deposit, set over and confirm pursuant to the Indenture. A Grant of the Collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the Granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring proceedings in the name of the Granting party or otherwise and generally to do and receive anything that the Granting party is or may be entitled to do or receive thereunder or with respect thereto. Other forms of the verb to Grant shall have correlative meanings.
Holder means, as the context may require, the Certificateholder or a Noteholder or both.
HSBC means HSBC Auto Finance, Inc., HSBC Auto Credit Inc., HSBC Auto Accounts Inc. and certain affiliates of such entities.
Indenture means the Indenture, dated as of the Closing Date, between the Issuer and Indenture Trustee, as the same may be amended and supplemented from time to time.
Indenture Trustee means Wells Fargo Bank, National Association, a national banking association, not in its individual capacity but as indenture trustee under the Indenture, or any successor trustee under the Indenture.
Independent means, when used with respect to any specified Person, that such Person (i) is in fact independent of the Issuer, any other obligor upon the Notes, the Administrator and any Affiliate of any of the foregoing Persons, (ii) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Administrator or any Affiliate of any of the foregoing Persons and (iii) is not connected with the Issuer, any such other obligor, the Administrator or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.
Independent Certificate means a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.1 of the Indenture, made by an independent appraiser or other expert appointed by an Issuer Order, and such opinion or certificate shall state that the signer has read the definition of Independent in this Appendix A and that the signer is Independent within the meaning thereof.
Initial Certificate Transfer Opinion means an opinion rendered by nationally recognized tax counsel (i) upon the initial transfer by the Depositor of a Certificate that results in the Issuer being treated as a partnership for United States federal income tax purposes and (ii) while any Note retained by the Issuer or a Person that is considered the same Person as the Issuer for United States federal income tax purposes is outstanding that (x) such Notes will be debt for United States federal income tax purposes or (y) the transfer by the Depositor of such Certificate will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation.
| A-17 | Definitions (2016-1) |
Initial Class A-1 Note Balance means $162,800,000.
Initial Class A-2-A Note Balance means $120,000,000.
Initial Class A-2-B Note Balance means $222,000,000.
Initial Class A-3 Note Balance means $109,120,000.
Initial Class B Note Balance means $142,450,000.
Initial Class C Note Balance means $153,040,000.
Initial Class D Note Balance means $91,240,000.
Initial Class E Note Balance means $58,860,000.
Initial Note Balance means, for any Class, the Initial Class A -1 Note Balance, the Initial Class A-2-A Note Balance, the Initial Class A-2-B Note Balance, the Initial Class A-3 Note Balance, the Initial Class B Note Balance, the Initial Class C Note Balance, the Initial Class D Note Balance or the Initial Class E Note Balance, as applicable, or with respect to the Notes generally, the sum of the foregoing.
Initial Reserve Account Deposit Amount means an amount equal to $23,544,699.96.
Instituting Noteholders has the meaning set forth in Section 7.6(a) of the Indenture.
Insurance Policy means (i) any theft and physical damage insurance policy maintained by the Obligor under a Receivable, providing coverage against loss or damage to or theft of the related Financed Vehicle, and (ii) any credit life or credit disability insurance maintained by an Obligor in connection with any Receivable.
Interest Period means, with respect to any Payment Date, (a) with respect to the Class A-1 Notes and the Class A-2-B Notes, from and including the Closing Date (in the case of the first Payment Date) or from and including the most recent Payment Date to but excluding that Payment Date (for example, for a Payment Date in June, the Interest Period is from and including the Payment Date in May to but excluding the Payment Date in June) and (b) for the Class A-2-A Notes, the Class A-3 Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes, from and including the 15th day of the calendar month preceding such Payment Date (or from and including the Closing Date in the case of the first Payment Date) to but excluding the 15th day of the month in which such Payment Date occurs.
Interest Rate means (a) with respect to the Class A-1 Notes, the Class A-1 Interest Rate, (b) with respect to the Class A-2-A Notes, the Class A-2-A Interest Rate, (c) with respect to the Class A-2-B Notes, the Class A-2-B Interest Rate, (d) with respect to the Class A-3 Notes, the Class A-3 Interest Rate, (e) with respect to the Class B Notes, the Class B Interest Rate, (f) with respect to the Class C Notes, the Class C Interest Rate, (g) with respect to the Class D Notes, the Class D Interest Rate or (h) with respect to the Class E Notes, the Class E Interest Rate.
| A-18 | Definitions (2016-1) |
Investment Company Act means the Investment Company Act of 1940, as amended.
Investment Grade Notes means the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes.
