CONSOLIDATED, AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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DATED as of July 25, 2000
among
FAIRFIELD COMMUNITIES, INC. and
FAIRFIELD ACCEPTANCE CORPORATION-NEVADA
(the "Borrowers")
and
FLEET NATIONAL BANK and the other Banks
and
FLEET NATIONAL BANK, as Administrative Agent
BANK ONE, N.A., as Documentation Agent
and
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC., as Lead Arranger and Book Manager
TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION.................................2
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1.1. Definitions..................................................2
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1.2. Rules of Interpretation......................................33
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2. THE REVOLVING CREDIT FACILITY...........................................34
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2.1. The Revolving Credit Loans...................................34
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2.2. Reduction of Total Commitment................................35
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2.3. The Revolving Credit Notes...................................35
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2.4. Interest on Revolving Credit Loans...........................36
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2.5. Requests for Revolving Credit Loans..........................36
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2.5.1. General...........................................36
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2.5.2. Swing Line........................................37
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2.6. Conversion Options...........................................37
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2.6.1. Conversion to Different Type of Revolving
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Credit Loan................................................37
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2.6.2. Continuation of Type of Revolving Credit Loan.....38
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2.6.3. Eurodollar Rate Loans.............................39
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2.7. Funds for Revolving Credit Loan..............................39
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2.7.1. Funding Procedures................................39
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2.7.2. Advances by Administrative Agent..................39
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2.8. Change in Borrowing Base.....................................40
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2.9. Settlements..................................................40
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2.9.1. General...........................................40
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2.9.2. Failure to Make Funds Available...................41
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2.9.3. No Effect on Other Banks..........................42
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2.10. Repayments of Revolving Credit Loans Prior to Event of
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Default.............................................................42
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2.10.1. Credit for Funds Received in Concentration
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Account.............................................................42
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2.10.2. Application of Payments Prior to Event of
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Default.............................................................43
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2.11. Repayments of Revolving Credit Loans After Event of
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Default.............................................................45
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3. REPAYMENT OF THE REVOLVING CREDIT LOANS.................................45
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3.1. Maturity.....................................................45
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3.2. Mandatory Repayments of Revolving Credit Loans...............45
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3.3. Optional Repayments of Revolving Credit Loans................45
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4. LETTERS OF CREDIT.......................................................46
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4.1. Letter of Credit Commitments.................................46
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4.1.1. Commitment to Issue Letters of Credit.............46
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4.1.2. Letter of Credit Applications.....................46
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4.1.3. Terms of Letters of Credit........................47
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4.1.4. Reimbursement Obligations of Banks................47
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4.1.5. Participations of Banks...........................47
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4.2. Reimbursement Obligation of the Borrowers....................47
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4.3. Letter of Credit Payments....................................48
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4.4. Obligations Absolute.........................................49
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4.5. Reliance by Issuer...........................................50
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4.6. Letter of Credit Fee.........................................50
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5. CERTAIN GENERAL PROVISIONS..............................................51
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5.1. Fees.........................................................51
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5.2. Funds for Payments...........................................51
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5.2.1. Payments to Administrative Agent..................51
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5.2.2. No Offset, etc....................................52
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5.3. Computations.................................................52
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5.4. Inability to Determine Eurodollar Rate.......................53
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5.5. Illegality...................................................53
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5.6. Additional Costs, etc........................................53
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5.7. Capital Adequacy.............................................55
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5.8. Certificate..................................................56
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5.9. Indemnity....................................................56
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5.10. Interest After Default......................................56
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5.10.1. Overdue Amounts..................................56
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5.10.2. Amounts Not Overdue..............................57
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5.11. Concerning Joint and Several Liability of the Borrowers.....57
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6. COLLATERAL SECURITY AND GUARANTIES......................................61
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6.1. Security of Borrowers........................................61
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6.2. Guaranties and Security of Guarantors........................61
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7. REPRESENTATIONS AND WARRANTIES..........................................62
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7.1. Corporate and Partnership Authority..........................62
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7.1.1. Incorporation; Good Standing. (a)................62
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7.1.2. Authorization.....................................63
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7.1.3. Enforceability....................................63
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7.2. Governmental Approvals.......................................63
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7.3. Title to Properties; Leases..................................63
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7.4. Financial Statements.........................................64
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7.4.1. Fiscal Year.......................................64
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7.4.2. Financial Statements..............................64
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(a)........................................................64
7.5. No Material Changes, etc.....................................64
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7.6. Franchises, Patents, Copyrights, etc.........................65
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7.7. Litigation...................................................65
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7.8. No Materially Adverse Contracts, etc.........................66
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7.9. Compliance with Other Instruments, Laws, etc.................66
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7.10. Tax Status..................................................66
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7.11. No Event of Default.........................................66
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7.12. Holding Company and Investment Company Acts.................66
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7.13. Absence of Financing Statements, etc........................67
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7.14. Perfection of Security Interest.............................67
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7.15. Certain Transactions........................................67
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7.16. Employee Benefit Plans......................................67
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7.16.1. In General.......................................67
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7.16.2. Terminability of Welfare Plans...................68
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7.16.3. Guaranteed Pension Plans.........................68
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7.16.4. Multiemployer Plans..............................69
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7.17. Use of Proceeds.............................................69
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7.17.1. General..........................................69
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7.17.2. Regulations U and X..............................69
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7.17.3. Ineligible Securities............................69
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7.18. Environmental Compliance....................................70
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7.19. Subsidiaries, etc...........................................72
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7.20. Bank Accounts...............................................72
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7.21. Disclosure..................................................72
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7.22. FairShare Program...........................................72
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8. AFFIRMATIVE COVENANTS OF THE BORROWERS..................................73
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8.1. Punctual Payment.............................................73
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8.2. Maintenance of Office........................................73
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8.3. Records and Accounts.........................................73
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8.4. Financial Statements, Certificates and Information...........74
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8.5. Notices......................................................76
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8.5.1. Defaults..........................................76
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8.5.2. Environmental Events..............................77
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8.5.3. Notification of Claim against Collateral..........77
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8.5.4. Notice of Litigation and Judgments................77
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8.6. Corporate Existence; Maintenance of Properties...............78
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8.7. Insurance....................................................78
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8.8. Taxes........................................................80
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8.9. Inspection of Properties and Books, etc......................81
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8.9.1. General...........................................81
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8.9.2. Collateral Reports................................81
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8.9.3. Commercial Finance Examinations...................81
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8.9.4. Communications with Accountants...................82
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8.10. Compliance with Laws, Contracts, Licenses, and
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Permits.............................................................82
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8.11. Employee Benefit Plans......................................82
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8.12. Use of Proceeds.............................................83
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8.13. Bank Accounts...............................................83
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8.13.1. General..........................................83
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8.13.2. Acknowledgment of Application....................83
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8.14. Maintenance and Collection of Base Contracts;
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Custodian...........................................................84
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8.15. FAC's Transactions With FCI.................................84
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8.16. Servicing of Base Contracts.................................85
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8.17. Legal Opinions..............................................86
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8.18. Further Assurances..........................................87
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8.19. Computer Equipment..........................................87
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9. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.............................87
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9.1. Restrictions on Indebtedness.................................87
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9.2. Restrictions on Liens........................................89
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9.3. Restrictions on Investments..................................91
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9.4. Distributions................................................93
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9.5. Merger, Consolidation and Disposition of Assets..............93
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9.5.1. Mergers and Acquisitions..........................93
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9.5.2. Disposition of Assets.............................94
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9.5.3. Disposition of Stock..............................95
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9.5.4. FCI Treasury Stock................................95
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9.6. Sale and Leaseback...........................................95
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9.7. Compliance with Environmental Laws...........................95
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9.8. Subordinated Debt............................................96
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9.9. Employee Benefit Plans.......................................96
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9.10. Business Activities.........................................96
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9.11. Fiscal Year.................................................97
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9.12. Transactions with Affiliates................................97
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9.13. Bank Accounts...............................................97
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9.14. No Termination or Amendments................................97
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9.15. Negative Pledges............................................98
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10. FINANCIAL COVENANTS OF THE BORROWERS...................................98
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10.1. Debt Service Coverage Ratio.................................98
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10.2. Liabilities to Worth Ratio..................................98
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10.3. Consolidated Tangible Net Worth.............................98
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10.4. Consolidated Operating Margin Covenant......................99
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10.5. Minimum Inventory Covenant..................................99
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11. CLOSING CONDITIONS.....................................................99
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11.1. Loan Documents..............................................99
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11.2. Certified Copies of Charter Documents.......................99
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11.3. Corporate, Action...........................................99
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11.4. Incumbency Certificate......................................100
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11.5. Validity of Liens...........................................100
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11.6. Perfection Certificates and UCC Search Results..............100
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11.7. Certificates of Insurance...................................100
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11.8. Agency Account Agreements...................................100
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11.9. Borrowing Base Report.......................................101
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11.10. Base Contracts Aging Report................................101
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11.11. Opinion of Counsel.........................................101
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11.12. Payment of Fees............................................101
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11.13. Other Documents............................................101
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11.14. Repayment of Existing Credit Agreements....................101
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12. CONDITIONS TO ALL BORROWINGS...........................................102
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12.1. Representations True; No Event of Default...................102
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12.2. No Legal Impediment.........................................102
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12.3. Governmental Regulation.....................................102
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12.4. Proceedings and Documents...................................102
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12.5. Borrowing Base Report.......................................103
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13. EVENTS OF DEFAULT; ACCELERATION; ETC...................................103
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13.1. Events of Default and Acceleration..........................103
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13.2. Termination of Commitments..................................107
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13.3. Remedies....................................................108
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13.4. Distribution of Collateral Proceeds.........................108
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14. SETOFF.................................................................109
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15. THE ADMINISTRATIVE AGENT...............................................110
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15.1. Authorization...............................................110
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15.2. Employees and Agents........................................111
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15.3. No Liability................................................111
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15.4. No Representations..........................................111
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15.4.1. General..........................................111
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15.4.2. Closing Documentation, etc.......................112
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15.5. Payments....................................................112
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15.5.1. Payments to Administrative Agent.................112
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15.5.2. Distribution by Administrative Agent.............113
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15.5.3. Delinquent Banks.................................113
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15.6. Holders of Notes............................................114
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15.7. Indemnity...................................................114
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15.8. Administrative Agent as Bank................................114
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15.9. Resignation.................................................114
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15.10. Notification of Defaults and Events of Default.............115
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15.11. Authorization of Collateral Agency Agreement...............115
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15.12. Duties in the Case of Enforcement..........................115
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16. EXPENSES AND INDEMNIFICATION...........................................116
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16.1. Expenses....................................................116
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16.2. Indemnification.............................................117
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16.3. Survival....................................................118
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17. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION..........................118
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17.1. Sharing of Information with Section 20 Subsidiary...........118
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17.2. Confidentiality.............................................118
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17.3. Prior Notification..........................................119
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17.4. Other.......................................................119
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18. SURVIVAL OF COVENANTS, ETC.............................................119
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19. ASSIGNMENT AND PARTICIPATION; ACCESSION................................120
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19.1. Conditions to Assignment and Accession by Banks.............120
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19.2. Certain Representations and Warranties; Limitations;
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Covenants...........................................................121
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19.3. Register....................................................123
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19.4. New Notes...................................................123
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19.5. Participations..............................................124
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19.6. Disclosure..................................................124
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19.7. Assignee or Participant Affiliated with the Borrowers.......124
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19.8. Miscellaneous Assignment Provisions.........................125
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19.9. Assignment by Borrowers.....................................125
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20. NOTICES, ETC...........................................................125
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21. GOVERNING LAW..........................................................126
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22. HEADINGS...............................................................127
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23. COUNTERPARTS...........................................................127
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24. ENTIRE AGREEMENT, ETC..................................................127
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25. WAIVER OF JURY TRIAL...................................................127
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26. CONSENTS, AMENDMENTS, WAIVERS, ETC.....................................128
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27. SEVERABILITY...........................................................129
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28. RELEASE OF SECURITY....................................................129
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29. SUPERIOR RIGHTS OF BASE CONTRACT PURCHASER..............................130
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30. TRANSITIONAL ARRANGEMENTS...............................................130
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30.1. Existing Credit Agreements Superseded.......................130
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30.2. Return and Cancellation of Notes............................130
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30.3. Interest and Fees Under Superseded Agreement................131
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CONSOLIDATED, AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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This CONSOLIDATED, AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is
made as of July 25, 2000, by and among (a) FAIRFIELD COMMUNITIES, INC., a
Delaware corporation ("FCI" or a "Borrower"), having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and
FAIRFIELD ACCEPTANCE CORPORATION-NEVADA, a Delaware corporation and a
wholly-owned subsidiary of FCI ("FAC" or a "Borrower" and together with FCI,
collectively the "Borrowers"), having its principal place of business at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, (b) FLEET NATIONAL BANK,
a national banking association (f/k/a BankBoston, N.A., "Fleet"), BANK ONE,
N.A., a national banking association ("Bank One"), and the other lending
institutions listed on Schedule 1, and (c) Fleet as administrative agent for
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itself and such other lending institutions (the "Administrative Agent"), Bank
One as documentation agent (the "Documentation Agent") and FleetBoston ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc. as lead arranger and book manager (the "Arranger").
WHEREAS, Fleet, the Administrative Agent and FCI entered into an
Amended and Restated Revolving Credit Agreement dated as of January 15, 1998, as
amended by (i) First Amendment to Amended and Restated Revolving Credit
Agreement dated as of July 13, 1998, (ii) Second Amendment to Amended and
Restated Revolving Credit Agreement dated as of October 20, 1998, (iii) Third
Amendment to Amended and Restated Revolving Credit Agreement dated as of June
30, 1999, (iv) Fourth Amendment to Amended and Restated Revolving Credit
Agreement dated as of August 10, 1999, and (v) Fifth Amendment to Amended and
Restated Revolving Credit Agreement dated as of October 4, 1999 (as so amended,
the "Existing FCI Credit Agreement");
WHEREAS, Fleet and certain of the other Banks, the Administrative Agent
and FAC entered into an Amended and Restated Revolving Credit Agreement dated as
of January 15, 1998, as amended by (i) First Amendment to Amended and Restated
Revolving Credit Agreement dated as of July 13, 1998, (ii) Second Amendment to
Amended and Restated Revolving Credit Agreement dated as of October 20, 1998,
(iii) Third Amendment to Amended and Restated Revolving Credit Agreement and
First Amendment to Amended and Restated Unconditional Payment and Performance
Guaranty dated as of February 8, 1999, and (iv) Fourth Amendment to Amended and
Restated Revolving
Credit Agreement dated as of October 4, 1999 (as so amended, the "Existing FAC
Credit Agreement", and together with the Existing FCI Credit Agreement,
collectively, the "Existing Credit Agreements");
WHEREAS, the Banks and the Administrative Agent have agreed with the
Borrowers, subject to the conditions contained herein, to consolidate, amend and
restate the Existing Credit Agreements;
NOW, THEREFORE, the Borrowers, the Banks and the Administrative Agent
agree that the Existing Credit Agreements are consolidated, amended and restated
in their entirety as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
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1.1. DEFINITIONS. The following terms shall have the meanings set forth in
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this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Acceding Bank. See ss.19.1(b).
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Administrative Agent. Fleet acting as administrative agent for the Banks.
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Administrative Agent's Loan Office. The Administrative Agent's office
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located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other
location as the Administrative Agent may designate from time to time.
Administrative Agent's Special Counsel. ▇▇▇▇▇▇▇ ▇▇▇▇ LLP or such other
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counsel as may be approved by the Administrative Agent.
Administrative Fee. See ss.5.1.
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Affiliate. Any Person that would be considered to be an affiliate of any
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other Person under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if such Person were
issuing securities.
Agency Account Agreement. See ss.8.13.1.
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Applicable Eurodollar Margin. Two and one-half percent (2.50%) per annum;
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provided that so long as the Corporate Credit Rating on the date of
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determination is greater than or equal to BB by Standard & Poor's or greater
--
than or equal to Ba2 by Moody's, the Applicable Eurodollar Margin shall be two
and one-quarter percent (2.25%) per annum.
Approved Projects. (i) All portions of those vacation ownership resorts and
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developments identified on Schedule 1-A hereto, and (ii) vacation ownership
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resorts and developments acquired, developed, owned and operated by FCI or any
of its Subsidiaries after the date of this Credit Agreement which are (a)
located in any of the Existing Resort Cities, (b) approved by the Administrative
Agent or (c) Startup Projects, provided, however, that a Startup Project shall
cease to be an Approved Project at such time as FCI and/or its Subsidiaries have
made expenditures (including expenditures for Completion Costs) for or with
respect to such Startup Project in excess of $15,000,000.
Arranger. FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. acting as lead arranger and
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book manager for the Banks.
Assessments. Any assessments, including but not limited to, real estate
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taxes, recreation fees, community club or property owners association dues,
water and sewer improvement district assessments or other similar assessments,
made with respect to a VOI or Lot, the nonpayment of which would result in the
imposition of a Lien or other encumbrance upon the VOI or Lot.
Assignment and Acceptance. See ss.19.1.
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Average Inventory. For any period, the sum of (a) Inventory as of the last
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day of such period plus (b) Inventory as of the last day of the immediately
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preceding period, divided by two.
Balance Sheet Date. December 31, 1999.
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Banks. Fleet and the other lending institutions listed on Schedule 1 hereto
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and any other Person who becomes an assignee of any rights and obligations of a
Bank pursuant to ss.19 or which becomes an Acceding Bank pursuant to ss.19
hereof.
Base Contract Default. With respect to any Base Contract, when the obligor
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thereunder is at the relevant time of determination ninety (90) or more days
delinquent in the payment of any installment or other periodic payment of
principal, interest or amounts due thereunder.
Base Contracts. Lot Contracts and Timeshare Contracts.
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Base Rate. The higher of (a) the variable annual rate of interest so
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designated from time to time by Fleet as its "prime rate," such rate being a
reference rate and not necessarily representing the lowest or best rate being
charged to any customer or (b) the annual rate of interest equal to
one-half of one percent (1/2%) plus the overnight federal funds effective rate,
as published by the Board of Governors of the Federal Reserve System, as in
effect from time to time. Changes in the Base Rate resulting from any changes in
Fleet's "prime rate" shall take place immediately without notice or demand of
any kind on the effective day of such change.
Base Rate Loans. Revolving Credit Loans bearing interest calculated by
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reference to the Base Rate.
Borrower(s). As defined in the preamble hereto.
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Borrowing Base. At the relevant time of reference thereto, an amount
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determined by the Administrative Agent by reference to the most recent Borrowing
Base Report delivered to the Banks and the Administrative Agent pursuant to
ss.8.4(f) which is equal to the sum of:
(a) 75% of the aggregate Principal Balances of all Eligible Base Contracts;
plus
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(b) 80% of the aggregate Principal Balances of all Eligible Prime Base
Contracts; plus
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(c) 65% of the aggregate Principal Balance of all Eligible Green Base
Contracts; provided, that in no event shall the weighted average rate of
interest accruing on the aggregate Principal Balances of all Eligible Base
Contracts, Eligible Prime Base Contracts and Eligible Green Base Contracts
included in the Borrowing Base under clauses (a), (b) and (c) be less than
twelve percent (12%) per annum, and if such weighted average rate of interest is
less than twelve percent (12%) at any time of determination, Eligible Base
Contracts, Eligible Prime Base Contracts and Eligible Green Base Contracts
having an interest rate of less than twelve percent (12%) shall be excluded from
the Borrowing Base in an amount sufficient to cause such weighted average rate
of interest to equal or exceed twelve percent (12%), and further provided, that
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in no event shall the portion of the Borrowing Base under clauses (a), (b) and
(c) attributable to Base Contracts for Vacation Club Memberships exceed
$10,000,000; minus
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(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.
Borrowing Base Report. A Borrowing Base Report signed by the senior vice
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president, treasurer or chief financial officer of the Borrowers and in
substantially the form of Exhibit A hereto.
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Business Day. Any day on which banking institutions in Boston,
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Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
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fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
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include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
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Borrowers or any of their Subsidiaries in connection with (i) the purchase or
lease by any Borrower or any of its Subsidiaries of Capital Assets that would be
required to be capitalized and shown on the balance sheet of such Person in
accordance with generally accepted accounting principles, excluding any such
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amounts related directly to the development and construction of shelter held for
sale or lots (including without limitation acquisition of land for future
development) but including any amounts related to the development of any
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amenities at any resort development, or (ii) the lease of any assets by any
Borrower or any of its Subsidiaries as lessee under any synthetic lease referred
to in clause (vi) of the definition of the term "Indebtedness" to the extent
that such assets would have been Capital Assets had the synthetic lease been
treated for accounting purposes as a Capitalized Lease.
Capitalized Leases. Leases under which any Borrower or any of its
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Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with generally accepted accounting
principles.
CERCLA. See ss.7.18(a).
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Closing Date. The first date on which the conditions set forth in ss.11
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have been satisfied and any Revolving Credit Loans are to be made or any Letter
of Credit is to be issued hereunder.
Closing Fee. See ss.5.1.
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Code. The Internal Revenue Code of 1986.
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Collateral. All of the property, rights and interests of the Borrowers and
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the Guarantors that are or are intended to be subject to the security interests
and liens created by the Security Documents.
Collateral Agency Agreement. The Collateral Agency Agreement, dated as of
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January 15, 1998, as amended by a First Amendment to Collateral Agency Agreement
dated as of July 31, 1998, and a Second Amendment to Collateral Agency Agreement
dated as of July 25, 2000, by and among (i) the Collateral Agent; (ii) the
Administrative Agent; (iii) the Banks; (iv) Eagle Funding Capital Corporation,
Falcon Asset Securitization Corporation, and the other lenders under the FRC
Credit Agreement; (v) FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., as deal agent under
the FRC Credit Agreement; (vi) First Security Bank, National Association; and
(vii) the Borrowers, FMB, FRC and the VB Originating Subsidiaries.
Collateral Agent. Fleet, acting as collateral agent for the Administrative
----------------
Agent and the Banks under the Collateral Agency Agreement.
Commitment. With respect to each Bank, the amount set forth on Schedule 1
---------- -------- -
hereto as the amount of such Bank's commitment to make Loans to, and to
participate in the issuance, extension and renewal of Letters of Credit for the
account of the Borrowers, as the same may be modified pursuant to ss.19.1(b) or
as reduced from time to time; or if such commitment is terminated pursuant to
the provisions hereof, zero.
Commitment Percentage. With respect to each Bank, the percentage set forth
---------------------
on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
----------
all of the Banks.
Completion Costs. Pro forma costs to complete the first phase of any
-----------------
Startup Project, including, but not limited to, anticipated expenditures for
land, all Soft Costs, and the amount of any form of future obligation or
guaranty to inject cash required in order to construct the first phase of such
Startup Project, regardless of which phase such obligation or guaranty shall
actually benefit.
Consolidated or consolidated. With reference to any term defined herein,
------------------------------
shall mean that term as applied to the accounts of FCI and its Subsidiaries,
consolidated in accordance with generally accepted accounting principles.
Consolidated Net Income (or Deficit). The consolidated net income (or
---------------------------------------
deficit) of FCI and its Subsidiaries, after deduction of all expenses, taxes,
and other proper charges, determined in accordance with generally accepted
accounting principles.
Consolidated Net Operating Income (or Deficit). Consolidated Net Income (or
----------------------------------------------
Deficit), after eliminating therefrom all extraordinary nonrecurring items of
income or loss.
Consolidated Operating Cash Flow. For any period, an amount equal to (i)
---------------------------------
the sum of (A) Earnings Before Interest and Taxes for such period, plus (B)
----
depreciation, amortization and all other noncash charges for such period, less
----
(ii) the sum of (A) cash payments for all taxes paid during such period, plus
(B) Capital Expenditures made during such period.
Consolidated Tangible Net Worth. The excess of Consolidated Total Assets
--------------------------------
over Consolidated Total Liabilities, and less the sum of:
(a) the total book value of all assets of FCI and its Subsidiaries
(other than Nonconsolidated Subsidiaries) properly classified as intangible
assets under generally accepted accounting principles, including such items
as good will, the purchase price of acquired assets in excess of the fair
market value thereof, trademarks, trade names, service marks, brand names,
copyrights, patents and licenses, and rights with respect to the foregoing;
plus
(b) all amounts representing any write-up in the book value of any
assets of FCI or its Subsidiaries (other than Nonconsolidated Subsidiaries)
resulting from a revaluation thereof subsequent to the Interim Balance
Sheet Date; plus
(c) to the extent otherwise includable in the computation of
Consolidated Tangible Net Worth, any subscriptions receivable.
Consolidated Total Assets. The sum of (i) all assets ("consolidated balance
-------------------------
sheet assets") of FCI and its Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles, plus (ii) without
----
duplication, all assets leased by FCI or any Subsidiary as lessee under any
synthetic lease referred to in clause (vi) of the definition of the term
"Indebtedness" to the extent that such assets would have been consolidated
balance sheet assets had the synthetic lease been treated for accounting
purposes as a Capitalized Lease, plus (iii) without duplication, all sold
receivables referred to in clause (vii) of the
definition of the term "Indebtedness" to the extent that such receivables would
have been consolidated balance sheet assets had they not been sold.
Consolidated Total Interest Expense. For any period, the aggregate amount
------------------------------------
of interest required to be paid or accrued by FCI and its Subsidiaries (other
than Nonconsolidated Subsidiaries) during such period on all Indebtedness of FCI
and its Subsidiaries (other than Nonconsolidated Subsidiaries) outstanding
during all or any part of such period, whether such interest was or is required
to be reflected as an item of expense or capitalized, including payments
consisting of interest in respect of any Capitalized Lease, or any synthetic
lease referred to in clause (vi) of the definition of the term "Indebtedness,"
and including commitment fees, agency fees, facility fees, balance deficiency
fees and similar fees or expenses in connection with the borrowing of money.
Consolidated Total Liabilities. All liabilities of FCI and its Subsidiaries
------------------------------
determined on a consolidated basis in accordance with generally accepted
accounting principles and classified as such on the consolidated balance sheet
of FCI and its Subsidiaries and all other Indebtedness of FCI and its
Subsidiaries (other than Nonconsolidated Subsidiaries), whether or not so
classified.
Consolidated Total Revenue. For any period, the consolidated revenue of FCI
--------------------------
and its Subsidiaries determined in accordance with generally accepted accounting
principles.
Consolidated VOI Revenue. For any period, the consolidated revenue of FCI
------------------------
and its Subsidiaries derived from their VOI sales as reported in FCI's
consolidated statement of earnings included in its quarterly reports on Forms
10-Q and annual reports on Forms 10-K as filed with the Securities and Exchange
Commission.
Contract Settlement Date. The 1st and 15th day of each calendar month and
--------------------------
the last day of each calendar month, or any date on which any Borrower sells
Base Contracts pursuant to ss.9.5.2(ii) hereof.
Conversion Request. A notice given by the Borrowers to the Administrative
-------------------
Agent of the Borrowers' election to convert or continue a Loan in accordance
with ss.2.6.
Corporate Credit Rating. The senior implied rating for FCI issued by
-------------------------
Moody's and the corporate credit rating for FCI issued by Standard & Poor's.
Credit Agreement. This Consolidated, Amended and Restated Revolving Credit
----------------
Agreement, including the Schedules and Exhibits hereto.
Custodial Agreements. Collectively, the Second Amended and Restated
---------------------
Custodial Agreement, dated as of July 25, 2000, among the Borrowers and certain
of their Subsidiaries, the Collateral Agent, the Administrative Agent,
EagleFunding Capital Corporation, Falcon Asset Securitization Corporation, First
Security Bank, National Association, and First Security Trust Company of Nevada,
as "Custodian", and others, and the Second Amended and Restated Bailment
Agreement, dated as of July 25, 2000, among FCI, FAC and First Security Trust
Company of Nevada.
Custodian. The Custodian under the Custodial Agreements.
---------
Default. Any of the events specified in ss.13.1, whether or not any
-------
requirement for the giving of notice or the lapse of time, or both, has been
satisfied.
Delinquent Bank. See ss.15.5.3.
---------------
Determination Date. The last date of each calendar month.
------------------
Distribution. The declaration or payment of any dividend on or in respect
------------
of any shares of any class of capital stock of any Person, other than dividends
payable solely in shares of common stock of such Person; the purchase,
redemption, or other retirement of any shares of any class of capital stock of
any Person, directly or indirectly through a Subsidiary of such Person or
otherwise; the return of capital by any Person to its shareholders as such; or
any other distribution on or in respect of any shares of any class of capital
stock of a Person.
Documentation Agent. Bank One acting as documentation agent for the Banks.
-------------------
Dollars or $. Dollars in lawful currency of the United States of America.
------- -
Domestic Lending Office. Initially, the office of each Bank designated as
-----------------------
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
----------
located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date. The date on which any Revolving Credit Loan is made or is to
-------------
be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with ss.2.6.
Earnings Before Interest and Taxes. The Consolidated Net Operating Income
----------------------------------
(or Deficit) of FCI and its Subsidiaries for any period, after all expenses and
other proper charges but before payment or provision for any income taxes or
interest expense for such period, determined in accordance with generally
accepted accounting principles, after eliminating therefrom all extraordinary
nonrecurring items of income (or loss).
