SIXTH AMENDED AND RESTATED OPERATING AGREEMENT
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THIS SIXTH AMENDED AND RESTATED OPERATING AGREEMENT ("Agreement") is
made and entered into as of July 25, 2000, by and among FAIRFIELD COMMUNITIES,
INC. ("FCI"), a Delaware corporation, FAIRFIELD MYRTLE BEACH, INC., a Delaware
corporation ("FMB"), SEA GARDENS BEACH AND TENNIS RESORT, INC., a Florida
corporation ("Sea Gardens"), VACATION BREAK RESORTS, INC., a Florida corporation
("VBR"), VACATION BREAK RESORTS AT STAR ISLAND, INC., a Florida corporation
("VBRS"), PALM VACATION GROUP, a Florida general partnership ("PVG"), OCEAN
RANCH VACATION GROUP, a Florida general partnership ("ORVG") (each of Sea
Gardens, VBR, VBRS, PVG and ORVG are hereinafter collectively referred to as the
"VB Subsidiaries"), and each of FCI, FMB and the VB Subsidiaries are hereinafter
referred to as "Originators") and FAIRFIELD ACCEPTANCE CORPORATION - NEVADA, a
Nevada domiciled, Delaware corporation ("FAC") and wholly-owed subsidiary of
FCI.
W I T N E S S E T H :
WHEREAS, each Originator is now and will become in the future the owner of
numerous receivables arising out of its sales of houses, condominiums,
townhouses, subdivided lots and timeshare intervals in the normal course of its
business;
WHEREAS, each of FMB and the VB Subsidiaries desire to sell, and FCI
desires to purchase from time to time, receivables generated by FMB and the VB
Subsidiaries;
WHEREAS, pursuant to that certain Fifth Amended and Restated Operating
Agreement dated as of July 14, 1998 (the "Original Agreement"), among the
Originators and FAC, FAC has (i) purchased from time to time from FCI
receivables which were generated by FCI or the other Originators and (ii) acted
as servicer and agent to xxxx, collect, administer and service all receivables
owned by FCI and the other Originators; and
WHEREAS, FAC, or its subsidiaries, also from time to time sells or pledges
receivables pursuant to certain Securitizations;
WHEREAS, FCI and FAC have restructured their existing revolving credit
facilities with Fleet National Bank (formerly BankBoston, N.A.) and, as a result
of such restructuring, they desire to enter into this Agreement in order to
amend, restate and replace the Original Agreement and allow FAC to continue to
(i) purchase receivables which are generated by FCI or purchased by FCI from the
Other Originators and (ii) act as servicer to xxxx, collect, administer and
service the portfolio receivables owned by FCI and the other Originators or
otherwise sold or pledged pursuant to the Securitizations;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the following
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definitions are used:
(a) "Assigned Base Contract" means any Base Contract (and related
Transferred Assets) which, as of any date, FCI sells to FAC, including any
Base Contract subsequently pledged or sold by FAC, or its subsidiaries,
pursuant to a Securitization.
(b) "Base Contract" has the meaning set forth in the FCI/FAC Credit
Agreement.
(c) "Base Contract Completion" means full performance by an Originator
of all of its duties and obligations to the Obligor under a Base Contract,
including, but not limited to, completion of improvements or amenities
relating to the subject Properties and delivery of certain services.
(d) "Business Day" means any day on which banking institutions in
Boston, Massachusetts are open for the transaction of banking business.
(e) "Collections" has the meaning set forth in the FCI Security
Agreement.
(f) "Contract File" has the meaning set forth in the FCI Security
Agreement.
(g) "Contract Settlement Date" has the meaning as set forth in the
FCI/FAC Credit Agreement.
(h) "Determination Date" has the meaning as set forth in the FCI/FAC
Credit Agreement.
(i) "Document of Sale" means one of the following agreements:
(A) with respect to Base Contracts (and related Transferred
Assets) sold to (i) FCI by an Originator (other than FCI) from time to
time or (ii) FAC by FCI from time to time pursuant to Section 2(a)
hereof, the Sale and Assignment of Contracts and Assignment of
Mortgages executed by FCI, the other Originators and FAC, which shall
be in substantially the form of "Exhibit A" attached hereto;
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(B) with respect to Base Contracts (and related Transferred
Assets) sold to (i) FCI by FAC from time to time pursuant to Section
2(f) hereof or repurchased by FCI from FAC pursuant to Section 4
hereof or (ii) an Originator (other than FCI) by FCI, the Sale and
Assignment of Contracts and Assignment of Mortgages executed by FAC,
FCI, and the other Originators, as applicable, which shall be in
substantially the form of "Exhibit B" attached hereto;
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(j) "Effective Date" shall mean the effective date of this Agreement,
as stated above.
