EXHIBIT 10.2.4
[Confidential and Proprietary Information removed and is available to the SEC on
request]
THIRD AMENDMENT, dated as of January 13, 2004 (this
"Amendment"), to the Amended and Restated Transfer and Administration Agreement
(the "Agreement"), dated as of December 15, 2000, as amended as of January 15,
2002 and as of January 14, 2003, by and among CNH Capital Receivables Inc., a
Delaware corporation, as transferor (the "Transferor"), Case Credit Corporation,
a Delaware corporation ("Case Credit"), in its individual capacity and as
Servicer (the "Servicer"), the several commercial paper conduits listed on
Schedule I thereto and their respective permitted successors and assigns (the
"CP Conduit Purchasers"), the several banks party thereto (the "APA Banks"), the
agent banks party thereto (the "Funding Agents") and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as administrative agent for the CP
Conduit Purchasers, the APA Banks and the Funding Agents (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, the Transferor has requested, and, upon this
Amendment becoming effective, the Servicer, the CP Conduit Purchasers, the APA
Banks, the Funding Agents and the Administrative Agent have agreed, that certain
provisions of the Agreement be amended in the manner provided for in this
Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. All capitalized terms defined in the
Agreement and used herein shall have the meanings given to them therein.
2. Amendments to Article I. Article I of the Agreement is
hereby amended by:
(a) inserting the following new defined terms in alphabetical
order:
"`Backup Servicer' shall mean (i) Systems & Services
Technologies, Inc., a Delaware corporation, and its successors and
assigns, or (ii) an institution that is selected by the Servicer with
the consent of the Purchasers (which consent shall not be unreasonably
withheld).
`Backup Servicer Account' is defined in Section 8.1(a).
`Backup Servicer Account Required Amount' shall mean $300,000;
provided, however that the Backup Servicer Account Required Amount
shall be zero on any Settlement Date on which the unsecured long-term
debt of CNH Global N.V. is rated at least Ba2 by ▇▇▇▇▇'▇.
`Backup Servicer Account Shortfall Amount' is defined in
Section 7.14.
`Backup Servicer Expenses' is defined in Section 7.14.
`Backup Servicer Fees' shall mean the fees payable to the
Backup Servicer pursuant to the Backup Servicing Agreement which in any
event shall not accrue at a rate per annum in excess of [Confidential].
`Backup Servicing Agreement' means the agreement to be entered
into by the Transferor, the Servicer and the Backup Servicer pursuant
to which the Backup Servicer agrees, among other things, to:
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(a) on a one-time basis, obtain data and systems
information from the Servicer's servicing system, confirm that
such data is readable by the Backup Servicer and map such data
to the Backup Servicer's systems; and
(b) on a monthly basis, based on information relating
to the Pooled Receivables provided to the Backup Servicer by
the Servicer as of the last day of the immediately preceding
Collection Period, confirm the accuracy of the following
information contained in the Servicing Statement for such
Collection Period: the aggregate Realized Losses on all Pooled
Receivables that became Liquidated Receivables during such
Collection Period, the Pooled Receivable Delinquency Ratio on
the Settlement Date immediately succeeding such Collection
Period and the Pool Balance set forth in such Servicing
Statement.
`Realized Losses' means, with respect to any Liquidated
Receivable, the excess of the Principal Balance of such Liquidated
Receivable plus accrued and unpaid interest thereon over the amount of
any related Liquidation Proceeds.";
(b) deleting therefrom the definitions of "Performance
Guarantor" and "Performance Guaranty" in their respective entireties;
(c) deleting therefrom the definitions of the following
defined terms in their respective entireties and substituting in lieu thereof
the following new definitions:
"`Basic Documents' shall mean the Receivables Purchase
Agreements, the Assignments, this Agreement, the Backup Servicing
Agreement, the Fee Letter, the Transferred Receivables Assignments, the
Pooled Interest Rate Caps and the Interest Rate Cap Assignments.
`Discounted Present Value' shall mean, on any Settlement Date,
an amount equal to the present value, discounted at a rate per annum
equal to the sum of (i) the Cap Strike Rate for such Settlement Date
and (ii) the sum of (A) the product of 1.50 times the Net Loss
Percentage for such Settlement Date, (B) [Confidential] and (C)
[Confidential], of the payments on a Receivable having (x) equal
monthly payments in an amount equal to the Monthly Payment Amount on
such Settlement Date and (y) a term to maturity equal to the Weighted
Average Maturity on such Settlement Date.
