FOURTH AMENDED AND RESTATED OPERATING AGREEMENT
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THIS FOURTH AMENDED AND RESTATED OPERATING AGREEMENT ("Agreement") is
made and entered into as of January 15, 1998, by and between FAIRFIELD
COMMUNITIES, INC.("FCI"), a Delaware corporation, FAIRFIELD MYRTLE BEACH, INC.,
a Delaware corporation ("FMB"), SEA GARDENS BEACH AND TENNIS RESORT, INC., a
Florida corporation ("Sea Gardens"), VACATION BREAK RESORTS, INC., a Florida
corporation ("VBR"), VACATION BREAK RESORTS AT STAR ISLAND, INC., a Florida
corporation ("VBRS"), PALM VACATION GROUP, a Florida general partnership
("PVG"), OCEAN RANCH VACATION GROUP, a Florida general partnership("ORVG")(each
of Sea Gardens, VBR, VBRS, PVG and ORVG are hereinafter collectively referred
to as the "VB Subsidiaries"), and each of FCI, FMB and the VB Subsidiaries are
hereinafter referred to as "Originators") and FAIRFIELD ACCEPTANCE CORPORATION
("FAC"), a Delaware corporation and wholly owned subsidiary of FCI.
W I T N E S S E T H :
WHEREAS, each Originator is now and will become in the future the owner
of numerous receivables arising out of its sales of houses, condominiums,
townhouses, subdivided lots and timeshare intervals in the normal course of its
business;
WHEREAS, each of FMB and the VB Subsidiaries desire to sell, and FCI
desires to purchase from time to time, receivables generated by FMB and the VB
Subsidiaries;
WHEREAS, FCI desires to sell, and FAC desires to purchase from time to
time, receivables generated by FCI or purchased from the other Originators;
WHEREAS, FAC or its subsidiaries from time to time sell or pledge
receivables pursuant to certain Securitizations (as defined below);
WHEREAS, FAC desires to appoint FCI as its agent to xxxx, collect,
administer and service all such receivables owned by FAC or otherwise
administered and serviced by FAC pursuant to Securitizations; and
WHEREAS, FCI and FAC desire to enter into this Agreement in amendment
and restatement of, and in substitution for, that certain Third Amended and
Restated Operating Agreement dated as of December 9, 1994, executed by and
between FCI and FAC and to add each Originator other than FCI as a Party to this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the
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following definitions are used:
A. "Assigned Base Contract" means any Base Contract (and
related Transferred Assets) which, as of any date, FCI sells to FAC,
including any Base Contract subsequently pledged or sold by FAC, or its
subsidiaries, pursuant to a Securitization.
(b) "Base Contract" has the meaning set forth in the FAC Credit
Agreement.
(c) "Base Contract Completion" means full performance by an
Originator of all of its duties and obligations to the Obligor under a
Base Contract, including, but not limited to, completion of
improvements or amenities relating to the subject Properties and
delivery of certain services.
(d) "Business Day" means any day on which banking institutions
in Boston, Massachusetts are open for the transaction of banking
business.
(e) "Collections" has the meaning set forth in the FCI
Security Agreement.
(f) "Contract File" has the meaning set forth in the FCI
Security Agreement.
(g) "Contract Settlement Date" has the meaning as set forth in
the FAC Credit Agreement.
(h) "Document of Sale" means one of the following agreements:
(A) with respect to Base Contracts (and related
Transferred Assets) sold to FCI by an Originator other than
FCI from time to time, the Sale and Assignment of Contracts
and Assignment of Mortgages executed by each such Originator,
as assignor, in favor of FCI, as assignee, which shall be in
substantially the form of "Exhibit A" attached hereto;
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(B) with respect to Base Contracts (and related
Transferred Assets) sold to FAC by FCI from time to time
pursuant to Section 2(a) hereof, the Sale and Assignment of
Contracts and Assignment of Mortgages executed by FCI, as
assignor, in favor of FAC, as assignee, which shall be in
substantially the form of "Exhibit B" attached hereto;
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(C) with respect to Base Contracts (and related
Transferred Assets) sold to FCI by FAC from time to time
pursuant to Section 2(g) hereof or repurchased by FCI from FAC
pursuant to Section 4 hereof, the Sale and Assignment of
Contracts and Assignment of Mortgages executed by FAC, as
assignor, in favor of FCI, as assignee, which shall be in
substantially the form of "Exhibit C" attached hereto;
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(i) "Effective Date" shall mean the effective date of this
Agreement, as stated above.
