LETTER OF CREDIT REIMBURSEMENT AGREEMENT
Exhibit 10.13
THIS LETTER OF CREDIT REIMBURSEMENT AGREEMENT, dated as of October 18, 2007 (this
“Reimbursement Agreement”), is entered into among SANTANDER DRIVE AUTO RECEIVABLES TRUST 2007-3, a
Delaware statutory trust (the “Issuer”), XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Xxxxx Fargo”), as
indenture trustee (in such capacity, the “Indenture Trustee”), SANTANDER DRIVE AUTO RECEIVABLES
LLC, a Delaware limited liability company, as seller (the “Seller”), SANTANDER CONSUMER USA INC.,
an Illinois corporation (“Santander Consumer”), as servicer (in such capacity, the “Servicer”), and
BANCO SANTANDER, S.A., ACTING THROUGH ITS NEW YORK BRANCH (“Banco Santander”), as letter of credit
issuer (in such capacity, the “Letter of Credit Issuer”).
RECITALS
WHEREAS, the Seller, the Servicer, the Issuer and the Indenture Trustee are, concurrently
herewith, entering into a Sale and Servicing Agreement, dated as of October 18, 2007 (the “Sale and
Servicing Agreement”), pursuant to which the Issuer is acquiring from the Seller a pool of retail
installment sales contracts (the “Contracts”) secured by new and used automobiles, light duty
trucks, vans and mini-vans financed thereby;
WHEREAS, the Issuer and the Indenture Trustee are, concurrently herewith, entering into an
indenture, dated as of October 18, 2007 (the “Indenture”), pursuant to which the Issuer is issuing
$500,000,000 aggregate principal amount of Class A Asset Backed Notes (the “Notes”);
WHEREAS, Banco Santander, as administrative agent and as issuing bank, Drive Residual Holdings
LP, as borrower, Santander Consumer, as originator, the financial institutions signatory thereto
from time to time (the “Lenders”) and Santander Investment Securities Inc., as arranger, have
entered into a second amended and restated credit agreement, dated as of August 30, 2007 (the
“Credit Agreement”), pursuant to which Banco Santander, as Letter of Credit Issuer, may provide,
pursuant to the terms and conditions contained in the Credit Agreement, the Letter of Credit, in
substantially the form attached hereto as Exhibit A; and
WHEREAS, the parties hereto wish to set forth certain terms and conditions relating to the
issuance of the Letter of Credit in connection with the Notes and the Reserve Amount.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Reimbursement Agreement and unless the
context requires a different meaning, capitalized terms defined in the recitals, the heading and
text hereof shall have their defined meanings when used herein, and capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Sale and Servicing Agreement
and the following terms shall have the following meanings:
“Base Rate” shall mean, as of any date, a rate per annum equal to the greater of (i) the rate
announced by Banco Santander from time to time as its prime rate in the United States, such rate to
change as and when such designated rate changes, which rate is not intended to be the lowest rate
of interest charged by Banco Santander in connection with extensions of credit to debtors or (ii) a
fluctuating interest rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
equal for each day during such period to the rate determined, in the sole opinion of Banco
Santander, to be the rate at which federal funds are being offered for sale in the national federal
funds market at 9:00 a.m. (New York, New York time) on such day, plus 1.00%.
“Cash Flow” means cash flow supporting the Notes, calculated in accordance with Item 1114 of
Regulation AB, as determined by the Issuer or the Servicer in its reasonable discretion.
“Commission” means the United States Securities and Exchange Commission.
“Eligible Letter of Credit Issuer” means an institution with a short-term debt or deposit
rating at least equal to A-1 or the equivalent from S&P and Prime-1 or the equivalent from Moody’s
and a long-term debt or deposit rating at least equal to A or the equivalent from S&P and A2 or the
equivalent from Moody’s.
“Exchange Act” means the Securities Exchange Act of 1934, including, unless the context
otherwise requires, the rules and regulations thereunder.