(k) "Fairshare Plus Program" has the meaning set forth in the FCI/FAC
Credit Agreement.
(l) "FCI/FAC Credit Agreement" means that certain Consolidated,
Amended and Restated Revolving Credit Agreement, dated as of July 25, 2000,
by and among FCI and FAC, as co-borrowers, and Fleet, individually and as
administrative agent for the benefit of itself and the other financial
institutions who now or may become lenders thereunder, as the same may be
further amended, restated or otherwise modified from time to time.
(m) "FCI Security Agreement" means the Amended and Restated Security
Agreement, dated as of July 25, 2000, between FCI and Fleet, as collateral
agent.
(n) "Insurance Policy" has the meaning set forth in the FCI Security
Agreement.
(o) "Lots" has the meaning set forth in the FCI Security Agreement.
(p) "Mortgage" has the meaning set forth in the FCI Security
Agreement.
(q) "Obligor" means the person or persons obligated to make payments
under a Base Contract.
(r) "Originator" shall have the meaning set forth in the recitals to
this Agreement and shall include any Subsidiary which hereafter sells Base
Contracts to FCI pursuant to this Agreement; whereupon, and by reason of
such sale, such Subsidiary shall therefore be deemed to have become a party
hereto and shall become subject to all of the obligations and have all of
the rights of an Originator hereunder with respect to such Base Contracts.
(s) "Payment" has the meaning set forth in the FCI Security Agreement.
(t) "POA" has the meaning set forth in the FCI Security Agreement.
(u) "Properties" means houses, condominiums, townhouses, subdivided
lots and fixed or undivided interest timeshare intervals sold under Base
Contracts.
(v) "Records" has the meaning set forth in the FCI Security Agreement.
(w) "Reservation System" has the meaning set forth in the FCI Security
Agreement.
(x) "Security Interests" means any security interests, liens or other
encumbrances on the Assigned Base Contracts in favor of any third party.
(y) "Securitization(s)" has the meaning set forth in the FAC Credit
Agreement.
(z) "Subsidiary" means a corporation or partnership more than fifty
percent (50%) of the voting capital stock or voting interests of which are
owned directly or indirectly by FCI, but does not include FAC.
(aa) "Transferred Assets" has the meaning set forth in Section 2(h)
hereof.
(bb) "Title Clearing Agreement" has the meaning set forth in the FCI
Security Agreement.
(cc) "Title Documents" means any deeds, mortgages, deeds of trust,
vendors' liens or other document evidencing liens or encumbrances on the
Properties securing the respective interests of each Originator, FAC, the
Obligors or any third parties.
(dd) "VOIs" has the meaning set forth in the FCI Security Agreement.
2. Sale and Ownership of Base Contracts.
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(a) Subject to the terms hereof, Section 8.15 and 9.5.2(iv) of the
FCI/FAC Credit Agreement, FCI and FAC hereby agree that FCI may sell to FAC
and FAC may purchase, as hereinafter provided and as provided in the FAC
Credit Agreement, all of FCI's right, title and interest in and to such
Base Contracts (and related Transferred Assets) as shall be described in
the particular Document of Sale executed by FCI in connection with each
such sale.
(b) Sales of Base Contracts (and related Transferred Assets) from FCI
to FAC under this Agreement shall be accomplished by (i) compliance with
the requirements of Section 8.15 and 9.5.2(iv) of the FCI/FAC Credit
Agreement, (ii) in connection with each sale, the delivery to and
acceptance by FAC of a Document of Sale executed by FCI, and (iii) in
connection with each sale, the satisfaction of all other requirements of
this Agreement.
(c) Concurrently with the sale to FAC pursuant to Section 2(a) hereof
of any Base Contract that was originated by an Originator (other than FCI),
each such Originator shall execute and deliver to FCI a Document of Sale
which evidences the transfer, sale and assignment of all of such
Originator's right, title and interest in and to such Base Contract.
(d) Each group of Base Contracts which are sold by FCI to FAC from
time to time shall be of a quality with respect to credit worthiness of the
Obligors and collection experience at least equivalent to the quality of
the aggregate portfolio of the Base Contracts held by FCI and the other
Originators at the time of such sale. All such purchases by FAC shall be
subject to all conditions and stipulations, and shall otherwise be in
compliance with all terms and provisions, of the FCI/FAC Credit Agreement.
