INSTRUMENT OF ACCESSION
Dated as of April 30, 1999
Reference is hereby made to the Amended and Restated Revolving Credit
Agreement dated as of January 15, 1998 (as heretofore and from time to time
amended and in effect, the "Credit Agreement"), by and among FAIRFIELD
ACCEPTANCE CORPORATION-NEVADA (successor by merger to Fairfield Acceptance
Corporation), a Nevada domiciled Delaware corporation (the "Borrower"),
BANKBOSTON, N.A., a national banking association and the other lending
institutions that are or may become a party to the Credit Agreement (the
"Banks"), and BANKBOSTON, N.A., as agent for the Banks (the "Agent").
Capitalized terms used herein and not otherwise defined that are defined in the
Credit Agreement shall have the meanings assigned to such terms in the Credit
Agreement.
Pursuant to the terms of Section 19.1(b) of the Credit Agreement, the
Borrower, the Agent and Union Bank of California, N.A. (the "Acceding Bank")
hereby agree as follows:
1. Subject to the terms and conditions of this Instrument of Accession,
the Acceding Bank hereby agrees to assume, without recourse to the Banks or the
Agent, on the Effective Date (as defined below), a Commitment of $20,000,000 in
accordance with the terms and conditions set forth in the Credit Agreement. Upon
such assumption, the Total Commitment shall be automatically increased by the
amount of such assumption. The Acceding Bank hereby agrees to be bound by, and
hereby requests the agreement of the Borrower and the Agent that the Acceding
Bank shall be entitled to the benefits of, all of the terms, conditions and
provisions of the Credit Agreement as if the Acceding Bank had been one of the
lending institutions originally executing the Credit Agreement as a "Bank";
provided that nothing herein shall be construed as making the Acceding Bank
liable to the Borrower or the other Banks in respect of any acts or omissions of
any party to the Credit Agreement or in respect of any other event occurring
prior to the Effective Date (as defined below) of this Instrument of Accession.
2, The Acceding Bank (a) represents and warrants that (i) it is duly
and legally authorized to enter into this Instrument of Accession, (ii) the
execution, delivery and performance of this Instrument of Accession do not
conflict with any provision of law or of the charter or by-laws of the Acceding
Bank, or of any agreement binding on the Acceding Bank, (iii) all acts,
conditions and things required to be done and performed and to have occurred
prior to the execution, deliver and performance of this Instrument of Accession,
and to render the same the legal, valid and binding obligation of the Acceding
Bank, enforceable against it in accordance with its terms, have been done and
performed and have occurred in due and strict compliance with all applicable
laws; (b) confirms that it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to
ss.ss.7.4 and 8.4 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Instrument of Accession; (c) agrees that it will, independently and without
reliance upon the Banks or the Agent and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (d)
represents and warrants that it is an Eligible Assignee; (e) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (f) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; and acknowledges that it
has made arrangements with the Agent satisfactory to the Acceding Bank with
respect to its pro rata share of Letter of Credit Fees in respect of outstanding
Letters of Credit.
3. The Acceding Bank hereby requests that the Borrower issue a new
Revolving Credit Note payable to the order of the Acceding Bank in the principal
amount of $20,000,000. In the event the Acceding Bank is also a Bank party to
the Credit Agreement immediately prior to the Effective Date of this Instrument
of Accession, such Acceding Bank agrees to deliver to the Borrower, as soon as
reasonably practicable after the Effective Date the Revolving Credit Note held
by it prior to the issuance of the new Revolving Credit Note, marked
"Cancelled".
4. The effective date for this Instrument of Accession shall be April
30, 1999 (the "Effective Date"). Following the execution of this Instrument of
Accession by the Borrower and the Acceding Bank, it will be delivered to the
Agent for acceptance. Upon acceptance by the Agent, Schedule 1 to the Credit
Agreement shall thereupon be replaced as of the Effective Date by the Schedule 1
annexed hereto. The Agent shall thereafter notify the other Banks of the revised
Schedule 1.
5. Upon such acceptance, from and after the Effective Date, the
Borrower shall make all payments in respect of the Commitment of the Acceding
Bank (including payments of principal, interest, fees and other amounts) to the
Agent for the account of the Acceding Bank.
6. THIS INSTRUMENT OF ACCESSION IS INTENDED TO TAKE EFFECT AS AN
INSTRUMENT UNDER SEAL AND SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
7. This Instrument of Accession may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Instrument of Accession to be executed on its behalf
by its officer thereunto duly authorized, to take effect as a sealed instrument
as of the date first above written.
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx'
--------------------------------
Title: Vice President
----------------------------
FAIRFIELD ACCEPTANCE CORPORATION-NEVADA
By:/s/Xxxxx X. Xxxxxx
---------------------------------
Title: President
------------------------------
BANKBOSTON, N.A., as Agent
By:/s/Xxxx Xxxxx
--------------------------------
Title: Vice President
-----------------------------
SCHEDULE 1
Banks and Commitment
Name and Address Commitment
of Banks Percentage Commitment
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 50% $40,000,000
Union Bank of
California, N. A.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx
Floor 25% $20,000,000
Xxx Xxxxxxx, XX 00000
First Massachusetts Bank,
National Association
00 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000 12.5% $10,000,000
Sovereign Bank
00 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
12.5% $10,000,000
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TOTAL 100% $80,000,000
