THIRD AMENDED AND RESTATED
SUPPLEMENTARY TRUST AGREEMENT
(ARIZONA)
This Third Amended and Restated Supplementary Trust
Agreement is made and entered into as of March 28, 1995, by
and among Fairfield Communities, Inc., a Delaware
corporation (referred to herein as "FCI"); Fairfield
Acceptance Corporation, a Delaware corporation and
wholly-owned subsidiary of FCI (referred to herein as
"FAC"); First American Title Insurance Company, a California
corporation (referred to herein as "Trustee"); The First
National Bank of Boston, Boston, Massachusetts (hereinafter
defined as "FNBB"), as agent and lender to FCI pursuant to
the FCI Boston Loan Agreement (as hereinafter defined);
FNBB, as agent and lender to FAC pursuant to the FAC Boston
Loan Agreement (as hereinafter defined); First Commercial
Trust Company, N.A., Little Rock, Arkansas, as trustee
(referred to herein as "1993-A Trustee), pursuant to the
1993-A Pledge Agreement (as hereinafter defined); and
Capital Markets Assurance Corporation, a New York Stock
insurance company, as collateral agent (referred to herein
as "1995 Collateral Agent"), pursuant to the 1995 Credit
Agreement (as hereinafter defined). This Agreement is made
in lieu of and supersedes that certain Second Amended and
Restated Supplementary Trust Agreement dated as of September
1, 1992, as amended, by and among certain of the parties
hereto, 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,
and certain other properties not subject hereto; and has
sold and continues to sell Intervals (as hereinafter
defined) to purchasers by way of contract agreement 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, FNBB, both individually and as agent pursuant
to the FCI Boston Loan Agreement and the FAC Boston Loan
Agreement, is the primary lender responsible for financing
the development of FCI projects and in connection therewith
has obtained a security interest in certain Sales Contracts
as security for the repayment of the borrowings of FCI under
the FCI Boston Loan Agreement and of FAC under the FAC
Boston Loan Agreement, and FNBB, both individually and as
agent, has further taken underlying encumbrances against
certain of the Properties (as hereinafter defined) and
certain other properties not subject to this Agreement at
the various FCI projects as security for repayment of the
borrowings of FCI under the FCI Boston Loan Agreement and of
FAC under the FAC Boston Loan Agreement, which underlying
encumbrances on the Properties have provisions for release
for the protection of the purchasers of Intervals, said
releases to be given under conditions as set forth therein;
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 a Third Amended and Restated
Operating Agreement dated as of December 9, 1994, as
amended; and
WHEREAS, FAC has sold certain Sales Contracts to
Fairfield Funding Corporation, a Delaware corporation
(referred to herein as "FFC"), which Sales Contracts have in
turn been pledged by FFC to the 1993-A Trustee pursuant to
the 1993-A Pledge Agreement; and
WHEREAS, FAC has sold certain Sales Contracts to
Fairfield Capital Corporation, a Delaware corporation
(referred to herein as "FCC"), pursuant to a Receivables
Purchase Agreement, dated as of March 28, 1995 (the "1995
Purchase Agreement") which Sales Contracts have in turn been
pledged by FCC to the 1995 Collateral Agent for the benefit
of itself and Triple-A One Funding Corporation, a Delaware
corporation (referred to herein as "Triple-A"), pursuant to
the 1995 Credit Agreement; and
WHEREAS, FNBB, both individually and as agent, has
released its lien upon and its interest in (i) the Sales
Contracts and the underlying Intervals pledged to the 1993-A
Trustee and (ii) the Sales Contracts and the underlying
Intervals pledged to the 1995 Collateral Agent; and
WHEREAS, the parties hereto are desirous of
establishing 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 interest 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
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the following words and terms shall have the following
meanings unless the context clearly indicates otherwise:
1995 Collateral Agent means Capital Markets Assurance
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Corporation, a New York Stock insurance company, as
collateral agent for the benefit of itself and Triple-A
pursuant to the 1995 Credit Agreement.
