EXHIBIT 10.2.3
EXECUTION COPY
[Confidential and Proprietary Information removed and is available to the SEC on
request]
SECOND AMENDMENT, dated as of January 14, 2003 (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, 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:
"'Change in Accounting Principles' means any rule, regulation,
request, guideline or directive or any change therein or in the
interpretation or application thereof (whether or not having the force
of law) by any accounting board or authority (whether or not part of
government) which is responsible for the establishment or
interpretation of national or international accounting principles,
whether foreign or domestic (each an "Accounting Board"), charged with
the administration, interpretation or application thereof, or the
compliance with any request or directive of any Accounting Board
(whether or not having the force of law).
'Fiat' shall mean Fiat S.p.A., and its successors and assigns.
'Lockbox Account' shall mean a post office box administered by
a bank on behalf of the Servicer and/or an account maintained by a bank
on behalf of the Servicer, in each case for the purpose of receiving
payments made by or on behalf of Obligors with respect to Receivables
and Liquidation Proceeds with respect to Receivables.
'Required Enhancement Percentage' shall mean on any Settlement
Date (i) during any period when the unsecured long-term debt of Case is
rated at least BB by S&P and at least Ba2 by Xxxxx'x and the unsecured
long-term debt of Fiat is rated at least BBB- by S&P and Baa3 by
Xxxxx'x, [Confidential], (ii) during any period when the unsecured
long-term debt of Case does not satisfy the ratings required by clause
(i) hereof and it is rated at least BB- by S&P and at least Ba3 by
Xxxxx'x and the unsecured long-term
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debt of Fiat does satisfy the ratings required by clause (i) hereof,
[Confidential] and (iii) during any period when the unsecured long-term
debt of Case does not satisfy the ratings required by clause (ii)
hereof or the unsecured long-term debt of Fiat 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), (ii) or
(iii) then applicable.
'Weighted Average Floating Rate Receivable Age' shall mean, on
any Settlement Date, as of the last day of the immediately preceding
Collection Period, (i) the sum of the product with respect to each
Floating Rate Receivable of the number of days that such Floating Rate
Receivable has been owned by the Transferor and the Principal Balance
of such Floating Rate Receivable divided by (ii) the aggregate
Principal Balance of all Floating Rate Receivables."
(b) amending the definition of "Discounted Present Value" by
inserting the words "Total Pool" before the words "Weighted Average Maturity" in
clause (y) thereof;
(c) amending the definition of "Eligible Receivable" by (i)
deleting Clause (v)(D) of paragraph (a) thereof in its entirety, (ii) inserting
the word "and" before Clause (v)(C) of paragraph (a) thereof and (iii) deleting
Clause (v)(C) of paragraph (a) thereof in its entirety and inserting in lieu
thereof the following new Clause (v)(C):
"(C) in the case of a Floating Rate Receivable, provides for equal
fixed payments on a periodic basis, except that a larger or smaller
payment may become due on the maturity date, that fully amortize the
Amount Financed by maturity and yields interest at a variable Annual
Percentage Rate that by its terms may not exceed a maximum rate set
forth therein and may not be less than a minimum rate set forth
therein."
(d) amending the definition of "Monthly Payment Amount" by (i)
deleting the words "Fixed Rate" from clause (i) thereof and (ii) inserting the
words "Total Pool" before the words "Weighted Average Maturity" in clause (iii)
thereof;
(e) deleting therefrom the definitions of "Fixed Rate Pool
Balance," "Minimum Rate" and "Weighted Average Maturity" in their respective
entireties;
(f) deleting therefrom the definitions of the following
defined terms in their respective entireties and substituting in lieu thereof
the following new definitions:
"'Applicable Margin' shall mean, on any date of determination,
the higher of [Confidential] per annum and the then applicable Program
Fee Rate; provided, however, that after the occurrence of a Termination
Event, the Applicable Margin shall equal [Confidential] per annum.
