EXHIBIT 99.9
TRIPARTY CONTINGENT ASSIGNMENT AGREEMENT dated as of June 20, 2007 (the
"Agreement"), among SWIFT Master Auto Receivables Trust (the "Trust"), GMAC LLC
("GMAC"), and XXXXXX BROTHERS SPECIAL FINANCING INC. ("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 Series 2007-1 Class A
Notes, Series 2007-1 Class B Notes and Series 2007-1 Class C 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 1992 ISDA Master Agreement
(including the Schedule thereto), dated as of September 22, 1999, 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 June 20, 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
Series 2007-1 Class A Notes, Series 2007-1 Class B Notes and Series 2007-1 Class
C 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 Series 2007-1 Class A Notes,
Series 2007-1 Class B Notes and Series 2007-1 Class C 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.
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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 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
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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 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.
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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 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.
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(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 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 SWIFT Master Auto Receivables Trust 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.
SWIFT MASTER AUTO RECEIVABLES TRUST
By: HSBC BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
GMAC LLC
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Director - Global Securitization
XXXXXX BROTHERS SPECIAL FINANCING INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SWIFT Master Triparty Contingent Assignment