Issuer means Santander Drive Auto Receivables Trust 2016-1, a Delaware statutory trust established pursuant to the Trust Agreement, until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained in the Transaction Documents, each other obligor on the Notes.
Issuer Order and Issuer Request means a written order or request of the Issuer signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee.
Item 1119 Party means the Seller, Santander Consumer, the Servicer, the Indenture Trustee, the Owner Trustee, any underwriter of the Notes and any other material transaction party identified by the Seller or Santander Consumer to the Indenture Trustee and the Owner Trustee in writing.
LIBOR means, with respect to any Interest Period, the London interbank offered rate for deposits in U.S. Dollars having a maturity of one month commencing on the related LIBOR Determination Date which appears on Bloomberg Screen BTMM Page (or any successor page) as of 11:00 a.m., London time, on such LIBOR Determination Date; provided, however, that for the first Interest Period, LIBOR shall mean an interpolated rate for deposits based on London interbank offered rates for deposits in U.S. Dollars for a period that corresponds to the actual number of days in the first Interest Period. If the rates used to determine LIBOR do not appear on the Bloomberg Screen BTMM Page (or any successor page), the rates for that day will be determined on the basis of the rates at which deposits in U.S. Dollars, having a maturity of one month and in a principal amount of not less than U.S. $1,000,000 are offered at approximately 11:00 a.m. London time, on such LIBOR Determination Date to prime banks in the London interbank market by the reference banks. The Indenture Trustee will request the principal London office of each of such reference banks to provide a quotation of its rate. If at least two such quotations are provided, the rate for that day will be the arithmetic mean to the nearest 1/100,000 of 1.00% (0.0000001), with five one-millionths of a percentage point rounded upward, of all such quotations. If fewer than two such quotations are provided, the rate for that day will be the arithmetic mean to the nearest 1/100,000 of 1.00% (0.0000001), with five one-millionths of a percentage point rounded upward, of the offered per annum rates that one or more leading banks in New York City, selected by the Indenture Trustee (after consulting with the Seller), are quoting as of approximately 11:00 a.m., New York City time, on such LIBOR Determination Date to leading European banks for United States dollar deposits for that maturity; provided, that if the banks selected as aforesaid are not quoting as mentioned in this sentence, LIBOR in effect for the applicable Interest Period will be LIBOR in effect for the previous Interest Period. The reference banks are the four major banks in the London interbank market selected by the Indenture Trustee (after consultation with the Seller).
| A-19 | Definitions (2016-1) |
LIBOR Determination Date means the second London Business Day prior to the Closing Date with respect to the first Payment Date and, as to each subsequent Payment Date, the second London Business Day prior to the immediately preceding Payment Date.
Lien means, for any asset or property of a Person, a lien, security interest, mortgage, pledge or encumbrance in, of or on such asset or property in favor of any other Person, except any Permitted Lien.
Liquidation Proceeds means, with respect to any Receivable, (a) insurance proceeds received by the Servicer with respect to the Insurance Policies, (b) amounts received by the Servicer in connection with such Receivable pursuant to the exercise of rights under that Receivable and (c) the monies collected by the Servicer (from whatever source, including proceeds of a sale of a Financed Vehicle, a deficiency balance recovered from the Obligor after the charge-off of such Receivable or as a result of any recourse against the related Dealer, if any) on such Receivable other than any monthly payments by or on behalf of the Obligor thereunder or any full or partial prepayment of such Receivable, in the case of each of the foregoing clauses (a) through (c), net of any expenses (including, without limitation, any auction, painting, repair or refurbishment expenses in respect of the related Financed Vehicle) incurred by the Servicer in connection therewith and any payments required by law to be remitted to the Obligor.
London Business Day means any day other than a Saturday, Sunday or day on which banking institutions in London, England are authorized or obligated by law or government decree to be closed.
Majority Certificateholders means Certificateholders holding in the aggregate more than 50% of the Percentage Interests.
Measurement Date means the most recent Payment Date specified in the first column of the Cumulative Net Loss Rate Table.
Monthly Remittance Condition has the meaning set forth in Section 4.2 of the Sale and Servicing Agreement.
Moodys means Moodys Investors Service, Inc., or any successor that is a nationally recognized statistical rating organization.
Non-Investment Grade Notes means the Class E Notes.
Note means a Class A-1 Note, Class A-2-A Note, Class A-2-B Note, Class A-3 Note, Class B Note, Class C Note, Class D Note or Class E Note in each case substantially in the forms of Exhibit A-1 or A-2, as applicable, to the Indenture.
