exv10w1






Exhibit 10.1




AMENDMENT NUMBER 1




Dated as of October 23, 2009




to




INDENTURE AND SERVICING AGREEMENT




Dated as of November 7, 2008




by and among




SIERRA TIMESHARE CONDUIT RECEIVABLES FUNDING II, LLC,




as Issuer




and




WYNDHAM CONSUMER FINANCE, INC.,




as Servicer




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,




as Trustee




and




U.S. BANK NATIONAL ASSOCIATION,




as Collateral Agent




 









 





AMENDMENT NUMBER 1




to




INDENTURE AND SERVICING AGREEMENT




     THIS AMENDMENT NUMBER 1 dated as of October 23, 2009 (this “Amendment”) amends that INDENTURE
AND SERVICING AGREEMENT dated as of November 7, 2008 (the “Original Indenture”) and both this
Amendment and the Original Indenture are by and among SIERRA TIMESHARE CONDUIT RECEIVABLES FUNDING
II, LLC, a limited liability company organized under the laws of the State of Delaware, as issuer,
WYNDHAM CONSUMER FINANCE, INC., a Delaware corporation, as servicer, WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as trustee and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as collateral agent.



RECITALS




     WHEREAS, the Issuer, the Servicer, the Trustee and the Collateral Agent desire to amend the
Original Indenture as provided herein.



     WHEREAS, in accordance with (x) Section 15.1(b) of the Original Indenture, upon the Amendment
Effective Date (as defined herein) the Required Facility Investors have consented to such amendment
of the Original Indenture and the Rating Agency Condition has been satisfied, (y) Section 15.1(g)
of the Original Indenture, each Funding Agent has consented to such amendment of the Original
Indenture and (z) Section 15.16 of the Original Indenture, the Deal Agent has consented to such
amendment of the Original Indenture.



     WHEREAS, capitalized terms used in this Amendment and not otherwise defined herein or amended
hereby shall have the meanings assigned to such terms in the Original Indenture.



     NOW THEREFORE, in consideration of the mutual agreements herein contained, each party agrees
as follows for the benefit of the other parties and for the benefit of the Noteholders.



ARTICLE I

DEFINITIONS




     Section 1.1. Amendment of Definitions



     The definition of each of the following terms contained in Section 1.1 of the Original
Indenture is hereby amended and restated to read in its entirety as follows:



          “AAA Advance Rate” shall mean,




          (i) prior to but excluding the November 2009 Payment Date, 52.75%; and




 









 








          (ii) as of the November 2009 Payment Date and thereafter, 51%.





     “Capped Monthly Trustee Expenses” shall mean, for any Payment Date, the lesser
of (i) the sum of the unreimbursed reasonable expenses incurred by the Trustee under each of
the Facility Documents to which the Trustee is a party and (ii) the excess, if any, of (a)
$10,000 over (b) the amount of all payments made pursuant to clause (y) of priority FIRST of
Section 4.1 during the calendar quarter in which such Payment Date occurs; provided,
however, that if an Event of Default has occurred and the Series 2008-A Notes have
been accelerated pursuant to Section 11.2 or any portion of the Collateral has been sold on
or prior to such Payment Date, the Capped Monthly Trustee Expenses shall equal the sum of
the unreimbursed reasonable expenses incurred by the Trustee under each of the Facility
Documents to which the Trustee is a party.




     “Default Percentage” shall mean for any Payment Date, a fraction (i) the
numerator of which is the sum of (x) the aggregate outstanding Loan Balance on such date of
all Pledged Loans which became Defaulted Loans during the related Due Period and (y) the
aggregate outstanding Loan Balance on such date of all Pledged Loans which were transferred
to an Obligor pursuant to the Servicer’s owner transfer program during the related Due
Period other than Defaulted Loans and (ii) the denominator of which is the Aggregate Loan
Balance on such Payment Date (without giving effect to any transfers of Additional Pledged
Loans to the Collateral Agent following the last day of the related Due Period).




     “Eligible Account” shall mean either (a) a segregated account (including a
securities account) with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of Columbia (or
any domestic branch of a foreign bank), having corporate trust powers and acting as trustee
for funds deposited in such account, so long as any of the securities of such depository
institution shall have a credit rating from each of S&P and Moody’s in one of its generic
rating categories which signifies investment grade.