`Required Enhancement Percentage' shall mean on any Settlement
Date (i) during any period when the unsecured long-term debt of CNH
Global N.V. is rated at least BB by S&P and at least Ba2 by ▇▇▇▇▇'▇,
[Confidential] and (ii) during any period when the unsecured long-term
debt of CNH Global N.V. does not satisfy the ratings required by clause
(i) hereof, [Confidential]; provided, however, that if (A) the Net Loss
Percentage on any Settlement Date exceeds [Confidential] or (B) the CNH
Portfolio Delinquency Ratio on any Settlement Date exceeds
[Confidential], the Required Enhancement Percentage on such Settlement
Date shall equal the sum of [Confidential] and the percentage set forth
in clause (i) or (ii) then applicable.
`Scheduled Expiry Date' shall mean, with respect to any
Purchaser, the later of (a) January 11, 2005 and (b) the last day of
any extension of such Purchaser's Commitment made in accordance with
Section 3.1(c)."
3. Amendment to Article II of the Agreement. Article II of
the Agreement is hereby amended by inserting the following new subsection (c) to
Section 2.4 thereof:
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"(c) As collateral security for the Transferor's obligation to
make funds available in the Backup Servicer Account available to the
Administrative Agent to pay Backup Servicer Expenses, the Transferor
hereby assigns to the Administrative Agent on behalf of the Purchasers,
all of the Transferor's right, title and interest in and to the Backup
Servicer Account and all funds on deposit from time to time in the
Backup Servicer Account and in all investments and proceeds thereof
(including all income thereon). The Administrative Agent, on behalf of
the Purchasers, acknowledges such grant of security and agrees to
perform its duties with respect thereto as expressly set forth in this
Agreement."
4. Amendment to Article VII of the Agreement. Article VII of
the Agreement is hereby amended by inserting the following three new sentences
after the first sentence of Section 7.14 thereof:
"All reasonable costs and expenses (including attorneys' fees) incurred
in connection with the engagement of a Backup Servicer, including any
engagement fees, travel expenses or due diligence costs (such fees,
expenses and costs, the "Backup Servicer Expenses") shall be paid from
funds available in the Backup Servicer Account upon presentation of
reasonable documentation to the Administrative Agent. Distributions of
Backup Servicer Expenses shall be made in accordance with Section 8.4.
To the extent that Backup Servicer Expenses exceed the amount on
deposit in the Backup Servicer Account (any such shortfall, a "Backup
Servicer Account Shortfall Amount"), the Servicer agrees, within thirty
days of demand thereof, to deposit in the Backup Servicer Account, such
Backup Servicer Account Shortfall Amount."
5. Amendment to Article VIII of the Agreement. Article VIII of
the Agreement is hereby amended by: (a) inserting the following new sentence
after the first sentence of Section 8.1(a) thereof:
"On or prior to January 13, 2004, the Servicer shall have established
and shall thereafter maintain in the name of the Administrative Agent,
an Eligible Deposit Account (the "Backup Servicer Account"), bearing a
designation clearly indicating that the funds deposited therein are
held for the Administrative Agent on behalf of the Purchasers and the
Backup Servicer.";
(b) deleting Section 8.1(b) thereof in its entirety and inserting the
following new Section 8.1(b) in lieu thereof:
"(b) Funds on deposit in the Collection Account, the Backup
Servicer Account and the Spread Account shall be invested or reinvested
by the Administrative Agent in Eligible Investments selected by and as
directed in writing by the Servicer (which written direction may be in
the form of standing instructions); provided, however, it is understood
and agreed that the Administrative Agent shall not be liable for the
selection of, or any loss arising from such investment in, Eligible
Investments. All such Eligible Investments shall be held by the
Administrative Agent for the benefit of the Purchasers (and for the
purposes of Article 8 of the UCC, each Eligible Investment is intended
to constitute a Financial Asset, and the Collection Account, the Backup
Servicer Account and the Spread Account are intended to constitute
Securities Accounts); provided, that on
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each Settlement Date, all Investment Earnings on funds on deposit in
the Collection Account and the Spread Account shall be deposited into
the Collection Account and shall be allocated in accordance with
Section 8.2(c) or 8.2(d) on such Settlement Date. Investment earnings
on funds on deposit in the Backup Servicer Account shall be retained in
the Backup Servicer Account, subject to withdrawal pursuant to Section
8.4. Funds on deposit in the Collection Account, the Backup Servicer
Account and the Spread Account shall be invested in Eligible
Investments that will mature so that such funds will be available at
the close of business on the Business Day preceding the following
Settlement Date; provided, however, that funds on deposit in the
Collection Account, the Backup Servicer Account and the Spread Accounts
may be invested in Eligible Investments of the entity serving as the
Administrative Agent that may mature so that such funds will be
available on the Settlement Date.";
(c) inserting the following new sentence after the second sentence of
paragraph (i) of Section 8.1(c) thereof:
"The Administrative Agent shall possess all right, title and interest
in all funds on deposit from time to time in the Backup Servicer
Account and in all proceeds thereof (including all income thereon). The
Backup Servicer Account shall be under the sole dominion and control of
the Administrative Agent for the benefit of the Purchasers and the
Backup Servicer.";
(d) deleting the third sentence of paragraph (i) of Section 8.1(c)
thereof in its entirety and inserting in lieu thereof the following new
sentence:
"If, at any time, any of the Collection Account, the Backup Servicer
Account or the Spread Account ceases to be an Eligible Deposit Account,
the Administrative Agent (or the Servicer on its behalf) shall within
10 Business Days (or such longer period, not to exceed 30 calendar
days, as to which the Administrative Agent may consent) establish a new
Collection Account, Backup Servicer Account or Spread Account, as the
case may be, as an Eligible Deposit Account and shall transfer any cash
and/or any investments held in the no-longer Eligible Deposit Account
to such new Collection Account, Backup Servicer Account or Spread
Account.";
(e) deleting the words "the Collection Account and the Spread Account"
each time they appear in Section 8.1(f) thereof and inserting in lieu thereof
the words "the Collection Account, the Backup Servicer Account and the Spread
Account.";
(f) deleting Section 8.2(c) thereof in its entirety and inserting the
following new Section 8.2(c) in lieu thereof:
(c) On each Settlement Date prior to the occurrence of a
Termination Event, the Administrative Agent shall distribute, in
accordance with the Servicing Statement delivered on the preceding
Determination Date, the Total Cash Available for such Settlement Date
and any amounts withdrawn from the Spread Account and deposited in the
Collection Account pursuant to Section 8.2(b) in the following order of
priority:
(i) first, to the Backup Servicer, any accrued and
unpaid Backup
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Servicing Fees;
(ii) second, to the Administrative Agent, an amount
equal to the Aggregate Monthly Funding Costs for such
Settlement Date;
(iii) third, to the Administrative Agent, an amount
equal to the Principal Payment Amount for such Settlement
Date, to be used to reduce the Aggregate Net Investment;
(iv) fourth, to the Administrative Agent, an amount
equal to the Unused Fees payable to the Purchasers on such
Settlement Date in accordance with Section 3.3;
(v) fifth, to the Servicer, the amount of the
Servicing Fee for such Settlement Date;
(vi) sixth, to the Spread Account, to the extent that
the amount on deposit in the Spread Account on such Settlement
Date is less than the Specified Spread Account Balance with
respect to such Settlement Date;
(vii) seventh, to the Administrative Agent, an amount
equal to the Article 14 Costs and any other amounts payable to
the Purchasers on such Settlement Date; and
(viii) eighth, to the Transferor as deferred
purchase price, any remaining amounts.
(g) deleting Section 8.2(d) thereof in its entirety and inserting the
following new Section 8.2(d) in lieu thereof:
"(d) On each Settlement Date after the occurrence of a
Termination Event, the Administrative Agent shall distribute, in
accordance with the Servicing Statement delivered on the preceding
Determination Date, the Total Cash Available for such Settlement Date
and any amounts withdrawn from the Spread Account and deposited in the
Collection Account pursuant to Section 8.2(b) in the following order of
priority:
(i) first, to the Backup Servicer, any accrued and
unpaid Backup Servicing Fees;
(ii) second, if Case Credit is not the Servicer, to
the Servicer, the amount of the Servicing Fee for such
Settlement Date;
(iii) third, to the Administrative Agent, an amount
equal to the Aggregate Monthly Funding Costs for such
Settlement Date and any unpaid Aggregate Monthly Funding Costs
for any prior Settlement Date;
(iv) fourth, to the Administrative Agent, an amount
equal to the Unused Fees payable to the Purchasers on such
Settlement Date in accordance with Section 3.3 and any unpaid
Unused Fees payable on any prior Settlement Date;
(v) fifth, if Case Credit is the Servicer, to the
Servicer, the amount of the Servicing Fee for such Settlement
Date and any unpaid Servicing Fee for any prior Settlement
Date;
(vi) sixth, to the Administrative Agent, an amount
equal to the Aggregate
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Net Investment;
(vii) seventh, to the Administrative Agent, an amount
equal to the Article 14 Costs and any other amounts payable to
the Purchasers on such Settlement Date; and
(viii) eighth, to the Transferor as deferred purchase
price, any remaining amounts."; and
(g) adding the following new Section 8.4 thereto:
"SECTION 8.4. Backup Servicer Account. On or prior to January
13, 2004, the Transferor or the Servicer on its behalf, shall deposit
an amount equal to the Backup Servicer Account Required Amount into the
Backup Servicer Account. On each Settlement Date to the extent that any
Backup Servicer Expenses are then due and payable, the Servicer will
instruct the Administrative Agent in writing to withdraw an amount
equal to such Backup Servicer Expenses then due and payable from the
Backup Servicer Account, and distribute such amount to the Person
entitled thereto. If the amount on deposit in the Backup Servicer
Account on any Settlement Date (after giving effect to the withdrawal
therefrom for the payment of Backup Servicer Expenses for such
Settlement Date) is greater than the Backup Servicer Account Required
Amount, the excess will be released to the Transferor. The Transferor
(and any of its transferees and assignees) shall in no event be
required to refund any amounts properly distributed to it pursuant to
this Section 8.4. The only permitted withdrawals from the Backup
Servicer Account are set forth in this Section 8.4 and in Section
8.1(f)."