(j) "Fairshare Plus Program" has the meaning set forth in the
FCI Security Agreement.
(k) "FCI Credit Agreement" means that certain Amended and
Restated Revolving Credit Agreement, dated as of January 15, 1998,
executed by and among FCI and BankBoston, N.A., individually and as
agent for the benefit of itself and the other financial institutions
who now or may become lenders thereunder, as the same may be amended or
otherwise modified from time to time,
(m) "FCI Security Agreement" means the Amended and Restated
Security Agreement, dated as of January 15, 1998, between FCI and
BankBoston, N.A., as collateral agent.
(l) "FAC Credit Agreement" means that certain Amended and
Restated Revolving Credit Agreement, dated as of January 15, 1998,
executed by and among FAC and BankBoston, N.A., individually and as
agent for the benefit of itself and the other financial institutions
who now are or may become lenders thereunder, as the same may be
amended or otherwise modified from time to time.
(n) "Insurance Policy" has the meaning set forth in the
FCI Security Agreement.
(o) "Lots" has the meaning set forth in the FCI Security
Agreement.
(p) "Mortgage" has the meaning set forth in the FCI Security
Agreement.
(q) "Obligor" means the person or persons obligated to make
payments under a Base Contract.
(r) "Originator" shall have the meaning set forth in the
recitals to this Agreement and shall include any Subsidiary which
hereafter sells Base Contracts to FCI pursuant to this Agreement;
whereupon, and by reason of such sale, such
Subsidiary shall therefore be deemed to have become a party hereto and
shall become subject to all of the obligations and have all of the
rights of an Originator hereunder with respect to such Base Contracts.
(s) "Payment" has the meaning set forth in the FCI Security
Agreement.
(t) "POA" has the meaning set forth in the FCI Security
Agreement.
(u) "Properties" means houses, condominiums, townhouses,
subdivided lots and fixed or undivided interest timeshare intervals
sold under Base Contracts.
(v) "Records" has the meaning set forth in the FCI Security
Agreement.
(w) "Reservation System" has the meaning set forth in the FCI
Security Agreement.
(x) "Repurchase Default" has the meaning set forth in the FAC
Credit Agreement.
(y) "Security Interests" means any security interests, liens
or other encumbrances on the Assigned Base Contracts in favor of any
third party.
(z) "Securitization(s)" has the meaning set forth in the FAC
Credit Agreement.
(aa) "Subsidiary" means a corporation or partnership more than
fifty percent (50%) of the voting capital stock or voting interests of
which are owned directly or indirectly by FCI, but does not include
FAC.
(bb) "Transferred Assets" has the meaning set forth in Section
2(h) hereof.
(cc) "Title Clearing Agreement" has the meaning set forth in
the FCI Security Agreement.
(dd) "Title Documents" means any deeds, mortgages, deeds of
trust, vendors' liens or other document evidencing liens or
encumbrances on the Properties securing the respective interests of
each Originator, FAC, the Obligors or any third parties.
(ee) "VOIs" has the meaning set forth in the FCI Security
Agreement.
2. Sale and Ownership of Base Contracts.
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(a) Subject to the terms hereof, Section 8.16 of the FAC
Credit Agreement and Section 9.5.2(ii) of the FCI Credit Agreement, FCI
and FAC hereby agree that FCI may sell to FAC and FAC may purchase, as
hereinafter provided and as provided in the FAC Credit Agreement, all
of FCI's right, title and interest in and to such Base Contracts (and
related Transferred Assets) shall be described in the particular
Document of Sale executed by FCI in connection with each such sale.