'Discount Percentage' shall mean (i) on the January 2003
Settlement Date, [Confidential], (ii) on any other Settlement Date
thereafter on which a Transfer is occurring or
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on any other Settlement Date thereafter on which a Repurchase is
occurring or immediately following a date on which a Repurchase shall
have occurred, the percentage equivalent of a fraction, the numerator
of which is the Discounted Present Value on such Settlement Date and
the denominator of which is the Pool Balance with respect to such
Settlement Date and (iii) on any other Settlement Date, an amount equal
to the Discount Percentage on the most recent Settlement Date.
'Floating Rate Receivable' shall mean any Receivable accruing
interest or finance charges at a variable APR, adjusted at least
monthly, under the related Retail Installment Contract equal to the
lesser of (i) the higher of the minimum rate set forth in the related
Retail Installment Contract and the sum of (A) the prime rate published
in The Wall Street Journal or another nationally recognized financial
publication and (B) a variable rate additive set forth in the related
Retail Installment Contract and (ii) the highest rate permitted by
applicable law and that by its terms may not exceed a maximum rate set
forth in the related Retail Installment Contract.
'Net Pool Balance' shall mean, with respect to any Settlement
Date, the product of (i) the excess of (A) the Pool Balance with
respect to such Settlement Date over (B) the sum of (x) the Aggregate
Obligor Overconcentration Amount with respect to such Settlement Date,
(y) the Aggregate Low Pay Out Lease Dealer Overconcentration Amount
with respect to such Settlement Date and (z) 5% of the Pool Balance
with respect to such Settlement Date and (ii) the Discount Percentage
on such Settlement Date.
'Scheduled Expiry Date' shall mean, with respect to any
Purchaser, the later of (a) January 13, 2004 and (b) the last day of
any extension of such Purchaser's Commitment made in accordance with
Section 3.1(c).
'Specified Spread Account Balance' shall mean with respect to
any Settlement Date, the greater of:
(i) the sum of (x) the product of (1) the sum of (A)
the Required Enhancement Percentage on such Settlement Date
and (B) the sum of the CE Increment and the Low Pay Out Lease
Increment on such Settlement Date and (2) the Aggregate Net
Investment on such Settlement Date (after giving effect to any
increase therein on such Settlement Date) plus (y) (1) if the
Weighted Average Floating Rate Receivable Age on such
Settlement Date is less than or equal to 6 months, zero and
(2) if the Weighted Average Floating Rate Receivable Age on
such Settlement Date is greater than 6 months, the product of
(A) 2%, (B) the Floating Rate Percentage on such Settlement
Date and (C) the Aggregate Net Investment on such Settlement
Date (after giving effect to any increase therein on such
Settlement Date);
(ii) the sum of (x) the product of (1) 1% and (2) the
highest Aggregate Net Investment since the date of the most
recent Repurchase (or, if no Repurchase has occurred, since
the Initial Funding Date) and (y) the product of (1) 50% of
the sum of the CE Increment and the Low Pay Out Lease
Increment on such Settlement Date and (2) the highest
Aggregate Net Investment since the date of the most recent
Repurchase (or, if no Repurchase has occurred, since the
Initial Funding Date);
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provided further that the Specified Spread Account Balance on each
Settlement Date after the occurrence of a Termination Event shall equal
the greater of the Specified Spread Account Balance on the Settlement
Date preceding the occurrence of such Termination Event and the
Specified Spread Account Balance determined without giving effect to
this proviso and provided further that the Specified Spread Account
Balance on any Settlement Date shall not exceed the Aggregate Net
Investment on such Settlement Date.
