Contract
Exhibit 99.10
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of February 13, 2007 (the “Agreement”),
among Superior Wholesale Inventory Financing Trust 2007-AE-1 (the “Trust”), GMAC LLC (“GMAC”), and
Bank of America, N.A. (“Primary Swap Counterparty”).
WHEREAS, the Trust and the Primary Swap Counterparty have entered into the Primary Swap
Agreement (hereinafter defined);
WHEREAS, GMAC and the Primary Swap Counterparty have entered into the Back-to-Back Swap
Agreement (hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 The following terms shall have the meanings set forth below:
“Additional Contingent Counterparty” means a Person with the Requisite Rating entering
into an agreement substantially similar to this Agreement pursuant to Section 2.02 hereof.
“Assignment Currency” means United States Dollars.
“Assignment Currency Equivalent” has the same meaning as the term “Termination
Currency Equivalent” as defined in the Primary Swap Agreement.
“Assignment Date” means the date upon which GMAC receives notice from the Trust of the
occurrence of a Designated Event, or if such date is not a Business Day, the next succeeding
Business Day.
“Back-to-Back Confirmation” means each of the Confirmations evidencing the terms of a
rate swap transaction relating to each of the Class A Term Notes, Class B Term Notes, Class C Term
Notes and 2007-RN1 Notes between GMAC and the Primary Swap Counterparty, in effect on the Closing
Date, which has been or will be entered into pursuant to the Back-to-Back Swap Agreement.
“Back-to-Back Swap Agreement” means the 1987 ISDA Interest Rate and Currency Exchange
Agreement (including the Schedule thereto), dated as of March 8, 1994, as may be amended, modified
and supplemented from time to time, between GMAC and the Primary Swap Counterparty, and each
Back-to-Back Confirmation.
“Back-to-Back Swap Transaction” means each transaction described in a Back-to-Back
Confirmation.
“Closing Date” means February 13, 2007.
“Delinquent Payments” means any payments owed to the Trust as a result of liabilities,
obligations and duties of the Primary Swap Counterparty pursuant to the Primary Swap Agreement
accruing prior to the Assignment Date that have not been made by the Primary Swap Counterparty.
“Depositor” means the Person executing the Trust Sale and Servicing Agreement as the
Depositor, or its successor in interest pursuant to Section 3.03 of the Trust Sale and
Servicing Agreement.
A “Designated Event” shall occur (a) if one or more Events of Default occurs under the
Primary Swap Agreement with the Primary Swap Counterparty as the Defaulting Party and the Trust
notifies the Primary Swap Counterparty that it is declaring a Designated Event to have occurred,
(b) upon the occurrence of any applicable Termination Event under the Primary Swap Agreement in
which the Primary Swap Counterparty is an Affected Party, if no transfer is effected under Section
6(b)(ii) of the Primary Swap Agreement with respect to such event and an assignment pursuant to
Section 2.01 hereof would not result in the occurrence of an independent Termination Event under
the resulting Fallback Swap Agreement, or (c) upon the occurrence of a “Credit Downgrade” as
described in any Primary Confirmation, if no appropriate arrangements pursuant to such Primary
Confirmation’s credit downgrade provisions are made within thirty (30) days of receipt of notice of
such reduction (unless, within such thirty (30) day period, each applicable Rating Agency has
reconfirmed the rating of the Notes that was in effect immediately prior to such reduction with
respect to such “Credit Downgrade” event) if, upon the expiration of such thirty (30) day period,
GMAC: (i) is rated at least “AA-” by S&P and “Aa3” by Moody’s; or (ii) with the posting of
collateral or provision of other appropriate credit support, is rated at least “A-” by S&P and “A3”
by Moody’s.
“Fallback Swap Agreement” means the ISDA Master Agreement (including the Schedule
thereto), dated as the date hereof, between GMAC and the Trust, and each Fallback Confirmation.
“Fallback Confirmation” means each of the Confirmations between GMAC and the Trust,
documented under the Fallback Swap Agreement relating to each of the Class A Term Notes, Class B
Term Notes, Class C Term Notes and 2007-RN1 Notes evidencing the terms of a rate swap transaction,
assigned to GMAC by the Primary Swap Counterparty in accordance with Section 2.01 hereof following
the occurrence of a Designated Event.
