FIFTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
between
FAIRFIELD COMMUNITIES, INC.
and
BANKBOSTON, N.A.,
INDIVIDUALLY AND AS AGENT
THIS FIFTH AMENDMENT (this "Amendment") dated as of October 4, 1999, is
made by and among FAIRFIELD COMMUNITIES, INC., a Delaware corporation (the
"Company", "FCI" or "Fairfield"), BANKBOSTON, N.A., a national banking
association ("BKB"), and BANKBOSTON, N.A., as agent for itself and the Banks
(the "Agent"), all parties (or successors in interest to parties) to a certain
Amended and Restated Revolving Credit Agreement dated as of January 15, 1998 (as
amended and in effect as of the date hereof, the "Credit Agreement"), and BKB as
Collateral Agent under the Collateral Agency Agreement, as amended. This
Amendment is joined in by Fairfield Acceptance Corporation-Nevada (successor by
merger to Fairfield Acceptance Corporation), a Nevada domiciled Delaware
corporation ("FAC"), 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") (FAC, FMB, Vacation Break, SGR, VBR, VBRS, PVG and ORV are hereinafter
collectively referred to as the "Subsidiary Guarantors") by reason of the
Amended and Restated Unconditional Payment and Performance Guaranty, dated as of
January 15, 1998, from the Subsidiary Guarantors in favor of the Agent and the
Banks (the "FCI Guaranty"). All capitalized terms used herein and not otherwise
defined shall have the same respective meanings herein as in the Credit
Agreement.
WHEREAS, FCI has requested and BKB has agreed, among other things, to
amend the definition of the term Borrowing Base, to modify the dates on which
FCI is to deliver Borrowing Base Reports and to designate certain projects as
Approved Projects;
NOW, THEREFORE, in consideration of the foregoing premises, FCI, BKB,
the Agent and the Subsidiary Guarantors hereby agree as follows:
ss.1. Amendments to Credit Agreement. The Credit Agreement shall be amended
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as follows:
ss.1.1. The definition of "Borrowing Base" appearing in Section 1.1 of the
Credit Agreement is hereby amended by deleting the period at the end of clause
(d) thereof, by replacing it with a semicolon and the word "minus" and by
inserting immediately thereafter the following new clause (e):
(e) the amount by which (i) the sum of (x) the aggregate
Principal Balances of all Eligible Base Contracts that are Lot
Contracts, and (y) the aggregate Principal Balances of all Eligible
Prime Base Contracts that are Lot Contracts exceeds (ii) 10% of the sum
of (a), (b), (c) and (d) above.
ss.1.2. The definition of "Eligible Prime Base Contract" appearing in
Section 1.1 of the Credit Agreement is hereby amended by deleting the words
"Timeshare Contract" appearing in the first sentence of such definition and by
replacing them with the words "Base Contract".
ss.1.3. Section 8.4(f) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following new subsection:
(f) within three Business Days after the first and fifteenth
day of each month, or at such earlier time as the Agent may reasonably
request, a Borrowing Base Report setting forth the Borrowing Base as of
the first and fifteenth day of such month or other date so requested by
the Agent, provided that immediately prior to the occurrence of a sale
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or other disposition of assets permitted by ss.9.5.2 hereof, the
Borrower shall deliver to the Banks (A) a Borrowing Base Report setting
forth the Borrowing Base prior to such permitted sale or disposition
and (B) a Borrowing Base Report indicating the Borrowing Base after
giving effect to such sale or disposition (provided, however, that for
so long as the Banks hereunder and the banks under the FAC Credit
Agreement are identical, the Borrowing Base Reports required by the
foregoing clauses (A) and (B) need not be delivered to the Agent in
connection with the sale or disposition of Base Contracts to FAC
pursuant to paragraph (ii) of ss.9.5.2);
ss.2. Designation of Approved Projects. The Agent and BKB hereby approve
---------------------------------
the designation of the following vacation ownership resorts and developments as
additional "Approved Projects" under and as defined in the Credit Agreement:
Approved Project Location
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Grand Desert Resort Las Vegas, Nevada
Fairfield Destin (currently known Okaloosa and Xxxxxx
as the "Club Life", "Bayclub" Counties, Florida
and "Majestic Sun" resorts)
Fairfield Smokey Mountains Sevierville, Tennessee
at Governors Crossing
Fairfield Durango Durango Colorado
ss.3. Conditions to Effectiveness. The effectiveness of this Amendment is
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subject to satisfaction of all of the following conditions:
(a) this Amendment shall have been duly executed and delivered
by the respective parties hereto and shall be in full force
and effect; and
(b) after giving effect to this Amendment, no Default or Event
of Default shall have occurred and be continuing.
ss.4. Subsidiary Guarantors' Consent. The Subsidiary Guarantors hereby
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consent to the amendments to the Credit Agreement set forth in this Amendment
and each confirms its obligation to the Agent and the Banks under the FCI
Guaranty and agrees that the FCI Guaranty shall extend to and include the
obligations of FCI under the Credit Agreement as amended by this Amendment. Each
of the Subsidiary Guarantors agrees that all of its obligations to the Agent and
the Banks evidenced by or otherwise arising under the FCI Guaranty are in full
force and effect and are hereby ratified and confirmed in all respects.
ss.5. Representations and Warranties. Each of FCI and the Subsidiary
--------------------------------
Guarantors 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 FCI and the Subsidiary
Guarantors, 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 performance by each of FCI and the Subsidiary
Guarantors, 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
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Credit Agreement as amended hereby, the FCI Guaranty and the
other Loan Documents constitute the legal, valid and binding
obligations of each of FCI and the Subsidiary Guarantors
parties thereto, enforceable against such party in
accordance with their respective terms, provided that (i)
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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.6. No Other Amendments. Except as expressly provided in this
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Amendment, all of the terms and conditions of the Credit Agreement and the other
Loan Documents remain in full force and effect. FCI and each Subsidiary
Guarantor confirm and agree that the Obligations of FCI to the Banks and the
Agent under the Credit Agreement, as amended hereby, and all of the other
obligations of any of such parties under the other Loan Documents, are secured
by and entitled to the benefits of the Security Documents.
ss.7. 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 so 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.8. 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 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 COMMUNITIES, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
-------------------------
Title:Executive Vice President
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FAIRFIELD ACCEPTANCE
CORPORATION-NEVADA
By: /s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
-------------------------
Title: President
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FAIRFIELD MYRTLE BEACH, INC.
By: /s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
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VACATION BREAK USA, INC.
By:/s/Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
------------------------
Title:Vice President
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SEA GARDENS BEACH AND TENNIS
RESORTS, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
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VACATION BREAK REORTS, 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
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Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
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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
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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
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BANKBOSTON, N.A.,
Idividually, as Agent and as Collateral Agent
By:/s/Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
----------------------------
Title: Vice President
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