Ex. 10.1
EXECUTION COPY
AMENDMENT NO. 1
Dated as of March 28, 2005
to
DEVELOPER TRANSFER AGREEMENT
Dated as of December 19, 2003
THIS AMENDMENT NO.
1 to DEVELOPER TRANSFER AGREEMENT is entered into as of
March 28, 2005 between Silverleaf Resorts, Inc. (the “
Company ”), a Texas corporation, and Silverleaf
Finance II, Inc., a Delaware corporation (“ SPV
”). Capitalized terms used herein and not defined herein have
the meaning ascribed thereto in Schedule I to the Loan
and Security Agreement, dated as of December 19, 2003 (as may
be amended, restated, supplemented or otherwise modified from time
to time, the “ SPV Loan Agreement ”), between
SPV and Textron Financial Corporation (“ TFC
”).
PRELIMINARY STATEMENTS
A. The
Company and SPV desire to amend certain provisions of the Developer
Transfer Agreement, dated as of December 19, 2003, between the
Company and SPV (as amended, restated, supplemented or otherwise
modified from time to time, the “ Developer Transfer
Agreement ”).
B. In
consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, such parties hereby agree as
follows:
SECTION 1.
Amendments to the Developer Transfer Agreement . Effective
as of the date hereof, subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the
Developer Transfer Agreement is hereby amended as
follows:
1.1
Clause (x) of the proviso to the first sentence of
Section 2.1(a) is hereby amended and restated to read as
follows:
“SPV
shall not be required to purchase any Conveyed Assets if it does
not have sufficient funds to pay for such assets nor shall SPV be
permitted to incur Indebtedness to purchase the Receivables, except
that prior to March 10, 2005 SPV may incur indebtedness to
Developer evidenced by the Subordinated Note for such purpose to
the extent that, after giving effect to such indebtedness, the
Overcollateralization Amount equals or exceeds the Required
Overcollateralization Amount”.
1.2
Clauses (vi) and (vii) of Section 4.1 is
hereby amended and restated in its entirety to read as
follows:
“(vi)
the aggregate Outstanding Balance of PPM Receivables in Pool I
determined as of the Cut-off Date does not exceed 5% of the
aggregate Outstanding Balance of the Sold Receivables and the
Contributed Receivables determined as of the Cut-off
Date,
and,
as of the Second Advance Funding Date, no Pledged Receivable in
Pool II is a PPM Receivable; and (vii) as of each Substitution
Date, the aggregate Outstanding Balance of Exchange Receivables and
Replacement Receivables to be added into Pool I for that
Substitution Date that constitute PPM Receivables does not exceed
the aggregate Outstanding Balance of the Deleted Receivables and
Upgrade Receivables for that Substitution Date that constitute PPM
Receivables, and no Substitute Receivable to be added into Pool II
is a PPM Receivable.”
1.3
Section 6.2(a) is hereby amended and restated in its
entirety to read:
“(a)
The Company may (but shall not be required to), with the written
consent of the Master Servicer, convey Substitute Receivables to
SPV, provided that the requirements of Section 3.2 of the SPV
Loan Agreement are satisfied, and, at the time of the substitution,
SPV is “solvent” within the meaning of applicable
fraudulent transfer laws. The Company shall deliver to the Master
Servicer, on the tenth Business Day prior to the proposed date of
substitution, which proposed date shall be a Payment Date (the
“Substitution Date”), a “Substitution
Certificate” in the form of Exhibit B identifying
(i) all of the Exchange Receivables, and the Delinquent
Receivables for which they will be exchanged, and (ii) all
Replacement Receivables and the related Upgrade Receivables, and
the Company and the SPV each shall certify in such Substitution
Certificate that SPV is solvent within the meaning of applicable
fraudulent transfer laws. The exchange or replacement of such
Receivables shall not become effective until TFC has approved such
Substitution Certificate and Sale Assignment on or prior to the
Substitution Date. To the extent that the aggregate outstanding
balance of all Substitute Receivables transferred to the SPV in
exchange for Delinquent Receivables on any day exceeds the then
current value of such Delinquent Receivables, (i) the SPV will
be required to make a payment to the Company for the amount of such
excess in cash, to the extent that the SPV has cash available, or
(ii) to the extent the SPV does not have cash available,
(A) prior to March 10, 2005, and, if after giving effect
to such increase, the Overcollateralization Amount would not be
less than the Required Overcollateralization Amount, the SPV will
make such payment by increasing the balance of the Subordinated
Note, or (B) in any other case, the amount of such excess will
be deemed to be a capital contribution by the Company to the SPV.
To the extent that the aggregate outstanding balance of all
Substitute Receivables transferred to the SPV as a replacement for
Upgrade Receivables on any day