Note Balance means, with respect to any date of determination, for any Class, the Class A-1 Note Balance, the Class A-2-A Note Balance, the Class A-2-B Note Balance, the Class A-3 Note Balance, the Class B Note Balance, the Class C Note Balance, the Class D Note Balance or the Class E Note Balance, as applicable, or with respect to the Notes generally, the sum of all of the foregoing.
| A-20 | Definitions (2016-1) |
Note Factor means, with respect to a Payment Date and each Class of Notes, a six-digit decimal, which the Servicer will compute each month, equal to the Note Balance of such Class of Notes as of the end of the related Collection Period divided by the Note Balance of such Class of Notes as of the Closing Date. The Note Factor will be 1.000000 as of the Closing Date; thereafter, the Note Factor will decline to reflect reductions in the Note Balance of such Class of Notes.
Note Owner means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency or a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency).
Note Register and Note Registrar have the respective meanings set forth in Section 2.4 of the Indenture.
Noteholder means, as of any date, the Person in whose name a Note is registered on the Note Register on such date.
Noteholder Direction has the meaning set forth in Section 7.6(a) of the Indenture.
Notes means, collectively, the Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes, the Class A-3 Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes.
Obligor means, for any Receivable, each Person obligated to pay such Receivable.
Officers Certificate means (i) with respect to the Issuer, a certificate signed by any Authorized Officer of the Issuer and (ii) with respect to the Seller or the Servicer, a certificate signed by the chairman of the board, the president, any executive vice president, any vice president, the treasurer, any assistant treasurer or the controller of the Seller or the Servicer, as applicable.
Opinion of Counsel means one or more written opinions of counsel who may, except as otherwise expressly provided in the Indenture or any other applicable Transaction Document, be employees of or counsel to the Issuer, the Servicer, the Seller or the Administrator, and which opinion or opinions comply with any applicable requirements of the Transaction Documents and are in form and substance reasonably satisfactory to the recipient(s). Opinions of Counsel need address matters of law only and may be based upon stated assumptions as to relevant matters of fact.
Optional Purchase has the meaning set forth in Section 8.1 of the Sale and Servicing Agreement.
Optional Purchase Price means, on any Payment Date, the greater of (a) the aggregate Outstanding Principal Balance of the Notes plus accrued and unpaid interest thereon at the applicable Interest Rate up to but excluding that Payment Date (after giving effect to all distributions pursuant to Section 4.4(a) of the Sale and Servicing Agreement on such Payment Date) and (b) the fair market value of the Trust Estate (other than the Reserve Account).
| A-21 | Definitions (2016-1) |
Originator means, with respect to any Receivable, either Santander Consumer, CitiFinancial or HSBC, as applicable, and Originators means, together, Santander Consumer, CitiFinancial and HSBC.
Other Assets means any assets (or interests therein) (other than the Trust Estate) conveyed or purported to be conveyed by the Seller to another Person or Persons other than the Issuer, whether by way of a sale, capital contribution or by virtue of the granting of a lien.
Outstanding means, as of any date, all Notes (or all Notes of an applicable Class) theretofore authenticated and delivered under the Indenture except:
(i) Notes (or Notes of an applicable Class) theretofore cancelled by the Note Registrar or delivered to the Note Registrar for cancellation;
(ii) Notes (or Notes of an applicable Class) or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the related Noteholders (provided, however, that if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to the Indenture or provision therefor, satisfactory to the Indenture Trustee, has been made); and
(iii) Notes (or Notes of an applicable Class) in exchange for or in lieu of other Notes (or Notes of such Class) that have been authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a bona fide purchaser;
provided that in determining whether Noteholders holding the requisite Note Balance have given any request, demand, authorization, direction, notice, consent, vote or waiver hereunder or under any Transaction Document, Notes owned by the Issuer, the Seller, any Certificateholder, the Servicer, the Administrator or any of their respective Affiliates shall be disregarded and deemed not to be Outstanding unless all of the Notes are then owned by the Issuer, the Seller, any Certificateholder, the Servicer, the Administrator or any of their respective Affiliates, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, vote or waiver, only Notes that a Responsible Officer of the Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee thereof establishes to the satisfaction of the Indenture Trustee such pledgees right so to act with respect to such Notes and that such pledgee is not the Issuer, the Seller, any Certificateholder, the Servicer, the Administrator or any of their respective Affiliates.
Owner Trustee means Wilmington Trust, National Association, a national banking association, not in its individual capacity but solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.