1995 Credit Agreement means that certain Credit
-----------------------
Agreement dated as of March 28, 1995, by and among FAC, as
servicer, FCI, FCC, as borrower, 1995 Collateral Agent, as
collateral agent, and Triple-A, relating to loans to be made
by Triple-A to FCC.
FAC means, as appropriate, Fairfield Acceptance
---
Corporation, individually or in its capacity as servicer
under the 1993-A Pledge Agreement or the 1995 Credit
Agreement.
FAC Boston Loan Agreement means the Third Amended and
--------------------------
Restated Revolving Credit Agreement dated September 28,
1993, as amended, by and between FAC and FNBB, as agent and
lender.
FCC means Fairfield Capital Corporation, a Delaware
---
corporation.
FCI means Fairfield Communities, Inc., a Delaware
---
corporation.
FCI Boston Loan Agreement means the Amended and
-----------------------------
Restated Revolving Credit Agreement dated September 28,
1993, as amended, by and between FCI, Fairfield Myrtle
Beach, Inc., and FNBB and its past, present and future
participants.
FFC means Fairfield Funding Corporation, a Delaware
---
corporation.
FNBB means, as appropriate, The First National Bank of
----
Boston as lender and agent for itself and such other lenders
who may hereinafter become parties to the FCI Boston Loan
Agreement, and The First National Bank of Boston, as lender
and agent for itself and such other lenders who may
hereinafter become parties to the FAC Boston Loan Agreement.
Intervals means those timeshare intervals created or to
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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 conveyed to
Trustee in the continuance of this Agreement. Intervals are
created in the Properties pursuant to the filing of regime
documents creating an underlying ownership interest which is
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.
1995 Intervals means those Intervals which give rise to
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certain Sales Contracts pledged, assigned and transferred to
the 1995 Trustee pursuant to the 1995 Pledge Agreement. The
1995 Trust Intervals are listed on Schedule D attached to
this Agreement and made a part hereof, as amended from time
to time.
Loan Agreement means, as appropriate, (i) the FCI
---------------
Boston Loan Agreement, (ii) the FAC Boston Loan Agreement
(iii) the 1993-A Pledge Agreement, or (iv) the 1995 Credit
Agreement.
Mortgage means a deed of trust, deed to secure debt,
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vendor's lien, mortgage or any other instrument typically
considered to be a mortgage.
Operating Agreement means the Third Amended and
--------------------
Restated Operating Agreement dated as of December 9, 1992,
between FCI and FAC, as amended.
1993-A Pledge Agreement means that certain Pledge and
------------------------
Servicing Agreement dated as of September 28, 1993, by and
among FAC, as Servicer, FFC as Issuer, 1993-A Trustee, as
Trustee, and Texas Commerce Trust, as Standby Servicer,
relating to the issuance by FFC of certain Interval
Ownership and Lot Contract Pay-Through Notes, Series 1993-A.
POA means timeshare associations organized in
---
connection with the establishment of timesharing
developments at the Project and other property owners
associations, including but not limited to Continental
Country Club and Estates ("CCCE"), a non-profit Arizona
corporation, which may have been organized in connection
with the platting or subdividing of vacant lots at the
Project.
Project means the recreational/retirement community
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commonly referred to as Fairfield Continental Country Club
Estates, located in Flagstaff, Arizona, being developed by
Fairfield.
Properties means those Intervals located on the
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properties listed in Schedule A attached hereto, as amended
from time to time. The Mortgages on the Properties in favor
of FNBB, both individually and as agent pursuant to the FCI
Boston Loan Agreement and the FAC Boston Loan Agreement, are
listed in Schedule B attached hereto, as amended from time
to time.
Purchasers means those individuals, partnerships,
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corporations or other entities who have entered into a Sales
Contract with FCI for the purchase of an Interval at the
Project.
Sales Contracts means those contract agreements and
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installment notes, 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 and for which the total purchase
price has not been paid by the Purchaser.
Secured Party means FNBB, as agent and lender under the
-------------
FCI Boston Loan Agreement and the FAC Boston Loan Agreement,
the 1993-A Trustee or the 1995 Collateral Agent, as
applicable.