     “Excess Concentration Amount” shall mean, on any date, an amount equal to the
sum of (i) the Non-US Excess Amount, (ii) the Green Loans Excess Amount, (iii) the Delayed
Completion Green Loans Excess Amount, (iv) the New Seller Excess Amount, (v) the Transition
Period Excess Amount, (vi) the Large Loans Excess Amount, (vii) the State Concentration
Excess Amount, (viii) the Documents in Transit Excess Amount, (ix) the Fixed Week Excess
Amount, (x) the Extended Term Excess Amount, (xi) the Presidential Reserve Loan Excess
Amount, (xii) the WorldMark Loan Excess Amount, (xiii) the WorldMark Loan FICO Score 650
Excess Amount, (xiv) the WorldMark Loan FICO Score 700 Excess Amount, (xv) the WorldMark
Loan FICO Score 750 Excess Amount, (xvi) the WorldMark Loan FICO Score 800 Excess Amount,
(xvii) the Wyndham Loan FICO Score 650 Excess Amount, (xviii) the Wyndham Loan FICO Score
700 Excess Amount, (xix) the Wyndham Loan FICO Score 750 Excess Amount, (xx) the Wyndham
Loan FICO Score 800 Excess Amount and (xxi) the California Excess Amount.



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     “Extended Term Excess Amount” shall mean, on any date, the amount, if any, by
which (i) the sum of the Loan Balances on such date for all Pledged Loans which have an
original term greater than 120 months as of the last day of the immediately preceding Due
Period exceeds (ii) ten percent (10%) of the Adjusted Loan Balance on such date.




     “Green Loan Deficiency Amount” shall mean, as of any date as of which a Rating
Downgrade Condition existed on the last day of the immediately preceding Due Period, the
excess of (A) the product of (i) the excess of (a) the sum of the Loan Balances on such date
(or, with respect to any such Green Loans that have been released from the Lien of this
Indenture pursuant to Section 5.7, the Loan Balance on the date of such release) for all
Loans which were Green Loans pledged to the Collateral Agent as Collateral as of the last
day of the Due Period in which such Rating Downgrade Condition occurred over (b) the sum of
(1) the Green Loans Excess Amount (without taking into account the second sentence of the
definition thereof) on such date and (2) the Delayed Completion Green Loans Excess Amount on
such date and (ii) the AAA Advance Rate over (B) the sum of the amounts distributed to
Noteholders pursuant to clause NINTH of Section 4.1 on each Payment Date prior to such date.




     “Green Loans Excess Amount” shall mean, on any date, the greater of (x) the
amount, if any, by which (i) the sum of the Loan Balances on such date for all Pledged Loans
which are Green Loans (not including any Delayed Completion Green Loans) as of the last day
of the immediately preceding Due Period exceeds (ii) ten percent (10%) of the Adjusted Loan
Balance on such date and (y) the sum of the Six-Month Green Loans Excess Amount and the
Twelve-Month Green Loans Excess Amount on such date. Notwithstanding the above, on any date
as of which a Rating Downgrade Condition existed on the last day of the immediately
preceding Due Period, the Green Loans Excess Amount shall mean the sum of the Loan Balances
on such date for all Pledged Loans which are Green Loans (other than any Delayed Completion
Green Loans) as of the last day of such Due Period.




     “Large Loans Excess Amount” shall mean, on any date, the sum of (a) the
combined amount of the Loan Balances on such date of all Pledged Loans which have a Loan
Balance on such date greater than $100,000 plus (b) the amount by which (i) the combined
amount of the Loan Balances on such date of all Pledged Loans which have a Loan Balance on
such date of $75,000 or more (but not more than $100,000) on such date exceeds (ii) (A) if
the weighted average FICO Score for all Pledged Loans which have a Loan Balance on such date
of $75,000 or more (but not more than $100,000) is 700 or greater, ten percent (10%) of the
Adjusted Loan Balance on such date or (B) if the weighted average FICO Score for all Pledged
Loans which have a Loan Balance on such date of $75,000 or more (but not more than $100,000)
is less than 700, five percent (5.0%) of the Adjusted Loan Balance on such date.




     “Maturity Date” shall mean the November 2026 Payment Date.




     “Rating Agency” shall mean S&P.



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     “Rating Agency Condition” shall mean, with respect to any action to be taken,
that each Rating Agency shall have been given at least five (5) days prior notice thereof by
the Issuer and shall have notified the Issuer and the Trustee in writing that such action
will not result in a reduction, downgrade, suspension or withdrawal of the rating then
assigned by it to the Series 2008-A Notes.