“Fallback Swap Transaction” means each transaction resulting from the assignment of a
transaction under the Primary Swap Agreement upon the occurrence of a Designated Event, the terms
of which are set forth in a Fallback Confirmation.
“Joint Probability” has the meaning given in the Primary Confirmation.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor.
“Person” means any legal person, including any individual, corporation, partnership,
joint venture, association, limited liability company, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
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“Primary Confirmation” means each of the Confirmations evidencing the terms of a rate
swap transaction relating to each of the Class A Term Notes, Class B Term Notes, Class C Term Notes
and 2007-RN1 Notes between the Primary Swap Counterparty and the Trust, in effect on the Closing
Date, which has been or will be entered into pursuant to the ISDA Master Agreement (including the
Schedule thereto), dated as of the date hereof, between the Primary Swap Counterparty and the
Trust.
“Primary Swap Agreement” means the ISDA Master Agreement (including the Schedule
thereto), dated as the date hereof, between the Primary Swap Counterparty and the Trust, and each
Primary Confirmation.
“Primary Swap Transaction” means each transaction described in a Primary Confirmation.
“Requisite Rating” means a long-term, unsecured and unsubordinated debt rating from
S&P and Moody’s which, when considered together with the long-term, unsecured and unsubordinated
debt rating of GMAC, would result in a Joint Probability of at least AA- in the case of S&P, and
Aa3 in the case of Moody’s, so long as the Notes are rated by such Person.
“Settlement Amount” shall mean the amount determined as such under the Primary Swap
Agreement, except that any reference to the term “Termination” or “Terminated” therein is deemed to
be “Assignment” and “Assigned” respectively, and reference to “Early Termination Date” shall be a
reference to the “Assignment Date”.
“Servicer” means GMAC or its successor as servicer pursuant to the Trust Sale and
Servicing Agreement.
“S&P” means Standard and Poor’s Ratings Service and any successor.
“Trust Sale and Servicing Agreement” means the Trust Sale and Servicing Agreement,
dated as of date hereof, among the Depositor, the Servicer and the Trust, as amended and
supplemented from time to time.
“Unpaid Amount” shall mean the amount determined as such under the Primary Swap
Agreement.
Section 1.02 Definitions. Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings specified for such terms (i) in the Primary Swap Agreement
or the Back-to-Back Swap Agreement, as dictated by its context or (ii) if not defined therein, in
Appendix A to the Trust Sale and Servicing Agreement. The rules of construction specified
in Part II of such Appendix A shall apply to this Agreement.
ARTICLE II
ASSIGNMENT UPON DESIGNATED EVENT
Section 2.01 Assignment. In the event that a Designated Event shall have occurred and
is then continuing and the Trust has notified GMAC in writing of such occurrence and
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continuance and has provided evidence reasonably satisfactory to GMAC that a Designated Event
has occurred and is then continuing, each of the following shall occur on the Assignment Date:
(a) Each Primary Swap Transaction shall be assigned by the Primary Swap Counterparty to
GMAC and GMAC shall accede to all of the rights and obligations of the Primary Swap
Counterparty under each such Primary Swap Transaction and be subject to the applicable
credit downgrade provisions under each such Primary Swap Transaction; provided, however,
that upon such assignment, each such transaction shall be evidenced by a Fallback
Confirmation and shall be governed by the terms of the Fallback Swap Agreement (including
rights, title and interests and liabilities, obligations and duties accruing prior to the
Assignment Date) and, except as expressly provided in this paragraph (a) and paragraph (b)
below, on and at all times following the Assignment Date, the Primary Swap Agreement and
each Primary Swap Transaction thereunder shall terminate and neither the Trust nor the
Primary Swap Counterparty shall have any rights, liabilities, obligations or duties
thereunder, including, without limitation payment obligations of any kind. In connection
with the foregoing, in the event that there are Delinquent Payments under the Primary Swap
Transaction, GMAC shall promptly (and in any event no later than the next Business Day) make
the full amount of such Delinquent Payments to the Trust (but only to the extent that GMAC
has not made a corresponding payment under the Fallback Swap Agreement).
