SIXTH AMENDED AND RESTATED
SUPPLEMENTARY TRUST AGREEMENT
(ARIZONA)
This Sixth Amended and Restated Supplementary Trust Agreement (the
"AGREEMENT") is made and entered into as of July 25, 2000, by and among
FAIRFIELD COMMUNITIES, INC., a Delaware corporation ("FCI"); FAIRFIELD
ACCEPTANCE CORPORATION - NEVADA, a Delaware corporation, successor by merger to
Fairfield Acceptance Corporation and wholly-owned subsidiary of FCI ("FAC");
FAIRFIELD CAPITAL CORPORATION, a Delaware corporation ("FCC"); FAIRFIELD FUNDING
CORPORATION, II, a Delaware corporation ("FFC-II"); FAIRFIELD RECEIVABLES
CORPORATION, a Delaware corporation ("FRC"); FIRST AMERICAN TITLE INSURANCE
COMPANY, a California corporation ("TRUSTEE"); FLEET NATIONAL BANK (f/k/a
BankBoston, N.A. and The First National Bank of Boston), a national banking
association ("FLEET"), as administrative agent for the lenders under the
Consolidated Loan Agreement (as hereinafter defined); CAPITAL MARKETS ASSURANCE
CORPORATION, a New York stock insurance company, as collateral agent ("TRIPLE-A
COLLATERAL AGENT"), pursuant to the Triple-A Credit Agreement (as hereinafter
defined); and FLEET, as collateral agent, ("FLEET COLLATERAL AGENT") pursuant to
the Collateral Agency Agreement (as hereinafter defined). This Agreement is made
in lieu of and supersedes that certain Fifth Amended and Restated Supplementary
Trust Agreement dated as of July 31, 1998, which agreement is hereby canceled.
W I T N E S S E T H:
WHEREAS, FCI is engaged in the development of a certain resort and
recreational project known as Fairfield Continental Country Club Estates,
Coconino County, Arizona; Fairfield Sedona, Yavapai County, Arizona, and certain
other properties not subject hereto; and has sold and continues to sell
Intervals (as hereinafter defined) and Lots (as hereinafter defined) to
purchasers by way of contract agreements and installment notes ("SALES
CONTRACTS") whereby the purchaser is permitted to finance the purchase price for
said Intervals over a period of time; and
WHEREAS, Fleet and the other Consolidated Lenders are the primary lenders
to FCI and FAC responsible for financing the development of FCI projects and
FAC's purchase of Sales Contracts, and in connection therewith (i) FCI has
pledged and granted a security interest in all Sales Contracts originated by FCI
and (ii) FAC has pledged and granted a security interest in all Sales Contracts
purchased by FAC to the Fleet Collateral Agent for the benefit of the
Consolidated Lenders and the Loan Agent, to secure the repayment of the
borrowings of FCI and FAC under the Consolidated Loan Agreement; and
WHEREAS, FCI and FAC have entered into arrangements for the sale by FCI to
FAC of certain Sales Contracts and other receivables pursuant to the Operating
Agreement; and
WHEREAS, FAC has sold certain Sales Contracts to Fairfield Capital
Corporation, a Delaware corporation ("FCC"), pursuant to an Amended and Restated
Receivables Purchase Agreement dated as of July 31, 1996 (the "TRIPLE-A PURCHASE
AGREEMENT"), which Sales
Contracts have in turn been pledged by FCC to the Triple-A Collateral Agent for
the benefit of itself, Triple-A One Funding Corporation, a Delaware corporation
("TRIPLE-A") and Fleet National Bank (f/k/a BankBoston, N.A. and The First
National Bank of Boston), as L/C Bank ("TRIPLE-A L/C BANK"), pursuant to the
Triple-A Credit Agreement; and
WHEREAS, FAC has sold and anticipates from time to time selling additional
Sales Contracts to Fairfield Receivables Corporation, a Delaware corporation
("FRC"), pursuant to an Amended and Restated Receivables Purchase Agreement
dated as of July 25, 2000 (the "EAGLEFUNDING PURCHASE AGREEMENT") and FRC has
financed, and anticipates from time to time in the future financing, its
purchase of Sales Contracts through borrowings from EagleFunding Capital
Corporation ("EAGLEFUNDING"), Falcon Asset Securitization Corporation ("FALCON")
and other lenders under the EagleFunding Credit Agreement, and in connection
therewith FRC has and will from time to time pledge and grant a security
interest in all Sales Contracts so purchased by FRC to the Fleet Collateral
Agent for the benefit of the EagleFunding Lenders, to secure the repayment of
the borrowings of FRC under the EagleFunding Credit Agreement;
WHEREAS, FAC has sold and anticipates from time to time selling additional
Sales Contracts to Fairfield Funding Corporation, II a Delaware corporation
("FFC-II"), pursuant to a Receivables Purchase Agreement dated as of July 31,
1998 (the "FFC-II PURCHASE AGREEMENT") and FFC-II has financed its purchase of
Sales Contracts through proceeds from the sale of certain Vacation Ownership
Interest Pay-Through Notes (the "FFC-II NOTES") issued pursuant to the 1998-A
Pledge Agreement (as hereinafter defined), and in connection therewith FFC-II
has and will from time to time pledge and grant a security interest in all Sales
Contracts so purchased by FFC-II to the Fleet Collateral Agent for the benefit
of the 1998-A Trustee to secure the repayment of the FFC-II Notes pursuant to
the 1998-A Pledge Agreement; and
WHEREAS, Fleet, in all capacities under its various lending arrangements
with FCI and FAC, has previously released its lien upon and its interest in the
Sales Contracts, and the underlying Intervals, pledged to the Triple-A
Collateral Agent; and
WHEREAS, Fleet, the Loan Agent, the Consolidated Lenders, the EagleFunding
Lenders and the 1998-A Trustee have agreed to allow all Sales Contracts, and the
underlying Intervals, at any time owned by FCI, FAC, FRC or FFC-II to be pledged
to the Fleet Collateral Agent pursuant to the terms and conditions of the
Collateral Agency Agreement; and
WHEREAS, the parties hereto desire to establish a title clearing mechanism
for the purpose of providing a convenient method of holding and conveying title
to the Properties, releasing encumbrances thereon and protecting the interests
of the various parties hereto as their interest may appear;
NOW THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement the following words and
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terms shall have the following meanings unless the context clearly indicates
otherwise:
1998-A Pledge Agreement means that certain Pledge and Servicing Agreement
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dated as of July 31, 1998 by and among FAC, as Servicer, FFC-II, as Issuer,
1998-A Trustee, as Trustee, and Fleet Collateral Agent, as Collateral Agent,
relating to the issuance by FFC-II of certain Interval Ownership contract
Pay-Through Notes, Series 1998-A.