“Exchange Act Reports” means all Distribution Reports on Form 10-D, Current Reports on Form
8-K and Annual Reports on Form 10-K that are required to be filed by the Seller or the Issuer with
respect to the Notes pursuant to the Exchange Act.
“Letter of Credit” means the Reserve Account Letter of Credit issued by the Letter of Credit
Issuer, substantially in the form of Exhibit A.
“Letter of Credit Draw Amount” means any unreimbursed drawing under the Letter of Credit.
“Rating Agency Condition” means written confirmation by each Rating Agency that its then
current rating of the Notes, without giving effect to the Note Policy, shall not be reduced or
withdrawn.
“Repayment Amount” shall mean the sum of all amounts payable with respect to any outstanding
Letter of Credit Draw Amounts, fees, interest and expenses and all other amounts owing to the
Letter of Credit Issuer hereunder and to Banco Santander and the Lenders under the Credit
Agreement, with respect to the Letter of Credit.
“Regulation AB” means Subpart 229.1100 — Asset Backed Securities (Regulation AB), 17 C.F.R. §
§ 229.1100-229.1123, and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act Release no.
33-8518.70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be
provided by the Commission or its staff from time to time.
Section 1.2. Interpretation. When used in this Reimbursement Agreement, unless a
contrary intention appears: (a) a term has the meaning assigned to it; (b) an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP; (c) “or” is not
exclusive; (d) “including” means including without limitation; (e) words in the singular include
the plural and words in the plural include the singular; (f) any agreement, instrument or statute
defined or referred to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended, modified or supplemented
and includes (in the case of agreements or instruments) references to all attachments thereto and
instruments incorporated therein; (g) references to a Person are also to its successors and
permitted assigns; (h) the words “hereof”, “herein” and “hereunder” and words of similar import
when used in this Reimbursement Agreement shall refer to this Reimbursement Agreement as a whole
and not to any particular provision hereof; (i) references contained herein to Section, Schedule
and Exhibit, as applicable, are references to Sections, Schedules and Exhibits in this
Reimbursement Agreement unless otherwise specified; (j) references to “writing” include printing,
typing, lithography and other means of reproducing words in a visible form; and (k) the term
“proceeds” has the meaning set forth in the applicable UCC.
ARTICLE II
LETTER OF CREDIT
Section 2.1. Issuance. The Letter of Credit Issuer hereby agrees, upon the request of
the Servicer on the terms and subject to the conditions set forth in the Credit Agreement, to issue
to the Indenture Trustee the Letter of Credit. If a successor Indenture Trustee is appointed,
promptly following the appointment of such successor Indenture Trustee pursuant to the terms of the
Indenture and upon receipt of an Instruction to Transfer substantially in the form of Annex C to
the Letter of Credit, the Letter of Credit Issuer shall deliver to such successor Indenture
Trustee, in exchange for the outstanding Letter of Credit held by the predecessor Indenture
Trustee, a substitute Letter of Credit substantially in the form of Exhibit A hereto, having terms
identical to the then outstanding Letter of Credit but in favor of such successor Indenture
Trustee.
Section 2.2. Terms and Payments.
(a) Except as expressly provided herein or in any Transaction Document, all terms and
conditions with respect to the payment of the Repayment Amount and any other fees, interest and
expenses with respect to the Letter of Credit, shall not be determined in accordance with the
Transaction Documents, but shall be determined in accordance with the Letter of Credit and the
Credit Agreement.
(b) Without the prior written consent of the Letter of Credit Issuer, at no time while the
Issuer is subject to the reporting requirements of the Exchange Act will the face amount of the
Letter of Credit be modified to exceed an amount equal to 9.50% of the Cash Flow, provided that the
foregoing shall not reduce or modify the Letter of Credit Issuer’s obligations under the Letter of
Credit.
