FIRST AMENDMENT TO
WESTWINDS THIRD AMENDED AND RESTATED
TITLE CLEARING AGREEMENT
(LAWYERS)
This Amendment is made as of September 28, 1993, by and
among Fairfield Communities, Inc., a Delaware corporation
(referred to herein as "FCI"), Fairfield Myrtle Beach, Inc.,
a South Carolina corporation (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 Corporation, a Virginia
corporation (referred to herein as "Nominee"), The First
National Bank of Boston, Boston, Massachusetts, in an
individual capacity and not as trustee (collectively
referred to herein together with all past, present and
future participants as "Bank of Boston"), as lender to
Fairfield pursuant to the FCI Boston Loan Agreement, The
First National Bank of Boston, Boston, Massachusetts, as
agent for a group of lenders to FAC pursuant to the FAC
Boston Loan Agreement and not as trustee (referred to herein
as "Agent Bank"), and First Commercial Trust Company, N.A.,
Little Rock, Arkansas, as trustee under the 1993-A Pledge
Agreement hereinafter defined (referred to herein as the
"1993-A Trustee"). This Amendment amends that certain
Westwinds Third Amended and Restated Title Clearing
Agreement dated as of November 15, 1992 (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 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, sale
or pledge agreement; and
WHEREAS, FAC has sold certain Sales Contracts to
Fairfield Funding Corporation, a Delaware corporation, which
Sales Contracts have in turn been pledged by Fairfield
Funding Corporation to First Commercial Trust Company, N.A.,
as trustee (referred to herein as the "1993-A Trustee"),
pursuant to a Pledge and Servicing Agreement dated as of
September 28, 1993 (the "1993-A Pledge Agreement"), relating
to the issuance by Fairfield Funding Corporation of certain
Interval Ownership and Lot Contract Pay-Through Notes,
Series 1993-A, and the parties hereto wish to amend the
Agreement to identify and segregate those Sales Contracts
and the Lots and Intervals related thereto;
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, The First National Bank of
----
Boston, as lender pursuant to the FCI Boston Loan Agreement,
the Agent Bank, as lender pursuant to the FAC Boston Loan
Agreement, the 1992 purchaser or the 1993-A Trustee.
FAC means, as appropriate, Fairfield Acceptance
---
Corporation, individually or in its capacity as servicer
under the 1993-A Pledge Agreement.
Loan Agreement means, as appropriate, (i) the FCI
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Boston Loan Agreement, (ii) the FAC Boston Loan Agreement,
(iii) the 1992 Sale Agreement or (iv) the 1993-A Pledge
Agreement. The use of the defined term "Loan Agreement"
herein to identify one of the various pooling agreements is
for convenience only and shall not be construed to
characterize the sale of the related Intervals and Sales
Contracts as loan transactions.
1993-A Pledge Agreement means that certain Pledge and
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Servicing Agreement dated as of September 28, 1993, by and
among FAC, as Servicer, Fairfield Funding Corporation, as
Issuer, the 1993-A Trustee, as Trustee, and First Commercial
Mortgage Company, as Standby Servicer, relating to the
issuance by Fairfield Funding Corporation of certain
Interval Ownership and Lot Contract Pay-Through Notes,
Series 1993-A.
1993-A Trust Intervals means those Intervals which give
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rise to certain Sales Contracts pledged, assigned and
transferred to the 1993-A Trustee pursuant to the 1993-A
Pledge Agreement. The 1993-A Trust Intervals are described
on Schedule D attached to this Agreement and made a part
hereof, as amended from time to time.
1993-A Trustee means First Commercial Trust Company,
---------------
N.A., Little Rock, Arkansas, as trustee under the 1993-A
Pledge Agreement.
2. Section 3(a) of the Agreement is hereby amended to
read as follows:
"(a) Nominee acknowledges that notwithstanding the fact
that it will be the record owner of the fee simple title to
the Properties, its ownership is subject in all respects to
the provisions of this Agreement, those Mortgages identified
on Schedule B, and the terms and conditions of the Loan
Agreements; and that Nominee holds fee simple title to the
Properties for the benefit of the parties hereto and shall
have no equitable rights in the Properties nor any right to
the income or profits to be derived therefrom."
3. Section 4 of the Agreement is hereby amended by
adding the following paragraph thereto:
"(e) Fairfield Funding Corporation has provided Nominee
with a copy of an assignment transferring all beneficial
interest in the 1993-A Trust Intervals previously held by
FAC (and the related Sales Contracts) to the 1993-A Trustee.
