EXHIBIT 4.17
AMENDMENT NO. 1
to
SALE AND SERVICING AGREEMENT
between
ONYX ACCEPTANCE OWNER TRUST 2003-C
as Issuer,
ONYX ACCEPTANCE FINANCIAL CORPORATION
as Seller,
ONYX ACCEPTANCE CORPORATION
as Servicer,
and
JPMORGAN CHASE BANK,
as Indenture Trustee and Trust Agent
-----------------
Dated as of November 14, 2003
This Amendment No. 1 to Sale and Servicing Agreement between Onyx
Acceptance Owner Trust 2003-C, as Issuer, Onyx Acceptance Financial Corporation,
as Seller, Onyx Acceptance Corporation, as Servicer, and JPMorgan Chase Bank, as
Indenture Trustee and Trust Agent (this "Amendment") is dated and effective as
of November 14, 2003.
WHEREAS, the parties hereto entered into the Sale and Servicing Agreement,
dated as of July 1, 2003 (the "Sale and Servicing Agreement");
WHEREAS, the parties hereto desire to modify certain provisions of the
Sale and Servicing Agreement relating to the rights and obligations of the
Backup Servicer;
WHEREAS, Section 9.01 of the Sale and Servicing Agreement permits the
amendments contemplated herein by the Issuer, the Seller, the Servicer, the
Indenture Trustee and the Trust Agent without the consent of any Noteholders,
provided the Rating Agency Condition is satisfied and the consent of the Insurer
is obtained;
WHEREAS, the parties hereto have notified the Rating Agencies and have
confirmed that the Rating Agency Condition has been satisfied with respect to
this Amendment;
WHEREAS, the parties hereto wish to amend the Sale and Servicing
Agreement;
NOW, THEREFORE, the parties hereto agree that the Sale and Servicing
Agreement is hereby amended as follows:
SECTION 1. EFFECTIVE DATE. This Amendment shall be effective as of
November 14, 2003.
SECTION 2. DEFINITIONS.
(a) Capitalized Terms. For purposes of this Amendment, all capitalized
terms used and not otherwise defined herein have the meanings set forth in the
Sale and Servicing Agreement.
(b) Amendment of Section 1.01. The following defined term is hereby
amended and restated in its entirety as follows:
"SERVICER" means Onyx in its capacity as the servicer of the
Contracts under Section 3.01, and, in each case upon succession in
accordance herewith, each Successor Servicer; provided, however, that the
Backup Servicer, if appointed Successor Servicer, shall succeed only to
those responsibilities, duties and liabilities of the Servicer described
hereunder as may be set forth in or modified by the Backup Servicing
Agreement.
SECTION 3. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. The first paragraph
of Section 7.02 is hereby amended and restated in its entirety as follows:
Except as otherwise provided in this Section 7.02, upon the termination or
resignation of the Servicer, the Insurer shall appoint
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a successor servicer (the "Successor Servicer"), which Successor Servicer
shall succeed to all the responsibilities, duties and liabilities of the
Servicer hereunder other than the obligation of the Servicer to purchase
Contracts pursuant to Section 3.07 of this Agreement. If the Insurer fails
to appoint a Successor Servicer within ten (10) Business Days of the
termination or resignation of the Servicer, the Backup Servicer, if any,
shall become the Successor Servicer pursuant to the terms of the Backup
Servicing Agreement. In such case, the Backup Servicer shall assume the
servicing obligations and duties of the Servicer in accordance with
Section 2.1(b) of the Backup Servicing Agreement but shall not be
obligated to purchase Contracts pursuant to Section 3.07 of this
Agreement. Upon its appointment as Successor Servicer, any Successor
Servicer appointed pursuant to the provisions of this Section 7.02, other
than the Backup Servicer, shall be entitled to that portion of the
Servicing Fee payable to the Servicer and such other compensation (whether
payable out of the Collection Account or otherwise) as the Servicer would
be entitled to under this Agreement. The Backup Servicer shall be entitled
to such compensation specified in the backup Servicing Agreement.
SECTION 4. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES UNDER THE AGREEMENT SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS, EXCEPT THAT THE DUTIES OF THE TRUST AGENT AND THE INDENTURE
TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. COUNTERPARTS. This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 6. INSURER INSTRUCTION TO OWNER TRUSTEE. By its consent hereto,
the Insurer hereby confirms that no Insurer Default has occurred and is
continuing and authorizes and instructs the Owner Trustee to execute and deliver
this Amendment, on behalf of the Issuer.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Sale and Servicing Agreement to be duly executed and delivered as of the day and
year first above written.
ONYX ACCEPTANCE OWNER TRUST 2003-C
as Issuer
By: Chase Manhattan Bank USA, National
Association, not in its individual
capacity but solely as Owner Trustee
By:________________________________
Name:______________________________
Title:_____________________________
ONYX ACCEPTANCE FINANCIAL
CORPORATION, as Seller
By:_______________________________________
Xxxxxxx X. Krahelski
Senior Vice President
ONYX ACCEPTANCE CORPORATION, as Servicer
and Custodian
By:_______________________________________
Xxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture
Trustee and as Trust Agent
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Amendment No. 1 to Sale and Servicing Agreement (2003-C) - Signature Page
XL CAPITAL ASSURANCE INC.
By:_________________________________
Name: ______________________________
Title:______________________________