(c) To the extent the face amount of the Letter of Credit would exceed an amount equal to
9.50% of the Cash Flow, the Issuer and the Servicer shall (i) arrange for the issuance of an
additional letter or letters of credit and/or (ii) provide for deposits to be made to the Reserve
Account from Available Funds (as defined in the Sale and Servicing Agreement), other than any draws
on the Letter of Credit and otherwise to the extent available, so that at all times the Letter of
Credit Amount shall not exceed 9.50% of the Cash Flow.
Section 2.3. Limited Recourse; Obligations Absolute.
(a) Subject to Sections 2.3(b), (c) and (d) hereof, the obligation to repay any Repayment
Amount shall be without recourse to the Seller (or any Person acting on behalf of the Seller), the
Issuer, the Servicer, the Insurer, the Indenture Trustee or any holder of Notes or any Affiliate,
officer or director of any of them and the obligation to pay any Repayment Amount shall be limited
solely to the application of:
(i) Available Funds (as defined in the Credit Agreement) and other amounts payable in
respect thereof required to be distributed to the Lenders, and only to the extent that such
amounts are available pursuant to the Credit Agreement for distribution to the Lenders with
respect to the Letter of Credit; and
(ii) any remaining funds of the Issuer, after payment in full of the debt and all other
obligations of the Issuer, incurred in accordance with the Transaction Documents.
(b) In the event of a failure by the Servicer to make any payments, deposits, transfers or
give any instructions to transfer, in each case as required by the Sale and Servicing Agreement,
which failure directly results in (i) a withdrawal from the Reserve Account or a drawing under the
Letter of Credit or (ii) a decreased amount required to be distributed to the Letter of Credit
Issuer under the Credit Agreement, the obligation to repay the portion of the Repayment Amount
resulting from such breach shall be a full recourse obligation of the Servicer, together with
interest on such amount at the Base Rate in effect from time to time plus 2.00% from the date such
payment, deposit or transfer was required to be received by the Issuer or, in the case of the
failure to furnish required instructions resulting in a withdrawal from the Reserve Account or a
drawing under the Letter of Credit, from the date of such withdrawal or drawing. Amounts payable
hereunder by the Servicer shall not include amounts that have the effect of recourse or which
constitute advances by the Servicer due to credit or payment problems of the related obligors;
provided that the foregoing shall not affect any obligations the Servicer may otherwise have
pursuant to the Credit Agreement.
(c) The obligations of (i) the Seller and the Servicer under this Section are solely corporate
obligations of the Seller and the Servicer and (ii) the Issuer under this Section are solely trust
obligations of the Issuer, and shall be payable by such Person solely as provided in this Section.
No recourse shall be had for the payment of any amount owing hereunder or any other obligation of,
or claim against, the Seller or the Issuer or the Servicer, as the case may be, arising out of or
based upon Section 2.3 against any stockholder, employee, officer, agent, trustee, director or
authorized person of the Seller, the Issuer or the Servicer.
(d) Nothing contained in this Section shall relieve the Seller (or any Person acting on behalf
of the Seller), the Issuer, the Servicer, the Insurer, the Indenture Trustee or any holder of Notes
or any Affiliate, officer or director of any of them, of any liability such Person might otherwise
have as a result of actions or omissions taken by them resulting from fraud, gross negligence or
willful misconduct.
(e) The provisions of Section 2.3(a) shall constitute a subordination agreement for purposes
of Section 510(a) of the Bankruptcy Code. No amount owing by the Seller or the Issuer, as the case
may be, hereunder, in excess of the liabilities that it is required to pay in accordance with
Section 2.3(a) shall constitute a “claim” (as defined in Section 101(5) of the Bankruptcy Code)
against it.