(e) No Originator shall be obligated to sell, nor shall FAC be
obligated to purchase, any Base Contracts (and related Transferred Assets)
under this Agreement.
(f) Subject to the terms of Sections 8.15(d) and 9.5.2(iv) of the
FCI/FAC Credit Agreement, FCI and FAC hereby agree that FAC may sell to
FCI, and FCI may purchase all of FAC's right, title and interest in and to
such Base Contracts (and related Transferred Assets) as shall be described
in the particular Document of Sale executed by FAC in connection with each
such sale.
(g) Any sale and purchase of a Base Contract between (i) any
Originator (other than FCI) and FCI and (ii) FCI and FAC, shall be
evidenced by a Document of Sale and shall be deemed to include the transfer
from such parties of all of the applicable assignors' right, title and
interest in (A) such Base Contract, (B) all Payments, other Collections and
other funds received with respect to the such Base Contracts on or after
the effective date of such Document of Sale, (C) the VOIs and Lots relating
to such Base Contracts, and the Title Clearing Agreements and the FairShare
Plus Program insofar as they relate to such VOIs or Lots, (D) any Mortgages
relating to such Base Contracts, (E) any Insurance Policies relating to
such Base Contracts, and (F) the Contract Files and other Records relating
to such Base Contracts and any interest in or other proceeds from any of
the foregoing, and any security therefor ((a)-(f) being collectively
referred to as the "Transferred Assets").
(h) In the event any Mortgage being transferred in conjunction with an
Assigned Base Contract pursuant to the terms of this Agreement has not been
filed of record in the appropriate county in which the underlying Property
relating to the Base Contract is located, then as a condition subsequent to
the effectiveness of such transfer, either FCI or the Originator of such
Assigned Base Contract, as appropriate, shall cause such Mortgage to be so
filed promptly following the date upon which the underlying Property is
deeded to the Obligor under such Base Contract.
3. Purchase Price for Base Contracts.
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(a) The purchase price for any Base Contract (and related Transferred
Assets) purchased by FCI from FMB or any VB Subsidiary will be equal to one
hundred percent (100%) of the outstanding principal balance remaining of
such Base Contract at the time of purchase by FCI, plus all accrued and
unpaid interest thereon.
(b) The purchase price for any Base Contract (and related Transferred
Assets) purchased by FAC from FCI will be equal to one hundred percent
(100%) of the outstanding principal balance remaining of such Base Contract
at the time of purchase by FAC, plus all accrued and unpaid interest
thereon.
4. Repurchase Assigned Base Contracts by FCI
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FCI shall not be under any obligation to repurchase Assigned Base
Contracts which have become delinquent or defaulted; however, FCI may repurchase
such Assigned Base Contracts from FAC from time to time upon such terms and
conditions as may be agreed upon by FCI and FAC.
5. Documents.
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(a) Whenever Base Contracts (and related Transferred Assets) are sold
under this Agreement, the party selling such Base Contracts (and related
Transferred Assets) shall make available to the other party, at its request
and for its inspection and copying, the following:
(i) Documents, if any, evidencing such Base Contracts and any
Title Documents or releases of Security Interests relating thereto and
any evidence of filing or recording thereof.
(ii) A listing showing the original amount of the Base Contracts
and the amount remaining unpaid thereon if less than the face amount.
(iii) Such other financial information then possessed by the
seller of the Base Contracts regarding the Obligors' financial
condition as the purchaser of such Base Contracts may from time to
time request.
(b) Nothing contained in this Agreement shall require any party
hereunder to give, unless otherwise required by applicable law, notice to
any Obligor that a Base Contract has been sold pursuant to the terms
hereof.
6. Settlement. At the close of each Contract Settlement Date, the balance
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due between the parties shall thereupon be settled by payment in cash or in such
other manner as may be agreed upon between the parties. Each transfer at the
time of the settlement on a Contract Settlement Date shall for the purposes
hereof be deemed to have been made as of the end of such Contract Settlement
Date.
