts shall be agreed to by the parties.
6. FEES AND METHOD OF PAYMENT
A. The schedule of charges and rates, to the extent known at this time,
is set forth in Attachment C, generally providing for compensation for Amtrak
services and materials on a cost-plus basis. These charges and rates (e.g.
wages, benefits and supervision rates, materials handling rates, overhead rates,
and insurance premiums if applicable) are subject to periodic change and annual
adjustment by Amtrak as reflects its normal changes in cost. Likewise, minor
variations in manpower levels may occur periodically to ensure proper
performance of the Services.
B. The total estimated compensation under this contract is $500,000 for
mobilization and $4,109,392 annually for initial operations, maintenance, and
leased equipment (plus $350,000 for insurance option if elected). These amounts
are also described in Attachment C and may vary as the services become better
defined, but they are considered representative of necessary cost items.
C. For mobilization, Operator shall pay Amtrak the sum of $200,000
within ten days of the signing of this agreement, followed by three additional
payments of $100,000 each at 30 day intervals thereafter. Any increase or
decrease in the final mobilization expense shall be invoiced accordingly.
D. Beginning with first operation around October 1, 1997, Operator
shall also pay monthly, in advance, the sum of $340,000 (or more if insurance
option is elected) representing the estimated monthly operating expense.
Invoicing on a monthly basis, in arrears, will provide for rolling adjustment to
actual costs for annual operations, maintenance, and leased equipment.
5
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E. If FTI elects to purchase a baggage car from Amtrak, one shall be
made available in "as is" condition at fair market value, the price of which
shall not exceed $75,000. Payment shall be made in six monthly installments at
10% annual interest.
F. Except where payment is called for in advance, Operator shall pay
Amtrak all sums due hereunder within thirty (30) days of receipt of a monthly
invoice. Interest charges, accruing at the lesser of 1.5% per month or the
reference lending rate of the Bank of America, N.A.&S.A. will be owed on any
late payments.
G. Operator is entitled to a credit of $1,000 for any canceled train
movement where cancellation is due solely to mechanical or operating causes
within Amtrak's reasonable control.
H. Operator is also entitled to a credit against equipment lease
charges if any of the Leased Equipment is not available for its intended use due
solely to mechanical or operating reasons within Amtrak's reasonable control.
I. If Operator defaults in any payment obligation under this Agreement,
Amtrak may cancel further movement of the Equipment without refund upon notice
to Operator, in addition to seeking all other remedies. Any such cancellation
does not waive Amtrak's right to any payment due hereunder.
J. Amtrak may reopen the compensation terms of this Agreement every two
years to account for other increases in its cost of providing services under
this Agreement. Absent Amtrak's written agreement otherwise, any new
compensation terms will be retroactively effective to the date Amtrak's notice
was received.
K. Operator will send payments to:
Michael F. Dickter
Controller, Amtrak Intercity
National Railroad Passenger Corporation
210 South Canal Street, Room 560
Chicago, IL 60606
7. INDEMNITY, LIABILITY AND PROPERTY DAMAGE INSURANCE
A. Operator will defend, indemnify, and save harmless Amtrak, its
officers, employees, agents or servants, successors, assigns, and subsidiaries,
irrespective of any negligence or fault on their part (including gross
negligence and willful and wanton acts), howsoever the same occurs or is caused,
from any and all claims, liabilities (including liabilities assumed pursuant to
indemnity contract), damages, or expenses of any kind, including attorneys'
fees, for: (1) injury to, or death of any person(s) whatsoever and (2) loss,
damage, or destruction to any property, including loss of use, which arises out
of or relates to the use, occupancy, parking, storage, handling, or movement of
the Equipment, or to the service of food and/or liquor in connection with the
Florida Fun Train service; and Operator hereby releases and waives any claim
against Amtrak, its officers, employees, agents, or servants, irrespective of
any negligence or fault on their part, howsoever the same occurs or is caused,
for any loss, damage, or destruction of the FTI Cars, equipment leased by
Operator from Amtrak, or other property owned by or in the care, custody or
control of Operator.
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<PAGE>
B. Operator will defend, indemnify and save harmless Amtrak, its
officers, employees, agents, or servants, successors, assigns, and subsidiaries
from any kind and all claims, liabilities, damages, or expenses of any kind,
including attorney's and arbitration panel fees, arising out of any and all
claims for labor protection or other claims under any collective bargaining
agreement, or work stoppage actions, related to this Agreement or the Florida
Fun Train service.