(f) The Letter of Credit Issuer agrees that it shall have no right of setoff or banker’s lien
against (i) the Seller, the Issuer, the Indenture Trustee, the Servicer, the Insurer, the Owner
Trustee any holder of a Note or any Affiliate, officer or director of any of them, (ii) the Trust
Estate or (iii) any amounts on deposit in any Trust Account (other than the Residual Interest
Account, to the extent applicable), in any such case with respect to the reimbursement of the
Repayment Amount or with respect to any amount owing to the Letter of Credit Issuer arising
hereunder or under the Letter of Credit.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1. Representations and Warranties of the Issuer, the Seller and the
Servicer. To induce the Letter of Credit Issuer to enter into this Reimbursement Agreement and
to issue the Letter of Credit, each of the Issuer, the Seller and the Servicer hereby represents
and warrants, each as to itself only (which representations and warranties shall be deemed made on
the date of issuance of the Letter of Credit), to the Letter of Credit Issuer that:
(a) Due Organization and Qualification. Such Person is: (i) duly formed and
validly existing as a Delaware statutory trust, Illinois corporation or Delaware limited
liability company, respectively, and is in good standing under the laws of the State of
Delaware or Illinois, as applicable; and (ii) duly qualified to do business and is in good
standing in each jurisdiction in which the failure to be so qualified would have a material
adverse effect upon such Person or their ability to perform their obligations under this
Reimbursement Agreement and any Transaction Document to which such Person is a party.
(b) Power and Authority. Such Person has all power and authority and has
obtained all licenses, permits, charters, registrations and approvals, necessary: (i) for
the conduct of its business as presently conducted; and (ii) to execute, deliver and perform
its obligations under this Reimbursement Agreement and each Transaction Document to which
such Person is a party.
(c) Approval. The execution, delivery and performance of this Reimbursement
Agreement have been duly authorized by all necessary action on the part of such Person.
(d) Valid and Binding Obligation. This Reimbursement Agreement constitutes a
legal, valid and binding obligation of such Person, enforceable in accordance with its
terms, except as such enforceability may be limited by: (i) bankruptcy, insolvency,
reorganization, receivership or other similar laws affecting the enforcement of creditors’
rights generally; and (ii) general equitable principles, regardless of whether such
enforceability shall be considered a proceeding in equity or at law.
(e) Noncontravention. The consummation of the transactions contemplated by
this Reimbursement Agreement and the fulfillment of the terms hereof shall not: (i) conflict
with, result in any breach of any of the terms and provisions of, nor constitute a default
(nor an event which, with the giving of notice or passage of time, or both, would constitute
a default) under the organizational documents of such Person, or any indenture, agreement or
other instrument to which such Person is a party or by which it shall be bound; (ii) result
in the creation or imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than the Indenture); or (iii)
violate any law or any order, rule, or regulation applicable to such Person of any court or
of any federal or state regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over such Person or its properties.
(f) No Consents. No consent, license, approval or authorization from, or
registration, or declaration with, any governmental authority, bureau or agency, nor any
consent, approval, waiver or notification of any creditor, lessor or other non-governmental
person, is required in connection with the execution, delivery and performance by the such
Person of this Reimbursement Agreement, except (in each case) such as have been obtained and
are in full force and effect.
(g) Pending Litigation or Other Proceeding. To the knowledge of such Person,
there are no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency, or other governmental instrumentality having
jurisdiction over such Person or its properties: (i) asserting the invalidity of this
Reimbursement Agreement or any other Transaction Document to which such Person is a party;
or (ii) seeking any determination or ruling that might materially and adversely affect the
validity or enforceability of, this Reimbursement Agreement or any other Transaction
Document to which such Person is a party.
Section 3.2. Affirmative Covenants.
(a) Compliance with Transaction Documents. Each of the Issuer, the Seller and the
Servicer agrees for itself, that it will comply with all terms and conditions applicable to such
Person contained in this Reimbursement Agreement and each other Transaction Document to which such
Person is a party.
