AMENDED AND RESTATED
SEAWATCH PLANTATION 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 Myrtle
Beach, Inc., a Delaware corporation and wholly-owned
subsidiary of FCI ("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 (hereinafter defined
as "FNBB"), as agent and lender to FCI and FMB 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 Seawatch Plantation Title
Agreement, dated as of September 11, 1995.
W-I-T-N-E-S-S-E-T-H:
WHEREAS, Fairfield is engaged in the development of a
certain resort and recreational project known as Fairfield
SeaWatch Plantation, Horry County, South Carolina, 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 Fairfield projects and in
connection therewith has obtained a security interest in
certain Sales Contracts as security for the repayment of the
borrowings of FCI and FMB 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 and FMB 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 Fairfield 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 may from time to time hereafter sell
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 will in turn be 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; and
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
services 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.
Fairfield means FCI and FMB and such other
---------
subsidiaries as may be added to this Agreement
from time to time. The term Fairfield does not
include FAC.
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, FMB, 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, FMB, and FNBB, as
amended and in effect from time to time.
FMB means Fairfield Myrtle Beach, Inc., a
---
Delaware corporation and wholly-owned subsidiary
of FCI.
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 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 any timeshare association(s)
---
organized in connection with the establishment of
the Project.
Project means the Fairfield SeaWatch
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Plantation project and such other projects as may
be developed by Fairfield 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 Fairfield 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,
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partnerships, corporations or other entities who
have entered into a Sales Contract with Fairfield
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 Fairfield 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 as agent and lender
-------------
pursuant to the FCI Boston Loan Agreement and the
FAC Boston Loan Agreement 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 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 pursuant to regime
documents filed or to be filed creating an
underlying ownership interest which is 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. Fairfield, 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
Fairfield, 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 Fairfield 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 Fairfield,
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 Fairfield 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 Fairfield 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
Fairfield or FAC, 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. Fairfield, 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 Fairfield or FAC Relating to
--------------------------------------------------
Conveyances by Nominee.
----------------------
(a) Fairfield 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) Fairfield 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. Fairfield and FAC
agree that each will maintain all records necessary to
identify beneficial ownership of the Property.
(c) Fairfield 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 will provide to Nominee 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) 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, Fairfield 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
Fairfield 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 Fairfield 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
Fairfield 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 any 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. Fairfield 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. Fairfield 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 Fairfield, 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. Fairfield 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 Fairfield, Nominee shall, except as
to such Property as Fairfield may have previously assigned
or transferred beneficial interest, reconvey all or any
portion of the Property to Fairfield, subject to the
Mortgages listed in Exhibit B, for the purpose of granting
construction Mortgages or for any other purpose for which
Fairfield may require legal title; and further, Nominee
agrees to execute such Mortgages covering such Property, as
requested in writing by Fairfield, to any Secured Party or
such third parties as Fairfield 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 Fairfield, 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 Fairfield, FAC, or FCC, 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 Fairfield, 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 Fairfield, 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
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
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 Fairfield,
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 Fairfield 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 Fairfield, 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
Fairfield, 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
-----------------------------------
Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxx
Lawyers Title Insurance Lawyers Title Insurance
Corporation Corporation
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx 000 Xxxxxxxx, XX 00000
Xxxxxx, XX 00000 (000) 000-0000
(000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
Fairfield Communities, Inc.,
Fairfield Myrtle Beach, 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
Fax: (000) 000-0000 (000) 000-0000
Fax: (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 Fax: (000) 000-0000
Fax: (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 Fairfield 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 MYRTLE BEACH, INC.
/s/Xxxx Xxxxxxx By: /s/Xxxxxx X. Xxxxxx
----------------------------- -------------------------------
Witness Title: Vice President
----------------------------
FAIRFIELD ACCEPTANCE CORPORATION
/s/Xxxx Xxxxxxx By: /s/Xxxxxx X. Xxxxxx
----------------------------- -------------------------------
Witness Title: President
---------------------------
LAWYERS TITLE INSURANCE CORPORATION
/s/Xxxxxx X. Xxxxxxx By: /s/Xxxxxxx X. Xxx
----------------------------- -------------------------------
Witness Title: Senior Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as agent and lender 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 Xxxxxxxx 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
----------
PROPERTY THAT MAY BE CONVEYED TO NOMINEE
All that certain piece, parcel or tract of land situate, lying
and being in the County of Horry, State of South Carolina, and
more particularly described as a 10.06 tract known as Blocks D
and E, Arcadian Shores, North of Myrtle Beach, as shown on that
map prepared for Myrtle Beach Hotel Developers, Inc. by Xxxxxx X.
Xxxxxxx & Associates, Inc., dated March 1, 1995 and revised March
23, 1995 and recorded in the office of the RMC for Horry County
in Plat Book 134, Page 74. For a more complete and particular
description of the property, reference is hereby made to the
above referred to plat and record thereof.
SCHEDULE B
----------
MORTGAGES
Fairfield Mortgage:
------------------
Mortgage, Mortgage Rider, Security Agreement and Financing Statement,
dated as of ________________, 1995, among FMB and FNBB and recorded on
__________________, 1995 in Mortgage Book _____, Page _____ in the office
of Mense Conveyances for Horry County, South Carolina.