1998-A Trustee means First Security Bank, National Association as Trustee
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under the 1998-A Pledge Agreement.
1998-A Trust Intervals means those Intervals that give rise to certain
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Sales Contracts pledged, assigned and transferred by FFC-II to the 1998-A
Trustee pursuant to the 1998-A Pledge Agreement. The 1998-A Trust Intervals are
listed on Schedule E attached to this Agreement and made a part hereof, as
amended from time to time.
Collateral Agency Agreement means that certain Collateral Agency Agreement
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dated as of January 15, 1998, as amended by that First Amendment to Collateral
Agency Agreement dated as of July 31, 1998 and that Second Amendment to
Collateral Agency Agreement dated as of July 25, 2000, by and among the
Consolidated Lenders, Loan Agent, EagleFunding, Falcon, FRS, Fleet Collateral
Agent, FCI, FAC, FRC, and certain other subsidiaries of FCI, and others, as
further amended and in effect from time to time.
Consolidated Lenders means, collectively, Fleet and the other lending
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institutions that are or may become parties to the Consolidated Loan Agreement.
Consolidated Loan Agreement means that certain Consolidated, Amended and
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Restated Revolving Credit Agreement dated as of July 25, 2000 by and among FCI
and FAC, as Borrowers, the Consolidated Lenders, the Loan Agent and others, as
amended and in effect from time to time.
EagleFunding means EagleFunding Capital Corporation, a Delaware
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corporation.
EagleFunding Credit Agreement means that certain Amended and Restated
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Credit Agreement dated as of July 25, 2000 by and among FAC, as servicer, FCI,
FRC, as Borrower, the Fleet Collateral Agent, EagleFunding, Falcon and others,
relating to loans to be made by the EagleFunding Lenders to FRC.
EagleFunding Intervals means those Intervals which give rise to certain
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Sales Contracts pledged, assigned and transferred by FRC to the Fleet Collateral
Agent pursuant to the EagleFunding Credit Agreement. The EagleFunding Intervals
are listed on Schedule D attached to this Agreement and made a part hereof, as
amended from time to time.
EagleFunding Lenders means the "Lenders" as such term is defined in the
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EagleFunding Credit Agreement.
FAC means, as appropriate, Fairfield Acceptance Corporation - Nevada, a
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Delaware corporation, successor by merger to Fairfield Acceptance Corporation,
or its successors or assigns, individually or in its capacity as servicer under
the Triple-A Credit Agreement, the EagleFunding Credit Agreement, or the 1998-A
Pledge Agreement.
Falcon means Falcon Asset Securitization Corporation.
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FCC means Fairfield Capital Corporation, a Delaware corporation.
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FCI means Fairfield Communities, Inc., a Delaware corporation. ---
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FFC-II means Fairfield Funding Corporation, II, a Delaware corporation.
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Fleet means Fleet National Bank (f/k/a BankBoston, N.A. and The First
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National Bank of Boston), a national banking association.
Fleet Collateral Agent means Fleet, as collateral agent under the
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Collateral Agency Agreement for the benefit of (i) the Consolidated Lenders and
the Loan Agent, (ii) the EagleFunding Lenders, and (iii) the 1998-A Trustee.
FRC means Fairfield Receivables Corporation, a Delaware corporation.
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FRS means FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
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Intervals means those timeshare intervals created or to be created in the
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Properties conveyed to Trustee in connection herewith, as more fully set forth
in Schedule A attached hereto and made a part hereof, as amended from time to
time, and all such properties subsequently added to Schedule A and conveyed to
Trustee in the continuance of this Agreement. Intervals are created in the
aforementioned properties pursuant to the filing of regime documents creating an
underlying ownership interest that may be the subject of a Sales Contract, which
ownership interest shall consist of a fixed week or undivided interest in fee
simple in a lodging unit or group of lodging units at a Project. The term
Intervals shall also be deemed to include Undivided Ownership Interests.
Loan Agent means Fleet in its capacity as administrative agent for the
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Consolidated Lenders under the Consolidated Loan Agreement.
Loan Agreement means, as appropriate, (i) the Consolidated Loan Agreement,
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(ii) the Triple-A Credit Agreement, (iii) the EagleFunding Credit Agreement or
(iv) the 1998-A Pledge Agreement.
Lots means all the subdivided lots created or to be created in the
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Properties conveyed to Trustee in connection herewith, as more fully set forth
on Schedule A attached hereto and made a part hereof, as amended from time to
time, and all properties subsequently added to Schedule A and conveyed to
Trustee in the continuance of this Agreement.
Mortgage means a deed of trust, deed to secure debt, vendor's lien,
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mortgage or any other instrument typically considered to be a mortgage.
Operating Agreement means the Sixth Amended and Restated Operating
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Agreement dated as of July 25, 2000, among FCI, FAC and others, as amended and
in effect from time to time.
POA means timeshare associations organized in connection with the
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establishment of timesharing developments at a Project and other property owners
associations that may have been organized in connection with the platting or
subdividing of vacant lots at a Project. POA shall include, without limitation,
Continental Country Club and Estates ("CCCE"), a non-profit Arizona corporation
and Red Rock Vacation Owners Association, Inc.