Eligible Assignee. Any of (i) a commercial bank or finance company
------------------
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (ii)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (iii) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
--------
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (iv) the
central bank of any country which is a member of the OECD; (v) any Bank and any
Affiliate of any Bank; and (vi) if, but only if, any Event of Default has
occurred and is continuing, any other bank, insurance company, commercial
finance company or other financial institution approved by the Administrative
Agent, such approval not to be unreasonably withheld; provided that
-------- ----
notwithstanding anything in the foregoing to the contrary, First Massachusetts
Bank, N.A., shall be an Eligible Assignee for all purposes hereunder.
Eligible Base Contract. Any Base Contract as to which any Borrower or any
-------- ---- --------
Guarantor is the obligee thereunder and which satisfies each of the following
requirements:
(a) Which is subject to a valid and perfected Lien in favor of the
Collateral Agent for the benefit of the Banks;
(b) (i) Which is a legal, valid and binding obligation that has not
been cancelled or terminated (regardless of whether the obligor thereunder
is legally entitled to do so) or been declared ineligible by such
Borrower or such Guarantor and (ii) as to which all periods of time during
which the obligor thereunder may rescind, cancel or terminate such Base
Contract have expired without the obligor having exercised any such right;
(c) Which is not in Base Contract Default;
(d) Which has an Equity Percentage of 10% or more;
(e) Which arises from transactions in a jurisdiction where FCI or any
Subsidiary of FCI which originates Base Contracts maintains its right to do
business, unless the Borrowers have demonstrated to the satisfaction of the
Majority Lenders in their sole discretion that the legality, validity,
binding effect and enforceability of such Base Contract has not been
impaired by any failure to maintain the right to do business in such
jurisdiction;
(f) Which is substantially in the form of Exhibit D attached hereto or
------- -
in a form containing material variations from the attached form which has
been approved in writing by the Administrative Agent;
(g) With respect to a Timeshare Contract as to which the underlying
unit is (i) complete and ready for occupancy, and (ii) free of all liens
and encumbrances except Permitted Liens (except with respect to the
underlying units in the vacation ownership resort known as Vacation Break
at Star Island located at Kissimmee, Florida, which may not be free of all
liens and encumbrances);
(h) That requires the obligor thereunder to pay the unpaid principal
balance over an original term of not greater than one hundred twenty (120)
months;
(i) Which is related to an Approved Project, provided that a Base
--------
Contract which has previously been an Eligible Base Contract and is related
to a vacation ownership resort or development which subsequently loses its
status as an Approved Project shall remain an Eligible Base Contract (as
long as such Base Contract would otherwise qualify as an Eligible Base
Contract);
(j) As to which any installment payable thereunder has not been
deferred subsequent to January 31, 1998 other than pursuant to a Permitted
Deferral;
(k) As to which such Borrower or such Guarantor has a valid ownership
interest in an underlying VOI or Lot subject only to Permitted Liens,
except as otherwise provided in clause (1) below;
(l) Where (i) if the related VOI or Lot has been deeded to the obligor
of the related Base Contract, on the date on which such Base Contract was
granted as security to the Collateral Agent for the benefit of the
Administrative Agent and the Banks (except as otherwise provided in clause
(C) below): (A) such Borrower or such Guarantor has a valid and enforceable
first lien mortgage, deed of trust, vendor's lien or retention of title of
record on such VOI or Lot, (B) such mortgage, deed of trust, vendor's lien
or retention of title shall be assigned to the Collateral Agent for the
benefit of the Administrative Agent and the Banks, (C) the original of such
recorded or unrecorded mortgage, deed of trust, vendor's lien or retention
of title (or a copy of such recorded mortgage, deed of trust, vendor's lien
or retention of title if the original recorded copy is not available) shall
be delivered to the custody of the Custodian as soon as possible, but in
any event within one hundred and eighty (180) days after the deeding of
such VOI or Lot, and (D) if any mortgage, deed of trust, vendor's lien or
retention of title relating to such Base Contract is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated in accordance with applicable law and currently so
serves, (ii) if the related VOI or Lot has not been deeded to the obligor
of the related Base Contract, is not located in Florida and is not related,
and has not been related within the past one hundred and eighty (180) days,
to an Eligible Green Base Contract, on the date on which such contract was
granted as security to the Collateral Agent for the benefit of the
Administrative Agent and the Banks, a nominee under the Title Clearing
Agreements has legal title to such VOI or Lot and such Borrower or such
Guarantor has an equitable interest in such VOI or Lot underlying the
related Base Contract, which equitable interest shall be assigned to the
Collateral Agent for the benefit of the Administrative Agent and the Banks,
(iii) if the related VOI was the subject of an Eligible Green Base
Contract, such Borrower or such Guarantor shall have caused the VOI to
comply with the requirements of clause (i) or (ii) immediately above, as
applicable, as soon as possible, but in any event within one hundred and
eighty (180) days after the date upon which such Base Contract ceased to be
an Eligible Green Base Contract; and (iv) if such obligor's interest in the
VOI is represented by a Vacation Club Membership, the Collateral Agent
shall have a perfected security interest in such Borrower's or such
Guarantor's rights under the Vacation Club Agreement.
(m) Which was issued in a transaction which complied, and is in
compliance in all material respects, with all requirements of applicable
federal, state and local laws, including those relating to usury,
truth-in-lending, land sales, vacation time share sales, consumer credit
and disclosure laws;
(n) Where payments to be made thereunder are denominated and payable
in United States dollars;
(o) The underlying ownership interest which is the subject of such
Base Contract (A) either (i) consists of a fixed week, or (ii) is an
undivided interest in a fee simple (or, in the case of Harbortown Marina
Resort Hotel Development in Ventura County, California or the Pagosa
Mountain ▇▇▇▇▇▇▇ timeshare regime at the Fairfield Pagosa resort in
▇▇▇▇▇▇▇▇▇ County, Colorado, an undivided leasehold interest) in a lodging
unit or group of lodging units at an Approved Project, or (iii) is a lot at
an Approved Project, and (B) in the case of a fixed week which has been
converted into an undivided interest in a fee simple or a leasehold
interest, or which has become subject to the Fair Share Plus Program, which
conversion or other modification does not give rise to the extension of the
maturity of any payments under such Base Contract;
(p) Which was originated by FCI or such Guarantor, and has been (or in
the case of Base Contracts originated prior to January 31, 1998 by the VB
Originating Subsidiaries, from and after January 31, 1998 will be)
consistently serviced by FAC or FCI in the ordinary course of its
respective business;
(q) Which has not been specifically reserved against by such Borrower
or such Guarantor, and has not been classified by such Borrower or such
Guarantor as uncollectable or charged off;
(r) As to which the payment obligation of the obligor thereunder is
not subject to any material dispute between such obligor and such Borrower
or such Guarantor;
(s) Where the obligor thereunder is a United States citizen or has a
United States mailing address, or with respect to Base Contracts
constituting not more than 10% of the aggregate Principal Balances of all
Eligible Base Contracts as of the relevant date of determination, where the
obligor thereunder is not a United States citizen or does not have a United
States mailing address;
(t) Where the obligor thereunder is not an Affiliate of FCI or any of
its Subsidiaries;
(u) That is fully amortizing pursuant to a required set of regular
monthly payments of principal and interest;
(v) That is not an obligation of an obligor that is bankrupt or
otherwise involved, whether voluntary or involuntary, in any case or
proceeding under any bankruptcy, reorganization, arrangement, insolvency,
adjustment of debt, dissolution, liquidation or similar law of any
jurisdiction and
(w) Which is not an Eligible Prime Base Contract.
Eligible Green Base Contract. Any Timeshare Contract which would be an
------------------------------
Eligible Base Contract hereunder but for the qualification contained in clause
(g)(i) of the definition of "Eligible Base Contract" and with respect to which
the underlying unit is anticipated to be completed and ready for occupancy
within one (1) year following the origination of such Timeshare Contract and any
Timeshare Contract originated at the Fairfield Destin Majestic Sun Project or
the Fairfield Daytona Beach Project which would be an Eligible Base Contract
hereunder but for the qualifications contained in clauses (g) and (k) of the
definition of "Eligible Base Contract" and with respect to which the underlying
unit is anticipated to be completed and ready for occupancy within one (1) year
following the origination of such Timeshare Contract but only if and for so long
as the Tri-Party Agreement applicable to such Project remains in full force and
effect; provided that any such Timeshare Contract shall cease to be an Eligible
Green Base Contract one (1) year following the origination of such Timeshare
Contract and provided further that an Eligible Green Base Contract need not
-------- -------
comply with the requirements contained in clause (b)(ii) of the definition of
"Eligible Base Contract".
Eligible Prime Base Contract. Any Base Contract which would qualify as an
-----------------------------
Eligible Base Contract hereunder but for the qualification contained in clause
(w) of the definition of "Eligible Base Contract" and which meets the following
additional qualifications:
(a) the obligor thereunder is not in Prime Contract Default;
(b) either (i) such Base Contract has an Equity Percentage of 15% or more,
or (ii) the obligor under such Base Contract (A) has paid a downpayment in an
amount equal to at least 10% of the total principal amount due thereunder
(including in such total any cash downpayments
made under such Base Contract at origination and principal payments made under
any Base Contract which has been "traded in" in connection with the origination
of the subject Base Contract) and (B) has made a minimum of six (6) consecutive,
---
regular monthly payments of principal and interest.
Employee Benefit Plan. Any employee benefit plan within the meaning of
-----------------------
ss.3(3) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.7.18(a).
------------------
EPA. See ss.7.18(b).
---
Equity Percentage. With respect to any Base Contract, at any time of
------------------
determination a fraction (stated as a percentage) equal to (i) the excess of (A)
the Sales Price thereof, over (B) the outstanding Principal Balance of such Base
Contract at such time, divided by (ii) the Sales Price thereof, provided that,
for the avoidance of doubt, for purposes of determining the excess amount
described in clause (i) immediately above, such excess shall include any
downpayments or principal payments made under any other Base Contract which has
been "traded in" in connection with the origination of the subject Base
Contract.
ERISA. The Employee Retirement Income Security Act of 1974.
-----
ERISA Affiliate. Any Person which is treated as a single employer with any
---------------
Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
------------------------
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
--------------------------
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
-------------------------
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank designated as
-------------------------
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
-------- -
that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
----------------
Loan, the rate of interest equal to (i) the rate per annum (rounded upwards to
the nearest 1/16 of one percent) at which the Administrative Agent's Eurodollar
Lending Office is offered Dollar deposits two Eurodollar Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations of such Eurodollar
Lending Office are customarily conducted, for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Rate Loan of the Administrative Agent
to which such Interest Period applies, divided by (ii) a number equal to 1.00
minus the Eurocurrency Reserve Rate, if applicable.
Eurodollar Rate Loans. Revolving Credit Loans bearing interest calculated
---------------------
by reference to the Eurodollar Rate.
Event of Default. See ss.13.1.
----------------
Existing Credit Agreements. As defined in the preamble hereto.
--------------------------
Existing FAC Credit Agreement. As defined in the preamble hereto.
-----------------------------
Existing FCI Credit Agreement. As defined in the preamble hereto.
-----------------------------
Existing Resort Cities. Any of Flagstaff, Arizona; Sedona, Arizona;
------------------------
Fairfield Bay, Arkansas; Ventura, California; Daytona Beach, Florida; Destin,
Florida; Kissimmee, Florida; Orlando, Florida; Pompano Beach, Florida; Villa
Rica, Georgia; Branson, Missouri; Las Vegas, Nevada, Lake Lure, North Carolina;
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; Fairfield Glade, Tennessee; Pagosa
Springs, Colorado; ▇▇▇▇▇▇ County, Tennessee; Nashville, Tennessee; Broward
County, Florida; Alexandria,
Virginia; and Williamsburg, Virginia. In addition, any city which is the
location of a Startup Project that has generated positive net income for each of
four (4) consecutive months shall be deemed an Existing Resort City, and any
city which is the location of a Project that is an Approved Project by reason of
its having been approved as such by the Administrative Agent and has generated
positive net income for each of four (4) consecutive months shall be deemed an
Existing Resort City.
FAC. As defined in the preamble hereto.
---
Fair Share Plus Program. The program pursuant to which the occupancy and
------------------------
use of a VOI is assigned to the trust created by the Amended and Restated Fair
Share Vacation Plan Use Management Trust Agreement, effective as of January 1,
1996, among FCI and certain Subsidiaries of FCI and third party developers as
may be named by an amendment or addendum thereto, as such agreement may be
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms of this Agreement (the "Fair Share Plus Agreement"),
in exchange for annual symbolic points which are used to establish the location,
timing, length of stay and unit type of a vacation; including, without
limitation, systems relating to reservations, accounting and collection,
disbursement and enforcement of assessments in respect of contributed units.
FCC. Fairfield Capital Corporation, a Delaware corporation and a
---
wholly-owned subsidiary of FAC.
FCI. As defined in the preamble hereto.
---
FCI Treasury Stock. See ss.9.4.
------------------
Fee Letter. The fee letter dated as of July 25, 2000, by and among the
-----------
Borrowers, the Administrative Agent and the Arranger.
FFC-II. Fairfield Funding Corporation, II, a Delaware corporation and a
------
wholly-owned subsidiary of FAC.
FFC-II Receivables Purchase Agreement. The Receivables Purchase Agreement,
-------------------------------------
dated as of July 31, 1998, among the Borrowers, FMB, the VB Originating
Subsidiaries and FFC-II.
Fleet. Fleet National Bank (f/k/a BankBoston, N.A.), a national banking
-----
association, in its individual capacity.
Fleet Concentration Account. See ss.8.13.1.
---------------------------
FMB. Fairfield Myrtle Beach, Inc., a Delaware corporation and a wholly
---
owned subsidiary of FCI.
FRC. Fairfield Receivables Corporation, a Delaware corporation and
---
wholly-owned subsidiary of FAC.
FRC Credit Agreement. The Amended and Restated Credit Agreement, dated as
--------------------
of July 25, 2000, by and among FRC, EagleFunding Capital Corporation, Falcon
Asset Securitization Corporation, Bank One, FAC, FCI, FleetBoston ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc., as deal agent, the Collateral Agent and others.
FRC Receivables Purchase Agreement. The Amended and Restated Receivables
-----------------------------------
Purchase Agreement, dated as of July 25, 2000, among the Borrowers, FMB, the VB
Originating Subsidiaries and FRC.
generally accepted accounting principles. (i) When used in ss.10, whether
-----------------------------------------
directly or indirectly through reference to a capitalized term used therein,
means (A) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year ended on the Balance Sheet Date, and (B) to the
extent consistent with such principles, the accounting practice of FCI reflected
in its financial statements for the year ended on the Balance Sheet Date, and
(ii) when used in general, other than as provided above, means principles that
are (A) consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time,
and (B) consistently applied with past financial statements of FCI adopting the
same principles, provided that in each case referred to in this definition of
"generally accepted accounting principles" a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
-------------------------
meaning of ss.3(2) of ERISA maintained or contributed to by any Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Each of FMB, Vacation Break, the VB Originating Subsidiaries
----------
and any other Subsidiary of a Borrower which becomes a party to the Guaranty
after the Closing Date.
Guaranty. The Amended and Restated Unconditional Payment and Performance
--------
Guaranty, dated or to be dated on or prior to the Closing Date, made by the
Guarantors in favor of the Banks and the Administrative Agent, pursuant to which
each of the Guarantors guarantees to the Banks and the Administrative Agent the
payment and performance of the Obligations and otherwise in form and substance
satisfactory to the Banks and the Administrative Agent.
Hazardous Substances. See ss.7.18(b).
--------------------
Indebtedness. As to any Person and whether recourse is secured by or is
------------
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person,
(iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business which are not overdue or which
are being contested in good faith),
(v) every obligation of such Person under any Capitalized Lease,
(vi) every obligation of such Person under any lease (a "synthetic
lease") treated as an operating lease under generally accepted accounting
principles and as a loan or financing for U.S. income tax purposes,
(vii) all sales by such Person of (A) accounts or general intangibles
for money due or to become due, (B) chattel paper, instruments or documents
creating or evidencing a right to payment of money or (C) other receivables
(collectively "receivables"), whether pursuant to a purchase facility or
otherwise, other than in connection with the disposition of the business
operations of such
Person relating thereto or a disposition of defaulted receivables for
collection and not as a financing arrangement, and together with any
obligation of such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith,
(viii) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value any
shares of capital stock of any class issued by such Person, any warrants,
options or other rights to acquire any such shares, or any rights measured
by the value of such shares, warrants, options or other rights,
(ix) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices,
(x) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent that such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent that the terms of such Indebtedness provide that such Person is not
liable therefor and such terms are enforceable under applicable law,
(xi) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of clauses
(i) through (x) (the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (A) to purchase or pay
(or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (B) to purchase property, securities or
services for the purpose of assuring the payment of such primary
obligation, or (C) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a
price that is less than the principal amount at maturity thereof, shall be the
amount of the liability in respect thereof determined in accordance with
generally accepted accounting principles, (v) any Capitalized Lease shall be the
principal component of the aggregate of the rentals obligation under such
Capitalized Lease payable over the term thereof that is not subject to
termination by the lessee, (w) any sale of receivables shall be the amount of
unrecovered capital or principal investment of the purchaser (other than the
Borrowers or any of their wholly-owned Subsidiaries) thereof, excluding amounts
representative of yield or interest earned on such investment, (x) any synthetic
lease shall be the stipulated loss value, termination value or other equivalent
amount, (y) any derivative contract shall be the maximum amount of any
termination or loss payment required to be paid by such Person if such
derivative contract were, at the time of determination, to be terminated by
reason of any event of default or early termination event thereunder, whether or
not such event of default or early termination event has in fact occurred and
(z) any equity related purchase obligation shall be the maximum fixed redemption
or purchase price thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price.
Ineligible Securities. Securities which may not be underwritten or dealt in
---------------------
by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1993 (12 U.S.C. ss.24, Seventh), as amended.
Instrument of Accession. See ss.19.1(b).
------------------------
Interest Payment Date. (i) As to any Base Rate Loan, the last day of the
----------------------
calendar month with respect to interest accrued during such calendar month,
including, without limitation, the calendar month which includes the Drawdown
Date of such Base Rate Loan; and (ii) as to any Eurodollar Rate Loan, the last
day of each calendar month included in the Interest Period for such Eurodollar
Rate Loan including, without limitation, the calendar month which includes the
Drawdown Date of such Eurodollar Rate Loan.
Interest Period. With respect to each Revolving Credit Loan, (i) initially,
---------------
the period commencing on the Drawdown Date of such Loan and ending on the last
day of one of the periods set forth below, as selected by the Borrowers in a
Loan Request or as otherwise required by the terms of this Credit Agreement (A)
for any Base Rate Loan, the last day of the calendar month and (B) for any
Eurodollar Rate Loan, 1, 2, or 3 months; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Revolving Credit Loan and ending on the last day of one of the periods set
forth above, as selected by
the Borrowers in a Conversion Request; provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the
next succeeding Business Day;
(c) if the Borrowers shall fail to give notice as provided in ss.2.6,
the Borrowers shall be deemed to have requested a conversion of the
affected Eurodollar Rate Loan to a Base Rate Loan and the continuance of
all Base Rate Loans as Base Rate Loans on the last day of the then current
Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Eurodollar
Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond the
Revolving Credit Loan Maturity Date shall end on the Revolving Credit Loan
Maturity Date.
Interim Balance Sheet Date. March 31, 2000.
--------------------------
Interim Concentration Account. See ss.8.13.1.
-----------------------------
Inventory. The value of land (both undeveloped and in the process of
---------
development) and residential housing relating exclusively to the development of
VOIs (and specifically excluding developed or undeveloped land attributable to
the sale of homes or lots), as reported in FCI's consolidated balance sheet
included in its quarterly reports on Forms 10-Q and annual reports on Forms 10-K
filed with the Securities and Exchange Commission.
Investments. All expenditures made and all liabilities incurred
-----------
(contingently or otherwise) for the acquisition of stock or Indebtedness of,
or for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(iii) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (iv) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof. Any purchase of assets
acquired primarily for purposes of operating the business of the Borrowers and
their Subsidiaries shall not be deemed to be an Investment, nor shall any
prepayment of or advance for fees or expenses for services or goods in FCI's
normal course of business (including prepayments or advances under marketing
agreements).
Letter of Credit. See ss.4.1.1.
----------------
Letter of Credit Application. See ss.4.1.1.
----------------------------
Letter of Credit Fee. See ss.4.6.
--------------------
Letter of Credit Participation. See ss.4.1.4.
------------------------------
Lien. (i) With respect to real property, a first priority mortgage or deed
----
of trust lien, and (ii) with respect to personal property, a fully perfected
first priority security interest.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
---------------
Applications, the Letters of Credit, the Collateral Agency Agreement, the
Security Documents and the fee letter agreement described in ss.5.1.
Loan Request. See ss.2.5.1.
------------
Loans. The Revolving Credit Loans.
-----
Local Account. See ss.8.13.1.
-------------
Lot. Any lot related to a Base Contract.
---
Lot Contracts. Any installment contract or contract for deed or contracts
-------------
or notes secured by a mortgage, deed of trust, vendor's lien or retention of
title entered into with a purchaser of one or more individual lots or plots or
tracts of land and the improvements thereon.
Majority Banks. As of any date, two or more Banks holding an aggregate of
---------------
at least sixty-six and two-thirds percent (66 2/3%) of the outstanding principal
amount of the Notes on such date; and if no such principal is outstanding, two
or more Banks whose aggregate Commitments constitutes at least sixty-six and
two-thirds percent (66 2/3%) of the Total Commitment.
Material Adverse Effect. With respect to any event or circumstance, a
-------------------------
material adverse effect on
(a) the business, properties, operations, profits, prospects, or condition
(financial or otherwise) of the Borrowers and their Subsidiaries (taken as a
whole);
(b) the ability of any of the Borrowers and the Guarantors to perform its
respective obligations under any of the Loan Documents to which it is a party;
(c) the validity or enforceability of, or collectability of amounts payable
under, the Credit Agreement, the Notes or any of the other Loan Documents;
(d) the status, existence, perfection or priority of the Collateral Agent's
liens or security interests in the Collateral; or
(e) the value, validity, enforceability or collectability of the Loans, the
Guaranty, or any of the Collateral (as applicable).
Maximum Drawing Amount. The maximum aggregate amount that the beneficiaries
----------------------
may at any time draw under outstanding Letters of Credit, as such aggregate
amount may be reduced from time to time pursuant to the terms of the Letters of
Credit.
Moody's. ▇▇▇▇▇'▇ Investors Service, Inc.
-------
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
-------------------
of ERISA maintained or contributed to by any Borrower or any ERISA Affiliate.
Nonconsolidated Subsidiaries. Collectively, FFC-II, FRC and any other
-----------------------------
Subsidiaries of FCI the accounts of which are not permitted to be consolidated
with FCI under generally accepted accounting principles.
Notes. The Revolving Credit Notes.
-----
Obligations. All indebtedness, obligations and liabilities of any of the
-----------
Borrowers and their Subsidiaries (other than Nonconsolidated Subsidiaries) to
any of the Banks, the Administrative Agent, the Collateral Agent, and the
Arranger, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or in
respect of any of the Loans made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Application, Letter of Credit or other instruments
at any time evidencing any thereof or arising or incurred under any Rate
Protection Agreements entered into by any of the Borrowers and their
Subsidiaries (other than Nonconsolidated Subsidiaries) with any of the Banks.
Operating Account. One or more of the Borrowers' operating accounts with
------------------
the Administrative Agent.
Operating Agreement. The Sixth Amended and Restated Operating Agreement,
--------------------
dated as of July 25, 2000, by and among the Borrowers, FMB and the VB
Originating Subsidiaries.
outstanding. With respect to the Loans, the aggregate unpaid principal
-----------
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
----
and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
------------------------
Security Agreements.
Permitted Deferral. With respect to any Base Contract, deferrals of not
-------------------
more than three installments payable thereunder from and after January 31, 1998.
Permitted Liens. Liens, security interests and other encumbrances permitted
---------------
by ss.9.2.
Person. Any individual, corporation, partnership, trust, unincorporated
------
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
POA. The property owners' association or similar time-share owner body for
---
each VOI Regime or Project or relevant portion of either thereof, in each case
established pursuant to the declarations, articles or similar charter documents
applicable to each such VOI Regime, Project or portion thereof.
Points. With respect to a VOI unit at any VOI Regime, the number of points
------
of symbolic value assigned to such unit pursuant to the FairShare Plus Program.
Prime Contract Default. With respect to any Base Contract, when the obligor
----------------------
thereunder is at the relevant time of determination sixty-one (61) or more days
delinquent in the payment of any installment or other periodic payment of
principal, interest or amounts due thereunder.
Principal Balance. With respect to a Base Contract, and as of a date of
------------------
determination, the unpaid principal balance of such Base Contract on such date;
provided that the amount of any such principal balance shall in all cases be
--------
determined without duplication of amounts outstanding under (x) the relevant
Base Contract and (y) any related installment note which together constitute one
and the same Base Contract.
Project. Any vacation ownership resort and development which is owned
-------
and/or operated by FCI or any of its Subsidiaries and with respect to which Base
Contracts are originated or expected to be originated.
Rate Protection Agreement. Any interest rate swap, cap, collar or similar
--------------------------
arrangement entered into to hedge interest rate risk (and not for speculative
purposes).
RCRA. See ss.7.18(a).
----
Real Estate. All real property at any time owned or leased (as lessee or
------------
sublessee) by any Borrower or any of its Subsidiaries.
Receivables Purchase Agreements. Collectively, the (i) FRC Receivables
---------------------------------
Purchase Agreement, (ii) FFC-II Receivables Purchase Agreement, and (iii)
Amended and Restated Receivables Purchase Agreement, dated as of July 31, 1996,
among FCC, FAC, FCI and FMB.
Record. The grid attached to a Note, or the continuation of such grid, or
------
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Register. See ss.19.3.
--------
Reimbursement Obligation. The Borrowers' obligation to reimburse the
-------------------------
Administrative Agent and the Banks on account of any drawing under any Letter of
Credit as provided in ss.4.2.
Repurchase Default. With respect to any Base Contracts of any Borrower,
-------------------
when the obligor thereunder is at the relevant time of determination more than
ninety (90) days delinquent in the payment of any installment or other periodic
payment of principal, interest or amounts due thereunder.
Revolving Credit Loan Maturity Date. July 25, 2003.
-----------------------------------
Revolving Credit Loans. Revolving Credit loans made or to be made by the
-----------------------
Banks to the Borrowers pursuant to ss.2.
Revolving Credit Note Record. A Record with respect to a Revolving Credit
-----------------------------
Note.
Revolving Credit Notes. See ss.2.3.
----------------------
Sales Price. With respect to any Base Contract, the total purchase price of
-----------
the related VOI or Lot paid or to be paid by an Obligor.
▇▇▇▇. See ss.7.18(a).
----
Section 20 Subsidiary. A Subsidiary of the bank holding company controlling
---------------------
any Bank, which Subsidiary has been granted authority by the Federal Reserve
Board to underwrite and deal in certain Ineligible Securities.
Securitization. Any transaction in which one or more pools of Base
--------------
Contracts and related assets are sold to a single-purpose bankruptcy-remote
entity and then pledged to secure the equity raised or debt incurred by such
entity to purchase such Base Contracts, which equity or underlying debt is
marketed (either publicly or privately) to third party investors.
Security Agreements. The several Amended and Restated Security Agreements,
-------------------
dated or to be dated on or prior to the Closing Date,
between each of the Borrowers and the Guarantors, and the Collateral Agent and
in form and substance satisfactory to the Banks and the Administrative Agent.
Security Documents. The Guaranty, the Security Agreements, the Mortgages,
------------------
if applicable, and all other agreements, instruments and documents now or
hereafter securing the Obligations, including, without limitation, Uniform
Commercial Code financing statements required to be executed or delivered
pursuant to any Security Document.
Senior Indebtedness. Term loan indebtedness of FCI and certain of its
--------------------
Subsidiaries initially provided by Fleet and other institutional lenders or
investors in an aggregate amount not to exceed $125,000,000 which (i) bears
interest at a rate not to exceed 13.5% per annum; (ii) matures at least five (5)
years after funding; and (iii) may be secured by collateral which does not
constitute Collateral.
Settlement. The making or receiving of payments, in immediately available
----------
funds, by the Banks, to the extent necessary to cause each Bank's actual share
of the outstanding amount of Revolving Credit Loans (after giving effect to any
Loan Request) to be equal to such Bank's Commitment Percentage of the
outstanding amount of such Revolving Credit Loans (after giving effect to any
Loan Request), in any case where, prior to such event or action, the actual
share is not so equal.
Settlement Amount. See ss.2.9.1.
-----------------
Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b)
----------------
Friday of each week, or if a Friday is not a Business Day, the Business Day
immediately following such Friday, (c) at the option of the Administrative
Agent, on any Business Day following a day on which the account officers of the
Administrative Agent active upon the Borrowers' account become aware of the
existence of an Event of Default, (d) any Business Day on which the amount of
Revolving Credit Loans outstanding from Fleet plus Fleet's Commitment Percentage
of the sum of the Maximum Drawing Amount and any Unpaid Reimbursement
Obligations is equal to or greater than Fleet's Commitment Percentage of the
Total Commitment, (e) at the option of the Administrative Agent, on the Business
Day immediately following any Business Day on which the amount of Revolving
Credit Loans made by the Administrative Agent pursuant to ss.2.5.2 and for which
Settlement has not been made exceeds $10,000,000, (f) the Business Day
immediately following any Business Day on which the amount of Revolving Credit
Loans outstanding increases or decreases by more than $500,000 as compared to
the previous
Settlement Date, (g) any day on which any conversion of a Base Rate Loan to a
Eurodollar Rate Loan occurs, or (h) any Business Day on which (i) the amount of
outstanding Revolving Credit Loans decreases and (ii) the amount of the
Administrative Agent's Revolving Credit Loans outstanding equals zero Dollars
($0).