Triple-A means Triple-A One Funding Corporation, a
--------
Delaware corporation.
1993-A Trustee means First Commercial Trust Company,
---------------
N.A., Little Rock, Arkansas, as trustee under the 1993-A
Pledge Agreement.
1993-A Trust Intervals means those Intervals which give
----------------------
rise to certain Sales Contracts pledged, assigned and
transferred to the 1993-A Trustee pursuant to the 1993-A
Pledge Agreement. The 1993-A Trust Intervals are listed on
Schedule C attached to this Agreement and made a part
hereof, as amended from time to time.
2. Transfer of Properties to Trustee. FCI, by deed
----------------------------------
or deeds, has transferred fee simple title to the Properties
identified on Schedule A to Trustee, subject to those
Mortgages identified on Schedule B and further subject to
existing executed and unrecorded Mortgages from Purchasers.
Trustee agrees to acquire and hold legal title to said
Properties in accordance with the terms, provisions and
conditions of this Agreement and for the benefit of FCI, FAC
and the related Secured Party, as their interests may
appear. Except for those Properties in which the beneficial
interest has been pledged to the 1993-A Trustee or the 1995
Collateral Agent, the beneficial interest in all the
Properties underlying Sales Contracts conveyed to Trustee
pursuant to this Agreement shall be in FCI, and at such
time as the 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.
3. Title Ownership and Responsibility of Trustee.
---------------------------------------------
(a) Trustee acknowledges that notwithstanding the fact
that it will be the record owner of the fee simple title to
the Properties, its ownership is subject in all respects to
the provisions of this Agreement, those Mortgages identified
on Schedule B hereto, and the terms and conditions of the
Loan Agreements. Trustee further acknowledges that it holds
fee simple title to the Properties for the benefit of the
other parties hereto and shall have no equitable rights in
the 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 for the benefit of the other parties
hereto, FFC and FCC (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 1993-A Pledge Agreement or the 1995
Credit Agreement, except as provided by Section 12 hereof;
(iii) contemporaneously with the conveyance of any of the
Properties that qualify for deeding in accordance with the
terms of the Sales Contracts, pursuant to authorization from
the related Secured Party as set forth herein, cause with
respect to such Properties such Secured Party's underlying
Mortgage, if any, to be released of record; (iv) 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); (v) 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(b) hereof, except as provided
by Section 12 hereof; and (vi) 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 FCI or FAC, by power of attorney, to execute
any instrument required by this Section 3(b).
(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
that it will do nothing which 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
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Conveyances by Trustee.
----------------------
(a) FCI shall cause any underlying Mortgage (other
than FNBB's Mortgages) to be released 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, by furnishing copies of all such assignments and
conveyances to Trustee and to such Secured Party. Such
assignments shall take the form of a "Document of Sale and
Assignment of Beneficial Interest" or a "Document of Pledge
and Assignment of Beneficial Interest", which 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.
(d) FFC has provided Trustee with a copy of an
assignment pledging and assigning all beneficial interest in
the 1993-A Trust Intervals and the related Sales Contracts
(previously held by FAC and conveyed to FFC) to the 1993-A
Trustee. FAC, as servicer under the 1993-A Pledge
Agreement, or the 1993-A Trustee shall provide Trustee with
copies of any future assignments of beneficial interest in
the 1993-A Trust Intervals, which assignments shall be in
the form of a certificate and shall identify the 1993-A
Trust Intervals and related Sales Contracts assigned
thereby. Any such assignment submitted to Trustee by FAC
shall be accompanied by an approval, in writing, of the
1993-A Trustee. Trustee shall be entitled to rely upon such
certificates in determining beneficial ownership of the
1993-A Trust Intervals.