'Weighted Average APR' shall mean, on any Settlement Date, as
of the last day of the immediately preceding Collection Period, (i) the
sum of the product with respect to each Pooled Receivable of (A) (1) in
the case of a Fixed Rate Receivable, the APR of such Receivable
(adjusted, if necessary, to make such APR equivalent to a rate per
annum based on monthly interest payments) or (2) in the case of a
Floating Rate Receivable, the minimum APR set forth in the related
Retail Installment Contract and (B) the Principal Balance of such
Receivable divided by (ii) the aggregate Principal Balance of all
Pooled Receivables."
3. Amendment to Article II of the Agreement. Article II of the
Agreement is hereby amended by deleting the first two sentences of Section
2.3(a) thereof in their entirety and inserting the following two new sentences
in lieu thereof:
"On or prior to January 14, 2003, the Transferor entered into interest
rate cap agreements payable monthly directly into the Collection
Account, in each case, subject to an ISDA Master Agreement with a
schedule that is substantially in the form of Exhibit E (each an
"Interest Rate Cap"), with an Eligible Counterparty or Eligible
Counterparties that provide, in the aggregate, that the notional amount
thereof on the January 2003 Settlement Date is at least equal to the
aggregate Contract Value of all Pooled Receivables as of such
Settlement Date and the notional amount thereof on each subsequent
Settlement Date will be at least equal to the scheduled Contract Values
of the Pooled Receivables as of each such Settlement Date and having an
effective strike rate based on a eurodollar rate (the "Required
Interest Rate Caps"). On each Transfer Date, the Transferor shall have
entered into additional Interest Rate Caps such that it has in place
the Required Interest Rate Caps after giving effect to the change in
the aggregate Contract Value of the Pooled Receivables on such date."
4. Amendment to Article VII of the Agreement. Article VII of
the Agreement is hereby amended by inserting the following two new sentences
after the first sentence of Section 7.4 thereof:
"The Servicer shall not sell, pledge, assign, transfer or grant control
over to any Person, or grant, create, incur or suffer to exist any Lien
on, any Lockbox Account without the prior written consent of the
Administrative Agent acting at the direction of the Majority Purchasers
which direction shall not be unreasonably withheld. Notwithstanding the
foregoing, the parties hereto hereby acknowledge that the Lockbox
Accounts may contain the proceeds of Receivables that are subject to
Liens."
5. Amendment to Article XIV of the Agreement. Article XIV of
the Agreement is hereby amended by: (a) inserting "(i)" before the words "the
adoption of or any change in" in the first sentence of Section 14.2(b) thereof
and (b) inserting the words "or (ii) a Change in
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Accounting Principles" after the words "or other Governmental Authority in
respect thereof" in the first sentence of Section 14.2(b) thereof.
6. 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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7. Conditions to Effectiveness. This Amendment shall become
effective on January 14, 2003 (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 Transaction Documents shall be true
and correct in all material respects as of the Amendment Effective Date;
(c) The Transferor shall have paid to the APA Bank with
respect to each CP Conduit Purchaser a non-refundable renewal fee in an amount
equal to [Confidential] per annum of the APA Bank Commitment Amount of such APA
Bank; and
(d) The Transferor shall have obtained the Required Interest
Rate Caps.
8. 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 Xxxxxxx Xxxxxxx & Xxxxxxxx.
(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 PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(ii) 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:
JPMORGAN CHASE BANK,
as an APA Bank
By: /s/
---------------------------------
Name:
Title:
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JPMORGAN CHASE BANK,
as a Funding Agent
By: /s/
---------------------------------
Name:
Title:
QUINCY CAPITAL CORPORATION,
as a CP Conduit Purchaser
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:
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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:
COMPASS US ACQUISITION LLC, as a CP
Conduit Purchaser
By: /s/
---------------------------------
Name:
Title:
WESTLB AG, NEW York Branch, as an APA
Bank
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
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XXXXXX XX, XXX Xxxx Branch, as a
Funding Agent
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
Accepted and Agreed as of the date first above written:
IHF - Internazionale Holding FIAT S.A.
By: /s/
-------------------------------------
Name:
Title:
