Exhibit 4.9


 




 





BACKUP SERVICING
AGREEMENT


 


 


among


 


CNH CAPITAL RECEIVABLES
INC.,

as Seller


 


CASE CREDIT CORPORATION,

as Servicer


 


CNH EQUIPMENT TRUST 2004-A,

as Issuer


 


and


 


SYSTEMS & SERVICES
TECHNOLOGIES, INC.

as Backup Servicer


 


 


Dated as of September 22,
2004




 





 
















 


Table of Contents


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.2

  	
  Usage of Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.3

  	
  Section References

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  ADMINISTRATION
  AND SERVICING OF RECEIVABLES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.1

  	
  Duties of the Backup Servicer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.2

  	
  Representations and
  Warranties of Backup Servicer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.3

  	
  Backup Servicing
  Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.4

  	
  Backup Servicer Fees; Payment of Expenses by Backup Servicer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  THE BACKUP
  SERVICER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.1

  	
  Liability of Backup Servicer; Indemnities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.2

  	
  Limitation on Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.3

  	
  Corporate Existence

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.4

  	
  Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.5

  	
  Compliance with Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  TERMINATION
  EVENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.1

  	
  Termination Event

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.2

  	
  Consequences of a
  Termination Event

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  MISCELLANEOUS
  PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.1

  	
  Waiver;  Amendment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.2

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.3

  	
  Severability of
  Provisions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.4

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.5

  	
  Third-Party
  Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.6

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.7

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.8

  	
  Nonpetition
  Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.9

  	
  Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.10

  	
  Limitation of
  Liability of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.11

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.12

  	
  Confidentiality

  	
   

  
									



 


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  SECTION 5.13

  	
  Information Requests

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.14

  	
  Corporate Status of
  the Servicer and the Seller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Sale and Servicing Agreement

  	
   

  
	
  Schedule
  I

  	
  Description
  of Verification and Confirmation Duties

  	
   

  
					



 


ii
















 


THIS BACKUP SERVICING
AGREEMENT, dated as of September 22, 2004, (this
“Agreement”) is made among CASE CREDIT CORPORATION, a Delaware corporation, and
its successors (the “Servicer”), CNH CAPITAL
RECEIVABLES INC., a Delaware corporation, and its successors (the “Seller”),
CNH EQUIPMENT TRUST 2004-A, a Delaware statutory trust (the “Issuer”), SYSTEMS
& SERVICES TECHNOLOGIES, INC., a Delaware corporation (the “Backup Servicer” or “SST”).


 


WITNESSETH:


 


WHEREAS, the Servicer, the Seller and the Issuer have entered into the
Sale and Servicing Agreement dated as of the date hereof (the “Sale and
Servicing Agreement”) a copy of which is attached hereto and made a part hereof
as Exhibit A;


 


WHEREAS, the Issuer and
the Servicer desire that the Backup Servicer perform certain backup servicing duties in
accordance with the terms and provisions of this Agreement; 


 


WHEREAS, the Issuer
desires that the Backup Servicer assume the role of
Successor Servicer under the terms of the Sale and
Servicing Agreement in the event that the Servicer is
terminated thereunder; and


 


WHEREAS, the Backup Servicer is willing to perform the backup servicing duties
specified herein and assume the role of Successor Servicer
under the terms of the Sale and Servicing Agreement pursuant to the conditions
and for the consideration described herein;


 


NOW, THEREFORE, in
consideration of the mutual agreements herein contained, and of other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:


 


ARTICLE I

DEFINITIONS


 


SECTION 1.1 
Definitions.  Unless
otherwise specified herein, all terms defined in the Sale and Servicing Agreement, shall have the same meaning in this Agreement.  Whenever capitalized and used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:


 


Agreement or “this
Agreement”:  This
Backup Servicing Agreement, all amendments and supplements thereto and all
exhibits and schedules to any of the foregoing.


 


Backup Servicer: 
Systems & Services Technologies, Inc., in its capacity as Backup Servicer under this Agreement, and its successors and
assigns in such capacity.


 


Backup Servicer Account:  means the account designated as such,
established and maintained pursuant to Section 5.1(a)(vii)
of the Sale and Servicing Agreement.


 


Backup Servicer Expenses:  is defined in Section 4.12 of the Sale and
Servicing Agreement.


 
















 


Backup Servicer Termination Event:  An event described in Section 4.1.


 


Backup Servicing Duties:  The duties defined as such in Section 2.1.


 


Backup Servicing Fee:
means the greater of (a) 1/12 of 0.02% of the Pool Balance as of the first day
of each Collection Period and (b) $4,000.