6. Amendment to Article XI of the Agreement. Article XI of the
Agreement is hereby amended by: (a) adding the word "or" at the end of paragraph
(d) and adding the following new paragraphs (e) and (f) to Section 11.1 thereof:
"(e) the failure by the Servicer on or prior to April 13, 2004
to engage the Backup Servicer pursuant to a Backup Servicing Agreement
acceptable to the Majority Purchasers or such Backup Servicing
Agreement shall thereafter cease, for any reason, to be in full force
and effect; provided, however that such failure of the Backup Servicing
Agreement to be in full force and effect shall not constitute a
Servicer Default during any period when the unsecured long-term debt of
CNH Global N.V. is rated at least Ba2 by ▇▇▇▇▇'▇ or during any
ninety-day period following a reduction in the unsecured long-term debt
of CNH Global N.V. such that its unsecured long-term debt is no longer
rated at least Ba2 by ▇▇▇▇▇'▇; or
(f) any failure by the Servicer to deposit in the Backup
Servicer Account, the Backup Servicer Account Shortfall Amount, which
failure continues unremedied for three Business Days after written
notice of such failure is received by the Servicer from the
Administrative Agent or any Purchaser or after discovery of such
failure by an officer of the Servicer;"
(b) inserting the following words after the words "vested in" in the
first sentence of the third paragraph of Section 11.1 thereof: "the Backup
Servicer, or if no Backup Servicer has been engaged,"; and
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(c) inserting the following words after the words "In the event of the
Servicer's termination hereunder," in the second sentence of Section 11.2
thereof: "the Administrative Agent shall appoint the Backup Servicer as the
successor Servicer hereunder or, if no Backup Servicer has been engaged,".
7. Amendments to Article XII. Article XII of the Agreement is
hereby amended by (a) inserting the parenthetical clause "(other than the Backup
Servicing Agreement)" after the words "Basic Documents" in paragraph (f) of
Section 12.1 thereof; (b) deleting the word "or" at the end of paragraph (p) and
deleting paragraphs (q) and (r) of Section 12.1 thereof; (c) changing each
reference to "(m) through (r)" in Section 12.1 to "(m) through (p)"; and (d)
deleting the last sentence of Section 12.2 thereof.
8.Deletion of Exhibit L. The Agreement is hereby amended by
deleting Exhibit L thereto.