Project means any of the various recreational/retirement communities
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developed by FCI.
Properties means those Lots and Intervals Conveyed to Trustee located on
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the properties listed in Schedule A attached hereto, as amended from time to
time.
Purchasers means those individuals, partnerships, corporations or other
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entities who have entered into a Sales Contract with FCI for the purchase of an
Interval or Lot at a Project.
Remarketing Agreement means (i) that certain Amended and Restated
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Remarketing Agreement dated as of July 31, 1996 by and among FCI, FCC and
Triple-A Collateral Agent, (ii) that certain Amended and Restated Remarketing
Agreement dated as of July 25, 2000 by and among FCI, FRC and the Fleet
Collateral Agent, or (iii) that certain Remarketing Agreement dated as of July
31, 1998 by and among FCI, FFC-II and the Fleet Collateral Agent.
Sales Contracts means those contract agreements and installment notes,
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including promissory notes secured by Mortgages, heretofore entered into and
hereinafter to be entered into between FCI and various Purchasers for the
purchase of an Interval or Lot and for which the total purchase price has not
been paid by the Purchaser.
Secured Party means the Triple-A Collateral Agent, the Fleet Collateral
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Agent, or the 1998-A Trustee, as applicable.
Triple-A means Triple-A One Funding Corporation, a Delaware corporation.
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Triple-A Collateral Agent means Capital Markets Assurance Corporation, a
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New York Stock insurance company, as collateral agent for the benefit of itself,
Triple-A and Triple-A L/C Bank, pursuant to the Triple-A Credit Agreement.
Triple-A Credit Agreement means that certain Amended and Restated Credit
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Agreement dated as of July 31, 1996, by and among FAC, as servicer, FCI, FCC, as
borrower, Triple-A Collateral Agent, Triple-A and Triple-A L/C Bank, relating to
loans to be made by Triple-A to FCC.
Triple-A Intervals means those Intervals that give rise to certain Sales
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Contracts pledged, assigned and transferred by FCC to the Triple-A Collateral
Agent pursuant to the Triple-A Credit Agreement. The Triple-A Intervals are
listed on Schedule C attached to this Agreement and made a part hereof, as
amended from time to time.
Triple-A L/C Bank means Fleet, as L/C Bank under the Triple-A Credit
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Agreement.
Undivided Ownership Interests means those undivided ownership interests
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created or to be created in the Properties conveyed to Trustee in connection
herewith, as more fully set forth
in Schedule A attached hereto and made a part hereof, as amended from time to
time, and all such properties subsequently added to Schedule A and conveyed to
Trustee in continuance of this Agreement. An Undivided Ownership Interest is
that form of real property ownership in a lodging unit or units committed to
undivided ownership consisting of an undivided interest in fee simple absolute
as a tenant in common with all other owners of an undivided interest in such
unit or units, whereby an owner is entitled to occupy the same on a reservation
basis and where the owner's fractional interest is shown on the owner's Sales
Contract and deed.
2. Transfer of Properties to Trustee. FCI, by deed or deeds, has
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transferred or may in the future transfer fee simple title to the Properties
identified on Schedule A to Trustee, subject to any existing executed and
unrecorded Mortgages from Purchasers. Trustee agrees to acquire and hold legal
title to the Properties conveyed to it in accordance with the terms, provisions
and conditions of this Agreement and for the benefit of FCI, FAC, FCC, FRC,
FFC-II and the related Secured Party, as their interests may appear. Except for
those Properties in which the beneficial interest has been transferred to FCC,
FRC or FFC-II, respectively, FCI shall hold the beneficial interest in all the
Properties conveyed to Trustee hereunder, including without limitation those
Properties underlying Sales Contracts. At such time as Sales Contracts are
transferred to FAC pursuant to the Operating Agreement, the beneficial interest
in the Properties underlying those Sales Contracts transferred to FAC shall pass
to FAC with the transference of said Sales Contracts. In the event FCI elects to
repurchase Sales Contracts previously transferred to FAC, the beneficial
interest in the Properties will be re-transferred to FCI by FAC when those Sales
Contracts are transferred from FAC back to FCI, all in accordance with the
Operating Agreement. Although Trustee shall be advised of the transference of
the Sales Contracts and the beneficial interest in the Properties underlying the
Sales Contracts, Trustee shall not be held liable by any party hereto for acting
in good faith on the written instructions of FCI or FAC even though there may be
a mistake as to the proper owner of the beneficial interest underlying the Sales
Contracts. The projects described on Schedule A but not conveyed to Trustee are
under development by FCI and may be conveyed to Trustee upon their completion
and platting or, with respect to condominium units, being subjected to a
horizontal property regime.
3. Title Ownership and Responsibility of Trustee.
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(a) Trustee acknowledges that notwithstanding the fact that it will be the
record owner of the fee simple title to the Properties conveyed to it pursuant
to this Agreement, its ownership is subject in all respects to the provisions of
this Agreement and the terms and conditions of the Loan Agreements. Trustee
further acknowledges that it holds fee simple title to the Properties conveyed
to it pursuant to this Agreement for the benefit of the other parties hereto and
shall have no equitable rights in those Properties nor any right to the income
or profits to be derived therefrom.
(b) Trustee's function and responsibility during the existence of this
Agreement will be to (i) hold record title to the Properties conveyed to it
pursuant to this Agreement for the benefit of FCI, FAC, FCC, FRC, FFC-II and the
Secured Parties, (ii) convey title as directed upon the written request of FCI
or FAC, as applicable, as the beneficial owner at such time, and, if applicable,
as servicer under the Triple-A Credit Agreement, the EagleFunding Credit
Agreement or the 1998-A Pledge Agreement, except as provided by Section 12
hereof; (iii) where requested by FCI or a Purchaser, as the case may be, cause
to be issued a title
insurance policy to the Purchaser (provided all title requirements are properly
met and the appropriate premium has been paid); (iv) on all of the Properties in
which a purchase money Mortgage is retained, cause to be executed and filed of
record a release of such Mortgage upon the written request of FCI or FAC, as the
case may be, pursuant to Section 5(a) hereof, except as provided by Section 12
hereof; and (v) execute such instruments as required to be executed pursuant to
Sections 11 and 13 hereof. Trustee may authorize any third party, including any
employee of FAC or FCI, by power of attorney, to execute any instrument required
by this Section 3(b), provided however, that any such power of attorney shall be
revoked by Trustee if so directed by a Secured Party in accordance with Section
12 hereof.
