FIRST AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
between
FAIRFIELD ACCEPTANCE CORPORATION,
and
BANKBOSTON, N.A.,
INDIVIDUALLY AND AS AGENT
THIS FIRST AMENDMENT (this "Amendment") dated as of July 13, 1998, is
made by and among FAIRFIELD ACCEPTANCE CORPORATION, an Arkansas domiciled
Delaware corporation ("FAC-Arkansas"), FAIRFIELD ACCEPTANCE CORPORATION-NEVADA,
a Nevada domiciled Delaware corporation ("FAC-Nevada"), BANKBOSTON, N.A., a
national banking association ("BKB"), and BANKBOSTON, N.A., as agent for itself
and the Banks (the "Agent"), all parties to a certain Amended and Restated
Revolving Credit Agreement dated as of January 15, 1998, ( the "Credit
Agreement"), and BKB, as Collateral Agent ("Collateral Agent") under that
certain Collateral Agency Agreement, dated as of January 15, 1998, by and among
the parties hereto (including the Guarantors, as defined below) BKB, as agent
under the FCI Credit Agreement, BancBoston Securities, Inc. and EagleFunding
Capital Corporation. This Amendment is joined in by Fairfield Communities, Inc.,
a Delaware corporation ("FCI"), Fairfield Myrtle Beach, Inc. ("FMB"), Vacation
Break USA, Inc. ("Vacation Break"), Sea Gardens Beach and Tennis Resorts, Inc.
("SGR"), Vacation Break Resorts, Inc. ("VBR"), Vacation Break Resorts at Star
Island, Inc. ("VBRS"), Palm Vacation Group ("PVG") and Ocean Ranch Vacation
Group ("ORV") (FCI, FMB, Vacation Break, SGR, VBR, VBRS, PVG and ORV are
hereinafter collectively referred to as the "Guarantors") by reason of the
Amended and Restated Unconditional Payment and Performance Guaranty, dated as of
January 15, 1998, from the Guarantors in favor of the Agent (the "FAC
Guaranty"). All capitalized terms used herein and not otherwise defined shall
have the same respective meanings herein as in the Credit Agreement.
WHEREAS, FAC-Arkansas is the original Borrower under the Credit
Agreement and in connection therewith has executed and delivered to the
Collateral Agent that certain Amended and Restated Security Agreement, dated as
of January 15, 1998, (the "FAC Security Agreement");
WHEREAS, FAC-Arkansas is reorganizing its operations pursuant to which,
among other things, it is proposing to merge with FAC-Nevada, effective as of
July 13, 1998, with the surviving corporation in such merger being FAC-Nevada
(the "Merger");
WHEREAS, immediately following said Merger, FAC-Nevada and its
Subsidiaries will have their places of business and offices located in the State
of Nevada;
WHEREAS, the Credit Agreement subjects such actions by FAC-Nevada and
FAC-Arkansas to certain pre-conditions and approvals;
WHEREAS, subject to the terms and conditions of this Amendment,
FAC-Arkansas and FAC-Nevada have requested that Agent and BKB consent to the
foregoing transactions by FAC-Arkansas and FAC Nevada;
WHEREAS, FAC-Nevada, BKB and the Agent desire to make certain
additional clarifying and conforming changes to the Credit Agreement to (i)
accurately reflect the effects of the Merger, (ii) provide for the modification
and restatement of certain intercompany arrangements between FAC-Nevada and FCI,
(iii) provide for the modification of the term "Contract Settlement Date" and
(iii) approve an additional Project being developed by FCI as an "Approved
Project" under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, FAC, BKB, the
Guarantors and the Agent hereby agree as follows:
ss.1. Consent to Merger. Notwithstanding anything to the contrary contained
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in the Credit Agreement, and subject to the conditions set forth in Section 5
below, BKB and the Agent hereby consent to the following:
a. The Merger;
b. The location of FAC-Nevada's and its Subsidiaries
offices (including their chief executive offices) at
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000.
d. The execution of an Amended and Restated Tax Sharing
Agreement and Fifth Amended and Restated Operating
Agreement each in a form and substance satisfactory
to the Banks and the Agent; and
e. The transfer of the miscellaneous items lock box
account required under the Credit Agreement from
First Commercial Bank, N.A. of Little Rock, Arkansas
to First Security Bank, N.A. ("First Security") of
Las Vegas, provided that promptly following the
opening of such accounts, Borrower shall cause First
Security to execute an Account Agreement in a form
and substance satisfactory to Agent.
ss.2. Assumption of Obligations by FAC-Nevada. Upon the effectiveness
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of the Merger, FAC-Nevada agrees with the Banks, the Agent and the Collateral
Agent to assume all of FAC-Arkansas' obligations, liabilities, and
responsibilities under the Credit Agreement, FAC Security Agreement, and all
other Loan Documents executed in connection therewith or ancillary thereto, in
the same manner as if FAC-Nevada were the original party to said agreements.