Settling Bank. See ss.2.9.1.
-------------
Standard & Poor's. Standard & Poor's Ratings Services, a division of The
-----------------
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Startup Project. Any vacation ownership resort and development acquired,
---------------
developed, owned and operated by FCI or any of the Guarantors which is not
located in an Existing Resort City and which has never generated positive net
income for each of four (4) consecutive months.
Soft Costs. Mean and include title permit fees, insurance premiums, survey
----------
charges, engineering fees, architectural fees, real estate taxes, appraisal
costs, financing fees, premiums for insurance, marketing, advertising and
leasing costs, brokerage commissions, legal fees, accounting fees, overhead and
administrative costs, and all other expenses which are expenditures relating to
a Startup Project and are not "hard costs".
Subordinated Debt. Unsecured Indebtedness of any Borrower or any of its
------------------
Subsidiaries which may be outstanding from time to time with the express written
consent of the Banks, that is expressly subordinated and made junior to the
payment and performance in full of the Obligations, and evidenced as such by the
Subordination and Intercreditor Agreement or by another written instrument
containing subordination provisions in form and substance approved by the Banks
in writing (it being understood that the Banks shall have no obligation to
consent to the incurrence of any such Subordinated Debt, and may refuse to
consent for any reason or no reason).
Subsidiary. Any corporation, association, trust, partnership or other
----------
business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock, including, without limitation, the VB
Partnership Subsidiaries with respect to FCI.
Tax Sharing Agreement. The Third Amended and Restated Tax Sharing
-----------------------
Agreement, dated as of July 25, 2000, between FCI and FAC.
Timeshare Contract. Any installment contract or contract for deed, or
-------------------
contracts or notes secured by a mortgage, deed of trust, vendor's lien or
retention of title entered into with a purchaser or lessee of one or more VOIs.
Title Clearing Agreements. Collectively, (a) the Ninth Amended and Restated
----- -------- ----------
Title Clearing Agreement (Lawyers), dated as of July 25, 2000, as further
amended, restated, supplemented or otherwise modified from time to time, among
FCI, FAC, FCC, FFC-II, FRC, Lawyers Title Insurance Corporation, as Nominee,
Capital Markets Assurance Corporation, the Collateral Agent, and the
Administrative Agent; (b) the Sixth Amended and Restated Supplementary Trust
Agreement (Arizona), dated as of July 25, 2000, as further amended, restated,
supplemented or otherwise modified from time to time, among FCI, FAC, FCC,
FFC-II, FRC, First American Title Insurance Company, as Trustee and Nominee,
Capital Markets Assurance Corporation, the Collateral Agent, and the
Administrative Agent; (c) the Seventh Amended and Restated Title Clearing
Agreement (Colorado), dated as of July 25, 2000, as amended , restated,
supplemented or otherwise modified, restated, supplemented or otherwise modified
from time to time, among FCI, FAC, FCC, FFC-II, FRC, Capital Markets Assurance
Corporation, Colorado Land Title Company, as Nominee, the Collateral Agent, and
the Administrative Agent; (d) the Westwinds Fifth Amended and Restated Title
Clearing Agreement, dated as of July 25, 2000, as amended, restated,
supplemented or otherwise modified from time to time, among FCI, FMB, FAC, FCC,
FFC-II, FRC, Lawyers Title Insurance Corporation, as Nominee, Capital Markets
Assurance Corporation, Resort Funding, Inc., the Collateral Agent and the
Administrative Agent; (e) the Fourth Amended and Restated Nashville Title
Clearing Agreement, dated as of July 25, 2000, as further amended, restated,
supplemented or otherwise modified from time to time, among FAC, FCI, FCC,
FFC-II, FRC, Lawyers Title Insurance Corporation, as Nominee, Capital Markets
Assurance Corporation, the Collateral Agent and the Administrative Agent; (f)
the Fourth Amended and Restated Seawatch Plantation Title Clearing Agreement,
dated as of July 25, 2000, as further amended, restated, supplemented or
otherwise modified from time to time, among FCI, FAC, FCC, FFC-II, FRC, FMB,
Lawyers Title Insurance Corporation, as Nominee, Capital Markets Assurance
Corporation, the Collateral Agent and the Administrative Agent; and (g) any
similar agreement governing the obligations of any new or successor nominee
holding title to any VOIs or Lots at Projects.
Total Commitment. The sum of the Commitments of the Banks, as in effect
-----------------
from time to time. The Total Commitment in effect on the Closing Date is set
forth on Schedule 1 hereto.
-------- -
Tri-Party Agreements. Collectively, (i) the Tri-Party Agreement, dated as
--------------------
of January 29, 1999, among FCI, as buyer, Ocean Walk Properties, Ltd. and ▇▇▇▇▇
of Daytona, Inc., as sellers, and First Union National Bank, as lender, with
respect to the Fairfield Daytona Beach Project, and (ii) the Tri-Party Agreement
dated as of April 5, 2000, among FCI, as buyer, Majestic Sun, Inc. and Florida
Condos I Limited Partnership, as seller, and Amsouth Bank, as lender, with
respect to the Fairfield Destin Majestic Sun Project.
Triple-A Credit Agreement. The Amended and Restated Credit Agreement, dated
-------------------------
as of July 31, 1996, as amended by a First Amendment to Amended and Restated
Credit Agreement and Waiver Agreement, dated as of March 5, 1997, a Letter
Agreement dated as of September 8, 1997, and a Second Amendment to Amended and
Restated Credit Agreement dated as of February 27, 1998, by and among FAC, as
servicer, FCI, FCC, as borrower, Capital Markets Assistance Corporation, as
collateral agent, Triple-A One Funding Corporation and Fleet.
Type. As to any Revolving Credit Loan, its nature as a Base Rate Loan, or a
----
Eurodollar Rate Loan.
UDI. A VOI consisting of either (a) an undivided interest in fee simple (as
---
tenants in common with all other undivided interest owners) in a lodging unit or
group of lodging units at a Project, or (b) an undivided leasehold interest (as
tenants in common with all other undivided interest owners) in any lodging unit
located at the Harbortown Marina Resort Hotel Project in Ventura County,
California or Pagosa Mountain ▇▇▇▇▇▇▇ VOI Regime at the Pagosa Project in
▇▇▇▇▇▇▇▇▇ County, Colorado.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
---------------
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Administrative Agent in the ordinary course of its business as a letter of
credit issuer and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which the
-------------------------------
Borrowers do not reimburse the Administrative Agent and the Banks on the date
specified in, and in accordance with, ss.4.2.
Vacation Break. Vacation Break USA, Inc., a Florida corporation and a
---------------
wholly-owned Subsidiary of FCI.
Vacation Club Agreement. The Membership Agreement for Fairfield
---------------------------
Destinations Vacation Club entered into by FCI, Fairfield Destinations Vacation
Club, Inc., FairShare Vacation Owners Association, as trustee of FairShare
Vacation Plan Use Management Trust and each person that subsequently purchase a
membership in Fairfield's Destination Vacation Club.
Vacation Club Membership. A Membership, as defined in the Vacation Club
-------------------------
Agreement.
VB Originating Subsidiaries. Collectively, Sea Garden Beach and Tennis
-----------------------------
Resort, Inc., a Florida corporation, Vacation Break Resorts, Inc., a Florida
corporation, Vacation Break Resorts at Star Island, Inc., a Florida corporation,
Palm Vacation Group, a Florida general partnership, and Ocean Ranch Vacation
Group, a Florida general partnership.
VB Partnership Subsidiaries. Collectively, Palm Vacation Group, a Florida
---------------------------
general partnership, and Ocean Ranch Vacation Group, a Florida general
partnership.
Ventura Contracts. Timeshare Contracts with respect to the development in
------- ---------
Ventura County, California known as the "Harbortown Marina Resort Hotel".
VOI. The underlying ownership interest which is the subject of a Timeshare
---
Contract, which ownership interest shall consist of either (i) a fixed week or
undivided fee simple interest (or, in the case of Ventura Contracts or those
Timeshare Contracts for the Pagosa Mountain ▇▇▇▇▇▇▇ VOI Regime at Fairfield
Pagosa, undivided leasehold interest in real property) for a period of time each
year (whether pursuant to the FairShare Plus Program or otherwise) in a lodging
unit or group of lodging units located at a vacation resort or development owned
and/or operated by FCI or any of its Subsidiaries or (ii) a Vacation Club
Membership, and shall include in either case any and all Points assigned
thereto.
VOI Regime. Any of the various interval ownership regimes located at
-----------
Projects, each of which is an arrangement, established under applicable state
law, whereby all or a designated portion of a Project is made subject to a
declaration permitting the transfer of VOIs therein, which VOIs shall
in each case constitute real property under the applicable local law of each of
the jurisdictions in which such regime is located.
Voting Stock. Stock or similar interests, of any class or classes (however
------------
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. RULES OF INTERPRETATION.
-----------------------
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally accepted
accounting principles, which terms are defined in the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts, have the meanings
assigned to them therein, with the term "instrument" being that defined
under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean "to
but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the result
of negotiation among, and have been reviewed by counsel to, among others,
the Administrative Agent and the Borrowers and are the product of
discussions and negotiations among all parties. Accordingly, this Credit
Agreement and the other Loan Documents are not intended to be construed
against the Administrative Agent or any of the Banks merely on account of
the Administrative Agent's or any Bank's involvement in the preparation of
such documents.
2. THE REVOLVING CREDIT FACILITY.
-----------------------------
2.1. THE REVOLVING CREDIT LOANS. Subject to the terms and conditions set
---------------------------
forth in this Credit Agreement, each of the Banks severally agrees to lend to
the Borrowers and the Borrowers may borrow, repay, and reborrow from time to
time from the Closing Date up to but not including the Revolving Credit Loan
Maturity Date upon notice by the Borrowers to the Administrative Agent given in
accordance with ss.2.5, such sums as are requested by the Borrowers up to a
maximum aggregate amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Bank's Commitment minus such Bank's
Commitment Percentage of the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations; provided that the sum of the outstanding amount of
the Revolving Credit Loans (after giving effect to all amounts requested) plus
the Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not at
any time exceed the lesser of (i) the Total Commitment and (ii) the Borrowing
Base. The Revolving Credit Loans shall be made pro rata in accordance with each
Bank's Commitment Percentage. Each request for a Revolving Credit Loan
hereunder shall constitute a representation and warranty by the Borrowers that
the conditions set forth in ss.11 and ss.12, in the case of the initial
Revolving Credit Loans to be made on the Closing Date, and ss.12, in the case of
all other Revolving Credit Loans, have been satisfied on the date of such
request.
2.2. REDUCTION OF TOTAL COMMITMENT. The Borrowers shall have the right at
-----------------------------
any time and from time to time upon five (5) Business Days prior written notice
to the Administrative Agent to reduce by $5,000,000 or an integral multiple of
$1,000,000 in excess thereof or terminate entirely the Total Commitment,
whereupon the Commitments of the Banks shall be reduced pro rata in accordance
--- ----
with their respective Commitment Percentages of the amount specified in such
notice or, as the case may be, terminated; provided that in no event shall the
--------
Total Commitment be less than the sum of the outstanding amount of the Revolving
Credit Loans plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations. Promptly after receiving any notice of the Borrowers delivered
pursuant to this ss.2.2, the Administrative Agent will notify the Banks of the
substance thereof. No reduction or termination of the Commitments may be
reinstated.
2.3. THE REVOLVING CREDIT NOTES.
--------------------------
The Revolving Credit Loans shall be evidenced by separate promissory notes
of the Borrowers in substantially the form of Exhibit B hereto (each a
------- -
"Revolving Credit Note"), dated as of the Closing Date and completed with
appropriate insertions. One Revolving Credit Note shall be payable to the order
of each Bank in a principal amount equal to such Bank's Commitment or, if less,
the outstanding amount of all Revolving Credit Loans made by such Bank, plus
interest accrued thereon, as set forth below. The Borrowers irrevocably
authorize each Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Revolving Credit Loan or at the time of receipt of any
payment of principal on such Bank's Revolving Credit Note, an appropriate
notation on such Bank's Revolving Credit Note Record for such Revolving Credit
Note reflecting the making of such Revolving Credit Loan or (as the case may be)
the receipt of such payment. The outstanding amount of the Revolving Credit
Loans set forth on such Bank's Revolving Credit Note Record for such Revolving
Credit Note shall be prima facie evidence of the principal amount thereof owing
----- -----
and unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount on such Bank's Revolving Credit Note Record for such
Revolving Credit Note shall not limit or otherwise affect the obligations of the
Borrowers hereunder or
under any Revolving Credit Note to make payments of principal of or interest on
any Revolving Credit Note when due.
2.4. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided
------------------------------------
in ss.5.10,
(a) Each Base Rate Loan that is a Revolving Credit Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at an
annual rate equal to the Base Rate.
(b) Each Eurodollar Rate Loan that is a Revolving Credit Loan shall
bear interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at an
annual rate equal to the sum of (i) the Applicable Eurodollar Margin, plus
----
(ii) the Eurodollar Rate determined for such Interest Period.
(c) Each Borrower promises to pay interest on each Revolving Credit
Loan in arrears on each Interest Payment Date with respect thereto.
2.5. REQUESTS FOR REVOLVING CREDIT LOANS.
-----------------------------------
2.5.1. GENERAL. The Borrowers shall give to the Administrative Agent
-------
written notice in the form of Exhibit C hereto (or telephonic notice
------- -
confirmed in a writing in the form of Exhibit C hereto) of each Revolving
------- -
Credit Loan requested hereunder (a "Loan Request") (i) prior to 2:00 p.m.
(Boston time) on a day which is no less than one (1) Business Day prior to
the proposed Drawdown Date of any Base Rate Loan and (ii) no less than
three (3) Eurodollar Business Days prior to the proposed Drawdown Date of
any Eurodollar Rate Loan. Each such notice shall specify (A) the principal
amount of the Revolving Credit Loan requested, (B) the proposed Drawdown
Date of such Revolving Credit Loan, (C) the Interest Period for such
Revolving Credit Loan, and (D) the Type of such Revolving Credit Loan.
Promptly upon receipt of any such notice, the Administrative Agent shall
notify each of the Banks thereof. Each Loan Request shall be irrevocable
and binding on the Borrowers and shall obligate the Borrowers to accept the
Revolving Credit Loan requested from the Banks on the proposed Drawdown
Date. Each Loan Request shall be accompanied by a notice setting forth the
borrowing availability of the Borrowers taking into account the most recent
Borrowing Base Report delivered to the
Administrative Agent pursuant to ss.8.4(f) hereof and reflecting (i) usage
of the credit facilities hereunder since the date of such Borrowing Base
Report and (ii) drawdown and repayments of the Revolving Credit Loans. Each
Loan Request for a Eurodollar Rate Loan shall be in a minimum aggregate
amount of $1,000,000 or $1,000,000 plus an integral multiple of $100,000.
2.5.2. SWING LINE. Notwithstanding the notice and minimum amount
-----------
requirements set forth in ss.2.5.1 but otherwise in accordance with the
terms and conditions of this Credit Agreement, the Administrative Agent
may, in its sole discretion and without conferring with the Banks, make
Revolving Credit Loans to the Borrower (i) by entry of credits to the
Operating Account to cover checks or other charges which the Borrowers have
drawn or made against such account or (ii) in an amount as otherwise
requested by the Borrowers. The Borrowers hereby request and authorize the
Administrative Agent to make from time to time such Revolving Credit Loans
by means of appropriate entries of such credits sufficient to cover checks
and other charges then presented for payment from the Operating Account or
as otherwise so requested. The Borrowers acknowledge and agree that the
making of such Revolving Credit Loans shall, in each case, be subject in
all respects to the provisions of this Credit Agreement as if they were
Revolving Credit Loans covered by a Loan Request including, without
limitation, the limitations set forth in ss.2.1 and the requirements that
the applicable provisions of ss.11 (in the case of Revolving Credit Loans
made on the Closing Date) and ss.12 be satisfied. All actions taken by the
Administrative Agent pursuant to the provisions of this ss.2.5.2 shall be
conclusive and binding on the Borrowers and the Banks absent the
Administrative Agent's gross negligence or willful misconduct. Revolving
Credit Loans made pursuant to this ss.2.5.2 shall be conclusive and binding
on the Borrowers and the Banks absent the Administrative Agent's gross
negligence or willful misconduct. Revolving Credit Loans made pursuant to
this ss.2.5.2 shall be Base Rate Loans until converted in accordance with
the provisions of the Credit Agreement and, prior to a Settlement, such
interest shall be for the account of the Administrative Agent.
2.6. CONVERSION OPTIONS.
------------------
2.6.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
--------------------------------------------------------
Borrowers may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (i)
--------
with respect to any such conversion
of a Revolving Credit Loan to a Base Rate Loan, the Borrowers shall give
the Administrative Agent at least three (3) Business Days prior written
notice of such election; (ii) with respect to any such conversion of a Base
Rate Loan to a Eurodollar Rate Loan, the Borrowers shall give the
Administrative Agent at least three (3) Eurodollar Business Days prior
written notice of such election; (iii) with respect to any such conversion
of a Eurodollar Rate Loan into a Base Rate Loan, such conversion shall only
be made on the last day of the Interest Period with respect thereto and
(iv) no Loan may be converted into a Eurodollar Rate Loan when any Default
or Event of Default has occurred and is continuing. Promptly upon receipt
of any such notice, the Administrative Agent shall notify each of the Banks
thereof. On the date on which such conversion is being made each Bank shall
take such action as is necessary to transfer its Commitment Percentage of
such Revolving Credit Loans to its Domestic Lending Office or its
Eurodollar Lending Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be converted into a
Revolving Credit Loan of another Type as provided herein, provided that any
--------
partial conversion shall be in an aggregate principal amount of $1,000,000
or a whole multiple thereof. Each Conversion Request relating to the
conversion of a Revolving Credit Loan to a Eurodollar Rate Loan shall be
irrevocable by the Borrowers.
2.6.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any Revolving
-----------------------------------------------
Credit Loan of any Type may be continued as a Revolving Credit Loan of the
same Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrowers with the notice provisions contained in
ss.2.6.1; provided that no Eurodollar Rate Loan may be continued as such
--------
when any Default or Event of Default has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan on the last day of the
first Interest Period relating thereto ending during the continuance of any
Default or Event of Default of which officers of the Administrative Agent
active upon the Borrowers' account have actual knowledge. In the event that
the Borrowers fail to provide any such notice with respect to the
continuation of any Eurodollar Rate Loan as such, then such Eurodollar Rate
Loan shall be automatically converted to a Base Rate Loan on the last day
of the first Interest Period relating thereto. The Administrative Agent
shall notify the Banks promptly when any such automatic conversion
contemplated by this ss.2.6 is scheduled to occur.
2.6.3. EURODOLLAR RATE LOANS. Any conversion to or from Eurodollar
----------------------
Rate Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be less
than $1,000,000 or a whole multiple of $100,000 in excess thereof. The
Borrowers may not request or elect a Eurodollar Rate Loan pursuant to
ss.2.5, elect to convert a Base Rate Loan to a Eurodollar Rate Loan
pursuant to ss.2.6.1, or elect to continue a Eurodollar Rate Loan pursuant
to ss.2.6.2 if, after giving effect thereto, there would be greater than
four (4) Eurodollar Rate Loans then outstanding. Any Loan Request for a
Eurodollar Rate Loan that would create greater than four (4) Eurodollar
Rate Loans outstanding shall be deemed to be a Loan Request for a Base Rate
Loan.
2.7. FUNDS FOR REVOLVING CREDIT LOAN.
-------------------------------
2.7.1. FUNDING PROCEDURES. Not later than 11:00 a.m. (Boston time) on
------------------
the proposed Drawdown Date of any Revolving Credit Loans, each of the Banks
will make available to the Administrative Agent, at the Administrative
Agent's Loan Office, in immediately available funds, the amount of such
Bank's Commitment Percentage of the amount of the requested Revolving
Credit Loans. Upon receipt from each Bank of such amount, and upon receipt
of the documents required by ss.ss.11 and 12 and the satisfaction of the
other conditions set forth therein, to the extent applicable, the
Administrative Agent will make available to the Borrowers the aggregate
amount of such Revolving Credit Loans made available to the Administrative
Agent by the Banks. The failure or refusal of any Bank to make available to
the Administrative Agent at the aforesaid time and place on any Drawdown
Date the amount of its Commitment Percentage of the requested Revolving
Credit Loans shall not relieve any other Bank from its several obligation
hereunder to make available to the Administrative Agent the amount of such
other Bank's Commitment Percentage of any requested Revolving Credit Loans.
2.7.2. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative Agent may,
--------------------------------
unless notified to the contrary by any Bank prior to a Drawdown Date,
assume that such Bank has made available to the Administrative Agent on
such Drawdown Date the amount of such Bank's Commitment Percentage of the
Revolving Credit Loans to be made on such Drawdown Date, and the
Administrative Agent may
(but it shall not be required to), in reliance upon such assumption, make
available to the Borrowers a corresponding amount. If any Bank makes
available to the Administrative Agent such amount on a date after such
Drawdown Date, such Bank shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest rate
paid by the Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such period, times (ii)
-----
the amount of such Bank's Commitment Percentage of such Revolving Credit
Loans, times (iii) a fraction, the numerator of which is the number of days
-----
that elapse from and including such Drawdown Date to the date on which the
amount of such Bank's Commitment Percentage of such Revolving Credit Loans
shall become immediately available to the Administrative Agent, and the
denominator of which is 365. A statement of the Administrative Agent
submitted to such Bank with respect to any amounts owing under this
paragraph shall be prima facie evidence of the amount due and owing to the
----- -----
Administrative Agent by such Bank. If the amount of such Bank's Commitment
Percentage of such Revolving Credit Loans is not made available to the
Administrative Agent by such Bank within three (3) Business Days following
such Drawdown Date, the Administrative Agent shall be entitled to recover
such amount from the Borrowers on demand, with interest thereon at the rate
per annum applicable to the Revolving Credit Loans made on such Drawdown
Date.
2.8. CHANGE IN BORROWING BASE. The Borrowing Base shall be determined
-------------------------
monthly (or at such other interval as may be specified pursuant to ss.8.4(f)) by
the Administrative Agent by reference to the Borrowing Base Report, commercial
finance and collateral audit reports, and other information obtained by or
provided to the Administrative Agent. The Administrative Agent shall give to the
Borrowers written notice of any change in the Borrowing Base determined by the
Administrative Agent.
2.9. SETTLEMENTS.
-----------
2.9.1. GENERAL. On each Settlement Date, the Administrative Agent
-------
shall, not later than 11:00 a.m. (Boston time), give telephonic or
facsimile notice (i) to the Banks and the Borrowers of the respective
outstanding amount of Revolving Credit Loans made by the Administrative
Agent on behalf of the Banks from the immediately preceding Settlement Date
through the close of
business on the prior day and the amount of any Eurodollar Rate Loans to be
made (following the giving of notice pursuant to ss.2.5) on such date
pursuant to a Loan Request and (ii) to the Banks of the amount (a
"Settlement Amount") that each Bank (a "Settling Bank") shall pay to effect
a Settlement of any Revolving Credit Loan. A statement of the
Administrative Agent submitted to the Banks and the Borrowers or to the
Banks with respect to any amounts owing under this ss.2.9 shall be prima
-----
facie evidence of the amount due and owing. Each Settling Bank shall, not
-----
later than 4:00 p.m. (Boston time) on such Settlement Date, effect a wire
transfer of immediately available funds to the Administrative Agent in the
amount of the Settlement Amount for such Settling Bank. All funds advanced
by any Bank as a Settling Bank pursuant to this ss.2.9 shall for all
purposes be treated as a Revolving Credit Loan made by such Settling Bank
to the Borrowers and all funds received by any Bank pursuant to this ss.2.9
shall for all purposes be treated as repayment of amounts owed with respect
to Revolving Credit Loans made by such Bank. In the event that any
bankruptcy, reorganization, liquidation, receivership or similar cases or
proceedings in which any Borrower is a debtor prevent a Settling Bank from
making any Revolving Credit Loan to effect a Settlement as contemplated
hereby, such Settling Bank will make such dispositions and arrangements
with the other Banks with respect to such Revolving Credit Loans, either by
way of purchase of participations, distribution, pro tanto assignment of
--- -----
claims, subrogation or otherwise as shall result in each Bank's share of
the outstanding Revolving Credit Loans being equal, as nearly as may be, to
such Bank's Commitment Percentage of the outstanding amount of the
Revolving Credit Loans.
2.9.2. FAILURE TO MAKE FUNDS AVAILABLE. The Administrative Agent may,
-------------------------------
unless notified to the contrary by any Settling Bank prior to a Settlement
Date, assume that such Settling Bank has made or will make available to the
Administrative Agent on such Settlement Date the amount of such Settling
Bank's Settlement Amount, and the Administrative Agent may (but it shall
not be required to), in reliance upon such assumption, make available to
the Borrowers a corresponding amount. If any Settling Bank makes available
to the Administrative Agent such amount on a date after such Settlement
Date, such Settling Bank shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest rate
paid by the
Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, times (ii) the amount of such
Settlement Amount, times (iii) a fraction, the numerator of which is the
number of days that elapse from and including such Settlement Date to the
date on which the amount of such Settlement Amount shall become immediately
available to the Administrative Agent, and the denominator of which is 360.
A statement of the Administrative Agent submitted to such Settling Bank
with respect to any amounts owing under this ss.2.9.2 shall be prima facie
evidence of the amount due and owing to the Administrative Agent by such
Settling Bank. If such Settling Bank's Settlement Amount is not made
available to the Administrative Agent by such Settling Bank within three
(3) Business Days following such Settlement Date, the Administrative Agent
shall be entitled to recover such amount from the Borrowers on demand, with
interest thereon at the rate per annum applicable to the Revolving Credit
Loans as of such Settlement Date.
2.9.3. NO EFFECT ON OTHER BANKS. The failure or refusal of any
--------------------------
Settling Bank to make available to the Administrative Agent at the
aforesaid time and place on any Settlement Date the amount of such Settling
Bank's Settlement Amount shall not (i) relieve any other Settling Bank from
its several obligations hereunder to make available to the Administrative
Agent the amount of such other Settling Bank's Settlement Amount or (ii)
impose upon any Bank, other than the Settling Bank so failing or refusing,
any liability with respect to such failure or refusal or otherwise increase
the Commitment of such other Bank.
2.10. REPAYMENTS OF REVOLVING CREDIT LOANS PRIOR TO EVENT OF DEFAULT.
--------------------------------------------------------------
2.10.1. CREDIT FOR FUNDS RECEIVED IN CONCENTRATION ACCOUNT. Prior to
---------------------------------------------------
the occurrence of an Event of Default as to which the account officers of
the Administrative Agent active upon the Borrowers' account have actual
knowledge, (i) all funds and cash proceeds in the form of money, checks and
like items received in the Fleet Concentration Account as contemplated by
ss.8.13 shall be credited, on the same Business Day on which the
Administrative Agent determines that good collected funds have been
received, and, prior to the receipt of good collected funds, on a
provisional basis until final receipt of good collected funds, and applied
as contemplated by ss.2.10.2, (ii) all funds and cash proceeds in the form
of a wire transfer received in the Fleet Concentration Account as
contemplated by ss.8.13 shall be credited on the same Business Day as the
Administrative Agent's receipt of such amounts (or up to such later date as
the Administrative Agent determines that good collected funds have been
received), and applied as contemplated by ss.2.10.2, and (iii) all funds
and cash proceeds in the form of an automated clearing house transfer
received in the Fleet Concentration Account as contemplated by ss.8.13
shall be credited, on the next Business Day following the Administrative
Agent's receipt of such amounts (or up to such later date as the
Administrative Agent determines that good collected funds have been
received), and applied as contemplated by ss.2.10.2. For purposes of the
foregoing provisions of this ss.2.10.1, the Administrative Agent shall not
be deemed to have received any such funds or cash proceeds on any day
unless received by the Administrative Agent before 2:30 p.m. (Boston time)
on such day. The Borrowers further acknowledge and agree that any such
provisional credits or credits in respect of wire or automatic clearing
house funds transfers shall be subject to reversal if final collection in
good funds of the related item is not received by, or final settlement of
the funds transfer is not made in favor of, the Administrative Agent in
accordance with the Administrative Agent's customary procedures and
practices for collecting provisional items or receiving settlement of funds
transfers.
2.10.2. Application of Payments Prior to Event of Default.
-------------------------------------------------
(a) Prior to the occurrence of an Event of Default of which the
account officers of the Administrative Agent active on the Borrowers'
account have knowledge, all funds transferred to the Fleet
Concentration Account and for which the Borrowers have received
credits shall be applied to the Obligations as follows:
(i) first, to pay amounts then due and payable under this
Agreement, the Notes and the other Loan Documents, including any
mandatory repayment of the Revolving Credit Loans under ss.3.2;
(ii) second, to reduce Revolving Credit Loans made by the
Administrative Agent pursuant to ss.2.5.2 and for which
Settlement has not been made;
(iii) third, if and to the extent requested by the Borrower
pursuant to and in accordance with the provisions of ss.3.3, to
the optional repayment of the Revolving Credit Loans; and
(iv) fourth, except as otherwise required by ss.4.2(b) and
(c), to the Operating Account.