(e) FCC has provided Trustee with copies of
assignments evidencing (i) the transfer of all beneficial
interest in the 1995 Intervals and the related Sales
Contracts from FAC to FCC pursuant to the 1995 Purchase
Agreement and (ii) the pledge and assignment of such assets
and interests from FCC to the 1995 Collateral Agent pursuant
to the 1995 Credit Agreement. FAC, as servicer under the
1995 Credit Agreement, or the 1995 Collateral Agent shall
provide Trustee with copies of any future assignments of
beneficial interest in the 1995 Intervals, which assignments
shall be in the form of a certificate and shall identify the
1995 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
1995 Collateral Agent. Trustee shall be entitled to rely
upon such certificates in determining beneficial ownership
of the 1995 Intervals.
5. Conveyance and Release of Properties.
------------------------------------
(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, 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 to be released the related Secured Party's underlying
Mortgage(s) with respect to such Properties, unless
otherwise directed in writing by the related Secured
Party(s) pursuant to Section 12 hereof, and forthwith 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
fee simple title to the Interval covered by such Sales
Contract to the Purchaser. 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 Properties 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) Unless directed otherwise by a Secured Party
pursuant to Section 12 hereof (or otherwise), each Secured
Party hereby authorizes and appoints Trustee as its agent to
release such Secured Party's underlying Mortgages (including
purchase money Mortgages assigned to it) against any
Properties upon receipt by Trustee of a written request for
deeding by FCI or FAC, together with a certification by an
authorized officer of FCI or FAC stating that all the
conditions to the release from the Mortgage or Mortgages
encumbering such Properties have been satisfied. Each
Secured Party further agrees to execute any additional
documents as may be necessary to be filed of record in order
to verify Trustee's authority to release such Secured
Party's Mortgages as provided herein.
(c) All payments made by Purchasers pursuant to the
terms of their Sales Contract shall be made directly to FCI,
FAC, FFC or FCC, 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 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
1993-A Pledge Agreement or the 1995 Credit 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 benefit of Trustee as legal titleholder
shall be assigned by Trustee to FCI or, at the option of
FCI, FCI may require 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 have previously entered into an Agreement of Trust
dated June 22, 1981 which is known as Trust No. 6928. This
Third Amended and Restated Supplementary Trust Agreement is
intended to supplement Trust No. 6928, provided, however,
that to the extent that any of the provisions of Trust No.
6928 are inconsistent with any of the provisions contained
herein, the provisions of this Third Amended and Restated
Supplementary Trust Agreement shall control.
9. Additional Properties. From time to time FCI or
---------------------
FAC may convey to Trustee additional Properties 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.
Schedule "A" shall be amended from time to time as necessary
to reflect any additional Properties.
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 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 which has a first position lien on 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
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Properties. Subject to the provisions of Section 12 hereof,
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upon written request of FCI, Trustee shall, except as to
such Properties as FCI may have previously assigned or
transferred beneficial interest, reconvey all or any portion
of the Properties to FCI, subject to the Mortgages listed in
Exhibit B, for the purpose of granting construction
Mortgages or for any other purpose for which FCI may require
legal title; and further, Trustee agrees it will execute
such Mortgages covering such Properties, 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
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default of FCI, FAC, FFC or FCC 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, FFC, or FCC 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, FFC or FCC
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, FNBB, individually and
as agent, the 1993-A Trustee and the 1995 Collateral Agent,
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
▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
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.
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Notwithstanding anything herein to the contrary and
specifically notwithstanding the provisions of Section 3(a)
hereof, the interest in Properties related to the 1993-A
Trust Intervals granted the 1993-A Trustee by this Agreement
and the 1993-A Pledge Agreement are hereby deemed superior
and senior to any and all interests granted pursuant to the
Mortgages listed in Schedule B hereto. The parties hereto
acknowledge that Trustee holds title to the 1993-A Trust
Intervals for the benefit of the purchasers of the 1993-A
Trust Intervals and the 1993-A Trustee, subject only to the
terms and conditions of the related Sales Contracts and the
1993-A Pledge Agreement, respectively. The Trustee shall
not transfer, pledge or assign the 1993-A Trust Intervals
except as expressly provided herein.