C. The indemnification obligations under this Section are not limited
by the existence of any insurance policy or by any limitation on the amount or
type of damages, compensation, or benefits payable by or for Operator under
Workers' Compensation Acts, Disability Benefit Acts, or other Employee Benefits
Acts, and will survive the termination of this Agreement for any reason. Amtrak
will give Operator prompt written notice of any lawsuit or written claims which
are reasonably likely to give rise to a claim for indemnification under this
Agreement. Amtrak will, upon reasonable request of Operator, provide to Operator
such information that is in its possession relating thereto. Amtrak will not
settle any such matter without the prior written consent of Operator.
D. Operator will procure and maintain, at its own cost and expense,
during the entire period of performance under this Agreement, the types of
insurance specified below. Operator will submit a certificate of insurance
giving evidence of the required coverages prior to the commencement of the
movement of the Equipment and on an annual basis thereafter. Amtrak may refuse
to make any movement until the required certificate of insurance has been
furnished. All insurance must be procured from insurers acceptable to Amtrak.
The insurance must provide for thirty (30) days' prior written notice to be
given to Amtrak in the event coverage is substantially changed, canceled, or not
renewed. If the insurance provided is not in compliance with the requirements
listed below, Amtrak may cease movement of the Equipment until proper evidence
is provided.
WORKERS' COMPENSATION INSURANCE
A policy complying with the requirements of the statutes of
the jurisdictions in which the movement of the Equipment will be
performed, covering all employees of Operator. Employer's Liability
coverage must be included, with limits of liability of not less than
Two Million Dollars ($2,000,000) each accident or illness, or as
required by statute, whichever is higher.
GENERAL LIABILITY INSURANCE
A policy issued to and covering liability imposed upon
Operator with respect to all movements and operations to be performed
and all obligations assumed by Operator under the terms of this
Agreement. Products-completed operations, independent contractors,
liquor, and contractual liability coverages are to be included, and all
railroad exclusions are to be deleted.
Amtrak must be named as an additional insured with respect to
operations to be performed; and the policy must contain a waiver of
subrogation against Amtrak, their employees, and agents. Coverage under
this policy, or policies, must have limits of liability of not less
than Three Hundred Million Dollars ($300,000,000) per occurrence,
combined single limit for bodily injury (including disease or death),
personal injury, and property damage (including loss of use) liability.
The self-retention or deductible must not exceed $100,000.
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<PAGE>
In subsequent years, the minimum amount of coverage and the
self-retention amount may be adjusted downward and upward respectively,
by mutual agreement of the parties, in recognition of favorable claims
experience or changes in the law that limit the liability of parties.
GENERAL LIABILITY INSURANCE OPTION
Operator may fulfill its obligation to procure and maintain
General Liability Insurance under this Section 7D by :
(1)independently procuring and maintaining such insurance
with limits of not less than $2 million and a deductible
of not more than $100,000 per occurrence, and
(2)contracting with Amtrak to provide insurance under its
then existing program for the types of liability Amtrak
currently assumes under Section 7.2 of its Operating
Agreement with CSX Transportation (Note: Amtrak's current
program includes a blanket excursion policy for the first
$10 million excess of $2 million and excess policies
providing limits of $190 million excess of $10 million.),
and
(3)independently procuring and maintaining a Difference in
Condition ("DIC") insurance policy for all residual
liability not covered in subsection (2) above, and
(4)independently procuring and maintaining the required
liability insurance with limits of $100 million in excess
of $200 million.
At its sole discretion, Amtrak reserves the right to alter its
insurance program, to alter its fees, or, if the Florida Fun Train
experiences adverse loss experience, to withdraw this option
altogether. Moreover, Amtrak shall have the right to review and take
exception to any extraordinary onboard or trackside activities.
Amtrak will make a good faith effort to minimize insurance costs
through the development of new insurance programs and alternatives that
could benefit both Amtrak and Operator. Insurance charges shall also
take into account the impact of legislative changes that may occur and
overall program loss experience.
PROPERTY INSURANCE
A policy issued to and covering any property or Equipment
owned by, leased to, or used by or otherwise in the control, custody,
or possession of Operator, against all risk of physical damage usually
covered in a railroad property insurance policy. For purposes of
property insurance, the Leased Locomotives and baggage car provided by
Amtrak pursuant to Attachment B are considered Operator's property,
while the Hialeah Facility is considered Amtrak's property. Operator's
property insurance must carry limits sufficient to cover (i) the
scheduled value of all Operator property used for activities conducted
by or for the account of the Operator pursuant to this Agreement (or in
the case of the leased equipment, the Casualty Values stated in the
attached Equipment Lease Agreement) or a minimum of ten million dollars
($10,000,000), which ever is higher. Coverage must name Amtrak as
additional insured and loss payee as its interest may appear and
contain a waiver of subrogation against Amtrak. The self-retention or
deductible must not exceed $100,000.