(b) All prepayments of Eurodollar Rate Loans prior to the end of
an Interest Period shall obligate the Borrowers to pay any breakage
costs associated with such Eurodollar Rate Loans in accordance with
ss.5.9. Prior to the occurrence of an Event of Default, the Borrowers
may elect to avoid such breakage costs by providing to the
Administrative Agent cash in an amount sufficient to cash
collateralize such Eurodollar Rate Loans, but in no event shall the
Borrowers be deemed to have paid such Eurodollar Rate Loans until such
cash has been paid to the Administrative Agent for application to such
Eurodollar Rate Loans. The Administrative Agent may elect to cause
such cash collateral to be deposited into either (i) a cash collateral
account pursuant to the terms of a cash collateral agreement executed
by the Borrowers and the Administrative Agent and in form and
substance satisfactory to the Administrative Agent, or (ii) the
Borrowers' Operating Account with appropriate instructions prohibiting
the Borrowers' withdrawal of such funds so long as they remain cash
collateral. In each case, each Borrower agrees to execute and deliver
to the Administrative Agent such instruments and documents, including
Uniform Commercial Code financing statements and agreements with any
third party depository banks, as the Administrative Agent may request.
(c) All repayments of the Revolving Credit Loans pursuant to this
ss.2.10.2 shall be allocated among the Banks making such Revolving
Credit Loans, in proportion, as nearly as practicable, to the
respective unpaid principal amount of such Revolving Credit Loans
outstanding, with adjustments to the extent practicable to equalize
any prior payments or repayments not exactly in proportion. Prior to
any Settlement Date, however, all repayments of the Revolving Credit
Loans shall be applied in accordance with this ss.2.10.2, first to
outstanding Revolving Credit Loans of the Administrative Agent.
2.11. REPAYMENTS OF REVOLVING CREDIT LOANS AFTER EVENT OF DEFAULT.
---------------------------------------------------------------
Following the occurrence and during the continuance of an Event of Default of
which the account officers of the Administrative Agent active on the Borrowers'
account have knowledge, the Administrative Agent, in its sole and absolute
discretion, may apply all funds transferred to the Fleet Concentration Account
and for which the Borrowers have received credits to the Obligations in
accordance with ss.13.4.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
---------------------------------------
3.1. MATURITY. The Borrowers promise to pay on the Revolving Credit Loan
--------
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS.
----------------------------------------------
(a) If at any time the sum of the outstanding amount of the Revolving
Credit Loans, the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations exceeds the lesser of (i) the Total Commitment and (ii) the
Borrowing Base, then the Borrowers shall immediately pay the amount of such
excess to the Administrative Agent for the respective accounts of the Banks
for application: first, to any Unpaid Reimbursement Obligations; second, to
the Revolving Credit Loans; and third, to provide to the Administrative
Agent cash collateral for Reimbursement Obligations as contemplated by
ss.4.2(b) and (c).
(b) Each payment of any Unpaid Reimbursement Obligations or prepayment
of Revolving Credit Loans shall be allocated among the Banks, in
proportion, as nearly as practicable, to each Reimbursement Obligation or
(as the case may be) the respective unpaid principal amount of each Bank's
Revolving Credit Note, with adjustments to the extent practicable to
equalize any prior payments or repayments not exactly in proportion.
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrowers shall
-----------------------------------------------
have the right, at their election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
--------
of any Eurodollar Rate Loans pursuant to this ss.3.3 may be made only on the
last day of the Interest Period relating thereto. The Borrowers shall give the
Administrative Agent, no later than
12:00 noon, Boston time, at least one (1) Business Day prior written notice of
any proposed prepayment pursuant to this ss.3.3 of Base Rate Loans, and three
(3) Eurodollar Business Days notice of any proposed prepayment pursuant to this
ss.3.3 of Eurodollar Rate Loans, in each case specifying the proposed date of
prepayment of Revolving Credit Loans and the principal amount to be prepaid.
Each such partial prepayment of the Revolving Credit Loans shall be accompanied
by the payment of accrued interest on the principal prepaid to the date of
prepayment, shall be applied, in the absence of instruction by the Borrowers,
first to the principal of Base Rate Loans and then to the principal of
Eurodollar Rate Loans, at the Administrative Agent's option, and shall be in an
integral multiple of $500,000 in the case of a partial prepayment of Eurodollar
Rate Loans. Each partial prepayment shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of each Bank's Revolving Credit Note, with adjustments to the extent practicable
to equalize any prior repayments not exactly in proportion.
4. LETTERS OF CREDIT.
-----------------
4.1. LETTER OF CREDIT COMMITMENTS.
----------------------------
4.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the terms and
-------------------------------------
conditions hereof and the execution and delivery by the Borrowers of a
letter of credit application on the Administrative Agent's customary form
(a "Letter of Credit Application"), the Administrative Agent on behalf of
the Banks and in reliance upon the agreement of the Banks set forth in
ss.4.1.4 and upon the representations and warranties of the Borrowers
contained herein, agrees, in its individual capacity, to issue, extend and
renew for the account of the Borrowers one or more standby letters of
credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrowers and agreed to by the
Administrative Agent; provided, however, that, after giving effect to such
-------- -------
request, (a) the sum of the aggregate Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not exceed $20,000,000 at any one time and
(b) the sum of (i) the Maximum Drawing Amount, (ii) all Unpaid
Reimbursement Obligations, and (iii) the amount of all Revolving Credit
Loans outstanding shall not exceed the lesser of (A) the sum of the Total
Commitment and (B) the Revolving Credit Borrowing Base.
4.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
---------------------------------
Application shall be completed to the satisfaction of the
Administrative Agent. In the event that any provision of any Letter of
Credit Application shall be inconsistent with any provision of this Credit
Agreement, then the provisions of this Credit Agreement shall, to the
extent of any such inconsistency, govern.
4.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
----------------------------
extended or renewed hereunder shall, among other things, (i) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (ii) have an expiry date no later than the date
which is fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons,
forty-five (45) days) prior to the Revolving Credit Loan Maturity Date.
Each Letter of Credit so issued, extended or renewed shall be subject to
the Uniform Customs.
4.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS. Each Bank severally agrees
----------------------------------
that it shall be absolutely liable, without regard to the occurrence of any
Default or Event of Default or any other condition precedent whatsoever, to
the extent of such Bank's Commitment Percentage, to reimburse the
Administrative Agent on demand for the amount of each draft paid by the
Administrative Agent under each Letter of Credit to the extent that such
amount is not reimbursed by the Borrowers pursuant to ss.4.2 (such
agreement for a Bank being called herein the "Letter of Credit
Participation" of such Bank).
4.1.5. PARTICIPATIONS OF BANKS. Each such payment made by a Bank shall
-----------------------
be treated as the purchase by such Bank of a participating interest in the
Borrowers' Reimbursement Obligation under ss.4.2 in an amount equal to such
payment. Each Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to ss.4.2.
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWERS. In order to induce the
--------------------------------------------
Administrative Agent to issue, extend and renew each Letter of Credit and the
Banks to participate therein, the Borrowers hereby agree to reimburse or pay to
the Administrative Agent, for the account of the Administrative Agent or (as the
case may be) the Banks, with respect to each Letter of Credit issued, extended
or renewed by the Administrative Agent hereunder,
(a) except as otherwise expressly provided in ss.4.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored
by the Administrative Agent, or the Administrative Agent otherwise makes a
payment with respect thereto, (i) the amount paid by the Administrative
Agent under or with respect to such Letter of Credit, and (ii) the amount
of any taxes, fees, charges or other costs and expenses whatsoever incurred
by the Administrative Agent or any Bank in connection with any payment made
by the Administrative Agent or any Bank under, or with respect to, such
Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Administrative Agent for the
benefit of the Banks and the Administrative Agent as cash collateral for
all Reimbursement Obligations, and
(c) upon the termination of the Total Commitment, or the acceleration
of the Reimbursement Obligations with respect to all Letters of Credit in
accordance with ss.13, an amount equal to the then Maximum Drawing Amount
on all Letters of Credit, which amount shall be held by the Administrative
Agent for the benefit of the Banks and the Administrative Agent as cash
collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Loan Office in immediately available funds. Interest on
any and all amounts remaining unpaid by the Borrowers under this ss.4.2 at any
time from the date such amounts become due and payable (whether as stated in
this ss.4.2, by acceleration or otherwise) until payment in full (whether before
or after judgment) shall be payable to the Administrative Agent on demand at the
rate specified in ss.5.10 for overdue principal on the Revolving Credit Loans.
4.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other
--------------------------
demand for payment shall be made under any Letter of Credit, the Administrative
Agent shall notify the Borrowers of the date and amount of the draft presented
or demand for payment and of the date and time when it expects to pay such draft
or honor such demand for payment. If the Borrowers fail to reimburse the
Administrative Agent as provided in ss.4.2 on or before the date that such draft
is paid or other payment is made by the Administrative Agent, the Administrative
Agent may at any time thereafter notify the Banks of the amount of any such
Unpaid
Reimbursement Obligation. No later than 3:00 p.m. (Boston time) on the Business
Day next following the receipt of such notice, each Bank shall make available to
the Administrative Agent, at the Administrative Agent's Loan Office, in
immediately available funds, such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to the product of (i)
the average, computed for the period referred to in clause (iii) below, of the
weighted average interest rate paid by the Administrative Agent for federal
funds acquired by the Administrative Agent during each day included in such
period, times (ii) the amount equal to such Bank's Commitment Percentage of such
-----
Unpaid Reimbursement Obligation, times (iii) a fraction, the numerator of which
-----
is the number of days that elapse from and including the date the Administrative
Agent paid the draft presented for honor or otherwise made payment to the date
on which such Bank's Commitment Percentage of such Unpaid Reimbursement
obligation shall become immediately available to the Administrative Agent, and
the denominator of which is 360. The responsibility of the Administrative Agent
to the Borrowers and the Banks shall be only to determine that the documents
(including each draft) delivered under each Letter of Credit in connection with
such presentment shall be in conformity in all material respects with such
Letter of Credit.
4.4. OBLIGATIONS ABSOLUTE. The Borrowers' obligations under this ss.4 shall
--------------------
be absolute and unconditional under any and all circumstances and irrespective
of the occurrence of any Default or Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense to payment which any Borrower
may have or have had against the Administrative Agent, any Bank or any
beneficiary of a Letter of Credit. Each Borrower further agrees with the
Administrative Agent and the Banks that the Administrative Agent and the Banks
shall not be responsible for, and the Borrowers' Reimbursement Obligations under
ss.4.2 shall not be affected by, among other things, the validity or genuineness
of documents or of any endorsements thereon, even if such documents should in
fact prove to be in any or all respects invalid, fraudulent or forged, or any
dispute between or among such Borrower, the beneficiary of any Letter of Credit
or any financing institution or other party to which any Letter of Credit may be
transferred or any claims or defenses whatsoever of such Borrower against the
beneficiary of any Letter of Credit or any such transferee. The Administrative
Agent and the Banks shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. Each Borrower agrees that
any action taken or omitted by the Administrative Agent or
any Bank under or in connection with each Letter of Credit and the related
drafts and documents, if done in good faith, shall be binding upon such Borrower
and shall not result in any liability on the part of the Administrative Agent or
any Bank to such Borrower.
4.5. RELIANCE BY ISSUER. To the extent not inconsistent with ss.4.4, the
------------------
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall not be required to take any discretionary action under this Credit
Agreement (and shall be fully protected in acting or refraining from acting)
unless it shall first have received such advice or concurrence of the Majority
Banks as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action; provided that nothing in this ss.4.5 shall require the Administrative
--------
Agent to obtain the consent of the Majority Banks before taking any action with
respect to a Letter of Credit. The Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Credit
Agreement in accordance with a request of the Majority Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
the Banks and all future holders of the Revolving Credit Notes or of a Letter of
Credit Participation.
4.6. LETTER OF CREDIT FEE. With respect to each Letter of Credit issued
--------------------
hereunder, the Borrowers shall pay to the Agent a fee (the "Letter of Credit
----------------
Fee") for each Letter of Credit issued or renewed by the Agent at a rate per
---
annum equal to the Applicable Eurodollar Margin in effect from time to time, on
the Maximum Drawing Amount of such Letter of Credit for the period such Letter
of Credit is outstanding, of which an amount equal to one-eighth of one percent
(0.125%) per annum of the face amount of such standby Letter of Credit shall be
for the account of the Administrative Agent, as a fronting fee, and the balance
of which Letter of Credit Fee shall be for the accounts of the Banks in
accordance with their respective Commitment Percentages. The Agent shall, in
turn, remit to each Bank (including Fleet) such Bank's Revolving Credit
Commitment Percentage of the Letter of Credit Fee. The Letter of Credit Fee
shall be payable quarterly in arrears on the first day of each calendar quarter
for the
quarter just ended, with the first such payment commencing October 1, 2000, and
on the Revolving Credit Maturity Date. In respect of each Letter of Credit, the
Borrowers shall also pay to the Agent, for its own account, at such time or
times as such charges are customarily made by the Agent, the Agent's customary
issuance, amendment, negotiation or document examination and other
administrative fees as in effect from time to time.
5. CERTAIN GENERAL PROVISIONS.
--------------------------
5.1. FEES. The Borrowers agree to pay (a) to the Administrative Agent an
----
administrative fee (the "Administrative Fee") and any other fees as set forth in
that certain fee letter agreement of even date herewith between the
Administrative Agent and the Borrowers; (b) to the Administrative Agent for the
account of the Banks in accordance with their respective Commitment Percentages
a closing fee (the "Closing Fee") in an amount equal to one-half percent (.50%)
of the Total Commitment, payable on the Closing Date; (c) to the Administrative
Agent for the account of the Banks in accordance with their respective
Commitment Percentages a commitment fee (the "Commitment Fee") in an amount
equal to (i) if the Corporate Credit Rating on the date of determination is less
than BB by Standard & Poor's and less than Ba2 by ▇▇▇▇▇'▇, one-half percent
---
(0.50%) per annum, or (ii) if the Corporate Credit Rating on the date of
determination is greater than or equal to BB by Standard & Poor's or greater
than or equal to Ba2 by ▇▇▇▇▇'▇, three-eighths percent (0.375%) per annum, on
the average daily amount during each calendar quarter or portion thereof from
the date hereof to the Revolving Credit Loan Maturity Date by which the Total
Commitment minus the sum of the Maximum Drawing Amount and all Unpaid
-----
Reimbursement Obligations exceeds the outstanding amount of Revolving Credit
Loans during such calendar quarter. The Commitment Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Revolving Credit Maturity
Date or any earlier date on which the Commitments shall terminate.
5.2. FUNDS FOR PAYMENTS.
------------------
5.2.1. PAYMENTS TO ADMINISTRATIVE AGENT. All payments of principal,
----------------------------------
interest, Reimbursement Obligations, Administrative Fees, Commitment Fees,
Letter of Credit Fees and any other amounts due hereunder or under any of
the other Loan Documents shall be made to the Administrative Agent, for the
respective accounts of the Banks and the Administrative Agent, at the
Administrative Agent's Loan Office or at such other location in the Boston,
Massachusetts, area that the Administrative Agent may from time to time
designate, in each case in immediately available funds.
5.2.2. NO OFFSET, ETC. All payments by the Borrowers hereunder and
----------------
under any of the other Loan Documents shall be made without recoupment,
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof
or taxing or other authority therein unless the Borrowers are compelled by
law to make such deduction or withholding. If any such obligation is
imposed upon the Borrowers with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the Borrowers will pay
to the Administrative Agent, for the account of the Banks or (as the case
may be) the Administrative Agent, on the date on which such amount is due
and payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Banks or the
Administrative Agent to receive the same net amount which the Banks or the
Administrative Agent would have received on such due date had no such
obligation been imposed upon the Borrowers. The Borrowers will deliver
promptly to the Administrative Agent certificates or other valid vouchers
for all taxes or other charges deducted from or paid with respect to
payments made by the Borrowers hereunder or under such other Loan Document.
5.3. COMPUTATIONS. All computations of interest on the Loans, Commitment
------------
Fees and Letter of Credit Fees shall be based on a 360-day year and paid for the
actual number of days elapsed. Except as otherwise provided in the definition of
the term "Interest Period" with respect to Eurodollar Rate Loans, whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day
that is not a Business Day, the due date for such payment shall be extended to
the next succeeding Business Day, and interest shall accrue during such
extension. The outstanding amount of the Loans as reflected on the Revolving
Credit Note Records from time to time shall be considered correct and binding on
the Borrowers unless within five (5) Business Days after receipt of any notice
by the Administrative Agent or any of the Banks of such outstanding amount, the
Administrative Agent or such Bank shall notify the Borrowers to the contrary.
5.4. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
----------------------------------------
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Administrative Agent shall determine that adequate and reasonable methods do not
exist for ascertaining the Eurodollar Rate that would otherwise determine the
rate of interest to be applicable to any Eurodollar Rate Loan during any
Interest Period, the Administrative Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrowers and the
Banks) to the Borrowers and the Banks. In such event (i) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (ii) each
Eurodollar Rate Loan will automatically, on the last day of the then current
Interest Period relating thereto, become a Base Rate Loan, and (iii) the
obligations of the Banks to make Eurodollar Rate Loans shall be suspended until
the Administrative Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Administrative Agent shall so notify
the Borrowers and the Banks.
5.5. ILLEGALITY. Notwithstanding any other provisions herein, if any
----------
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrowers and the other Banks and thereupon (i) the
commitment of such Bank to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (ii) such
Bank's Revolving Credit Loans then outstanding as Eurodollar Rate Loans, if any,
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Eurodollar Rate Loans or within such earlier
period as may be required by law. The Borrowers hereby agree promptly to pay the
Administrative Agent for the account of such Bank, upon demand by such Bank, any
additional amounts necessary to compensate such Bank for any costs incurred by
such Bank in making any conversion in accordance with this ss.5.5, including any
interest or fees payable by such Bank to lenders of funds obtained by it in
order to make or maintain its Eurodollar Rate Loans hereunder.
5.6. ADDITIONAL COSTS, ETC. If any present or future applicable law, which
---------------------
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests,
directives, instructions and notices at any time or from time to time hereafter
made upon or otherwise issued to any Bank or the Administrative Agent by any
central bank or other fiscal, monetary or other authority (whether or not having
the force of law), shall:
(a) subject any Bank or the Administrative Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with
respect to this Credit Agreement, the other Loan Documents, any Letters of
Credit, such Bank's Commitment or the Loans (other than taxes based upon or
measured by the income or profits of such Bank or the Administrative
Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Loans or any other amounts payable to any Bank or the
Administrative Agent under this Credit Agreement or any of the other Loan
Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or letters of credit
issued by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the other
Loan Documents, any Letters of Credit, the Loans, such Bank's Commitment,
or any class of loans, letters of credit or commitments of which any of the
Loans or such Bank's Commitment forms a part, and the result of any of the
foregoing is
(i) to increase the cost to any Bank of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Bank's
Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank or the Administrative
Agent hereunder on account of such Bank's Commitment, any Letter of
Credit or any of the Loans, or
(iii) to require such Bank or the Administrative Agent to make
any payment or to forego any interest or Reimbursement Obligation or
other sum payable hereunder, the amount of which payment or foregone
interest or Reimbursement Obligation or other sum is calculated by
reference to the gross amount of any sum receivable or deemed received
by such Bank or the Administrative Agent from the Borrowers hereunder,
then, and in each such case, the Borrowers will, upon demand made by such Bank
or (as the case may be) the Administrative Agent at any time and from time to
time and as often as the occasion therefor may arise, pay to such Bank or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Bank or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or other sum; provided,
--------
that with respect to payments required pursuant to ss.5.6(c), the Borrowers
shall not be required to pay such additional amounts if the Obligations are
repaid in full within 180 days following such demand, and from and after such
time, no Letters of Credit are outstanding, the Banks have no further
obligations to make Loans hereunder and the Administrative Agent has no further
obligations to issue, extend or renew any Letters of Credit hereunder.
5.7. CAPITAL ADEQUACY. If after the date hereof any Bank or the
-----------------
Administrative Agent determines that (i) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for banks or bank
holding companies or any change in the interpretation or application thereof by
a court or governmental authority with appropriate jurisdiction, or (ii)
compliance by such Bank or the Administrative Agent or any corporation
controlling such Bank or the Administrative Agent with any law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) of any such entity regarding capital adequacy, has the effect of
reducing the return on such Bank's or the Administrative Agent's commitment with
respect to any Loans to a level below that which such Bank or the Administrative
Agent could have achieved but for such adoption, change or compliance (taking
into consideration such Bank's or the Administrative Agent's then existing
policies with respect to capital adequacy and assuming full utilization of such
entity's capital) by any amount deemed by such Bank or (as the case may be) the
Administrative Agent to be material, then such Bank or the Administrative Agent
may notify the Borrowers of such fact. To the
extent that the amount of such reduction in the return on capital is not
reflected in the Base Rate, the Borrowers and such Bank shall thereafter attempt
to negotiate in good faith, within thirty (30) days of the day on which the
Borrowers receive such notice, an adjustment payable hereunder that will
adequately compensate such Bank in light of these circumstances. If the
Borrowers and such Bank are unable to agree to such adjustment within thirty
(30) days of the date on which the Borrowers receive such notice, then
commencing on the date of such notice (but not earlier than the effective date
of any such increased capital requirement), the fees payable hereunder shall
increase by an amount that will, in such Bank's reasonable determination,
provide adequate compensation. Each Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.
5.8. CERTIFICATE. A certificate setting forth any additional amounts
-----------
payable pursuant to ss.ss.5.6 or 5.7 and a brief explanation of such amounts
which are due, submitted by any Bank or the Administrative Agent to the
Borrowers, shall be conclusive, absent manifest error, that such amounts are due
and owing.
5.9. INDEMNITY. The Borrowers agree to indemnify each Bank and to hold each
---------
Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (i)
default by the Borrowers in payment of the principal amount of or any interest
on any Eurodollar Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurodollar Rate Loans, (ii)
default by the Borrowers in making a borrowing or conversion after the Borrowers
have given (or are deemed to have given) a Loan Request or a Conversion Request
relating thereto in accordance with ss.2.5 or ss.2.6 or (iii) the making of any
payment of a Eurodollar Rate Loan or the making of any conversion of any such
Loan to a Base Rate Loan on a day that is not the last day of the applicable
Interest Period with respect thereto, including interest or fees payable by such
Bank to lenders of funds obtained by it in order to maintain any such Loans.
5.10. INTEREST AFTER DEFAULT.
----------------------
5.10.1. OVERDUE AMOUNTS. Overdue principal and (to the extent
----------------
permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall
bear interest compounded monthly and payable on demand at a rate per annum
equal to four percent (4%)
above (a) the Base Rate, or (b) the Applicable Eurodollar Margin plus the
Eurodollar Rate, as applicable, until such amount shall be paid in full
(after as well as before judgment).
5.10.2. AMOUNTS NOT OVERDUE. During the continuance of a Default or an
-------------------
Event of Default the principal of the Revolving Credit Loans not overdue
shall, until such Default or Event of Default has been cured or remedied or
such Default or Event of Default has been waived by the Majority Banks
pursuant to ss.26, bear interest at a rate per annum equal to the greater
of (i) four percent (4%) above the rate of interest otherwise applicable to
such Revolving Credit Loans pursuant to ss.2.5 and (ii) the rate of
interest applicable to overdue principal pursuant to ss.5.10.1.
5.11. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
-------------------------------------------------------
(a) Each of the Borrowers is accepting joint and several liability
hereunder and under the other Loan Documents in consideration of the
financial accommodations to be provided by the Banks and the Administrative
Agent under this Credit Agreement, for the mutual benefit, directly and
indirectly, of each of the Borrowers and in consideration of the
undertakings of each other Borrower to accept joint and several liability
for the Obligations.
(b) Each of the Borrowers hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Borrowers, with respect to the payment and
performance of all of the Obligations (including, without limitation, any
Obligations arising under this ss.5.11), it being the intention of the
parties hereto that all of the Obligations shall be the joint and several
obligations of each of the Borrowers without preferences or distinction
among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the Obligations as and when due or to
perform any of the Obligations in accordance with the terms thereof, then
in each such event the other Borrowers will make such payment with respect
to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of
this ss.5.11 constitute the full recourse Obligations of each of the
Borrowers enforceable against each such corporation to the full extent of
its properties and assets, irrespective of the validity,
regularity or enforceability of this Credit Agreement or the other Loan
Documents or any other circumstance whatsoever as to any other Borrower.
Notwithstanding any of the terms of this ss.5.11 to the contrary, no
Borrower shall be deemed to have waived any right or released any claim
concerning such Borrower's direct (as opposed to joint and several)
liability for the Obligations that may be asserted by such Borrower on its
own behalf, except as such waiver or release is otherwise set forth in this
Credit Agreement or the other Loan Documents. Any waiver or release by a
Borrower under this ss.5.11 shall be effective only as to such Borrower's
right to assert any rights and claims of a defaulting Borrower as a defense
to the non-defaulting Borrower's joint and several liability for the
defaulting Borrower's Obligations.
(e) Except as otherwise expressly provided herein, each Borrower
hereby waives promptness, diligence, presentment, demand, protest, notice
of acceptance of its joint and several liability, notice of any and all
advances of the Loans made under this Credit Agreement and the Notes,
notice of occurrence of any Default or Event of Default (except to the
extent notice is expressly required to be given pursuant to the terms of
this Credit Agreement or any of the other Loan Documents), or of any demand
for any payment under this Credit Agreement, notice of any action at any
time taken or omitted by the Administrative Agent or the Banks under or in
respect of any of the Obligations hereunder, any requirement of diligence
and, generally, all demands, notices and other formalities of every kind in
connection with this Credit Agreement and the other Loan Documents. Each
Borrower hereby waives all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshaling of assets of the Borrowers and
any other entity or Person primarily or secondarily liable with respect to
any of the Obligations, and all suretyship defenses generally. Each
Borrower hereby assents to, and waives notice of, any extension or
postponement of the time for the payment, or place or manner for payment,
compromise, refinancing, consolidation or renewals of any of the
Obligations hereunder, the acceptance of any partial payment thereon, any
waiver, consent or other action or acquiescence by the Administrative Agent
and the Banks at any time or times in respect of any default by any
Borrower in the performance or satisfaction of any term, covenant,
condition or provision of this Credit Agreement and the other Loan
Documents, any and all other indulgences whatsoever by the Administrative
Agent and the Banks in respect of any of the Obligations hereunder, and the
taking, addition, substitution or release, in whole or in part, at any time
or times, of any security for any of such Obligations or the addition,
substitution or release, in whole or in part, of any Borrower or any other
entity or Person primarily or secondarily liable for any Obligation. Such
Borrower further agrees that its Obligations shall not be released or
discharged, in whole or in part, or otherwise affected by the adequacy of
any rights which the Administrative Agent or any Bank may have against any
collateral security or other means of obtaining repayment of any of the
Obligations, the impairment of any collateral security securing the
Obligations, including, without limitation, the failure to protect or
preserve any rights which the Administrative Agent or any Bank may have in
such collateral security or the substitution, exchange, surrender, release,
loss or destruction of any such collateral security, any other act or
omission which might in any manner or to any extent vary the risk of such
Borrower, or otherwise operate as a release or discharge of such Borrower,
all of which may be done without notice to such Borrower; provided,
--------
however, that the foregoing shall in no way be deemed to create
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commercially unreasonable standards as to the Administrative Agent's duties
as secured party under the Loan Documents (as such rights and duties are
set forth therein). If for any reason any of the other Borrowers has no
legal existence or is under no legal obligation to discharge any of the
Obligations, or if any of the Obligations have become irrecoverable from
any of the other Borrowers by reason of such other Borrower's insolvency,
bankruptcy or reorganization or by other operation of law or for any
reason, this Credit Agreement and the other Loan Documents to which it is a
party shall nevertheless be binding on such Borrower to the same extent as
if such Borrower at all times had been the sole obligor on such
Obligations. Without limiting the generality of the foregoing, each
Borrower assents to any other action or delay in acting or failure to act
on the part of the Administrative Agent and the Banks, including, without
limitation, any failure strictly or diligently to assert any right or to
pursue any remedy or to comply fully with applicable laws or regulations
thereunder which might, but for the provisions of this ss.5.11, afford
grounds for terminating, discharging or relieving such Borrower, in whole
or in part, from any of its obligations under this ss.5.11, it being the
intention of each Borrower that, so long as any of the Obligations
hereunder remain unsatisfied, the obligations of such Borrower under this
ss.5.11 shall not be discharged except by performance and then only to the
extent of such performance. The Obligations of each Borrower under this
ss.5.11 shall not be diminished or rendered unenforceable by any winding
up, reorganization, arrangement, liquidation,
reconstruction or similar proceeding with respect to any reconstruction or
similar proceeding with respect to any other Borrower, or any of the Banks.
The joint and several liability of each of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, ownership,
membership, constitution or place of formation of any of the Borrowers or
the Banks. Each of the Borrowers acknowledges and confirms that it has
itself established its own adequate means of obtaining from each of the
other Borrowers on a continuing basis all information desired by such
Borrower concerning the financial condition of each of the other Borrowers
and that each such Borrower will look to each of the other Borrowers and
not to the Administrative Agent or any Bank in order for such Borrower to
keep adequately informed of changes in each of the other Borrowers'
respective financial conditions.
