FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AND
WAIVER AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT AND WAIVER AGREEMENT ("Agreement"), dated as of
March 5, 1997, (i) amends and modifies that certain
Amended and Restated Credit Agreement, dated as of July
31, 1996 (the "Credit Agreement"), by and among Fairfield
Capital Corporation, a Delaware corporation (the
"Borrower"), Fairfield Acceptance Corporation, a Delaware
corporation in its capacity as Servicer thereunder
("Servicer or FAC"), Fairfield Communities, Inc., a
Delaware corporation ("FCI"), Triple-A One Funding
Corporation, a Delaware corporation ("Triple-A"), Capital
Markets Assurance Corporation, a New York stock insurance
company, individually and as Collateral Agent and
Administrative Agent (in such capacities, "CapMAC") and
The First National Bank of Boston, a national banking
association as L/C Bank, (in such capacity, the "L/C
Bank")and (ii) waives the application of certain
provisions contained in the Credit Agreement and that
certain Amended and Restated Receivables Purchase
Agreement, dated as of July 31, 1996 (the "Purchase
Agreement"), among FCI, FAC, Fairfield Myrtle Beach,
Inc., a Delaware corporation ("FMB") and Borrower.
WHEREAS, the parties to the Credit Agreement and
Purchase Agreement have agreed and consented to (i) make
certain clarifying and conforming changes to the Credit
Agreement and (ii) waive certain provisions contained in
the Credit Agreement and Purchase Agreement, in order to
reflect their understanding regarding the practical
application and operation of said agreements;
NOW THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to them in the
Definitions List to the Credit Agreement. The following
definitions as set forth in the Definitions List are
hereby amended and restated in their entirety to read as
follows:
"Contract Expenses" means, with respect to any
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Calculation Period, the aggregate amount of all of
the fees, costs, expenses, losses paid or accrued
during such Calculation Period or otherwise
attributed to such Calculation Period (as set forth
below):
(a) all Carrying Costs;
(b) any taxes payable by or on behalf of the
Borrower (including any imputed taxes
accrued pursuant to the terms of the Tax
Sharing Agreement); and
(c) all amounts transferred to the Spread
Account from the Collection Account in
order to fund the Spread Account
Requirement, excluding amounts transferred
to the Spread Account on the three
Settlement Dates immediately following any
Contract Grant Date as required to fund
the Spread Account Requirement as of such
Settlement Dates.
"Triple-A Loan Percentage" means for any
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Settlement Date hereunder a fraction (stated as a
percentage) equal to the quotient of (i) the
principal balance of all Triple-A Loans outstanding
as of the close of business of the Servicer on the
immediately preceding Determination Date, divided by
(ii) the Eligible Contract Pool Principal Balance
outstanding as of the close of business of the
Servicer on such Determination Date.
2. The language beginning on the ninth line of the
definition of "Pool Limit Excess" as set forth in the
Definitions List to the Credit Agreement which reads
"...(1) in the case of each of clauses (i), (ii), (iii)
and (vi) below, the Eligible Contract Pool Principal
Balance in effect at such time, and (2) in the case of
each of clauses (iv), (v) and (vii) below, the aggregate
outstanding Principal Balance of each of the Eligible
Contracts other than the 1995 Contracts..." is hereby
amended and restated to read "...(1) in the case of each
of clauses (i), (iii) and (vi) below, the Eligible
Contract Pool Principal Balance in effect at such time,
and (2) in the case of each of clauses (ii), (iv), (v)
and (vii) below, the aggregate outstanding Principal
Balance of each of the Eligible Contracts other than the
1995 Contracts:..."
3. Subparagraph (x)(ii) of Section 4.02 of the
Credit Agreement is hereby amended by adding the
following subclause (D) to the parenthetical contained
therein:
"...or (D) in the case of an original Contract which
has been removed from the Contract File for the
purpose of recording such Contract in the relevant
local real property recording office (provided such
original Contract contains the following legend
(whether by stamp or otherwise) on the face thereof:
"THIS COPY IS ONE OF TWO ORIGINALS, AND WAS
EXECUTED SOLELY FOR RECORDATION. TO THE EXTENT
THAT POSSESSION OF THIS CONTRACT IS REQUIRED TO
TRANSFER OR PERFECT A TRANSFER OF ANY INTEREST
IN OR TO THIS CONTRACT, POSSESSION OF THE OTHER
ORIGINAL HEREOF IS REQUIRED.))"
4. The third sentence of Section 5.01(n)(i) of the
Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"In addition, the Servicer shall obtain a copy of
each of the Primary Custodial Documents described
above (and entered into with an Obligor subsequent
to May 1, 1994) on microfiche, CD-Rom or other
format reasonably acceptable to the Collateral
Agent, which copy shall in each case be maintained
in a fireproof vault at a repository located outside
of the offices of the Servicer or the Borrower
(which repository shall initially be Southern Office
Services, Inc, in Little Rock, AR and which
repository shall in all cases provide an
acknowledgment in form and substance satisfactory to
the Collateral Agent to the effect that such
repository maintains an account in the name of the
Collateral Agent). Copies of Primary Custodial
Documents entered into with an Obligor prior to May
1, 1994, shall be maintained on microfiche at the
Servicer's principal offices."