7. Representations, Warranties and Covenants. In connection with (i) the
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sale of Base Contracts (and related Transferred Assets) pursuant to Section 2(a)
hereof, FCI hereby represents and warrants to FAC, and (ii) the sale of Base
Contracts (and related Transferred Assets) pursuant to Section 2(a) hereof that
were originated by an Originator (other than FCI), each Originator (other than
FCI) hereby represents and warrants to each of FCI and FAC, as follows:
(a) The figures set forth in each Document of Sale and any settlement
statement delivered to FCI or FAC, as applicable, will be true and correct
as of the time made;
(b) At the time of sale of any Base Contracts, such Base Contracts and
Title Documents relating thereto will be valid and legally enforceable in
accordance with their respective terms;
(c) At the time of sale of any Base Contracts, beneficial ownership in
the Base Contracts will not have been conveyed or assigned by FCI or any
other Originator to a third party;
(d) Each Document of Sale executed and delivered to FCI or FAC, as
applicable, hereunder will vest in FCI or FAC, as applicable, all right,
title and interest in and to the Base Contracts and all related property
described by such Document of Sale;
(e) At the time of sale of Base Contracts to FAC, such Base Contracts
will be free and clear of all liens, encumbrances, setoffs, counterclaims
or other rights or defenses except as specifically provided for under the
terms of the Base Contracts, or as permitted by the FCI/FAC Credit
Agreement and Title Documents relating to the Properties, the sale of which
gave rise to the Base Contracts;
(f) At the time of sale of any Base Contracts, such Base Contracts
will comply with any and all applicable laws and regulations;
(g) Each Originator, as applicable, shall at all times remain solely
responsible for Base Contract Completion and shall fully perform its duties
and obligations to the Obligors under the Base Contracts originated by it
in accordance with the terms thereof.
8. Services Provided by FAC to Originators. Until a termination pursuant to
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this Section 8(e), the Originators hereby appoint FAC to perform the following
services for such Originators, and FCI agrees to pay FAC the reasonable fees and
expenses FAC incurs in performing such services as follows:
(a) FAC shall xxxx and collect all Base Contracts when due and with
the same diligence and procedures employed by FAC with respect to its Base
Contracts utilizing separate lock boxes for FCI and FAC (or any FAC
Subsidiaries under a Securitization) as soon as practicable.
(b) Nothing contained in this Agreement shall in any way restrict FAC
at any time from exchanging, renewing, extending or in any way altering the
Base Contracts being serviced by FAC, provided that any such exchange,
renewal, extension or alteration shall be consistent with FCI's and FAC's
then existing standard credit policies. Appropriate adjustment shall be
made for any such change, renewal, extension or alteration on the Contract
Settlement Date immediately following the date such action took place.
(c) FCI shall pay FAC a reasonable fee and reimburse FAC for its
reasonable expenses for all services provided by FAC to the Originators,
provided the amount of such fee and/or reimbursement shall not in the
aggregate exceed three quarters of one percent (.75%) per annum of the
aggregate outstanding principal balance of all Base Contracts owned by the
Originators, and shall be payable monthly in arrears.
(d) In addition to servicing functions described in paragraph (a)
immediately above, FAC shall provide bank reconciliation, treasury
transaction, cash management and other administrative services to FCI,
including reasonable access to the FAC personnel responsible for
administering such services. The services to be provided by FAC pursuant to
this Section 8(d) are more specifically described on Exhibit "C" hereto.
FCI shall
reimburse FAC for its overhead and expenses incurred in providing the
services described on Exhibit "C" hereto.
(e) Any Originator may terminate the services of FAC under this
Section 8 by providing ninety (90) days prior written notice of such
termination to FAC; provided however, that an Originator may terminate such
services at an earlier date if required to do so under the terms of the
FCI/FAC Credit Agreement. Such termination shall not act to terminate any
other rights or obligations of the parties under this Agreement.
9. Services Provided by FCI to FAC. Until a termination pursuant to Section
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9(c), FAC appoints FCI to perform the following services for FAC, and FAC agrees
to pay FCI for the reasonable fees and expenses FCI incurs in performing such
services as follows:
(a) FCI shall provide payroll, accounts payable, computer and
management information services for FAC including reasonable access to the
FCI personnel responsible for administering said services. The services to
be provided by FCI pursuant to the Section 9(a) are more specifically
described on Exhibit "D" hereto. FAC shall reimburse FCI for its overhead
and expenses incurred in providing the services described on Exhibit "D".
(c) FAC may terminate any one of the services provided by FCI under
this Section 9 by providing ninety (90) days prior written notice of such
termination to FCI; provided however, that FAC may terminate such services
at an earlier date if required to do so under the terms of the FCI/FAC
Credit Agreement . Such termination as to any singular service shall not be
deemed to terminate any other services being provided by FCI and shall not
act to terminate any other rights or obligations of the parties under this
Agreement.