(b) Amendments. Each of the Issuer, the Seller and the Servicer will give the Letter
of Credit Issuer prior written notice of any proposed amendment to or modification of any
Transaction Document. Unless the Letter of Credit Issuer shall have previously approved in writing
the form of such amendment or modification, none of the Issuer, the Seller or the Servicer will
cause or permit to become effective any amendment to or modification of any the Transaction
Document if such amendment or modification would materially and adversely affect the Letter of
Credit Issuer, including any amendment or modification that: (i) reduces the amount or changes the
timing of payments to the Letter of Credit Issuer or any Certificateholder; (ii) impairs or
adversely affects the value of the Collateral; (iii) permits the creation of any Lien ranking prior
to or on a parity with the Lien of the Indenture Trustee with respect to any of the Collateral; or
(iv) terminates the Lien of the Indenture Trustee with respect to the Collateral.
(c) Optional Repurchase. Neither the Seller nor the Servicer will effect any optional
purchase of the Contracts pursuant to Article 8 of the Sale and Servicing Agreement, unless: (i)
the Letter of Credit Issuer has been, or simultaneously therewith will be, repaid the Repayment
Amount in full; and (ii) no amounts are owing to the Letter of Credit Issuer hereunder or under the
Credit Agreement with respect to the Letter of Credit.
(d) Access to Records; Discussions with Officers and Accountants. The Issuer, the
Seller and the Servicer shall each, upon the reasonable request of the Letter of Credit Issuer,
permit any authorized representative or agent of the Letter of Credit Issuer at reasonable times
to: (i) inspect the books and records of the Issuer, the Seller or the Servicer that may relate to
the Notes, the Certificates and the obligations of such Person under this Reimbursement Agreement
and the other Transaction Documents to which such Person is a party; and (ii) discuss the affairs,
finances and accounts of such Person with any of its respective officers, directors and
representatives, including its independent certified public accountants; provided, however, that,
so long as no Trigger Event or Event of Default has occurred and is continuing, the Letter of
Credit Issuer shall not inspect such books and records more frequently than once every six months.
(e) Letter of Credit Amount. Each of the Seller and the Servicer shall promptly
notify the Letter of Credit Issuer if the Letter of Credit Issuer is liable or contingently liable
to provide payments under the Letter of Credit representing more than 9.0% of the Cash Flow. The
Seller and the Servicer shall use commercially reasonable efforts to give notification pursuant to
this Section not fewer than 30 days prior to the date on which the Letter of Credit Issuer is
anticipated to be liable or contingently liable to provide payments under the Letter of Credit
representing more than 9.0% of the Cash Flow.
Section 3.3. No Petition.
(a) The Letter of Credit Issuer hereby covenants and agrees that prior to the date which is
one year and one day after the payment in full of the latest maturing:
(i) Note and the expiration of the Note Policy and the Swap Policy, it will not
institute against, or join with any other Person in instituting against, the Issuer; and
(ii) security issued by any securitization trust created by the Seller, it will not
institute against, or join with any other Person in instituting against, the Seller,
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law; provided, however, that nothing
in this Section shall constitute a waiver of any claim for reimbursement or other payment from the
Seller or the Issuer pursuant to this Reimbursement Agreement in any such proceedings or limit in
any manner any of the rights of the Letter of Credit Issuer under the Credit Agreement. The
provisions of this Section shall survive the termination of this Reimbursement Agreement and the
replacement or removal of the Letter of Credit Issuer.
(b) The Servicer hereby covenants and agrees that prior to the date which is one year and one
day after the payment in full of the latest maturing:
(i) Note and the expiration of the Note Policy and the Swap Policy, it will not
institute against, or join with any other Person in instituting against, the Issuer; and
(ii) security issued by any securitization trust created by the Seller, it will not
institute against, or join with any other Person in instituting against, the Seller,
any bankruptcy, reorganization, arrangement, conservatorship, receivership, insolvency or
liquidation proceedings, or other proceedings under any federal or state bankruptcy, receivership
or similar law, in connection with any amounts due the Servicer (or any Affiliate or parent
thereof) under any Transaction Document or otherwise without the prior written consent of the
Letter of Credit Issuer. The provisions of this Section shall survive termination of this
Reimbursement Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Third-Party Beneficiary. The Insurer is an intended third party
beneficiary of this Reimbursement Agreement.