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AUTOMOBILE
A policy issued to and covering the liability of Operator
arising out of the use of all owned, non-owned, hired, rented or leased
vehicles which bear, or are required to bear, license plates according
to the laws of the jurisdictions in which they are to be operated, and
which are not covered by General Liability insurance of Contractor. The
policy must name Amtrak as an additional insured with respect to
Contractor's operations in connection with this Agreement. Coverage
under this policy must have limits of liability of not less than five
million dollars ($5,000,000) per occurrence, combined single limit, for
bodily injury and property damage liability.
8. DISPUTE RESOLUTION
If the parties have a dispute over any matter under this Agreement,
they will attempt in good faith to resolve the dispute informally before
resorting to any other available legal rights and remedies.
9. FORCE MAJEURE
Amtrak is not liable for any failure to perform or for any delay or
cancellation in connection with any movement of the Equipment if such failure,
delay, or cancellation is due or in any manner caused by the laws, regulations,
acts, demands, orders, or interposition of any government or any subdivision or
agent thereof or by acts of God, strikes, fire, flood, earthquake, weather, war,
acts of rebellion, insurrection or terrorism, or any other cause beyond Amtrak's
control, whether similar or dissimilar to the foregoing. Amtrak shall use all
reasonable efforts to minimize the non-performance and overcome, remedy, or
remove such event as soon as reasonably practicable. During such an event,
Amtrak shall also mitigate ongoing expenses to the fullest extent possible.
10. DEFAULT AND TERMINATION
A. DEFAULT. Operator will be in default if any of the following events
occur: (i) any Federal, State or local agency denies operating authority to move
the Equipment, (ii) Operator, its assignee, or FAR becomes insolvent, ceases
doing business as a going concern, or is the subject of a petition in bankruptcy
or reorganization, or (iii) Operator fails to keep, perform or observe any
material promise, covenant or agreement set forth in this Agreement and such
failure continues for a period of thirty (30) days. Amtrak may also immediately
terminate this Agreement if Operator fails to pay any amount due hereunder and
such failure continues for a period of thirty (30) days after notice of the
failure by Amtrak to Operator.
B. AMTRAK RIGHTS FOLLOWING DEFAULT. Upon the occurrence of an event of
default, and in addition to any other rights and remedies Amtrak may have, at
its option Amtrak may: (i) declare all sums due and to become due hereunder
immediately due and payable; (ii) proceed by appropriate court action to enforce
performance by Operator of any and all of its obligations hereof and to recover
damages for the breach thereof; (iii) demand that Operator deliver the leased
locomotives and baggage car forthwith to Amtrak at Operator's expense to
Amtrak's Hialeah facility; (iv) without notice or legal process, enter into any
premises of or under control of Operator or any agent of Operator where the
leased locomotives and baggage car may be and retake all or any part thereof, in
accordance with applicable law, or (v) cease providing service until the Default
(as defined above) is cured. If such circumstances occur, Operator expressly
waives all rights to possession of the leased locomotives and all claims for
damages related to
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any such retaking. In addition, following default and upon notice to Operator,
Amtrak may terminate this Agreement. Notwithstanding the above, Amtrak agrees
that if Operator loses its trackage rights, the contract would terminate and
Amtrak would not seek recovery for the fees due under the unfinished term of
the contract.
C. WAIVER. Any waiver by Amtrak of any default on the part of Operator
in performance of any of the terms, covenants, or conditions hereof to be
performed, kept, or observed by Operator does not constitute and may not be
construed to be a waiver by Amtrak of any other subsequent default in
performance of any of the terms, covenants, and conditions.
11. ASSIGNMENT AND SUBLEASE
Operator and Amtrak must not assign, sell, convey, transfer, mortgage,
or pledge this Agreement, or in the case of the Operator, sublet the leased
equipment for operation under this Agreement (except as provided in the
Equipment Lease) without the prior written consent of the other party. However,
assignment to a wholly owned, first tier subsidiary of Operator is anticipated
and permissible.
12. GOVERNING LAW
This Agreement is governed by and must be construed in accordance with
the laws of the District of Columbia.
13. CONFIDENTIALITY
Amtrak acknowledges the confidentiality of this relationship with
respect to sensitive or proprietary business information and shall exercise
diligence (as it does with its own business information) in protecting against
disclosure of such information to any persons outside of the corporation without
Operator's express written permission. Such confidential information includes
but is not limited to: unique business methods and techniques of operation,
unique equipment designs, supplier and subcontractor arrangements, and
Operator's financial performance. All such information must be clearly marked
"confidential", or if orally or visually disclosed, must be specifically
asserted as confidential and followed up with written notice to that effect.
14. FIRST AMERICAN RAILWAYS GUARANTEE
Amtrak relies on the fact that First American Railways, Inc. primarily
and unconditionally guarantees all the obligations of Operator under this
Agreement, such guarantee provided for as Attachment D. Further, if Operator
assigns this Agreement to a wholly owned subsidiary under Section 11, FTI shall
remain responsible for all of its obligations and guarantees performance of the
assignee to the same extent provided by FAR in Attachment D.