(f) The provisions of this ss.5.11 are made for the benefit of the
Banks and the Administrative Agent and their respective permitted
successors and assigns, and may be enforced by it or them from time to time
against any or all of the Borrowers as often as occasion therefor may arise
and without requirement on the part of the Banks or the Administrative
Agent or such successor or assign first to ▇▇▇▇▇▇▇▇ any of its or their
claims or to exercise any of its or their rights against any of the other
Borrowers or to exhaust any remedies available to it or them against any of
the other Borrowers or to resort to any other source or means of obtaining
payment of any of the Obligations hereunder or to elect any other remedy.
The provisions of this ss.5.11 shall remain in effect until all of the
Obligations shall have been paid in full or otherwise fully satisfied. If
at any time, any payment, or any part thereof, made in respect of any of
the Obligations, is rescinded or must otherwise be restored or returned by
any Bank or the Administrative Agent upon the insolvency, bankruptcy or
reorganization of any of the Borrowers, or otherwise, the provisions of
this ss.5.11 will forthwith be reinstated in effect, as though such payment
had not been made.
(g) Each of the Borrowers hereby agrees that it will not enforce any
of its rights of reimbursement, contribution, subrogation or the like
against the other Borrowers with respect to any liability incurred by it
hereunder or under any of the other Loan Documents, any payments made by it
to any of the Banks or the Administrative Agent with respect to any of the
Obligations or any collateral security therefor until such time as all of
the Obligations have been irrevocably
paid in full in cash. Any claim which any Borrower may have against any
other Borrower with respect to any payments to the Banks or the
Administrative Agent hereunder or under any other Loan Documents are hereby
expressly made subordinate and junior in right of payment, without
limitation as to any increases in the Obligations arising hereunder or
thereunder, to the prior payment in full of the Obligations and, in the
event of any insolvency, bankruptcy, receivership, liquidation,
reorganization or other similar proceeding under the laws of any
jurisdiction relating to any Borrower, its debts or its assets, whether
voluntary or involuntary, all such Obligations shall be paid in full before
any payment or distribution of any character, whether in cash, securities
or other property, shall be made to any other Borrower therefor.
(h) Each of the Borrowers hereby agrees that the payment of any
amounts due with respect to the indebtedness owing by such Borrower to any
other Borrower is hereby subordinated to the prior payment in full in cash
of the Obligations. Each Borrower hereby agrees that after the occurrence
and during the continuance of any Default or Event of Default, such
Borrower will not demand, ▇▇▇ for or otherwise attempt to collect any
indebtedness of any other Borrower owing to such Borrower until the
Obligations shall have been paid in full in cash. If, notwithstanding the
foregoing sentence, such Borrower shall collect, enforce or receive any
amounts in respect of such indebtedness, such amounts shall be collected,
enforced and received by such Borrower as trustee for the Administrative
Agent and be paid over to the Administrative Agent for the pro rata
--- ----
accounts of the Banks to be applied to repay the Obligations.
6. COLLATERAL SECURITY AND GUARANTIES.
----------------------------------
6.1. SECURITY OF BORROWERS. The Obligations shall be secured by a perfected
---------------------
first priority security interest (subject only to Permitted Liens entitled to
priority under applicable law) in all of the property, rights and interests of
each Borrower, whether now owned or hereafter acquired, described in the
Security Documents to which such Borrower is party, including, without
limitation, all Base Contracts.
6.2. GUARANTIES AND SECURITY OF GUARANTORS. The Obligations shall also be
-------------------------------------
guaranteed pursuant to the terms of the Guaranty. The obligations of the
Guarantors under the Guaranty shall be in turn secured by a perfected first
priority security interest (subject only to Permitted Liens entitled to priority
under applicable law) in all of the property, rights and interests of each such
Guarantor, whether now owned or
hereafter acquired, described in the Security Documents to which such Guarantor
is a party, including, without limitation, all Base Contracts. Promptly and in
any event within thirty (30) days after FCI or any of its Subsidiaries acquires
the capital stock of, or creates, any new Subsidiary which has originated or is
expected to originate Base Contracts, or FCI determines that any Subsidiary of
FCI who is not a Guarantor hereunder will acquire or originate Base Contracts in
the future, the Borrowers will cause such new originating Subsidiary to become a
party to the Guaranty, as a Guarantor thereunder, and to grant to the Collateral
Agent, for the benefit of the Banks and the Administrative Agent, a perfected
first priority security interest (subject only to Permitted Liens entitled to
priority under applicable law) in the Collateral, including, without limitation,
all Base Contracts, pursuant to a security agreement and Uniform Commercial Code
financing statements substantially the same as the Security Documents delivered
at the Closing.
7. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Borrowers represent and warrant to the Banks and the Administrative
Agent as follows:
7.1. CORPORATE AND PARTNERSHIP AUTHORITY.
-----------------------------------
7.1.1. INCORPORATION; GOOD STANDING. (a) Each of the Borrowers and its
----------------------------
Subsidiaries (other than the VB Partnership Subsidiaries) (i) is a
corporation duly organized, validly existing and in good standing under the
laws of its state of incorporation, (ii) has all requisite corporate power
to own its property and conduct its business as now conducted and as
presently contemplated, and (iii) is in good standing as a foreign
corporation and is duly authorized to do business in each jurisdiction
where such qualification is necessary except where a failure to be so
qualified would not have a materially adverse effect on the business,
assets or financial condition of such Borrower or such Subsidiary.
(b) Each VB Partnership Subsidiary (i) is a general partnership duly
organized and validly existing under the laws of its state of organization,
(ii) has all requisite partnership power to own its property and conduct
its business as now conducted and as presently contemplated, and (iii) is
duly authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified would
not have a material adverse effect on the business, assets or financial
condition of such VB Partnership Subsidiary.
7.1.2. AUTHORIZATION. The execution, delivery and performance of this
-------------
Credit Agreement and the other Loan Documents to which any Borrower or any
of its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (i) are within the corporate authority
(and, in the case of the VB Partnership Subsidiaries, partnership
authority) of such Person, (ii) have been duly authorized by all necessary
corporate proceedings, (iii) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to
which any Borrower or any of its Subsidiaries is subject or any judgment,
order, writ, injunction, license or permit applicable to any Borrower or
any of its Subsidiaries, except where such conflict, breach or
contravention would not have a Material Adverse Effect, and (iv) do not
conflict with any provision of the corporate charter or bylaws of, or any
material agreement or other instrument binding upon, any of the Borrowers
or any of its Subsidiaries.
7.1.3. ENFORCEABILITY. The execution and delivery of this Credit
--------------
Agreement and the other Loan Documents to which any Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
7.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
-----------------------
each of the Borrowers and their Subsidiaries of this Credit Agreement and the
other Loan Documents to which such Person is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained, except where the failure to obtain such consent or
approval would not have a Material Adverse Effect.
7.3. TITLE TO PROPERTIES; LEASES. Except as indicated on Schedule 7.3
----------------------------- -------- ---
hereto, FCI and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of FCI and its Subsidiaries as at the Interim Balance
Sheet Date or acquired since that date (except property and assets sold or
otherwise disposed of in the ordinary course of
business since that date), subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
7.4. FINANCIAL STATEMENTS.
--------------------
7.4.1. FISCAL YEAR. Each Borrower and each of its Subsidiaries has a
-----------
fiscal year which is the twelve months ending on December 31 of each
calendar year.
7.4.2. FINANCIAL STATEMENTS.
--------------------
(a) There has been furnished to each of the Banks a consolidated
balance sheet of FCI and its Subsidiaries as at December 31, 1999 and as at
the Interim Balance Sheet Date and consolidated statements of income of FCI
and its Subsidiaries for the fiscal periods then ended, certified by Ernst
& Young LLP in the case of the annual financial statements and satisfactory
to the Administrative Agent. Such balance sheets and statements of income
have been prepared in accordance with generally accepted accounting
principles and fairly present the financial condition of the Borrowers as
at the close of business on the dates thereof and the results of operations
for the fiscal periods then ended. There are no contingent liabilities of
any Borrower or any of its Subsidiaries as of such dates involving material
amounts, known to the officers of such Borrower, which were not disclosed
in such balance sheets and the notes related thereto or pursuant to ss.7.7
hereof.
(b) There has been furnished to each of the Banks five year financial
projections of FCI and its Subsidiaries, satisfactory to the Administrative
Agent. Such projections represent the Borrowers' reasonable and good faith
estimate of FCI's and its Subsidiaries' future financial performance for
the periods set forth therein and have been prepared on the basis of
assumptions stated therein which the Borrowers believe are fair and
reasonable in light of current business conditions.
7.5. NO MATERIAL CHANGES, ETC. Except as disclosed on Schedule 7.5 hereto,
-------------------------- -------- ---
since the Interim Balance Sheet Date there has occurred no materially adverse
change in the financial condition, operations, assets, income, prospects or
business of the Borrowers and their Subsidiaries taken as a whole as shown on or
reflected in the consolidated balance sheet of FCI and its Subsidiaries as at
the Interim Balance Sheet Date, or
the consolidated statement of income for the fiscal period then ended, other
than changes in the ordinary course of business that have not had any Material
Adverse Effect. Since the Interim Balance Sheet Date, no Borrower has made any
Distribution except for stock repurchases made by FCI which were approved by
Fleet and the Administrative Agent under the Existing FCI Credit Agreement.
7.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrowers and its
----------------------------------------
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
7.7. LITIGATION. Except as otherwise disclosed on FCI's annual report on
----------
Form 10-K for the year ended December 31, 1999 and quarterly report on Form
10-Q's for the quarter ended March 31, 2000 filed with the Securities and
Exchange Commission (collectively the "Base Report"), which Base Report shall
have been delivered to the Administrative Agent prior to the Closing Date, or as
otherwise set forth on Schedule 7.7, there are no actions, suits, proceedings or
------------
investigations of any kind pending or, to the best knowledge of the Borrowers,
threatened against any Borrower or any of its Subsidiaries or any of the
Guarantors before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity of this
Credit Agreement or any of the other Loan Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Credit Agreement or
any of the other Loan Documents, (iii) seeking any determination or ruling that
would adversely affect the performance by any Borrower or any of its
Subsidiaries or any of the Guarantors of its respective obligations under this
Credit Agreement or any of the other Loan Documents, (iv) seeking any
determination or ruling that would adversely affect the validity or
enforceability of this Credit Agreement or any of the other Loan Documents or
any action taken or to be taken pursuant thereto, or (v) seeking any
determination or ruling that would, if adversely determined, be reasonably
likely to have a Material Adverse Effect or result in any substantial liability
not covered by insurance or for which adequate reserves are not maintained on
the consolidated balance sheet of FCI and its Subsidiaries; provided, however,
-------- -------
that in the event the Administrative Agent shall receive a report dated
subsequent to the date of the Base Report, which report shall disclose the
existence of, and accurately describe, one or more proceedings or investigations
which are not disclosed in the Base Report, and the Administrative Agent shall
not
identify in writing to the Borrowers, within 90 days of the receipt of such
report, one or more of the proceedings or investigations described in such
report as constituting a proceeding or investigation of a type described in one
or more of clauses (i) through (v) above, the existence of each such proceeding
or investigation not so identified to the Borrowers shall be deemed not to
constitute a breach of the representation and warranty of this ss. 7.7.
7.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrowers or their
--------------------------------------
Subsidiaries is subject to any charter, corporate or other legal restriction, or
any judgment, decree, order, rule or regulation that has or is expected in the
future, in the judgment of such Borrower's or Subsidiary's officers, to have a
Material Adverse Effect. None of the Borrowers or their Subsidiaries is a party
to any contract or agreement that has or is expected, in the judgment of such
Borrower's or Subsidiary's officers, to have any Material Adverse Effect.
7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the Borrowers or
--------------------------------------------
their Subsidiaries is in violation of any provision of its charter documents,
bylaws, or any agreement or instrument to which it may be subject or by which it
or any of its properties may be bound or any decree, order, judgment, statute,
license, rule or regulation, in any of the foregoing cases in a manner that
could reasonably be expected to result in the imposition of substantial
penalties or have a Material Adverse Effect.
7.10. TAX STATUS. Each Borrower and its Subsidiaries (i) have made or filed
----------
all federal and state income and all other tax returns, reports and declarations
required by any jurisdiction to which any of them is subject, (ii) have paid all
taxes and other governmental assessments and charges shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and by appropriate proceedings and (iii) have set aside on their
books provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
Except for taxes being contested as provided in (ii) above, there are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Borrowers know of no basis for any such
claim.
7.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred and
-------------------
is continuing.
7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the Borrowers or
-------------------------------------------
their Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935; nor is it an "investment company", or an "affiliated company" or a
"principal underwriter" of an "investment company", as such terms are defined in
the Investment Company Act of 1940.
7.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
----------------------------------------
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of any Borrower or any of its Subsidiaries or any
rights relating thereto.
7.14. PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
-------------------------------
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable law, to
establish and perfect the Collateral Agent's security interest in the
Collateral. The Collateral and the Collateral Agent's rights with respect to the
Collateral are not subject to any setoff, claims, withholdings or other
defenses. A Borrower or a Guarantor party to one of the Security Agreements is
the owner of the Collateral free from any lien, security interest, encumbrance
and any other claim or demand, except for Permitted Liens.
7.15. CERTAIN TRANSACTIONS. Except for arm's length transactions pursuant
---------------------
to which any Borrower or any of its Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than such Borrower or such
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of any Borrower or any of its Subsidiaries is presently a party to any
transaction with any Borrower or any of its Subsidiaries (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of any Borrower, any corporation, partnership, trust or other entity
in which any officer, director, or any such employee has a substantial interest
or is an officer, director, trustee or partner.
7.16. EMPLOYEE BENEFIT PLANS.
----------------------
7.16.1. IN GENERAL. Each Employee Benefit Plan and each Guaranteed
----------
Pension Plan has been maintained and operated in
compliance in all material respects with the provisions of ERISA and, to
the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as required by ss.412 of
ERISA. The Borrowers have heretofore delivered to the Administrative Agent
the most recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under
ss.103(d) of ERISA, with respect to each Guaranteed Pension Plan.
7.16.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit Plan,
--------------------------------
which is an employee welfare benefit plan within the meaning of ss.3(1) or
ss.3(2)(B) of ERISA, provides benefit coverage subsequent to termination of
employment, except as required by Title I, Part 6 of ERISA or the
applicable state insurance laws. The applicable Borrower may terminate each
such Plan at any time (or at any time subsequent to the expiration of any
applicable bargaining agreement) in the discretion of such Borrower without
liability to any Person other than for claims arising prior to termination.
7.16.3. GUARANTEED PENSION PLANS. Each contribution required to be
-------------------------
made to a Guaranteed Pension Plan, whether required to be made to avoid the
incurrence of an accumulated funding deficiency, the notice or lien
provisions of ss.302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of amortization
periods has been received with respect to any Guaranteed Pension Plan, and
no Borrower nor any ERISA Affiliate is obligated to or has posted security
in connection with an amendment to a Guaranteed Pension Plan pursuant to
ss.307 of ERISA or ss.401(a)(29) of the Code. No liability to the PBGC
(other than required insurance premiums, all of which have been paid) has
been incurred by any Borrower or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Reportable Event
(other than an ERISA Reportable Event as to which the requirement of 30
days notice has been waived), or any other event or condition which
presents a material risk of termination of any Guaranteed Pension Plan by
the PBGC. Based on the latest valuation of each Guaranteed Pension Plan
(which in each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions employed for
that valuation, the aggregate benefit liabilities of all such Guaranteed
Pension Plans within the meaning of ss.4001 of ERISA did not exceed the
aggregate value of the assets of all such
Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in excess
of benefit liabilities.
7.16.4. MULTIEMPLOYER PLANS. No Borrower nor any ERISA Affiliate has
--------------------
incurred any material liability (including secondary liability) to any
Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan under ss.4201 of ERISA or as a result of a sale of
assets described in ss.4204 of ERISA. No Borrower nor any ERISA Affiliate
has been notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of ss.4241 or ss.4245 of ERISA or is
at risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
7.17. USE OF PROCEEDS.
---------------
7.17.1. GENERAL. The proceeds of the Loans shall be used first to
-------
refinance the Existing Credit Agreements and pay associated fees and
expenses, and thereafter to (a) finance the Borrowers' purchase of Base
Contracts, and (b) for working capital and general corporate purposes of
FCI and its Subsidiaries. The Borrowers will obtain Letters of Credit
solely for general corporate purposes.
7.17.2. REGULATIONS U AND X. No portion of any Loan is to be used, and
-------------------
no portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
7.17.3. INELIGIBLE SECURITIES. No portion of the proceeds of any Loans
---------------------
is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of (a) knowingly purchasing, or providing credit support
for the purchase of, Ineligible Securities from a Section 20 Subsidiary
during any period in which such Section 20 Subsidiary makes a market in
such Ineligible Securities, (b) knowingly purchasing, or providing credit
support for the purchase of, during the underwriting or placement period,
any Ineligible Securities being underwritten or privately placed by a
Section 20 Subsidiary, or (c) making, or providing credit support for the
making of, payments of principal or interest on Ineligible Securities
underwritten or privately placed by a Section 20 Subsidiary and
issued by or for the benefit of any Borrower or any Subsidiary or other
Affiliate of any Borrower.
7.18. ENVIRONMENTAL COMPLIANCE. The Borrowers have taken all necessary
-------------------------
steps to investigate the past and present condition and usage of the Real Estate
and the operations conducted thereon and, based upon such diligent
investigation, has determined that:
(a) none of the Borrowers, their Subsidiaries or any operator of the
Real Estate or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or regulation
pertaining to environmental matters, including without limitation, those
arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 as amended ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act, the Federal Clean Air
Act, the Toxic Substances Control Act, or any state or local statute,
regulation, ordinance, order or decree relating to health, safety or the
environment (hereinafter "Environmental Laws"), which violation would have
a Material Adverse Effect;
(b) none of the Borrowers and their Subsidiaries has received notice
from any third party including, without limitation, any federal, state or
local governmental authority, (i) that any one of them has been identified
by the United States Environmental Protection Agency ("EPA") as a
potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that any
hazardous waste, as defined by 42 U.S.C. ss.6903(5), any hazardous
substances as defined by 42 U.S.C. ss.9601(14), any pollutant or
contaminant as defined by 42 U.S.C. ss.9601(33) and any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by
any Environmental Laws ("Hazardous Substances") which any one of them has
generated, transported or disposed of has been found at any site at which a
federal, state or local agency or other third party has conducted or has
ordered that any Borrower or any of its Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative
proceeding (in each case, contingent or otherwise) arising out of any third
party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances;
(c) except as set forth on Schedule 7.18 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other underground
storage receptacle for Hazardous Substances is located on any portion of
the Real Estate; (ii) in the course of any activities conducted by any
Borrower, its Subsidiaries or operators of its properties, no Hazardous
Substances have been generated or are being used on the Real Estate except
in accordance with applicable Environmental Laws; (iii) there have been no
releases (i.e. any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping) or threatened releases of Hazardous Substances on, upon, into or
from the properties of any Borrower or its Subsidiaries, which releases
would have a material adverse effect on the value of any of the Real Estate
or adjacent properties or the environment; (iv) to the best of any
Borrower's knowledge, there have been no releases on, upon, from or into
any real property in the vicinity of any of the Real Estate which, through
soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, the Real
Estate; and (v) in addition, any Hazardous Substances that have been
generated on any of the Real Estate have been transported offsite only by
carriers having an identification number issued by the EPA, treated or
disposed of only by treatment or disposal facilities maintaining valid
permits as required under applicable Environmental Laws, which transporters
and facilities have been and are, to the best of any Borrower's knowledge,
operating in compliance with such permits and applicable Environmental
Laws; and
(d) None of the Borrowers and their Subsidiaries or any of the Real
Estate is subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a condition to
the recording of any Mortgage or to the effectiveness of any other
transactions contemplated hereby.
7.19. SUBSIDIARIES, ETC. The Subsidiaries of the Borrowers are listed on
------------------
Schedule 7.19. Each of the Subsidiaries of each Borrower listed on Schedule 7.19
-------- ---- -------- ----
is a wholly-owned Subsidiary of such Borrower. Except as set forth on Schedule
7.19 hereto, no Borrower nor any Subsidiary of any Borrower is engaged in any
joint venture or partnership with any other Person.
7.20. BANK ACCOUNTS. Schedule 7.20 sets forth the account numbers and
-------------- -------- ----
location of all Local Accounts and Interim Concentration Accounts of each of the
Borrowers and their Subsidiaries.
7.21. DISCLOSURE. Except as disclosed to the Administrative Agent and the
----------
Banks in writing as of the Closing Date, neither this Credit Agreement nor any
of the other Loan Documents contains any untrue statement of a material fact or
omits to state a material fact (known to any Borrower or any of its Subsidiaries
in the case of any document or information not furnished by it or any of its
Subsidiaries) necessary in order to make the statements herein or therein not
misleading. Except as disclosed to the Administrative Agent and the Banks in
writing as of the Closing Date, there is no fact known to any Borrower or any of
its Subsidiaries which has a Material Adverse Effect, or which is reasonably
likely in the future to have a Material Adverse Effect, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
7.22. FAIRSHARE PROGRAM. (a) On any date of determination, for each VOI
------------------
Regime for which the constituent VOIs are comprised primarily of UDIs, the ratio
of (i) the total number of Points actually allocated to a VOI Regime pursuant to
the Fair Share Plus Program at such time for the next succeeding twelve month
period, divided by (ii) the total number of Points which are allocable to
available occupiable space in such VOI Regime over such twelve month period does
not exceed a ratio of 1.0 to 1.0.
(b) On any date of determination, for each owner of a UDI who is a member
of the FairShare Plus Program, the ratio of (i) the number of Points allocated
to such owner in a VOI Regime in return for assigning his VOI to the FairShare
Plus Program trust divided by (ii) the total number of Points assigned to all
UDI owners in such VOI Regime does not exceed the percentage of such owner's
undivided interest in such VOI Regime as described in such owner's Base Contract
(and related deed).
8. AFFIRMATIVE COVENANTS OF THE BORROWERS.
--------------------------------------
Each Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
8.1. PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay or cause
----------------
to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Administrative Fee and all other
amounts provided for in this Credit Agreement and the other Loan Documents to
which any Borrower or any of its Subsidiaries is a party, all in accordance with
the terms of this Credit Agreement and such other Loan Documents.
8.2. MAINTENANCE OF OFFICE. (a) FCI will maintain its chief executive
----------------------
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place in the United States of America as FCI shall designate upon written
notice to the Administrative Agent, where notices, presentations and demands to
or upon FCI in respect of the Loan Documents to which FCI is a party may be
given or made; and (b) FAC will maintain its chief executive office at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place in the
United States of America as FAC shall designate upon written notice to the
Administrative Agent, where notices, presentations and demands to or upon FAC in
respect of the Loan Documents to which FAC is a party may be given or made.
8.3. RECORDS AND ACCOUNTS. Each Borrower will (i) keep, and cause each of
--------------------
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with generally
accepted accounting principles, (ii) maintain adequate accounts and reserves for
all taxes (including income taxes), depreciation, depletion, obsolescence and
amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves, and (iii) at all times engage Ernst & Young
LLP or other independent certified public accountants satisfactory to the
Administrative Agent as the independent certified public accountants of the
Borrowers and their Subsidiaries and will not permit more than thirty (30) days
to elapse between the cessation of such firm's (or any successor firm's)
engagement as the independent certified public accountants of the Borrowers and
their Subsidiaries and the appointment in such capacity of a successor firm as
shall be satisfactory to the Administrative Agent.
8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrowers will
--------------------------------------------------
deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than one
hundred twenty (120) days after the end of each fiscal year of the
Borrowers, the consolidated balance sheet of FCI and its Subsidiaries as at
the end of such year, and the related consolidated statement of income and
consolidated statement of cash flow for such year, each setting forth in
comparative form the figures for the previous fiscal year and all such
consolidated statements to be in reasonable detail, prepared in accordance
with generally accepted accounting principles, and certified without
qualification by Ernst & Young LLP or by other independent certified public
accountants satisfactory to the Administrative Agent, together with a
written statement from such accountants to the effect (i) that they have
read a copy of this Credit Agreement, (ii) that, in making the examination
necessary to said certification, they have obtained no knowledge of any
Default or Event of Default under ss.ss.9 or 10 hereof, or, if such
accountants shall have obtained knowledge of any then existing Default or
Event of Default they shall disclose in such statement any such Default or
Event of Default and (iii) that, based upon certain agreed upon procedures,
they have reviewed the most recent Borrowing Base Report of the Borrowers
and the calculations of the Borrowing Base made by the Borrowers in
preparing such Borrowing Base Report and have determined that such
Borrowing Base Report and calculation are accurate in all material
respects, or if such accountants have obtained knowledge of any inaccuracy,
they shall disclose in such statement any such inaccuracy; provided that
--------
such accountants shall not be liable to the Banks for failure to obtain
knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60)
days after the end of each fiscal quarter (other than the fourth fiscal
quarter) of the Borrowers (i) copies of the unaudited consolidated balance
sheet of FCI and its Subsidiaries as at the end of such fiscal quarter, and
the related consolidated statement of income and consolidated statement of
cash flow for the portion of Borrowers' fiscal year then elapsed, each
setting forth in comparative form (A) the figures from the previous fiscal
year and (B) the Borrowers' annual budget delivered pursuant to ss.8.4(h)
hereof, broken down by resort and all in reasonable detail, together with a
certification by the principal financial or accounting officer of FCI that
the information contained in such financial statements
fairly presents the financial position of FCI and its Subsidiaries on the
date thereof and for the period then elapsed (subject to year-end
adjustments);
(c) as soon as practicable, but in any event not later than
twenty-five (25) days after the end of each fiscal month, (i) copies of the
FCI's internal monthly management report which shall include the unaudited
consolidated balance sheet of FCI and its Subsidiaries and the unaudited
consolidating balance sheet of FCI and its Subsidiaries (done by resort),
each as at the end of such fiscal month, and the related consolidated
statement of income and consolidating statement of income (done by resort)
for the portion of the Borrowers' fiscal year then elapsed, each (except
for the consolidating statements) setting forth in comparative form (A) the
figures from the previous fiscal year and (B) FCI's annual budget delivered
pursuant to ss.8.4(h) hereof, broken down by resort and all in reasonable
detail and prepared in accordance with generally accepted accounting
principles;
(d) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, (i) a statement certified by
the principal financial or accounting officer of the Borrowers in
substantially the form of Exhibit E hereto and setting forth in reasonable
------- -
detail computations evidencing compliance with each of the covenants set
forth in ss.10 hereof), and (if applicable) reconciliations to reflect
changes in generally accepted accounting principles since the Interim
Balance Sheet Date, and certifying that no Default or Event of Default
exists as of the date of such certificate, or if a Default or Event of
Default does exist specifying the nature and proposed remedy thereof;
(e) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of FCI;
(f) within three Business Days after the first and fifteenth day of
each month, or at such earlier time as the Administrative 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 Administrative Agent, provided that immediately prior to
--------
the occurrence of a sale or other disposition of assets permitted by
ss.9.5.2 hereof, the Borrowers 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 Administrative Agent in connection with the sale or disposition of
Base Contracts pursuant to paragraph (iv) of ss.9.5.2);
(g) at the same time as the Borrowing Base Report are delivered in
accordance with paragraph (f) above, a Base Contracts aging report;
(h) not later than December 31 of each fiscal year of the Borrowers, a
draft annual consolidated budget for FCI and its Subsidiaries as well as
draft annual budgets for each resort, prepared on a monthly basis, for the
next following fiscal year, and not later than February 15 of each fiscal
year of the Borrowers, a final annual consolidated budget for FCI and its
Subsidiaries as well as final annual budgets for each resort, prepared on a
monthly basis, for such fiscal year;
(i) at least two days prior to any sales of Base Contracts by FCI or
any of its Subsidiaries to FAC, the list of Base Contracts which FAC
proposes to buy from FCI or such Subsidiary pursuant to the Operating
Agreement and a copy of such list shall be sent to each nominee under each
Title Clearing Agreement (provided, however, that such lists of Base
Contracts need not be delivered to the Administrative Agent until such time
as the Administrative Agent has given the Borrowers a notice to the effect
that such Base Contracts shall thereafter be delivered); and
(j) from time to time such other financial data and information
(including accountants' management letters) as the Administrative Agent or
any Bank may reasonably request.
8.5. NOTICES.
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8.5.1. DEFAULTS. The Borrowers will promptly notify the Administrative
--------
Agent and each of the Banks in writing of the occurrence of any Default or
Event of Default. If any Person shall give any notice or take any other
action in respect of a claimed default (whether or not constituting an
Event of Default) under this Credit Agreement or any other note, evidence
of indebtedness, indenture or other obligation to which or with respect to
which any
Borrower or any of its Subsidiaries is a party or obligor, whether as
principal, guarantor, surety or otherwise, the Borrowers shall forthwith
give written notice thereof to the Administrative Agent and each of the
Banks, describing the notice or action and the nature of the claimed
default.
8.5.2. ENVIRONMENTAL EVENTS. The Borrowers will promptly give notice
---------------------
to the Administrative Agent and each of the Banks (i) of any violation of
any Environmental Law that any Borrower or any of its Subsidiaries reports
in writing or is reportable by such Person in writing (or for which any
written report supplemental to any oral report is made) to any federal,
state or local environmental agency and (ii) upon becoming aware thereof,
of any inquiry, proceeding, investigation, or other action, including a
notice from any agency of potential environmental liability, of any
federal, state or local environmental agency or board, that has the
potential to materially affect the assets, liabilities, financial
conditions or operations of any Borrower or any of its Subsidiaries, or the
Collateral Agent's security interests pursuant to the Security Documents.
