AMENDED AND RESTATED
NASHVILLE TITLE CLEARING AGREEMENT
This Agreement 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
Acceptance Corporation, a Delaware corporation and wholly-
owned subsidiary of FCI (referred to herein as "FAC");
Lawyers Title Insurance Corporation, a Virginia corporation
(referred to herein as "Nominee"); 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); The First
National Bank of Boston, Boston, Massachusetts, as agent and
lender to FAC 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 Agreement is made in lieu of and
supersedes that certain Nashville Title Clearing Agreement,
dated as of September 11, 1995.
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 will sell
Timeshare 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 Timeshare
Intervals and Undivided Ownership Interests over a period of
time; and
WHEREAS, FNBB 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 has further taken
underlying encumbrances against the Property (as defined
herein) and certain other properties not subject to this
Agreement 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, which underlying encumbrances on
the Property have provisions for release for the protection
of the purchasers of Timeshare Intervals and Undivided
Ownership Interests, said releases to be given under certain
conditions as set forth therein; 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 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 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 The First National
Bank of Boston, as L/C Bank ("L/C Bank"), pursuant to the
Triple-A Credit Agreement (as hereinafter defined); and
WHEREAS, FNBB will have released its lien upon and its
interest in Sales Contracts and the underlying Timeshare
Intervals and Undivided Ownership Interests as a prior
condition to their being pledged to the Triple-A Collateral
Agent;
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 Property, 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 terms shall have the following
meanings unless the context clearly indicates otherwise:
FAC means Fairfield Acceptance Corporation, a
---
Delaware corporation and a wholly-owned subsidiary
of FCI, individually and in its capacity as
servicer under 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 and
FNBB, as amended pursuant to the First Amendment
to Third Amended and Restated Revolving Credit
Agreement, dated as of December 9, 1994, between
FAC and FNBB, and as further amended by the Second
Amendment to Third Amended and Restated Revolving
Credit Agreement, dated as of December 19, 1994,
between FAC and FNBB, as amended and in effect
from time to time.
FCI means Fairfield Communities, Inc., 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 FNBB, 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 FNBB, as
amended and in effect from time to time.
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.
L/C Bank means The First National Bank of Boston,
--------
in its capacity as L/C Bank under the Triple-A Credit
Agreement.
Loan Agreement means, as appropriate, the FCI
--------------
Boston Loan Agreement, the FAC Boston Loan
Agreement or the Triple-A Credit Agreement.
Mortgage means a deed of trust, deed to
--------
secure debt, 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, 1994, between FCI and FAC, as amended.
POA means the timeshare association(s)
---
organized in connection with the establishment of
the Project.
Project means the Fairfield Nashville at
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Music City U.S.A. project and such other projects
as may be developed by FCI and added to this
Agreement. The Project, as it is presently
conceived, is described in Schedule C hereto.
Property means that portion of the real
--------
property described in Schedule A attached hereto,
as amended from time to time, which has been or
will be conveyed by FCI to Nominee. The Mortgages
on the Property in favor of FNBB are listed in
Schedule B attached hereto, as amended from time
to time.
Purchasers means those individuals,
----------
partnerships, corporations or other entities who
have entered into a Sales Contract with FCI for
the purchase of a Timeshare Interval or an
Undivided Ownership Interest at the Project.
Sales Contracts means those contract
-----------------
agreements and installment notes to be entered
into between FCI and various Purchasers for the
purchase of a Timeshare Interval or an Undivided
Ownership Interest and for which the total
purchase price has not been paid by the Purchaser.
Secured Party means FNBB or the Triple-A
--------------
Collateral Agent, as applicable.
Timeshare Intervals means those timeshare
--------------------
intervals (unit weeks) created or to be 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.
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, Triple-A Collateral Agent, L/C Bank and
Triple-A, relating to loans to be made by Triple-A to
FCC.
Triple-A Timeshare Intervals means those Timeshare
----------------------------
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 Timeshare Intervals are listed
on Schedule D attached to this Agreement and made a
part hereof, as amended from time to time.
Triple-A Undivided Ownership Interests means those
--------------------------------------
Undivided Ownership Interests 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
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 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 deed or
--------------------------------
deeds from 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, subject to those
Mortgages identified in Schedule B. 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 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. It is presently
anticipated that Property will be conveyed to Nominee as it
is platted and prior to the time that sales of Timeshare
Intervals and Undivided Ownership Interests with respect
thereto are commenced. The Project as it is presently
conceived is described in Schedule C hereto. However, the
development plans for such Project 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 and subsequently
pledged to the Triple-A Collateral Agent, the beneficial
interest in all Property underlying Sales Contracts conveyed
to Nominee 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 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.
---------------------------------------------
(a) Nominee acknowledges that notwithstanding the
fact that it will be the record owner of the fee simple
title to the Property, 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. Nominee further
acknowledges that it holds fee simple title to the Property
for the benefit of the parties hereto 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 for the benefit of the other parties
hereto; (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, except as provided by Section 12
hereof; (iii) contemporaneously with the conveyancing of any
of the Property that qualifies 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 Property the 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; and
(v) 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 FAC or
FCI, by power of attorney, to execute any instrument
required by this Section 3(b).
(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 which 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.
-----------------------
(a) FCI shall cause any construction or vendor's
lien or blanket encumbrance, if any (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 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 by furnishing copies of all such assignments and
conveyances to Nominee 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 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 the Property.
(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, copies of
releases and assignments evidencing (i) FNBB's release of
its lien upon and its interest in the Triple-A Timeshare
Intervals or the Triple-A Undivided Ownership Interests and
the related Sales Contracts, (ii) the transfer of all
beneficial interest in the Triple-A Timeshare Intervals or
the Triple-A Undivided Ownership Interests 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 Timeshare Intervals or the Triple-A Undivided
Ownership Interests 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 D shall
automatically be deemed to be updated to include the Triple-
A Timeshare Intervals and the Triple-A Undivided Ownership
Interests 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 Timeshare Intervals and the Triple-A Undivided
Ownership Interests 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 Timeshare Intervals or Triple-A
Undivided Ownership Interests, which assignments shall be in
the form of a certificate and shall identify the Triple-A
Timeshare Intervals and the Triple-A Undivided Ownership
Interests 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 D shall automatically be
deemed to be updated to exclude the Triple-A Timeshare
Intervals and the Triple-A Undivided Ownership Interests
covered by such certificates, (ii) Nominee shall be entitled
to rely upon such certificates in determining beneficial
ownership of the Triple-A Timeshare Intervals and the
Triple-A Undivided Ownership Interests covered thereby and
(iii) the beneficial ownership of the Triple-A Timeshare
Intervals and the Triple-A Undivided Ownership Interests
covered by such certificates shall be presumed to be in FCI
or FAC, as applicable, and subject to the lien of FNBB under
the Mortgages on Schedule B.
5. Conveyance and Release of Property.
----------------------------------
(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 the 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, or as servicer for a Secured Party which
is the beneficial owner, of the security interest in the
underlying Property with respect to such Sales Contract at
such time, shall notify the related Secured Party(s) and
shall direct Nominee in writing to immediately cause to be
released the related Secured Party(s)' underlying
Mortgage(s) with respect to such Property, 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 Timeshare 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) Unless directed otherwise by a Secured Party
pursuant to Section 12 hereof (or otherwise), each Secured
Party hereby authorizes and appoints Nominee as its agent to
release such Secured Party's underlying Mortgage(s) against
any Property upon receipt by Nominee 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 Property 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
Nominee's authority to release such Secured Party's
Mortgage(s) as provided herein.
(c) All payments made by Purchasers pursuant to
the terms of their Sales Contract shall be made directly to
FCI or FAC, 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 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 which
-----------------
may inure to the 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 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 will transfer fee simple title to the
Property to Nominee, and that its deed(s) of conveyance to
Nominee will convey to said Nominee title subject only to
(i) condominium restrictions, covenants, etc., including
timeshare declarations, (ii) road rights of way and
easements, (iii) utility easements, (iv) the rights of
Purchasers who have previously entered into Sales Contracts,
(v) those Mortgages identified on Schedule B attached
hereto, (vi) such other miscellaneous restrictions,
covenants and Mortgages as those enumerated above, and
(vii) 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 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, the parties hereto expressly acknowledge that
Nominee shall be entitled to rely upon the written
instructions of FCI, FAC or the Secured Party which has a
first position lien on 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
such Property as FCI may have previously assigned or
transferred beneficial interest, reconvey all or any portion
of the Property 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, Nominee agrees to execute such
Mortgages covering such Property, 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.
12. Default Under Loan Agreements. In the event of
-------------------------------
default by FCI, FAC or FCC 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 or FCI, as the case may be, which writing shall
identify the Property or portion thereof covered by the
related Secured Party's Mortgage or giving rise to Sales
Contracts relating to the defaulted Loan Agreement, as
applicable, 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 or FCC 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, FNBB and the Triple-A
Collateral Agent, 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. 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 Undivided Ownership Interests and the Triple-A
Timeshare Intervals granted 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 Undivided Ownership Interests and the Triple-A
Timeshare Intervals for the benefit of the Triple-A
Collateral Agent and the purchasers of the Triple-A
Undivided Ownership Interests and the Triple-A Timeshare
Intervals, subject only to the terms and conditions of the
Triple-A Credit Agreement and the related Sales Contracts,
respectively. The Nominee shall not transfer, pledge or
assign the Triple-A Undivided Ownership Interests or the
Triple-A Timeshare Intervals except as expressly provided
herein. The provisions of this paragraph, however, shall
not apply to any Triple-A Undivided Ownership Interests and
Triple-A Timeshare 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(d) hereof.
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 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 FCI Boston and FAC Boston
Loan Agreements and the Triple-A Credit Agreement,
respectively, FNBB and the Triple-A 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, 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 Timeshare 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 and FNBB. Any amendment undertaken pursuant to this
paragraph 15(b) shall not relate to or affect Undivided
Ownership Interests or Timeshare Intervals listed on
Schedule D attached hereto, nor shall it in any way impair
or amend the rights of 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.
(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 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 or the Triple-A Collateral Agent,
as the case may be; except if Nominee has been notified by a
Secured Party in writing that any of FCI, FAC or FCC are in
default 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, 2010.
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
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
P. O. Xxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000
Telecopy: (000) 000-0000
Fairfield Communities, Inc.,
and Fairfield Acceptance Corporation
------------------------------------
Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Fairfield Communities, Inc. Rose Law Firm,
0000 Xxxxxxxx Xxxx a Professional Association
Xxxxxx Xxxx, XX 00000 000 Xxxx Xxxxxx Xxxxxx
(000) 000-0000 Xxxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000 (000) 000-0000
Telecopy: (000) 000-0000
The First National Bank of Boston
---------------------------------
Xxxxx X. Xxxxxx Xxxxxx Xxxxxxxx
The First National Bank Xxxxxxx Xxxxxx
of Boston Xxxxxxx, Xxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X. 000 Xxxxxxx Xxxxxx
Xxxxx 000 Xxxxxx, XX 00000
Xxxxxxx, XX 00000 (000) 000-0000
(000) 000-0000 Telecopy: (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
(000) 000-0000 Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000 (000)000-0000
Telecopy: (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/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/Xxxxx X. Xxxxxxx By: /s/Xxxx Xxxxxx
------------------------------ -----------------------------
Witness Title: Vice President
--------------------------
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender pursuant to 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 pursuant to 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
----------------------------
LIST OF SCHEDULES
-----------------
Schedule A: Property That May Be Conveyed To Nominee
Schedule B: Mortgages
Schedule C: Project Description
Schedule D: Triple-A Timeshare Intervals and Triple-A
Undivided Ownership Interests
SCHEDULE A
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PROPERTY THAT MAY BE CONVEYED TO NOMINEE
Being a tract of land lying in Nashville, Davidson County, Tennessee
and being part of the Property of Xxx X. Xxxxx as of Record in Deed
Book 7777, Page 105, and bounded on the West by the Easterly right-of-
way line of Xxxxxxxxxx Bend Road, on the North by the remainder of the
Xxx X. Xxxxx property, being Tract 2, on the East by Xxxxxxx Farm
Limited property as of Record in Deed Book 6649, Page 546, and on the
South by the Northerly right-of-way line of XxXxxxxx Pike, and being
more particularly described as follows:
Beginning at an iron rod at the intersection of the North right-of-way
of XxXxxxxx Xxxx (60 foot right-of-way) and the East right-of-way of
Xxxxxxxxxx Bend Road (50 foot right-of-way);
Thence with the East right-of-way of Xxxxxxxxxx Bend Road North 14
46' 21" West, 549.88 feet to an iron rod;
Thence, with a curve to the right, the radius of which is 6237.14
feet, the central angle of which is 05 19' 40", the chord of which is
North 12 05' 31" West, 579.76 feet, along an arc length of 597.97
feet to an iron rod;
Thence North 09 26' 41" West, 172.50 feet to an iron rod;
Thence, leaving the East right-of-way of Xxxxxxxxxx Bend Road and with
Tract 2, North 80 33' 19" East, 388.78 feet to an iron rod in the
Westerly line of Xxxxxxx Farm Limited;
Thence, with Xxxxxxx Farm Limited, South 10 15' 03" East, 553.42 feet
to an iron rod;
Thence, South 15 48' 12" East, 862.58 feet to an iron rod on the
Northerly right-of-way of XxXxxxxx Xxxx;
Thence, with the North right-of-way of XxXxxxxx Pike, North 84 22'
26" West, 428.84 feet to the point of beginning.
Containing 532,500 square feet (12.225 acres more or less).
SCHEDULE B
----------
MORTGAGES
FCI Mortgage:
------------
Deed of Trust, Assignment of Rents, Leases and Leasehold Interests and
Security Agreement, dated as of December 22, 1994, by and among
Fairfield Communities, Inc., as Trustor or Mortgagor, and C. Xxxxxx
Xxxxxx, a resident of Tennessee, as Trustee and Grantee for the
benefit of The First National Bank of Boston, as agent, as filed on
January 5, 1995, in the Register's Office of Davidson County,
Tennessee in Book 9565, Page 276.
FAC Mortgage:
------------
Deed of Trust, Assignment of Rents, Leases and Leasehold Interests and
Security Agreement, dated as of December 22, 1994, by and among
Fairfield Acceptance Corporation, Inc., as Grantor, and C. Xxxxxx
Xxxxxx, a resident of Tennessee, as Trustee and Grantee for the
benefit of The First National Bank of Boston, as agent, as filed on
January 5, 1995, in the Register's Office of Davidson County,
Tennessee in Book 9565, Page 325.
SCHEDULE C
----------
PROJECT DESCRIPTION
Phase I of the Fairfield Nashville at Music City U.S.A. project will
be constructed on approximately 5.32 acres within the property described on
Schedule A. Additional units may be added at FCI's option. If the
additional units are added, the units will be constructed within an area
designated as Future Development, consisting of approximately 4.74 acres.
Attached hereto as Schedule C-1 is a Site Layout Map depicting the Phase I
and Future Development Property.
It is expected that Phase I will consist of seventy-two (72) units
located in six (6) buildings which will be designated on the final "as-
built" plat as buildings 10, 11, 12, 13, 14 and 15.
Building 10 will contain fifteen (15) units numbering 1010, 1012,
1014, 1016, 1018, 1020, 1022, 1024, 1026, 1028, 1030, 1032, 1034, 1036 and
1038.
Building 11 will contain fifteen (15) units numbering 1110, 1112,
1114, 1116, 1118, 1120, 1122, 1124, 1126, 1128, 1130, 1132, 1134, 1136 and
1138.
Building 12 will contain twelve (12) units numbering 1210, 1212, 1214,
1216, 1220, 1222, 1224, 1226, 1230, 1232, 1234 and 1236.
Building 13 will contain nine (9) units numbering 1310, 1312, 1314,
1320, 1322, 1324, 1330, 1332 and 1334.
Building 14 will contain nine (9) units numbering 1410, 1412, 1414,
1420, 1422, 1424, 1430, 1432 and 1434.
Building 15 will contain twelve (12) units numbering 1510, 1512, 1514,
1516, 1520, 1522, 1524, 1526, 1530, 1532, 1534 and 1536.
SCHEDULE D
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TRIPLE-A TIMESHARE INTERVALS AND
TRIPLE-A UNDIVIDED OWNERSHIP INTERESTS
[Information Omitted]