Section 4.2. Payments. All payments to the Letter of Credit Issuer hereunder shall be
made in lawful currency of the United States and in immediately available funds prior to 11:00 a.m.
(New York City time) on the date such payment is due by wire transfer to the Letter of Credit
Issuer, to Banco Santander, S.A., acting through its New York Branch, ABA 000000000, Account Number
107143001, or to such other office or account maintained by the Letter of Credit Issuer as the
Letter of Credit Issuer may direct.
Section 4.3. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, facsimile transmission or similar writing) and
addressed, delivered or transmitted to such party at its address or telecopy number set forth
below, or at such other address or telecopy number, as the case may be, as such party may hereafter
specify for the purpose by notice to the other party (or as provided in the Transaction Documents).
Each such notice, request or communication shall be effective when received by the party to which
it is addressed.
| If to the Servicer: | Santander Consumer USA Inc. | |||
| 0000 Xxxxx Xxxxxxxx Xxxxxxx | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Attention: Chief Financial Officer | ||||
| Telephone: 000-000-0000 | ||||
| Telecopier: 000-000-0000 | ||||
| If to the Seller: | Santander Drive Auto Receivables LLC | |||
| 0000 Xxxxx Xxxxxxxx Xxxxxxx | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Attention: Chief Financial Officer | ||||
| Telephone: 000-000-0000 | ||||
| Telecopier: 000 000 0000 | ||||
| If to the Issuer: | Santander Drive Auto Receivables Trust 2007-3 | |||
| c/o U.S. Bank Trust National Association, | ||||
| as Owner Trustee | ||||
| 000 Xxxxxxxx Xxxxxx | ||||
| 0xx Xxxxx | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxxxx X. Xxxxx | ||||
| Telephone: 000-000-0000 | ||||
| Telecopier: 000-000 0000 | ||||
| If to the Indenture Trustee: | Xxxxx Fargo Bank, National Association | |||
| MAC X0000-000 | ||||
| Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx | ||||
| Xxxxxxxxxxx, XX 00000 | ||||
| Attention: Corporate Trust Services- Asset Backed | ||||
| Administration | ||||
| Telephone: 000-000-0000 | ||||
| Telecopier: 000-000-0000 | ||||
| If to the Letter of Credit Issuer: | Banco Santander, S.A., acting through its New | |||
| York Branch | ||||
| 00 Xxxx 00xx Xxxxxx, | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxx | ||||
| Telephone: (000) 000-0000 | ||||
| Telecopier: (000) 000-0000 | ||||
| E-mail: xxxxxxxx@xxxxx.xxx | ||||
| If to the Insurer: | Financial Guaranty Insurance Company | |||
| 000 Xxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attention: Structured Finance Surveillance |
| Santander Drive 2007-3 | ||||
| Telecopier: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
| Email: xxxxxxxxxxxxxx@xxxx.xxx | ||||
| If to the Rating Agencies: | Standard & Poor’s Ratings Services | |||
| 00 Xxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Asset Backed Surveillance Department | ||||
| Xxxxx’x Investors Service, Inc. | ||||
| 00 Xxxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| ABS Monitoring Department |
Section 4.4. Amendments. No provision of this Reimbursement Agreement shall be
waived, amended or supplemented except (i) by a written instrument executed by the parties hereto
(ii) with the prior written consent of the Insurer and (iii) following prior written notice to each
Rating Agency.
Section 4.5. Governing Law; Jurisdiction. THIS REIMBURSEMENT AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 4.6. Waiver of Jury Trial. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS REIMBURSEMENT AGREEMENT OR ANY
OTHER RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY PARTY HERETO IN CONNECTION HEREWITH OR THEREWITH. EACH OF THE SELLER,
THE MASTER SERVICER AND THE ISSUER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LETTER OF
CREDIT ISSUER’S ENTERING INTO THIS REIMBURSEMENT AGREEMENT.