8.5.3. NOTIFICATION OF CLAIM AGAINST COLLATERAL. The Borrowers will,
----------------------------------------
immediately upon becoming aware thereof, notify the Administrative Agent
and each of the Banks in writing of any setoff, claims (including, with
respect to the Real Estate, environmental claims), withholdings or other
defenses to which any of the Collateral, or the Collateral Agent's rights
with respect to the Collateral, are subject in an amount equal to or
greater than $500,000.
8.5.4. NOTICE OF LITIGATION AND JUDGMENTS. The Borrowers will, and
-----------------------------------
will cause each of their Subsidiaries to, give notice to the Administrative
Agent and each of the Banks in writing within fifteen (15) days of becoming
aware of any litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting any Borrower or any of its
Subsidiaries or to which any Borrower or any of its Subsidiaries is or
becomes a party involving an uninsured claim against any Borrower or any of
its Subsidiaries that could reasonably be expected to have a materially
adverse effect on any Borrower or any of its Subsidiaries and stating the
nature and status of such litigation or proceedings. Each Borrower will,
and will cause each of its Subsidiaries to, give notice to the
Administrative Agent and each of the Banks, in writing, in form and detail
satisfactory to the Administrative Agent, within ten (10)
days of any judgment not covered by insurance, final or otherwise, against
such Borrower or any of its Subsidiaries in an amount in excess of
$1,000,000.
8.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. Each Borrower will do
-----------------------------------------------
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and those of its
Subsidiaries and will not, and will not cause or permit any of its Subsidiaries
to, convert to a limited liability company or limited liability partnership. It
(i) will cause all of its properties and those of its Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of such Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
and (iii) will, and will cause each of its Subsidiaries to, continue to engage
primarily in the businesses now conducted by them and in related businesses;
provided that nothing in this ss.8.6 shall prevent any Borrower from
--------
discontinuing the operation and maintenance of any of its properties or any of
those of its Subsidiaries if such discontinuance is, in the judgment of such
Borrower, desirable in the conduct of its or their business and that do not have
a Material Adverse Effect.
8.7. INSURANCE. Each Borrower will, and will cause each of its Subsidiaries
---------
to, maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and contingencies
as shall be in accordance with the general practices of businesses engaged in
similar activities in similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be reasonable and prudent, all
of which insurance shall be reasonably satisfactory to the Administrative Agent.
Without limiting the generality of the foregoing:
(a) Each Borrower shall, and shall cause its Subsidiaries (1) to use
its best efforts, in the case of Projects where such Borrower or any of its
Subsidiaries maintains primary or substantial responsibility for
management, administration or other services of a similar nature, and (2)
to do or cause to be done all things which it may accomplish with a
reasonable amount of cost or effort, in the case of Projects where such
Borrower or any of its Subsidiaries does not maintain primary or
substantial
responsibility for management, administration or other services of a
similar nature, to cause each of the POAs for each Projects, to (A)
maintain one or more policies of "all-risk" property and general liability
insurance with financially sound and reputable insurers, providing coverage
in scope and amount which (x) satisfies the requirements of the
declarations (or any similar charter document) governing the POA for the
maintenance of such insurance policies, and (y) is at least consistent with
the scope and amount of such insurance coverage obtained by prudent POAs
and/or management of other similar developments in the same jurisdiction;
and (B) apply the proceeds of any such insurance policies in the manner
specified in the relevant declarations (or any similar charter document)
governing the POA and/or any similar charter documents of such POA (which
efforts shall include, in any case, voting as a member of the POA or as a
proxy or attorney-in-fact for the nominee under the applicable Title
Clearing Agreement). For the avoidance of doubt, the parties hereto
acknowledge that the ultimate discretion and control relating to the
maintenance of any such insurance policies is vested in the POAs in
accordance with the respective declaration (or any similar charter
document) relating to each VOI Regime.
(b) The Borrowers shall maintain separate errors and omissions
coverage insuring the Collateral Agent's, the Administrative Agent's and
the Banks' respective risks against loss through errors of the Borrowers'
or the Servicer's officers and employees involved in the servicing of
Contracts covering such actions and in an amount no less than $2,000,000
per occurrence and naming the Collateral Agent and the Administrative
Agent, as a loss payee. Each Borrower shall also maintain a separate
fidelity bond coverage insuring the Collateral Agent's, the Administrative
Agent's and the Banks' respective risks against losses through wrongdoing
of such Borrower's or the Servicer's officers and employees involved in the
servicing of Contracts covering such actions and in an amount no less than
$2,000,000 per occurrence and naming the Collateral Agent and the
Administrative Agent, as an additional loss payee. Each such insurance
policy required pursuant to this ss.8.7(b) shall provide for written notice
to the Administrative Agent by the insurer at least 30 days prior to the
cancellation of such insurance. Evidence reasonably satisfactory to the
Administrative Agent of all renewals or replacements necessary to maintain
such insurance from time to time in force shall be
delivered by the Borrowers to the Administrative Agent prior to the
expiration date of the then current insurance policy.
8.8. TAXES. Each Borrower will, and will cause each of its Subsidiaries to,
-----
duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies that if unpaid might by law become a lien or
charge upon any of its property; provided that any such tax, assessment, charge,
--------
levy or claim need not be paid if the validity or amount thereof shall currently
be contested in good faith by appropriate proceedings and if such Borrower or
such Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided further that each Borrower and each Subsidiary of such
-------- -------
Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefor.
8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
---------------------------------------
8.9.1. GENERAL. Each Borrower shall permit the Banks, through the
-------
Administrative Agent or any of the Banks' other designated representatives,
to visit and inspect any of the properties of such Borrower or any of its
Subsidiaries, to examine the books of account of such Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of such Borrower and its
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Administrative
Agent or any Bank may reasonably request. All visits and inspections by the
Administrative Agent shall be conducted at the expense of the Borrowers.
8.9.2. COLLATERAL REPORTS. No more frequently than once during each
-------------------
calendar year, or more frequently as determined by the Administrative Agent
if an Event of Default shall have occurred and be continuing, upon the
request of the Administrative Agent, the Borrowers will obtain and deliver
to the Administrative Agent, or, if the Administrative Agent so elects,
will cooperate with the Administrative Agent in the Administrative Agent's
obtaining, a report of an independent collateral auditor satisfactory to
the Administrative Agent (which may be affiliated with one of the Banks)
with respect to the Base Contracts included in the Borrowing Base, which
report shall indicate whether or not the information set forth in the
Borrowing Base Report most recently delivered is accurate and complete in
all material respects based upon a review by such auditors of the Base
Contracts (including verification with respect to the amount, aging,
identity and credit of the respective account debtors and the billing
practices of each Borrower or its applicable Subsidiary). All such
collateral value reports shall be conducted and made at the expense of the
Borrowers.
8.9.3. COMMERCIAL FINANCE EXAMINATIONS. No more frequently than once
-------------------------------
each calendar year, or more frequently as determined by the Administrative
Agent if an Event of Default shall have occurred and be continuing, upon
the request of the Administrative Agent, the Borrowers will permit the
Banks, through the Administrative Agent or any of the Bank's other
designated representatives, to conduct a commercial finance examination of
the Borrowers and their Subsidiaries, at such reasonable times and
intervals as the
Administrative Agent will request. All such commercial finance examinations
shall be conducted and made at the expense of the Borrowers.
8.9.4. COMMUNICATIONS WITH ACCOUNTANTS. Each Borrower authorizes the
-------------------------------
Administrative Agent and, if accompanied by the Administrative Agent, the
Banks to communicate directly with such Borrower's independent certified
public accountants and authorizes such accountants to disclose to the
Administrative Agent and the Banks any and all financial statements and
other supporting financial documents and schedules including copies of any
management letter with respect to the business, financial condition and
other affairs of such Borrower or any of its Subsidiaries. At the request
of the Administrative Agent, the Borrowers shall deliver a letter addressed
to such accountants instructing them to comply with the provisions of this
ss.8.9.4.
8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Each Borrower
------------------------------------------------------
will, and will cause each of its Subsidiaries to, comply in all material
respects with (i) the applicable laws and regulations wherever its business is
conducted, including all Environmental Laws, (ii) the provisions of its charter
documents and by-laws, (iii) all agreements and instruments by which it or any
of its properties may be bound and (iv) all applicable decrees, orders, and
judgments. If any authorization, consent, approval, permit or license from any
officer, agency or instrumentality of any government shall become necessary or
required in order that any Borrower or any of its Subsidiaries may fulfill any
of its obligations hereunder or any of the other Loan Documents to which such
Borrower or such Subsidiary is a party, such Borrower will, or (as the case may
be) will cause such Subsidiary to, immediately take or cause to be taken all
reasonable steps within the power of such Borrower or such Subsidiary to obtain
such authorization, consent, approval, permit or license and furnish the
Administrative Agent and the Banks with evidence thereof.
8.11. EMPLOYEE BENEFIT PLANS. Each Borrower will (i) promptly upon filing
----------------------
the same with the Department of Labor or Internal Revenue Service, furnish to
the Administrative Agent a copy of the most recent actuarial statement required
to be submitted under ss.103(d) of ERISA and Annual Report, Form 5500, with all
required attachments, in respect of each Guaranteed Pension Plan and (ii)
promptly upon receipt or dispatch, furnish to the Administrative Agent any
notice, report or demand sent or received in respect of a Guaranteed Pension
Plan under ss.ss.302, 4041,
4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer
Plan, under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
8.12. USE OF PROCEEDS. The Borrowers will use the proceeds of the Loans
---------------
solely (i) to refinance the Existing Credit Agreements and pay associated fees
and expenses, (ii) finance the Borrowers' purchase of Base Contracts, and (iii)
for working capital and general corporate purposes of FCI and its Subsidiaries.
The Borrowers will obtain Letters of Credit solely for general corporate
purposes.
8.13. BANK ACCOUNTS.
-------------
8.13.1. GENERAL. On or prior to the Closing Date, the Borrowers will,
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and will cause each Guarantor to, (i) establish one or more depository
accounts (collectively the "Fleet Concentration Account") under the control
of the Administrative Agent for the benefit of the Banks and the
Administrative Agent, in the name of the Borrowers, (ii) instruct all
account debtors and other obligors, pursuant to notices of assignment and
instruction letters in form and substance satisfactory to the
Administrative Agent, to remit all cash proceeds of Base Contracts directly
to the Fleet Concentration Account or to local depository accounts ("Local
Accounts") or concentration depository accounts ("Interim Concentration
Accounts") with financial institutions which have entered into agency
account agreements and, if applicable, lock box agreements (collectively,
"Agency Account Agreements") in form and substance satisfactory to the
Administrative Agent, or the Fleet Concentration Account, (iii) direct all
depository institutions with Local Accounts to cause all funds held in each
such Local Account to be transferred no less frequently than once each day
to, and only to, an Interim Concentration Account or the Fleet
Concentration Account, (iv) direct all depository institutions with Interim
Concentration Accounts to cause all funds of the Borrowers and the
Guarantors held in such Interim Concentration Accounts to be transferred
daily to, and only to, the Fleet Concentration Account, and (v) at all
times ensure that immediately upon receipt by any Borrower or any Guarantor
of any funds constituting or cash proceeds of any Collateral, all such
amounts shall have been deposited in a Local Account, an Interim
Concentration Account or the Fleet Concentration Account.
8.13.2. ACKNOWLEDGMENT OF APPLICATION. The Borrowers hereby agree that
-----------------------------
all amounts received by the Administrative Agent in the Fleet Concentration
Account will be the sole and exclusive
property of the Administrative Agent, for the accounts of the Banks and the
Administrative Agent, to be applied in accordance ss.2.10 or ss.2.11 as
applicable.
8.14. MAINTENANCE AND COLLECTION OF BASE CONTRACTS; CUSTODIAN.
-------------------------------------------------------
(a) On or before the Closing Date, and thereafter promptly upon the
acquisition or origination of Base Contracts by any of the Borrowers or any
of the Guarantors, the Borrowers will, and will cause each such Guarantor
to, deliver or cause to be delivered directly to the Custodian for the
benefit of the Collateral Agent pursuant to the Custodial Agreements all
original copies of the Base Contracts of such Borrower and such Guarantor
(or in the case of Base Contracts consisting of a sales contract and a
separate promissory note, a copy of such sales contract and the original of
such promissory note), together with all contracts and papers related to
such Base Contract. The Custodian will hold, maintain and keep custody of
all such Base Contracts for the benefit of the Collateral Agent as set
forth in the Custodial Agreements. The Borrowers and the Guarantors will be
responsible for collection on all of their Base Contracts.
(b) The Custodian shall at all times maintain control of the Base
Contracts for the benefit of the Collateral Agent and the Guarantors
pursuant to the Custodial Agreements. The Borrowers may access the Base
Contracts at Custodian's storage facility (as described in the Custodial
Agreements) only for the purposes and upon the terms and conditions set
forth herein and in the Custodial Agreements.
(c) Each Borrower will, and will cause each of the Guarantors to, at
all times comply with the terms of and their obligations under the
Custodian Agreements, and shall not enter into any modification, amendment
or supplement of or to, and shall not terminate, any of the Custodial
Agreements without the prior written consent of the Majority Banks.
8.15. FAC'S TRANSACTIONS WITH FCI
---------------------------
(a) Operating Agreement. The Operating Agreement shall set forth the
--------------------
purchase price (100% of the outstanding principal balance plus all accrued but
unpaid interest) to be paid to FCI by FAC for an Eligible
Base Contract, Eligible Green Base Contracts and Eligible Prime Base Contract
and all other terms and conditions of such purchase.
(b) Purchase of Base Contracts from FCI. From and after the Closing Date,
-------------------------------------
FAC may only purchase Base Contracts from FCI in accordance with the Operating
Agreement.
(c) Procedure for Purchasing Base Contracts from FCI. On or immediately
----------------------------------------------------
following each Contract Settlement Date, FAC shall deliver to the Collateral
Agent and to each nominee under each Title Clearing Agreement a list of the Base
Contracts (if any) that it has purchased from FCI on such Contract Settlement
Date, together with all documentation relating thereto.
(d) Sale of Base Contracts to FCI. FAC may at any time sell a Base Contract
-----------------------------
to FCI for a purchase price equal to or greater than 100% of such Base
Contract's outstanding principal balance in accordance with the terms of the
Operating Agreement. Proceeds of such sales shall be applied as set forth in
ss.2.10 or ss.2.11, as applicable.
8.16. SERVICING OF BASE CONTRACTS. FAC will manage, administer, service and
---------------------------
make collections on the Base Contracts included in the Collateral and perform
all contractual and customary undertakings of the holder of the Base Contracts
to the obligors thereunder. In managing, administering, servicing and making
collections on the Base Contracts, FAC will exercise that degree of skill and
care consistent with the practices employed by prudent lending institutions
which originate and service instruments and agreements similar to the Base
Contracts or other time share loans in the jurisdictions where the Approved
Projects are located and FAC's written credit standards and collection policies,
so long as such practices and policies are in the best interests of the Banks.
FAC shall maintain such books of account, computer data files and other records
as will enable the Administrative Agent and the Collateral Agent to determine
the status of each Base Contract included in the Collateral and will enable each
such Base Contract to be serviced by another Person. Pursuant to and in
accordance with the Operating Agreement, FAC may appoint FCI to perform one or
more of its obligations under this ss.8.16.
FAC will, consistent with the foregoing provisions, act in such a manner as
will maximize the receipt of scheduled collections in respect of the Base
Contracts. FAC shall not appoint any other Person as an agent to perform the
servicing obligations and duties described in this ss.8.15
without the prior written consent of the Majority Banks. If an Event of Default
shall have occurred and be continuing, the Administrative Agent may, and at the
request of the Majority Banks shall, in addition to its other rights and
remedies available to it under this Credit Agreement and the other Loan
Documents, by written notice given to the Borrowers, require FAC to promptly
transfer all servicing obligations and duties described in this ss.8.16 to a
successor servicer which is (i) a financial institution having a net worth of
not less than $100,000,000 and whose regular business includes the servicing of
consumer finance receivables (similar to the Base Contracts, if possible) and
(ii) satisfactory to the Administrative Agent and the Majority Banks. Any such
successor servicer shall be appointed pursuant to a written agreement
satisfactory to the Administrative Agent and the Majority Banks, which agreement
shall set forth in greater detail the responsibilities and duties of such
successor servicer. Upon appointment of such successor servicer, all of the
rights and obligations of FAC and any agent of FAC with respect to the servicing
of Base Contracts shall terminate and pass to and be vested in the successor
servicer, all as set forth in the agreement by which such successor servicer is
appointed.
8.17. LEGAL OPINIONS. In the event that FCI or any Guarantor originates or
--------------
expects to originate Base Contracts for VOIs or Lots at an Approved Project
which is not located in a state included in the Existing Resort Cities on the
Closing Date, the Borrowers shall, if requested by the Administrative Agent,
furnish to the Administrative Agent and the Banks an opinion of local counsel to
the Borrowers and the Guarantors for the jurisdiction in which such Approved
Project is located stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Credit Agreement and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
first priority lien and security interest of the Collateral Agent in the
Collateral and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interests. In addition, no Borrower or Guarantor will change its chief
executive office and principal place of business or remove any portion of the
Collateral that consists of money or is evidenced by an instrument, certificate
or other writing (including any Base Contract) from the jurisdiction in which it
was held on the Closing Date unless the Administrative Agent and the Banks shall
have first received an opinion of counsel to the effect that the lien and
security interests granted to the Collateral Agent with respect to such property
will continue to be maintained after giving effect to such action or actions.
8.18. FURTHER ASSURANCES. Each Borrower will, and will cause each of its
-------------------
Subsidiaries to, cooperate with the Banks and the Administrative Agent and
execute such further instruments and documents as the Majority Banks or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
8.19. COMPUTER EQUIPMENT. Each Borrower represents and warrants to the
-------------------
Administrative Agent and the Banks that as of the date hereof all computer
software, tapes, disks and other electronic media relating to the Base
Contracts, any VOI Regime, the Fair Share Plus Program, the Reservation System
and the Fairfield Destinations Vacation Club operate on computer hardware that
is available to the general public without significant modification. If at any
time after the date hereof, the foregoing representation shall cease to be
accurate, the Borrowers shall promptly, and in any event within thirty (30) days
thereafter, grant to the Collateral Agent under the Security Agreements a
security interest in and lien on any specialized or modified computer hardware
required to run such computer software.
9. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.
-------------------------------------------
Each Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Administrative Agent has any
obligations to issue, extend or renew any Letters of Credit:
9.1. RESTRICTIONS ON INDEBTEDNESS. The Borrowers will not, and will not
------------------------------
permit any of their Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Banks and the Administrative Agent arising
under any of the Loan Documents;
(b) current liabilities of such Borrower or such Subsidiary incurred
in the ordinary course of business not incurred through (i) the borrowing
of money, or (ii) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies and
liabilities under employee benefit plans, including, without limitation,
pension plans, to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of ss.8.8;
(d) Indebtedness in an aggregate amount not to exceed $1,000,000 in
respect of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as execution is not levied
thereunder or in respect of which such Borrower or such Subsidiary shall at
the time in good faith be prosecuting an appeal or proceedings for review
and in respect of which a stay of execution shall have been obtained
pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(f) Securitizations with respect to which the obligor is a
special-purpose, bankruptcy-remote Subsidiary of FAC, neither FCI, FAC nor
any of FCI's other Subsidiaries is directly or indirectly liable for any
indebtedness or obligations incurred by such special-purpose bankruptcy
remote Subsidiary, and neither FAC, FCI nor any of FCI's other Subsidiaries
is obligated to repurchase defaulted Base Contracts sold to such
special-purpose, bankruptcy-remote Subsidiary as part of such
Securitization;
(g) purchase-money Indebtedness (exclusive of any Indebtedness
permitted pursuant to (l) below) incurred in connection with the
acquisition of any real or tangible personal property by FCI or its
Subsidiaries (other than FCC and Nonconsolidated Subsidiaries) or the
construction of improvements on any real property owned by FCI or its
Subsidiaries (other than FCC and Nonconsolidated Subsidiaries), provided
--------
that (A) such Indebtedness is non-recourse to FCI or such Subsidiary and
----
(B) such Indebtedness does not exceed in the aggregate at any time ten
percent (10%) of Consolidated Tangible Net Worth;
(h) unsecured Indebtedness of a Guarantor to FCI or of FCI to a
Guarantor which is expressly subordinated and made junior to the payment
and performance of the Obligations;
(i) Indebtedness existing on the date hereof and listed and described
on Schedule 9.1 hereto and renewals which do not increase the amount
-------- ---
thereof, in each case satisfactory to the Administrative Agent;
(j) Intentionally deleted;
(k) obligations of FRC, FCC and FFC-II to FAC under the Receivables
Purchase Agreements;
(l) Indebtedness of the Borrowers under Capitalized Leases in an
amount not to exceed $20,000,000 in the aggregate at any time outstanding;
(m) Senior Indebtedness;
(n) Indebtedness of one Borrower to another Borrower which is
expressly subordinated and made junior to the payment and performance of
the Obligations; and
(o) Indebtedness of the Borrowers not described in the foregoing
clauses (a)-(n) which is incurred to develop one or more Projects for which
the Administrative Agent and Majority Banks have declined to provide
financing, provided that (A) such Indebtedness does not at anytime exceed
-------- ----
$25,000,000 in the aggregate, (B) the collateral securing such Indebtedness
shall be limited to the Project for which such Indebtedness is used and the
Base Contracts originated for VOIs or Lots located in such Project, and (C)
the total cost of such Project is less than the Total Commitment as of the
date such Indebtedness is incurred.
9.2. RESTRICTIONS ON LIENS. The Borrowers will not, and will not permit any
---------------------
of their Subsidiaries to, (i) create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (ii) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (iii) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (iv) suffer to
exist for a period of more than thirty (30) days after the same shall have been
incurred any
Indebtedness or claim or demand against it that if unpaid might by law or upon
bankruptcy or insolvency, or otherwise, be given any priority whatsoever over
its general creditors; or (v) sell, assign, pledge or otherwise transfer any
"receivables" as defined in clause (vii) of the definition of the term
"Indebtedness," with or without recourse; provided that such Borrower or such
--------
Subsidiary may create or incur or suffer to be created or incurred or to exist:
(a) liens on assets other than the Collateral to secure taxes,
assessments and other government charges in respect of obligations not
overdue or liens on assets other than the collateral to secure claims for
labor, material or supplies in respect of obligations not overdue;
(b) deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(c) liens on assets other than the Collateral in respect of judgments
or awards that have been in force for less than the applicable period for
taking an appeal so long as execution is not levied thereunder or in
respect of which such Borrower or such Subsidiary shall at the time in good
faith be prosecuting an appeal or proceedings for review and in respect of
which a stay of execution shall have been obtained pending such appeal or
review;
(d) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties other than the Collateral in respect of
obligations (i) not more than thirty (30) days overdue or (ii) or which are
being contested in good faith and for which a surety bond has been obtained
in an amount sufficient to effect satisfaction and discharge thereof;
(e) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which such Borrower or such Subsidiary is a party,
and other minor liens or encumbrances none of which in the opinion of the
Borrowers interferes materially with the use of the property affected in
the ordinary conduct of the business of the Borrowers and their
Subsidiaries, which defects do not individually or in the aggregate have a
materially adverse effect on the business of any Borrower individually or
of the Borrowers and their Subsidiaries on a consolidated basis;
(f) purchase money security interests in or purchase money mortgages
on real or personal property acquired after the date hereof to secure
purchase money Indebtedness of the type and amount permitted by ss.9.1(g),
incurred in connection with the acquisition of such real or personal
property or construction of improvements on such real property, which
security interests or mortgages cover only the real or personal property so
acquired or to be improved, provided that such real or personal property
does not constitute Collateral;
(g) liens on the collateral described in ss.9.1(o) hereof to secure
the Indebtedness permitted by ss.9.1(o);
(h) liens existing on the date hereof and listed on Schedule 9.2
-------- ---
hereto;
(i) liens in favor of the Collateral Agent for the benefit of the
Banks and the Administrative Agent under the Loan Documents;
(j) liens on those Base Contracts and other assets transferred to a
special-purpose bankruptcy-remote Subsidiary of FAC to secure the
Indebtedness of such Subsidiary described in ss.9.1(f);
(k) liens on property or assets which do not constitute Collateral to
secure the Senior Indebtedness; and
(l) liens on Real Estate consisting of Assessments not yet due or
payable.
Without limiting this ss.9.2, in no event shall any Borrower or any
Subsidiary create or incur or suffer to be created or incurred or to exist any
lien, encumbrance, mortgage, pledge, charge, restriction or other security
interest of any kind on any Base Contracts or other receivables arising in
connection with any real estate or related improvements with respect to which
Eligible Base Contracts, Eligible Prime Base Contracts or Eligible Green Base
Contracts have been generated and included in the Borrowing Base hereunder.
Notwithstanding any provisions of this Agreement or any of the other Loan
Documents, this Section 9.2 shall not apply to FCI Treasury Stock.
9.3. RESTRICTIONS ON INVESTMENTS. The Borrowers will not, and will not
-----------------------------
permit any of their Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by
such Borrower;
(b) demand deposits, certificates of deposit, bankers acceptances and
time deposits of United States banks having total assets in excess of
$1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by ▇▇▇▇▇'▇
Investors Service, Inc., and not less than "A 1" if rated by Standard and
Poor's Rating Group;
(d) Investments listed on Schedule 9.3 hereto;
-------- ---
(e) Investments existing on the date hereof consisting of Investments
by each Borrower in Subsidiaries of such Borrower;
(f) Investments with respect to Indebtedness permitted by ss.9.1(h) so
long as such entities remain Subsidiaries of FCI;
(g) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business;
(h) Investments consisting of promissory notes received as proceeds of
asset dispositions permitted by ss.9.5.2(ii);
(i) Investments consisting of capital contributions (whether in cash
or by forgiveness of intercompany indebtedness) by FCI to FAC or a
Guarantor;
(j) Investments consisting of capital contributions to or promissory
notes received as proceeds from a special-purpose bankruptcy-remote
Subsidiary of FAC by reason of a disposition of Base Contracts pursuant to
a Securitization so long as such Securitization is permitted by ss.9.1(f)
and such disposition of Base Contracts is permitted by ss.9.5.2(iii); and
(k) Investments consisting of Distributions (including, without
limitation, the FCI Treasury Stock held by FCI) permitted under Section 9.4
hereof.
9.4. DISTRIBUTIONS. The Borrowers will not make any Distributions, except
-------------
that FCI may make:
(i) Distributions to its stockholders consisting of the declaration
and payment of dividends;
(ii) Distributions consisting of the repurchase by FCI of shares of
its common stock issued to or owned by employees under employment benefit
plans or arrangements, the consideration for which involves the payment by
FCI of a corresponding value in withholding taxes to federal and state
taxing authorities, provided that such repurchases shall not exceed an
aggregate of $350,000 in any calendar year; and
(iii) Distributions consisting of the repurchase by FCI, in the open
market or in privately negotiated transactions, of up to $60,000,000 of its
outstanding common stock, provided that all such repurchases must be made
on or before August 31, 2000;
in each case, so long as (a) in the case of Distributions described in clauses
(i) and (ii) above, such Distributions in the aggregate do not exceed forty
percent (40%) of the Consolidated Net Income of FCI and its Subsidiaries for the
fiscal year immediately preceding the fiscal year in which such Distributions
are to be made, (b) in the case of Distributions described in clause (i) above,
such Distributions are made no more frequently than quarterly during each fiscal
year, (c) any such Distributions are reconciled in the audited year end
financial statements of FCI and its Subsidiaries delivered to the Administrative
Agent pursuant to ss.8.4, and (d) no Default or Event of Default has occurred
and is continuing, or would occur after giving effect to such Distributions. Any
Subsidiary of any Borrower may make Distributions to such Borrower. Any shares
of repurchased FCI common stock may be held by FCI as treasury stock ("FCI
Treasury Stock"), reissued or cancelled.
9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
-----------------------------------------------
9.5.1. MERGERS AND ACQUISITIONS. The Borrowers will not, and will not
------------------------
permit any of their Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course of
business consistent with past practices) except the merger or consolidation
of any Subsidiary of FCI (other than FCC and Nonconsolidated Subsidiaries)
with and into FCI, or the
merger or consolidation of two or more Subsidiaries (other than FCC and
Nonconsolidated Subsidiaries) of the Borrowers.
9.5.2. DISPOSITION OF ASSETS. The Borrowers will not, and will not
----------------------
permit any of their Subsidiaries to, become a party to or agree to or
effect any disposition of assets, other than the sale of lots, homes and
VOI's, in each case in the ordinary course of business consistent with past
practices, without the prior written approval of the Majority Banks, except
as set forth below:
(i) Such Borrower or such Subsidiary may sell or substitute assets so
long as (a) such sales are for cash to unrelated third parties in an arms
length transaction, (b) such assets are not, and are not intended to be,
Collateral, (c) the proceeds of each such sale are deposited in the Fleet
Concentration Account, and applied in accordance with the provisions of
ss.2.10 or ss.2.11, as applicable, and (d) no Default or Event of Default
has occurred and is continuing, or would occur after giving effect to such
disposition.