(b) Sales of Base Contracts (and related Transferred Assets)
from FCI to FAC under this Agreement shall be accomplished by (i) FAC's
compliance with the requirements of Section 8.16 of the FAC Credit
Agreement and FCI's compliance with Section 9.5.2(ii) of the FCI Credit
Agreement, (ii) in connection with each sale, the delivery to and
acceptance by FAC of a Document of Sale executed by FCI, and (iii) in
connection with each sale, the satisfaction of all other requirements
of this Agreement.
(c) Concurrently with the sale to FAC pursuant to Section 2(a)
hereof of any Base Contract that was originated by an Originator other
than FCI, each such Originator shall execute and deliver to FCI a
Document of Sale which evidences the transfer, sale and assignment of
all of such Originator's right, title and interest in and to such Base
Contract.
(d) Each group of Base Contracts which are sold by FCI to FAC
from time to time shall be of a quality with respect to credit
worthiness of the Obligors and collection experience at least
equivalent to the quality of the aggregate portfolio of the Base
Contracts held by FCI and the other Originators at the time of such
sale. All such purchases by FAC shall be subject to all conditions and
stipulations, and shall otherwise be in compliance with all terms and
provisions, of the FAC Credit Agreement.
(e) FCI shall be obligated to repurchase Assigned Base
Contracts from FAC pursuant to Section 4 of this Agreement.
(f) No Originator shall be obligated to sell, nor shall FAC be
obligated to purchase, any Base Contracts (and related Transferred
Assets) under this Agreement.
(g) Subject to the terms of Sections 8.16(d) and 9.5.2(i) of
the FAC Credit Agreement, FCI and FAC hereby agree that FAC may sell to
FCI, and FCI may purchase all of FAC's right, title and interest in and
to such Base Contracts (and related Transferred Assets) as shall be
described in the
particular Document of Sale executed by FAC in connection with each
such sale.
(h) Any sale and purchase of a Base Contract between (i) any
Originator other than FCI and FCI and (ii) FCI and FAC, shall be
evidenced by a Document of Sale and shall be deemed to include the
transfer from such parties of all of the applicable assignors' right,
title and interest in (A) such Base Contract, (B) all Payments, other
Collections and other funds received with respect to the such Base
Contracts on or after the effective date of such Document of Sale, (C)
the VOIs and Lots relating to such Base Contracts, and the Title
Clearing Agreements and the FairShare Plus Program insofar as they
relate to such VOIs or Lots, (D) any Mortgages relating to such Base
Contracts, (E) any Insurance Policies relating to such Base Contracts,
and (F) the Contract Files and other Records relating to such Base
Contracts and any interest in or other proceeds from any of the
foregoing, and any security therefor ((a)-(f) being collectively
referred to as the "Transferred Assets").
(i) In the event any Mortgage being transferred in conjunction
with an Assigned Base Contract pursuant to the terms of this Agreement
has not been filed of record in the appropriate county in which the
underlying Property relating to the Base Contract is located, then as a
condition subsequent to the effectiveness of such transfer, either FCI
or the Originator of such Assigned Base Contract, as appropriate, shall
cause such Mortgage to be so filed promptly following the date upon
which the underlying Property is deeded to the Obligor under such Base
Contract.
3. Purchase Price for Base Contracts.
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(a) The purchase price for any Base Contract (and related
Transferred Assets) purchased by FCI from FMB or any VB Subsidiary will
be equal to one hundred percent (100%) of the outstanding principal
balance remaining of such Base Contract at the time of purchase by FCI,
plus all accrued and unpaid interest thereon.
(b) The purchase price for any Base Contract (and related
Transferred Assets) purchased by FAC from FCI will be equal to one
hundred percent (100%) of the outstanding principal balance remaining
of such Base Contract at the time of purchase by FAC, plus all accrued
and unpaid interest thereon.