Section 4.7. Waivers; Remedies Cumulative. Neither any failure nor any delay on the
part of the Letter of Credit Issuer in exercising any right, power or privilege hereunder or under
the Letter of Credit shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise or the exercise of any other right, power or
privilege. The remedies herein provided are cumulative and not exclusive of any remedies provided
by law.
Section 4.8. Severability. Any provision of this Reimbursement Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 4.9. Term. This Reimbursement Agreement shall remain in full force and effect
until the payment of the Repayment Amount, notwithstanding the earlier termination of the Letter of
Credit.
Section 4.10. Successors and Assigns.
(a) This Reimbursement Agreement shall be binding upon the parties hereto and their respective
successors and assigns; provided, however, that none of the Seller, the Servicer or the Issuer may
transfer or assign any of its obligations, rights, or interests hereunder without (i) the prior
written consent of the Letter of Credit Issuer and Financial Guaranty Insurance Company (in its
capacity as issuer of the Note Policy) (the “Insurer”) and (ii) prior written notice to each Rating
Agency.
(b) The Letter of Credit Issuer may at any time:
(i) assign all or a portion of its obligations under the Letter of Credit and its
rights under this Reimbursement Agreement to an Eligible Letter of Credit Issuer; provided,
however, that (A) the Rating Agency Condition shall have been satisfied with respect to such
assignment, (B) the Insurer shall have consented in writing to such assignment (which
consent shall not be unreasonably withheld), (C) such assignment shall be for an amount at
least equal to $1,000,000 and (D) such Eligible Letter of Credit Issuer agrees in writing to
be bound by Section 4.17 hereof. It is understood and agreed that in connection with
partial assignments by the Letter of Credit Issuer, such reasonable amendments to this
Reimbursement Agreement as the Letter of Credit Issuer may request shall be entered into by
the other parties hereto to accommodate such assignments, including without limitation, if
requested, customary “agency” and “syndication” provisions; and
(ii) grant participations in minimum amounts of $1,000,000 to any other Person, in all
or part of its obligations under the Letter of Credit and its rights under this
Reimbursement Agreement (it being understood and agreed that no other party hereto shall
have any obligation to give notices to any such participant, that such participation will
not in any way reduce the Letter of Credit Issuer’s commitment to make disbursements under
the Letter of Credit, and that such participation shall not increase the obligations
(including with respect to costs and expenses) of any other party hereunder); provided that
the Letter of Credit Issuer shall be entitled to receive any increased costs or indemnities
payable hereunder incurred by the Letter of Credit Issuer or such participant to the extent
not in excess of such amounts calculated as if there were no participation.
Section 4.11. Survival. All representations and warranties contained herein or made
in writing by any of the Seller, the Servicer or the Issuer in connection herewith shall survive
the
execution and delivery of this Reimbursement Agreement, regardless of any investigation made
by the Letter of Credit Issuer or on its behalf and shall continue so long as and until such time
as all obligations hereunder and under the Transaction Documents and all Indebtedness under the
Notes shall have been paid in full. The obligations of each of the Seller, the Servicer and the
Issuer under this Section and Sections 3.3, 4.1, 4.5 — 4.8, 4.13 and 4.17(c) shall in each case
survive any termination of this Reimbursement Agreement, the payment in full of all obligations
hereunder and the termination of the Letter of Credit.
Section 4.12. Counterparts. This Reimbursement Agreement may be executed in any
number of counterparts, and by the different parties hereto on the same or separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to be an original and
all of which counterparts, taken together, shall constitute one and the same agreement.
Section 4.13. Further Assurances. Each of the Seller, the Servicer, the Issuer and
the Indenture Trustee agrees to do such further acts and things and to execute and deliver to the
Letter of Credit Issuer such additional assignments, agreements, powers and instruments as are
reasonably required by the Letter of Credit Issuer to carry into effect the purposes of this
Reimbursement Agreement and the Transaction Documents or to better assure and confirm to the Letter
of Credit Issuer its rights, powers and remedies hereunder.
