SECOND AMENDMENT TO SALE AND SERVICING AGREEMENT (Santander Drive Auto Receivables Trust 2007-1)
Exhibit 10.2
SECOND AMENDMENT TO SALE AND SERVICING AGREEMENT
This SECOND AMENDMENT TO SALE AND SERVICING AGREEMENT (this “Amendment”), dated as of October
15, 2007, is entered into among SANTANDER DRIVE AUTO RECEIVABLES TRUST 2007-1, as issuer (the
“Issuer”), SANTANDER DRIVE AUTO RECEIVABLES LLC, as seller (the “Seller”),
SANTANDER CONSUMER USA INC., as servicer (the “Servicer”), and ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as indenture trustee (in such capacity, the “Indenture Trustee”), and as
backup servicer (in such capacity, the “Backup Servicer”), and amends the Sale and
Servicing Agreement, dated as of April 4, 2007, as amended by the First Amendment to Sale and
Servicing Agreement dated as of August 30, 2007 (collectively the “Sale and Servicing
Agreement”), among the Issuer, the Seller, the Servicer, the Trust Collateral Agent, the
Indenture Trustee and the Backup Servicer.
WHEREAS, each of the parties hereto desires to amend certain provisions of the Sale and
Servicing Agreement regarding (a) a limited guaranty of the obligations of the Servicer by Banco
Santander, S.A., (b) the timing of deposits of collections into the Collection Account, and (c) the
backup servicer;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and in the Sale and
Servicing Agreement, and for other good and valuable consideration, the receipt and adequacy of
which is hereby expressly acknowledged, and intending to be legally bound hereby, each party hereto
hereby agrees as follows:
Section 1. Definitions. Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Sale and Servicing Agreement.
Section 2. Amendments.
(a) Appendix A of the Sale and Servicing Agreement is hereby amended by deleting the
definitions of “Backup Servicer”, “Backup Servicing Agreement”, “Backup Servicing Fee” and
“Transaction Documents” in their entirety and replacing them with the following, in their correct
alphabetical placement:
“Backup Servicer” means (a) at any time on or before October 31, 2007, ▇▇▇▇▇
Fargo Bank, National Association, in its capacity as backup servicer and (b) after October
31, 2007, any backup servicer appointed pursuant to Section 6.7(j) of this Agreement.
“Backup Servicing Agreement” means (a) at any time on or before October 31,
2007, the Backup Servicing Agreement dated as of April 4, 2007 by and among the Insurer, the
Servicer, the Seller, the Issuer, the Indenture Trustee and the Backup Servicer and (b)
after October 31, 2007, any backup servicing agreement entered into with a backup servicer
appointed pursuant to Section 6.7(j) of this Agreement.
“Backup Servicing Fee” means (a) at any time on or before October 31, 2007,
$1,500 for each electronic submission by Santander Consumer in accordance with Section 6(c)
of the Backup Servicing Agreement and (b) after October 31, 2007, any backup servicing fees
payable pursuant to any backup servicing agreement entered into with a backup servicer
appointed pursuant to Section 6.7(j) of this Agreement; provided, however, that if the
Backup Servicer becomes the Successor Servicer, such fee shall no longer be paid.
“Transaction Documents” means the Indenture, the Certificate of Trust, the
Notes, the Note Depository Agreement, the Sale and Servicing Agreement, the Contribution
Agreement, each Assignment, the Backup Servicing Agreement, each Reserve Account Letter of
Credit, each reimbursement agreement relating to each Reserve Account Letter of Credit, the
Underwriting Agreement, the Certificates, the Intercreditor Agreement, the Administration
Agreement, the Insurance Agreement, the Interest Rate Swap Agreement, the Limited Guaranty
and the Trust Agreement, and other documents and certificates delivered in connection
therewith as the same may be amended or modified from time to time.
(b) Appendix A of the Sale and Servicing Agreement is hereby amended by adding the following
definition of “Limited Guaranty” in its correct alphabetical placement:
“Limited Guaranty” means the Limited Guaranty, dated as of October 15, 2007,
issued by Banco Santander, S.A. for the benefit of the Issuer, the Indenture Trustee, the
Owner Trustee, the Noteholders and the Insurer.
(c) Section 4.2 of the Sale and Servicing Agreement is hereby amended by deleting Section 4.2
in its entirety and replacing it with the following:
SECTION 4.2 Remittances. The Servicer shall deposit an amount equal to all
collections into the Collection Account within two Business Days after receipt; provided,
however, that if the Monthly Remittance Condition is satisfied, then the Servicer shall be
required to deposit into the Collection Account an amount equal to the collections received
during any Collection Period before noon, New York time, on the second Business Day prior to
the related Payment Date. The “Monthly Remittance Condition” shall be deemed to be
satisfied if (i) Santander Consumer is the Servicer, (ii) no Servicer Termination Event has
occurred, (iii) the Insurer consents and (iv) the Limited Guaranty is in full force and
effect and Banco Santander, S.A. has a short-term unsecured debt rating of at least
“Prime-1” from ▇▇▇▇▇’▇ and “A-1” from S&P. Pending deposit into the Collection Account,
collections may be commingled and used by the Servicer at its own risk and are not required
to be segregated from its own funds.
