Exhibit 10.2.5
FOURTH AMENDMENT,
dated as of April 19, 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, as of
January 14, 2003, and as of January 13, 2004, 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 ”).
WITNESSETH:
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. Amendments to
Article I of the Agreement .
(a) Article I of the Agreement is
hereby amended by inserting the words “with the consent of
the Backup Servicer, such consent not to be unreasonably
withheld” at the end of the definition of “Backup
Servicer Account Required Amount”.
(b) Article I of the Agreement is
hereby amended by deleting the percentage “1%” as it
appears in subsection (ii) of the definition of
“Specified Spread Account Balance” and inserting the
percentage “1.25%” in lieu thereof.
2. Amendment to
Article II of the Agreement . Article II of the
Agreement is hereby amended by inserting the parenthetical phrase
“(but shall have no obligation to)” after the word
“option” where such word appears in the first sentence
of Section 2.6 .
3. Amendments to
Article VII of the Agreement . Article VII is hereby
amended by:
(a) deleting the third sentence of
Section 7.1 and inserting in its place:
“Notwithstanding anything to the contrary
stated herein , the Servicer shall follow: (i) if Case
Credit is the Servicer, its then-current Credit and Collection
Policy, or (ii) if Case Credit is not the Servicer, the
Servicer’s then current customary standards, policies and
procedures.”
(b) deleting the sixth sentence of
Section 7.1 and inserting in its place:
“If in any enforcement suit or legal
proceeding it shall be held that the Servicer may not enforce a
Pooled Receivable on the ground that it shall not be a real party
in interest or a
holder entitled to enforce such Pooled
Receivable, the Administrative Agent shall, at the Servicer’s
direction (and, so long as the Servicer is Case Credit, the
Servicer’s expense, and otherwise, the Transferor’s
expense), take steps to enforce such Pooled Receivable, including
bringing suit in its name.”
(c) adding the phrase “except as
required by law” at the end of the final sentence of
Section 7.2 ;
(d) deleting the second sentence of
Section 7.3 and inserting in its place:
“The Servicer shall follow such customary
and usual practices and procedures as it shall deem necessary or
advisable in its servicing of equipment receivables, which may
include reasonable efforts to realize upon any recourse to Dealers,
including payment of Termination Value, and selling the Financed
Equipment at public or private sale (it being understood that if
the Backup Servicer is acting as successor Servicer, it shall have
no duty to enforce remedies against Dealers).”
(e) adding the following as a second
paragraph of Section 7.4 :
“If the Backup Servicer is acting as
successor Servicer, on any Settlement Date, the Backup Servicer as
successor Servicer may direct the Administrative Agent to withdraw
from the Collection Account and pay to the Backup Servicer as
successor Servicer amounts necessary to reimburse it for any
reasonable out-of-pocket expenses incurred in connection with the
liquidation of each Liquidated Receivable during the immediately
preceding Collection Period solely to the extent such expenses were
not netted out of the Liquidation Proceeds with respect of such
Liquidated Receivable and solely to the extent that (i) the
aggregate amount of such expenses does not exceed the aggregate
proceeds recovered in respect of Liquidated Receivables during such
Collection Period and (ii) the aggregate amount of such
expenses exceeds the amount of Recoveries received with respect to
the Pooled Receivables during such Collection Period; such payments
to be made prior to any distributions under Section 8.2(c)
or (d) .”
(f) adding the following new sentence at
the end of Section 7.5 :
“This Section 7.5 shall not
apply to the Backup Servicer as successor
Servicer.”
(g) adding the following new sentence at
the end of Section 7.6 :
“Any out-of-pocket expenses incurred by
the Backup Servicer as successor Servicer in connection with any
such re-perfection shall be reimbursable in accordance with the
priorities set forth in Section 8.2(c) or (d)
.”
(h) adding the following new sentence at
the end of Section 7.8(d) :
“If the Backup Servicer is acting as
successor Servicer, the Transferor, the Administrative Agent, any
Funding Agent and their representatives, attorneys or auditors and
their agents shall give reasonable notice of any such inspection or
audit and such inspection shall be conducted in a manner that does
not cause material disruption or interference with the
Servicer’s business.”
(i) adding the following new sentence at
the end of Section 7.9 :
“Subject to Section 10.2, the sole
remedy of the Purchasers with respect to a breach by the Servicer
(but not the Backup Servicer as successor Servicer) pursuant to
Section 7.2 ,
7.6 or
7.7 shall be to require the Servicer to purchase Pooled
Receivables and the related True Lease Equipment pursuant to this
Section 7.9 . In no event shall the Backup Servicer as
successor Servicer be obligated to purchase any Receivables
pursuant to this Section 7.9 .”
(j) adding the following new proviso at the
end of the first sentence of Section 7.10 :
“ provided that with respect to any
successor Servicer hereunder, the Servicing Fee for each Collection
Period shall be equal to the greater of (a) 1/12th of 1.00% of
the aggregate Contract Value of the Pooled Receivables as of the
first day of such Collection Period, (b) $8.50 per Retail
Installment Contract or Lease that relates to a Pooled Receivable
as of the first day of such Collection Period, and (c)
$5,000.”
(k) adding the following new paragraph at
the end of Section 7.13 :
“Notwithstanding this
Section 7.13 , if the Backup Servicer is then acting as
the Successor Servicer, unless otherwise requested by the Majority
Purchasers, it shall only be required to provide a copy of its
annual SAS 70 report and its audited financial statements. If the
Majority Purchasers request that the Backup Servicer as Successor
Servicer provide an annual independent certified public
accountants’ report as contemplated in this Section 7.13, any
reasonable fees or expenses incurred in connection with the
preparation of such report shall constitute reimbursable Successor
Servicer expenses and shall be paid, to the extent funds are
available therefore, in accordance with
Section 8.2(c)(viii)(b) or Section 8.2(d)(viii)(b); provided
that if the estimated fees and expenses in connection with such
report shall exceed $30,000, the Backup Servicer, as Successor
Servicer, shall provide prior written notice to the Transferor. To
the extent that amounts due and o