Notwithstanding anything herein to the contrary and
specifically notwithstanding the provisions of Section 3(a)
hereof, the interest in Properties related to the 1995
Intervals granted the 1995 Collateral Agent by this
Agreement and the 1995 Credit Agreement are hereby deemed
superior and senior to any and all interests granted
pursuant to the Mortgages listed in Schedule B hereto. The
parties hereto acknowledge that Trustee holds title to the
1995 Intervals for the benefit of the purchasers of the 1995
Intervals and the 1995 Collateral Agent, subject only to the
terms and conditions of the related Sales Contracts and the
1995 Credit Agreement, respectively. The Trustee shall not
transfer, pledge or assign the 1995 Intervals except as
expressly provided herein.
14. Miscellaneous.
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(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 paragraph 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 1993-A Pledge Agreement or the 1995 Credit
Agreement, respectively, the 1993-A Trustee and the 1995
Collateral Agent 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 protect the interests of all parties
hereto.
15. Amendment/Termination.
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(a) This Agreement may be amended solely for the
purpose of identifying and segregating a separate pool of
Sales Contracts and the Intervals relating thereto, which
are to be sold or pledged pursuant to a pooling, sale, loan
or pledge agreement, by an instrument in writing signed by
FCI, FAC, Trustee and FNBB. Any amendment undertaken
pursuant to this paragraph 15(a) shall not relate to or
affect Intervals listed on Schedules C and D attached
hereto, nor shall it in any way impair or amend the rights
of the 1993-A Trustee or the 1995 Collateral Agent under
this Agreement. An executed copy of any Amendment
undertaken pursuant to this paragraph 15(a) shall be
provided to all parties to this Agreement.
(b) 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 FNBB, 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, the 1993-A Trustee or the 1995
Collateral Agent, as the case may be, 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, 20 ].
16. Notice. Notice under this Agreement shall be
-------
given to the parties at the following addresses:
First American Title Insurance Company
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
First American Title Insurance Company, a California
corporation
403 ▇. ▇▇▇▇▇▇▇, P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Fairfield Communities, Inc. and
Fairfield Acceptance Corporation
--------------------------------
Counsel:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fairfield Communities, Inc. Rose Law Firm, a
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Professional Association
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The First National Bank of Boston
---------------------------------
Counsel:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The First National Bank of Boston ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (617) 951-8535
(▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
First Commercial Trust Company, N.A.
------------------------------------
Counsel:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, III
First Commercial Trust Company, ▇▇▇▇ Law Firm
National Association ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
First Commercial Building, (▇▇▇) ▇▇▇-▇▇▇▇
7th Floor Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Capital Markets Assurance Corporation
--------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Counsel:
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Skip ▇▇▇▇▇
Attn: Head of Exposure Sidley & Austin
Management One First National Plaza
(▇▇▇) ▇▇▇-▇▇▇▇ 45th Floor
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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.
[THIS SPACE LEFT BLANK INTENTIONALLY]
DATED as of the date first above written.
FAIRFIELD COMMUNITIES, INC.
/s/▇▇▇ ▇. ▇▇▇▇▇▇▇ BY: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ ____________________________
Witness TITLE: Senior Vice President
FAIRFIELD ACCEPTANCE CORPORATION
/s/▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ ____________________________
Witness TITLE:President
FIRST AMERICAN TITLE INSURANCE,
A CALIFORNIA CORPORATION
/s/▇▇▇▇ ▇▇▇▇▇ BY: /s/▇▇▇▇ ▇▇▇▇▇▇
_________________________ ____________________________
Witness TITLE: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender under the
FCI Boston Loan Agreement
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ ____________________________
Witness TITLE: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender under the
FAC Boston Loan Agreement
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ ____________________________
Witness TITLE: Vice President
FIRST COMMERCIAL TRUST COMPANY, N.A.,
as 1993-A Trustee
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇ DeHau
_________________________ ____________________________
Witness TITLE: Corporate Trust Manager
CAPITAL MARKETS ASSURANCE
CORPORATION,
as 1995 Collateral Agent
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------- ------------------------------
Witness TITLE: Vice President
LIST OF SCHEDULES
-----------------
Schedule A: Properties
Schedule B: Mortgages
Schedule C: 1993-A Trust Intervals
Schedule D: 1995 Intervals
SCHEDULE A
PROPERTIES
TIMESHARE REGIMES AT
FAIRFIELD CONTINENTAL COUNTRY CLUB ESTATES,
COCONINO COUNTY, ARIZONA
The property hereinafter described is hereby made
subject to the Second Amended and Restated Supplementary
Trust Agreement dated September 1, 1992.
NOTE: The following described property was conveyed by
Warranty Deed dated June 22, 1981 and recorded in Docket
837, Pages 952-970, from Fairfield Sunrise Village, Inc. to
First American Title Insurance Company of Arizona as Trustee
pursuant to a Trust Agreement No. 6928 dated June 22, 1981.
TANGLEWOOD TOWNHOUSES
---------------------
That property on which is located Tanglewood Townhouses
as described in a Declaration of Individual and/or Interval
Ownership recorded in Docket 862 at Page 312 and any
Amendments and Supplements thereto all filed of record in
the Office of the County Recorder of Coconino County,
Arizona.
The above described property has located upon it Units
1 through 41 of Tanglewood Townhouses as set forth on a Plat
of Record at Case 3 at Map 207 in the Office of the County
Recorder of Coconino County, Arizona.
There is hereby excepted from and out of the property
set forth above the following described Unit Weeks:
▇▇▇▇ ▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇
------ ------ ------
Week(s) 10, 21, 26 Week(s) 7, 22, 28, Week(s) 8, 14,
27, 38, 40 29, 30, 33, 34, 37, 29,30, 31, 32,
38, 47 37, 40, 44
▇▇▇▇ ▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇
------ ------ ------
Week(s) 23, 24, 25, Week(s) 27, 28, 29, Week(s) 4, 5, 9,
29, 30 30, 32, 33, 34 21, 25, 26, 37,
38, 39, 47
▇▇▇▇ ▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇
------ ------ ------
Week(s) 21, 26, 34, Week(s) 8, 9, 29, Week(s) 33, 40
36, 40, 47, 48 34, 52
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇
------- ------- -------
Week(s) 5, 26, 27, Week(s) 5, 17, 28, Week(s) 25, 27,
30, 35, 36, 37, 38, 40, 41 37, 39, 41
39, 41
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇
------- ------- --------
Week(s) 11, 24, 25, Week(s) 5, 19, 20 Week(s) 22, 23,
30, 37, 42 31, 33, 34, 35, 36, 26, 27, 29, 30,
43, 44 31, 37, 38, 52
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇
------- -------
Week(s) 3, 10, 21, Week(s) 10, 21, 26,
23, 24, 25, 27, 29, 27, 31, 32, 33, 34,
30, 33, 41 38
TANGLEWOOD TOWNHOUSES II
------------------------
That property on which is located Tanglewood Townhouses
II as described in a First Supplemental Declaration of
Individual and/or Interval Ownership recorded in Docket 957
at Page 960-964 thereto all filed in the Office of the
County Recorder of Coconino County, Arizona.
The above described property has located upon it Units
42 through 111 of Tanglewood Townhouses II as set forth on a
Plat of Record at ▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ and 250B, in the
Office of the County Recorder of Coconino County, Arizona.
THERE IS HEREBY EXCEPTED FROM AND OUT OF THE PROPERTY
SET FORTH ABOVE THE FOLLOWING DESCRIBED UNITS WEEKS:
▇▇▇▇ ▇▇: ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇: Weeks 4, 15, 19 and 47
UNIT 48: Weeks 10, 19, 20, 34, 35, 36, 41, 42, 43, 49
and 50
UNIT 49: Weeks 9, 10, 18, 27, 43 and 49
UNIT 60: Weeks 29, 30, 36, and 37
RIDGEWOOD TOWNHOUSES
--------------------
That Property on which is located Ridgewood
Townhouses, according to the plat of record in the office of
the County Recorder of Coconino County, Arizona, recorded in
Case 4, Map 84-84A and Declaration of Covenants, Conditions
and Restrictions and Interval Ownership recorded May 19,
1986, in Docket 1088, Page 672, as amended.