     “Reserve Required Amount” shall mean (i) so long as no Amortization Event has
occurred, as of any date an amount equal to the greater of (x) 2.0% of the Aggregate Loan
Balance on such date and (y) the most recently reported Estimated Fees, plus, in either case
(A) the sum of (1) $150,000 related to any indemnification of the Trustee pursuant to
Section 13.5 and (2) $375,000, and (B) an amount equal to the sum of the Green Loan Reserve
Percentage of the Loan Balance for each Pledged Loan which is a Green Loan multiplied by the
applicable Advance Rate on such date, and (ii) on and after the first Payment Date following
the occurrence of an Amortization Event, the lesser of (x) 0.25% of the Notes Principal
Amount as of the date on which the Amortization Event occurred and (y) 50% of the Notes
Principal Amount as of such Payment Date before taking into account any distributions of
principal on such Payment Date.




     “Six-Month Green Loans Excess Amount” shall mean, on any date, the amount, if
any, by which (i) the sum of the Loan Balances on such date for all Pledged Loans which are
Six-Month Green Loans as of the last day of the immediately preceding Due Period exceeds
(ii) ten percent (10%) of the Adjusted Loan Balance on such date.




     “Twelve-Month Green Loans Excess Amount” shall mean, on any date, the amount,
if any, by which (i) the sum of the Loan Balances on such date for all Pledged Loans which
are Twelve-Month Green Loans as of the last day of the immediately preceding Due Period
exceeds (ii) five percent (5%) of the Adjusted Loan Balance on such date.




     “WorldMark Loan FICO Score 650 Excess Amount” shall mean, on any date, the
amount by which (i) the sum of Loan Balances on such date for all Pledged Loans that are
WorldMark Loans that have a FICO Score of 650 or less exceeds (ii) 24% of the WorldMark
Adjusted Loan Balance on such date.




     “WorldMark Loan FICO Score 700 Excess Amount” shall mean, on any date, the
amount by which (i) the sum of Loan Balances on such date for all Pledged Loans that are
WorldMark Loans that have a FICO Score of 700 or less exceeds (ii) the sum of (A) 51% of the
WorldMark Adjusted Loan Balance on such date and (B) the WorldMark Loan FICO Score 650
Excess Amount on such date.




     “Wyndham Loan FICO Score 650 Excess Amount” shall mean, on any date, the amount
by which (i) the sum of Loan Balances on such date for all Pledged Loans that are Wyndham
Loans that have a FICO Score of 650 or less exceeds (ii) 16% of the Wyndham Adjusted Loan
Balance on such date.




     “Wyndham Loan FICO Score 700 Excess Amount” shall mean, on any date, the amount
by which (i) the sum of Loan Balances on such date for all Pledged Loans that



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are Wyndham Loans that have a FICO Score of 700 or less exceeds (ii)the sum of (A) 38%
of the Wyndham Adjusted Loan Balance on such date and (B) the Wyndham Loan FICO Score 650
Excess Amount on such date.



     Section 1.2. Addition of Definitions



     Section 1.1 of the Original Indenture is hereby amended by adding the following definitions
thereto in the appropriate alphabetical order:




     “Qualifying Payment Date” shall mean (x) any Payment Date for which during the
related Due Period Pledged Loans (other than any Loans included in the FICO Score of 7-Year
Loans Excess Amount or the FICO Score of 10-Year Loans Excess Amount) with an aggregate Loan
Balance on the first day of such Due Period equal to at least 40% of the Aggregate Loan
Balance on the first day of such Due Period are released from the Lien of the Indenture
pursuant to Section 5.4 and (y) each of the three Payment Dates immediately following any
Payment Date specified in clause (x).




     “Weighted Average Remaining Term” shall mean, as of any Payment Date, a number
of months equal to (x) the sum for each Loan that is a Pledged Loan as of the last day of
the related Due Period of the product of (i) the Loan Balance of such Loan as of the last
day of the related Due Period and (ii) the number of months remaining in the term of such
Loan as of the last day of the related Due Period, divided by (y) the sum of the Loan
Balances of all Pledged Loans as of the last day of the related Due Period.