15. NOTICES
All notices, including but not limited to requests, notifications, and
reports, given or required to be given to or by any party must be in writing,
and all such notices must be either delivered by hand, sent by certified mail
(return receipt requested), or sent by a nationally recognized overnight
delivery service addressed as follows:
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<TABLE>
<CAPTION>
If to Amtrak: If to Operator:
<S> <C>
Allan E. Edelston Thomas E. Blayney
General Manager, Atlantic Coast Services Vice President, Operations
National Railroad Passenger Corporation Fun Trains, Inc.
3100 University Boulevard South, Suite 300 3700 North 29 Avenue, Suite 202
Jacksonville, FL 32216 Hollywood, FL 33020
</TABLE>
Notices are deemed received on the date delivered to the recipient
regardless of any other date indicated thereon. Either party may change the
representative and/or address to which notification will be given hereunder by
notice in writing to the other party hereto.
16. MISCELLANEOUS
A. This Agreement constitutes the sole and entire agreement between the
parties hereto and supersedes all previous oral or written understandings,
agreements, commitments, or representations concerning the subject matter of
this Agreement. Except as otherwise provided in this Agreement, no change or
modification in this Agreement has any force or effect unless reduced to
writing, dated, and executed by both parties hereto.
B. If any provision of this Agreement is held to be unlawful, invalid,
or unenforceable, it is deemed to be deleted herefrom without prejudice to the
lawfulness, validity, and enforceability of the remaining provisions.
C. Nothing in this Agreement may be construed to authorize or allow any
violation of Amtrak's collective bargaining agreements.
D. Each party hereto is deemed to be an independent contractor.
E. The headings and captions used herein are inserted for convenience
of reference only and do not affect the meaning of any provision.
F. The provisions of Sections 1.e, 7, 10, and 14 will survive
termination of this Agreement to the extent permitted by applicable law.
------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
NATIONAL RAILROAD PASSENGER FUN TRAINS, INC.
CORPORATION
By: /s/ RONALD J. HARTMAN By: /s/ THOMAS E. BLAYNEY
-------------------------------------- ------------------------------
Ronald J. Hartman Thomas E. Blayney
Vice President, Planning & Development Vice President, Operations
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ATTACHMENT A
SERVICE AND EQUIPMENT SCHEDULES
SERVICE SCHEDULE: (Shaded areas are passenger times)
MON-THUR FRIDAY SATURDAY SUNDAY
-------- ------ -------- ------
Hialeah (DP) 7:46am 5:16am - -
Ft. Lauderdale (AR) 8:30am 6:00am - -
Ft. Lauderdale (DP) 10:30am 8:00am - -
Orlando (AR) 2:50pm 12:20pm - -
Orlando (DP) 4:30pm 1:50pm 9:00am 8:00am
Ft. Lauderdale (AR) 8:50pm 6:10pm 1:20pm 12:20pm
Ft. Lauderdale (DP) 9:20pm - - -
Hialeah (AR) 10:05pm - - -
Ft. Lauderdale (DP) - 7:40pm 3:00pm 1:50pm
Orlando (AR) - 12:00am 7:20pm 6:10pm
Orlando (DP) - - - 7:40pm
Ft. Lauderdale (AR) - - - 12:00am
Ft. Lauderdale (DP) - - - 12:30am
Hialeah (AR) - - - 1:15am
EQUIPMENT SCHEDULE:
STARTING SERVICE EXPANDED SERVICE
4 4 Entertainment Cars - FTI
5 8 Food Service Coaches - FTI
1 1 Baggage Car - FTI or Purchased or Leased
--- --- From Amtrak
10 13
2 (+1 protect) 2 (+1 protect) F-40 Locomotives - Leased from Amtrak
NOTE: The equipment configuration assumes both locomotives at the head-end of
the train.
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ATTACHMENT B
EQUIPMENT LEASE AGREEMENT
BACKGROUND
Fun Trains, Inc. ("FTI" or "Operator"), a corporation organized under the
law of the State of Florida, with its principal office at 3700 North 29 Avenue,
Suite 202, Hollywood, FL 33020, desires to lease from the National Railroad
Passenger Corporation ("Amtrak"), a corporation organized under 49 USC Section
24101 ET SEQ. and the laws of the District of Columbia, with its principal
office at 60 Massachusetts Avenue, N.E., Washington, D.C. 20002, three
locomotives for use in its Florida Fun Train service. Under a separate
Transportation and Maintenance Agreement, executed simultaneously with this
Equipment Lease Agreement (and into which this Equipment Lease Agreement is
incorporated by reference), Amtrak agrees to provide operating crews for the
locomotives (and other related services) for the Florida Fun Train service.