(c) Except to the extent expressly permitted herein, Trustee shall have no
discretionary authority whatsoever to exercise any control over the Properties.
(d) Except as set forth in Section 3(b) Trustee agrees it will do nothing
that will in anyway impair, encumber or otherwise adversely affect in any manner
the title to the Properties.
(e) Trustee shall have no duties and responsibilities other than those set
forth herein, and it shall act only at the direction of the parties hereto and
solely in accordance with the terms hereof. FCI, FAC and each Secured Party
hereby expressly do not delegate any discretionary duties or responsibilities to
Trustee as are often times associated with a trustee acting pursuant to the
terms and provisions of a trust agreement.
4. Responsibility of FAC or FCI Relating to Conveyances by Trustee.
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(a) FCI shall cause any underlying Mortgage to be released (other than any
Mortgage hereinafter granted by FCI or FAC to the Fleet Collateral Agent or to
Fleet acting as agent for the lenders of the "Senior Indebtedness" as that term
is defined in the Consolidated Loan Agreement) and shall be responsible for
paying release prices to the proper party as necessary to secure the release of
the Properties to be conveyed as provided herein.
(b) FCI or FAC, as the case may be, shall prepare all such deeds, releases,
assignments and other documents as may be necessary to carry out the purpose of
this Agreement and to cause revenue or transfer tax stamps to be properly
affixed as necessary to satisfy recording requirements, and shall cause all
recording fees to be paid and all necessary instruments to be recorded in the
appropriate real estate records. FCI and FAC agree that each will maintain all
records necessary to identify beneficial ownership of the Properties.
(c) FCI or FAC, as the case may be, shall be responsible for advising
Trustee and the related Secured Party of all assignments of the Sales Contracts
and underlying beneficial interests and all conveyances of the Properties, which
such assignments may only be made in accordance with the terms of this
Agreement, by furnishing copies of all such assignments and conveyances to
Trustee and to such Secured Party. Such assignments and conveyances shall take
the form of a (i) "Document of Sale and Assignment of Beneficial Interest" and
(ii) in the case of Properties beneficially owned by FCC, FRC or FFC-II,
"Document of Pledge and Assignment of Beneficial Interest" evidencing the grant
of security interests to the applicable Secured Parties, which documents shall
identify those Sales Contracts and the underlying Properties giving rise to such
Sales Contracts to be assigned or conveyed. Trustee shall be
entitled to rely upon such "Documents of Sale and Assignment of Beneficial
Interest" and "Documents of Pledge and Assignment of Beneficial Interest" in
determining beneficial ownership of and security interests in the Properties. To
the extent that Sales Contracts and the beneficial interest in the underlying
Properties (i) have not otherwise been transferred to FCC, FRC or FFC-II by
executed documents of assignment, or (ii) (A) have otherwise been re-acquired by
FCI or FAC from FCC, FRC or FFC-II, as the case may be in accordance with the
terms of the Triple-A Credit Agreement, EagleFunding Credit Agreement, or the
1998-A Pledge Agreement, and (B) have not otherwise become subject to a claim
pursuant to the terms of a Remarketing Agreement that would obligate FCI to
transfer, or remit a portion of the proceeds with respect to, a Sales Contract
in favor of FCC, FRC or FFC-II, as applicable, the Fleet Collateral Agent shall,
in accordance with the terms of the Collateral Agency Agreement, be deemed to
have a security interest in such Properties for the benefit of the Consolidated
Lenders under the Consolidated Loan Agreement.
(d) [Reserved.]
(e) FCC has provided to Trustee on the Closing Date, the Effective
Restatement Date (as such terms are defined in the Triple-A Credit Agreement)
and the Contract Grant Date (as defined in the Triple-A Credit Agreement) that
occurred prior to the date hereof, and FCC will provide to Trustee on Contract
Grant Dates (as defined in the Triple-A Credit Agreement), if any, occurring
after the date hereof, copies of releases and assignments evidencing (i) Fleet's
or the Fleet Collateral Agent's, as the case may be, release of any lien upon
and its interest in the Triple-A Intervals and the related Sales Contracts, (ii)
the transfer of all beneficial interest in the Triple-A Intervals and the
related Sales Contracts from FAC to FCC pursuant to the Triple-A Purchase
Agreement and (iii) the pledge and assignment of the Triple-A Intervals and the
related Sales Contracts from FCC to the Triple-A Collateral Agent pursuant to
the Triple-A Credit Agreement. Upon receipt by the Trustee of any such future
releases and assignments, Schedule C shall automatically be deemed to be updated
to include the Triple-A Intervals covered by such releases and assignments, and
Trustee shall be entitled to rely upon such releases and assignments in
determining beneficial ownership of the Triple-A Intervals covered thereby.
FAC, as servicer under the Triple-A Credit Agreement, or the Triple-A
Collateral Agent, shall provide Trustee with copies of any future assignments
from Triple-A Collateral Agent to FCC, FAC or FCI, as applicable, of beneficial
interests in the Triple-A Intervals, which assignments shall be in the form of a
certificate and shall identify the Triple-A Intervals and related Sales
Contracts assigned thereby. To be effective, any such assignment submitted to
Trustee by FAC shall be accompanied by an approval, in writing, of the Triple-A
Collateral Agent. Upon receipt by the Trustee of any such certificates, (i)
Schedule C shall automatically be deemed to be updated to exclude the Triple-A
Intervals covered by such certificates, (ii) Trustee shall be entitled to rely
upon such certificates in determining beneficial ownership of the Triple-A
Intervals covered thereby and (iii) the beneficial ownership of the Triple-A
Intervals covered by such certificates shall be presumed to be in FCI or FAC, as
applicable.