10. Indemnification.
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(a) FCI agrees to indemnify FAC against, and hold FAC harmless from,
any and all liabilities, losses, damages, costs and expenses arising out of
claims asserted against FAC by any third party relating to (i) any wrongful
or negligent act of, or omission to act, by FCI, in performing any of the
services which FCI is required to perform for or furnish to FAC pursuant to
the provisions of this Agreement, (ii) any breaches by FCI or any other
Originator of the representations and warranties in Section 7, and (iii)
any failures by FCI or any other Originator to timely and fully perform all
of its covenants to the Obligors under the Base Contracts, including, but
not limited to, those duties and obligations of an Originator relating to
Base Contract Completion; provided however, FAC shall promptly notify FCI
in writing of each such claim made or suit therein instituted against FAC
and the details thereof, and shall not pay or compromise any such claim or
suit without the written approval of FCI, and FCI shall be permitted to
assume and direct the defense of any such suit by counsel of its own
choosing and at its own expense.
(b) FAC agrees to indemnify the Originators against, and hold harmless
said Originators from, any and all liabilities, losses, damages, costs and
expenses arising out of claims asserted against the Originators which
relate to or were caused by FAC's intentional willful misconduct or gross
negligence, in performing, or failing to perform, any of the
services which FAC is required to perform on behalf of or furnish to the
Originators pursuant to this Agreement.
11. Records. FAC, FCI and the other Originators mutually agree to:
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(a) Safely maintain such documents as may be required for the
collection of Base Contracts.
(b) Keep such accounts and other records as will enable FAC and FCI to
determine at any time the status of all Base Contracts.
(c) Permit FAC or FCI, as applicable, on reasonable notice at any time
during normal business hours to inspect, audit, check and make abstracts
from accounts, records, correspondence and other papers pertaining to Base
Contracts.
(d) Deliver to FCI or FAC, as applicable, upon its request and at its
expense, any of said accounts, records, correspondence and other papers as
the other party may deem reasonably essential to enable it to enforce its
rights, if then being challenged, with respect to Base Contracts. The books
and records of each Originator and FAC will be made to reflect the sale of
Base Contracts pursuant to this Agreement.
12. Waivers. Each Originator and FAC hereby waive any failure or delay on
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the part of the other party in asserting or enforcing any of its rights or in
making any claims or demands hereunder.
13. Termination; Amendment. This Agreement may not be terminated, amended
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or modified except upon the written consent thereto of each Originator and FAC,
which will not be unreasonably withheld; provided that FCI and FAC agree not to
terminate, amend or modify this Agreement to the extent that such action would
be inconsistent with the terms of the FCI/FAC Credit Agreement or any agreement
entered into by FAC in connection with Securitizations.
14. Software.
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(a) Subject to paragraph (b) below, FCI and each Originator hereby
grants a royalty free, perpetual, irrevocable, non-exclusive license to FAC
and its successors and assigns (which for all purposes of this license
shall include, without limitation, any secured party which enforces its
rights against FAC or any transferee of any such secured party which
acquires rights in connection with or subsequent to such enforcement) in,
to and under all rights of FCI and each Originator in or to all
intellectual property (including, without limitation, computer software,
tapes, disks and other electronic media, books, records and documents)
relating to the Assigned Base Contracts (or Base Contracts owned by FCI and
each Originator which are being serviced by FAC pursuant to Section 8
hereof); including, without limitation, all rights of FCI and each
Originator in, to or under any such software, electronic media, books,
records and documents used:
(i) to account for and service Base Contracts (including the
Assigned Base Contracts) and related assets (including the Transferred
Assets);
(ii) in the management of any VOI resorts, and the VOIs and Lots
located within such VOI resorts;
(iii) in the monitoring of accounts receivables and third party
contracts relating to the management of properties located within any
VOI resort;
(iv) in managing and operating the FairShare Plus Program;
(v) in managing and operating the Reservation System; and
(vi) in managing and operating the Fairfield Destinations
Vacation Club;
and all rights, title and interest of FCI and each Originator in, to or
under relevant licenses, sublicenses, leases, contracts (including, without
limitation, service and maintenance contracts), warranties and guaranties
relating to any such software, electronic media, books, records and
documents, as the case may be, including without limitation, all such
rights arising under such software, electronic media, books, records and
documents (all of the rights described in this clause (a) being referred to
collectively as the "Licensed Rights"). FAC shall have the right to use all
of the Licensed Rights in connection with the conduct of its business as it
deems necessary or appropriate, including without limitation the right to
use such Licensed Rights for the purposes specified in clauses (a)(i)-(vi)
immediately above and the right to assign, sublicense or otherwise transfer
all or any part of such rights to one or more third parties in connection
with the transfer of all or any part of the Assigned Base Contracts owned
or serviced by FAC (including, without limitation, any such transfer
pursuant to or in connection with the grant by FAC of a security interest
in any or all of its assets and/or the enforcement by any such secured
party of its interests in such assets, or the transfer pursuant to
Securitizations).