4. Obligation to Repurchase
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In the event an Assigned Base Contract owned by FAC is in Repurchase
Default, FCI shall be obligated to repurchase such Assigned Base Contract as
follows:
(a) following the occurrence of such Repurchase Default, FCI
shall repurchase such Assigned Base Contract from FAC on the earliest
to occur of (i) the first Contract Settlement Date following a request
to so repurchase by FAC or (ii) the first Contract Settlement Date
following a request of the FAC Agent to effect such repurchase after an
Event of Default, by payment of a purchase price in the amount of one
hundred percent 100% of the principal balance remaining unpaid under
such Assigned Base Contract (the repurchase price determined in such
manner being hereinafter referred to as the "Default Repurchase
Price"); and
(b) FCI shall be obligated to repurchase Assigned Base
Contracts in Repurchase Default pursuant to this Section 4 of this
Agreement regardless of whether a Default or Event of Default may have
occurred and be continuing under the FAC Credit Agreement.
5. Documents.
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(a) Whenever Base Contracts (and related Transferred Assets)
are sold under this Agreement, the party selling such Base Contracts
(and related Transferred Assets) shall make available to the other
party, at its request and for its inspection and copying, the
following:
(i) Documents, if any, evidencing such Base Contracts
and any Title Documents or releases of Security Interests
relating thereto and any evidence of filing or recording
thereof.
(ii) A listing showing the original amount of the
Base Contracts and the amount remaining unpaid thereon if less
than the face amount.
(iii) Such other financial information then possessed
by the seller of the Base Contracts regarding the Obligors'
financial condition as the purchaser of such Base Contracts
may from time to time request.
(b) Nothing contained in this Agreement shall require any
party hereunder to give, unless otherwise required by applicable law,
notice to any Obligor that a Base Contract has been sold pursuant to
the terms hereof.
6. Settlement. At the close of each Contract Settlement Date, the
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balance due between the parties shall thereupon be settled by payment in cash or
in such other manner as may be agreed upon between the parties. Each transfer at
the time of the settlement on a Contract Settlement Date shall for the purposes
hereof be deemed to have been made as of the end of such Contract Settlement
Date.
7. Representations, Warranties and Covenants. In connection with (i)
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the sale of Base Contracts (and related Transferred Assets) pursuant to Section
2(a) hereof, FCI hereby represents and warrants to FAC, and (ii) the sale of
Base Contracts (and related Transferred Assets) pursuant to Section 2(a) hereof
that were originated by an Originator other than FCI, each Originator other than
FCI hereby represents and warrants to each of FCI and FAC, as follows:
(a) The figures set forth in each Document of Sale and
settlement statement delivered to FCI or FAC, as applicable, will be
true and correct as of the time made;
(b) At the time of sale of any Base Contracts, such Base
Contracts and Title Documents relating thereto will be valid and
legally enforceable in accordance with their respective terms;
(c) At the time of sale of any Base Contracts, beneficial
ownership in the Base Contracts will not have been conveyed or assigned
by FCI or any other Originator to a third party;
(d) Each Document of Sale executed and delivered to FCI or
FAC, as applicable, hereunder will vest in FCI or FAC, as applicable,
all right, title and interest in and to the Base Contracts and all
related property described by such Document of Sale;
(e) At the time of sale of Base Contracts to FAC, such Base
Contracts will be free and clear of all liens, encumbrances, setoffs,
counterclaims or other rights or defenses except as specifically
provided for under the terms of the Base Contracts, or as permitted by
the FAC Credit Agreement and Title Documents relating to the
Properties, the sale of which gave rise to the Base Contracts;
(f) At the time of sale of Base Contracts to FCI, such Base
Contracts will be free and clear of all liens, encumbrances, setoffs,
counterclaims or other rights and defenses except as specifically
provided for under the terms of the Base Contracts, or as permitted by
the FCI Credit
Agreement and Title Documents relating to the Properties, the sale of
which gave rise to the Base Contracts;
(g) At the time of sale of any Base Contracts, such Base
Contracts will comply with any and all applicable laws and regulations;
(h) Each Originator, as applicable, shall at all times remain
solely responsible for Base Contract Completion and shall fully perform
its duties and obligations to the Obligors under the Base Contracts
originated by it in accordance with the terms thereof.
