THIRD AMENDMENT TO
WESTWINDS THIRD AMENDED AND RESTATED
TITLE CLEARING AGREEMENT
(LAWYERS)
This Amendment is made and entered into as of July 31,
1996, by and among Fairfield Communities, Inc., a Delaware
corporation (referred to herein as "FCI"); Fairfield Myrtle
Beach, Inc., a South Carolina corporation and wholly-owned
subsidiary of FCI (referred to herein as "FMB"); Fairfield
Acceptance Corporation, a Delaware corporation and
wholly-owned subsidiary of FCI (referred to herein as
"FAC"); Lawyers Title Insurance Company, a Virginia
corporation (referred to herein as "Nominee"); The First
National Bank of Boston, Boston, Massachusetts (referred to
herein as "Bank of Boston"), as agent and lender to
Fairfield pursuant to the FCI Boston Loan Agreement (as
hereinafter defined); The First National Bank of Boston,
Boston, Massachusetts, as agent and lender to FAC (referred
to herein as "Agent Bank") pursuant to the FAC Boston Loan
Agreement (as hereinafter defined); and Capital Markets
Assurance Corporation, a New York stock insurance company,
as collateral agent (referred to herein as "Triple-A
Collateral Agent"), pursuant to the Triple-A Credit
Agreement (as hereinafter defined). This Amendment amends
that certain Westwinds Third Amended and Restated Title
Clearing Agreement dated as of November 15, 1992, as
previously amended (the "Agreement"). Unless otherwise
defined herein, all capitalized terms shall have the
meanings ascribed in the Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 15(b) of the Agreement,
FCI, FMB, FAC, Nominee, Bank of Boston and the Agent Bank
can amend the Agreement to identify and segregate a separate
pool of Sales Contracts and the Intervals relating thereto,
which are to be sold or pledged pursuant to a pooling,
pledge or sale agreement; and
WHEREAS, FAC has sold certain Sales Contracts to
Fairfield Capital Corporation, a Delaware corporation
(referred to herein as "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 Triple-A One Funding
Corporation, a Delaware corporation (referred to herein as
"Triple-A"), pursuant to the Triple-A Credit Agreement; and
WHEREAS, Bank of Boston and the Agent Bank have
released or will have released their lien upon and its
interest in the Sales Contracts and the underlying Intervals
as a prior condition to their being pledged to the Triple-A
Collateral Agent; and
WHEREAS, the parties hereto wish to amend the Agreement
in order to identify and segregate those Sales Contracts and
the related Intervals pledged to the Triple-A Collateral
Agent;
NOW THEREFORE, in consideration of the mutual promises
and covenants set forth herein, the parties hereto agree as
follows:
1. Section 1 of the Agreement is hereby amended by
adding thereto the following definitions (and by striking
any definitions which are supplanted by the definitions set
forth below):
Bank means, as appropriate, Bank of Boston, the Agent
----
Bank, the 1992 Purchaser, the 1993-A Trustee or the Triple-A
Collateral Agent, as applicable.
FAC means, as appropriate, Fairfield Acceptance
---
Corporation, individually or in its capacity as servicer
under the 1993-A Pledge Agreement or the Triple-A Credit
Agreement.
FAC Boston Loan Agreement means the Third Amended and
--------------------------
Restated Revolving Credit Agreement, dated as of September
28, 1993, between FAC, Bank of Boston and the Agent Bank, as
amended pursuant to the First Amendment to Third Amended and
Restated Revolving Credit Agreement, dated as of December 9,
1994, between FAC and Agent Bank, and as further amended by
the Second Amendment to Third Amended and Restated Revolving
Credit Agreement, dated as of December 19, 1994, between
FAC, Bank of Boston and the Agent Bank, as amended and in
effect from time to time.
FCC means Fairfield Capital Corporation, a Delaware
---
corporation.
FCI Boston Loan Agreement means the Amended and
----------------------------
Restated Revolving Credit Agreement, dated as of September
28, 1993, among FCI, Fairfield Myrtle Beach, Inc., Suntree
Development Company, St. Xxxxxxx Management, Inc., Fairfield
Suntree Realty, Inc., and Bank of Boston, as amended
pursuant to the First Amendment to Amended and Restated
Revolving Credit Agreement, dated as of May 13, 1994, as
further amended by Consent Waiver and Agreement, dated as of
September 23, 1994, as further amended by Second Amendment
to Amended and Restated Revolving Credit Agreement, dated as
of December 9, 1994, as further amended by Third Amendment
to Amended and Restated Revolving Credit Agreement, dated as
of December 19, 1994, as further amended by Fourth Amendment
To Amended and Restated Revolving Credit Agreement, dated as
of November 20, 1995, and as further amended by Fifth
Amendment to Amended and Restated Revolving Credit
Agreement, dated as of January 25, 1996, among FCI,
Fairfield Myrtle Beach, Inc., and Bank of Boston, as amended
and in effect from time to time.
L/C Bank means The First National Bank of Boston, as
--------
L/C Bank under the Triple-A Credit Agreement.
Loan Agreement means, as appropriate, (i) the FCI
---------------
Boston Loan Agreement, (ii) the FAC Boston Loan Agreement,
(iii) the 1992 Sale Agreement, (iv) the 1993-A Pledge
Agreement, or (v) the Triple-A Credit Agreement. The use of
the defined term "Loan Agreement" herein to identify one of
the various pooling, pledge or sale agreements is for
convenience only and shall not be construed to characterize
the assignment or transfer of the related Intervals and
Sales Contracts as loan transactions.
Operating Agreement means the Third Amended and
--------------------
Restated Operating Agreement dated as of December 9, 1994,
between FCI and FAC, as amended.
Triple-A means Triple-A One Funding Corporation, a
--------
Delaware corporation.
Triple-A Collateral Agent means Capital Markets
-----------------------------
Assurance Corporation, a New York stock insurance company,
as collateral agent for the benefit of itself, Triple-A and
L/C Bank pursuant to the Triple-A Credit Agreement.
Triple-A Credit Agreement means that certain Amended
--------------------------
and Restated Credit Agreement dated as of July 31, 1996, by
and among FAC, as servicer, FCI, FCC, as borrower, the
Triple-A Collateral Agent, L/C Bank and Triple-A relating to
loans to be made by Triple-A to FCC.
Triple-A Intervals means those Intervals which give
-------------------
rise to certain Sales Contracts pledged, assigned and
transferred to the Triple-A Collateral Agent pursuant to the
Triple-A Credit Agreement. The Triple-A Intervals are
listed on Schedule E attached to this Agreement and made a
part hereof, as amended from time to time.
2. The third sentence of Section 2 of the Agreement
is hereby amended to read as follows:
"Except for those Properties for which the
beneficial interest has been transferred to the 1992
Purchase or transferred to FFC or FCC and subsequently
pledged to the 1993-A Trustee or the Triple-A
Collateral Agent, respectively, the beneficial interest
in all the Properties underlying the Sales Contracts
conveyed to Nominee pursuant to this Agreement shall
originally be in Fairfield, 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."
3. Subsection 3(b) of the Agreement is hereby amended
to read as follows:
"(b) Nominee'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 Fairfield or
FAC, as applicable, as the beneficial owner at such
time, and, if applicable, as servicer under the 1993-A
Pledge Agreement or the Triple-A 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 Bank as set forth
herein, cause with respect to such Properties such
Bank'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; and (v) execute such instruments as required to
be executed pursuant to Section 11 hereof. Nominee may
authorize any third party, including any employee of
FAC or FCI, by power of attorney, to execute any
instrument required by this Section 3(b)."
4. The second sentence of Subsection 4(c) of the
Agreement is hereby amended to read as follows:
"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. 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
Properties."
5. Section 4 of the Agreement is hereby amended by
adding the following paragraph thereto:
"(f) 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, copies of
releases and assignments evidencing (i) Bank of
Boston's and the Agent Bank's release of their lien
upon and their interest in the Triple-A Intervals and
the related Sales Contracts, (ii) the transfer of
beneficial interest in the Triple-A Intervals and the
related Sales Contracts from FAC to FCC pursuant to the
Triple-A Purchase Agreement and (iii) the pledge and
assignment of the Triple-A Intervals and 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 E shall automatically be deemed
to be updated to include the Triple-A Intervals 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
Intervals 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 interest
in the Triple-A Intervals, which assignments shall
be in the form of a certificate and shall identify
the Triple-A Intervals and related Sales Contracts
assigned thereby. To be effective, any such
assignment submitted to 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 E
shall automatically be deemed to be updated to
exclude the Triple-A Intervals covered by such
certificates, (ii) Nominee shall be entitled to
rely upon such certificates in determining
beneficial ownership of the Triple-A Intervals
covered by such certificates and (iii) the
beneficial ownership of the Triple-A Intervals
covered by such certificates shall be presumed to
be in FCI or FAC, as applicable, and subject to
the lien of Bank of Boston and the Agent Bank
under the Mortgages on Schedule B."
6. Subsection 5(c) of the Agreement is hereby amended
to read as follows:
"(c) All payments made by Purchasers pursuant to
the terms of their Sales Contract shall be made
directly to FCI, FAC, the 1992 Purchaser or FCC, as the
case may be, for the benefit of the relevant Bank, if
any, pursuant to the terms of the related Loan
Agreement. No payments are to be received by Nominee."
7. Section 6 of the Agreement is hereby amended to
read as follows:
"6. Default by Purchaser. Where Purchaser has
----------------------
recorded his/her Sales Contract and 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 under the 1993-A Pledge
Agreement or the Triple-A Credit 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
Contracts."
8. The second sentence of Section 10 of the Agreement
is hereby amended to read as follows:
"Each Bank 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 the Nominee, which action or
inaction was in good faith pursuant to and in reliance
upon written instructions from such Bank to the
Nominee."
9. The first paragraph of Section 12 of the Agreement
is hereby amended to read as follows:
"In the event of default of Fairfield, FAC, FFC or
FCC under any of the Loan Agreements, the related Bank
shall notify Nominee in writing of such event at such
time as notice of such default is given to Fairfield,
FAC, FFC or FCC, as the case may be, which writing
shall identify those Properties giving rise to Sales
Contracts related to the defaulted Loan Agreement and
may further instruct Nominee that, with respect to such
Properties, Nominee shall act only upon the written
instructions of the related Bank and any prior
lienholder with respect to such Properties and the
related Sales Contracts, whereupon Nominee 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 Bank and any prior lienholder."
10. The second paragraph of Section 12 of the
Agreement is hereby amended to read as follows:
"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 Fairfield, FAC, Bank
of Boston, the Agent Bank, the 1992 Purchaser, the
1993-A Trustee or the Triple-A Collateral Agent, as the
case may be, as to the Properties relating thereto."
11. Section 13 of the Agreement is hereby amended by
adding the following paragraph thereto:
"Notwithstanding anything herein to the contrary
and specifically notwithstanding the provisions of
Section 3(a) hereof, the interest in Properties related
to the Triple-A Intervals granted to the Triple-A
Collateral Agent by this Agreement and the Triple-A
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 Nominee holds title to the
Triple-A Intervals for the benefit of the purchasers of
the Triple-A Intervals and 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 the Triple-A Intervals
except as expressly provided herein. The provisions of
this paragraph, however, shall not apply to any Triple-
A Intervals that may be granted the Triple-A Collateral
Agent by this Agreement and the Triple-A Credit
Agreement on Contract Grant Dates (as defined in the
Triple-A Credit Agreement), if any, occurring after the
Effective Restatement Date (as defined in the Triple-A
Credit Agreement), until releases and assignments
covering such Property have been delivered to the
Nominee in accordance with the requirements of Section
4(f) hereof."
12. Section 14(c) of the Agreement is hereby amended
to read as follows:
"(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 FCI Boston
and FAC Boston Loan Agreements and the Triple-A Credit
Agreement, respectively, Bank of Boston, the Agent
Bank, and the Triple-A Collateral Agent may be replaced
or succeeded as a party 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."
13. Section 15(b) of the Agreement is hereby amended
to read as follows:
"(b) This Agreement may also 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 or
pledge agreement, by an instrument in writing signed by FCI,
FMB, FAC, Nominee, Bank of Boston and the Agent Bank. Any
amendment undertaken pursuant to this paragraph 15(b) shall
not relate to or affect Intervals listed on Schedules C, D
or E attached hereto, nor shall it in any way impair or
amend the rights of the 1992 Purchaser, the 1993-A Trustee
or the Triple-A Collateral Agent under this Agreement. An
executed copy of any Amendment undertaken pursuant to this
paragraph 15(b) shall be provided to all parties to this
Agreement."
14. The third sentence of Section 15(c) of the
Agreement is hereby amended to read as follows:
"Upon termination, title to the Properties shall
be conveyed by Nominee in accordance with the written
instructions of FCI, FAC, the 1993-A Trustee or the
Triple-A Collateral Agent, as the case may be, as the
beneficial owner or the assignee of the beneficial
ownership of such Properties at such time; except,
however, if Nominee has been notified by a Bank 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
Properties underlying the defaulted Loan Agreement in
accordance with the written instructions of the related
Bank and first lienholder with respect thereto."
15. Section 16 of the Agreement is hereby amended by
adding thereto the following addresses (and by striking any
addresses which are supplanted by the addresses set forth
below):
The First National Bank of Boston
---------------------------------
Counsel:
Xxxxx X. Xxxxxx Xxxxxx Xxxxxxxx
The First National Bank of Boston Xxxxxxx, Xxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X. 000 Xxxxxxx Xxxxxx
Xxxxx 000 Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000 (617) 951-8535
(000) 000-0000 Telecopy: (000) 000-0000
Telecopy: (000)000-0000
First Commercial Trust Company, N.A.
------------------------------------
Counsel:
Xxxxxx XxXxxxxx Xxxxxxxxx Xxxxx, III
First Commercial Trust Company, Xxxx Law Firm
National Association 000 Xxxx Xxxxxxx
Xxxxxxx and Xxxxxxxx Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
First Commercial Building, (000) 000-0000
7th Floor Telecopy: (000) 000-0000
Xxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
Capital Markets Assurance Corporation
-------------------------------------
000 Xxxxx Xxxxxx, 00xx Xxxxx Counsel:
Xxx Xxxx, XX 00000 Xxxx X. Xxxxxxxxxx, Esq.
Attn: Head of Exposure Sidley & Austin
Management 0000 Xxx Xxxxxx, XX
(000) 000-0000 Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000 (000)000-0000
Telecopy: (000) 000-0000
16. The Agreement is hereby amended to replace the
Schedule E thereto with the Triple-A Intervals described on
Exhibit A to this Amendment.
17. Except as otherwise amended by this Amendment, all
provisions of the Agreement remain in full force and effect.
18. An executed copy of this Amendment shall be
provided to all parties to the Agreement.
19. This Amendment shall be construed in accordance
with and governed by the laws of the State of Arkansas. In
the event that any clause or provision of this Amendment is
declared to be invalid, the invalidity of any such clause or
provision shall not affect the remaining clauses and
provisions of this Amendment which shall remain in full
force and effect.
20. This Amendment 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.;
FAIRFIELD MYRTLE BEACH, INC.
/s/Xxxx Xxxxxxx BY: /s/Xxxxxx X. Xxxxxx
----------------------- -----------------------------
Witness TITLE: Senior Vice President
FAIRFIELD ACCEPTANCE CORPORATION
/s/Xxxx Xxxxxxx BY: /s/Xxxxxx X. Xxxxxx
------------------------ -----------------------------
Witness TITLE: President
LAWYERS TITLE INSURANCE CORPORATION
/s/Xxxxxx X. Xxxxxxx BY:/s/Xxxxxxx X. Xxx
------------------------ ----------------------------
Witness TITLE: Senior Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender under the FCI
Boston Loan Agreement
/s/Xxxxx X. Xxxxxxxx BY: /s/Xxxxx X. Xxxxxx
------------------------ ----------------------------
Witness TITLE: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender under the FAC
Boston Loan Agreement
/s/Xxxxx X. Xxxxxxxx BY:/s/Xxxxx X. Xxxxxx
------------------------ ----------------------------
Witness TITLE:Vice President
CAPITAL MARKETS ASSURANCE CORPORATION
as Triple-A Collateral Agent
/s/Xxxx Xxxxxxx BY: /s/Xxxxxx Xxxxxxxxxxx
------------------------- ----------------------------
Witness TITLE: Vice President
EXHIBIT A
SCHEDULE E
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TRIPLE-A INTERVALS
GRANTED ON CLOSING DATE
(April 10, 1995 - Previously Provided)
[Information Omitted]
ADDENDUM TO
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SCHEDULE E
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TRIPLE-A INTERVALS
GRANTED ON EFFECTIVE RESTATEMENT DATE
(September 17, 1996)
[Information Omitted]
