EXHIBIT 99.8
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SWAP COUNTERPARTY RIGHTS AGREEMENT
AMONG
XXXXXX BROTHERS SPECIAL FINANCING INC.,
AS PRIMARY SWAP COUNTERPARTY
SWIFT MASTER AUTO RECEIVABLES TRUST,
AS ISSUING ENTITY
GMAC LLC,
AS SERVICER, CUSTODIAN, AND ADMINISTRATOR
WHOLESALE AUTO RECEIVABLES LLC,
AS DEPOSITOR
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
AS INDENTURE TRUSTEE
AND
HSBC BANK USA, NATIONAL ASSOCIATION,
AS OWNER TRUSTEE
DATED AS OF JUNE 20, 2007
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS..................................................... 1
Section 1.01 Definitions............................................... 1
ARTICLE II LIMITATIONS ON ISSUING ENTITY'S CONSOLIDATION, MERGER OR SALE
OF ASSETS.............................................................. 1
Section 2.01 Consolidation or Merger; Sale or Disposition of Assets or
Property............................................... 1
ARTICLE III AMENDMENTS TO TRANSACTION DOCUMENTS........................... 2
Section 3.01 Amendments to the Trust Sale and Servicing Agreement...... 2
Section 3.02 Amendments to Trust Agreement............................. 2
Section 3.03 Amendments to Administration Agreement.................... 2
Section 3.04 Amendments to Custodian Agreement......................... 2
Section 3.05 Supplemental Indentures Without Consent of Primary Swap
Counterparty........................................... 3
ARTICLE IV DELIVERY OF NOTICES AND REPORTS................................ 3
Section 4.01 Notices of Replacement of Indenture Trustee............... 3
Section 4.02 Notices of Events of Default, Enforcement and
Termination............................................ 3
Section 4.03 Notices of Amendment of the Custodian Agreement........... 4
Section 4.04 Notices of Amendment of the Administration Agreement...... 4
Section 4.05 Notices of Supplemental Indentures........................ 4
Section 4.06 Notices of Amendment of the Trust Agreement............... 4
Section 4.07 Notices of Amendment of the Trust Sale and Servicing
Agreement.............................................. 5
Section 4.08 Notices of Release of Trust Estate........................ 5
Section 4.09 Notices of Release of Collateral.......................... 5
Section 4.10 Notices of Removal of Administrator....................... 5
Section 4.11 Notices of Assignment of the Trust Sale and Servicing
Agreement.............................................. 5
Section 4.12 Notices Generally......................................... 5
Section 4.13 Delivery of Reports....................................... 5
ARTICLE V MISCELLANEOUS................................................... 6
Section 5.01 Notices................................................... 6
Section 5.02 GOVERNING LAW............................................. 6
Section 5.03 Binding Effect............................................ 6
Section 5.04 Replacement of the Swap Counterparty...................... 6
Section 5.05 Severability of Provisions................................ 7
Section 5.06 Assignment................................................ 7
Section 5.07 Amendments................................................ 7
Section 5.08 Headings.................................................. 7
Section 5.09 Counterparts.............................................. 7
Section 5.10 Limitation of Liability................................... 7
Section 5.11 Termination............................................... 7
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THIS SWAP COUNTERPARTY RIGHTS AGREEMENT, dated as of June 20, 2007 (this
"Agreement"), is among XXXXXX BROTHERS SPECIAL FINANCING INC., as Swap
Counterparty (the "Primary Swap Counterparty"), SWIFT MASTER AUTO RECEIVABLES
TRUST, a Delaware statutory trust (the "Trust" or the "Issuing Entity"), GMAC
LLC, a Delaware limited liability company, as Servicer, Custodian, and
Administrator ("GMAC"), WHOLESALE AUTO RECEIVABLES LLC, a Delaware limited
liability company, as Depositor (the "DEPOSITOR"), THE BANK OF NEW YORK TRUST
COMPANY, N.A., not in its individual capacity but solely as Indenture Trustee
(the "Indenture Trustee"), and HSBC BANK USA, NATIONAL ASSOCIATION, a Delaware
banking corporation, not in its individual capacity but solely as Owner Trustee
(the "Owner Trustee").
WHEREAS, as of the date hereof, the Trust has entered into the Basis Swaps
with the Primary Swap Counterparty;
WHEREAS, the parties intend in this Agreement to enumerate certain rights
of the Primary Swap Counterparty.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used and not otherwise defined
in this Agreement are defined in and shall have the respective meanings assigned
them in Part I of Appendix A to the Trust Sale and Servicing Agreement dated as
of the date hereof, among GMAC, as Servicer, the Depositor, and the Trust, as
Issuing Entity, as it may be amended, supplemented or modified from time to time
(the "Trust Sale and Servicing Agreement"), and all references herein to
Articles and Sections are to Articles or Sections of other Basic Documents
unless otherwise specified. The rules of construction set forth in Part II of
Appendix A to the Trust Sale and Servicing Agreement shall be applicable to this
Agreement.
ARTICLE II
LIMITATIONS ON ISSUING ENTITY'S CONSOLIDATION,
MERGER OR SALE OF ASSETS
Section 2.01 Consolidation or Merger; Sale or Disposition of Assets or
Property
(a) The Issuing Entity shall not consolidate or merge with or into any
other Person, unless the Issuing Entity shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel addressed to the
Issuing Entity and the Primary Swap Counterparty, each stating that such
consolidation or merger and related supplemental indenture shall have no
material adverse tax consequence to the Primary Swap Counterparty.
(b) Except as otherwise expressly permitted by the Indenture or the
other Basic Documents, the Issuing Entity shall not sell, convey, exchange,
transfer or otherwise dispose of any of its properties or assets, including
those included in the Trust Estate, to any
Person, unless the Issuing Entity shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel addressed to the Issuing
Entity and the Primary Swap Counterparty, each stating that such sale,
conveyance, exchange, transfer or disposition and related supplemental indenture
shall have no material adverse tax consequence to the Primary Swap Counterparty.
ARTICLE III
AMENDMENTS TO TRANSACTION DOCUMENTS
Section 3.01 Amendments to the Trust Sale and Servicing Agreement. The
Trust Sale and Servicing Agreement may be amended, modified or supplemented from
time to time by the Depositor, the Servicer and the Owner Trustee in the manner
specified by Section 10.1 of the Trust Sale and Servicing Agreement; provided,
however, that no such amendment, modification or supplement shall be made unless
either (A) the Primary Swap Counterparty consents in writing to such amendment,
modification or supplement or (B) the amendment, modification or supplement
will, as evidenced by an opinion of independent counsel addressed to the Primary
Swap Counterparty, have no material adverse effect on the interests of the
Primary Swap Counterparty.
Section 3.02 Amendments to Trust Agreement. The Trust Agreement may be
amended, modified or supplemented from time to time by the Depositor and the
Owner Trustee in the manner specified by Section 8.2 of the Trust Agreement;
provided, however, that no amendment, modification or supplement shall be made
unless either (A) the Primary Swap Counterparty consents in writing to such
amendment, modification or supplement or (B) the amendment, modification or
supplement will, as evidenced by an opinion of independent counsel addressed to
the Primary Swap Counterparty, have no material adverse effect on the interests
of the Primary Swap Counterparty.
Section 3.03 Amendments to Administration Agreement. The Administration
Agreement may be amended, modified or supplemented from time to time pursuant to
Section 13 of the Administration Agreement; provided, however, that no
amendment, modification or supplement will be effected pursuant to Section 13 of
the Administration Agreement unless either (A) the Primary Swap Counterparty
consents in writing to such amendment, modification or supplement or (B) such
amendment, modification or supplement will, as evidenced by an opinion of
independent counsel addressed to the Primary Swap Counterparty, have no material
adverse effect on the interests of the Primary Swap Counterparty.
Section 3.04 Amendments to Custodian Agreement. The Custodian Agreement may
be amended, modified or supplemented pursuant to Section 7 thereof; provided,
however, that no such amendment, modification or supplement shall be made unless
either (A) the Primary Swap Counterparty consents in writing to such amendment,
modification or supplement or (B) such amendment, modification or supplement
will, as evidenced by an opinion of independent counsel addressed to the Primary
Swap Counterparty, have no material adverse effect on the interests of the
Primary Swap Counterparty.
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Section 3.05 Supplemental Indentures Without Consent of Primary Swap
Counterparty. No supplemental indenture shall be entered into under Section 9.1
or 9.2 of the Indenture unless either (A) the Primary Swap Counterparty consents
in writing to such supplemental indenture or (B) such supplemental indenture
will, as evidenced by an opinion of independent counsel addressed to the Primary
Swap Counterparty, have no material adverse effect on the interests of the
Primary Swap Counterparty.
ARTICLE IV
DELIVERY OF NOTICES AND REPORTS
Section 4.01 Notices of Replacement of Indenture Trustee.
(a) The Indenture Trustee shall provide the Primary Swap Counterparty
with a copy of any notice of its intent to resign delivered pursuant to Section
6.8(a) of the Indenture.
(b) A successor Indenture Trustee shall deliver to the Primary Swap
Counterparty a copy of any acceptance under Section 6.8(c) of the Indenture.
Section 4.02 Notices of Events of Default, Enforcement and Termination.
