SECOND AMENDMENT TO
WESTWINDS THIRD AMENDED AND RESTATED
TITLE CLEARING AGREEMENT
(LAWYERS)
This Amendment is made and entered into as of March 28, 1995,
by and among Fairfield Communities, Inc., a Delaware corporation
(referred to herein as "FCI"); Fairfield 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 (collectively referred to herein together with
all past, present and future participants 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 "1995 Collateral Agent"), pursuant to the 1995 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 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 a Receivables Purchase Agreement, dated as of
March 28, 1995 (the "1995 Purchase Agreement"), which Sales Contracts
have in turn been pledged by FCC to the 1995 Collateral Agent for the
benefit Triple-A One Funding Corporation, a Delaware corporation
(referred to herein as "Triple-A"), pursuant to the 1995 Credit
Agreement; and
WHEREAS, The First National Bank of Boston, both individually
and as Agent Bank, has released its lien upon and its interest in the
Sales Contracts and the underlying Intervals pledged to the 1995
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 1995 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, 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, the 1993-A Trustee or the 1995 Collateral Agent, as
applicable.
1995 Collateral Agent means Capital Markets Assurance
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Corporation, a New York stock insurance company, as collateral agent
for the benefit of itself and Triple-A pursuant to the 1995 Credit
Agreement.
1995 Credit Agreement means that certain Credit Agreement dated
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as of March 28, 1995, by and among FAC, as servicer, FCI, FCC, as
borrower, the 1995 Collateral Agent, as collateral agent, and Triple-
A, relating to loans to be made by Triple-A to FCC.
FAC means, as appropriate, Fairfield Acceptance Corporation,
---
individually or in its capacity as servicer under the 1993-A Pledge
Agreement or the 1995 Credit Agreement.
FAC Boston Loan Agreement means the Third Amended and Restated
-------------------------
Revolving Credit Agreement dated September 28, 1993, as amended, by
and between FAC and Agent Bank.
FCC means Fairfield Capital Corporation, a Delaware
---
corporation.
FCI Boston Loan Agreement means the Amended and Restated
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Revolving Credit Agreement dated September 28, 1993, as amended, by
and between FCI, FMB and The First National Bank of Boston and its
past, present and future participants.
1995 Intervals means those Intervals which give rise to certain
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Sales Contracts pledged, assigned and transferred to the 1995
Collateral Agent pursuant to the 1995 Credit Agreement. The 1995
Intervals are listed on Schedule E attached to this Agreement and
made a part hereof, as amended from time to time.
Loan Agreement means, as appropriate, (i) the FCI Boston Loan
--------------
Agreement, (ii) the FAC Boston Loan Agreement, (iii) the 1992 Sale
Agreement, (iv) the 1993-A Pledge Agreement, or (v) the 1995 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.
2. The third sentence of Section 2 of the Agreement is
hereby amended to read as follows:
"Except for those Properties in which the beneficial
interest has been transferred or pledged to the 1992 Purchaser,
the 1993-A Trustee or the 1995 Collateral Agent, 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 1995 Credit Agreement, except as
provided by Section 12 hereof; (iii) contemporaneously with the
conveyance of any of the Properties that qualify for deeding in
accordance with the terms of the Sales Contracts, pursuant to
authorization from the related 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 Nominee with copies of assignments
evidencing (i) the transfer of beneficial interest in the 1995
Intervals and the related Sales Contracts from FAC to FCC
pursuant to the 1995 Purchase Agreement and (ii) the pledge and
assignment of such assets and interests from FCC to the 1995
Collateral Agent pursuant to the 1995 Credit Agreement. FAC,
as servicer under the 1995 Credit Agreement, or the 1995
Collateral Agent shall provide Nominee with copies of any
future assignments of beneficial interest in the 1995
Intervals, which assignments shall be in the form of a
certificate and shall identify the 1995 Intervals and related
Sales Contracts assigned thereby. To be effective, any such
assignment submitted to Nominee by FAC shall be accompanied by
an approval, in writing, of the 1995 Collateral Agent. Nominee
shall be entitled to rely upon such certificates in determining
beneficial ownership of the 1995 Intervals."
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
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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 1995 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, Agent Bank,
the 1992 Purchaser, the 1993-A Trustee or the 1995 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 1995
Intervals granted to the 1995 Collateral Agent by this
Agreement and the 1995 Credit Agreement are hereby deemed
superior and senior to any and all interests granted pursuant
to the Mortgages listed in Schedule B hereto. The parties
hereto acknowledge that Nominee holds title to the 1995
Intervals for the benefit of the purchasers of the 1995
Intervals and the 1995 Collateral Agent, subject only to the
terms and conditions of the related Sales Contracts and the
1995 Credit Agreement, respectively. The Nominee shall not
transfer, pledge or assign the 1995 Intervals except as
expressly provided herein."
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 1995 Credit Agreement, the 1995 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 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 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 1995 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 1995 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
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Counsel:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The First National Bank of Boston ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
First Commercial Trust Company, N.A.
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Counsel:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, III
First Commercial Trust Company, ▇▇▇▇ Law Firm
National Association ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
First Commercial Building, (▇▇▇) ▇▇▇-▇▇▇▇
7th Floor Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Capital Markets Assurance Corporation
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Counsel:
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Skip ▇▇▇▇▇, Esq.
Attn: Head of Exposure Sidley & Austin
Management One First National Plaza
(▇▇▇) ▇▇▇-▇▇▇▇ 45th Floor
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
16. The Agreement is hereby amended to add as Schedule E
thereto the 1995 Intervals described on Exhibit A to this Amendment.
17. 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/ ▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Witness TITLE: Senior Vice President
FAIRFIELD ACCEPTANCE CORPORATION
/s/ Les R. Baldege BY:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Witness TITLE: President
LAWYERS TITLE INSURANCE CORPORATION
/s/M.E. Hastings BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Witness TITLE: Senior Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender under the FCI
Boston Loan Agreement
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------
Witness TITLE: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender under the FAC
Boston Loan Agreement
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -----------------------------
Witness TITLE:Vice President
CAPITAL MARKETS ASSURANCE CORPORATION
as 1995 Collateral Agent
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇ BY:/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Witness TITLE: Vice President
EXHIBIT A
SCHEDULE E
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1995 INTERVALS
[Information Omitted]