ss.3. Amendments to Credit Agreement. FAC-Nevada, BKB and the Agent hereby
------------------------------
agree to amend the Credit Agreement, effective immediately following the Merger,
as follows:
ss.3.1. The definitions of "Borrower", "FAC", "Operating Agreement" and
"Tax Sharing Agreement" appearing in Section 1.1 of the Credit Agreement are
hereby amended by deleting said definitions in their entirety and substituting
therefor the following new definitions:
"Borrower. Fairfield Acceptance Corporation-Nevada, a Delaware corporation
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and a wholly-owned subsidiary of FCI, and successor by merger to Fairfield
Acceptance Corporation, a Delaware corporation."
"FAC. Fairfield Acceptance Corporation-Nevada, a Delaware corporation and a
---
wholly-owned subsidiary of FCI, and a successor by merger to Fairfield
Acceptance Corporation, a Delaware corporation."
"Operating Agreement. The Fifth Amended and Restated Operating Agreement,
--------------------
dated as of July 14, 1998, among Borrower, FCI, FMB and the VB Originating
Subsidiaries."
"Tax Sharing Agreement. The Second Amended and Restated Tax Sharing
-----------------------
Agreement, dated as of July 14, 1998, among FCI and Borrower."
ss.3.2. BKB and Agent hereby approve of the Project to be known as
Fairfield Daytona Beach at Ocean Walk located in Daytona Beach, Florida pursuant
to Clause (ii)(b) of the definition of "Approved Project" appearing in Section
1.1 of the Credit Agreement.
ss.3.3. Section 1.1 of the Credit Agreement is further amended by
inserting the words "or on any date on which Borrower sells Base Contracts
pursuant to Section 9.5.2(i) hereof" at the end of the definition of "Contract
Settlement Date".
ss.3.4 Section 8.2 of the Credit Agreement is amended by deleting the
address "1100 Executive Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000" and inserting
the address "7730 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000.
ss.3.5. The notice addresses under the Credit Agreement for Borrower shall
be as follows:
Fairfield Acceptance Corporation-Nevada
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
ss.4. GUARANTORS' CONSENT. The Guarantors hereby consent to the
--------------------
amendment to the Credit Agreement set forth in this Amendment, and confirm their
obligations to the Agent and the Banks under the FAC Guaranty and the FAC
Guaranty shall extend to and include the obligations of the Borrower under the
Credit Agreement as amended by this Amendment. Each of the Guarantors agrees
that all of its obligations to the Agent and the Banks evidenced by or otherwise
arising under the FAC Guaranty are in full force and effect and are hereby
ratified and confirmed in all respects.
ss.5. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is
---------------------------
subject to satisfaction of all of the following conditions:
(a) Opinions of Counsel. BKB, the Agent and the Collateral Agent shall
-------------------
have received a legal opinion addressed to BKB, the Agent and the
Collateral Agent, in form and substance satisfactory to BKB, the Agent
and the Collateral Agent, from Xxxxx Xxxx as to enforceability of this
Amendment, the due incorporation, legal existence and good standing of
FAC-Nevada and its qualification to do business in the State of
Nevada, its authority to execute and deliver the Loan Documents and
other documents to which it is a party, the effectiveness of the
Merger and the assumption of the Obligations. BKB, the Agent and the
Collateral Agent shall have received a favorable legal opinion
addressed to BKB, the Agent and the Collateral Agent, in form and
substance satisfactory to BKB, the Agent and the Collateral Agent,
from special Nevada Counsel to FAC-Nevada, as to the perfection and
continuation of the security interests in the Collateral described in
the FAC Security Agreement.
(b) Corporate Action. All corporate action necessary for the valid
----------------
execution, delivery and performance by each of FAC,
FAC-Nevada, FCI, FMB, Vacation Break and the VB Originating
Subsidiaries of this Amendment shall have been duly and
effectively taken and otherwise be duly authorized, and
satisfactory evidence thereof shall have been provided to the
Agent and BKB.
(c) Merger. BKB and the Agent shall have received a certified copy
------
of the Articles of Merger between FAC-Arkansas and FAC-Nevada,
as filed with the Secretary of State of the State of Delaware,
showing that FAC-Nevada is the surviving corporation in the
Merger;
(d) Validity of Liens and UCCs. The FAC Security Agreement shall be
--------------------------
effective to create in favor of the Collateral Agent a legal,
valid and enforceable first (except for Permitted Liens entitled
to priority under applicable law) security interest and lien upon
the Collateral described in the FAC Security Agreement. All
filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Collateral Agent to
protect, preserve and continue such security interests shall have
been duly effected, and in connection therewith BKB, the Agent
and the Collateral Agent shall have received proof of filing of
Uniform Commercial Code Financing Statements on Form UCC-1 (or
UCC-3, in the case of Amendments) for FAC-Nevada, such UCC-1s or
UCC-3s to be in form and substance and filed in such
jurisdictions as is satisfactory to BKB, the Agent and the
Collateral Agent.