(f) FRC has provided to Trustee on the Effective Date (as such term is
defined in the EagleFunding Credit Agreement), and FRC will provide to Trustee
on Contract Grant Dates (as defined in the EagleFunding Credit Agreement), if
any, occurring after the Effective Date, copies
of assignments evidencing (i) the transfer of all beneficial interest in the
EagleFunding Intervals and the related Sales Contracts from FAC to FRC pursuant
to the EagleFunding Purchase Agreement and (ii) the pledge and assignment of the
EagleFunding Intervals and the related Sales Contracts from FRC to the Fleet
Collateral Agent pursuant to the EagleFunding Credit Agreement. Upon receipt by
the Trustee of any such future assignments, Schedule D shall automatically be
deemed to be updated to include the EagleFunding Intervals covered by such
assignments, and Trustee shall be entitled to rely upon such assignments in
determining beneficial ownership of the EagleFunding Intervals covered thereby.
FAC, as servicer under the EagleFunding Credit Agreement, or the Fleet
Collateral Agent, shall provide Trustee with copies of any future assignments
from the Fleet Collateral Agent to FRC, FAC or FCI, as applicable, of beneficial
interests in the EagleFunding Intervals, which assignments shall be in the form
of a certificate and shall identify the EagleFunding Intervals and related Sales
Contracts assigned thereby. Upon receipt by the Trustee of any such
certificates, (i) Schedule D shall automatically be deemed to be updated to
exclude the EagleFunding Intervals covered by such certificates, (ii) Trustee
shall be entitled to rely upon such certificates in determining beneficial
ownership of the EagleFunding Intervals covered thereby and (iii) the beneficial
ownership of the EagleFunding Intervals covered by such certificates shall be
presumed to be in FCI or FAC, as applicable.
(g) FFC-II has provided to Trustee on the Closing Date (as such term is
defined in the 1998-A Pledge Agreement), and FFC-II will provide to Trustee on
Collateral Substitution Dates (as defined in the 1998-A Pledge Agreement), if
any, occurring after the Closing Date, copies of assignments evidencing (i) the
transfer of all beneficial interest in the 1998-A Trust Intervals and the
related Sales Contracts from FAC to FFC-II pursuant to the FFC-II Purchase
Agreement and (ii) the pledge and assignment of the 1998-A Trust Intervals and
the related Sales Contracts from FFC-II to the Fleet Collateral Agent pursuant
to the 1998-A Pledge Agreement. Upon receipt by the Trustee of any such future
assignments, Schedule E shall automatically be deemed to be updated to include
the 1998-A Trust Intervals covered by such assignments, and Trustee shall be
entitled to rely upon such assignments in determining beneficial ownership of
the 1998-A Trust Intervals covered thereby.
FAC, as servicer under the 1998-A Pledge Agreement, or the Fleet Collateral
Agent, shall provide Trustee with copies of any future assignments from the
Fleet Collateral Agent to FFC-II, FAC or FCI, as applicable, of beneficial
interests in the 1998-A Trust Intervals, which assignments shall be in the form
of a certificate and shall identify the 1998-A Trust Intervals and related Sales
Contracts assigned thereby. Any such assignment submitted to Nominee by FAC
shall be accompanied by an approval, in writing, of the 1998-A Trustee. Upon
receipt by the Trustee of any such certificates, (i) Schedule E shall
automatically be deemed to be updated to exclude the 1998-A Trust Intervals
covered by such certificates, (ii) Trustee shall be entitled to rely upon such
certificates in determining beneficial ownership of the 1998-A Trust Intervals
covered thereby and (iii) the beneficial ownership of the 1998-A Trust Intervals
covered by such certificates shall be presumed to be in FCI or FAC, as
applicable.
5. Conveyance and Release of Properties.
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(a) At such time as a Purchaser has paid in full the purchase price or the
requisite percentage of the purchase price for deeding pursuant to a Sales
Contract, and/or has otherwise fully discharged all of such Purchaser's
obligations and responsibilities required to be discharged as a condition to
deeding a Property held by Trustee hereunder, including the payment of all POA
dues and assessments, FCI or FAC, as applicable, as the beneficial owner of the
security interest in such Property at such time or as servicer for a Secured
Party which is the beneficial owner of the security interest in such Property at
such time, shall direct Trustee in writing to immediately cause such Property to
be deeded to the Purchaser and the Trustee shall deliver and record a properly
executed Warranty Deed or Special Warranty Deed (with documentary stamps and
recording fees to be paid by FCI or FAC, as the case may be) conveying to the
Purchaser fee simple title to the Interval or Lot comprising such Property and
covered by such Sales Contract. In those instances in which the Purchaser has
granted to Trustee, FCI or the related Secured Party a purchase money Mortgage
to secure the remainder of the purchase price owed, Trustee, subject to the
provisions of Section 12 hereof, shall release such Mortgage at such time as the
holder of the beneficial ownership thereof shall direct in writing. Within a
reasonable time following the delivery of the Warranty Deed or Special Warranty
Deed to Purchaser, a title insurance policy shall also be delivered (provided
that Purchaser has paid for such in connection with his purchase of the Property
involved). Said title insurance policy shall, therefore, in some instances
reflect an exception for the purchase money Mortgage in favor of Trustee, FCI or
the related Secured Party, as the case may be.
(b) All payments made by Purchasers pursuant to the terms of their Sales
Contract shall be made directly to FCI, FAC, FCC, FRC or FFC-II, as the case may
be, for the benefit of the relevant Secured Party, if any, pursuant to the terms
of the related Loan Agreement. No payments are to be received by the Trustee.