Amtrak is willing to lease three locomotives to FTI under the following terms
and conditions.
THE AGREEMENT
1. LEASE (UNITS TO BE DETERMINED)
Operator leases from Amtrak three F-40 diesel locomotives (with 800kw
head-end power), units # ______________, ______________, and
_______________ (collectively, the "Leased Equipment") together with all
replacement parts, additions, repairs and accessories incorporated in
and/or affixed to the Leased Equipment. Operator shall also have the
option of leasing a baggage car from Amtrak if Operator does not supply
one from its own sources or purchase one from Amtrak, in which case the
baggage car would become part of the Leased Equipment.
2. TERM
a. Amtrak will first deliver the Leased Equipment to Operator at
Amtrak's facility in Beech Grove, Indiana on or about July 1,
1997, for approximately 30 days of conditioning and then for
transportation to Denver and then Hialeah, Florida (all
transportation at Operator's expense) on planned dates of
September 1 for the first locomotive and baggage car, September 15
for the second locomotive, and September 20 for the third
locomotive. The lease term runs from first delivery (July 1, 1997)
for a period of two years.
b. FTI may renew this lease for up to three additional one-year terms
by notifying Amtrak at least 60 days before expiration of the
current term.
3. CASUALTY/CONDEMNATION (CASUALTY VALUES TO BE DETERMINED)
a. Operator will promptly notify Amtrak if any of the Leased
Equipment is lost, stolen, confiscated or otherwise taken by any
government entity, destroyed, irreparably damaged, permanently
rendered unfit for use, or Operator and Amtrak mutually agree is
damaged beyond economical limit of repair, from any cause
whatsoever, other than acts or omissions of Amtrak (any such
occurrence being hereinafter called a "Casualty Occurrence"). On
the payment date next following the date of any Casualty
Occurrence, Operator will pay Amtrak the amount of
$__________________ ("Locomotive Casualty Value").
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b. Upon payment of the applicable Casualty Values, the terms of this
Lease will no longer apply to the units of Leased Equipment that
have suffered a Casualty Occurrence and title to and rights in
such Leased Equipment will vest in Operator. Subject to
availability, Amtrak may substitute another permanent locomotive
or baggage car to be subject to the terms of this Lease, with
appropriate adjustments to reflect the equipment provided. Also
subject to availability, Amtrak may provide a temporary substitute
locomotive, which the Operator will pay for on a daily rental
basis until any substitute permanent locomotive can be painted the
Florida Fun Train colors and otherwise be made ready for service.
Operator will furnish Amtrak with certificates or other evidence
of compliance with this Section 3 as may be reasonably required.
4. WARRANTIES AND REPRESENTATIONS
a. Operator acknowledges that Amtrak has inadequate knowledge or
information as to the suitability of the Leased Equipment for
Operator's purposes and Amtrak's decision to enter into this Lease
is made in reliance on Operator's undertakings herein. THE LEASED
EQUIPMENT IS PROVIDED AS-IS, AND AMTRAK MUST NOT BE DEEMED TO HAVE
GIVEN ANY THING ELSE THAN AS-IS EQUIPMENT AND AMTRAK HEREBY
EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE MERCHANTABILITY, FITNESS
FOR USE OR OPERATION, CONDITION OR DESIGN OF THE EQUIPMENT OR THE
QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP THEREIN.
b. Notwithstanding subpart a. above, at no charge to FTI, Amtrak will
repair a catastrophic failure of any of the following locomotive
components, unless such failure results from FTI's misuse, abuse,
derailment, or other accident:
(1) engine, if four or more assemblies must be replaced at
any one time or if the gear train or crankshaft has failed,
(2) AR10 alternator,
(3) turbocharger,
(4) air compressor.
In addition, the rent charges for a leased locomotive experiencing
such failure will be abated until the repaired locomotive or a
substitute is returned to FTI service.
5. LIABILITY
Amtrak will not be liable in contract or tort because of any defect
whether hidden, latent, or otherwise discoverable or nondiscoverable
respecting the Leased Equipment. Operator must not assert any claim
whatsoever against Amtrak based on any representation or warranty
disclaimed in Section 4. Operator further agrees, regardless of cause,
not to assert any claim whatsoever against Amtrak for loss of
anticipatory profits or consequential damages.
14
<PAGE>
6. COMPLIANCE WITH LAW - REPAIR AND MAINTENANCE
Operator will comply with all applicable FRA requirements, the
interchange rules of the AAR, and all other applicable laws, regulations
and requirements with respect to the use, maintenance and operation of
the Leased Equipment during this Lease. Nothing contained herein may be
construed to require Operator to make modifications, alterations, or
additions to the Leased Equipment in order to comply with applicable laws
and regulations. If any modifications, alterations, or additions to the
Leased Equipment is made to comply with applicable laws or regulations,
Operator bears the cost of doing so. The maintenance of the Leased
Equipment is addressed further in the Transportation and Maintenance
Agreement into which this Equipment Lease Agreement is incorporated.
