EXHIBIT 4.14
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BACKUP SERVICING AGREEMENT
BETWEEN
ONYX ACCEPTANCE CORPORATION
ONYX ACCEPTANCE FINANCIAL CORPORATION
CITIBANK, N.A.
MBIA INSURANCE CORPORATION
ONYX ACCEPTANCE OWNER TRUST 2003-B
AND
SYSTEMS & SERVICES TECHNOLOGIES, INC.
AS BACKUP SERVICER
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DATED AS OF NOVEMBER 14, 2003
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THIS BACKUP SERVICING AGREEMENT, dated as of November 14, 2003 (this
"Agreement"), is between ONYX ACCEPTANCE CORPORATION ("Onyx" or, in its capacity
as servicer, the "Servicer"), a Delaware corporation, ONYX ACCEPTANCE FINANCIAL
CORPORATION ("▇▇▇▇▇"), a Delaware corporation, CITIBANK, N.A. (the "Indenture
Trustee"), a national banking association, MBIA INSURANCE CORPORATION ("MBIA"),
a New York stock insurance corporation, ONYX ACCEPTANCE OWNER TRUST 2003-B (the
"Issuer"), a Delaware statutory trust, and SYSTEMS & SERVICES TECHNOLOGIES,
INC., a Delaware corporation, as Backup Servicer (the "Backup Servicer" or
"SST").
WITNESSETH:
WHEREAS, the Servicer, the Indenture Trustee, ▇▇▇▇▇ and the Issuer are
party to that certain Sale and Servicing Agreement dated as of May 1, 2003 (the
"Sale and Servicing Agreement");
WHEREAS, the terms of the Sale and Servicing Agreement require that the
parties thereto enter into an agreement with a backup servicer to (i) perform
certain backup servicing duties more definitively described on Schedule I hereto
and (ii) become Successor Servicer upon the occurrence of certain specified
events;
WHEREAS, SST is willing to perform the backup servicing duties and act as
Successor Servicer as specified herein 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
capitalized terms shall have the meaning assigned to such terms in the Sale and
Servicing Agreement. Whenever capitalized and used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Agreement: This Backup Servicing Agreement, together with all amendments
and supplements hereto and all exhibits and schedules to any of the foregoing.
Authorized Officer: With respect to the Backup Servicer, the President,
any Vice President, Assistant Vice President, Secretary or Assistant Secretary
of the Backup Servicer and also, with respect to a particular matter, any other
officer of the Backup Servicer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
Backup Servicer or SST: Systems & Services Technologies, Inc., a Delaware
corporation, in its capacities as backup servicer and, upon the expiration of
the Transfer Period, as Successor Servicer, together with its successors in
interest and permitted assigns.
Backup Servicer Expenses: The meaning ascribed to such term in Section
2.4(a)(i) of this Agreement.
Backup Servicer Fees: The meaning ascribed to such term in Section
2.4(a)(i) of this Agreement.
Business Day: Any day other than a Saturday, a Sunday or other day on
which commercial banking institutions or savings associations located in St.
▇▇▇▇▇▇, Missouri, Los Angeles, California, Wilmington, Delaware or New York, New
York are authorized or obligated by law, regulation, executive order or
governmental decree to be closed.
Contract: Each retail installment sales contract and security agreement or
installment loan agreement and security agreement and all proceeds thereof and
payments thereunder, which contract or agreement has been executed by an obligor
and pursuant to which such obligor purchased or financed the vehicle described
therein, agreed to pay the deferred purchase price (i.e., the purchase price net
of any down payment) or amount borrowed, together with interest, as therein
provided in connection with such purchase or loan, granted a security interest
in such vehicle, and undertook to perform certain other obligations as specified
in such contract or agreement and which is being serviced by the Servicer in
connection with the Sale and Servicing Agreement.
Controlling Party: (i) MBIA, so long as no Insurer Default shall have
occurred and be continuing and (ii) the Indenture Trustee, so long as an Insurer
Default shall have occurred and be continuing; provided that the Indenture
Trustee shall notify the Backup Servicer promptly after the occurrence of any
Insurer Default that the Indenture Trustee has become the Controlling Party.
Distribution Date: The 15th day of each month or if such date shall not be
a Business Day, the following Business Day, commencing November 17, 2003.
▇▇▇▇▇: Onyx Acceptance Financial Corporation, a Delaware corporation.
Indenture: That certain Indenture dated as of May 1, 2003, between the
Issuer and the Indenture Trustee, as the same may be amended, modified or
restated from time to time.
Indenture Trustee: Citibank, N.A., a national banking association, not in
its individual capacity but solely as Indenture Trustee under the Indenture, its
successors in interest and any successor Indenture Trustee under the Indenture.
Information Package: The meaning ascribed to such term in Section 2.1(a)
of this Agreement.
Issuer: Onyx Acceptance Owner Trust 2003-B, a Delaware statutory trust.
MBIA: MBIA Insurance Corporation, a New York stock insurance corporation.
Notes: The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes issued pursuant to the Indenture.
Onyx: Onyx Acceptance Corporation, a Delaware corporation.
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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.
Rating Agencies: ▇▇▇▇▇'▇ Investors Service, Inc. and its successors in
interest and Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and its successors in interest.
Sale and Servicing Agreement: That certain Sale and Servicing Agreement
dated as of May 1, 2003, between the Issuer, the Servicer, ▇▇▇▇▇ and Citibank,
N.A., as Indenture Trustee and Trust Agent, as the same may be amended, modified
or restated from time to time.
Servicer: Onyx Acceptance Corporation in its capacity as servicer under
the Sale and Servicing Agreement, its successors in interest and any Successor
Servicer, other than the Backup Servicer, under the Sale and Servicing
Agreement.
SST: See the definition of "Backup Servicer" in this Section 1.1.
Successor Servicer: The Person appointed to succeed a resigning or
terminated servicer pursuant to Section 7.02 of the Sale and Servicing Agreement
and, in the case of SST, in accordance with the terms hereunder.
Termination Event: An event described in Section 4.1.
Transfer Notice: Written notice from the Indenture Trustee to the Backup
Servicer advising the Backup Servicer of the transfer of active servicing duties
to the Backup Servicer as Successor Servicer under the Sale and Servicing
Agreement.
Transfer Period: The period following the Backup Servicer's receipt of a
Transfer Notice, which period shall end on the earlier of thirty (30) days after
receipt by the Backup Servicer of the Transfer Notice and the date upon which
the Backup Servicer begins acting as Successor Servicer under the Sale and
Servicing Agreement.
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.
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ARTICLE II
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 2.1 Duties of the Backup Servicer.
(a) Verification and Confirmation Duties. Prior to its appointment as
Successor Servicer, the Backup Servicer shall perform all of the duties of the
Backup Servicer as identified on Schedule I hereto (collectively, the
"Verification and Confirmation Duties") in accordance with the terms of this
Agreement. No later than the Servicer Report Date, the Servicer shall deliver to
the Backup Servicer the Distribution Date Statement and a computer tape in a
format acceptable to the Backup Servicer containing the information with respect
to the Contracts for the preceding Collection Period necessary for the
preparation of the Distribution Date Statement and the performance of the
Verification and Confirmation Duties relating to such Collection Period
(collectively, the "Information Package").
(b) Active Servicing Duties. In the event that the Servicer is terminated,
resigns or otherwise ceases to function as Servicer under the Sale and Servicing
Agreement, the Indenture Trustee shall (unless otherwise directed by MBIA, if
then the Controlling Party) deliver a Transfer Notice to the Backup Servicer
appointing the Backup Servicer as Successor Servicer. Upon the expiration of the
Transfer Period, the Backup Servicer shall assume the duties, liabilities and
obligations of the Servicer under the Sale and Servicing Agreement, as modified
in accordance with Schedule III, and the Insurance Agreement as modified in
accordance with Schedule IV.
(c) 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. Upon the termination of the Policy, all rights, liabilities,
duties and obligations of MBIA hereunder shall terminate other than any such
liability that accrued to or was incurred by MBIA prior to such repayment.
(d) Scope of Duties. The Backup Servicer undertakes to perform only such
duties and obligations as are specifically set forth in this Agreement, it being
expressly understood by all parties hereto that there are no implied duties or
obligations of the Backup Servicer hereunder. Without limiting the generality of
the foregoing, the Backup Servicer, except as expressly set forth herein, shall
have no obligation to supervise, verify, monitor or administer the performance
of the Servicer. The Backup Servicer may act through its agents, attorneys and
custodians in performing any of its duties hereunder, it being understood by the
parties hereto that the Backup Servicer will be responsible for any willful
misconduct or negligence on the part of such agents, attorneys or custodians
acting for and on behalf of the Backup Servicer. Notwithstanding anything to the
contrary in the Basic Documents, the Backup Servicer shall have no liability for
any actions taken or omitted by the Servicer or its agents or the inaccuracy of
any data provided, produced or supplied by the Servicer or its agents, except to
the extent provided in Section 3.1(d) of this Agreement. Notwithstanding
anything herein or in the Basic Documents to the contrary, SST will not be
obligated to undertake the duties of the Administrator under the Administration
Agreement.
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SECTION 2.2 Representations, and Warranties of Backup Servicer. By its
execution and delivery of this Agreement, the Backup Servicer makes the
following representations and warranties as of the date of this Agreement:
(a) 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, including the servicing of Contracts;
(b) 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 and has made all filings and registrations necessary to
perform its obligations under this Agreement;
(c) 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;
(d) Binding Obligation. This Agreement shall constitute 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 limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(e) 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, shall 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;
(f) 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
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(g) 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 Servicer Termination and Resignation.
(a) Prior to the time the Backup Servicer receives a Transfer Notice, the
Controlling Party may terminate this Agreement, for any reason in its sole
judgment and discretion upon delivery of thirty (30) days' advance written
notice to the other parties hereto of such termination; provided that the Rating
Agency Condition is satisfied with respect thereto. Reasonable expenses incurred
by the Backup Servicer in respect of the foregoing sentence shall be reimbursed
by the Servicer in accordance with Section 2.4 hereunder.
(b) Prior to the time the Backup Servicer receives a Transfer Notice, the
Backup Servicer may resign from its obligations and duties under this Agreement
for any reason in its sole judgment and discretion upon delivery of thirty (30)
days advance written notice to the other parties hereto and the Rating Agencies
of such resignation. No such resignation shall become effective until a
successor Backup Servicer appointed by the Servicer shall have assumed the
Backup Servicer's duties, obligations and liabilities hereunder. Any such
successor Backup Servicer must be an established servicer of motor vehicle loans
reasonably acceptable to the Issuer, the Indenture Trustee, MBIA and the Rating
Agencies. In the event a successor Backup Servicer is not appointed within
thirty (30) days, the resigning Backup Servicer may petition a court of
competent jurisdiction for appointment of a successor. Upon the resignation of
the Backup Servicer, the Backup Servicer shall cooperate with the transitioning
to a new backup servicer or successor servicer.
SECTION 2.4 Compensation; Payment of Expenses by Backup Servicer.
(a) (i) On each Distribution Date prior to its appointment as Successor
Servicer, the Backup Servicer shall be entitled to receive from the Servicer the
fees (the "Backup Servicer Fees") set forth in Item I.A. on the attached
Schedule II for its performance of the Verification and Confirmation Duties.
Additionally, on each Distribution Date prior to its appointment as Successor
Servicer, the Backup Servicer shall be entitled to receive from the Servicer the
reimbursable expenses set forth in Item II.A. on the attached Schedule II and
amounts it is entitled in respect of indemnification from the Servicer pursuant
to this Agreement.
(ii) To the extent the Servicer does not remit payment in full to
the Backup Servicer on any Distribution Date the Backup Servicer Fees, the
Backup Servicer shall, upon five (5) days prior written notice to the Indenture
Trustee and MBIA, be entitled to such Backup Servicer Fees from funds
distributed pursuant to the Sale and Servicing Agreement, if so directed by
MBIA, on the Distribution Date immediately succeeding the date of delivery of
such notice.
(b) As compensation for its performance as Successor Servicer, on each
Distribution Date following its appointment as Successor Servicer, the Backup
Servicer shall be entitled to receive the Servicing Fee as provided in the Sale
and Servicing Agreement, as modified by Schedule III hereto.
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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 and warranties made by the Backup Servicer hereunder.
(b) The Backup Servicer shall indemnify, defend and hold harmless the
other parties hereto 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 such party through the Backup
Servicer's breach of this Agreement (other than a breach caused by the
negligence, willful misfeasance or bad faith of any other party hereto), the
negligence (excluding errors in judgment), willful misfeasance or bad faith of
the Backup Servicer or by reason of reckless disregard of the Backup Servicer's
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, or the negligence, willful misfeasance or bad faith of the
Servicer or by reason of reckless disregard of the Servicer's obligations and
duties under this Agreement.
MBIA 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 negligence(excluding errors in
judgment), willful misfeasance or bad faith of MBIA or by reason of reckless
disregard of MBIA's obligations and duties as Controlling Party.
The Servicer shall indemnify, defend and hold harmless the Backup Servicer
and its officers, directors, employees, representatives and agents, from and
against, and reimburse the Backup Servicer for, any and all claims, expenses,
obligations, liabilities, losses, damages, injuries (to person, property, or
natural resources), penalties, stamp or other similar taxes, actions, suits,
judgments, reasonable costs and expenses (including reasonable attorney's and
agent's fees and expenses) of whatever kind or nature regardless of their merit,
incurred by the Backup Servicer directly or indirectly relating to, or arising
from, claims against the Backup Servicer by reason of its participation in the
transaction contemplated hereby, including without limitation all reasonable
costs associated with claims for damages to persons or property, and reasonable
attorneys' and consultants' fees and expenses and court costs except to the
extent caused by the Backup Servicer's negligence, willful misfeasance or bad
faith or by reason of reckless disregard of the Backup Servicer's obligations
and duties under this Agreement.
(d) 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
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Servicer, including documents prepared or maintained by any originator, or
previous servicer, or any party providing services related to the Contracts
(collectively, "third party"). The Servicer agrees to indemnify (subject to the
limitation provided in subsection (e) below) and hold harmless the Backup
Servicer, its respective officers, employees and agents harmless 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 willful misconduct of any third
party with respect to the Contracts. 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.
The Backup Servicer shall have no responsibility and shall not be in
default hereunder or incur any liability for any failure, error, malfunction or
any delay in carrying out any of its duties under this Agreement if such failure
or delay in carrying out any of its duties under this Agreement results from the
Backup Servicer acting in accordance with information prepared or supplied by a
Person other than the Backup Servicer (or contractual agents) or the failure of
any such other Person to prepare or provide such information. The Backup
Servicer shall have no responsibility, shall not be in default and shall incur
no liability for (i) any act or failure to act of any third party (other than
its contractual agents), including the Servicer or MBIA, (ii) any inaccuracy or
omission in a notice or communication received by the Backup Servicer from any
third party (other than its contractual agents), (iii) the invalidity or
unenforceability of any Contract under applicable law, (iv) the breach or
inaccuracy of any representation or warranty made with respect to any Contract
or Financed Vehicle, or (v) the acts or omissions of any successor Backup
Servicer.
The Servicer shall indemnify (subject to the limitation provided in
subsection (e) below) and hold harmless the Backup Servicer, its respective
officers, employees and agents harmless 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 (i) the negligence or misconduct of any third party, other than
contractual agents of the Backup Servicer, with respect to the Contracts or
Financed Vehicles, and (ii) the performance of the Backup Servicer's duties
hereunder and under the Sale and Servicing Agreement other than if the loss,
liability or expense was incurred by the Backup Servicer as a result of the
Backup Servicer's willful misfeasance, negligence or bad faith.
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
other parties hereto of such errors and/or continuing errors. With the prior
consent of the Controlling Party, 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.
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(e) Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel 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, without
interest.
When the Backup Servicer incurs expenses after the occurrence of a
Servicer Default, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
(f) The provisions of this Section 3.1 shall survive the termination of
this Agreement.
SECTION 3.2 Limitation on Liability of Backup Servicer and Others. Neither
the Backup Servicer nor any of the directors or officers or employees or agents
of the Backup Servicer shall be under any liability to the other parties hereto
or any party to the Sale and Servicing Agreement 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 or any such Person against any liability
that would otherwise be imposed by reason of a breach of this Agreement or
willful misfeasance, bad faith or negligence (excluding errors in judgment) in
the performance of duties, by reason of reckless disregard of obligations and
duties under this Agreement or any violation of law by the Backup Servicer or
such Person, as the case may be. The Backup Servicer and any director, officer,
employee or agent of the Backup Servicer may rely in good faith on the advice of
counsel 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 preserve its qualification to do business as a foreign
corporation in each jurisdiction in which the failure to so qualify would have a
material adverse effect on the validity or enforceability of any Contract, 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 Vehicles 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.
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ARTICLE IV
BACKUP SERVICER 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 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 Controlling
Party; 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 property 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 Controlling Party, the circumstances or condition in respect of
which such representation, warranty or statement was incorrect shall not have
been eliminated or otherwise cured; or
(e) Non-payment of amounts due and owing to the Backup Servicer pursuant
to Section 2.4(a)(ii) or Section 2.4(b), which non-payment shall not be cured by
the second succeeding Distribution Date after the date on which written notice
of such non-payment shall have been received by the Indenture Trustee and MBIA.
SECTION 4.2 Consequences of a Termination Event.
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(a) If a Backup Servicer Event of Default (as defined in Section 4.1
above) shall occur and be continuing, the Controlling Party may (or shall, at
the direction of Holders evidencing not less than 25% of the outstanding
principal amount of the Notes, if the Indenture Trustee is the Controlling
Party), by notice given in writing to the Backup Servicer with a copy of such
writing to the other parties hereto and the Rating Agencies, terminate all of
the rights and obligations of the Backup Servicer under this Agreement. 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 other parties hereto in effecting the termination of the
responsibilities and rights of the terminated Backup Servicer under this
Agreement.
(b) 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 duties or obligations under this Agreement
except as otherwise provided herein.
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 parties hereto; 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.
SECTION 5.2 GOVERNING LAW AND WAIVER OF JURY TRIAL. 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 (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR BY THE SALE AND
SERVICING AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 5.3 CONSENT TO JURISDICTION. EACH PARTY TO THIS AGREEMENT (I)
AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE BROUGHT IN A COURT OF RECORD IN THE CITY AND
STATE OF NEW YORK OR IN THE COURTS OF THE UNITED STATES OF AMERICA LOCATED IN
THE SOUTHERN DISTRICT OF NEW YORK, (II) CONSENTS TO THE JURISDICTION OF EACH
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND (III) WAIVES ANY
OBJECTION WHICH THEY MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION,
OR PROCEEDING IN ANY OF SUCH COURTS AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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SECTION 5.4 Rating Agencies. The Backup Servicer will provide any Rating
Agency with such reasonable assistance as is necessary to evaluate such Rating
Agency's rating of the Notes.
SECTION 5.5 Severability of Provisions. If any one or more of the
covenants, 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 5.6 Assignment. Notwithstanding anything to the contrary contained
in this Agreement, this Agreement may not be assigned by the Backup Servicer
without the prior consent of the Controlling Party and the Rating Agencies.
SECTION 5.7 Binding Effect; No 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 and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
SECTION 5.8 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.
SECTION 5.9 Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, or by facsimile transmission, and shall be deemed
to have been duly given upon receipt:
(a) in the case of the Backup Servicer, at the following address: ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇;
(b) in the case of the Servicer, at the following address: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇,
Executive Vice President, facsimile (▇▇▇) ▇▇▇-▇▇▇▇;
(c) in the case of the Issuer, at the following address: c/o Chase
Manhattan Bank USA, National Association, as Owner Trustee, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Institutional
Trust Services, facsimile (▇▇▇) ▇▇▇-▇▇▇▇;
(d) in the case of MBIA, at the following address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Insured Portfolio Management, Structured
Finance, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, and
(e) in the case of the Indenture Trustee, at the following address: ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured
Finance Group - Onyx Acceptance Owner Trust 2003-B, facsimile (▇▇▇) ▇▇▇-▇▇▇▇;
or, in each case, at such other address as shall be designated by any such party
in a written notice to the other parties.
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SECTION 5.10 Confidentiality.
(a) Unless otherwise consented to by the Servicer, each of the parties
hereto hereby agrees that it will not disclose the contents of this Agreement,
or any other confidential or proprietary information furnished in connection
with the matters contemplated by this Agreement by the Servicer to any Person
other than its affiliates (which affiliates shall have agreed to be bound by
this Section 5.10), auditors and attorneys or as required by applicable law or
the Sale and Servicing Agreement.
(b) The Backup Servicer, whether in its performance of the Verification
and Confirmation Duties or in its capacity as Successor Servicer, represents and
warrants to the Servicer that it presently maintains safeguards designed to
protect the security and confidentiality of "Customer Information" that the
Servicer may allow the Backup Servicer to access in order to perform its duties
under this Agreement and the Sale and Servicing Agreement. "Customer
Information" is non-public personal information in the possession of the
Servicer about obligors under the Contracts, including, without limitation, any
disclosure that an obligor is a party to a Contract. The Backup Servicer agrees
that "Customer Information" will be held in strict confidence and accessed only
for the purpose of carrying out its duties under this Agreement and the Sale and
Servicing Agreement. The Backup Servicer agrees to protect this "Customer
Information" according to commercially reasonable standards and no less
rigorously than it protects its own customers' confidential information.
SECTION 5.11 Non-Petition Covenant.
(a) With respect to the Issuer, prior to the date that is one year and one
day after the payment in full of all amounts owing under the Notes, the Backup
Servicer will not institute against the Issuer or join any other Person in
instituting against the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under the
laws of the United States of America or any state of the United States.
(b) With respect to ▇▇▇▇▇, the Backup Servicer will not institute against
▇▇▇▇▇ or join any other Person in instituting against ▇▇▇▇▇ any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States of America or any state
of the United States.
(c) The provisions of this Section 5.11 shall survive the termination of
this Agreement.
SECTION 5.12 Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer, and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity or any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
14
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Citibank, N.A. not in its individual
capacity but solely as Indenture Trustee and in no event shall Citibank, N.A.
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
SECTION 5.13 Instruction to Owner Trustee. By its execution of this
Agreement, MBIA hereby confirms that no Insurer Default has occurred and is
continuing and authorizes and instructs the Owner Trustee to execute and deliver
this Agreement on behalf of the Issuer.
15
IN WITNESS WHEREOF, the parties hereto have caused this Backup Servicing
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ONYX ACCEPTANCE CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
MBIA INSURANCE CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
CITIBANK, N.A., not in its individual
capacity, but solely as an Indenture Trustee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ONYX ACCEPTANCE OWNER TRUST 2003-B
By: Chase Manhattan Bank USA, National
Association, not in its individual
capacity, but solely as Owner Trustee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
SYSTEMS & SERVICES TECHNOLOGIES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Backup Servicing Agreement (2003-B) - Signature Page
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Backup Servicing Agreement (2003-B) - Signature Page
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. 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.
The monthly data shall include the following:
- Obligor information
- Loan financial information
- Collateral information
- Payment/Transaction history
- Information edits
(ii) On a monthly basis, the Backup Servicer shall (x) verify receipt of
the Information Package 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
Information Package are in a readable format.
(iii) No later than 3:00 p.m. New York City time on the third Business Day
after receipt of the Information Package from the Servicer, the Backup Servicer
shall provide the Servicer, the Indenture Trustee, the Trust Agent (as defined
in the Sale and Servicing Agreement) and MBIA a certificate signed by an
Authorized Officer, stating that (i) the Backup Servicer has reviewed the
Information Package for the related Collection Period, (ii) a review of items
(x), (xi) (with respect to "Net Collections" only), (xii), (xiv) and (xv) in
Section 3.09(a) of the Sale and Servicing Agreement as reflected on the
Distribution Date Statement for the related Servicer Report Date has been made
under such Authorized Officer's supervision and (iii) to the best of such
Authorized Officer's knowledge, the data in such Information Package ties to
such items on the Distribution Date Statement, resulting in no discrepancies
between them. If the preceding statement cannot be made in the affirmative, such
Authorized Officer shall, in lieu of the certificate described in the preceding
sentence, deliver a written statement indicating the nature of any and all
discrepancies. The Backup Servicer and the Servicer shall attempt to reconcile
all discrepancies with respect to such Distribution Date Statement prior to 3:00
p.m. New York City time on the Business Day preceding such Distribution Date,
and, at or prior to such time, the Servicer shall deliver (by telex, facsimile,
electronic transmission, first class mail, overnight courier or personal
delivery) to the Issuer, the Trust Agent, the Indenture Trustee, the Backup
Servicer and MBIA (A) such Distribution Date Statement, if applicable, restated
to reflect all discrepancies that have up to that point been reconciled by the
Servicer and the Backup Servicer and (B) a written statement indicating the
remaining discrepancies,
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if any. If the Servicer and the Backup Servicer are unable to reconcile all
discrepancies prior to the time set forth in the preceding sentence, the
Distribution Date Statement, as delivered in accordance with the preceding
sentence or the Sale and Servicing Agreement, as applicable, shall be deemed to
be the Distribution Date Statement for such Distribution Date and the related
Servicer Report Date. In the event the Backup Servicer and the Servicer are
unable to reconcile such remaining discrepancies by the end of business on the
fifth (5) Business Day after the related Distribution Date, the Servicer shall,
if so directed by the Controlling Party, cause a firm of nationally-recognized
independent certified public accountants acceptable to the Controlling Party, at
the Servicer's expense, to audit the reports prepared and delivered by the
Servicer and, prior to the next succeeding Servicer Report Date, reconcile the
discrepancies. The effect, if any, of such reconciliation shall be reflected in
the Distribution Date Statement for such next succeeding Servicer Report Date.
SCHEDULE II
FEES, EXPENSES & DISTRIBUTIONS
I. FEES
A. Verification and Confirmation Duties
1. One-Time Setup Fee $7,500
2. Monthly Fee $4,000 per month
B. Successor Servicing (1)
1. One Time Transition Fee(2) the greater of $5.00 per Active Contract
or
$50,000
2. Monthly Fee (3) (4) the greatest of 100 bsp or
$6.50 per Active Contract per month or
$1,500 per month
II. EXPENSES
A. Verification and Confirmation Duties
SST shall be reimbursed as described in Section 2.4(a) of the Agreement
for all reasonable out-of-pocket costs and expenses incurred in connection
with the performance of the Verification and Confirmation Duties,
including travel and lodging expenses and outside legal expenses.
B. Successor Servicing Expenses (1)
SST shall be reimbursed as part of the Servicing Fee for all reasonable
out-of-pocket expenses (i) associated with global retitling efforts and
insurance tracking, if required by MBIA, in each case, so long as no
Insurer Default has occurred and is continuing and (ii) specified in the
Sections 2.01(f), 2.01(g), 2.01(i), 9.02(a) and 9.02(i)(i) and (ii) of the
Sale and Servicing Agreement as modified by Schedule III of the Agreement.
Out-of-pocket expenses associated with asset recovery and/or liquidation
shall be reimbursed from Liquidation Proceeds in accordance with the
provisions of the Sale and Servicing Agreement as modified by Schedule III
of the Agreement.
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III. MISCELLANEOUS (1)
A. Claim Filing Costs
In the event SST files credit enhancement insurance claims (e.g., Vendor
Single Interest) in connection with any contract serviced by SST, SST
shall receive $25.00 per filing.
B. Administrative Fees/Servicing Charges
SST shall receive all administrative fees, including extension processing
fees, NSF fees and late charges received by SST during any monthly
collection period.
C. Deficiency Collections
Under separate agreement, SST may provide deficiency collections services
on a contingency fee basis.
--------------------------------------------------------------
(1) These items shall only apply to SST's performance of successor servicing
duties and constitute the fees and reimbursable expenses due SST as successor
servicer as described in the definition of "Servicing Fee" as modified by
Schedule III, item 1 to the Backup Servicing Agreement.
(2) This fee shall cover all transfer expenses and boarding fees related to the
physical and electronic transfer of the Contract Files and, if applicable,
Contract Documents to SST, including, without limitation, mailing expenses
(including postage) incurred by it associated with any "hello/goodbye"
correspondence directed to obligors.
(3) Basis points are annualized (i.e., applicable basis points/12) and shall be
based on beginning of month Outstanding Principal Balance (as defined in the
Sale and Servicing Agreement) of all Active Contracts, as defined below.
(4) SST shall receive this fee for all "Active Contracts" for any full or
partial month where it functions as the Successor Servicer. Active Contract is
defined as any Contract other than: (i) prepaid, fully satisfied Contracts; (ii)
Contracts in which the Financed Vehicle has been liquidated and SST has posted
the Liquidation Proceeds or any other anticipated proceeds (e.g., credit
enhancement insurance); or (iii) Contracts in which SST has completed all work
in connection with processing and receiving insurance payoffs.
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SCHEDULE III
ACTIVE SERVICING DUTIES
Pursuant to Section 2.1(b) of the Backup Servicing Agreement, to which
this Schedule III is a part, SST has agreed that, in the event the Servicer is
terminated, resigns or otherwise ceases to function as Servicer under the Sale
and Servicing Agreement, and SST has received a Transfer Notice from the
Indenture Trustee, upon the expiration of the Transfer Period, SST will assume
the duties, liabilities and obligations of the Servicer under the Sale and
Servicing Agreement, as modified in accordance with this Schedule III.
For purposes of determining SST's duties, liabilities and obligations, as
Successor Servicer under the Sale and Servicing Agreement, at such time as SST
becomes the Successor Servicer, the Sale and Servicing Agreement will be deemed
to be modified as follows; provided, that all parties hereto acknowledge that
the modifications of the Servicer's duties listed below, including but not
limited to the obligation to comply with SAS 70 as noted in Item 26, shall apply
only to SST as Servicer and specifically shall not apply to Onyx or to any
affiliate of Onyx:
1. Section 1.01: Clause (i) of the definition of "Servicing Fee" shall not
be applicable and clause (ii) of the definition of "Servicing Fee," related to
that portion of the servicing fee due to the Backup Servicer, shall be deemed to
include fees and reimbursable expenses due to SST as the Successor Servicer
under the Backup Servicing Agreement as set forth on Schedule II thereof and
Liquidation Expenses for the related Collection Period up to the amount of
Liquidation Proceeds deposited into the Collection Account for such Collection
Period; provided, however, that no such reimbursable expenses shall be included
in the Servicing Fee for any Distribution Date if (x) an Insurer Default shall
have occurred or be continuing on such Distribution Date or (y) a Policy Claim
Amount greater than zero shall exist with respect to such Distribution Date and
MBIA shall not have remitted such Policy Claim Amount to the Indenture Trustee
for deposit into the Payment Account, on or prior to such Distribution Date.
2. Section 1.01: The definition of "Liquidation Expenses" shall be
modified by replacing the parenthetical "(not to exceed Liquidation Proceeds)"
in the first sentence of such definition with "(including, without limitation,
expenses associated with Obligor bankruptcies)" and adding the following proviso
at the end of the first sentence:
"provided, that if Net Liquidation Proceeds for any Collection Period are
less than zero (without giving effect to the proviso in the definition of
Net Liquidation Proceeds), aggregate Liquidation Expenses in excess of
aggregate Liquidation Proceeds for such Collection Period shall be
included in Liquidation Expenses for the next succeeding Collection
Period."
3. Section 1.01: The definition of "Net Liquidation Proceeds" shall be
deleted in its entirety and replaced with the following:
"Net Liquidation Proceeds" means the amount derived from subtracting from
the Liquidation Proceeds of all Defaulted Contracts for the related
Collection Period the Liquidation Expenses incurred by the Servicer for
all Defaulted Contracts during such Collection Period; provided, that if
Net Liquidation Proceeds for any Collection Period
III-1
equals a number less than zero, Net Liquidation Proceeds shall be deemed
to be zero for such Collection Period.
4. Section 1.01: The definition of "Net Collections" shall be modified by
deleting the term "Net Liquidation Proceeds" in subsection (i) and replacing
such term with "Liquidation Proceeds."
5. Section 2.01(f): Section 2.01(f) shall be deleted in its entirety and
replaced by the following:
The Servicer shall file or cause to be filed between the dates of December
17, 2007 and May 16, 2008, in the office of the Secretary of State of the
State of Delaware appropriate UCC financing statement amendments
continuing the effectiveness of (i) UCC-1 financing statement number
3126104 2, originally filed on May 16, 2003, naming the Seller as debtor
and the Trust as secured party and (ii) UCC-1 financing statement number
3126108 3, originally filed on May 16, 2003, naming the Trust as debtor
and the Indenture Trustee as secured party, and shall take such other
action as reasonably requested by the Indenture Trustee or the Insurer to
continue the perfection of the respective interests of the Trust and the
Indenture Trustee in the Contracts. From time to time, the Servicer shall
cause to be taken such actions as are necessary to continue the first
priority security interest of the Indenture Trustee in the Financed
Vehicles and their proceeds (other than, as to such priority, any
statutory lien arising by operation of law after the Closing Date which is
prior to such interest), including, without limitation, the filing of
financing statements, amendments thereto or continuation statements and
the making of notations on records or documents of title. The Back-up
Servicer may retain third-party vendors in connection with its duties
hereunder. The parties to the Back-up Servicing Agreement agree to
cooperate with the Back-up Servicer in facilitating the performance of the
duties described in Section 2.01(f).
Subject to the proviso in Item 1. of this Schedule III, the Back-up
Servicer shall be reimbursed as part of the Servicing Fee for all reasonable
expenses necessary to perform the duties described in the first sentence of
Section 2.01(f). To the extent that SST shall be required to undertake the
global retitling of the Financed Vehicles in order to comply with the second
sentence of Section 2.01(f), SST shall, subject to the proviso in Item 1. of
this Schedule III, be reimbursed as part of the Servicing Fee for all reasonable
expenses necessary to perform such duties and shall, so long as no Insurer
Default has occurred and is continuing, undertake such global retitling effort
only upon the instruction of MBIA.
6. Section 2.01(g): Subject to the proviso in Item 1. of this Schedule
III, SST shall be reimbursed as part of the Servicing Fee for all reasonable
expenses (i) necessary to perform the duties described in Section 2.01(g)
related to the preservation and protection of the interests of the Trust, the
Indenture Trustee, the Noteholders and MBIA in the Contracts, the related
Financed Vehicles and the proceeds thereof and (ii) incurred in connection with
causing the preparation and delivery of each Opinion of Counsel delivered
pursuant to Section 2.01(g). The parties to the Backup Servicing Agreement agree
to cooperate with SST in facilitating the performance of the duties described in
Section 2.01(g). SST may retain third-party vendors in connection with its
duties hereunder.
7. Section 2.01(i): Section 2.01(i) shall be modified to reflect that to
the extent that SST shall be required to undertake the global retitling of the
Financed Vehicles in order to comply with
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Section 2.01(i), SST shall, subject to the proviso in Item 1. of this Schedule
III, be reimbursed as part of the Servicing Fee for all reasonable expenses
necessary to perform such duties and shall, so long as no Insurer Default has
occurred and is continuing, undertake such global retitling effort only upon the
instruction of MBIA.
8. Section 2.02: SST shall be deemed to have relied on the representations
and warranties made by the Seller in Section 2.02.
9. Section 2.03: The final sentence in Section 2.03 shall be deemed to
include references to SST, such that the sole remedy of SST, along with the
Issuer, the Indenture Trustee and the Noteholders, with respect to a breach of
the Seller's representations and warranties pursuant to Section 2.02 shall be to
require the Seller to repurchase Contracts pursuant this Section; provided,
however, that the Seller shall indemnify SST, as well as the Owner Trustee, the
Trust Agent, the Indenture Trustee, MBIA, the Issuer and the Noteholders,
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third-party claims arising out of the
events or facts giving rise to such breach.
10. Section 2.05(b): The last sentence of Section 2.05(b) shall be deemed
to be modified to provide that SST, as Successor Servicer, shall, upon
reasonable prior written notice, permit the Issuer, the Indenture Trustee and
MBIA or their respective duly authorized representatives, attorneys or auditors
to inspect the Contract Files and the related accounts, records and computer
systems maintained by the Servicer at such times as such Persons may request
during normal business hours at the office of SST in a manner that does not
cause undue disruption or interference with SST's business.
11. Section 2.05(d): Section 2.05(d) shall be deemed to be modified by (i)
deleting the term "Net Liquidation Proceeds" in subsection (iv) thereof and to
replace such term with "Liquidation Proceeds" and (ii) adding the following
sentence to the end of such section:
Onyx shall assist SST in respect of the reporting requirements set forth
in this section.
12. Section 2.07: The penultimate sentence of Section 2.07, related to
indemnification by the Servicer with respect to certain taxes, shall not apply
to SST.
13. Section 2.08: The penultimate sentence of Section 2.08 regarding the
Servicer's obligations to deliver Contract Files and Contract Documents shall
not apply to SST; provided, that, subject to the proviso in Item 1. of this
Schedule III, any such expenses incurred by SST in connection with obtaining the
Contract Files and, if applicable, the Contract Documents in connection with its
transition to Successor Servicer and, if applicable, Successor Custodian, shall
be reimbursable to SST as part of the "One-Time Transtion Fee" as set forth in
Item I.B.1. of Schedule II of the Backup Servicing Agreement.
14. Section 3.01: SST shall not be responsible for the preparation of the
U.S. Partnership Tax Returns (Form 1065) for the Owner Trustee referenced in the
first paragraph of Section 3.01. Additionally, SST shall not be responsible for
the duties of the Servicer set forth in the second, third and fourth paragraphs
of Section 3.01, related to delivery of documents on the Closing Date and
deposits of amounts in the Collection Account on the Closing Date and on each
Prefunding Transfer
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Date. Also, the final paragraph of Section 3.01, related to the payment of
certain fees by the Servicer, shall not apply to SST. Furthermore, the term "Net
Liquidation Proceeds" in the second sentence of the fifth paragraph of Section
3.01 shall be deleted and replaced with the term "Liquidation Proceeds."
15. Section 3.03: The last sentence of Section 3.03, relating to the
remittance of Net Liquidation Proceeds and Net Insurance Proceeds to the
Collection Account, shall be modified by deleting the term "Net Liquidation
Proceeds" and replacing such term with "Liquidation Proceeds."
16. Section 3.04: Section 3.04, relating to maintenance of a Blanket
Insurance Policy by the Servicer, shall not apply to SST.
17. Section 3.05: The parties to the Backup Servicing Agreement agree to
cooperate with SST in facilitating the performance of the duties described in
Section 3.05.
18. Section 3.06(a): SST shall be deemed to make the covenants contained
in Section 3.06(a) as of the end of the Transfer Period.
19. Section 3.06(b): Section 3.06(b), setting forth certain
representations and warranties of the Servicer, shall not apply to SST.
20. Section 3.07: Section 3.07, setting forth the Servicer's obligation to
repurchase Contracts under limited circumstances, shall not apply to SST.
21. Section 3.08: Section 3.08, setting forth the compensation payable to
the Servicer, shall not apply to SST. SST will be entitled to compensation as
set forth in the Backup Servicing Agreement.
22. Section 3.09: Section 3.09 shall be deemed to be modified to add the
following sentence to the end of Section 3.09(a) and Section 3.09(b):
Onyx shall assist SST in respect of the reporting requirements set forth
in this section.
23. Section 3.09(a): Subsection 3.09(a)(xii) shall be deleted in its
entirety and replaced with the following:
The aggregate amount of Liquidation Proceeds received and Liquidation
Expenses incurred in respect of Defaulted Contracts.
24. Section 3.09(b): Subsection 3.09(b)(iii)(D), relating to the
Servicer's monthly report as to Liquidated Contracts, shall be modified by
deleting the term "Net Liquidation Proceeds" and replacing such term with
"Liquidation Proceeds and Liquidation Expenses."
25. Section 3.10: The annual statement as to compliance required to be
delivered by the Servicer related to the preceding fiscal year of the Servicer
shall be deemed to relate only to that portion of the fiscal year in which SST
acts as Servicer.
26. Section 3.11: Section 3.11 shall be deleted in its entirety and
replaced with the following:
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SST at its expense shall cause a firm of independent certified public
accountants, which may also render other services to SST or its
affiliates, to deliver to the Issuer, the Trust Agent, the Indenture
Trustee and the Insurer, within 120 days after the end of each fiscal
year, commencing with the fiscal year ending December 31, 2003, (i) an
opinion by a firm of nationally recognized independent certified public
accountants on the financial position of SST at the end of the relevant
fiscal year and the results of operations and changes in financial
position of SST for such year then ended on the basis of an examination
conducted in accordance with generally accepted auditing standards, and
(ii) a report from such independent certified public accountants to the
effect that based on an examination of certain specified documents and
records relating to the servicing of SST's loan portfolio conducted
substantially in compliance with SAS 70 (the "Applicable Accounting
Standards"), such firm is of the opinion that such servicing has been
conducted in compliance with the Applicable Accounting Standards except
for (a) such exceptions as such firm shall believe to be immaterial and
(b) such other exceptions as shall be set forth in such statement.
27. Section 3.12: Section 3.12 shall be deemed to be modified to provide
that the "reasonable access" that the Servicer must provide to the Noteholders,
the Issuer, the Owner Trustee, the Trust Agent, the Indenture Trustee and MBIA
shall be access upon reasonable prior written notice, during normal business
hours at the office of SST in a manner that does not cause undue disruption or
interference with SST's business.
28. Section 3.14: Section 3.14, related to indemnification by the
Servicer, shall not apply to SST.
29. Section 4.01(a): Section 4.01(a), related to the establishment of
certain Trust Accounts prior to the Closing Date, shall not apply to SST.
30. Section 4.01(b): The penultimate sentence of Section 4.01(b), related
to direction from the Servicer for investing funds in the Payahead Account and
payment of earnings on such funds to the Servicer, shall not apply to SST.
31. Section 4.01(c): The portions of Section 4.01(c) related to direction
from the Servicer for investing funds in the Collection Account, the Spread
Account, the Prefunding Account and the Capitalized Interest Account, and
payment of earnings on such funds to the Servicer, shall not apply to SST.
32. Section 4.01(d): The portions of Section 4.01(d) related to direction
from the Servicer for investing funds in the Collection Account, the Spread
Account, the Prefunding Account and the Capitalized Interest Account, shall not
apply to SST.
33. Section 4.02(a): Section 4.02(a), relating to the remittance of monies
to the Collection Account shall be modified by deleting the term "Net
Liquidation Proceeds" in the first sentence and replacing such term with
"Liquidation Proceeds."
34. Section 4.04(c): The portions of Section 4.04(c) related to direction
from the Servicer for investing funds in the Spread Account shall not apply to
SST. At its option, MBIA may direct the investment of funds on deposit in the
Spread Account in accordance with Section 4.04(c).
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35. Section 4.05: Section 4.05 shall be deemed to be modified to add the
following sentence to the end of Section 4.05(a) and Section 4.05(b):
Onyx shall assist SST in respect of the reporting requirements set forth
in this section.
36. Section 4.05(a)(xii): Subsection 4.05(a)(xii) shall be deleted in its
entirety and replaced with the following:
The aggregate amount of Liquidation Proceeds received and Liquidation
Expenses incurred in respect of Defaulted Contracts.
37. Section 4.06(a): Section 4.06(a), related to the establishment of the
Capitalized Interest Account, shall not apply to SST.
38. Section 4.07(a): Section 4.07(a), related to the establishment of the
Prefunding Account, shall not apply to SST.
39. Section 4.07(c): The portions of Section 4.07(c) related to direction
from the Servicer for investing funds in the Prefunding Account shall not apply
to SST.
40. Section 6.01(b): Section 6.01(b), related to certain indemnifications
by the Servicer, shall not apply to SST.
41. Section 6.01(d): Section 6.01(d), related to certain indemnifications
by the Servicer, shall not apply to SST.
42. Section 6.01(e): Section 6.01(e), related to certain indemnifications
by the Servicer, shall not apply to SST.
43. Section 6.02(a): Section 6.02(a) shall be deemed to reference the
Servicer's "state of incorporation" rather than the "State of Delaware" and the
clause "to protect the validity and enforceability of Contract Documents and
this Agreement" shall be deemed to be deleted from the end of this section and
replaced with the clause "under applicable law to perform its obligations under
the Back-up Servicing Agreement and this Agreement."
44. Section 6.02(b): Section 6.02(b) shall be deleted in its entirety and
replaced with the following:
SST shall not consolidate with or merge into any other corporation or
convey, transfer or lease all or substantially all of its assets as an
entirety to any Person or engage in any corporate transaction pursuant to
which the surviving or successor entity is not JPMorgan Chase Bank unless
otherwise consented to in writing by MBIA.
45. Section 6.03(b): Section 6.03(b) shall be deemed to be modified by
deleting the words "or permit any action to be taken by others" in that Section.
46. Section 6.04: The first sentence of Section 6.04, related to the
ability of the Servicer to resign, as applied to SST as Successor Servicer,
shall be deemed to be modified to state as follows:
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The Servicer shall not resign from the duties and obligations hereby
imposed on it except upon determination that the continued performance by
the Servicer of its duties hereunder would cause it to be in violation of
legal requirements, said determination to be accompanied by an Opinion of
Counsel, satisfactory to the Issuer, MBIA and the Indenture Trustee, to
such effect.
47. Section 6.05: The first paragraph of Section 6.05, related to the
limitation of the Servicer's liability, shall be deemed to be modified to state
as follows:
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Issuer, the
Indenture Trustee, the Trust Agent or the Noteholders except as provided
under this Agreement and the Back-up Servicing Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement or for errors in judgment; provided, however, that this
provision shall not protect the Servicer or any such person against any
liability that would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence (except errors in judgment) in the
performance of duties or by reason of reckless disregard of obligations
and duties under this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any advice of
counsel, Opinion of Counsel or on any Officer's Certificate or certificate
of auditors or on any document of any kind prima facie properly executed
and submitted by any person respecting any matters arising under this
Agreement.
48. Section 7.01(h): Section 7.01(h) shall be amended such that the
occurrence of any Trigger Event described in Sections 6.01(a)(i) (only to the
extent that the Seller fails to comply therewith), (iv), (v), (vi) (only to the
extent that SST is not then acting as servicer under the Warehouse Sale
Agreement (as defined in the Insurance Agreement)) and (ix) of the Insurance
Agreement shall not be a Servicer Default.
49. Section 9.02(a): SST shall not be responsible for the initial filing
of any financing statement required by Section 9.02(a), and, subject to the
proviso in Item 1. of this Schedule III, will be reimbursed as part of the
Servicing Fee for all reasonable expenses necessary to perform the remainder of
the duties described in Section 9.02(a) related to the continued perfection of
the interests of the Issuer, the Noteholders, the Indenture Trustee, the Trust
Agent and MBIA in the Contracts and in the proceeds thereof. SST may retain
third-party vendors in connection with its duties hereunder. The parties to the
Backup Servicing Agreement agree to cooperate with SST in the performance of the
Servicer's duties described in Section 9.02(a).
50. Section 9.02(c): The final sentence of Section 9.02(c) shall be deemed
to be modified to add the qualifier "Unless otherwise agreed to in writing by
MBIA" to the beginning of the sentence. Furthermore, the Seller shall be
required to give 60 days' prior written notice to SST of any relocation of the
state of organization of the Seller under the circumstances described in the
first sentence of Section 9.02(c).
51. Section 9.02(g): Section 9.02(g) shall be deemed to be modified to
provide that the inspection rights granted to the Owner Trustee, the Trust
Agent, the Indenture Trustee and MBIA and their respective agents to the
Servicer's records are subject to reasonable prior written notice, during
III-7
normal business hours at the office of SST in a manner that does not cause undue
disruption or interference with SST's business.
52. Section 9.02(h): The "Upon request" language beginning Section 9.02(h)
shall be deemed to read "Upon prior request."
53. Section 9.02(i)(i) and (ii): Subject to the proviso in Item 1. of this
Schedule III, SST shall be reimbursed as part of the Servicing Fee for all
reasonable expenses incurred in connection with causing the preparation and
delivery of each Opinion of Counsel delivered pursuant to Section 9.02(i)(i) and
(ii).
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SCHEDULE IV
Pursuant to Section 2.1(b) of the Backup Servicing Agreement, to which
this Schedule IV is a part, SST has agreed that, in the event the Servicer is
terminated, resigns or otherwise ceases to function as Servicer under the Sale
and Servicing Agreement, and SST has received a Transfer Notice from the
Indenture Trustee, upon the expiration of the Transfer Period, SST will assume
the duties, liabilities and obligations of the Servicer under the Insurance
Agreement, as modified in accordance with this Schedule IV.
For purposes of determining SST's duties, liabilities and obligations, as
Successor Servicer under the Insurance Agreement, at such time as SST becomes
the Successor Servicer, the Insurance Agreement will be deemed to be modified as
follows:
1. The following sections of the Insurance Agreement shall not be
applicable to SST:
(a) Section 2.04(b)(ii)(B)
(b) Section 3.02
(c) Section 4.01(h)
(d) Section 4.01(i)
(e) Section 5.04(a)(ii)
(f) Section 5.05(b)
(g) Section 6.01(a)(i)(as to ▇▇▇▇▇)
(h) Section 6.01(iv)
(i) Section 6.01(v)
(j) Section 6.01(vi)(if SST is not Servicer under the Warehouse Sale
Agreement) and
(k) Section 6.01(ix)
2. Section 4.01(a). Section 4.01(a) shall be modified to reflect that SST
shall, for the benefit of MBIA, perform each of its agreements, warranties
and indemnities contained in the Sale and Servicing Agreement, as modified
by Schedule III to the Back-up Servicing Agreement.
3. Section 5.04(a). The first sentence of Section 5.04(a) shall be deleted
in its entirety and replaced with the following:
Systems & Services Technologies, Inc., by accepting its appointment
to become Successor Servicer pursuant to the Back-up Servicing
Agreement, (i) shall agree to be bound by the terms, covenants and
conditions contained herein applicable to the Servicer and subject
to the duties and obligations of the Servicer hereunder, in all
cases as modified by Schedule IV to the Back-up Servicing Agreement
and (ii) shall agree to indemnify and hold harmless MBIA from
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and against any and all claims, damages, losses, liabilities, costs
or expenses whatsoever which MBIA may incur (or which may be claimed
against MBIA) by reason of the negligence or willful misconduct of
Systems & Services Technologies, Inc. in exercising its powers and
carrying out its obligations as Successor Servicer under the Sale
and Servicing Agreement as modified by Schedule III to the Back-up
Servicing Agreement.
IV-II