6. Default by Purchaser. Where legal title to Properties have been conveyed
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by Trustee with a purchase money Mortgage retained or where Purchaser has
recorded his/her Sales Contract and Purchaser defaults and otherwise refuses to
reconvey legal or equitable title to Trustee, Trustee shall assign the purchase
money Mortgage or recorded Sales Contract to FCI or FAC (as applicable, as the
beneficial owner of such purchase money Mortgage or recorded Sales Contract, or,
if applicable, as servicer under the Triple-A Credit Agreement, the EagleFunding
Credit Agreement or the 1998-A Pledge Agreement), for foreclosure or other
appropriate action. Subject to the provisions of Section 12 hereof, Trustee may
rely on the written request of FCI or FAC, as applicable, in regard to the
assignment of said purchase money Mortgages or recorded Sales Contracts.
7. POA Voting Rights. Voting rights in any POA which may inure to the
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benefit of Trustee as legal titleholder shall be assigned by Trustee to FCI or,
at the option of FCI, FCI may require, as and when necessary, an irrevocable
proxy be delivered unto it by Trustee so that FCI may continue to exercise all
such voting rights.
8. Applicability of Agreement of Trust. FCI and Trustee previously entered
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into an Agreement of Trust dated June 22, 1981 which is known as Trust No. 6928.
FCI and Trustee agree that Trust No. 6928 is hereby cancelled and this Sixth
Amended and Restated
Supplementary Trust Agreement shall govern the understanding of the parties. FCI
and Trustee shall execute a memorandum of agreement evidencing the cancellation
of Trust No. 6928 and the execution of this Agreement.
9. Additional Properties. From time to time FCI or FAC may convey to
----------------------
Trustee additional properties, or such acreage as FCI contemplates that it will
plat or subdivide, to be held by Trustee as Properties subject to the terms and
conditions of this Agreement, and all parties recognize that this Agreement
shall be binding upon such additional Properties. Trustee shall have the right
to review all proposed conveyances to assure compliance with the provisions of
this section and the terms of this Agreement. Schedule A shall be amended from
time to time as necessary to reflect any additional Properties or acreage
conveyed to Trustee. In addition, FCI may from time to time modify Schedule A to
include thereon general descriptions of lot or condominium projects then under
development that, upon their completion, FCI intends, but shall have no
obligation, to convey to Trustee to be held under this Agreement. Modifications
of Schedule A in accordance with the preceding sentence may be made at FCI's
discretion and copies of Schedule A as modified from time to time shall be
provided Trustee and other parties to this Agreement.
10. Indemnification. FCI and FAC jointly and severally agree to indemnify
---------------
and hold harmless Trustee from any and all claims, demands, actions or causes of
action in any way relating to or arising out of the record ownership of the
Properties conveyed to Trustee or out of the good faith discharge by Trustee of
any of the terms and conditions of this Agreement, including all costs and
expenses of any nature that Trustee may incur. Each Secured Party shall
indemnify and hold harmless Trustee from any and all claims, demands, actions or
causes of action, including all costs and expenses of any nature that Trustee
may incur in connection therewith, which relate to or arise out of any act or
failure to act of Trustee, which action or inaction was in good faith pursuant
to and in reliance upon written instructions from such Secured Party to Trustee.
With respect to actions related to particular Properties, the parties hereto
expressly acknowledge that Trustee shall be entitled to rely upon the written
instructions of FCI, FAC or the Secured Party that has a first position lien on
Sales Contracts arising from such Properties as set forth herein and in the
Schedules hereto, and Trustee shall have no liability for any action taken in
good faith in such reliance. FCI or FAC, as the case may be, shall reimburse
Trustee for all costs, fees and expenses incurred by it relating to its serving
as Trustee under the terms and provisions of this Agreement. It is the intent of
the parties to insure that Trustee shall incur no liability whatsoever in
connection with the good faith performance of its functions under this
Agreement, and in connection therewith, all parties hereto release and waive any
claims they may have against Trustee which may result from the performance in
good faith by Trustee of its responsibilities under this Agreement.
11. Mortgages, Platting and Reconveyance of the Properties. Subject to the
------------------------------------------------------
provisions of Section 12 hereof, upon written request of FCI, Trustee shall,
except as to such Properties as FCI may have (i) previously assigned or
transferred beneficial interest or (ii) previously pledged or granted a security
interest in to a Secured Party, reconvey all or any portion of the Properties to
FCI, subject to the provisions of the Consolidated Loan Agreement, for the
purpose of granting construction Mortgages or for any other purpose for which
FCI may require legal title. Trustee agrees to execute Mortgages covering such
Properties (other than those excluded under (i) and (ii) above), as requested in
writing by FCI, to any Secured Party or
such third parties as FCI may direct. Trustee further agrees to execute any and
all documents, including plats, covenants and restrictions, as may be necessary
to add and/or revise existing or new subdivisions with respect to the
Properties.
12. Default Under Loan Agreements. In the event of default of FCI, FAC,
-------------------------------
FCC, FRC, or FFC-II under any of the Loan Agreements, the related Secured Party
shall notify Trustee in writing of such event at such time as notice of such
default is given to FCI, FAC, FCC, FRC or FFC-II, as the case may be, which
writing shall identify those Properties giving rise to Sales Contracts relating
to the defaulted Loan Agreement and may further instruct Trustee that, with
respect to those Properties, Trustee shall act only upon the written
instructions of the related Secured Party and any prior lienholder with respect
to such Properties and the related Sales Contracts, whereupon Trustee shall only
take action with respect to the Properties identified in the notice,
notwithstanding instructions of FCI, FAC, FCC, FRC or FFC-II to the contrary, as
directed by the related Secured Party and any prior lienholder.
The receipt of any notice of default shall relate only to the specific Loan
Agreement identified therein. As to all other Loan Agreements, Trustee shall
continue to act upon the written request of FCI, FAC, the Loan Agent, the
Triple-A Collateral Agent, the Fleet Collateral Agent or the 1998-A Trustee, as
the case may be, as to the Properties relating thereto.