(ii) Such Borrower or its Subsidiaries may sell Base Contracts and
beneficial interests in VOIs and Lots underlying such Base Contracts to
unrelated third parties provided that (a) each such sale is for cash, (b)
-------- ----
the purchase price of the Base Contracts sold shall not be less than 80% of
the principal components of such Base Contracts plus all accrued and unpaid
interest on such Base Contracts, (c) the proceeds of each such sale are
deposited in the Fleet Concentration Account and applied in accordance with
the provisions of ss.2.10 or ss.2.11, as applicable, and (d) no Default or
Event of Default has occurred and is continuing, or would occur after
giving effect to such disposition.
(iii) Such Borrower or its Subsidiaries may sell Base Contracts and
beneficial interests in VOIs and Lots underlying such Base Contracts to
special-purpose bankruptcy-remote Subsidiaries of FAC (other than FCC, FRC
and FFC-II) pursuant to Securitizations permitted by ss.9.1(f), provided
--------
that (a) the cash portion of the purchase price of the Base Contracts sold
----
shall not be less than 80% of the principal components of such Base
Contracts plus all accrued and unpaid interest on such Base Contracts, (b)
the cash proceeds of such sale are deposited in the Fleet Concentration
Account and applied in accordance with the provisions of ss.2.10 or
ss.2.11, as applicable, and (c) no Default or Event of Default has occurred
and is continuing, or would occur after giving effect to such disposition.
(iv) FMB and the VB Originating Subsidiaries may sell or substitute
Base Contracts and beneficial interests in VOIs and Lots underlying such
Base Contracts to FCI, and FCI may sell or substitute Base Contracts and
beneficial interests in VOIs and Lots underlying such Base Contracts to
FAC, and FAC may sell or substitute Base Contracts and beneficial interests
in VOIs and Lots underlying such Base Contracts to FCC, FRC and FFC-II,
provided that (a) the terms of each such sale are no less favorable than
-------- ----
those contained in the Operating Agreement (with respect to sales from FMB
and the VB Originating Subsidiaries to FCI and sales from FCI to FAC) or
the Receivables Purchase Agreements (with respect to sales from FAC to FCC,
FRC and FFC), and (b) the proceeds of each such sale are deposited in the
Fleet Concentration Account and applied in accordance with the provisions
of ss.2.10 or ss.2.11, as applicable, and (c) no Default or Event of
Default has occurred or is continuing, or would occur after giving effect
to such disposition.
9.5.3. DISPOSITION OF STOCK. The Borrowers will not, and will not
---------------------
permit any of their Subsidiaries to, become a party to or agree to or
effect any disposition or issuance of any stock of a Subsidiary to any
Person other than a Borrower.
9.5.4. FCI TREASURY STOCK. Notwithstanding any of the provisions of
------------------
this Agreement or the other Loan Documents to the contrary, this Section
9.5 shall not restrict the disposition of FCI Treasury Stock by FCI.
9.6. SALE AND LEASEBACK. The Borrowers will not, and will not permit any of
------------------
their Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby such Borrower or such Subsidiary shall sell or transfer any property
owned by it in order then or thereafter to lease such property or lease other
property that such Borrower or such Subsidiary intends to use for substantially
the same purpose as the property being sold or transferred.
9.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as disclosed on Schedule
------------------------------------ --------
7.18 hereto, the Borrowers will not, and will not permit any of their
----
Subsidiaries to, (i) use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of Hazardous Substances, (ii) cause or
permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for Hazardous Substances, (iii) generate any
Hazardous Substances on any of the Real Estate, (iv) conduct any activity at any
Real Estate or use any Real Estate in any manner so as to cause a release (i.e.
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping) or threatened release of
Hazardous Substances on, upon or into the Real Estate or (v) otherwise conduct
any activity at any Real Estate or use any Real Estate in any manner that would
violate any Environmental Law in any material respect or bring such Real Estate
in violation of any Environmental Law in any material respect.
9.8. SUBORDINATED DEBT. The Borrowers will not, and will not permit any of
-----------------
their Subsidiaries to, amend, supplement or otherwise modify the terms of any of
the Subordinated Debt or prepay, redeem or repurchase any of the Subordinated
Debt.
9.9. EMPLOYEE BENEFIT PLANS. No Borrower nor any ERISA Affiliate will
------------------------
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for any Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether or
not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of any
Borrower or any of its Subsidiaries pursuant to ss.302(f) or ss.4068 of
ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to ss.307 of ERISA or ss.401(a)(29) of the
Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities.
9.10. BUSINESS ACTIVITIES. The Borrowers will not, and will not permit any
-------------------
of their Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the
businesses conducted by them on the Closing Date and in related businesses.
9.11. FISCAL YEAR. The Borrowers will not, and will not permit any of their
-----------
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in ss.7.4.1.
9.12. TRANSACTIONS WITH AFFILIATES. The Borrowers will not, and will not
-----------------------------
permit any of their Subsidiaries to, engage in any transaction with any
Affiliate (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such
Affiliate or, to the knowledge of such Borrower, any corporation, partnership,
trust or other entity in which any such Affiliate has a substantial interest or
is an officer, director, trustee or partner, unless such transaction (a) is on
terms no more favorable to such Person than would have been obtainable on an
arm's-length basis in the ordinary course of business and (b) has been disclosed
to and approved by the Majority Banks.
9.13. BANK ACCOUNTS. The Borrowers will not, and will not permit any of
--------------
their Subsidiaries to, (i) establish any Local Accounts or Interim Concentration
Accounts (other than those Local Accounts and Interim Concentration Accounts,
all listed on Schedule 7.20), without giving ten (10) days prior written notice
-------------
to the Administrative Agent, (ii) violate directly or indirectly any Agency
Account Agreement or other bank agency or lock box agreement in favor of the
Administrative Agent for the benefit of the Banks and the Administrative Agent
with respect to such account, or (iii) deposit into any of the payroll accounts
listed on Schedule 7.20 any amounts in excess of amounts necessary to pay
-------- ----
current payroll obligations from such accounts.
9.14. NO TERMINATION OR AMENDMENTS. Unless the Majority Banks give their
------------------------------
prior written consent, the Borrowers will keep in full force in effect, and will
not waive, amend, modify or terminate, the Tax Sharing Agreement, the Fair Share
Plus Agreement, the Operating Agreement, the Custodial Agreements, or any of the
Title Clearing Agreements, or amend or modify the Receivables Purchase
Agreements; provided, however, (A) the Title Clearing Agreements may be amended
-------- -------
for the purposes of (1) making additional properties subject thereto, (2) making
an Affiliate of FCI a party thereto having the same rights and obligations
thereunder as FCI, or (3) identifying a separate pool of Base Contracts to be
sold or pledged to secure debt under a Securitization, and
(B) the FairShare Plus Agreement may be amended from time to time (1) to
substitute or add additional parties thereto, (2) to comply with state and
federal laws or regulations, or (3) for any other purpose, provided that with
respect to this clause (3), the Borrowers furnish to the Administrative Agent an
opinion of counsel in form and substance acceptable to the Administrative Agent
to the effect that such amendment or modification will not adversely affect in
any material respect the respective interests of the Administrative Agent and
the Banks.
9.15. NEGATIVE PLEDGES. The Borrowers will not, and will not permit their
----------------
Subsidiaries to, enter into or permit to exist any arrangement or agreement,
enforceable under applicable law, which directly or indirectly prohibits any
Borrower or Guarantor from creating or incurring any lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest on any assets
owned by such Borrower or such Subsidiary in favor of the Administrative Agent
for the benefit of the Banks and the Administrative Agent under the Loan
Documents, other than with respect to assets which are subject to Permitted
Liens.
10. FINANCIAL COVENANTS OF THE BORROWERS.
------------------------------------
Each Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
10.1. DEBT SERVICE COVERAGE RATIO. The Borrowers will not permit the ratio
----------------------------
of (i) Consolidated Operating Cash Flow for any period of four (4) consecutive
fiscal quarters to (ii) the sum of (A) Consolidated Total Interest Expense for
such period, plus (B) any mandatory scheduled repayments of principal on all
----
Indebtedness (excluding Indebtedness under the Triple-A Credit Agreement) of the
Borrowers and their Subsidiaries (excluding the Nonconsolidated Subsidiaries)
paid or due and payable during such period, to be less than 2.0 to 1 at any
time.
10.2. LIABILITIES TO WORTH RATIO. The Borrowers will not permit the ratio
--------------------------
of Consolidated Total Liabilities to Consolidated Tangible Net Worth to exceed
2.25 to 1 at any time.
10.3. CONSOLIDATED TANGIBLE NET WORTH. The Borrowers will not permit
----------------------------------
Consolidated Tangible Net Worth at any time to be less than the sum of (i)
$230,000,000 plus (ii) on a cumulative basis, 60% of positive Consolidated Net
----
Income for each fiscal quarter beginning with the fiscal
quarter ended June 30, 2000, plus (iii) 100% of the proceeds of any sale by FCI
of (A) equity securities issued by FCI, or (B) warrants or subscription rights
for equity securities issued by FCI.
10.4. CONSOLIDATED OPERATING MARGIN COVENANT. The Borrowers will not
-----------------------------------------
permit, as of the last day of any fiscal quarter, the ratio of Consolidated
Earnings before Interest and Taxes to Consolidated Total Revenue for the period
of four (4) consecutive fiscal quarters ended on such date to be less than
twelve and one-half percent (12.5%).
10.5. MINIMUM INVENTORY COVENANT. The Borrowers will not permit, as of the
--------------------------
last day of any fiscal quarter, the ratio of Consolidated VOI Revenue to Average
Inventory for the period of four (4) consecutive fiscal quarters ended on such
date to be less than (a) 2.0 to 1 for any fiscal quarter ending prior to or on
December 31, 2000, and (b) 1.8 to 1 for any fiscal quarter ending thereafter.
11. CLOSING CONDITIONS.
------------------
The obligations of the Banks to make the initial Revolving Credit Loans and
of the Administrative Agent to issue any initial Letters of Credit shall be
subject to the satisfaction of the following conditions precedent on or prior to
August 31, 2000:
11.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
---------------
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
11.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Banks shall have
-------------------------------------
received from each Borrower and each of the Guarantors a copy, certified by a
duly authorized officer of such Person to be true and complete on the Closing
Date, of each of (i) its charter or certificate of partnership, as applicable,
or other incorporation or constituent documents as in effect on such date of
certification, and (ii) its by-laws, or partnership agreement, as applicable, as
in effect on such date.
11.3. CORPORATE, ACTION. All corporate and partnership action necessary for
-----------------
the valid execution, delivery and performance by each Borrower and each of the
Guarantors of this Credit Agreement and the other Loan Documents to which it is
or is to become a party shall have been duly and effectively taken, and evidence
thereof satisfactory to the Banks shall have been provided to each of the Banks.
11.4. INCUMBENCY CERTIFICATE. The Administrative Agent shall have received
----------------------
from each Borrower and each of the Guarantors an incumbency certificate, dated
as of the Closing Date, signed by a duly authorized officer of such Borrower or
such Guarantor, and giving the name and bearing a specimen signature of each
individual who shall be authorized: (i) to sign, in the name and on behalf of
each of such Borrower or such Guarantor, each of the Loan Documents and
Subordination Documents to which such Borrower or such Guarantor is or is to
become a party; (ii) in the case of such Borrower, to make Loan Requests and
Conversion Requests and to apply for Letters of Credit; and (iii) to give
notices and to take other action on its behalf under the Loan Documents.
11.5. VALIDITY OF LIENS. The Security Documents 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 in and lien upon the Collateral. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of the
Administrative Agent or the Collateral Agent to protect and preserve such
security interests shall have been duly effected. The Administrative Agent shall
have received evidence thereof in form and substance satisfactory to the
Administrative Agent.
11.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The Administrative
-----------------------------------------------
Agent shall have received from each of the Borrowers and their Subsidiaries and
each of the Guarantors a completed and fully executed Perfection Certificate and
the results of UCC searches with respect to the Collateral, indicating no liens
other than Permitted Liens and otherwise in form and substance satisfactory to
the Administrative Agent.
11.7. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
---------------------------
received (i) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Security Agreements and (ii)
certified copies of all policies evidencing such insurance (or certificates
therefore signed by the insurer or an agent authorized to bind the insurer).
11.8. AGENCY ACCOUNT AGREEMENTS. The Borrowers shall have established the
--------------------------
Fleet Concentration Account, and the Administrative Agent shall have received an
Agency Account Agreement executed by each depository institution with a Local
Account or an Interim Concentration Account.
11.9. BORROWING BASE REPORT. The Administrative Agent shall have received
---------------------
from the Borrowers the initial Borrowing Base Report dated as of the Closing
Date.
11.10. BASE CONTRACTS AGING REPORT. The Administrative Agent shall have
---------------------------
received from the Borrowers the most recent Base Contracts aging report of the
Borrowers and the Guarantors dated as of a date which shall be no more than
fifteen (15) days prior to the Closing Date and the Borrowers shall have
notified the Administrative Agent in writing on the Closing Date of any material
deviation from the Base Contracts values reflected in such Base Contracts aging
report and shall have provided the Administrative Agent with such supplementary
documentation as the Administrative Agent may reasonably request.
11.11. OPINION OF COUNSEL. Each of the Banks, the Administrative Agent and
------------------
the Collateral Agent shall have received favorable legal opinions addressed to
the Banks and the Administrative Agent, dated as of the Closing Date, in form
and substance satisfactory to the Banks and the Administrative Agent from
counsel satisfactory to the Banks and the Administrative Agent.
11.12. PAYMENT OF FEES. The Borrowers shall have paid to the Administrative
---------------
Agent the Administrative Fee and Closing Fee pursuant to ss.5.1 and all other
fees due to the Administrative Agent or the Banks under the Fee Letter.
11.13. OTHER DOCUMENTS. The Administrative Agent shall have received
----------------
evidence satisfactory to it that the Tax Sharing Agreement, the Custodial
Agreements, the Title Clearing Agreements, the Operating Agreement, the Fair
Share Plus Agreement, the FRC Receivables Purchase Agreement and each document,
agreement or instrument evidencing Subordinated Debt are in full force and
effect as of the Closing Date and that no party thereto is in default under any
of the aforementioned agreements, and all such documents shall be in form and
substance satisfactory to the Banks in all respects. The Administrative Agent
shall have also received an executed copy of each of the above-listed agreements
together with all amendments, supplements and waivers with respect thereto.
11.14. REPAYMENT OF EXISTING CREDIT AGREEMENTS. The Borrowers shall have
----------------------------------------
repaid the Loans outstanding under the Existing Credit Agreements in an amount
sufficient to cause compliance with the terms and conditions of this Credit
Agreement.
12. CONDITIONS TO ALL BORROWINGS.
----------------------------
The obligations of the Banks to make any Revolving Credit Loan and of the
Administrative Agent to issue, extend or renew any Letter of Credit, in each
case whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
--------------------------------------------------
representations and warranties of any of the Borrowers and their Subsidiaries
and the Guarantors contained in this Credit Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection with
this Credit Agreement shall be true as of the date as of which they were made
and shall also be true at and as of the time of the making of such Loan or the
issuance, extension or renewal of such Letter of Credit, with the same effect as
if made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate do not have a Material Adverse Effect, and to the
extent that such representations and warranties relate expressly to an earlier
date).
12.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
--------------------
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew such Letter of Credit.
12.3. GOVERNMENTAL REGULATION. Each Bank shall have received such
-------------------------
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
12.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
--------------------------
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Administrative Agent and the Administrative Agent's
Special Counsel, and the Banks, the Administrative Agent and such counsel shall
have received all information and such counterpart originals or certified or
other copies of such documents as the Administrative Agent may reasonably
request.
12.5. BORROWING BASE REPORT. The Administrative Agent shall have received
---------------------
the most recent Borrowing Base Report required to be delivered to the
Administrative Agent in accordance with ss.8.4(f) and, if requested by the
Administrative Agent, a Borrowing Base Report dated within five (5) days of the
Drawdown Date of such Loan or of the date of issuance, extension or renewal of
such Letter of Credit.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
------------------------------------
13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
-----------------------------------
("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment;
(b) any Borrower or any of the Guarantors shall fail to pay any
interest on the Loans, the Administrative Fee, any Letter of Credit Fee, or
other sums due hereunder or under any of the other Loan Documents, when the
same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for payment;
(c) any Borrower shall fail to comply with any of its covenants
contained in ss.ss.8.1, 8.2, 8.4(f), 8.5, 8.6, 8.7, 8.9, 8.12, 8.13, 8.14,
9 or 10 hereof;
(d) any Borrower or any of its Subsidiaries or any of the Guarantors
shall fail to perform any term, covenant or agreement contained herein or
in any of the other Loan Documents (other than those specified elsewhere in
this ss.13.1) for thirty (30) days after written notice of such failure has
been given to the Borrowers by the Administrative Agent;
(e) any representation or warranty of any Borrower or any of its
Subsidiaries or any of the Guarantors in this Credit Agreement or any of
the other Loan Documents or in any other document or instrument delivered
pursuant to or in connection with this Credit Agreement, as such
representation and warranty may be updated in writing from time to time by
any Borrower or any of its
Subsidiaries, shall prove to have been false in any material respect upon
the date when made or deemed to have been made or repeated;
(f) any Borrower or any of its Subsidiaries or any of the Guarantors
shall fail to pay at maturity, or within any applicable period of grace,
any obligation for borrowed money or credit received or in respect of any
Capitalized Leases, or fail to observe or perform any material term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing borrowed money or credit received or in respect of
any Capitalized Leases for such period of time as would permit (assuming
the giving of appropriate notice if required) the holder or holders thereof
or of any obligations issued thereunder to accelerate the maturity thereof;
(g) any Borrower or any of its Subsidiaries or any of the Guarantors
shall make an assignment for the benefit of creditors, or admit in writing
its inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of any Borrower or any of its
Subsidiaries or any of the Guarantors or of any substantial part of the
assets of any Borrower or any of its Subsidiaries or any of the Guarantors
or shall commence any case or other proceeding relating to any Borrower or
any of its Subsidiaries or any of the Guarantors under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law of any jurisdiction, now or hereafter in
effect, or shall take any action to authorize or in furtherance of any of
the foregoing, or if any such petition or application shall be filed or any
such case or other proceeding shall be commenced against any Borrower or
any of its Subsidiaries or any of the Guarantors and any Borrower or any of
its Subsidiaries or any of the Guarantors shall indicate its approval
thereof, consent thereto or acquiescence therein or such petition or
application shall not have been dismissed within forty-five (45) days
following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any Borrower or any of
its Subsidiaries or any of the Guarantors bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or
order for relief is entered in respect of any Borrower or any Subsidiary of
any Borrower or any of the
Guarantors in an involuntary case under federal bankruptcy laws as now or
hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any final
judgment against any Borrower or any of its Subsidiaries or any of the
Guarantors that, with other outstanding final judgments, undischarged,
against any Borrower or any of its Subsidiaries or any of the Guarantors
exceeds in the aggregate $1,000,000;
(j) the holders of all or any part of the Subordinated Debt shall
accelerate the maturity of all or any part of the Subordinated Debt or the
Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in
part;
(k) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Administrative Agent's security interests,
mortgages or liens in a substantial portion of the Collateral shall cease
to be perfected, or shall cease to have the priority contemplated by the
Security Documents, in each case otherwise than in accordance with the
terms thereof or with the express prior written agreement, consent or
approval of the Banks, or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of any Borrower or any of the Guarantors
party thereto or any of their respective stockholders, or any court or any
other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment, order,
decree or ruling to the effect that, any one or more of the Loan Documents
is illegal, invalid or unenforceable in accordance with the terms thereof;
(l) any Borrower or any ERISA Affiliate incurs any liability to the
PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $500,000, or any Borrower or any ERISA Affiliate
is assessed withdrawal liability pursuant to Title IV of ERISA by a
Multiemployer Plan requiring aggregate annual payments exceeding $500,000,
or any of the following occurs with respect to a Guaranteed Pension Plan:
(i) an ERISA Reportable Event, or a failure to make a required installment
or other payment (within the meaning of ss.302(f)(1) of ERISA), provided
--------
that the Administrative Agent determines in its reasonable discretion that
such event (A) could be expected to result
in liability of any Borrower or any of its Subsidiaries to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding $500,000 and (B)
could constitute grounds for the termination of such Guaranteed Pension
Plan by the PBGC, for the appointment by the appropriate United States
District Court of a trustee to administer such Guaranteed Pension Plan or
for the imposition of a lien in favor of such Guaranteed Pension Plan; or
(ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the
PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) any Borrower or any of its Subsidiaries or any of the Guarantors
shall be enjoined, restrained or in any way prevented by the order of any
court or any administrative or regulatory agency from conducting any
material part of its business and such order shall continue in effect for
more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of any Borrower or any of its
Subsidiaries or any of the Guarantors if such event or circumstance is not
covered by business interruption insurance and would have a Material
Adverse Effect or a materially adverse effect on the business or financial
condition of such Guarantor;
(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
any Borrower or any of its Subsidiaries or any of the Guarantors if such
loss, suspension, revocation or failure to renew would have a material
adverse effect on the business or financial condition of such Borrower or
such Subsidiary or such Guarantor;
(p) any Borrower or any of its Subsidiaries or any of the Guarantors
shall be indicted for a state or federal crime, or any civil or criminal
action shall otherwise have been brought against any Borrower or any of its
Subsidiaries or any of the Guarantors, a punishment for which in any such
case could include the forfeiture of any assets of such Borrower or such
Subsidiary or such Guarantor included in the Borrowing Base or any assets
of such
Borrower or such Subsidiary or such Guarantor not included in the Borrowing
Base but having a fair market value in excess of $200,000; or
(q) (i) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said Act) of 20% or more of
the outstanding shares of common stock of FCI; or, during any period of
twelve consecutive calendar months, individuals who were directors of FCI
on the first day of such period shall cease to constitute a majority of the
board of directors of FCI, or (ii) FCI shall at any time legally or
beneficially, cease to own all of the issued and outstanding capital stock
of FAC;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Majority Banks shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by each Borrower; provided
--------
that in the event of any Event of Default specified in ss.ss.13.1(g), 13.1(h) or
13.1(j), all such amounts shall become immediately due and payable automatically
and without any requirement of notice from the Administrative Agent or any Bank.
13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
----------------------------
Default specified in ss.13.1(g), ss.13.1(h) or ss.13.1(j) shall occur, any
unused portion of the credit hereunder shall forthwith terminate and each of the
Banks shall be relieved of all further obligations to make Loans to the
Borrowers and the Administrative Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing, the Administrative Agent may and,
upon the request of the Majority Banks, shall, by notice to the Borrowers,
terminate the unused portion of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall terminate immediately
and each of the Banks shall be relieved of all further obligations to make Loans
and the Administrative Agent shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. No termination of the credit hereunder
shall relieve any Borrower or any of its Subsidiaries or any of the Guarantors
of any of the Obligations.
13.3. REMEDIES. In case any one or more of the Events of Default shall have
--------
occurred and be continuing, and whether or not the Banks shall have accelerated
the maturity of the Loans pursuant to ss.13.1, each Bank, if owed any amount
with respect to the Loans or the Reimbursement Obligations, may, with the
consent of the Majority Banks but not otherwise, proceed to protect and enforce
its rights by suit in equity, action at law or other appropriate proceeding,
whether for the specific performance of any covenant or agreement contained in
this Credit Agreement and the other Loan Documents or any instrument pursuant to
which the Obligations to such Bank are evidenced, including as permitted by
applicable law the obtaining of the ex parte appointment of a receiver, and, if
-- -----
such amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right of such Bank.
No remedy herein conferred upon any Bank or the Administrative Agent or the
holder of any Note or purchaser of any Letter of Credit Participation is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or any other provision
of law.
13.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that the
--------------------------------------
Administrative Agent receives proceeds as contemplated by ss.2.11 or in the
event that, following the occurrence or during the continuance of any Default or
Event of Default, the Administrative Agent or any Bank, as the case may be,
receives any monies in connection with the enforcement of any of the Security
Documents, or otherwise with respect to the realization upon any of the
Collateral, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Administrative Agent in connection with the
collection of such monies by the Administrative Agent, for the exercise,
protection or enforcement by the Administrative Agent of all or any of the
rights, remedies, powers and privileges of the Administrative Agent under
this Credit Agreement or any of the other Loan Documents or in respect of
the Collateral or in support of any provision of adequate indemnity to the
Administrative Agent against any taxes or liens which by law
shall have, or may have, priority over the rights of the Administrative
Agent to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks may determine; provided, however, that (i) distributions
-------- -------
shall be made (A) pari passu among Obligations with respect to the
---- -----
Administrative Fee payable pursuant to ss.5.1 and all other Obligations and
(B) with respect to each type of Obligation owing to the Banks, such as
interest, principal, fees and expenses, among the Banks pro rata, and (ii)
--- ----
the Administrative Agent may in its discretion make proper allowance to
take into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Banks and the Administrative Agent
of all of the Obligations, to the payment of any obligations required to be
paid pursuant to ss.9-504(1)(c) of the Uniform Commercial Code of the
Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Borrowers or
to such other Persons as are entitled thereto.
14. SETOFF.
------
Regardless of the adequacy of any collateral, during the continuance of any
Event of Default, any deposits or other sums credited by or due from any of the
Banks to any of the Borrowers and any securities or other property of any of the
Borrowers in the possession of such Bank may be applied to or set off by such
Bank against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrowers to such Bank. Each of the Banks agrees
with each other Bank that (i) if an amount to be set off is to be applied to
Indebtedness of the Borrowers to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank or constituting Reimbursement Obligations owed to
such Bank, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by all such Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (ii) if such Bank
shall receive from any of the Borrowers, whether by voluntary payment, exercise
of the right of setoff, counterclaim, cross action, enforcement of the claim
evidenced by the Notes held by, or constituting Reimbursement Obligations owed
to, such Bank by proceedings against such Borrower at law or in equity or by
proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or otherwise,
and shall retain and apply to the payment of the Note or Notes held by, or
Reimbursement Obligations owed to, such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the Notes
held by, and Reimbursement Obligations owed to, all of the Banks, such Bank will
make such disposition and arrangements with the other Banks with respect to such
excess, either by way of distribution, pro tanto assignment of claims,
--- -----
subrogation or otherwise as shall result in each Bank receiving in respect of
the Notes held by it or Reimbursement obligations owed it, its proportionate
payment as contemplated by this Credit Agreement; provided that if all or any
--------
part of such excess payment is thereafter recovered from such Bank, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
15. THE ADMINISTRATIVE AGENT.
------------------------
15.1. AUTHORIZATION.
-------------
(a) The Administrative Agent is authorized to take such action on
behalf of each of the Banks and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such powers
as are reasonably incident thereto, provided that no duties or
--------
responsibilities not expressly assumed herein or therein shall be implied
to have been assumed by the Administrative Agent.
(b) The relationship between the Administrative Agent and each of the
Banks is that of an independent contractor. The use of the term
"Administrative Agent" is for convenience only and is used to describe, as
a form of convention, the independent contractual relationship between the
Administrative Agent and each of the Banks. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create
an agency, trust or other fiduciary relationship between the Administrative
Agent and any of the Banks.
(c) As an independent contractor empowered by the Banks to exercise
certain rights and perform certain duties and responsibilities hereunder
and under the other Loan Documents, the Administrative Agent is
nevertheless a "representative" of the Banks, as that term is defined in
Article 1 of the Uniform Commercial Code, for purposes of actions for the
benefit of the
Banks and the Administrative Agent with respect to all collateral security
and guaranties contemplated by the Loan Documents. Such actions include the
designation of the Administrative Agent as "secured party", "mortgagee" or
the like on all financing statements and other documents and instruments,
whether recorded or otherwise, relating to the attachment, perfection,
priority or enforcement of any security interests, mortgages or deeds of
trust in collateral security intended to secure the payment or performance
of any of the Obligations, all for the benefit of the Banks and the
Administrative Agent.
15.2. EMPLOYEES AND AGENTS. The Administrative Agent may exercise its
---------------------
powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Credit Agreement and the other
Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrowers.
15.3. NO LIABILITY. Neither the Administrative Agent nor any of its
-------------
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
15.4. NO REPRESENTATIONS.
------------------
15.4.1. GENERAL. The Administrative Agent shall not be responsible for
-------
the execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or
for the validity, enforceability or collectability of any such amounts
owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of any Borrower or any of its Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument at
any time constituting, or intended to constitute, collateral security for
the Notes or to inspect any of the properties, books or records of any
Borrower or any of its Subsidiaries. The Administrative Agent shall not be
bound to ascertain whether any notice, consent, waiver or request delivered
to it by any Borrower or any holder of any of the Notes shall have been
duly authorized or is true, accurate and complete. The Administrative Agent
has not made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Banks, with
respect to the credit worthiness or financial conditions of any Borrower or
any of its Subsidiaries. Each Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Bank, and
based upon such information and documents as it has deemed appropriate,
made its own credit analysis and decision to enter into this Credit
Agreement.
15.4.2. CLOSING DOCUMENTATION, ETC. For purposes of determining
----------------------------
compliance with the conditions set forth in ss.11, each Bank that has
executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Administrative Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such
Bank, unless an officer of the Administrative Agent active upon the
Borrowers' account shall have received notice from such Bank prior to the
Closing Date specifying such Bank's objection thereto and such objection
shall not have been withdrawn by notice to the Administrative Agent to such
effect on or prior to the Closing Date.
15.5. PAYMENTS.
--------
15.5.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by the Borrowers
---------------------------------
to the Administrative Agent hereunder or any of the other Loan Documents
for the account of any Bank shall constitute a payment to such Bank. The
Administrative Agent agrees promptly to distribute to each Bank such Bank's
pro rata share of payments received by the Administrative Agent for the
--- ----
account of the Banks except as otherwise expressly provided herein or in
any of the other Loan Documents.