7. APPEARANCE OF EQUIPMENT
Operator may repaint and otherwise modify the appearance of the Leased
Equipment to match the color scheme and design of the Florida Fun Train,
subject to the following conditions; Operator must: (A) obtain Amtrak's
advance approval of all modifications or decorations; (B) retain and
maintain the Leased Equipment identification number set forth above but
no other Amtrak markings, and (C) restore the Leased Equipment to its
original appearance before returning it to Amtrak. Operator will not
allow the name of any person, association, corporation or other entity to
be placed on the Leased Equipment as a designation that might be
interpreted as a claim of ownership without Amtrak's written consent to
both the form and content of the placement.
8. INSPECTION OF LEASED EQUIPMENT BY AMTRAK
Amtrak is entitled to enter upon Operator's premises or wherever the
Leased Equipment is located at any reasonable time and upon reasonable
notice to inspect the Leased Equipment, provided it does not interfere
with the efficient and timely operation of the Florida Fun Train service.
9. PURCHASE OPTION
At the end of the second year of this lease, Operator may purchase the
Equipment for its fair market value at its then existing condition and
location. Upon the completion of such a purchase, this Lease would
terminate.
10. RETURN OF LEASED EQUIPMENT TO AMTRAK
At the end of the lease term, Operator will return the Leased Equipment
to Amtrak's facility in Beech Grove, Indiana. The Leased Equipment is to
be clean, and in the condition in which it was delivered at the start of
this Lease (normal wear and tear excepted). Amtrak and Operator will
jointly inspect the Leased Equipment. Operator is solely responsible for
the return condition of the Leased Equipment.
11. ASSIGNMENT AND USE BY OPERATOR
a. Operator must not assign or sublet its interest under this Lease,
or any part hereof, or permit the use or operation of the Leased
Equipment by any other person, firm or corporation without the
prior written consent of Amtrak. However, assignment to a wholly
owned, first tier subsidiary is anticipated and permissible.
15
<PAGE>
b. Operator must not misuse, fail to maintain, sell, rent, lend,
encumber or transfer the Leased Equipment, except as provided in
subpart a of this Section 11.
c. Operator must not cause the Leased Equipment to be operated,
maintained or repaired outside of the United States of America.
d. Even if consented to, an assignment or sublease does not relieve
Operator of its obligations under this Lease unless Amtrak
explicitly relieves Operator of those obligations in writing.
12. ASSIGNMENT BY AMTRAK
Amtrak may at any time assign its rights and obligations hereunder. In
such event Amtrak's assignee has the rights, powers, privileges and
remedies of Amtrak hereunder, to the extent provided in the assignment.
However, no assignment will relieve Amtrak of its obligations hereunder.
Amtrak/Assignor will notify Operator of any assignment within a
reasonable time. Amtrak/Assignor will indemnify Operator for any
liability Operator incurs due to Amtrak/Assignor's failure to notify
Operator of such assignment within a reasonable time.
13. NOTICES
Unless otherwise specifically provided, any notices to be given under
this Lease must be given by certified mail, postage prepaid, or express
courier, in the following manner:
a. Notices from Amtrak to Operator must be sent to:
Thomas E. Blayney
Vice President, Operations
Fun Trains, Inc.
3700 North 29 Avenue, Suite 202
Hollywood, FL 33020
b. Notices from Operator to Amtrak must be sent to:
Allan F. Edelston
General Manager, Atlantic Coast Services
National Railroad Passenger Corporation
3100 University Boulevard South, Suite 300
Jacksonville. FL 32216
14. QUIET ENJOYMENT
So long as Operator complies with the terms and provisions hereof,
Operator is entitled to the use and possession of the Leased Equipment
according to the terms of this Lease without interference by Amtrak or by
any party lawfully claiming by or through Amtrak.
16
<PAGE>
15. PROTECTION OF AMTRAK'S INTEREST
a. Amtrak may, at its option, require Operator to file this Lease
with the Surface Transportation Board and elsewhere to protect
Amtrak's title to the Leased Equipment. Operator will execute,
acknowledge and deliver to Amtrak any and all further instruments
reasonably requested by Amtrak for the purpose of protecting such
title. Operator will take any other reasonable action requested by
Amtrak or otherwise necessary and expedient to preserve or perfect
Amtrak's interest in the Leased Equipment.
b. Amtrak retains title to all Leased Equipment. Operator must keep
the Leased Equipment free from liens or claims and must not permit
Amtrak's title or rights to become encumbered or impaired.
