FIRST AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
between
FAIRFIELD COMMUNITIES, INC.
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 COMMUNITIES, INC., a Delaware corporation ("FCI"),
BANKBOSTON, N.A., a national banking association ("BKB"), and BANKBOSTON, N.A.,
as agent for itself and the Banks ("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 Subsidiary Guarantors, as defined
below), BKB, as agent under the FAC Credit Agreement, BancBoston Securities,
Inc. and EagleFunding Capital Corporation. This Amendment is joined in by (i)
Fairfield Acceptance Corporation, an Arkansas domiciled Delaware corporation
("FAC-Arkansas"), 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-Arkansas, 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 (the "FCI
Guaranty") and (ii) Fairfield Acceptance Corporation - Nevada, a Nevada
domiciled Delaware corporation ("FAC-Nevada") as the proposed successor in
interest to FAC-Arkansas. All capitalized terms used herein and not otherwise
defined shall have the same respective meanings herein as in the Credit
Agreement. Arkansas").
WHEREAS, FAC-Arkansas is a Subsidiary Guarantor under the Credit
Agreement and FCI Guaranty 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 and the FAC Credit Agreement subject such
actions by FAC-Nevada and FAC-Arkansas to certain pre-conditions and approvals;
WHEREAS, subject to the terms and conditions of this Amendment, FCI has
requested that Agent and BKB consent to the foregoing transactions by
FAC-Arkansas and FAC-Nevada;
WHEREAS, FCI, 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 FCI and FAC-Nevada, as
successor to FAC-Arkansas, (iii) approve an additional Project being developed
by FCI as an "Approved Project" under the Credit Agreement and (iv) allow for
capital contributions by FCI to any Subsidiary Guarantor.
NOW, THEREFORE, in consideration of the premises, FCI, BKB, the Agent
and the Guarantors hereby agree as follows:
ss.1. Consent to Merger. Notwithstanding anything to the contrary contained
in the Credit Agreement, and subject to the conditions set forth in ss.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
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 FCI Guaranty and 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. FCI, BKB and the Agent hereby agree
to amend the Credit Agreement, effective immediately following the Merger, as
follows:
ss.3.1. The definitions of "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:
"FAC.Fairfield Acceptance Corporation-Nevada, a Delaware corporation
and a wholly-owned subsidiary of Borrower, and 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 9.3 of the Credit Agreement is amended by adding the
following new paragraph (k) thereto:
"(k) Investments consisting of capital contributions (whether in cash or by
forgiveness of intercompany indebtedness) by FCI to a Subsidiary Guarantor."
ss.3.4. The notice addresses under the FCI Guaranty for FAC-Nevada shall be
as follows:
Fairfield Acceptance Corporation-Nevada
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
ss.4 Subsidiary Guarantors' Consent. The Subsidiary 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 FCI Guaranty
and the FCI Guaranty shall extend to and include the obligations of the Borrower
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. 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 FCI,
FAC-Arkansas, FAC-Nevada, 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
UCC3s 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) FAC Amendment. BKB and the Agent shall have received evidence
satisfactory to it of the occurrence of all conditions
precedent to the effectiveness of that certain First Amendment
to the FAC Credit Agreement among FAC, BKB, the FAC Agent and
the Collateral Agent dated of even date herewith.
ss.6. Representations and Warranties. Each of FCI, FAC-Nevada,
FAC-Arkansas, FMB 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
----------------------------------------------------------
representations and warranties of FCI, FAC-Arkansas, FAC-Nevada,
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
-------------------------------
performance by each of FCI, FAC-Arkansas, FAC-Nevada, 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, the FCI Guaranty and the other Loan
Documents constitute the legal, valid and binding obligations of
each of FCI, FAC-Arkansas, FAC-Nevada, 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.5. Other Amendments. Except as expressly provided in this 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 of the Subsidiary
Guarantors continue and agrees that the obligations are secured by and entitled
to the benefits of the Security Documents.
ss.6. Execution in Counterparts. This Amendment may be executed in any
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.7. Headings. The captions in this Amendment are for convenience of
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 COMMUNITIES, INC.
By:/s/Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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 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