8. Services. Until a termination by FAC pursuant to this Section 8(e),
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FAC hereby appoints FCI to perform the following services for FAC, and FAC will
reimburse FCI for the reasonable fees and expenses FCI incurs in performing such
services as follows:
(a) To xxxx and collect all Assigned Base Contracts when due
and with the same diligence and procedures employed by FCI with respect
to its Base Contracts utilizing separate lock boxes for FCI, FAC (or
any FAC Subsidiaries under a Securitization) as soon as practicable. To
the extent payments on the Assigned Base Contracts are mistakenly
applied to reduce FCI's indebtedness under the FCI Credit Agreement,
FCI shall (after making appropriate adjustments for payments on FCI's
Base Contracts mistakenly applied to FAC's indebtedness under the FAC
Credit Agreement) make a settlement and remit all such payments to FAC
(or any FAC Subsidiaries under a Securitization) together with interest
calculated on a daily basis at a rate equivalent to the interest cost
to FAC or its Subsidiaries under the FAC Credit Agreement or
Securitization, as applicable.
(b) To perform such other acts and provide services,
including, without limitation, executive, financial, legal, tax,
accounting and other services as FAC may from time to time reasonably
request and FCI may agree to perform or provide.
(c) Nothing contained in this Agreement shall in any way
restrict FCI at any time from exchanging, renewing, extending or in any
way altering the Assigned Base Contracts being serviced by FCI,
provided that any such exchange, renewal, extension or alteration shall
be consistent with FCI's and FAC's then existing standard credit
policies. Appropriate adjustment shall be made for any such change,
renewal, extension or alteration on the Contract Settlement Date
immediately following the date such action took place.
(d) FAC shall reimburse FCI for FCI's reasonable fees and
expenses for all services provided by FCI to FAC, provided the amount
of such reimbursement shall not exceed three quarters of one percent
(.75%) per annum of the aggregate outstanding principal balance of all
Assigned Base Contracts, and shall be payable monthly in arrears.
(e) FAC may terminate the services of FCI under this Section 8
upon providing five days prior written notice of such termination to
FCI. Such termination shall not act to terminate any other rights or
obligations of the parties under this Agreement.
9. Indemnification. FCI agrees to indemnify FAC against, and hold FAC
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harmless from, any and all liabilities, losses, damages, costs and expenses
arising out of claims asserted against FAC by any third party relating to (i)
any wrongful or negligent act or omission to act of FCI, in performing any of
the services which FCI shall perform for or furnish to FAC pursuant to the
provisions of this Agreement, (ii) any breaches by FCI or any other Originator
of the representations and warranties in Section 7, and (iii) any failures by
FCI or any other Originator to timely and fully perform all of its covenants to
the Obligors under the Base Contracts, including, but not limited to, those
duties and obligations of an Originator relating to Base Contract Completion;
provided however, FAC shall promptly notify FCI in writing of each such claim
made or suit therein instituted against FAC and the details thereof, and shall
not pay or compromise any such claim or suit without the written approval of
FCI, and FCI shall be permitted to assume and direct the defense of any such
suit by counsel of its own choosing and at its own expense.
10. Records. FAC, FCI and the other Originators mutually agree to:
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(a) Safely maintain such documents as may be required for the
collection of Assigned Base Contracts.
(b) Keep such accounts and other records as will enable FAC
and FCI to determine at any time the status of all Assigned Base
Contracts, including whether such Assigned Base Contracts are in
Repurchase Default.
(c) Permit FCI or FAC, as applicable, on reasonable notice at
any time during normal business hours to inspect, audit, check and make
abstracts from accounts, records, correspondence and other papers
pertaining to Assigned Base Contracts.
(d) Deliver to FCI or FAC, as applicable, upon its request and
at its expense, any of said accounts, records,
correspondence and other papers as the other party may deem reasonably
essential to enable it to enforce its rights, if then being
challenged, with respect to Assigned Base Contracts. The books and
records of each Originator and FAC will be made to reflect the sale of
Base Contracts.
11. Waivers. Each Originator and FAC hereby waive any failure or delay
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on the part of the other party in asserting or enforcing any of its rights or
in making any claims or demands hereunder.
12. Termination; Amendment. This Agreement may not be terminated,
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amended or modified except upon the written consent thereto of each Originator
and FAC, which will not be unreasonably withheld; provided that FCI and FAC
agree not to terminate, amend or modify this Agreement to the extent that such
action would be inconsistent with the termsof the FAC Credit Agreement or any
agreement entered into by FAC in connection with the issuance of securities by
FAC. All of FCI's and FAC's obligations hereunder with respect to the servicing
of Assigned Base Contracts shall otherwise continue in effect after the date of
termination until FAC shall have received payment of the balance remaining to be
paid on all Assigned Base Contracts owned by FAC on the date of termination or
until FCI shall have otherwise repurchased such Assigned Base Contracts pursuant
to the terms hereof, and thereupon this Agreement shall terminate for all
purposes, other than the rights of indemnification provided for herein, which
shall survive the termination of this Agreement.
13. Software.
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(a) Subject to paragraph (b) below, FCI and each Originator hereby
grants a royalty free, perpetual, irrevocable, non-exclusive license to FAC and
its successors and assigns which for all purposes of this license shall include,
without limitation, any secured party which enforces its rights against FAC or
any transferee of any such secured party which acquires rights in connection
with or subsequent to such enforcement, in, to and under all rights of FCI and
each Originator in or to all intellectual property (including, without
limitation, computer software, tapes, disks and other electronic media, books,
records and documents) relating to the Assigned Base Contracts; including,
without limitation, all rights of FCI and each Originator in, to or under any
such software, electronic media, books, records and documents used
(i) to account for and service the Assigned Base Contracts
and related Transferred Assets;
(ii) in the management of any VOI resorts, and the VOIs
and Lots located within such VOI resorts;
(iii) in the monitoring of accounts receivables
and third party contracts relating to the
management of properties located within any
VOI resort;
(iv) in managing and operating the FairShare Plus Program;
(v) in managing and operating the Reservation System; and
(vi) in managing and operating the Fairfield Destinations
Vacation Club.
and all rights, title and interest of FCI and each Originator in, to or under
relevant licenses, sublicenses, leases, contracts (including, without
limitation, service and maintenance contracts), warranties and guaranties
relating to any such software, electronic media, books, records and documents,
as the case may be, including without limitation, all such rights arising under
such software, electronic media, books, records and documents (all of the rights
described in this clause (a) being referred to collectively as the "Licensed
Rights"). FAC shall have the right to use all of the Licensed Rights in
connection with the conduct of its business as it deems necessary or
appropriate, including without limitation the right to use such Licensed Rights
for the purposes specified in clauses (a)(i)-(vi) immediately above and the
right to assign, sublicense or otherwise transfer all or any part of such rights
to one or more third parties in connection with the transfer of all or any part
of the Assigned Base Contracts owned or serviced by FAC (including, without
limitation, any such transfer pursuant to or in connection with the grant by FAC
of a security interest in any or all of its assets and/or the enforcement by any
such secured party of its interests in such assets).
(b) The license granted to FAC pursuant to clauses (a)(ii)-(vii)
immediately above, shall only be deemed to confer upon FAC, and its respective
successors and assigns, the sole right to sub-license the use of such software,
electronic media, books, records and documents (at no charge, except for
reimbursement of administrative, legal and other expenses associated with such
sublicense) to (i) FCI (as long as FCI or any of its subsidiaries is manager of
the subject POA) or the subject POA (in the event FCI or any of its subsidiaries
is not the manager of such POA) in the case of clauses (a)(ii)-(iii) above or
(ii) FCI (or if applicable any successor to FCI) under the FairShare Plus
Program or Fairfield Destinations Club in the case of clause (a)(iv)-(v) above.