16. REPORTS
Operator will prepare and file any and all reports (other than tax
returns) to be filed by Amtrak with any regulatory authority by reason of
Amtrak's ownership or lease of the Leased Equipment (providing a copy of
all such filings to Amtrak) upon request within a reasonable time before
the required filing date. If Operator is not permitted to file such
reports, Operator will deliver them to Amtrak.
17. TAXES
Operator, or Amtrak at Operator's request and expense, will report, pay
and discharge when due any license and registration fees, assessments,
use and property taxes, gross receipts taxes arising out of this Lease,
including without limitation amounts payable under any Section hereof,
and other taxes (excluding any tax measured by Amtrak's net income),
together with any penalties or interest thereon, imposed by any
government authority upon the Leased Equipment, whether or not assessed
against or in the name of Amtrak or Operator.
18. PERFORMANCE BY AMTRAK OF OPERATOR'S OBLIGATIONS
If Operator fails to promptly perform any of its obligations under this
Lease, Amtrak may, at its option, perform such obligations for the
account of Operator without thereby waiving such default. Operator will
pay Amtrak on demand any amount paid or expense (including reasonable
attorney's fees) incurred by Amtrak in the performance of such
obligations, together with interest at the lesser of 1.5% per month or
the reference lending rate of the Bank of America, N.A.&S.A. until paid.
19. CHOICE OF LAW
This Lease is governed by and must be construed in accordance with the
laws of the District of Columbia.
20. MISCELLANEOUS
a. If any statute governing any proceeding hereunder specifies the
amount of Amtrak's deficiency or other damages for breach of this
Lease by Operator, Amtrak is entitled to an amount equal to that
allowed under such statue.
17
<PAGE>
b. Amtrak's remedies hereunder are cumulative and may be exercised
concurrently or consecutively, and are in addition to all other
remedies in its favor existing at law or in equity. Operator
waives any requirements of law which might limit or modify the
remedies herein provided, and any claim to offset against the
rental payments due hereunder. Amtrak has all rights provided for
in any bankruptcy act, including the right to take possession of
the Leased Equipment upon any event of default hereunder,
regardless of whether Operator is in reorganization.
c. The parties' obligations, except to pay rent, are subject to force
majeure (including strikes, riots, accidents, acts of God, or
other causes beyond the control of the party claiming such force
majeure as an excuse for non-performance), but only as long as,
and to the extent that, such force majeure prevents performance of
such obligations. Amtrak shall use all reasonable efforts to
minimize the non-performance and overcome, remedy, or remove such
event as soon as possible.
d. Operator bears all transportation charges associated with
delivering and returning the Leased Equipment.
e. This Lease is irrevocable for the full term hereof and is binding
upon and inures to the benefit of the parties and their proper
successors and assigns.
f. The provisions of Sections 4, 5 and 18 will survive the
termination of this Lease.
g. The general provisions of the Transportation, Maintenance, and
Lease Agreement, to the extent applicable, are incorporated into
this lease by reference.
-----------------
IN WITNESS WHEREOF the parties hereto, intending to be legally bound
thereby, have executed this Equipment Lease Agreement effective as of the date
first above written.
NATIONAL RAILROAD PASSENGER CORPORATION
/S/ RONALD J. HARTMAN
------------------------
Ronald J. Hartman
Vice President, Planning and Development
FUN TRAINS, INC.
/S/ THOMAS E. BLAYNEY
-----------------------
Thomas E. Blayney
Vice President, Operations
18
<PAGE>
<TABLE>
<CAPTION>
ATTACHMENT C
COMPENSATION
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
COST ELEMENTS ESTIMATED COST
-------------------------------------------------------------------------------------------------
CATEGORY DIRECT INDIRECT % OR FLAT RATE FUNCTIONAL ITEM AMOUNT
- ------------------------------------------------------------------------------------------------------------------------------------
TRANSPORTATION Labor 79.43% Benefits & Supv T&E Crews $ 1,317,821
Expenses -
- ------------------------------------------------------------------------------------------------------------------------------------
MAINTENANCE Labor 88.47% Benefits & Supv Fuel $ 621,320
64.00% Shop Overhead Hialeah Maint. Crews $ 633,143
Expenses - Materials $ 257,020
Materials & Supp. 9.37% Handling Subcontracts $ 163,800
Fuel 9.37% Handling Off-site Maintenance $ 60,546
Subcontract 5.00% Management
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING MANAGEMENT Labor 55.66% Benefits Train Manager $ 75,495
Expenses - Service Disruption TBD
Subcontract 5.00% Management Ongoing Training & Qual. TBD
- ------------------------------------------------------------------------------------------------------------------------------------
G&A AND FEE - 15% of above G&A and Fee $ 469,372