(b) In connection with the assignment of the Primary Swap Agreement to GMAC pursuant to
Section 2.01(a) above, a payment (the “Assignment Payment”) shall be due, either to the
Primary Swap Counterparty by GMAC or to GMAC by the Primary Swap Counterparty, which payment
shall equal (A) the sum of the Settlement Amount (as determined by GMAC (on behalf of the
Trust)) in respect of the Primary Swap Agreement and the Assignment Currency Equivalent of
the Unpaid Amounts owing to the Trust by the Primary Swap Counterparty under the Primary
Swap Agreement (without giving effect to any Delinquent Payments made by GMAC) less (B) the
Assignment Currency Equivalent of the Unpaid Amounts owing by the Trust to the Primary Swap
Counterparty under the Primary Swap Agreement. If that amount is a positive number, the
Primary Swap Counterparty shall pay it to GMAC; if it is a negative number, GMAC shall pay
the absolute value of that amount to the Primary Swap Counterparty.
(c) The Back-to-Back Swap Transaction shall be terminated on and as of the Assignment
Date. For the purposes thereof, (i) the Assignment Date shall be deemed to be an Early
Termination Date for the Back-to-Back Swap Transaction, (ii) the Primary Swap Counterparty
shall be deemed to be the sole Affected Party and (iii) the Settlement Amount in respect of
the termination of the Back-to-Back Swap Transaction shall be determined in accordance with
the provisions of Section 6(e)(ii)(1) of the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) applying Market Quotation and Second Method, with such
Settlement Amount determined on the same date and at the same time as the determination of
the Settlement Amount in respect of the Primary Swap Transaction. If the Settlement Amount
determined in accordance with this paragraph (c) is a positive number, the Primary Swap
Counterparty shall pay it to GMAC; if it is a
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negative number, GMAC shall pay the absolute value of that amount to the Primary Swap
Counterparty. The amount of the Assignment Payment determined in accordance with paragraph
(b) of this Section 2.01 and the Settlement Amount determined in accordance with this
paragraph (c) shall be payable on a net basis within five Business Days following the
Assignment Date.
(d) Upon (i) the effectiveness of the Fallback Swap Agreement and (ii) the payment by
GMAC to the Trust in a timely fashion of all Delinquent Payments, if any, (x) the Event of
Default or Termination Event under the Primary Swap Agreement constituting such Designated
Event, if any, shall be deemed to be cured on and as of the Assignment Date for purposes of
establishing the rights and obligations of the parties under the Fallback Swap Agreement,
and (y) no Early Termination Date (as defined in the Primary Swap Agreement) may be
designated as a result of such Designated Event.
Section 2.02 Additional Contingent Counterparty. If GMAC has acceded to the rights
and obligations of the Primary Swap Counterparty under the Primary Swap Agreement in accordance
with the provisions of this Article II, GMAC shall have the option to find a Person with the
Requisite Rating that will either (i) enter into an assignment agreement that is substantially
similar to this Agreement pursuant to which such Person will become the Additional Contingent
Counterparty or (ii) enter into swap transaction(s) on substantially identical terms to the Primary
Swap Transaction(s) (provided, however, that the name and address of such Person and the effective
date may differ) (the “Replacement Primary Swaps”) and a contingent assignment agreement under
which such Person would accede to the rights and obligations of GMAC under the Fallback Swap
Agreement, in which case GMAC will become the Additional Contingent Counterparty. The Primary Swap
Counterparty shall reimburse GMAC for any reasonable costs associated with finding a party to serve
as the counterparty under the Replacement Primary Swaps or as the Additional Contingent
Counterparty, as the case may be. Any delay or inability in finding a party to serve as the
counterparty under the Replacement Primary Swaps or as the Additional Contingent Counterparty will
not result in the occurrence of a Termination Event, an Event of Default or otherwise lead to the
designation of an Early Termination Date under the Fallback Swap Agreement.
Section 2.03 Trust Declaration of Designated Event. If the circumstances potentially
giving rise to a Designated Event are those set forth in clause (a) of the definition of
“Designated Event,” then the Trust shall elect to declare a Designated Event (i) if any one of the
Events of Default under the Primary Swap Agreement with respect to the Primary Swap Counterparty as
the Defaulting Party is the result of a breach by the Primary Swap Counterparty of Section 5(a)(i)
of the Primary Swap Agreement or (ii) otherwise, if and only if, at the time of such election, the
long-term unsecured debt obligations of the Contingent Swap Counterparty are rated at least “AA-”
by S&P and at least “Aa3” by Moody’s.