Any notice of default given Trustee pursuant to this section shall be
mailed by first class mail, postage prepaid, return receipt requested, to the
following address:
First American Title Insurance Company,
a California corporation
000 X. Xxxxxxx, X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
In no event shall Trustee have any responsibility for preparation of
documents referred to in Section 4(b) of this Agreement. As to Properties
relating to any defaulted Loan Agreement, said documents shall be prepared by
the related Bank or its designee.
13. Provisions Related to Pooling/Pledge/Sale Agreements.
----------------------------------------------------
(a) [Reserved]
(b) The parties hereto acknowledge that Trustee holds title to the Triple-A
Intervals for the benefit of (i) the respective Purchasers of those rights and
interests and, (ii) the Triple-A Collateral Agent, subject only to the terms and
conditions of the related Sales Contracts and the Triple-A Credit Agreement,
respectively. The Trustee shall not transfer, pledge or assign any of the
Triple-A Intervals except as expressly provided herein. The provisions of this
section 13(b), however, shall not apply to any Triple-A Intervals that may be
granted the Triple-A Collateral Agent by this Agreement and the Triple-A Credit
Agreement on Contract Grant Dates (as defined in the Triple-A Credit Agreement),
if any, occurring after the date hereof, until releases and assignments covering
such Intervals have been delivered to the Trustee in accordance with the
requirements of Section 4(e) hereof.
(c) The parties hereto acknowledge that Trustee holds title to the
EagleFunding Intervals for the benefit of (i) the respective Purchasers of those
rights and interests, and (ii) the Fleet Collateral Agent, subject only to the
terms and conditions of the related Sales Contracts and the EagleFunding Credit
Agreement, respectively. The Trustee shall not transfer, pledge or assign any of
the EagleFunding Intervals except as expressly provided herein. The provisions
of this section 13(c), however, shall not apply to any EagleFunding Intervals
that may be granted the Fleet Collateral Agent by this Agreement and the
EagleFunding Credit Agreement on Contract Grant Dates (as defined in the
EagleFunding Credit Agreement), if any, occurring after the Effective Date (as
defined in the EagleFunding Credit Agreement), until assignments covering such
Intervals have been delivered to the Trustee in accordance with the requirements
of Section 4(f) hereof.
(d) The parties hereto acknowledge that Trustee holds title to the 1998-A
Trust Undivided Ownership Interests and the 1998-A Trust Intervals for the
benefit of (i) the respective Purchasers of those rights and interests, (ii) the
1998-A Trustee and (iii) the Fleet Collateral Agent, subject only to the terms
and conditions of the related Sales Contracts and the 1998-A Pledge Agreement,
respectively. The Trustee shall not transfer, pledge or assign any of the 1998-A
Trust Intervals except as expressly provided herein. The provisions of this
section 13(d), however, shall not apply to any 1998-A Trust Intervals that may
be granted the 1998-A Trustee and the Fleet Collateral Agent by this Agreement
and the 1998-A Pledge Agreement on Collateral Substitution Dates (as defined in
the 1998-A Pledge Agreement), if any, occurring after the Closing Date (as
defined in the 1998-A Pledge Agreement), until assignments covering such
Intervals have been delivered to the Trustee in accordance with the requirements
of Section 4(g) hereof.
14. Miscellaneous.
-------------
(a) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, their successors and assigns. This Agreement constitutes the
entire understanding and agreement between the parties with respect to the
subject matter hereof and may not be changed or modified orally but only by
instrument in writing signed by the party against which enforcement of such
change or modification is sought.
(b) This Agreement may be amended from time to time for the purpose of
adding additional parties and revising the terms herein, provided, however, that
except as specifically provided in Section 15 below, no such amendment shall be
effective until all parties hereto have agreed in writing to such revisions.
(c) This instrument shall be construed in accordance with and governed by
the laws of the State of Arizona. In the event any clause or provision of this
Agreement is declared to be invalid, the invalidity of any such clause or
provision shall not affect the remaining clauses and provisions of this
Agreement which shall remain in full force and effect.
(d) No party may make an assignment of its interest in this Agreement
without obtaining the written consent of the other parties hereto; provided,
however, that to the extent permitted by the Consolidated Loan Agreement, the
Triple-A Credit Agreement, the EagleFunding Credit Agreement, the 1998-A Pledge
Agreement, or the Collateral Agency
Agreement, respectively, the Loan Agent, the Triple-A Collateral Agent, the
Fleet Collateral Agent and the 1998-A Trustee may be replaced or succeeded as
parties to this Agreement without the consent of the other parties hereto. The
parties further agree to execute additional documents as may be necessary to
carry out the purposes of this Agreement and to protect the interests of all
parties hereto.
(e) The parties acknowledge that the indebtedness secured by the Sales
Contracts formerly pledged by Fairfield Funding Corporation ("FFC") to First
Commercial Trust Company, N.A. (now known as Regions Trust Company, N.A.)
("REGIONS") as trustee under the Pledge and Servicing Agreement dated as of
September 28, 1993 by and among FAC, FFC, Regions and others, has been satisfied
and the pledged Sales Contracts released by Regions. In light of such
satisfaction and release, references contained in prior versions of this
Agreement to FFC, Regions (as 1993-A Trustee), and the aforementioned pledge
agreement (as the 1993-A Pledge Agreement) have been removed from this amended
and restated Agreement.
15. Amendment/Termination.
---------------------
(a) This Agreement may be amended solely for the purpose of identifying and
segregating a separate pool of Sales Contracts, and the Intervals and Lots
relating thereto, which are to be sold or pledged pursuant to a pooling, sale or
pledge agreement, by an instrument in writing signed by FCI, FAC, Trustee, Loan
Agent and Fleet Collateral Agent. Any amendment undertaken pursuant to this
Section 15(a) shall not relate to or affect the Intervals and Lots listed on
Schedules C, D and E attached hereto, nor shall it in any way impair or amend
the rights of the Triple-A Collateral Agent, the Fleet Collateral Agent or the
1998-A Trustee under this Agreement. An executed copy of any Amendment
undertaken pursuant to this Section 15(a) shall be provided to all parties to
this Agreement.