(c) All rights and licenses granted under or pursuant to this clause
(b) (the "License") are, and shall otherwise be deemed to be, for purposes of
Section 365(n) of the United States Bankruptcy
Code (the "Code"), licenses to rights in and to "intellectual property" as
defined under the Code. The parties hereto agree that FAC, as licensee of such
rights under the License, shall have and retain and may fully exercise and
exploit all of its respective rights under the Code. The parties hereto further
agree that, in the event of the commencement of bankruptcy proceedings by or
against FCI under the Code, FAC, as licensee, shall be entitled to have and
retain all of its rights under the License.
(d) If an Event of Default has occurred and is continuing under the FAC
Credit Agreement, FCI hereby agrees to provide to any of the persons or entities
described in clauses b(i) and (ii) immediately above, and each of their
successors and assigns, immediately upon the written request of FAC, copies of
all software (including without limitation both object code and source code),
tapes disks, other electronic media, books, records, documents and other
tangible embodiments of the Licensed Rights.
14. Notices. Any notice, instruction, request, consent, demand or other
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communication required or contemplated by this Agreement to be in writing, shall
be given or made or communicated by United States first class mail, addressed
as follows:
If to an Originator: c/o Fairfield Communities, Inc.
00000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
If to FAC: Fairfield Acceptance Corporation
00000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
15. Successors and Assigns. The covenants, representations, warranties
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and agreements herein set forth shall be mutually binding upon, and inure to the
mutual benefit of, each Originator and its successors and assigns and FAC and
its successors and assigns.
16. Governing Law. This Agreement shall be governed by the laws of the
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State of Arkansas.
17. ENTIRE AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL, ENTIRE
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AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OF ORAL,
RELATING TO THE SUBJECT MATTER HEREOF INCLUDING, WITHOUT LIMITATION, THAT
CERTAIN THIRD AMENDED AND RESTATED OPERATING AGREEMENT DATED AS OF DECEMBER 9,
1994 BY AND BETWEEN FCI AND FAC, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
18. Conflict With FAC Credit Agreement. If the terms of this Operating
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Agreement conflict in any manner with the terms and provisions of the FAC Credit
Agreement, the terms and provisions of the FAC Credit Agreement shall control.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have set their hands and have
affixed their corporate seals as of the day and year first above written.
FAIRFIELD COMMUNITIES, INC.
By: /s/Xxxxx X. Xxxxxx
Title: Treasurer
FAIRFIELD ACCEPTANCE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Title: Treasurer
FAIRFIELD MYRTLE BEACH, INC.
By:/s/Xxxxx X. Xxxxxx
Name: /s/Xxxxx X. Xxxxxx
Title: Treasurer
SEA GARDENS BEACH AND TENNIS RESORT, INC.
By: /s/Xxxxx X. Xxxxxx
Name:/s/Xxxxx X. Xxxxxx
Title: Treasurer
VACATION BREAK RESORTS, INC.
By: /s/Xxxxx X. Xxxxxx
Name:/s/Xxxxx X. Xxxxxx
Title: Treasurer
VACATION BREAK RESORTS AT STAR
ISLAND, INC.
By: /s/Xxxxx X. Xxxxxx
Name:/s/Xxxxx X. Xxxxxx
Title: Treasurer
PALM VACATION GROUP, by its
General Partners:
VACATION BREAK RESORTS at
Palm Aire, Inc.
By: /s/Xxxxx X. Xxxxxx
Name:/s/Xxxxx X. Xxxxxx
Title: Treasurer
PALM RESORT GROUP, INC.
By: /s/Xxxxx X. Xxxxxx
Name:/s/Xxxxx X. Xxxxxx
Title: Treasurer
OCEAN RANCH VACATION GROUP,
by its General Partners:
VACATION BREAK at OCEAN RANCH, INC.
By: /s/Xxxxx X. Xxxxxx
Name: /s/Xxxxx X. Xxxxxx
Title: Treasurer
OCEAN RANCH DEVELOPMENT, INC.
By: /s/Xxxxx X. Xxxxxx
Name:/s/Xxxxx X. Xxxxxx
Title: Treasurer