5. The language beginning on the thirteenth line of
sub-paragraph (a)(x) of Section 6.01 of the Credit
Agreement which reads "...(which repository initially
shall be Central Records Services, Inc. in North Little
Rock... is hereby amended and restated to read "...(which
repository shall initially be Southern Office Services,
Inc. in Little Rock, AR...."
6. Sub-paragraph (d) of Section 6.01 of the Credit
Agreement is hereby amended to add the following sentence
to the end thereof:
"Servicer shall also provide to Collateral Agent or
L/C Bank, from time to time at their reasonable
request, a report showing the number and principal
balance of all duplicate original Contracts absent
from their related Contract File in accordance with
the exceptions set forth in subclauses (x)(B) and
(x)(D) of Section 4.02 hereof."
7. Sub-paragraph (g)(i) of Section 6.02 of the
Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"(i) an income statement for such
year and a balance sheet as of the
end of such year for the FairShare
Vacation Plan Use Management Trust,
setting forth in each case
corresponding figures from the next
preceding calendar year's annual
financial statements, all in
reasonable detail and audited by a
firm of Big "6" independent
accountants, provided that, the
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financial statements for the calendar
year ended December 31, 1996 need
only set forth a corresponding
audited balance sheet for the year
ended December 31, 1995."
8. The language beginning on the ninth line of
Section 7.11(c) of the Credit Agreement which reads
"...(which Contracts shall consist of (i) all Overlapping
Contracts and (ii) other Pledged Contracts..." is hereby
amended and restated to read "... (which Contracts shall
first consist of Overlapping Contracts then, if a Pool
Limit Excess continues to exist following the release of
said Overlapping Contracts, other Pledged Contracts...."
9. Each of Triple-A, CapMAC and L/C Bank hereby
waives the application of the representation and warranty
contained in Section 4.02(x)(ii) of the Credit Agreement
(and each of Triple-A, CapMAC, the L/C Bank and FCC agree
and/or consent, as applicable, to the waiver of the
incorporation by reference of said representation and
warranty into Section 7(b) of the Receivables Purchase
Agreement) (i) to the extent said representation and
warranty relates to and would otherwise result in the
release or repurchase by FCC, FAC or FCI under the Credit
Agreement or Purchase Agreement, as applicable, of those
Contracts specifically listed on Schedule "A" attached
hereto (the "Excluded Contracts") or (ii) for any
Contract relating to a Development in North Carolina or
South Carolina for which FCI (in accordance with the
applicable laws of said states) has executed only one
original copy thereof; provided that, in the case of each
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of (i) and (ii) immediately above, this waiver shall only
be effective to the extent that said Contracts otherwise
satisfy the representation and warranty contained in
Section 4.02(x)(i) of the Credit Agreement. As
consideration for said waiver, and notwithstanding any
provision contained in this Agreement, the Credit
Agreement or the Purchase Agreement, (i) each of FCI, FMB
and FAC jointly and severally agree to indemnify, defend
and hold harmless FCC and (ii) FCC agrees to indemnify,
defend and hold harmless Triple-A, CapMAC and the L/C
Bank, from and against any and all claims, losses, and
liabilities (including reasonable attorney's fees)
incurred by said parties as a result of the failure at
any time to maintain two original copies of Excluded
Contracts (or any other Contracts relating to VOIs or
Lots located in Developments in North Carolina or South
Carolina) in the related Contract File.
10. Each of Triple-A, CapMAC and the L/C Bank
hereby waives any prior default or non-compliance with
the provisions of the Credit Agreement to the extent such
default or non-compliance specifically related to or
resulted solely from the provisions being modified by
this Agreement. With respect to any all other provisions
of the Credit Agreement (i) the Borrower hereby
represents and warrants to each of Triple-A, CapMAC and
the L/C Bank that no Event of Default or Unmatured Event
of Default has occurred or is continuing and (ii) the
Servicer hereby represents and warrants to each of
Triple-A, CapMAC and the L/C Bank that no Servicer
Default or Unmatured Servicer Default has occurred or is
continuing.
11. Except as expressly provided in this Agreement,
all of the terms and conditions of the Credit Agreement
and the other Facility Documents shall remain in full
force and effect. The L/C Bank hereby acknowledges,
represents and warrants that the Letter of Credit is in
full force and effect after giving effect to this
Agreement.
12. This Agreement shall be governed by, and
construed in accordance with the laws of the State of New
York.
13. This Agreement may be executed in any 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the parties have executed this
Agreement
as of the date first above written.
FAIRFIELD CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
FAIRFIELD ACCEPTANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
FAIRFIELD COMMUNITIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
FAIRFIELD MYRTLE BEACH, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
TRIPLE-A ONE FUNDING CORPORATION
By: Capital Markets Assurance
Corporation, its Attorney-in-Fact
By: /s/ Xxxx Xxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxx
Title:
CAPITAL MARKETS ASSURANCE CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxx
Title:
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