     “WorldMark Loan FICO Score 750 Excess Amount” shall mean, on any date, the
amount by which (i) the sum of Loan Balances on such date for all Pledged Loans that are
WorldMark Loans that have a FICO Score of 750 or less exceeds (ii) the sum of (A) 72.50% of
the WorldMark Adjusted Loan Balance on such date, (B) the WorldMark Loan FICO Score 650
Excess Amount on such date and (C) the WorldMark Loan FICO Score 700 Excess Amount on such
date.




     “WorldMark Loan FICO Score 800 Excess Amount” shall mean, on any date, the
amount by which (i) the sum of Loan Balances on such date for all Pledged Loans that are
WorldMark Loans that have a FICO Score of 800 or less exceeds (ii) the sum of (A) 95% of the
WorldMark Adjusted Loan Balance on such date, (B) the WorldMark Loan FICO Score 650 Excess
Amount on such date, (C) the WorldMark Loan FICO Score 700 Excess Amount on such date and
(D) the WorldMark Loan FICO Score 750 Excess Amount on such date.




     “Wyndham Loan FICO Score 750 Excess Amount” shall mean, on any date, the amount
by which (i) the sum of Loan Balances on such date for all Pledged Loans that are Wyndham
Loans that have a FICO Score of 750 or less exceeds (ii) the sum of (A) 65% of the Wyndham
Adjusted Loan Balance on such date, (B) the Wyndham Loan FICO Score 650 Excess Amount on
such date and (C) the Wyndham Loan FICO Score 700 Excess Amount on such date.




     “Wyndham Loan FICO Score 800 Excess Amount” shall mean, on any date, the amount
by which (i) the sum of Loan Balances on such date for all Pledged Loans that



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are Wyndham Loans that have a FICO Score of 800 or less exceeds (ii) the sum of (A) 94%
of the Wyndham Adjusted Loan Balance on such date, (B) the Wyndham Loan FICO Score 650
Excess Amount on such date, (C) the Wyndham Loan FICO Score 700 Excess Amount on such date
and (D) the Wyndham Loan FICO Score 750 Excess Amount on such date.



     Section 1.3. Deletion of Definitions



     Section 1.1 of the Original Indenture is hereby amended by deleting each of the following
definitions in its entirety:


Club Wyndham Access Loan

Club Wyndham Access Loan Excess Amount

Series 2002-1 Loan Balance

Series 2002-1 Pledged Loan

Series 2008-A Pool Extended Term Excess Amount

Series 2008-A Pool Green Loans Capped Amount

Series 2008-A Pool Green Loans Excess Amount

Series 2008-A Pool Six-Month Green Loans Excess Amount

Series 2008-A Pool Twelve-Month Green Loans Excess Amount




ARTICLE II

AMORTIZATION EVENTS




     Section 2.1. Amendments to Amortization Events. Section 10.1 of the Original
Indenture is hereby amended by:



     (a) deleting each of clauses (f), (g) and (s) thereof in their entirety and inserting the
following in lieu thereof:




     (f) the Four Month Default Percentage (x) as of any Qualifying Payment Date
exceeds 2.0%, and (y) as of any other Payment Date exceeds 1.5%;




     (g) the Three Month Rolling Average Delinquency Ratio as calculated for any
Payment Date exceeds 5.0%;




     (s) the Securitized Pool Four Month Default Percentage exceeds 1.5% for four
consecutive Payment Dates;



     (b) deleting the word “or” at the end of clause (r) of Section 10.1, inserting the word “or”
at the end of clause (s) of Section 10.1, and inserting the following as a new clause (t) of
Section 10.1:




     (t) on any Payment Date, the Weighted Average Remaining Term is less than 96
months;



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     (c) amending and restating the last paragraph of Section 10.1 to read in its entirety as
follows:




     then, in the case of an event described in any clause except clause (a)(1), (c)
or (e) of the Events of Default in Section 11.1, or clause (b), (m) or (t) above,
the Deal Agent at the direction of the Majority Facility Investors, or, with respect
to an event described in clause (j), (l) or (n), the Deal Agent, at the direction of
any Funding Agent, by notice given in writing to the Issuer, the Servicer and the
Trustee, may declare that an Amortization Event has occurred as of the date of such
notice and, in the case of any event described in clause (a)(1), (c) or (e) of the
Events of Default in Section 11.1, or clause (b) or (m) of this Section 10.1, an
Amortization Event will occur immediately upon the occurrence of such event without
any notice or other action on the part of the Deal Agent, the Trustee or any other
entity and, in the case of any event described in clause (t) above, an Amortization
Event will occur immediately upon the occurrence of such event unless the Rating
Agency Condition has been met with respect to such event on or prior to such Payment
Date.