 


Business Day:  means any day other than a Saturday, a Sunday
or a day on which banking institutions or trust companies in The City of New
York, New York, the City of Racine, Wisconsin and the City of St. Joseph,
Missouri are authorized or obligated by law, regulation or executive order to
remain closed.


 


Collection Period:  means, with respect to any Payment Date, the
period from and including the end of the preceding Collection Period (or, if
for the first Payment Date, the day after the Initial Cutoff Date) to and
including the last day of the calendar month preceding the calendar month in
which the Payment Date occurs.


 


Indenture:  means the Indenture dated as of September 1,
2004 between the Issuer and the Indenture Trustee, as the same may be amended
and supplemented from time to time.


 


Indenture Trustee:  means JPMorgan
Chase Bank, a New York banking corporation, not in its individual capacity but
solely as Indenture Trustee under the Indenture, or any successor Indenture
Trustee under the Indenture.


 


Initial Collection Period:  The Collection
Period ending September 30, 2004.


 


Payment Date:  means, with respect to each Collection
Period, the fifteenth day of the calendar month following the end of that
Collection Period, or, if such day is not a Business Day, the next Business
Day, commencing on October 15, 2004.


 


Person:  Any legal person, including any individual,
corporation, partnership, joint venture, estate, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof, or any other entity.


 


Sale and Servicing
Agreement:  The Sale
and Servicing Agreement attached hereto as Exhibit A, as the same may be
amended from time to time in accordance with its terms and with the written
consent of the Backup Servicer.


 


Servicing Transfer
Date:  The Business Day
next succeeding the expiration of the Transfer Period.


 


Transfer Notice:  Written notice from the Issuer to the Backup Servicer (with a copy to the Rating Agencies) advising the
Backup Servicer of the transfer of active servicing
duties for the Contracts to the Backup Servicer.


 


Transfer Period:  A period of sixty (60) days following the
Backup Servicer’s receipt of a Transfer Notice and
ending on the date the Backup Servicer is to begin
Successor Servicer duties for the Contracts and the
related Receivables.


 


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Verification and
Confirmation Duties: 
The duties defined as such in Section 2.1(a).


 


SECTION 1.2 
Usage of Terms. 
With respect to all terms used in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include the
other gender; references to “writing” 
include printing, typing, lithography, and other means of reproducing
words in a visible form; references to agreements and other contractual
instruments include all subsequent amendments thereto or changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement; references to Persons include their permitted successors and
assigns; and the terms “include” or “including” mean “include without
limitation” or “including without limitation.”


 


SECTION 1.3 
Section References. 
All references to Articles, Sections, paragraphs, subsections, exhibits
and schedules shall be to such portions of this Agreement unless otherwise
specified.


 


ARTICLE II

ADMINISTRATION AND SERVICING OF RECEIVABLES


 


SECTION 2.1 
Duties of the Backup Servicer.


 


(a)           Verification
and Confirmation Duties.  The Backup Servicer agrees to perform all of the duties of the Backup Servicer as identified on Schedule I hereto (collectively,
the “Verification and Confirmation Duties”) on behalf of the Issuer in
accordance with the terms of this Agreement.


 


(b)           Active
Servicing Duties.  Unless and until
the Backup Servicer or another Person is appointed as
Successor Servicer, the Backup Servicer
agrees that, in the event the Servicer is terminated
or otherwise ceases to function as the Servicer
pursuant to the Sale and Servicing Agreement, if the Indenture Trustee or
Holders representing not less than 25% of the Outstanding Amount of Notes shall
issue a Transfer Notice to the Backup Servicer and Servicer, then prior to the expiration of the Transfer
Period, Backup Servicer shall promptly execute a
counterpart to the Sale and Servicing Agreement and thereafter shall assume the
rights, obligations and duties of a Successor Servicer
as expressly set forth thereunder.


 


(c)           The
Servicer covenants and agrees to perform within three
weeks after receipt of the Transfer Notice (or on such later date as the Issuer
and the Backup Servicer shall agree in writing) the
following:


 


(i)            The Servicer
shall provide to the Backup Servicer all necessary
servicing files and records relating to the Contracts (as deemed necessary by
the Backup Servicer at such time) and the Servicer shall provide to the Backup Servicer
access to and transfer of records and use by the Backup Servicer
of all licenses or software necessary or desirable to collect the Contracts and
the related Receivables to the extent that any of the foregoing is not
prohibited under any licensing or other agreements with third parties.


 


(ii)           The Servicer
will provide to the Backup Servicer the servicing
information necessary to prepare and distribute the Servicer
Certificate required to be delivered under the Sale and Servicing Agreement.