9. Amendments to Fee Letter. The Fee Letter referred to in the
Agreement is hereby amended (a) to provide that the Program Fee Rate shall be:
[Confidential]
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10. Conditions to Effectiveness. This Amendment shall become
effective on January 13, 2004 (the "Amendment Effective Date") if each of the
following conditions precedent shall have been satisfied on or prior to such
day:
(a) The Administrative Agent shall have received, with a copy
for each Funding Agent, this Amendment duly executed and delivered by the
Transferor, the Servicer, each CP Conduit Purchaser, each APA Bank and the
Administrative Agent;
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(b) The representations and warranties of the Transferor, the
Servicer and each Seller contained in the Basic Documents shall be true and
correct in all material respects as of the Amendment Effective Date;
(c) The Transferor shall have paid to each CP Conduit
Purchaser or the APA Bank with respect to each CP Conduit Purchaser a
non-refundable renewal fee in an amount equal to [Confidential] of the APA Bank
Commitment Amount of such APA Bank;
(d) Compass US Acquisition LLC and Westlb, New York Branch,
shall have assigned its Purchaser Net Investment and its Maximum Purchaser Net
Investment to ▇▇▇▇▇▇▇▇ Funding Corporation and BNP Paribas, New York Branch, in
accordance with Section 16.9(e) of the Agreement, and shall have delivered the
related Purchaser Supplement to the Administrative Agent and the Transferor;
(e) [reserved];
(f) The Administrative Agent shall have received a certificate
of a Responsible Officer of the Servicer to the effect that the Backup Servicer
Account has been established and the amount on deposit therein is at least equal
to the Backup Servicer Account Required Amount; and
(g) The Administrative Agent shall have received evidence that
the Transferor shall have filed any financing statements or amendments to the
financing statements, naming the Transferor as the debtor and the Administrative
Agent as secured party as may be necessary or in the opinion of the
Administrative Agent desirable in order to perfect the security interest granted
by the Transferor to the Administrative Agent in the Backup Servicer Account and
the amounts on deposit therein in connection with the execution and delivery of
this Amendment or other similar instruments or documents as may be necessary or
in the opinion of the Administrative Agent desirable under the UCC or any
comparable law to perfect the Administrative Agent's security interest in the
Backup Servicer Account and the amounts on deposit therein.
11. Miscellaneous.
(a) Payment of Expenses. The Transferor agrees to pay or
reimburse the Administrative Agent and each Purchaser for all of its
out-of-pocket costs and reasonable expenses incurred in connection with this
Amendment; provided, however, that the obligation of the Transferor to pay or
reimburse the Administrative Agent and the Purchasers for the reasonable fees
and disbursements of counsel in connection with this Amendment shall be limited
to the reasonable fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(b) No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby, the provisions of the Agreement are
and shall remain in full force and effect.
(c) Governing Law; Counterparts. (i) THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
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PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(i) 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. A
set of the copies of this Amendment signed by all the parties
shall be lodged with the Administrative Agent. This Amendment
may be delivered by facsimile transmission of the relevant
signature pages hereof.
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IN WITNESS WHEREOF, the Transferor, the Servicer, the CP
Conduit Purchasers, the APA Banks and the Administrative Agent have caused this
Amendment to be duly executed by their respective officers as of the day and
year first above written.
CNH CAPITAL RECEIVABLES INC.
By: /s/
-----------------------------------
Name:
Title:
CASE CREDIT CORPORATION
By: /s/
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/
-----------------------------------
Name:
Title:
PARK AVENUE RECEIVABLES
CORPORATION, as a CP Conduit Purchaser
By: /s/
-----------------------------------
Name:
Title:
DELAWARE FUNDING COMPANY, LLC, as
a CP Conduit Purchaser
By: JPMORGAN CHASE BANK,
as attorney-in-fact for Delaware
Funding Company, LLC
By: /s/
-----------------------------------
Authorized Signatory
JPMORGAN CHASE BANK,
as an APA Bank
By: /s/
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as a Funding Agent
By: /s/
-----------------------------------
Name:
Title:
▇▇ ▇▇▇▇ TRUST,
as a CP Conduit Purchaser
By: Bank of America, National Association,
as Administrative Trustee
By: /s/
-----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as an APA Bank
By: /s/
-----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as a Funding Agent
By: /s/
-----------------------------------------
Name:
Title:
ALPINE SECURITIZATION CORP., as a CP
Conduit Purchaser
By Credit Suisse First Boston as Attorney in Fact
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as an APA Bank
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as a Funding Agent
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
NIEUW AMSTERDAM RECEIVABLES CORPORATION,
as a CP Conduit Purchaser
By: /s/
---------------------------------
Title:
COOPERATIEVE CENTRALE RAFFEISEN-
BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH, as an APA Bank
By: /s/
---------------------------------
Title:
By: /s/
---------------------------------
Title:
COOPERATIEVE CENTRALE RAFFEISEN-
BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH, as a Funding Agent
By: /s/
---------------------------------
Title:
By: /s/
---------------------------------
Title:
▇▇▇▇▇▇▇▇ FUNDING CORPORATION, as a CP Conduit
Purchaser
By: /s/
---------------------------------
Title:
BNP PARIBAS, acting through its New York
Branch, as an APA Bank
By: /s/
---------------------------------
Title:
By: /s/
---------------------------------
Title:
BNP PARIBAS, acting through its New York
Branch, as a Funding Agent
By: /s/
---------------------------------
Title:
By: /s/
---------------------------------
Title: