FOURTH AMENDED AND RESTATED
NASHVILLE TITLE CLEARING AGREEMENT
This 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"); LAWYERS TITLE INSURANCE
CORPORATION, a Virginia corporation ("NOMINEE"); 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 Third Amended and Restated Nashville
Title Clearing Agreement dated as of July 31, 1998, 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 Nashville at Music City U.S.A., Davidson
County, Tennessee, and certain other properties not subject hereto; and has sold
and will continue to sell Intervals (as hereinafter defined) and Undivided
Ownership Interests (as hereinafter defined) therein to purchasers by way of
contract agreement and installment notes (the "SALES CONTRACTS") whereby the
purchasers are permitted to finance the purchase price for said Intervals and
Undivided Ownership Interests 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, primarily 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 an arrangement 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 Undivided Ownership Interests and 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 Undivided Ownership Interests and Intervals, at any time owned by
FCI, FAC or FRC 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 interests 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 Collateral means collectively the 1998-A Trust Intervals and
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the 1998-A Trust Undivided Ownership Interests.
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 Fleet
Collateral Agent 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.
1998-A Trust Undivided Ownership Interests means those Undivided Ownership
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Interests that give rise to certain Sales Contracts pledged, assigned and
transferred by FFC-II to the Fleet Collateral Agent pursuant to the 1998-A
Pledge Agreement. The 1998-A Trust Undivided Ownership Interests 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 certain First Amendment to
Collateral Agency Agreement dated as of July 31, 1998 and that certain 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, 1998-A Trustee, FCI, FAC, FRC, FFC-II 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 which are or may become parties to the Consolidated Loan Agreement.
Consolidated Loan Agreement means the Consolidated, Amended and Restated
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Revolving Credit Agreement, dated as of July 25, 2000 among FCI and FAC, 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 Collateral means collectively the EagleFunding Intervals and
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the EagleFunding Undivided Ownership Interests.
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.
EagleFunding Undivided Ownership Interests means those Undivided Ownership
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Interests which give rise to certain Sales Contracts pledged, assigned and
transferred by FRC to the Fleet Collateral Agent pursuant to the EagleFunding
Credit Agreement. The EagleFunding Undivided Ownership Interests are listed on
Schedule D attached to this Agreement and made a part hereof, as amended from
time to time.
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 (unit weeks) created or to be
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created in the Property pursuant to regime documents filed or to be filed
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 the
Project.
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.
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 the timeshare associations organized in connection with the
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establishment of the Project.
Project means the Fairfield Nashville at Music City U.S.A. project and such
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other projects as may be developed by FCI and added to this Agreement. The
Project, as it is presently conceived, is described in Schedule B hereto.
Property means that portion of the real property described in Schedule A
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attached hereto, as amended from time to time, which has been or will be
conveyed by FCI to Nominee.
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 an Undivided Ownership Interest at the 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 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 to be secured by Mortgages, heretofore entered into
and hereinafter to be entered into between FCI and various Purchasers for the
purchase of an Interval or an Undivided Ownership Interest and for which the
total purchase price has not been paid by the Purchaser.
Secured Party means the Triple-A Collateral Agent, or the Fleet Collateral
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Agent, 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 L/C Bank and Triple-A, 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 D 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.
Triple-A Undivided Ownership Interests means those Undivided Ownership
-----------------------------------------
Interests that give rise to certain Sales Contracts pledged, assigned and
transferred by FCC to the Triple-A Collateral Agent pursuant to the Triple-A
Credit Agreement. The Triple-A Undivided Ownership Interests are listed on
Schedule D attached to this Agreement and made a part hereof, as amended from
time to time.
Undivided Ownership Interests means those undivided ownership interests
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created or to be created in the Property which are the subject of Sales
Contracts. An Undivided Ownership Interest is that form of real property
ownership in a 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 Property to Nominee. FCI, by various deeds executed from
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time to time, has transferred and may continue to transfer fee simple title to
Nominee to all or a portion of the real property identified in Schedule A.
Nominee agrees to acquire and hold legal title to the Property 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. Nominee shall have the right to review all proposed conveyances to
it of the real property identified in Schedule A to assure compliance with the
terms of this Agreement. The Project as it presently exists is described in
Schedule B hereto. The development plans for future phases of the Project are
not finalized, however, and may be revised by FCI without notice to or the
approval of any of the other parties hereto.
Except for the Property for which the beneficial interest has been
transferred to FCC, FRC or FFC-II, the beneficial interest in all Property
conveyed to Nominee pursuant to this Agreement that underlies Sales Contracts
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 Property
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
related Property 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 Nominee shall be advised of the transference of Sales
Contracts and the beneficial interest in the Property underlying such Sales
Contracts, Nominee shall not be held liable by any party hereto for acting in
good faith on the
written instruction of FCI or FAC even though there may be a mistake as to the
proper owner of the beneficial interest in the Property underlying the Sales
Contracts.
3. Title Ownership and Responsibility of Nominee.
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(a) Nominee acknowledges that notwithstanding the fact that it will be the
record owner of the fee simple title to the Property conveyed to it under this
Agreement, its ownership is subject in all respects to the provisions of this
Agreement and the terms and conditions of the Loan Agreements. Nominee further
acknowledges that it holds fee simple title to the Property conveyed to it
hereunder for the benefit of other parties as set forth herein and shall have no
equitable rights in the Property nor any right to the income or profits to be
derived therefrom.
(b) Nominee's function and responsibility during the existence of this
Agreement will be to (i) hold record title to the Property conveyed to it
hereunder 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; and (iv) execute such
instruments as required to be executed pursuant to Sections 11 and 13 hereof.
Nominee 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),
provided however, that any such power of attorney shall be revoked by Nominee if
so directed by a Secured Party in accordance with Section 12 hereof.
(c) Except to the extent expressly permitted herein, Nominee shall have no
discretionary authority whatsoever to exercise any control over the Property.
(d) Except as set forth in Section 3(b), Nominee agrees that it will do
nothing that will in any way impair, encumber or otherwise adversely affect in
any manner the title to the Property.
(e) Nominee shall have no duties and responsibilities other than those set
forth herein, and it shall act only at the direction of the parties hereto
solely in accordance with the terms hereof. FCI, FAC and each Secured Party
hereby expressly do not delegate any discretionary duties and responsibilities
to Nominee 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 Nominee.
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(a) FCI shall cause any construction or vendor's lien or blanket
encumbrance 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 Property 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 purposes of
this Agreement and to cause revenue stamps 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 Property.
(c) FCI or FAC, as the case may be, shall be responsible for advising
Nominee and the related Secured Party of all assignments of the Sales Contracts
and underlying beneficial interests and all conveyances of the Property, 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
Nominee and to such Secured Party. Such assignments 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 Property giving rise to such Sales Contracts to be
assigned or conveyed. Nominee 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 Property. To the extent that Sales Contracts and the
beneficial interest in the underlying Property (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
Property for the benefit of the Consolidated Lenders under the Consolidated Loan
Agreement.
(d) FCC has provided to Nominee on the Closing Date and Effective
Restatement Date (as such terms are defined in the Triple-A Credit Agreement),
and FCC will provide to Nominee on Contract Grant Dates (as defined in the
Triple-A Credit Agreement), if any, occurring after the Effective Restatement
Date (as defined in the Triple-A Credit Agreement) 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 Collateral and
the related Sales Contracts, (ii) the transfer of all beneficial interest in the
Triple-A Collateral 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 Collateral and the related Sales Contracts
from FCC to the Triple-A Collateral Agent pursuant to the Triple-A Credit
Agreement. Upon receipt by the Nominee of any such future releases and
assignments, Schedule C shall automatically be deemed to be updated to include
the Triple-A Collateral covered by such releases and assignments, and Nominee
shall be entitled to rely upon such releases and assignments in determining
beneficial ownership of the Triple-A Collateral covered thereby.
FAC, as servicer under the Triple-A Credit Agreement, or the Triple-A
Collateral Agent shall provide Nominee 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 Collateral, which assignments shall be in the form of
a certificate and shall identify the Triple-A Collateral and related Sales
Contracts assigned thereby. To be effective, any such assignment submitted to
Nominee by FAC shall be accompanied by an approval, in writing, of the Triple-A
Collateral Agent. Upon receipt by the Nominee of any such certificates, (i)
Schedule C shall automatically be deemed to be updated to exclude the Triple-A
Collateral covered by such certificates, (ii) Nominee shall be entitled to rely
upon such certificates in determining beneficial ownership of the Triple-A
Collateral covered thereby, and (iii) the beneficial ownership of the Triple-A
Collateral covered by such certificates shall be presumed to be in FCI or FAC,
as applicable.