- ------------------------------------------------------------------------------------------------------------------------------------
LEASED EQUIPMENT Transportation $2/car mile (in-service tow) Transportation $ 45,500
$25/train mile (spec. move)
Lease Payment $425/day/unit (Loco) Lease $ 465,375
$250/day (Baggage) -
- ------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL ESTIMATED ANNUAL COST $ 4,109,392
- ------------------------------------------------------------------------------------------------------------------------------------
INSURANCE OPTION Premium First year price $10M x $2M (Excursion) TBD
$190M x $10M $ 350,000
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL ESTIMATED ANNUAL COST W/INSURANCE OPTION $ 4,459,392
- ------------------------------------------------------------------------------------------------------------------------------------
MOBILIZATION Technical Assist. Principal - $1,000/day Technical Review $ -
and Training Sr. Staff - $750/day Acceptance-FAR Cars (FAR Sub)
Construction (w/ up to $50,000 credit) Hialeah Facility $ 111,900
T&E As above Initial Qualifying $ 162,250
Maintenance As above Initial Training $ 115,734
Set-up & Testing $ 83,250
Promotional Runs -
- ------------------------------------------------------------------------------------------------------------------------------------
G&A AND FEE - 6% of above (w/ credit) G&A and Fee $ 26,866
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL ESTIMATED MOBILIZATION COST $ 500,000
----------------------------------------------------
</TABLE>
<PAGE>
ATTACHMENT D
FIRST AMERICAN RAILWAYS GUARANTEE
First American Railways, Inc. ("FAR") is the parent corporation of Fun
Trains, Inc. (FTI"), owning 100% of all the issued and outstanding voting common
stock of FTI. FAR acknowledges that it directly benefits from FTI entering into
the Transportation, Maintenance, and Lease Agreement ("Agreement") to which this
Guarantee is attached and that the National Railroad Passenger Corporation
("Amtrak") would not have entered into the Agreement without FAR providing this
Guarantee. All terms not specifically defined hereunder will have the same
meaning set forth in the Agreement.
In consideration of the foregoing, FAR hereby primarily and
unconditionally guarantees the full, timely and faithful performance of all the
obligations of FTI under the Agreement, including but not limited to FTI's
payment obligations thereunder and to FTI's indemnity and insurance
requirements. FAR expressly acknowledges that its liability hereunder is primary
and will not be affected by the discharge or release of FTI's obligations,
whether by operation of law or by taking or release of additional guarantors or
security for performance of the Agreement.
FAR's obligations under this Agreement will not be released by the
insolvency of FTI, by impossibility of performance by FTI, or by the assertion
by Amtrak of any right or remedy it may have under this Guarantee, or any waiver
or failure to exercise, or forbearance in exercising, any such right or remedy.
FAR's obligations under this Guarantee extend to future amendments of, and will
survive any expiration or termination of this Agreement until all of FTI's
obligations have been fulfilled.
FAR expressly waives any rights it may have to: (i) presentment, demand,
or notice of any kind; and (ii) any suretyship or similar defenses, including
the right to require Amtrak to proceed against FTI or to pursue any other remedy
against FTI. FAR agrees to pay reasonable attorney's fees and all other costs
and expenses which may be incurred by Amtrak in the enforcement of this
Guarantee.
This Guarantee inures to the benefit of Amtrak, its successors, and
assigns and remains binding on FAR, its successors, and assigns. This Guarantee
shall remain in full force and effect notwithstanding any assignment by FTI of
the Agreement or any of its rights thereunder. This Guarantee may not be revoked
or assigned by FAR, and any purported revocation or assignment is null and void,
unless otherwise agreed to in writing by Amtrak.
This Guarantee is governed by and shall be construed in accordance with
the laws of the District of Columbia. Any and all amounts payable under this
Guarantee are due and payable upon demand by Amtrak.
The undersigned officer of FAR is duly authorized and empowered to
execute this Guarantee and bind FAR to its obligations hereunder.
Executed this 28th day of April, 1997
/s/ RAYMOND MONTELEONE
-------------------------------------
Raymond Monteleone
President and Chief Operating Officer
First American Railways, Inc.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 5,522,689
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 750,000
<CURRENT-ASSETS> 6,475,210
<PP&E> 33,528,701
<DEPRECIATION> 0
<TOTAL-ASSETS> 41,063,613
<CURRENT-LIABILITIES> 2,698,984
<BONDS> 25,900,682
0
0
<COMMON> 9,355
<OTHER-SE> 4,225,827
<TOTAL-LIABILITY-AND-EQUITY> 41,063,613
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 783,447
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 39,601
<INCOME-PRETAX> (823,048)
<INCOME-TAX> 0
<INCOME-CONTINUING> (823,048)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (823,048)
<EPS-PRIMARY> (.09)
<EPS-DILUTED> (.09)
</TABLE>
