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Exhibit 4.3
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Financial
Guaranty Insurance Company
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125 Park
Avenue
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New York, New
York 10017
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(212)
312-3000
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(800)
352-0001
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Financial
Guaranty Insurance Policy
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Issuer:
Santander Drive Auto Receivables Trust 2007-1
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Policy Number: 07030011
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Control Number: 0010001
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$1,200,000,000
in aggregate note principal balance of Santander Drive Auto
Receivables Trust 2007-1 Asset Backed Notes, Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes
(collectively, the “Notes”)
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Indenture
Trustee: Wells Fargo Bank, National Association.
Financial
Guaranty Insurance Company (“Financial Guaranty”), a
New York stock insurance company, in consideration of the right of
Financial Guaranty to receive monthly premiums pursuant to the Sale
and Servicing Agreement (as defined below) and the Insurance
Agreement referred to therein, and subject to the terms of this
Financial Guaranty Insurance Policy (this “Policy”),
hereby unconditionally and irrevocably agrees to pay each Insured
Payment, to the extent set forth in the Sale and Servicing
Agreement, to the Indenture Trustee named above or its successor,
as indenture trustee for the Holders of the Notes, except as
otherwise provided herein with respect to Preference Amounts.
Capitalized terms used and not otherwise defined herein shall have
the respective meanings assigned to such terms in Appendix A
to the Sale and Servicing Agreement as in effect and executed on
the date hereof, without giving effect to any subsequent amendments
or modifications thereto unless such amendments or modifications
have been approved in writing by Financial Guaranty.
The term
“Insured Payment” means (1) with respect to any
Payment Date, any Deficiency Amount for such Payment Date and the
Notes and (2) with respect to any day, any Preference Amount
to be paid pursuant to the terms of this Policy in respect of the
Notes.
The term
“Deficiency Amount” means, with respect to any Payment
Date, an amount, if any, equal to the sum of:
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(1)
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the
amount by which (A) the Accrued Note Interest (not including
any Interest Carryover Shortfall that Financial Guaranty has made
Insured Payments in respect of on a prior Payment Date) exceeds
(B) the amount of Available Funds available to make such
payments with respect to such Payment Date; and
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(2)
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(i) the excess, if any, of the
aggregate Note Balance of the Class A Notes (after giving
effect to all principal payments to be made on such
Payment
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Financial
Guaranty Insurance Company
125 Park Avenue
New York, New York 10017
(212) 312-3000
(800) 352-0001
Financial
Guaranty Insurance Policy
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Date) over the sum of (x) the
Pool Balance as of the end of the related Collection Period and
(y) amounts, if any, on deposit in the Pre-Funding Account as
of the end of the related Collection Period and (ii) without
duplication of any amounts payable in the preceding clause (i), if
such Payment Date is a Final Scheduled Payment Date with respect to
any Class of Notes, the outstanding Note Balance of such Class of
Notes on such Final Scheduled Payment Date, after giving effect to
all payments of principal on such Class of Notes from all sources
other than this Policy.
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Deficiency
Amount shall be determined in accordance with the original terms of
the Notes when issued and without regard to any subsequent
amendment or modification of the Notes that has not been consented
to in writing by Financial Guaranty.
The term
“Final Scheduled Payment Date” for each Class of the
Notes means the Payment Date occurring in April 2008 for the
Class A-1 Notes, December 2010 for the Class A-2
Notes, September 2011 for the Class A-3 Notes and
September 2014 for the Class A-4 Notes.
Financial
Guaranty will pay a Deficiency Amount with respect to the Notes by
12:00 noon (New York City time) by wire transfer in immediately
available funds to the Indenture Trustee on the later of
(i) the second Business Day following the Business Day on
which Financial Guaranty shall have received Notice that a
Deficiency Amount is due in respect of the Notes and (ii) the
Payment Date on which the related Deficiency Amount is payable to
the Holders of the Notes pursuant to the Sale and Servicing
Agreement, for disbursement to the Holders of the Notes in the same
manner as other payments with respect to the Notes are required to
be made. Any Notice received by Financial Guaranty after 12:00 noon
New York City time on a given Business Day or on any day that is
not a Business Day shall be deemed to have been received by
Financial Guaranty on the next succeeding Business Day.
Upon the
payment of any Insured Payment hereunder, Financial Guaranty shall
be fully subrogated to the rights of the Holders of the Notes to
receive the amount so paid. Financial Guaranty’s obligations
with respect to the Notes hereunder with respect to each Payment
Date shall be discharged to the extent funds consisting of the
related Deficiency Amount are received by the Indenture Trustee on
behalf of the Holders of the Notes for payment to such Holders, as
provided in the Sale and Servicing Agreement and herein, whether or
not such funds are properly applied by the Indenture
Trustee.
If any portion
or all of any amount that is insured hereunder that was previously
paid to a Holder of Notes is recoverable and sought to be recovered
from such Holder as a voidable preference by a trustee in
bankruptcy pursuant to the U.S. Bankruptcy Code, pursuant to a
final non-appealable order of a court exercising proper
jurisdiction in an insolvency proceeding (a “Final
Order”) (such recovered amount, a “Preference
Amount”), Financial Guaranty will pay on the guarantee
described in the first paragraph hereof, an amount equal to each
such Preference Amount by
Financial
Guaranty Insurance Company
125 Park Avenue
New York, New York 10017
(212) 312-3000
(800) 352-0001
Financial
Guaranty Insurance Policy
12:00 noon on
the fourth Business Day following receipt by Financial Guaranty on
a Business Day of (w) a certified copy of the Final Order,
(x) an opinion of counsel satisfactory to Financial Guaranty
that the order is final and not subject to appeal, (y) an
assignment, in form reasonably satisfactory to Financial Guaranty,
irrevocably assigning to Financial Guaranty all rights and claims
of the Indenture Trustee and/or such Holder of the Notes relating
to or arising under such Preference Amount and constituting an
appropriate instrument, in form satisfactory to Financial Guaranty,
appointing Financial Guaranty as the agent of the Indenture Trustee
and/or such Holder in respect of such Preference Amount, including
without limitation in any legal proceeding related to such
Preference Amount, and (z) a Notice appropriately completed
and executed by the Indenture Trustee or such Holder, as the case
may be. Such
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