(b) Schedule A to the Agreement may be modified solely by FCI as provided
in Section 9 hereof to include on Schedule A general descriptions of uncompleted
projects that FCI intends, but has no obligation, to convey to Trustee on
completion of development.
(c) This Agreement shall be terminable by any party hereto by giving sixty
(60) days written notice to all other parties of its desire to so terminate. The
election by any party other than the Loan Agent, Fleet Collateral Agent, FCI or
FAC to terminate will not terminate this Agreement with respect to the remaining
parties, provided the remaining parties shall cause to be substituted a
successor party in place of the terminating party. Upon termination, title to
the Properties shall be conveyed by Trustee in accordance with the written
instructions of FCI, FAC, FCC, FRC or FFC-II, as the beneficial owner or
assignee or pledgee of the beneficial ownership of such Properties at such time;
except, however, if Trustee has been notified by any Secured Party in writing
that a default has occurred under a Loan Agreement, as described more fully in
Section 12 of this Agreement, Trustee shall convey title to the Properties
securing the defaulted Loan Agreement in accordance with the written
instructions of the related Secured Party and first lienholder with respect
thereto. In any event, this Agreement shall terminate, if not sooner terminated,
on January 1, 2012.
16. Notice. Notice under this Agreement shall be given to the parties at
------
the following addresses:
First American Title Insurance Company
--------------------------------------
Xxxx Xxxxxxxx or Xxxx Xxxxxx
First American Title Insurance Company,
a California corporation
403 X. Xxxxxxx, P. O. Xxx 0000
Xxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
Facsimile: (000) 000-0000
Fairfield Communities, Inc.
---------------------------
Counsel:
Xxxxxx X. Xxxxxx J. Xxxxx Xxxxxxxxxx
Fairfield Communities, Inc. Xxxxx Xxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000 000 Xxxx Xxxxxxx Xxxxxx
(000) 000-0000 Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000 (000) 000-0000
Facsimile: (000) 000-0000
Fairfield Acceptance Corporation - Nevada,
Fairfield Capital Corporation,
Fairfield Receivables Corporation or Fairfield Funding Corporation, II
----------------------------------------------------------------------
Counsel:
Xxxxx Xxxxxx J. Xxxxx Xxxxxxxxxx
Fairfield Acceptance Corporation - Xxxxx Xxxx LLP
Nevada Suite 1100
0000 Xxxx Xxxxxx Xxx., Xxxxx 000 000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000 (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Fleet National Bank, as Loan Agent and Fleet Collateral Agent
-------------------------------------------------------------
Counsel:
Xxxx X. XxXxxx Xxxxxx Xxxxxxxx
Fleet National Bank Xxxxxxx Xxxx LLP
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X. 000 Xxxxxxx Xxxxxx
Xxxxx 000 Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000 (000) 000-0000
(000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
Capital Markets Assurance Corporation
-------------------------------------
Xxxxxxx Xxxxxxxx Counsel:
MBIA Insurance Corporation Xxxx X. Xxxxxxxxxx, Esq.
000 Xxxx Xxxxxx Xxxxxx & Xxxxxx
Xxxxxx, XX 00000 0000 Xxx Xxxxxx, XX
(000) 000-0000 Xxxxxxxxxx, X.X. 00000
Facsimile: (914) ____________ (000) 000-0000
Facsimile: (000) 000-0000
Notice to each of the aforementioned parties shall be given by Trustee if
either FCI or FAC should default in the performance of any of their respective
obligations under this Agreement.
17. Execution. This Agreement may be executed in one or more counterparts,
---------
all of which shall constitute one and the same instrument.
[SIGNATURES FOLLOW ON IMMEDIATELY SUCCEEDING PAGE]
DATED as of the date first above written.
FAIRFIELD COMMUNITIES, INC.
/s/ Xxxxx X. Xxxxxxxx BY: /s/ Xxxxx X. Xxxxxx
------------------------- ----------------------------
Witness TITLE: Treasurer
FAIRFIELD ACCEPTANCE CORPORATION
- NEVADA
/s/ Xxxxx X. Xxxxxxxx BY: /s/ Xxxxx X. Xxxxxx
------------------------- ----------------------------
Witness TITLE: President
FAIRFIELD CAPITAL CORPORATION
/s/ Xxxxx X. Xxxxxxxx BY: /s/ Xxxxx X. Xxxxxx
------------------------- ----------------------------
Witness TITLE: President
FAIRFIELD RECEIVABLES CORPORATION
/s/ Xxxxx X. Xxxxxxxx BY: /s/ Xxxxx X. Xxxxxx
------------------------- ----------------------------
Witness TITLE: President
FAIRFIELD FUNDING CORPORATION, II
/s/ Xxxxx X. Xxxxxxxx BY: /s/ Xxxxx X. Xxxxxx
------------------------- ----------------------------
Witness TITLE: President
FIRST AMERICAN TITLE INSURANCE,
A CALIFORNIA CORPORATION
BY: /s/ Xxxx Xxxxxxxx
------------------------- ----------------------------
Witness TITLE: Assistant Secretary
FLEET NATIONAL BANK,
as agent and lender under the
Consolidated Loan Agreement
/s/ Xxxx Xxxxxx BY: /s/ Xxxxx X. Xxxxxxx
------------------------- ----------------------------
Witness TITLE: Group Manager
FLEET NATIONAL BANK,
as Fleet Collateral Agent
/s/ Xxxx Xxxxxx BY: /s/ Xxxxx X. Xxxxxxx
------------------------- ----------------------------
Witness TITLE: Group Manager
CAPITAL MARKETS ASSURANCE
CORPORATION,
as Triple-A Collateral Agent
/s/ Ani Mensuroglu BY: /s/ Xxxxxxx Xxxxxxxx
------------------------- ----------------------------
Witness TITLE: Vice President