ARTICLE III

RATING AGENCY REVIEW




     Section 3.1. Amendment to Section 15.17. Section 15.17 of the Original Indenture is
hereby amended and restated to read in its entirety as follows:




     Section 15.17. Rating Agency Review. The Issuer hereby agrees that if
the Issuer elects to maintain the ratings on the Series 2008-A Notes on and after
October 22, 2010, the Issuer shall prior to October 22, 2010 submit the Series
2008-A Notes for review to each Rating Agency then maintaining a rating on the
Series 2008-A Notes.



ARTICLE IV

MISCELLANEOUS PROVISIONS




     Section 4.1. No Other Amendments. Except as expressly amended, modified and
supplemented hereby, the provisions of the Original Indenture are and shall remain in full force
and effect.



     Section 4.2. Governing Law. This Amendment is governed by and shall be construed in
accordance with the laws of the State of New York and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.



     Section 4.3. Counterparts. This Amendment may be executed in two or more counterparts
(and by different parties on separate counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument.



     Section 4.4. Headings. The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision hereof.



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     Section 4.5. Effectiveness. This Amendment shall be effective upon the date (the
“Amendment Effective Date”) that is the later of (i) the date hereof and (ii) the first date on
which each of the following conditions precedent shall have been satisfied:




     (a) This Amendment shall have been executed and delivered by each of the parties
hereto;




     (b) The Trustee shall have received the written consent of the Required Facility
Investors, each Funding Agent and the Deal Agent to this Amendment;




     (c) The Rating Agency Condition (as such term is defined in the Original Indenture)
shall have been satisfied;




     (d) The Trustee shall have received any Opinions of Counsel required by the Trustee to
be delivered to the Trustee; and




     (e) The First Amendment to the Note Purchase Agreement, dated the date hereof (the “NPA
Amendment”), shall have been executed and delivered by each party thereto.



     Section 4.6. Purchaser Group Invested Amount. The Issuer hereby notifies the Trustee
that as of October 26, 2009, the entire principal amount represented by the Series 2008-A Note
registered in the name of CITICORP NORTH AMERICA, INC., as Funding Agent, will have been acquired
by and transferred to other Purchaser Groups. Upon receipt by the Trustee of the Series 2008-A
Note registered in the name of CITICORP NORTH AMERICA, INC., the Trustee shall cancel such note.
The remaining outstanding Series 2008-A Notes shall represent the entire Notes Principal Amount of
$168,891,380.73 as of October 26, 2009 (subject to future Increases and principal payments and
cancellations as provided in the Original Indenture and the Note Purchase Agreement), and with
respect to each of such remaining outstanding Series 2008-A Notes, as of October 26, 2009 and after
giving effect to the NPA Amendment, the principal amount thereof shall be equal to the applicable
Purchaser Group Invested Amount (as defined in the Note Purchase Agreement) with respect to each
Purchaser Group, as set forth on Schedule I to this Amendment.



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     IN WITNESS WHEREOF, Issuer, the Servicer, the Trustee and the Collateral Agent have caused
this Indenture to be duly executed by their respective officers as of the day and year first above
written.



	 	 	 	 	 
	 	SIERRA TIMESHARE CONDUIT RECEIVABLES FUNDING II, LLC,

as Issuer

 	 
	 	By:  	/s/ Mark A. Johnson
 	 
	 	 	Name:  	Mark A. Johnson 	 
	 	 	Title:  	President 	 
	 
	 	WYNDHAM CONSUMER FINANCE, INC.,

as Servicer

 	 
	 	By:  	/s/ Mark A. Johnson
 	 
	 	 	Name:  	Mark A. Johnson 	 
	 	 	Title:  	President 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	/s/ Jennifer C. Davis
 	 
	 	 	Name:  	Jennifer C. Davis 	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, as

as Collateral Agent

 	 
	 	By:  	/s/ Tamara Schultz-Fugh
 	 
	 	 	Name:  	Tamara Schultz-Fugh 	 
	 	 	Title:  	Vice President 	 
	 



[Signature page for Amendment Number 1 to Indenture]