(a) The Indenture Trustee, as Paying Agent, shall give the Primary
Swap Counterparty notice of any default by the Issuing Entity (or any other
obligor upon the Notes) of which it has actual knowledge in the making of any
payment required to be made with respect to the Notes.
(b) The Issuing Entity shall deliver to the Primary Swap Counterparty
a copy of any notice it shall deliver pursuant to Section 6.17 of the Indenture
in respect of the occurrence of a Servicing Default under the Trust Sale and
Servicing Agreement.
(c) The Issuing Entity shall give the Primary Swap Counterparty prompt
written notice of each Event of Default under the Indenture, each Servicer
Default, each default on the part of the Depositor of its obligations under the
Trust Sale and Servicing Agreement and each default on the part of GMAC of its
obligations under the Pooling and Servicing Agreement.
(d) The Issuing Entity shall deliver to the Primary Swap Counterparty,
within five Business Days after learning of the occurrence thereof, a copy of
the written notice in the form of an Officer's Certificate delivered to the
Indenture Trustee, of any event which with the giving of notice and the lapse of
time would become an Event of Default under Section 6.02(c) of the Indenture,
its status and what action the Issuing Entity is taking or proposes to take with
respect thereto.
(e) If an Event of Default should occur and be continuing under the
Indenture, and the Indenture Trustee or the requisite percentage of the Holders
of the Notes declare all of
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the Notes immediately due and payable pursuant to Section 5.2(a) of the
Indenture, then the Indenture Trustee shall give prompt written notice thereof
to the Primary Swap Counterparty.
(f) The Indenture Trustee shall promptly give to the Primary Swap
Counterparty written notice of any waiver pursuant to Section 5.12 of the
Indenture.
(g) The Indenture Trustee shall promptly provide to the Primary Swap
Counterparty written notice of each request for action that is made and
direction received pursuant to Section 5.17 of the Indenture, with respect to
the exercise of the Indenture Trustee's powers to compel performance or enforce
the obligations of the parties under the Basic Documents.
(h) The Indenture Trustee shall mail to the Primary Swap Counterparty
any notice of Default which the Indenture Trustee mails to Noteholders pursuant
to Section 6.5 of the Indenture.
(i) The Servicer shall deliver to the Primary Swap Counterparty
promptly after having obtained knowledge thereof, but in no event later than
five Business Days thereafter, written notice in an officer's certificate of any
event which with the giving of notice or lapse of time, or both, would become a
Servicing Default under Section 8.1 of the Trust Sale and Servicing Agreement.
(j) Notice of any termination of the Trust shall be given by the
Servicer to the Primary Swap Counterparty as soon as practicable after the
Servicer has received notice thereof.
Section 4.03 Notices of Amendment of the Custodian Agreement. The Custodian
shall furnish prior notice to the Primary Swap Counterparty of any amendment to
the Custodian Agreement pursuant to Section 7 thereof.
Section 4.04 Notices of Amendment of the Administration Agreement. The
Administrator shall furnish prior notice to the Primary Swap Counterparty of any
proposed amendment to the Administration Agreement pursuant to Section 13(b)
thereof.
Section 4.05 Notices of Supplemental Indentures. The Indenture Trustee
shall furnish prior notice to the Primary Swap Counterparty of any proposed
indentures supplemental to the Indenture under Sections 9.1 and 9.2 thereof.
Section 4.06 Notices of Amendment of the Trust Agreement. Promptly after
the execution of an amendment to, or consent under, the Trust Agreement, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Primary Swap Counterparty.
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Section 4.07 Notices of Amendment of the Trust Sale and Servicing
Agreement. Promptly after the execution of an amendment to, or consent under,
the Trust Sale and Servicing Agreement, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to the Primary Swap
Counterparty.
Section 4.08 Notices of Release of Trust Estate. The Indenture Trustee
shall provide copies to the Primary Swap Counterparty of all of the documents
received by it pursuant to Section 8.7(b) of the Indenture.
Section 4.09 Notices of Release of Collateral. The Indenture Trustee shall
provide copies to the Primary Swap Counterparty of any document received by it
pursuant to Section 2.9 of the Indenture with respect to the release of
Collateral.
Section 4.10 Notices of Removal of Administrator.
(a) Subject to Section 10(d) of the Administration Agreement, the
Administrator may resign pursuant to Section 10(b) of the Administration
Agreement by providing the Issuing Entity and the Primary Swap Counterparty with
at least 60 days' prior written notice.
(b) The Issuing Entity shall provide to the Primary Swap Counterparty
a copy of any written notice from the Issuing Entity to the Administrator
effecting the immediate removal of the Administrator pursuant to Section 10(c)
of the Administration Agreement.
Section 4.11 Notices of Assignment of the Trust Sale and Servicing
Agreement. The Depositor shall provide to the Primary Swap Counterparty prior
written notice of any assignment of the Trust Sale and Servicing Agreement made
pursuant to Section 10.6 thereof.