15.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the opinion of the
------------------------------------
Administrative Agent the distribution of any amount received by it in such
capacity hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
15.5.3. DELINQUENT BANKS. Notwithstanding anything to the contrary
-----------------
contained in this Credit Agreement or any of the other Loan Documents, any
Bank that fails (i) to make available to the Administrative Agent its pro
---
rata share of any Loan or to purchase any Letter of Credit Participation or
----
(ii) to comply with the provisions of ss.14 with respect to making
dispositions and arrangements with the other Banks, where such Bank's share
of any payment received, whether by setoff or otherwise, is in excess of
its pro rata share of such payments due and payable to all of the Banks, in
each case as, when and to the full extent required by the provisions of
this Credit Agreement, shall be deemed delinquent (a "Delinquent Bank") and
shall be deemed a Delinquent Bank until such time as such delinquency is
satisfied. A Delinquent Bank shall be deemed to have assigned any and all
payments due to it from the Borrowers, whether on account of outstanding
Loans, Unpaid Reimbursement Obligations, interest, fees or otherwise, to
the remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and Unpaid
--- ----
Reimbursement Obligations. The Delinquent Bank hereby authorizes the
Administrative Agent to distribute such payments to the nondelinquent Banks
in proportion to their respective pro rata shares of all outstanding Loans
--- ----
and Unpaid Reimbursement Obligations. A Delinquent Bank shall be deemed to
have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans and Unpaid
Reimbursement Obligations of the nondelinquent Banks, the Banks' respective
pro rata shares of all outstanding Loans and Unpaid Reimbursement
--- ----
Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
15.6. HOLDERS OF NOTES. The Administrative Agent may deem and treat the
----------------
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
15.7. INDEMNITY. The Banks ratably agree hereby to indemnify and hold
---------
harmless the Administrative Agent and its affiliates from and against any and
all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Administrative
Agent or such affiliate has not been reimbursed by the Borrowers as required by
ss.16), and liabilities of every nature and character arising out of or related
to this Credit Agreement, the Notes, or any of the other Loan Documents or the
transactions contemplated or evidenced hereby or thereby, or the Administrative
Agent's actions taken hereunder or thereunder, except to the extent that any of
the same shall be directly caused by the Administrative Agent's willful
misconduct or gross negligence.
15.8. ADMINISTRATIVE AGENT AS BANK. In its individual capacity, Fleet shall
----------------------------
have the same obligations and the same rights, powers and privileges in respect
to its Commitment and the Loans made by it, and as the holder of any of the
Notes and as the purchaser of any Letter of Credit Participations, as it would
have were it not also the Administrative Agent.
15.9. RESIGNATION. The Administrative Agent may resign at any time by
-----------
giving sixty (60) days prior written notice thereof to the Banks and the
Borrowers. Upon any such resignation, the Majority Banks shall have the right to
appoint a successor Administrative Agent. Unless a Default or Event of Default
shall have occurred and be continuing, such successor Administrative Agent shall
be reasonably acceptable to the Borrowers. If no successor Administrative Agent
shall have been so appointed by the Majority Banks and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent, which shall be a
financial institution having a rating of not less than A or its equivalent by
Standard & Poor's Corporation. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation, the provisions
of this Credit Agreement and the other Loan Documents shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Administrative Agent.
15.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank hereby
------------------------------------------------
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Administrative Agent thereof. The Administrative
Agent hereby agrees that upon receipt of any notice under this ss.15.10 or upon
learning of a Default or an Event of Default in its capacity as Administrative
Agent it shall promptly notify the other Banks of the existence of such Default
or Event of Default.
15.11. AUTHORIZATION OF COLLATERAL AGENCY AGREEMENT. Each Bank hereby
------------------------------------------------
authorizes the Administrative Agent to execute and deliver the Collateral Agency
Agreement on behalf of the Banks. Each Bank further authorizes the
Administrative Agent and the Collateral Agent to perform their respective duties
under the Collateral Agency Agreement in accordance with the terms and
provisions thereof.
15.12. DUTIES IN THE CASE OF ENFORCEMENT. In case one of more Events of
----------------------------------
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Administrative Agent shall, if (i)
so requested by the Majority Banks and (ii) the Banks have provided to the
Administrative Agent and/or the Collateral Agent such additional indemnities and
assurances against expenses and liabilities as the Administrative Agent and the
Collateral Agent may reasonably request, direct the Collateral Agent to proceed
to enforce the provisions of the Security Documents authorizing the sale or
other disposition of all or any part of the Collateral and exercise all or any
such other legal and equitable and other rights or remedies as it may have in
respect of such Collateral. The Majority Banks may request in writing that the
Administrative Agent direct the Collateral Agent as to the method and the extent
of any such sale or other disposition, the Banks hereby agreeing to indemnify
and hold the Administrative Agent and/or the Collateral Agent, harmless from all
liabilities incurred in respect of all actions taken or omitted in accordance
with such requests and directions, provided that the Administrative Agent need
--------
not comply with any such direction to the extent that the Administrative Agent
reasonably believes the Administrative Agent's compliance with such direction to
be unlawful or commercially unreasonable in any applicable jurisdiction.
16. EXPENSES AND INDEMNIFICATION.
----------------------------
16.1. EXPENSES. The Borrowers agree to pay (i) the reasonable costs of
--------
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) any taxes (including
any interest and penalties in respect thereto) payable by the Administrative
Agent or any of the Banks (other than taxes based upon the Administrative
Agent's or any Bank's net income) on or with respect to the transactions
contemplated by this Credit Agreement (each Borrower hereby agreeing to
indemnify the Administrative Agent and each Bank with respect thereto), (iii)
the reasonable fees, expenses and disbursements of the Administrative Agent's
Special Counsel or any local counsel to the Administrative Agent or the Arranger
incurred in connection with the preparation, syndication, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, any amendments, modifications, approvals, consents or
waivers hereto or hereunder, or the cancellation of any Loan Document upon
payment in full in cash of all of the Obligations or pursuant to any terms of
such Loan Document for providing for such cancellation, (iv) the fees, expenses
and disbursements of the Administrative Agent, the Arranger or any of their
affiliates incurred by the Administrative Agent, the Arranger or such affiliate
in connection with the preparation, syndication, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
including all title insurance premiums and surveyor, engineering and appraisal
charges, (v) any fees, costs, expenses and bank charges, including bank charges
for returned checks, incurred by the Administrative Agent in establishing,
maintaining or handling agency accounts, lock box accounts and other accounts
for the collection of any of the Collateral; (vi) all reasonable out-of-pocket
expenses (including without limitation reasonable attorneys' fees and costs,
which attorneys may be employees of any Bank or the Administrative Agent, and
reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Bank or the Administrative Agent
in connection with (A) the enforcement of or preservation of rights under any of
the Loan Documents against any Borrower or any of its Subsidiaries or any of the
Guarantors or the administration thereof after the occurrence of a Default or
Event of Default and (B) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to any Bank's or the Administrative
Agent's relationship with any Borrower or any of its Subsidiaries or any of the
Guarantors and (vii) all reasonable fees, expenses and disbursements of any Bank
or the Administrative
Agent incurred in connection with UCC searches, UCC filings or mortgage
recordings.
16.2. INDEMNIFICATION. Each Borrower agrees to indemnify and hold harmless
---------------
the Administrative Agent, the Arranger, the Banks and their respective
shareholders, directors, agents, officers, subsidiaries and affiliates from and
against any and all claims, actions and suits whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and expenses of
every nature and character arising out of this Credit Agreement or any of the
other Loan Documents or the transactions contemplated hereby including, without
limitation, (i) any actual or proposed use by any Borrower or any of its
Subsidiaries of the proceeds of any of the Loans or Letters of Credit, (ii) the
reversal or withdrawal of any provisional credits granted by the Administrative
Agent upon the transfer of funds from lock box, bank agency or concentration
accounts or in connection with the provisional honoring of checks or other
items, (iii) any actual or alleged infringement of any patent, copyright,
trademark, service ▇▇▇▇ or similar right of any Borrower or any of its
Subsidiaries or any of the Guarantors comprised in the Collateral, (iv) any
Borrower or any of its Subsidiaries or any of the Guarantors entering into or
performing this Credit Agreement or any of the other Loan Documents or (v) with
respect to the Borrowers and their Subsidiaries and their respective properties
and assets, the violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, release or threatened
release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding, except that the indemnified Person will not be entitled to
indemnification for losses due to its willful misconduct or gross negligence. In
litigation, or the preparation therefor, the Banks, the Arranger and the
Administrative Agent and their affiliates shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the Borrowers agree to pay
promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrowers under this ss.16.2 are unenforceable for
any reason, the Borrowers hereby agree to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law.
16.3. SURVIVAL. The covenants contained in this ss.16 shall survive payment
--------
or satisfaction in full of all other Obligations.
17. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
---------------------------------------------
17.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. Each Borrower
----------------------------------------------------
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to a Borrower or one or more of its
Subsidiaries, in connection with this Credit Agreement or otherwise, by a
Section 20 Subsidiary. Each Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with the
Administrative Agent and each Bank any information delivered to such Section 20
Subsidiary by any Borrower or any of its Subsidiaries, and (b) the
Administrative Agent and each Bank to share with such Section 20 Subsidiary any
information delivered to the Administrative Agent or such Bank by any Borrower
or any of its Subsidiaries pursuant to this Credit Agreement, or in connection
with the decision of such Bank to enter into this Credit Agreement; it being
understood, in each case, that any such Section 20 Subsidiary receiving such
information shall be bound by the confidentiality provisions of this Credit
Agreement. Such authorization shall survive the payment and satisfaction in full
of all of Obligations.
17.2. CONFIDENTIALITY. Each of the Banks and the Administrative Agent
---------------
agrees, on behalf of itself and each of its affiliates, directors, officers,
employees and representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by any
Borrower or any of its Subsidiaries pursuant to this Credit Agreement that is
identified by such Person as being confidential at the time the same is
delivered to the Banks or the Administrative Agent, provided that nothing herein
--------
shall limit the disclosure of any such information (a) after such information
shall have become public other than through a violation of this ss.17, (b) to
the extent required by statute, rule, regulation or judicial process, (c) to
counsel for any of the Banks or the Administrative Agent, (d) to bank examiners
or any other regulatory authority having jurisdiction over any Bank or the
Administrative Agent, or to auditors or accountants, (e) to the Administrative
Agent, any Bank or any Section 20 Subsidiary, (f) in connection with any
litigation to which any one or more of the Banks, the Administrative Agent or
any Section 20 Subsidiary is a party, or in connection with the enforcement of
rights or remedies hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of such Bank as provided in ss.17.1 or (h) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant agrees to be bound by the provisions of ss.19.6.
17.3. PRIOR NOTIFICATION. Unless specifically prohibited by applicable law
------------------
or court order, each of the Banks and the Administrative Agent shall, prior to
disclosure thereof, notify the Borrowers of any request for disclosure of any
such non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) or pursuant to legal
process.
17.4. OTHER. In no event shall any Bank or the Administrative Agent be
-----
obligated or required to return any materials furnished to it or any Section 20
Subsidiary by any Borrower or any of its Subsidiaries. The obligations of each
Bank under this ss.17 shall supersede and replace the obligations of such Bank
under any confidentiality letter in respect of this financing signed and
delivered by such Bank to the Borrowers prior to the date hereof and shall be
binding upon any assignee of, or purchaser of any participation in, any interest
in any of the Loans or Reimbursement Obligations from any Bank.
18. SURVIVAL OF COVENANTS, ETC.
--------------------------
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of any Borrower or any of its Subsidiaries or
any of the Guarantors pursuant hereto shall be deemed to have been relied upon
by the Banks and the Administrative Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Banks of any of the Loans and the issuance, extension or renewal of any Letters
of Credit, as herein contemplated, and shall continue in full force and effect
so long as any Letter of Credit or any amount due under this Credit Agreement or
the Notes or any of the other Loan Documents remains outstanding or any Bank has
any obligation to make any Loans or the Administrative Agent has any obligation
to issue, extend or renew any Letter of Credit, and for such further time as may
be otherwise expressly specified in this Credit Agreement. All statements
contained in any certificate or other paper delivered to any Bank or the
Administrative Agent at any time by or on behalf of any Borrower or any of its
Subsidiaries or any of the Guarantors pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Borrower or such Subsidiary or such Guarantor hereunder.
19. ASSIGNMENT AND PARTICIPATION; ACCESSION.
---------------------------------------
19.1. CONDITIONS TO ASSIGNMENT AND ACCESSION BY BANKS.
-----------------------------------------------
(a) Except as provided herein, each Bank may assign to one or more
Eligible Assignees all or a portion of its interests, rights and
obligations under this Credit Agreement (including all or a portion of its
Commitment Percentage and Commitment and the same portion of the Loans at
the time owing to it, the Notes held by it and its participating interest
in the risk relating to any Letters of Credit); provided that (i) the
Administrative Agent shall have given its prior written consent to such
assignment, and, provided that no Event of Default has occurred or is
continuing, the Borrowers shall have given their prior written consent to
such assignment, all such consents not to be unreasonably withheld, (ii)
each such assignment shall be of a constant, and not a varying, percentage
of all the assigning Bank's rights and obligations under this Credit
Agreement, (iii) each assignment shall be in the minimum amount of
$5,000,000 (or, if less, the assigning Bank's entire Commitment), and (iv)
the parties to such assignment shall execute and deliver to the
Administrative Agent, for recording in the Register (as hereinafter
defined), an Assignment and Acceptance, substantially in the form of
Exhibit F hereto (an "Assignment and Acceptance"), together with any Notes
---------
subject to such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five (5) Business
Days after the execution thereof, (x) the assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and (y) the assigning
Bank shall, to the extent provided in such assignment and upon payment to
the Administrative Agent of the registration fee referred to in ss.19.3, be
released from its obligations under this Credit Agreement.
(b) Except as otherwise provided herein, Eligible Assignees (each such
Eligible Assignee, an "Acceding Bank") may become party to this Credit
Agreement by entering into an Instrument of Accession in substantially the
form of Exhibit G hereto (an "Instrument of Accession") with the Borrowers
---------
and the Administrative Agent and assuming thereunder a Commitment to make
Revolving Credit Loans and participate in the risk relating to
the Letters of Credit pursuant to the terms hereof, and the Total
Commitment shall thereupon be increased by the amount of such Acceding
Bank's Commitment; provided, however, that (a) the Administrative Agent
shall have given its prior written consent to such accession, and (b) in no
event shall the Total Commitment be increased under any one or more of such
Instruments of Accession so as to exceed, in the aggregate, $150,000,000.
On the effective date specified in any Instrument of Accession, Schedule 1
hereto shall be amended by the Administrative Agent (each of the Borrowers
and the Banks hereby consenting to such amendment) to reflect (a) the name,
address, Commitment and Commitment Percentage of such Acceding Bank, (b)
the Total Commitment as increased by such Acceding Bank's Commitment, and
(c) the changes to the other Banks' respective Commitment Percentages and
any changes to the other Banks' respective Commitments (in the event such
Bank is also the Acceding Bank) resulting from such assumption and such
increased Total Commitment.
19.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
-----------------------------------------------------------------
executing and delivering an Assignment and Acceptance or Instrument of
Accession, as the case may be, the parties to the assignment thereunder (or such
Instrument of Accession, as the case may be) confirm to and agree with each
other and the other parties hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned (in the case of an
Assignment and Acceptance) thereby free and clear of any adverse claim, the
assigning Bank makes no representation or warranty, express or implied, and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or the attachment,
perfection or priority of any security interest or mortgage,
(b) the assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrowers
and their Subsidiaries or any of the Guarantors or any other Person
primarily or secondarily liable in respect of any of the Obligations, or
the performance or observance by the Borrowers and their Subsidiaries or
any of the Guarantors or
any other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto;
(c) such assignee or Acceding Bank, as the case may be, confirms that
it has received a copy of this Credit Agreement, together with copies of
the most recent financial statements referred to in ss.7.4 and ss.8.4 and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance or Instrument of Accession, as the case may be;
(d) such assignee or Acceding Bank, as the case may be, will,
independently and without reliance upon the assigning Bank, the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee or Acceding Bank, as the case may be, represents and
warrants that it is an Eligible Assignee;
(f) such assignee or Acceding Bank, as the case may be, appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Credit Agreement and the
other Loan Documents as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) such assignee or Acceding Bank, as the case may be, agrees that it
will perform in accordance with their terms all of the obligations that by
the terms of this Credit Agreement are required to be performed by it as a
Bank;
(h) such assignee or Acceding Bank, as the case may be, represents and
warrants that it is legally authorized to enter into such Assignment and
Acceptance or Instrument of Accession, as the case may be; and
(i) such assignee or Acceding Bank, as the case may be, acknowledges
that it has made arrangements with the assigning Bank satisfactory to such
assignee with respect to its pro rata share of Letter of Credit Fees in
--- ----
respect of outstanding Letters of Credit.
19.3. REGISTER. The Administrative Agent shall maintain a copy of each
--------
Assignment and Acceptance and Instrument of Accession delivered to it and a
register or similar list (the "Register") for the recordation of the names and
addresses of the Banks and the Commitment Percentage of, and principal amount of
the Revolving Credit Loans owing to and Letter of Credit Participations
purchased by, the Banks from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Credit Agreement.
The Register shall be available for inspection by the Borrowers and the Banks at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, the assigning Bank agrees to pay to the Administrative
Agent a registration fee in the sum of $3,500.
19.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance (together
---------
with each Note subject to such assignment) or Instrument of Accession, as the
case may be, executed by the parties thereto the Administrative Agent shall (i)
record the information contained therein in the Register, and (ii) give prompt
notice thereof to the Borrowers and the Banks (other than the assigning Bank).
Within five (5) Business Days after receipt of such notice, the Borrowers, at
their own expense, shall execute and deliver to the Administrative Agent, in
exchange for each surrendered Note, a new Note to the order of such Eligible
Assignee or Acceding Bank, as the case may be, in an amount equal to the amount
assumed by such Eligible Assignee or Acceding Bank, as the case may be, pursuant
to such Assignment and Acceptance or Instrument of Accession, as the case may
be, and, in the event of an assignment, if the assigning Bank has retained some
portion of its obligations hereunder, a new Note to the order of the assigning
Bank in an amount equal to the amount retained by it hereunder. Such new Notes
shall provide that they are replacements for the surrendered Notes, shall be in
an aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such in Assignment and
Acceptance and shall otherwise be substantially the form of the assigned Notes.
Within five (5) days of issuance of any new Notes pursuant to this ss.20.4, the
Borrowers shall deliver an opinion of counsel, addressed to the Banks and the
Administrative Agent, relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding effect thereof, in form
and substance satisfactory to the Banks. The surrendered Notes shall be
cancelled and returned to the Borrowers.
19.5. PARTICIPATIONS. Each Bank may sell participations to one or more
--------------
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
--------
that (i) any such sale or participation shall not affect the rights and duties
of the selling Bank hereunder to the Borrowers and (ii) the only rights granted
to the participant pursuant to such participation arrangements with respect to
waivers, amendments or modifications of the Loan Documents shall be the rights
to approve waivers, amendments or modifications that would reduce the principal
of or the interest rate on any Loans, extend the term or increase the amount of
the Commitment of such Bank as it relates to such participant, reduce the amount
of any commitment fees or Letter of Credit Fees to which such participant is
entitled or extend any regularly scheduled payment date for principal or
interest.
19.6. DISCLOSURE. The Borrowers agree that in addition to disclosures made
----------
in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
--------
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
19.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWERS. If any
-----------------------------------------------------------
assignee Bank or Acceding Bank is an Affiliate of the Borrowers, then any such
assignee Bank or Acceding Bank shall have no right to vote as a Bank hereunder
or under any of the other Loan Documents for purposes of granting consents or
waivers or for purposes of agreeing to amendments or other modifications to any
of the Loan Documents or for purposes of making requests to the Administrative
Agent pursuant to ss.13.1 or ss.13.2, and the determination of the Majority
Banks shall for all purposes of this Credit Agreement and the other Loan
Documents be made without regard to such assignee Bank's or Acceding Bank's
interest in any of the Loans or Reimbursement Obligations. If any Bank sells a
participating interest in any of the Loans or Reimbursement Obligations to a
participant, and such participant is a Borrower or an Affiliate of a Borrower,
then such transferor Bank shall promptly notify the Administrative Agent of the
sale of such participation. A transferor Bank shall have no right to vote as a
Bank hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or modifications to any of the Loan Documents
or for purposes of making requests to the Administrative Agent pursuant to
ss.13.1 or ss.13.2 to the extent that such participation is beneficially owned
by a Borrower or any Affiliate of a Borrower, and the determination of the
Majority Banks shall for all purposes of this Credit Agreement and the other
Loan Documents be made without regard to the interest of such transferor Bank in
the Loans or Reimbursement Obligations to the extent of such participation.
19.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall retain
-----------------------------------
its rights to be indemnified pursuant to ss.16 with respect to any claims or
actions arising prior to the date of such assignment. If any assignee Bank or
Acceding Bank is not incorporated under the laws of the United States of America
or any state thereof, it shall, prior to the date on which any interest or fees
are payable hereunder or under any of the other Loan Documents for its account,
deliver to the Borrowers and the Administrative Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. Anything contained in this ss.19 to the contrary notwithstanding, any
Bank may at any time pledge all or any portion of its interest and rights under
this Credit Agreement (including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under ss.4 of the Federal Reserve Act, 12
U.S.C. ss.341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
19.9. ASSIGNMENT BY BORROWERS. The Borrowers shall not assign or transfer
-----------------------
any of their rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
20. NOTICES, ETC.
------------
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to FCI, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ or at
such other address for notice as FCI shall last have furnished in writing
to the Person giving the notice;
(b) if to FAC, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇, Attention: President, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ or at such
other address for notice as FAC shall last have furnished in writing to the
Person giving the notice;
(c) if to Fleet or the Administrative Agent, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, Managing
Director, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ with a copy to the Fleet National Bank,
Fleet Agency Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, or such other address
for notice as Fleet or the Administrative Agent shall last have furnished
in writing to the Person giving the notice; and
(d) if to any Bank other than Fleet, at such Bank's address set forth
on Schedule 1 hereto, or such other address for notice as such Bank shall
-------- -
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
21. GOVERNING LAW.
-------------
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH BORROWER
BY MAIL AT THE ADDRESS SPECIFIED IN ss.20. EACH BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
22. HEADINGS.
--------
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
23. COUNTERPARTS.
------------
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
24. ENTIRE AGREEMENT, ETC.
---------------------
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
ss.26.
25. WAIVER OF JURY TRIAL.
--------------------
Each Borrower hereby waives its right to a jury trial with respect to any
action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of which rights and
obligations. Except as prohibited by law, each Borrower hereby waives any right
it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. Each Borrower (i)
certifies that no representative, agent or attorney of any Bank or the
Administrative Agent has represented, expressly or otherwise, that such Bank or
the Administrative Agent would
not, in the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that the Administrative Agent and the Banks have been induced to
enter into this Credit Agreement, the other Loan Documents to which it is a
party by, among other things, the waivers and certifications contained herein.
26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
----------------------------------
Any consent or approval required or permitted by this Credit Agreement to
be given by the Banks may be given, and any term of this Credit Agreement, the
other Loan Documents or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by any Borrower or any of its
Subsidiaries of any terms of this Credit Agreement, the other Loan Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Borrowers and
the written consent of the Majority Banks. Notwithstanding the foregoing, the
rate of interest on the Notes (other than interest accruing pursuant to
ss.5.10.2 following the effective date of any waiver by the Majority Banks of
the Default or Event of Default relating thereto) may not be reduced, the amount
of the Commitments of the Banks (other than changes which are contemplated by
ss.19.1(b) may not be increased, and the amount of principal or fees due
hereunder may not be reduced without the written consent of the Borrowers and
the written consent of each Bank affected thereby; the Revolving Credit Loan
Maturity Date, any Interest Payment Date or any other due date for the payment
of interest, fees or principal hereunder may not be postponed without the
written consent of each Bank affected thereby; this ss.26 and the definition of
Majority Banks may not be amended, ss.13.1(q) may not be waived or amended,
neither ss.9.3 nor ss.9.4 may be waived or amended to permit FCI to purchase
shares of its capital stock, the rates set forth in subsection (c) of the
definition of Borrowing Base may not be increased, without the written consent
of all of the Banks; and the amount of the Administrative Fee or any Letter of
Credit Fees payable for the Administrative Agent's account and ss.15 may not be
amended without the written consent of the Administrative Agent. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the
Administrative Agent or any Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrowers shall entitle the Borrowers to other or further notice or demand
in similar or other circumstances.
27. SEVERABILITY.
------------
The provisions of this Credit Agreement are severable and if any one clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.
28. RELEASE OF SECURITY.
-------------------
(a) At such time as a purchaser of a Lot or VOI pursuant to a Base Contract
has paid in full the purchase price or the requisite percentage of the purchase
price for deeding pursuant to a Base Contract and has otherwise fully discharged
all of such purchaser's obligations and responsibilities required to be
discharged as a condition to deeding, the Administrative Agent, acting on behalf
of the Banks, will cause the Collateral Agent (or its duly appointed
attorney-in-fact authorized to act on its behalf), on request and appropriate
certification by the Borrowers or their authorized representative, to execute
and deliver, at the Borrowers' expense, such termination statements or mortgage
releases, as the case may be, and to take such other actions as may be
reasonably necessary to terminate and remove the Collateral Agent's underlying
mortgage lien or security interest in the real estate and in the case where a
purchaser has fully performed the obligations under a Base Contract, such Action
as may be reasonably necessary to terminate and remove the Collateral Agent's
security interest in such Base Contract.
(b) If any of the Borrowers or Guarantors sell or otherwise transfer any
assets in accordance with ss.9.5 hereof, the Administrative Agent, acting on
behalf of the Banks, will cause the Collateral Agent (or its duly appointed
attorney-in-fact authorized to act on its behalf), on the date that all payments
made by the purchaser or transferee are deposited with the Administrative Agent
at the time the receipt and application of the net cash proceeds of such sale in
accordance with ss.9.5.2 hereof, to execute and deliver, at the Borrowers'
expense, such termination statements, mortgage releases or subordination
agreements, as the case may be, and to take such other actions, as may be
reasonably necessary to subordinate or terminate and remove the Collateral
Agent's mortgage or security interest in the assets being sold.
29. SUPERIOR RIGHTS OF BASE CONTRACT PURCHASER.
-------- ------ -- ---- -------- ---------
(a) Notwithstanding any other provision contained in this Agreement, the
rights of any purchaser of any Lot or VOI subject to a Base Contract shall, so
long as such purchaser is not in default thereunder, be superior to those of the
Administrative Agent and the Banks hereunder, and neither the Administrative
Agent nor the Banks shall, so long as such purchaser is not in default
thereunder, interfere with such purchaser's use and enjoyment of the Lot or VOI
subject thereto.
(b) If pursuant to the terms of the Security Documents, the Collateral
Agent, the Administrative Agent or the Banks shall acquire any Lot or VOI
subject to a Base Contract, the Administrative Agent and the Banks hereby
specifically agree to release, cause to be released or convey, as the case may
be, any Lot or VOI from any lien or title of the Collateral Agent, the
Administrative Agent or the Banks upon the request of the party purchaser
(including such party's heirs, successors and assigns) to the Base Contract and
upon completion of all payments and the performance of all the terms and
conditions required to be made and performed by such purchaser under such Base
Contract.
30. TRANSITIONAL ARRANGEMENTS.
-------------------------
30.1. EXISTING CREDIT AGREEMENTS SUPERSEDED. This Agreement shall supersede
-------------------------------------
the Existing Credit Agreements in their entirety, except as provided in this
ss.30. On the Closing Date, the rights and obligations of the parties under the
Existing Credit Agreements and the "Notes" as defined therein shall be subsumed
within and be governed by this Agreement and the Notes; provided, however, that
each of the "Revolving Credit Loans" (as such term is respectively defined in
the Existing Credit Agreements) outstanding under the Existing Credit Agreements
on the Closing Date shall, for purposes of this Agreement, be included as
Revolving Credit Loans and each of the "Letters of Credit" (as such term is
respectively defined in the Existing Credit Agreements) outstanding under the
Existing Credit Agreements on the Closing Date shall be Letters of Credit.
30.2. RETURN AND CANCELLATION OF NOTES. Upon its receipt of the Notes to be
--------------------------------
delivered hereunder on the Closing Date, each Bank will promptly return to the
Borrowers, marked "Exchanged" or "Cancelled," as applicable, the Notes of any
Borrower held by such Bank pursuant to the Existing Credit Agreements, if any.
30.3. INTEREST AND FEES UNDER SUPERSEDED AGREEMENT. All interest and all
---------------------------------------------
commitment and other fees and expenses owing or accruing under or in respect of
the Existing Credit Agreements shall be calculated as of the Closing Date
(prorated in the case of any fractional periods), and shall be paid (or to the
extent any of the same were paid by the Borrowers in advance, refunded) on the
Closing Date and in accordance with the method specified in the Existing Credit
Agreements, as if the Existing Credit Agreements were still in effect.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
FAIRFIELD COMMUNITIES, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
FAIRFIELD ACCEPTANCE
CORPORATION-NEVADA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
FLEET NATIONAL BANK, individually and as
Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group Manager
BANK ONE, N.A.,
individually and as Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BANK ATLANTIC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: S.V.P.
FIRST MASSACHUSETTS BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SOVEREIGN BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director