 


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(d)           Prior
to the expiration of the Transfer Period, the Servicer
will send each Obligor written notice containing the following
information:  (i)
the Servicing Transfer Date, (ii) the address, telephone number and department
of the Backup Servicer which is able to answer
questions regarding billing, (iii) notification that the legal terms and
conditions of such Obligor’s obligations will not be affected by the servicing
transfer and (iv) instructions as to how to handle any Contract related
questions.  The Backup Servicer will consult with the Servicer
concerning the form of any such notice. 
If the Servicer has failed to send this notice
within three weeks after the Servicing Transfer Date, the Backup Servicer will send such a notice to each such Obligor on
the Backup Servicer’s stationery within four weeks of
the later of (A) the date a counterpart to the Sale and Servicing Agreement
executed by the Backup Servicer is effective and (B)
the Servicing Transfer Date.  The Servicer will provide the Backup Servicer
with its stationery in an amount sufficient to allow for the sending of the
notices described in this Section 2.1(d). 
The Servicer hereby irrevocably appoints the
Backup Servicer as its attorney-in-fact for the
purpose of sending such notices.


 


(e)           Effective
upon the occurrence of the Servicing Transfer Date, the Servicer
hereby irrevocably authorizes and grants to the Backup Servicer
an irrevocable power-of-attorney to take any and all steps in the Servicer’s name and on behalf of the Servicer
that are necessary or desirable to perform its duties hereunder, including
collecting amounts due under the Receivables, endorsing the Servicer’s
name on checks and other instruments representing Collections and enforcing the
Receivables.


 


SECTION 2.2 
Representations and Warranties of Backup Servicer.  The
Backup Servicer represents and warrants as of the
date of execution and delivery of this Agreement:


 


(i)            Organization and Good Standing.  The Backup Servicer
has been duly organized and is validly existing and in good standing under the
laws of its jurisdiction of organization, with power, authority and legal right
to own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to enter into and
perform its obligations under this Agreement;


 


(ii)           Due qualification.  The Backup Servicer
is duly qualified to do business as a foreign corporation in good standing, and
has obtained all necessary licenses and approvals, in all jurisdictions where
the failure to do so would materially and adversely affect the performance of
its obligations under this Agreement;


 


(iii)          Power and Authority.  The Backup Servicer
has the power and authority to execute and deliver this Agreement and to carry
out the terms hereof; and the execution, delivery and performance of this
Agreement have been duly authorized by the Backup Servicer
by all necessary corporate action;


 


(iv)          Binding
Obligation.  This Agreement
constitutes the legal, valid and binding obligation of the Backup Servicer enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors rights generally and
by equitable


 


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limitations
on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law;


 


(v)           No Violation.  The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement, and the
fulfillment of the terms hereof, do not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time, or both) a default under, the certificate of incorporation or
bylaws of the Backup Servicer, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Backup Servicer is a party or by which it is bound, or result in
the creation or imposition of any lien upon any of its properties pursuant to
the terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, or violate any law, order, rule or
regulation applicable to the Backup Servicer of any
court or of any federal or State regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Backup Servicer or any of its properties;


 


(vi)          No
Proceedings.  There are no
proceedings or investigations pending or, to the Backup Servicer’s
knowledge, threatened against the Backup Servicer,
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Backup Servicer or its properties (A) asserting the invalidity of
this Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (C) seeking any determination
or ruling that might materially and adversely affect the performance by the
Backup Servicer of its obligations under, or the
validity or enforceability of, this Agreement; and


 


(vii)         No Consents.  The Backup Servicer
is not required to obtain the consent of any other party or any consent,
license, approval or authorization, or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.


 


SECTION 2.3 
Backup Servicing Termination.


 


(a)           Prior
to the time the Backup Servicer receives a Transfer
Notice, this Agreement may be terminated upon delivery of thirty (30) days
advance written notice to the Backup Servicer of such
termination.  This Agreement shall be
terminated pursuant to the previous sentence if (A) (i) the
Servicer notifies the Issuer in writing that the Servicer has engaged a replacement backup servicer or a Successor Servicer,
(ii) the agreement with such replacement backup servicer
or Successor Servicer, as the case may be, is
reasonably satisfactory to the Issuer in form and substance and (iii) the
identity of such replacement backup servicer or
Successor Servicer, as the case may be, is acceptable
to the Issuer in its sole discretion or (B) Moody’s has advised the Issuer that
the termination of this Agreement will not result in a downgrade or withdrawal
of its ratings on the Notes. 