(e) FRC has provided to Nominee on the Effective Date (as such term is
defined in the EagleFunding Credit Agreement), and FRC will provide to Nominee
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 Collateral and the
related Sales Contracts from FAC to FRC pursuant to the EagleFunding Purchase
Agreement and (ii) the pledge and assignment of the EagleFunding Collateral and
the related Sales Contracts from FRC to the Fleet Collateral Agent pursuant to
the EagleFunding Credit Agreement. Upon receipt by the Nominee of any such
future assignments, Schedule D shall automatically be deemed to be updated to
include the EagleFunding Collateral covered by such assignments, and Nominee
shall be entitled to rely upon such assignments in determining beneficial
ownership of the EagleFunding Collateral covered thereby.
FAC, as servicer under the EagleFunding Credit Agreement, or the Fleet
Collateral Agent, shall provide Nominee with copies of any future assignments
from the Fleet Collateral Agent to FRC, FAC or FCI, as applicable, of beneficial
interests in the EagleFunding Collateral, which assignments shall be in the form
of a certificate and shall identify the EagleFunding Collateral and related
Sales Contracts assigned thereby. Upon receipt by the Nominee of any such
certificates, (i) Schedule D shall automatically be deemed to be updated to
exclude the EagleFunding Collateral covered by such certificates, (ii) Nominee
shall be entitled to rely upon such certificates in determining beneficial
ownership of the EagleFunding Collateral covered thereby and (iii) the
beneficial ownership of the EagleFunding Collateral covered by such certificates
shall be presumed to be in FCI or FAC, as applicable.
(f) FFC-II has provided to Nominee on the Closing Date (as such term is
defined in the 1998-A Pledge Agreement), and FFC-II will provide to Nominee 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 Collateral 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 Collateral
and the related Sales Contracts from FFC-II to the Fleet Collateral Agent
pursuant to the 1998-A Pledge Agreement. Upon receipt by the Nominee of any such
future assignments, Schedule E shall automatically be deemed to be updated to
include the 1998-A Collateral covered by such assignments, and Nominee shall be
entitled to rely upon such assignments in determining beneficial ownership of
the 1998-A Collateral covered thereby.
FAC, as servicer under the 1998-A Pledge Agreement, or the Fleet Collateral
Agent, shall provide Nominee 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 Collateral, which assignments shall be in the form of a
certificate and shall identify the 1998-A Collateral 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 Nominee of any such certificates, (i) Schedule E shall automatically be
deemed to be updated to exclude the 1998-A Collateral covered by such
certificates, (ii) Nominee shall be entitled to rely upon such certificates in
determining beneficial ownership of the 1998-A Collateral covered thereby and
(iii) the beneficial ownership of the 1998-A Collateral covered by such
certificates shall be presumed to be in FCI or FAC, as applicable.
5. Conveyance and Release of Property.
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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 an Interval or Undivided
Ownership Interest pursuant to a Sales Contract, and/or has otherwise fully
discharged all of the Purchaser's obligations and responsibilities required to
be discharged as a condition to deeding an Interval or Undivided Ownership
Interest, including the payment of all POA dues and assessments, FCI or FAC, as
applicable, as the beneficial owner of the security interest in the property to
be deeded, or as servicer for a Secured Party that is the beneficial owner of
the security interest in the property to be deeded at such time, shall notify
the related Secured Party(s) and shall direct Nominee in writing to immediately
cause the Interval or Undivided Ownership Interest to be deeded to the Purchaser
and the Nominee 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 or
Undivided Ownership Interest covered by such Sales Contract to the Purchaser.
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 the Purchaser has paid for such in connection with his purchase of the
Property involved).
(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 Nominee.
6. Default by Purchaser. Where a Purchaser has recorded his/her Sales
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Contract and the Purchaser defaults and otherwise refuses to reconvey legal or
equitable title to Nominee, Nominee shall assign the recorded Sales Contract to
FCI or FAC (as applicable, as the beneficial owners of such recorded Sales
Contract, or, if applicable, as servicer for a Secured Party
pursuant to the terms of the related Loan Agreement), for foreclosure or other
appropriate action. Subject to the provisions of Section 12 hereof, Nominee may
rely on the written request of FCI or FAC, as applicable, in regard to the
assignment of said recorded Sales Contract.
7. POA Voting Rights. Voting rights in the POA that may inure to the
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benefit of Nominee as legal title holder to Property shall be assigned by
Nominee to FCI or, at the option of FCI, FCI may require, as and when necessary,
an irrevocable proxy be delivered unto it by Nominee so that FCI may continue to
exercise all such voting rights.
8. Warranty as to Title. FCI represents and warrants unto Nominee that it
--------------------
has transferred to Nominee fee simple title to all portions of the Property
heretofore conveyed to Nominee under this Agreement. FCI further represents and
warrants unto Nominee that the deeds of conveyance heretofore or that may
hereafter be delivered to Nominee conveyed, or shall convey, to Nominee title
subject only to (i) subdivision and condominium restrictions, covenants, etc.,
including timeshare declarations, (ii) road rights of way and easements, (iii)
utility easements, (iv) the rights of Purchasers who have entered into the Sales
Contracts, (v) other such miscellaneous restrictions and covenants, (vi) as to
the Properties conveyed to Nominee prior to the date hereof, certain Mortgages
to Fleet in its various capacities that were subsequently released, (vii) as to
lands hereafter conveyed to Nominee, Mortgages, if any, that may be granted 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
from time to time hereafter, and (viii) the terms of this Agreement.
9. [RESERVED]
10. Indemnification. FCI and FAC jointly and severally agree to indemnify
---------------
and hold harmless Nominee 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
Property conveyed to Nominee or out of the good faith discharge by Nominee of
any of the terms and conditions of this Agreement, including all costs and
expenses of any nature that Nominee may incur. Each Secured Party shall
indemnify and hold harmless Nominee from any and all claims, demands, actions or
causes of action, including all costs and expenses of any nature that Nominee
may incur in connection therewith, which relate to or arise out of any action or
failure to act of Nominee, which action or inaction was in good faith pursuant
to and in reliance upon written instructions from such Secured Party to Nominee.
With respect to actions related to particular portions of the Property conveyed
to Nominee, the parties hereto expressly acknowledge that Nominee 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 Property as
set forth herein and in the Schedules hereto, and Nominee shall have no
liability for any action taken in good faith in such reliance. FCI or FAC, as
the case may be, shall reimburse Nominee for all costs, fees and expenses
incurred by it relating to its serving as Nominee under the terms and provisions
of this Agreement. It is the intent of the parties to insure that Nominee 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 Nominee which may
result from the performance in good faith by Nominee of its responsibility under
this Agreement.
11. Mortgages, Platting and Reconveyance of the Property. Subject to the
-----------------------------------------------------
provisions of Section 12 hereof, upon written request of FCI, Nominee shall,
except as to Property that 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 Property held by it
hereunder 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. Nominee agrees to execute Mortgages covering
such Property (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.
Nominee 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 of the Property or new horizontal property regimes thereon.
12. Default Under Loan Agreements. In the event of default by FCI, FAC,
-------------------------------
FCC, FRC or FFC-II under any of the Loan Agreements, the related Secured Party
shall notify Nominee in writing of such event at such time as notice of such
default is given to FCC, FAC, FCI , FRC or FFC-II, as the case may be, which
writing shall identify the Property or portion thereof giving rise to Sales
Contracts relating to the defaulted Loan Agreement, and may further instruct
Nominee that, with respect to such Property, Nominee shall act only upon the
written instructions of the related Secured Party, whereupon Nominee shall only
take action with respect to the related Property identified in the notice,
notwithstanding instructions of FCI, FAC, FCC, FRC or FFC-II to the contrary, as
directed by the related Secured Party.
The receipt of any notice of default shall relate only to the specific Loan
Agreement identified therein. As to all other Loan Agreements, Nominee 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 Property relating thereto.
Any notice of default given Nominee pursuant to this Section 12 shall be
mailed by first class mail, postage prepaid, return receipt rested, to the
following address:
Lawyers Title Insurance Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
P. O. Xxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx
In no event shall Nominee have any responsibility for preparation of
documents referred to in Section 4(b) of this Agreement. As to Property relating
to any defaulted Loan Agreement, said documents shall be prepared by the related
Secured Party or its designee.
13. Provisions Related to Pooling/Pledge/Sale Agreements.
----------------------------------------------------
(a) The parties hereto acknowledge that Nominee holds title to the Triple-A
Undivided Ownership Interests and 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 Nominee shall not
transfer, pledge or assign any of the Triple-A Collateral
except as expressly provided herein. The provisions of this section 13(a),
however, shall not apply to any Triple-A Collateral 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 Effective Restatement Date (as defined in the Triple-A
Credit Agreement), until releases and assignments covering such collateral have
been delivered to the Nominee in accordance with the requirements of Section
4(d) hereof.
(b) The parties hereto acknowledge that Nominee holds title to the
EagleFunding Undivided Ownership Interests and 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
Nominee shall not transfer, pledge or assign any of the EagleFunding Collateral
except as expressly provided herein. The provisions of this section 13(b),
however, shall not apply to any EagleFunding Collateral 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 date hereof, until assignments covering such collateral
have been delivered to the Nominee in accordance with the requirements of
Section 4(e) hereof.
(c) The parties hereto acknowledge that Nominee 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 Nominee shall not transfer, pledge or assign any of the 1998-A
Collateral except as expressly provided herein. The provisions of this section
13(c), however, shall not apply to any 1998-A Collateral that may be granted the
1998-A Trustee or 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 collateral have been
delivered to the Nominee in accordance with the requirements of Section 4(f)
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 instrument shall be construed in accordance with and governed by
the laws of the State of Arkansas. 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.
(c) 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 Loan Agreement, the 1998-A Pledge Agreement and the Collateral
Agency Agreement, respectively, the Loan Agent, the Triple-A Collateral Agent
and the Fleet 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.
---------------------
(a) This Agreement may be amended from time to time for the purpose of
adding additional parties and revising the terms herein; provided, however,
except as specifically provided in Section 15(b), no such amendment shall be
effective until all parties hereto have agreed in writing to such revisions.
(b) This Agreement may also be amended for the purpose of identifying and
segregating a separate pool of Sales Contracts, and the Intervals and/or
Undivided Ownership Interests 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, Nominee, Loan Agent, and Fleet Collateral Agent. Any
amendment undertaken pursuant to this section 15(b) shall not relate to or
affect Undivided Ownership Interests or Intervals 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(b) shall be provided to all parties to this Agreement.
(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 Property shall be conveyed by Nominee in accordance with the written
instructions of FCI, FAC, FCC, FRC or FFC-II as the beneficial owner or assignee
of the beneficial ownership of such Property at such time, except, however, if
Nominee has been notified by a Secured Party in writing that a default has
occurred under a Loan Agreement, as described more fully in Section 12 of this
Agreement, Nominee shall convey title to the Property underlying 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, or at such other address as shall be designated by a
party in a written notice to the other parties:
Lawyers Title Insurance Corporation
-----------------------------------
Xxxx X. Xxxxxx
Lawyers Title Insurance
Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
P. O. Xxx 00000
Xxxxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
Fairfield Communities, Inc.
---------------------------
Counsel:
Xxxxxx X. Xxxxxx J. Xxxxx Xxxxxxxxxx
Fairfield Communities, Inc. Xxxxx Xxxx
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 Funding Corporation, II
or Fairfield Receivables Corporation
-------------------------------------
Counsel:
Xxxxx Xxxxxx J. Xxxxx Xxxxxxxxxx
Fairfield Acceptance Corporation - Xxxxx Xxxx
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 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, Xxx Xxxx 00000 0000 Xxx Xxxxxx
(000) 000-0000 Xxxxxxxxxx, X.X. 00000
Telecopy: (914)_________ (000)000-0000
Facsimile: (000)000-0000
Notice to each of the aforementioned parties shall be given by Nominee 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 INTENTIONALLY LEFT BLANK]
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
LAWYERS TITLE INSURANCE
CORPORATION
/s/ Xxxxx Xxxxxxxx BY: /s/ Xxxx Xxxxxx
------------------------- ----------------------------
Witness TITLE: Vice President
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