RIDGEWOOD TOWNHOUSES PHASE II
-----------------------------
That property on which is located Ridgewood Townhouses
Phase II, according to the plat recorded on April 11, 1989
at Case 5, Maps 6 and 6A, in the Office of the County
Recorder of Coconino County, Arizona, and that certain First
Supplemental Declaration of Individual and/or Interval
Ownership recorded on April 11, 1989 in Docket 1272, Pages
469-474, in the Office of the County Recorder of Coconino
County, Arizona.
SCHEDULE B
MORTGAGES
PERMITTED ENCUMBRANCES
----------------------
TIMESHARE
---------
Timeshare Regime Encumbrance
---------------- -----------
Fairfield Continental Country
Club Estates, Coconino County,
Arizona
Tanglewood Townhouses, Deed of Trust in favor of
Phase I The First National Bank of
Except those unit weeks Boston, recorded in Docket
excepted in the preceding 878, Page 214, in the
Schedule A Public Record of Coconino
County, Arizona
Deed of Trust in favor of
The First National Bank of
Boston, recorded in
Docket 917, Page 395, in
the Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The Arizona Bank,recorded
in Docket 1008, Page 649,
in the Public Record of
Coconino County, Arizona
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1502, Page
600, in the Public
Record of Coconino
County, Arizona.
Fairfield Acceptance
Corporation:
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1508, Page
529 in the Public
Record of Coconino,
Arizona.
Tanglewood Townhouses, Deed of Trust in favor of
Phase II The First National Bank of
Except those unit weeks Boston, recorded in Docket
excepted in the preceding 878, Page 214, in the
Schedule A Public Record of Coconino
County, Arizona
Deed of Trustin favor of
The Arizona Bank recorded
in Docket 837, Page 353,
in the Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The First National Bank of
Boston, recorded in
Docket 917, Page 395, in
the Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The First National Bank of
Boston, recorded in Docket
1008, Page 649, in the
Public ecord of Coconino
County, Arizona
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1502, Page
600, in the Public
Record of Coconino
County, Arizona.
Fairfield Acceptance
Corporation:
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1508, Page
529 in the Public
Record of Coconino,
Arizona.
Timeshare Regime Encumbrance
---------------- ------------
Ridgewood Townhouses Deed of Trust in favor of
The First National Bank of
Boston, recorded in Docket
878, Page 214, in the
Public Record of Coconino
County, Arizona
Deed of Trust in favor of
The Arizona Bank recorded
in Docket 837, Page 353,
in the Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The First National Bank of
Boston, recorded in
Docket 917, Page 395, in
the Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The First National Bank of
Boston, recorded in Docket
1008, Page 649, in the
Public Record of Coconino
County, Arizona
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1502, Page
600, in the Public
Record of Coconino
County, Arizona.
Fairfield Acceptance
Corporation:
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1508, Page
529 in the Public
Record of Coconino,
Arizona.
Ridgewood Townhouses Deed of Trust in favor of
Phase II The First National Bank of
Boston, recorded in Docket
878, Page 214, in the
Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The Arizona Bank recorded
in Docket 837, Page 353,
in the Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The First National Bank of
Boston, recorded in
Docket 917, Page 395, in
the Public Record of
Coconino County, Arizona
Deed of Trust in favor of
The First National Bank of
Boston, recorded in Docket
1008, Page 649, in the
Public Record of Coconino
County, Arizona
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1502, Page
600, in the Public
Record of Coconino
County, Arizona.
Fairfield Acceptance
Corporation:
Amended and Restated
Deed of Trust,
Assignment of Rents
and Security
Agreement in favor
of The First
National Bank of
Boston, recorded in
Docket 1508, Page
529 in the Public
Record of Coconino,
Arizona.
SCHEDULE C
TO THIRD AMENDED AND RESTATED SUPPLEMENTARY TRUST AGREEMENT
1993-A TRUST INTERVALS
[Information Omitted]
SCHEDULE D
TO THIRD AMENDED AND RESTATED SUPPLEMENTARY TRUST AGREEMENT
1995 TRUST INTERVALS
[Information Omitted]
