FOURTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDMENT (this "Amendment") dated as of October 4, 1999, is made
by and among FAIRFIELD ACCEPTANCE CORPORATION-NEVADA (successor by merger to
Fairfield Acceptance Corporation), a Nevada domiciled Delaware corporation (the
"Company", "FAC" or the "Borrower"), BANKBOSTON, N.A., a national banking
association ("BKB") 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
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 (the "Collateral Agent") under that
certain Collateral Agency Agreement dated as of January 15, 1998, as amended by
a First Amendment to Collateral Agency Agreement dated as of July 31, 1998, by
and among certain parties hereto (including the Guarantors, as defined below),
BKB, as agent under the FCI Credit Agreement, BancBoston Securities, Inc., Eagle
Funding Capital Corporation and First Security Bank, National Association. 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 and the Banks, as amended (as so
amended, 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 has requested and the Majority Banks and the Agent have
agreed, among other things, to amend the definition of the term Borrowing Base,
to modify the dates on which FAC is to deliver Borrowing Base Reports and to
designate certain projects as Approved Projects;
NOW, THEREFORE, in consideration of the foregoing premises, FAC, the
Majority Banks, the Agent and the 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
(c) thereof, by
replacing it with a semicolon and the word "minus" and by inserting immediately
thereafter the following new clause (d):
(d) 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) and (c) 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
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that immediately prior to the occurrence of a sale 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 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 FCI, FCC, FRC and FFC, II
pursuant to paragraph (i) of ss.9.5.2 until such time as the
Agent has given the Borrower a notice to the effect that such
Borrowing Base Reports shall thereafter be delivered);
ss.2. DESIGNATION OF APPROVED PROJECTS. The Agent and the Majority Banks
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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. AMENDMENT TO THE FAC GUARANTY. The Majority Banks, the Agent and the
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Guarantors hereby agree that upon the effectiveness of this Amendment in
accordance with Section 4 below, Section 17 of the FAC Guaranty shall be amended
by deleting the words "as in effect as of February 8, 1999, in each case"
appearing in the fifth and sixth lines thereof and by replacing them with the
words "as in effect immediately after giving effect to the Fifth Amendment
thereto dated as of October 4, 1999 and all prior amendments, but".
ss.4. 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 Borrower, the Majority Banks, the Agent and
the Guarantors 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.5. GUARANTORS' CONSENT. The Guarantors hereby consent to the amendments
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to the Credit Agreement set forth in this Amendment, and each confirms its
obligation to the Agent and the Banks under the FAC Guaranty as amended by this
Amendment and agrees that the FAC Guaranty as amended by this Amendment shall
extend to and include the obligations of FAC 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 as amended by this Amendment are in full force and effect and
are hereby ratified and confirmed in all respects.
ss.6. REPRESENTATIONS AND WARRANTIES. Each of FAC and the Guarantors hereby
represents and warrants to the Banks, the Agent and the Collateral Agent as
follows:
(a) Representations and Warranties in Credit Agreement. The
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representations and warranties of FAC and the 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 expressly relate solely 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 and the Guarantors of this Amendment
and the consummation of the transactions contemplated hereby and
thereby, (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
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Agreement as amended hereby, the FAC Guaranty as amended hereby
and the other Loan Documents constitute the legal, valid and
binding obligations of each of FAC and the Guarantors parties
thereto, enforceable against such party in accordance with their
respective terms, provided that (i) enforcement may be limited by
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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, the FAC Guaranty and the
other Loan Documents remain in full force and effect. FAC and each Guarantor
confirm and agree that the Obligations of FAC to the Banks and the Agent under
the Credit Agreement, as amended hereby, the FAC Guaranty, as amended hereby,
and the Replacement Notes, 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.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 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.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 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-NEVADA
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President
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FAIRFIELD COMMUNITIES, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Executive Vice President
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FAIRFIELD MYRTLE BEACH, INC.
By:/s/Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
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Title:Vice President
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VACATION BREAK USA, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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SEA GARDENS BEACH AND TENNIS
RESORTS, INC.
By:/s/Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
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VACATION BREAK RESORTS, INC.
By:/s/Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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VACATION BREAK RESORTS AT
STAR ISLAND, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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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
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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PALM RESORT GROUP, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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OCEAN RANCH VACATION GROUP,
by its General Partners:
VACATION BREAK AT OCEAN
RANCH, INC.
By: /s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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OCEAN RANCH
DEVELOPMENT, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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BANKBOSTON, N.A.,
Individually, as Agent and as
Collateral Agent
By:/s/Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title:Vice President
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FIRST MASSACHUSETTS BANK,
NATIONAL ASSOCIATION
By:/s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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SOVEREIGN BANK
By:/s/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Vice President
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UNION BANK OF
CALIFORNIA, N.A.
By:/s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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