(b) The license granted to FAC pursuant to clauses (a)(ii)-(vi)
immediately above, shall only be deemed to confer upon FAC, and its
respective successors and assigns, the sole right to sub-license the use of
such software, electronic media, books, records and documents (at no
charge, except for reimbursement of administrative, legal and other
expenses associated with such sublicense) to (i) FCI (as long as FCI or any
of its subsidiaries is manager of the subject POA) or the subject POA (in
the event FCI or any of its subsidiaries is not the manager of such POA) in
the case of clauses (a)(ii)-(iii) above or (ii) FCI (or if applicable any
successor to FCI) under the FairShare Plus Program or Fairfield
Destinations Club in the case of clause (a)(iv)-(vi) above.
(c) All rights and licenses granted under or pursuant to this clause
(b) (the "License") are, and shall otherwise be deemed to be, for purposes
of Section 365(n) of the United States Bankruptcy Code (the "Code"),
licenses to rights in and to "intellectual property" as defined under the
Code. The parties hereto agree that FAC, as licensee of such
rights under the License, shall have and retain and may fully exercise and
exploit all of its respective rights under the Code. The parties hereto
further agree that, in the event of the commencement of bankruptcy
proceedings by or against FCI under the Code, FAC, as licensee, shall be
entitled to have and retain all of its rights under the License.
(d) If an Event of Default has occurred and is continuing under the
FCI/FAC Credit Agreement or any Securitization, FCI hereby agrees to
provide to any of the persons or entities described in clauses b(i) and
(ii) immediately above, and each of their successors and assigns,
immediately upon the written request of FAC, copies of all software
(including without limitation both object code and source code), tapes
disks, other electronic media, books, records, documents and other tangible
embodiments of the Licensed Rights.
15. Notices. Any notice, instruction, request, consent, demand or other
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communication required or contemplated by this Agreement to be in writing, shall
be given or made or communicated by United States first class mail, addressed as
follows:
If to an Originator: c/o Fairfield Communities, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
If to FAC: Fairfield Acceptance Corporation-Nevada
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: President
16. Successors and Assigns. The covenants, representations, warranties and
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agreements herein set forth shall be mutually binding upon, and inure to the
mutual benefit of, each Originator and its successors and assigns and FAC and
its successors and assigns.
17. Governing Law. This Agreement shall be governed by the laws of the
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State of Nevada.
18. ENTIRE AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL, ENTIRE AGREEMENT
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AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OF ORAL,
RELATING TO THE SUBJECT MATTER HEREOF INCLUDING, WITHOUT LIMITATION, THAT
CERTAIN FOURTH AMENDED AND RESTATED OPERATING AGREEMENT DATED AS OF JANUARY 19,
1998, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
19. Conflict With FAC Credit Agreement. If the terms of this Operating
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Agreement conflict in any manner with the terms and provisions of the FCI/FAC
Credit Agreement, the terms and provisions of the FCI/FAC Credit Agreement shall
control.
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IN WITNESS WHEREOF, the parties hereto have set their hands and have
affixed their corporate seals as of the day and year first above written.
FAIRFIELD COMMUNITIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
FAIRFIELD ACCEPTANCE CORPORATION-NEVADA
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
FAIRFIELD MYRTLE BEACH, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
SEA GARDENS BEACH AND TENNIS RESORT, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
VACATION BREAK RESORTS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
VACATION BREAK RESORTS AT STAR ISLAND, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
PALM VACATION GROUP, by its General
Partners:
VACATION BREAK RESORTS at Palm Aire, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
PALM RESORT GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
OCEAN RANCH VACATION GROUP, by its
General Partners:
VACATION BREAK at OCEAN RANCH, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
OCEAN RANCH DEVELOPMENT, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