 


(b)           Prior
to the time the Backup Servicer receives a Transfer
Notice, the Backup Servicer may terminate this
Agreement for any reason in its sole judgment and discretion upon delivery of
one hundred twenty (120) days advance written notice to the Issuer of such


 


5
















 


termination.  In the event that the Backup Servicer delivers notice pursuant to the foregoing
sentence, the Servicer agrees to cooperate with the
Issuer, and to take such actions as the Issuer may reasonably request, in order
to appoint a replacement backup servicer as promptly
as possible.


 


SECTION 2.4 
Backup  Servicer Fees; Payment
of Expenses by Backup Servicer.  Unless and until the Backup Servicer or another Person is appointed as Successor Servicer, on the Payment Date relating to the Initial
Collection Period and each Payment Date thereafter the Backup Servicer shall be entitled to receive the Backup Servicer Fees in accordance with the terms of the Sale and
Servicing Agreement and the Indenture. 
The Backup Servicer shall further receive all
reimbursable Backup Servicer Expenses in accordance
with the terms of the Sale and Servicing Agreement and the Indenture.  The Backup Servicer
shall be required to pay all other expenses incurred by it in connection with
its activities under this Agreement (including taxes imposed on the Backup Servicer and all expenses incurred in connection with
reports to the Issuer).


 


ARTICLE III

THE BACKUP SERVICER


 


SECTION 3.1 
Liability of Backup Servicer;
Indemnities.


 


(a)           The
Backup Servicer shall be liable hereunder only to the
extent of the obligations in this Agreement specifically undertaken by the
Backup Servicer and the representations made by the
Backup Servicer. 
Other than as specifically set forth in this Backup Servicing Agreement,
the Backup Servicer shall have no obligation to
supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken
or omitted by the Servicer.


 


(b)           The
Backup Servicer shall indemnify, defend and hold
harmless the Servicer, the Issuer and their
respective officers, directors, agents and employees from and against any and
all costs, expenses, losses, claims, damages and liabilities to the extent that
such cost, expense, loss, claim, damage or liability arose out of, or was
imposed upon the Servicer or the Issuer through the
Backup Servicer’s breach of this Agreement, the
negligence, willful misfeasance or bad faith of the Backup Servicer
in the performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement.


 


(c)           The
Servicer shall indemnify, defend and hold harmless
the Backup Servicer and its respective officers,
directors, agents and employees from and against any and all costs, expenses,
losses, claims, damages and liabilities to the extent that such cost, expense,
loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer through the Servicer’s
breach of this Agreement, the negligence, willful misfeasance or bad faith of
the Servicer in the performance of its duties under
this Agreement or by reason of reckless disregard of its obligations and duties
under this Agreement.


 


(d)           The
Issuer shall (solely from amounts paid pursuant to Section 5.6(b)(x) of the
Sale and Servicing Agreement) indemnify, defend and hold harmless the Backup Servicer and its respective officers, directors, agents and
employees from and against any and all costs,


 


6
















 


expenses, losses, claims, damages and liabilities to
the extent that such cost, expense, loss, claim, damage or liability arose out
of, or was imposed upon the Backup Servicer through
the Issuer’s breach of this Agreement, the negligence, willful misfeasance or
bad faith of the Issuer in the performance of its duties under this Agreement
or by reason of reckless disregard of its obligations and duties under this
Agreement.


 


(e)           The
Backup Servicer may accept and reasonably rely on all
accounting and servicing records and other documentation provided to the Backup
Servicer by or at the direction of the Servicer, including documents prepared or maintained by any
Originator, or Servicer, or any party providing
services related to the Receivables (collectively “Third Party”).  The Servicer agrees
to indemnify (subject to the limitation provided in Section 3.2 below) and hold
harmless the Backup Servicer, its respective
officers, employees and agents against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that the Backup Servicer may
sustain in any way related to the negligence or misconduct of any Third Party
with respect to the Receivables.  The
Backup Servicer shall have no duty, responsibility,
obligation or liability (collectively “Liability”) for the acts or omissions of
any such Third Party.  If any error,
inaccuracy or omission (collectively “Error”) exists in any information
provided to the Backup Servicer and such Errors cause
or materially contribute to the Backup Servicer
making or continuing any Error (collectively “Continuing Errors”), the Backup Servicer shall have no liability for such Continuing
Errors; provided, however, that this provision shall not protect the Backup Servicer against any liability which would otherwise be
imposed by reason of willful misconduct, bad faith or negligence in discovering
or correcting any Error or in the performance of its duties contemplated
herein.


 


In the event the Backup Servicer becomes aware of Errors and/or Continuing Errors
which, in the opinion of the Backup Servicer, impair
its ability to perform its services hereunder, the Backup Servicer
shall promptly notify the Servicer and the Indenture
Trustee of such Errors and/or Continuing Errors.  The Backup Servicer
shall discuss such Errors with the Servicer, and the Servicer and the Backup Servicer
shall use their reasonable efforts to correct such Errors.  If after such discussion such Errors are not
promptly corrected, with the prior consent of the Indenture Trustee, the Backup
Servicer may undertake to reconstruct any data or
records appropriate to correct such Errors and/or Continuing Errors and to
prevent future Continuing Errors.  The
Backup Servicer shall be entitled to recover its
costs thereby expended as Backup Servicer Expenses in
accordance with the Sale and Servicing Agreement and the Indenture.


 


(f)            Indemnification
under this Article shall include, without limitation, reasonable fees and
expenses of counsel (including but not limited to counsel who may be employees
of the Backup Servicer) and expenses of
litigation.  If the indemnifying party
has made any indemnity payments pursuant to this Article and the recipient
thereafter collects any of such amounts from others, the recipient shall
promptly repay such amounts collected to the indemnifying party, together with
any interest earned thereon.


 


(g)           The
provisions of this Section shall survive the termination of this Agreement.


 


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SECTION 3.2 
Limitation on Liability.  Neither the Backup Servicer,
the Servicer, the Issuer nor any of their respective
directors or officers or employees or agents shall be under any liability to the
other, or any party to the Basic Documents except as provided in this
Agreement, for any action taken or for refraining from the taking of any action
in good faith pursuant to this Agreement; provided,  however, that
this provision shall not protect the Backup Servicer,
the Servicer, the Issuer or any such Person against
any liability that would otherwise be imposed by reason of a breach of this
Agreement, the inaccuracy of any of their respective representations or
warranties set forth in this Agreement or willful misfeasance, bad faith or
negligence in the performance of their respective duties, by reason of reckless
disregard of obligations and duties under this Agreement or any violation of
law by the Backup Servicer, the Servicer,
the Issuer or such Person, as the case may be. 
The Backup Servicer, the Servicer,
the Issuer and any of their respective directors, officers, employees or agents
may rely in good faith on the advice of counsel (including but not limited to
counsel who may be employees of the Backup Servicer
or the Servicer, as the case may be) or on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.


 


SECTION 3.3 
Corporate Existence.  The Backup Servicer
shall maintain its existence and rights as a corporation under the laws of the
jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which the failure to so qualify would have an adverse effect on the validity or
enforceability of any Receivable or this Agreement or on the ability of the
Backup Servicer to perform its duties under this
Agreement.


 


SECTION 3.4 
Insurance.  The
Backup Servicer shall maintain adequate insurance in
amounts and with terms customarily subscribed by companies in the same industry
performing similar functions to those of the Backup Servicer
in its role as Backup Servicer or Successor Servicer, as applicable.


 


SECTION 3.5 
Compliance with Laws.  The Backup Servicer
covenants with the parties hereto that, upon the expiration of the Transfer
Period, the practices used or to be used by the Backup Servicer
to monitor collections with respect to the Contracts and repossess and dispose
of the Financed Equipment related to the contracts will be, in all material
respects, legal, proper and in conformity with the requirements of all
applicable federal and State laws, rules and regulations.  Upon the expiration of the Transfer Period,
the Backup Servicer will be in possession of all
State and local licenses (including all debt collection licenses) required for
it to perform its services hereunder, and none of such licenses shall have been
suspended, revoked or terminated.


 


ARTICLE IV

TERMINATION EVENTS


 


SECTION 4.1 
Termination Event. 
For purposes of this Agreement, each of the following shall constitute a
Termination Event (subsections (a) through (d) shall further constitute a
“Backup Servicer Event of Default”):


 


(a)           Failure
on the part of the Backup Servicer duly to observe or
perform in any material respect any covenant or agreement of the Backup Servicer set forth in this


 


8
















 


Agreement, which failure continues unremedied
for a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Backup Servicer by the Servicer; or


 


(b)           (i) The commencement of an involuntary case under the
federal bankruptcy laws, as now or hereinafter in effect, or another present or
future federal or State bankruptcy, insolvency or similar law and such case is
not dismissed within 60 days; or (ii) the entry of a decree or order for relief
by a court or regulatory authority having jurisdiction in respect of the Backup
Servicer in an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, or another present or future,
federal or State, bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Backup Servicer or
of any substantial part of its properties or ordering the winding up or
liquidation of the affairs of the Backup Servicer; or


 


(c)           The
commencement by the Backup Servicer of a voluntary
case under the federal bankruptcy laws, as now or hereafter in effect, or any
other present or future federal or State bankruptcy, insolvency or similar law,
or the consent by the Backup Servicer to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar
official of the Backup Servicer or of any substantial
part of its property or the making by the Backup Servicer
of an assignment for the benefit of creditors or the failure by the Backup Servicer generally to pay its debts as such debts become
due or the taking of corporate action by the Backup Servicer
in furtherance of any of the foregoing; or


 


(d)           Any
representation, warranty or statement of the Backup Servicer
made in this Agreement or any certificate, report or other writing delivered by
the Backup Servicer pursuant hereto shall prove to be
incorrect in any material respect as of the time when the same shall have been
made and, within thirty (30) days after written notice thereof shall have been
given to the Backup Servicer by the Servicer, the circumstances or condition in respect of
which such representation, warranty or statement was incorrect shall not have
been waived, eliminated or otherwise cured; or


 


(e)           Failure
on the part of the Backup Servicer to receive Backup Servicer Fees or Backup Servicer
Expenses as and when due as set forth in the Sale and Servicing Agreement and
the Indenture, which failure shall not be cured within twenty (20) days after
the date on which written notice of such failure shall have been received by
the Servicer and the Issuer.


 


SECTION 4.2 
Consequences of a Termination Event.


 


(a)           If
a Backup Servicer Event of Default (as defined in
Section 4.1 above) shall occur and be continuing, the Servicer
may, by notice given in writing to the Backup Servicer,
terminate all of the rights and obligations of the Backup Servicer
under this Agreement, except as set forth in Sections 3.1(c), (d), (e) and
(f).  On or after the receipt by the
Backup Servicer of such written notice, all
authority, power, obligations and responsibilities of the Backup Servicer under this Agreement shall be terminated.  The terminated Backup Servicer
agrees to cooperate with the Servicer in effecting
the termination of the responsibilities and rights of the terminated Backup Servicer under this Agreement.


 


9
















 


(b)           Notwithstanding
any other provision of this Agreement, in the event of a Termination Event
pursuant to Section 4.1(e), this Agreement shall terminate upon expiration of
the given cure period, and the Backup Servicer shall
then have no obligations or responsibilities under this Agreement, except as
set forth in Section 3.1(f).


 


ARTICLE V

MISCELLANEOUS PROVISIONS


 


SECTION 5.1 
Waiver;  Amendment. 
Neither this Agreement nor any provision hereof may be waived, amended
or modified orally, but only by an instrument in writing signed by the Servicer, the Seller, the Backup Servicer,
the Indenture Trustee and the Issuer; provided that any such amendment
shall not materially and adversely affect the interests of any Noteholder; provided, further, that any such
amendment shall be deemed not to materially and adversely affect the interests
of any Noteholder if the Rating Agency Condition is
satisfied.  Notwithstanding anything
herein to the contrary, any term or provision of this Agreement may be amended
by the Servicer and the Seller without the consent of
the Noteholders or any other Person to add, modify or
eliminate any provisions as may be necessary or advisable in order to comply
with or obtain more favorable treatment under or with respect to any law or
regulation or any accounting rule or principle (whether now or in the future in
effect); it being a condition to any such amendment that the Rating Agency
Condition shall have been satisfied.


 


SECTION 5.2 
Governing Law. 
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


 


SECTION 5.3 
Severability of Provisions.  If any one or more of the covenant,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.


 


SECTION 5.4 
Assignment. 
Notwithstanding anything to the contrary contained in this Agreement,
this Agreement may not be assigned by the Backup Servicer
without the prior written consent of the Servicer.


 


SECTION 5.5 
Third-Party Beneficiaries.  This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their
respective successors and permitted assigns. 
Nothing in this Agreement, express or implied, shall give to any Person,
other than the parties hereto, their successors hereunder and the Persons
entitled to be indemnified pursuant to Section 3.1, any benefit or any legal or
equitable right, remedy or claim under this Agreement.


 


SECTION 5.6 
Counterparts.  For
the purpose of facilitating its execution and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.


 


10
















 


SECTION 5.7  Notices.  All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed, or by
facsimile transmission, (a) in the case of the Backup Servicer,
at the following address: 4315 Pickett Road, St. Joseph, Missouri 64503,
Attention: John J. Chappell and Joseph D. Booz,
Facsimile Number (816) 671-2038 and (b) in the case of the Servicer,
at the following address: Case Credit Corporation, 233 Lake Avenue, Racine,
Wisconsin Attention: Assistant Treasurer, Facsimile Number (262) 636-6284 and
(c) in the case of the Issuer, at the following address:  CNH Equipment Trust 2004-A, in care of the
Bank of New York, 101 Barclay Street, Floor 8W, New York, New York 10286,
Attention:  Corporate Trust
Administration – Asset Backed Finance Unit, Facsimile Number (212) 815-2493 and
(d) in the case of the Seller, to CNH Capital Receivables Inc., 100 South
Saunders Road, Lake Forest, Illinois 60045, Attention of: Assistant Treasurer,
Facsimile Number (847) 955-4943 and (e) in the case of the Indenture Trustee,
at its Corporate Trust Office; or at such other address as shall be designated
by any such party in a written notice to the other parties.  All such notices
and communications shall be effective, upon receipt, or in the case of (i)
notice by mail, five days after being deposited in the United States mail,
first class postage prepaid, (ii) notice by telex, when telexed against receipt
of answer back, or (iii) notice by facsimile copy, when verbal communication of
receipt is obtained.


 


SECTION 5.8 
Nonpetition Covenants.  Notwithstanding any prior termination of this
Agreement, the Backup Servicer, the Servicer and the Indenture Trustee shall not, prior to the
date that is one year and one day after the payment in full of all securities
issued by Issuer or any other special purpose entity to which Seller transfers
receivables, which securities are rated at issuance by a nationally recognized
statistical rating organization, with respect to the Issuer or the Seller,
acquiesce, petition or otherwise invoke or cause the Issuer or the Seller to
invoke the process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Issuer or the Seller under any
federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Issuer or the Seller or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of
the Issuer or the Seller. The foregoing shall not limit the right of the Backup
Servicer, the Servicer or
the Indenture Trustee to file any claim in or otherwise take any action with
respect to any such insolvency proceeding that was
instituted against the Issuer or the Seller by any Person other than the Backup
Servicer, the Servicer or
the Indenture Trustee.


 


SECTION 5.9 
Term.  The
provisions of this Agreement and the duties and obligations of the Backup Servicer hereunder shall commence on the date hereof and
shall continue in full force and effect until either (i)
if SST is not then the Successor Servicer, the Notes
have been repaid in their entirety or (ii) the Pool Balance equals zero, unless
earlier terminated pursuant to the terms of this Agreement.


 


SECTION 5.10 
Limitation of Liability of Trustee.  Notwithstanding anything contained herein to
the contrary, this Agreement has been countersigned by The Bank of New York,
not in its individual capacity but solely in its capacity as Owner Trustee of
the Issuer, and in no event shall The Bank of New York, in its individual
capacity or, except as expressly provided in the Trust Agreement, any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the


 


11
















 


certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuer.


 


SECTION 5.11 
Miscellaneous.  In
connection with its execution and performance of this Agreement, the Issuer is
entitled to all rights, privileges, benefits and indemnities provided to it
under the Sale and Servicing Agreement.


 


SECTION 5.12 
Confidentiality.


 


(a)           SST
shall maintain, and shall cause each officer, employee and agent of itself and
its affiliates to maintain, the confidentiality of this Backup Servicing
Agreement, the Basic Documents and all other confidential proprietary
information with respect to the Case Credit, NH Credit, the Seller and CNH
Global N.V. and their affiliates and successors and each of their respective
businesses obtained by SST in connection with the structuring, negotiation and
execution of the transactions contemplated herein and in the other Basic
Documents or as otherwise provided to SST from time to time due to its role as
Backup Servicer or Successor Servicer,
except for information that has become publicly available or information
disclosed (i) to legal counsel, accountants and other
professional advisors to SST, (ii) as required by law, regulation or legal
process, (iii) in connection with any legal or regulatory proceeding to which
SST or any of their affiliates is subject or (iv) any other disclosure with the
prior written consent of Case Credit.


 


(b)          
SST shall maintain, and shall cause each officer, employee and agent of itself
and its affiliates to maintain, the confidentiality of each backup servicing agreement
to which SST and Case Credit Corporation (or its successors) are a party, the
Basic Documents (as defined in the indenture identified in each such backup
servicing agreement) and all other confidential proprietary information with
respect to the Case Credit, NH Credit, the Seller and CNH Global N.V. and their
affiliates and successors and each of their respective businesses obtained by
SST in connection with the structuring, negotiation and execution of the
transactions contemplated herein and in the other Basic Documents (as defined
in the indenture identified in each such backup servicing agreement) or as
otherwise provided to SST from time to time due to its role as Backup Servicer (as defined in the indenture identified in each
such backup servicing agreement) or Successor Servicer
(as defined in the indenture identified in each such backup servicing
agreement), except for information that has become publicly available or
information disclosed (i) to legal counsel,
accountants and other professional advisors to SST, (ii) as required by law,
regulation or legal process, (iii) in connection with any legal or regulatory
proceeding to which SST or any of their affiliates is subject or (iv) any other
disclosure with the prior written consent of Case Credit.


 


SECTION 5.13 
Information Requests.  The parties hereto shall provide any
information reasonably requested by the Servicer or
the Seller or any of their Affiliates, at the expense of such party, in order
to comply with or obtain more favorable treatment under any current or future
law, rule, regulation, accounting rule or principle.


 


SECTION 5.14 
Corporate Status of the Servicer
and the Seller.  Notwithstanding
anything herein or in the other Basic Documents to the contrary, the Servicer and/or the Seller may convert from a Delaware
corporation to a Delaware limited liability company without the


 


12
















 


prior
written consent of any party, without satisfying the Rating Agency Condition
(but with prior written notice to such Rating Agencies), and without the need
for entering into any supplemental or additional documentation.  Any references to the Servicer
and/or the Seller as a corporation herein or in any other Basic Document after
any such conversion shall be references to such entity as a limited liability
company.


 


SECTION 5.15  Notice to Moody’s. The Servicer shall notify Moody’s upon the termination of this
Agreement pursuant to Section 2.3 or the termination of SST as Backup Servicer pursuant to Section 4.2.


 


[The balance of this page has been
intentionally left blank]


 


13
















 


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


 


	
   

  	
  CASE
  CREDIT CORPORATION, as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BRIAN O’KEANE

  	
   

  
	
   

  	
  Name:

  	
  Brian O’Keane

  	
   

  
	
   

  	
  Title:

  	
  Assistant Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  CNH
  CAPITAL RECEIVABLES INC., as Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BRIAN O’KEANE

  	
   

  
	
   

  	
  Name:

  	
  Brian O’Keane

  	
   

  
	
   

  	
  Title:

  	
  Assistant Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  CNH
  EQUIPMENT TRUST 2004-A, as Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  The Bank of New York,
  not in its individual capacity but solely as Owner Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JAMES BOWDEN

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James P. Bowden

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Assistant Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  SYSTEMS
  & SERVICES TECHNOLOGIES, INC.,

  as Backup Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ KIMBERLY COSTA

  	
   

  
	
   

  	
  Name:

  	
  Kimberly Costa

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
												



 


S-1
















 


	
  ACKNOWLEDGED
  AND AGREED:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  JPMORGAN
  CHASE BANK, as Indenture Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
						



 


S-2
















 


SCHEDULE I


 


DESCRIPTION OF
VERIFICATION AND CONFIRMATION DUTIES

(BACKUP SERVICING)


 


The Backup Servicer shall provide the following services related to
backup servicing in connection with the Contracts.


 


(i)            The Backup Servicer
will work with the Servicer’s personnel to obtain the
necessary systems and data information from the servicing systems in use by the
Servicer (the “Initial Data File Data Layouts and
Definitions” as set forth in Appendix A). 
Using this information, the Backup Servicer
will create a set of conversion routines and database mapping programs, as
necessary, that will enable the Backup Servicer to
receive data from the Servicer on a monthly basis (at
the time and in the manner specified in Section 2.1(a) of the Backup Servicing
Agreement) and to ensure that the data is readable.


 


(ii)           On a monthly basis, commencing with
the Initial Collection Period, the Backup Servicer
shall (x) verify receipt of the Monthly Data Files, as set forth in Appendix B,
required to be delivered by the Servicer (at the time
and in the manner specified in Section 2.1(a) of the Backup Servicing
Agreement) and (y) verify that the records and data contained in the monthly
data files are in a readable format.


 


(iii)          On the 10th Business Day after receipt
of the Monthly Data Files and the Servicer’s
Certificate from the Servicer, the Backup Servicer shall notify the Servicer
that (i) the Backup Servicer
has reviewed the Monthly Data Files for the related Collection Period, (ii) a
review of the information concerning delinquency aging, defaults and ending
Contract Value reflected on the Servicer’s
Certificate has been made and (iii) to the best of SST’s knowledge using its
best reasonable efforts, the data in such Monthly Data Files ties to such items
on the Servicer’s Certificate, resulting in no
discrepancies between them.  If the
preceding statement cannot be made in the affirmative, SST shall notify the Servicer of the nature of any and all discrepancies.  The Backup Servicer
and the Servicer shall attempt to reconcile all
discrepancies with respect to such Servicer’s
Certificate. The effect, if any, of such reconciliation shall be reflected in
the next succeeding Servicer’s Certificate.