FAC, as servicer under the 1993-A Pledge Agreement, or the
1993-A Trustee shall provide Nominee with copies of any
future assignments of beneficial interest in the 1993-A
Trust Intervals, which assignments shall be in the form of a
certificate and shall identify the 1993-A Trust Intervals
and related Sales Contracts assigned thereby. Any
assignment submitted to Nominee by FAC shall be accompanied
by an approval, in writing, of the 1993-A Trustee. Nominee
shall be entitled to rely upon such certificates in
determining beneficial ownership of the 1993-A Trust
Intervals."
4. The first two paragraphs of Section 12 of the
Agreement are hereby amended to read as follows:
"12. Default Under Loan Agreements. In the event of
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default of Fairfield or FAC under any of the Loan
Agreements, the related Bank shall notify the Nominee in
writing of such event at such time as notice of such default
is given to FCI or FAC, as the case may be, which writing
shall identify those Properties giving rise to Sales
Contracts relating to the defaulted Loan Agreement and may
further instruct Nominee that with respect to those
Properties that Nominee shall act only upon the written
instructions of the related Bank whereupon Nominee shall
only take action with respect to the related Properties
identified in the notice, notwithstanding instructions of
FCI or FAC to the contrary, as directed by the related Bank.
The receipt of any notice of default shall relate only
to the specific Loan Agreement, and as to all other Loan
Agreements, Nominee shall continue to act upon the written
request of Fairfield, FAC, Bank of Boston, Agent Bank, the
1992 Purchaser or the 1993-A Trustee, as the case may be, as
to the Properties relating thereto."
5. 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 the Properties related to the 1993-A
Trust Intervals granted to the 1993-A Trustee by this
Agreement and the 1993-A Pledge Agreement are hereby deemed
superior and senior to any and all interests granted
pursuant to the Mortgages listed in Schedule B hereto. The
parties hereto acknowledge that Nominee holds title to the
1993-A Trust Intervals for the benefit of the purchasers of
the 1993-A Trust Intervals and the 1993-A Trustee, subject
only to the terms and conditions of the related Sales
Contracts and the 1993-A Pledge Agreement, respectively."
4. Section 15(b) of the Agreement is hereby amended
to read as follows:
"(b) This Agreement may also be amended 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 and The First National Bank of Boston, both
individually and as Agent Bank. Any amendment undertaken
pursuant to this paragraph 15(b) shall not relate to
Intervals listed on Schedule C or D attached hereto, nor
shall it in any way impair or amend the rights of the 1992
Purchaser or the 1993-A Trustee 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."
5. Section 16 of the Agreement is hereby amended by
adding the following addresses thereto:
First Commercial Trust Company, N.A.
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Xxxxx XxXxxxxx Counsel:
First Commercial Trust Company, Xxxxxxxxx Xxxxx, III
National Association Xxxx, Xxxxxxx & Xxxxx
First Comm. Building, 7th Fl. 000 X. Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000 (000) 000-0000
Telecopy: (000) 000-0000 Telecopy: (501) 372-
3359
6. The Agreement is hereby amended to add as Schedule D
thereto those Sales Contracts described on Exhibit A to this
Amendment.
7. All provisions of the Agreement remain in full
force and effect.
8. An executed copy of this Amendment shall be
provided to all parties to the Agreement.
9. 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.
9. This Amendment may be executed in one or more
counterparts, all of which shall constitute one and the same
instrument.
DATED as of the date first above written.
FAIRFIELD COMMUNITIES, INC.
/s/Xxx Xxxxxxxx By:/s/ Xxxxxx X. Xxxxxx
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Witness Title: Senior Vice President
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FAIRFIELD MYRTLE BEACH, INC.
/s/Xxx Xxxxxxxx By:/s/ Xxxxxx X. Xxxxxx
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Witness Title: Vice President
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FAIRFIELD ACCEPTANCE CORPORATION
/s/Xxx Xxxxxxxx By:/s/Xxxxxx X. Xxxxxx
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Witness Title: President
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LAWYERS TITLE INSURANCE CORPORATION
By:/s/ Xxxxxxx X. Xxxxxxxx
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Witness Title:National Division Manager
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THE FIRST NATIONAL BANK OF BOSTON
By:/s/ Xxxxxx X. Xxxxx
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Witness Title: Vice President
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THE FIRST NATIONAL BANK OF BOSTON,
as agent for a group of lenders
By:/s/ Xxxxxx X. Xxxxx
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Witness Title: Vice President
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FIRST COMMERCIAL TRUST COMPANY, N.A.,
AS 1993-A TRUSTEE
/s/Xxxxxx DeHau By:/s/Xxxxxx XxXxxxxx
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Witness Title: Trust Operations Manager
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EXHIBIT A
SCHEDULE D
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1993-A TRUST INTERVALS
[Information Omitted]