Section 4.12 Notices Generally. The Issuing Entity shall promptly transmit
any notice received by it from the Noteholders to the Primary Swap Counterparty.
The Indenture Trustee shall likewise promptly transmit any notice received by it
from the Noteholders to the Primary Swap Counterparty.
Section 4.13 Delivery of Reports.
(a) A copy of any report delivered by the Indenture Trustee pursuant
to Section 7.4(a) of the Indenture shall, at the time of its mailing to
Noteholders, be sent by the Indenture Trustee to the Primary Swap Counterparty.
(b) The Servicer shall (i) deliver to the Primary Swap Counterparty
copies of its officer's certificate and the Servicer's assessment of compliance
with the Servicing Criteria
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pursuant to Section 4.1(a) and (b) of the Trust Sale and Servicing Agreement,
respectively and (ii) cause the firm delivering the Report of Assessment of
Compliance with Servicing Criteria pursuant to Section 4.2(a) of the Trust Sale
and Servicing Agreement, to deliver a copy thereof to the Primary Swap
Counterparty.
(c) The Issuing Entity shall deliver to the Primary Swap Counterparty
a copy of the Annual Statement of Compliance required by Section 3.9 of the
Indenture.
(d) On each Determination Date, the Servicer shall deliver to the
Primary Swap Counterparty a copy of the Servicer's Accounting required by
Section 3.05 of the Pooling and Servicing Agreement.
(e) The Servicer shall deliver to the Primary Swap Counterparty,
promptly after the execution and delivery of the Trust Sale and Servicing
Agreement and of each amendment thereto, an Opinion of Counsel as required in
Section 10.2(i) thereof.
ARTICLE V
MISCELLANEOUS
Section 5.01 Notices. All demands upon, notices to and communications with
the Primary Swap Counterparty required hereunder shall be delivered in the
manner specified for notices in the Basis Swaps, and all other demands upon,
notices to and communications upon or to the other parties hereto shall be
delivered as specified in Appendix B of the Trust Sale and Servicing Agreement.
Section 5.02 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 SECTIONS 5-1401 AND 5-1402 OF ITS GENERAL OBLIGATIONS LAW, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 5.03 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of all of the parties hereto and their respective
successors and assigns, including the Issuing Entity.
Section 5.04 Replacement of the Swap Counterparty. In the event that the
Primary Swap Counterparty resigns, is removed or otherwise replaced as Primary
Swap Counterparty pursuant to the terms of the Basis Swaps, the Triparty
Contingent Assignment Agreement or the Contingent Basis Swaps, its assignee or
successor in interest thereunder shall automatically succeed to the interests of
the Primary Swap Counterparty under this Agreement.
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Section 5.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 5.06 Assignment. This Agreement may not be assigned by the Primary
Swap Counterparty without the prior written consent of each of the Trust, the
Indenture Trustee, the Owner Trustee, GMAC, and the Depositor, except as
provided in Section 5.04 hereof.
Section 5.07 Amendments. No change or amendment to this Agreement will be
effective unless in writing and signed by all of the parties to this Agreement.
Section 5.08 Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 5.09 Counterparts. This Agreement may be executed by the parties in
separate counterparts (including by facsimile transmission), each of which when
so executed and delivered shall be an original but all such counterparts shall
together constitute but one and the same instrument.
Section 5.10 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 the Issuing Entity, in the exercise of the powers and authority
conferred and vested in it under the Trust Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuing Entity or the Owner Trustee 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 Issuing
Entity and (c) under no circumstances shall HSBC Bank USA, National Association
be personally liable for the payment of any indebtedness or expenses of the
Issuing Entity or the Owner Trustee or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuing Entity or the Owner Trustee under this Agreement or the other Basic
Documents. For all purposes of this Agreement, in the performance of any duties
or obligations of the Issuing Entity or the Owner Trustee hereunder, HSBC Bank
USA, National Association shall be entitled to the benefits of the terms and
provisions of the Trust Agreement.
Section 5.11 Termination. This Agreement shall terminate upon termination
of the last Basis Swap with the Primary Swap Counterparty.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Primary Swap
Counterparty Rights Agreement to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
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
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Name: Xxxxx Xxxxx
Title: Assistant Vice President
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
XXXXXX BROTHERS SPECIAL FINANCING INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
THE BANK OF NEW YORK TRUST COMPANY,
N.A., not in its individual capacity,
but solely as Indenture Trustee
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
SWIFT Master Swap Counterparty Rights Agreement
GMAC LLC
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director - Global Securitization
WHOLESALE AUTO RECEIVABLES LLC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SWIFT Master Swap Counterparty Rights Agreement