(d) Section 4.5 of the Sale and Servicing Agreement is hereby amended by deleting Section 4.5
in its entirety and replacing it with the following:
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SECTION 4.5 Replacement of Reserve Account Letters of Credit. If (i) as of
any date that is 30 days prior to the stated expiration date of any Reserve Account Letter
of Credit, either (A) the expiring Reserve Account Letter of Credit has not been renewed or
extended or (B) a letter of credit acceptable to the Insurer in its sole discretion and in
at least the same amount as the amount then available or required for drawing under the
expiring Reserve Account Letter of Credit has not been delivered to the Indenture Trustee,
(ii) the Indenture Trustee receives notice from the Insurer that a Reserve Account Letter of
Credit Bank has merged with, been consolidated into, or acquired by an entity not approved
by the Insurer in its sole discretion or (iii) 30 days have elapsed since the Indenture
Trustee shall have received notice from the Insurer that the credit rating on the short-term
unsecured debt of a Reserve Account Letter of Credit Bank has been downgraded below either
“A-l+” by S&P or “Prime-1” by ▇▇▇▇▇’▇ or that the long-term credit rating of a Reserve
Account Letter of Credit Bank has been downgraded below either “A” by S&P or “A2” by ▇▇▇▇▇’▇
(unless, in either case, the Indenture Trustee receives notice from the Insurer that such
ratings have been reinstated above such level prior to the expiration of such 30-day
period); then the Indenture Trustee shall, on the next Business Day cause to be presented to
the applicable Reserve Account Letter of Credit Bank a drawing certificate in proper form
for payment thereunder and otherwise in conformity with the terms thereof for an amount
equal to the maximum amount then available under such Reserve Account Letter of Credit and
deposit the proceeds of such drawing in the Reserve Account.
(e) Section 6.7 of the Sale and Servicing Agreement is hereby amended by adding the following
subsection 6.7(j):
(j) In the event that (i) a Servicer Termination Event has occurred and is continuing
or (ii) Banco Santander, S.A. fails to maintain (a) a credit rating on its short-term
unsecured debt of at least “A-1+” by S&P and at least “Prime-1” by ▇▇▇▇▇’▇ and (b) a
long-term rating of at least “A-” by S&P and “A3” by ▇▇▇▇▇’▇, the Controlling Party may
direct the Issuer to appoint a backup servicer reasonably acceptable to the Controlling
Party. If the Issuer shall fail to appoint a backup servicer within thirty days of such
direction, the Controlling Party may itself appoint the backup servicer.
Section 3. Representations and Warranties.
(a) Each party by executing this Amendment hereby represents and warrants that (i) the
individual executing this Amendment on behalf of such Person is duly authorized to do so, (ii) such
Person has full power and authority and the legal right to enter into this Amendment and to
consummate the transactions described in this Amendment, and (iii) this Amendment constitutes the
valid and legally binding obligation of such Person, enforceable against such Person in accordance
with its terms.
(b) The Seller and the Servicer hereby represent and warrant to each other party hereto that
(i) each of the representations and warranties made by it in the Sale and Servicing Agreement are
true and correct as of the date hereof, as though made on and as of the date
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hereof, (ii) as of the date hereof, there is no (A) Event of Default or (B) event which, with
the passage of time or the giving of notice, could result in an Event of Default, (C) Servicer
Termination Event or (D) Servicing Termination Trigger Event.
Section 4. Notice to Rating Agencies. The Servicer acknowledges that it has furnished
a copy of this Amendment to the Rating Agencies.
Section 5. Waiver of Notice. By execution of this Amendment, each of the parties
hereto waives any notice in connection with the execution and delivery of this Amendment.
Section 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY
LAW ALL OTHER RULES THEREOF RELATING TO CONFLICTS OF LAW AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7. Binding Effect; Ratification.
(a) This Amendment shall become effective as of the date first set forth above when
counterparts hereof shall have been executed and delivered by the parties hereto and thereafter
shall be binding on the parties hereto and their respective successors and assigns.
(b) On and after the execution and delivery hereof, (i) this Amendment shall be a part of the
Sale and Servicing Agreement, and (ii) each reference in any Transaction Document to the Sale and
Servicing Agreement shall mean and be a reference to the Sale and Servicing Agreement as amended
hereby.
(c) Except as expressly amended hereby, all provisions of the Sale and Servicing Agreement
shall remain in full force and effect and are hereby ratified and confirmed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date and year first above written.
| SANTANDER DRIVE AUTO RECEIVABLES TRUST 2007-1, as Issuer |
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| By: | U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity, but solely as Owner Trustee on behalf of the Issuer | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Trust Officer |
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| SANTANDER CONSUMER USA INC., as Servicer | ||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: ▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President |
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| SANTANDER DRIVE AUTO RECEIVABLES LLC, as Seller | ||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: ▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President |
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| ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee and as Backup Servicer |
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Assistant Vice President |
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