(e) Organizational Documents. BKB and the Agent shall have
--------------------------
received copies of the Certificate of Incorporation and Bylaws
of FAC-Nevada, certified by the Secretary of FAC-Nevada to be
true and correct.
(f) FCI Amendment. BKB and the Agent shall have received evidence
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satisfactory to it of the occurrence of all conditions
precedent to the effectiveness of that certain First Amendment
to the FCI Credit Agreement among FCI, BKB, the FCI Agent and
Collateral Agent, dated of even date herewith.
ss.6. REPRESENTATIONS AND WARRANTIES. Each of FAC-Arkansas, FAC-Nevada,
-------------------------------
FCI, FMB, Vacation Break and the VB Originating Subsidiaries as applicable,
hereby represents and warrants to BKB and the Agent as follows:
(a) Representations and Warranties in Credit Agreement. The
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representations and warranties of FAC-Arkansas, FCI, FMB,
Vacation Break and the VB Originating Subsidiaries, as the case
may be, contained in the Loan Documents were true and correct in
all material respects when made and continue to be true and
correct in all material respects on the date hereof, with the
same effect as if made at or as of the date hereof (except to the
extent of changes resulting from transactions contemplated or
permitted by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly
to an earlier date), and no Default or Event of Default has
occurred or is continuing under the Credit Agreement.
(b) Authority, No Conflicts, Etc. The execution, delivery and
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performance by each of FAC-Arkansas, FAC-Nevada, FCI, FMB,
Vacation Break and the VB Originating Subsidiaries, as the case
may be, of this Amendment and the consummation of the
transactions contemplated hereby, (i) are within the corporate
power of each respective party and have been duly authorized by
all necessary corporate action on the part of each respective
party, (ii) do not require any approval or consent of, or filing
with, any governmental authority or other third party, and (iii)
do not conflict with, constitute a breach or default under or
result in the imposition of any lien or encumbrance pursuant to
any agreement, instrument or other document to which any of such
entity is a party or by which any such party or any of its
properties are bound or affected.
(c) Enforceability of Obligations. This Amendment, the Credit
-------------------------------
Agreement as amended hereby, and the FAC Guaranty and the other
Loan Documents constitute the legal, valid and binding
obligations of each of FAC-Arkansas, FAC-Nevada, FCI and FMB,
Vacation Break and the VB Originating Subsidiaries, as the case
may be, enforceable against such party in accordance with their
respective terms, provided that (i) enforcement may be limited by
--------
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and
remedies of creditors, and (ii) enforcement may be subject to
general principles of equity, and the availability of the
remedies of specific performance and injunctive relief may be
subject to the discretion of the court before which any
proceedings for such remedies may be brought.
ss.7. OTHER AMENDMENTS. Except as expressly provided in this Amendment, all
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of the terms and conditions of the Credit Agreement and the other Loan Documents
remain in full force and effect. FAC and each of the Guarantors confirms and
agrees that the obligations are secured by and entitled to the benefits of the
Security Documents.
ss.8. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
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number of counterparts and by each party on a separate counterpart, each of
which when executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
ss.9. HEADINGS. The captions in this Amendment are for convenience of
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reference only and shall not define or limit the provisions hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Amendment as an
instrument under seal to be governed by the laws of the Commonwealth of
Massachusetts, as of the date first above written.
FAIRFIELD ACCEPTANCE CORPORATION
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
FAIRFIELD ACCEPTANCE CORPORATION-NEVADA
By:/s/Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
FAIRFIELD COMMUNITIES, INC.
By:/s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
FAIRFIELD MYRTLE BEACH, INC.
By:/s/Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
VACATION BREAK USA, INC.
By:/s/Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SEA GARDENS BEACH AND TENNIS RESORT, INC.
By:/s/Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
VACATION BREAK RESORTS, INC.
By:/s/Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
VACATION BREAK RESORTS AT STAR ISLAND, INC.
By:/s/Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PALM VACATION GROUP, by its General Partners:
VACATION BREAK RESORTS AT PALM AIRE, INC.
By:/s/Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PALM RESORT GROUP, INC.
By:/s/Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
OCEAN RANCH VACATION GROUP,
by its General Partners:
VACATION BREAK at OCEAN RANCH, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
OCEAN RANCH DEVELOPMENT, INC.
By:/s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANKBOSTON,N.A.,Individually, as Agent and as
Collateral Agent
By:/s/Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