Section 4.14. Headings. Section headings in this Reimbursement Agreement are included
herein for convenience of reference only and shall not constitute a part of this Reimbursement
Agreement for any other purpose.
Section 4.15. Limited Liability of U.S. Bank Trust National Association. It is
expressly understood and agreed by the parties hereto that: (a) this Reimbursement Agreement is
executed and delivered by U.S. Bank Trust National Association not individually or personally but
solely as Owner Trustee on behalf of the Issuer; (b) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by U.S. Bank Trust National Association, but are made
and intended for the purpose of binding only the Issuer; (c) nothing herein contained shall be
construed as creating any liability on U.S. Bank Trust National Association, individually or
personally, to perform any covenant of the Issuer either expressed or implied contained herein, all
such liability, if any, being expressly waived by the parties hereto and by any person claiming by,
through or under such parties; and (d) under no circumstances shall U.S. Bank Trust National
Association be personally liable for the payment of any indebtedness or expenses of the Issuer or
be liable for the breach or failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Reimbursement Agreement.
Section 4.16. Non-Confidential Information. Notwithstanding any other statement
herein, the Issuer, the Indenture Trustee, the Seller, the Servicer and the Letter of Credit Issuer
each understands that it (and each of its employees, representatives or other agents) may disclose
to any and all persons, without limitations of any kind, the tax treatment and tax structure of the
transaction contemplated herein; provided, however, that it (and any of its employees,
representatives or other agents) will not disclose any information that is not necessary to
understand the tax treatment and tax structure of such transaction (including the identity of any
of the parties to the transaction and any information that could lead another to determine the
identity of any such parties), or any other information to the extent that such disclosure
could result in a violation of any federal or state securities law.
Section 4.17. Regulation AB Compliance.
(a) The Letter of Credit Issuer agrees to comply with commercially reasonable requests of the
Seller for the delivery of such information relating to the Letter of Credit Issuer as may be
necessary for the Seller to comply with Item 1114 of Regulation AB as it relates to the Letter of
Credit Issuer. The Letter of Credit Issuer agrees that such information may be incorporated by
reference or attached as an exhibit to any Exchange Act Report to the extent required under
Regulation AB or Item 7 on Form 10-D.
(b) As of the date that any required information is provided to the Seller or the Issuer
pursuant to Section 4.17(a) to be attached as an exhibit to any Exchange Act Report, such
information will comply in all material respects with the requirements of Item 1114 of Regulation
AB.
(c) Notwithstanding anything to the contrary, the Letter of Credit Issuer’s liability in the
case of a breach of this Section 4.17 which has the effect of imposing liability on any party
entitled to indemnification under this Reimbursement Agreement under Regulation AB, will be limited
to the actual damages incurred by Santander Consumer and the Seller as a direct result of a
determination by the Commission that the Seller is no longer eligible to file registration
statements on Form S-3, such determination being based solely on the Letter of Credit Issuer’s
breach of this Section 4.17.
IN WITNESS WHEREOF, the parties hereto have caused this Reimbursement Agreement to be duly
executed by their duly authorized officers, as of the day and year first above written.
| BANCO SANTANDER, S.A., ACTING THROUGH ITS NEW YORK
BRANCH, as Letter of Credit Issuer |
||||
| By: | /s/ Xxx X. Xxxxx | |||
| Name: | Xxx X. Xxxxx | |||
| Title: | Vice President | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| SANTANDER DRIVE AUTO RECEIVABLES TRUST 2007-3, as
Issuer |
||||
| By: | U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity, but solely in its capacity as Owner Trustee under the Trust Agreement | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Trust Officer | |||
| SANTANDER DRIVE AUTO RECEIVABLES LLC, as Seller |
||||
| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx X. Xxxxx | |||
| Title: | Vice President | |||
| SANTANDER CONSUMER USA INC., as Servicer |
||||
| By: | /s/ Xxx X. Xxxxx | |||
| Name: | Xxx X. Xxxxx | |||
| Title: | Vice President | |||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Assistant Vice President | |||