Section 2.04 Notice. The Primary Swap Counterparty agrees that, to the extent that it
has actual knowledge that it will be unable to make a payment or delivery on a scheduled payment
date under the Primary Swap Agreement, it shall provide notice to the Trust of such inability at
least two Business Days prior to such scheduled payment date. This Section 2.04 shall not be
construed to obligate the Primary Swap Counterparty to undertake any affirmative action or inquiry
to ascertain whether it will be able to make any such payment or delivery. Any
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failure by the Primary Swap Counterparty to provide notice to the Trust of such inability
shall be without prejudice to the Primary Swap Counterparty’s rights under this Agreement and the
Primary Swap Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.01 Miscellaneous.
(a) Entire Agreement. This Agreement, the Primary Swap Agreement and the
Back-to-Back Swap Agreement constitute the entire agreement and understanding of the parties
with respect to the subject matter thereof and supersede all oral communications and prior
writings (except as otherwise provided therein) with respect thereto.
(b) Counterparts. This Agreement may be executed and delivered in counterparts
(including by facsimile transmission) each of which will be deemed an original.
(c) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into consideration
in interpreting this Agreement.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS BUT WITHOUT PREJUDICE TO THE PROVISIONS OF SECTION 5-1401 OF ITS GENERAL
OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(e) Notices. All demands, specifications and notices to a party hereto under
this Agreement will be made pursuant to the provisions of the Primary Swap Agreement or the
Back-to-Back Swap Agreement, as applicable.
(f) No Waiver. Notwithstanding any other provision in this Agreement to the
contrary, no full or partial failure to exercise and no delay in exercising, on the part of
any party hereto, any right, remedy, power or privilege under this Agreement, regardless of
the frequency or constancy of such failure or delay, shall operate in any way as a waiver
thereof by such party.
(g) Inconsistencies. Except as expressly provided herein, the Primary Swap
Agreement shall not be deemed to be amended hereby in any respect. In the event of any
inconsistencies between the provisions of this Agreement and those of the Primary Swap
Agreement or the Back-to-Back Swap Agreement, the provisions hereof shall prevail.
(h) Amendments. This Agreement may not be amended except by the execution of a
written instrument by all parties hereto, and unless the Rating Agencies confirm in writing
that such amendment will not cause the reduction, suspension or withdrawal of
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the then current rating on any of the Notes; provided that no such confirmation
shall be required if such amendment clarifies any term or provision, corrects any
inconsistency, cures any ambiguity or corrects any typographical error in this Agreement (in
which case, copies of such proposed amendment shall be provided to the Rating Agencies prior
to the effectiveness of such amendment).
(i) Limitation of Liability. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by HSBC Bank USA, National
Association, not in its individual capacity but solely as Owner Trustee of Superior
Wholesale Inventory Financing Trust 2007-AE-1 in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Trust is made and intended not as personal representations,
undertakings and agreements by HSBC Bank USA, National Association but is made and intended
for the purpose of binding only the Trust, (c) nothing herein contained shall be construed
as creating any liability on HSBC Bank USA, National Association in its individual,
corporate capacity, to perform any covenant 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 the parties hereto and (d) under no circumstances shall HSBC
Bank USA, National Association be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this Agreement or
any other related documents.
* * * * * *
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IN WITNESS WHEREOF, the parties have executed this agreement by their duly authorized officers
as of the date hereof.
| SUPERIOR WHOLESALE INVENTORY FINANCING TRUST 2007-AE-1 |
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| By: | HSBC BANK USA, NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: Xxxxx Xxxxx | ||||
| Title: Assistant Vice President | ||||
| GMAC LLC |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Name: Xxxxx X. Xxxx | ||||
| Title: Director – U.S. Securitization | ||||
| BANK OF AMERICA, N.A. |
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| By: | /s/ Xxxxx Xxxxxxxxxxx | |||
| Name: Xxxxx Xxxxxxxxxxx | ||||
| Title: Senior Vice President | ||||
SWIFT 2007-AE-1 Triparty Contingent Assignment