FAC Mortgage:
------------
Mortgage, Mortgage Rider, Security Agreement and Financing Statement,
dated as of ________________, 1995, among FAC and FNBB and recorded on
__________________, 1995 in Mortgage Book _____, Page _____ in the office
of Mense Conveyances for Horry County, South Carolina.
SCHEDULE C
----------
PROJECT DESCRIPTION
A. Description of Property. The Property is located in Horry
------------------------
County, South Carolina, and is described in more detail under paragraph D
below.
B. Description of Buildings. The Project will consist initially of
-------------------------
one (1) Building, depicted and designated on the Phase IA Plat and Plans as
"Building 1". Said Building, as more fully shown on the Phase IA Plat and
Plans, shall be constructed on concrete columns.
C. Identification and Description of Units. Type A Units shall
-----------------------------------------
contain approximately 1,295 square feet of interior space, Type B Units
shall contain approximately 1,002 square feet of interior space and Type C
Units shall contain approximately 705 square feet of interior space, all as
more fully shown on the Phase IA Plat and Plans. For purposes of
identification, each Unit bears a different identifying number ("Unit
Number") and no Unit in the Project shall bear the same Unit Number. Each
Unit Number and Unit Type in Building 1 shall be designated as follows:
Xxxx Xxxxxx Xxxx Xxxx
000, 000, 401 C
202, 302, 000 X
000, 000, 000 X
204, 304, 000 X
000, 000, 000 X
206, 306, 406 C
207, 307, 407 A
D. Real Property Description. BEING a parcel of land situated in
--------------------------
Dogwood Neck Township, Horry County, South Carolina and more particularly
described as follows:
COMMENCING at a 1/2 inch iron pipe located at the southeast corner of the
intersection of Lake Shore Drive and Hilton Road in the Arcadian Shores
Section north of Myrtle Beach and said iron pipe being the northeast corner
of a 10.06 acre parcel of land shown on a map prepared by Xxxxxx Associates
of NMB, Inc. of the SeaWatch Plantation Horizontal Property Regime Boundary
Survey dated July 14, 1995 and also being the same 10.06 acre parcel shown
on a map prepared by Xxxxxx Associates of NMB, Inc. that is recorded in
Plat Book 135 at Page 77 in the office of the Register of Mense Conveyance
for Horry County; thence from said iron pipe along the southern right-of-
way line of Lake Shore Drive S.5401'40"W. 24.64 feet to a 1/2 inch iron
pipe at the beginning of a curve to the right, said curve has a radius of
931.42 feet and a chord that has a bearing of S.58 19'10"W. and a length of
143.51 feet; thence along the arc of said curve 143.65 feet to a 1/2 inch
iron rebar, the POINT OF BEGINNING; thence leaving the right-of-way of Lake
Shore Drive S.27 15'44"E. 27.79 feet to a 1/2 inch iron rebar; thence
S.34 44'19"E. 198.39 feet to a 1/2 inch iron rebar; thence S.35 51'22"E.
159.91 feet to a 1/2 inch iron rebar; thence S.21 02'11"W. 60.84 feet to a
1/2 inch iron rebar; thence S.68 10'48"W. 62.17 feet to a 1/2 inch iron
rebar; thence N.35 51'22"W. 172.01 feet to a 1/2 inch iron rebar; thence
N.41 35'22"W. 267.50 feet to a 1/2 inch iron rebar in a curve in the
southern right-of-way line of Lake Shore Drive, and said curve has a radius
of 931.42 feet and a chord that has a bearing of N.67 21'23"E. and a length
of 150.00 feet; thence along the arc of said right-of-way line 150.17 feet
to the POINT OF BEGINNING and containing 1.16 acres more or less. All
bearings quoted herein are based on South Carolina State Plane Grid (NAD
'83) and all distances quoted are horizontal ground distances, not grid
distances.
ACCESS AND MAINTENANCE EASEMENT
PHASE 1A
BEGINNING at a 1/2 inch iron rebar in the southern right-of-way line of
Lake Shore Drive and said rebar being the northeast corner and POINT OF
BEGINNING of Phase 1A described above; thence along the eastern line of
Phase 1A S.27 15'44"E. 27.79 feet to a 1/2 inch iron rebar; thence
S.34 44'19"E. 90.50 feet to a point; thence leaving the eastern line of
Phase 1A S.54 10'48"W. 36.38 feet to a point; thence N.35 49'12"W. 90.00
feet to a point; thence S.77 01'14"W. 21.55 feet to a point; thence
N.24 12'18"W. 30.39 feet to a point in a curve in the southern right-of-way
line of Lake Shore Drive and said curve has a radius of 931.42 feet and a
chord that has a bearing of N.64 29'15"E. and a length of 56.88 feet;
thence along the arc of said right-of-way line in a northeasterly direction
56.89 feet to the BEGINNING and containing 0.12 acres more or less and
being a portion of the 1.16 acres of Parcel 1A described above. All
bearings quoted herein are based on South Carolina State Plane Grid (NAD
'83) and all distances are horizontal ground distances, not grid distances.
Schedule D
----------
Triple-A Timeshare Intervals and
Triple-A Undivided Ownership Interests
None