Ownership Trigger Event has the meaning set forth in Section 3.14 of the Sale and Servicing Agreement.
| A-22 | Definitions (2016-1) |
Paying Agent means the Indenture Trustee or any other Person that meets the eligibility standards for the Indenture Trustee set forth in Section 6.11 of the Indenture and is authorized by the Issuer to make the payments of principal of or interest on the Notes on behalf of the Issuer.
Payment Date means the 15th day of each calendar month beginning March 15, 2016; provided, however, whenever a Payment Date would otherwise be a day that is not a Business Day, the Payment Date shall be the next Business Day. As used herein, the related Payment Date with respect to a Collection Period shall be deemed to be the Payment Date which immediately follows such Collection Period.
Payment Default has the meaning set forth in Section 5.4(a) of the Indenture.
Percentage Interest means, with respect to a Certificate, the individual percentage interest of such Certificate (calculated as the percentage that the nominal principal amount of such Certificate represents of the aggregate nominal principal balance of all Certificates) which shall be specified on the face thereof and which shall represent the percentage of certain distributions of the Issuer beneficially owned by such Certificateholder. The sum of the Percentage Interests for all of the Certificates shall be 100%.
Permitted Liens means (a) any liens created by the Transaction Documents; (b) any liens for taxes not yet due and payable or the amount of which is being contested in good faith by appropriate proceedings; and (c) any liens of mechanics, suppliers, vendors, materialmen, laborers, employees, repairmen and other like liens securing obligations which are not due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings.
Person means any individual, corporation, limited liability company, estate, partnership, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.
Physical Property has the meaning specified in the definition of Delivery above.
Plan means an employee benefit plan as defined in Section 3(3) of ERISA whether or not subject to Title I of ERISA, a plan as defined in Section 4975 of the Code, or an entity deemed to hold plan assets of any of the foregoing.
Pool Balance means, at any time, the aggregate Principal Balance of the Receivables at such time.
Pool Factor means, for any Payment Date, a six-digit decimal figure, which the Servicer will compute each month, equal to the Pool Balance as of the end of the related Collection Period divided by the aggregate Principal Balance of the Receivables as of the Cut-Off Date. The Pool Factor will be 1.000000 as of the Cut-Off Date; thereafter, the Pool Factor will decline to reflect reductions in the Pool Balance.
Predecessor Note means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; provided,
| A-23 | Definitions (2016-1) |
however, for the purpose of this definition, any Note authenticated and delivered under Section 2.5 of the Indenture in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
Principal Balance means, as of any time, for any Receivable, the principal balance of such Receivable under the terms of the Receivable determined in accordance with the Customary Servicing Practices. The Principal Balance of any Receivable that becomes a Defaulted Receivable will be deemed to be zero as of the date it becomes a Defaulted Receivable.
Proceeding means any suit in equity, action at law or other judicial or administrative proceeding.
Prospectus means the final prospectus dated February 10, 2016 with respect to the Investment Grade Notes.
Purchase Agreement means the Purchase Agreement, dated as of the Closing Date, between Santander Consumer and the Seller, as amended, modified or supplemented from time to time.
Purchased Assets has the meaning set forth in Section 2.1 of the Purchase Agreement.
Qualified Institutional Buyer has the meaning specified in Rule 144A.
Rating Agency means each of Fitch and Moodys.
Rating Agency Condition means, with respect to any event or circumstance and each Rating Agency, either (a) written confirmation (which may be in the form of a letter, a press release or other publication, or a change in such Rating Agencys published ratings criteria to this effect) by such Rating Agency that the occurrence of such event or circumstance will not cause such Rating Agency to downgrade, qualify or withdraw its rating assigned to any of the Notes or (b) that such Rating Agency shall have been given notice of such event or circumstance at least ten days prior to the occurrence of such event or circumstance (or, if ten days advance notice is impracticable, as much advance notice as is practicable and is acceptable to such Rating Agency) and such Rating Agency shall not have issued any written notice that the occurrence of such event or circumstance will itself cause it to downgrade, qualify or withdraw its rating assigned to the Notes. Notwithstanding the foregoing, no Rating Agency has any duty to review any notice given with respect to any event, and it is understood that such Rating Agency may not actually review notices received by it prior to or after the expiration of the ten (10) day period described in (b) above. Further, each Rating Agency retains the right to downgrade, qualify or withdraw its rating assigned to all or any of the Notes at any time in its sole judgment even if the Rating Agency Condition with respect to an event had been previously satisfied pursuant to clause (a) or clause (b) above.
Ratings Trigger Event has the meaning set forth in Section 3.14 of the Sale and Servicing Agreement.
| A-24 | Definitions (2016-1) |
Receivable means any Contract with respect to a new or used automobile, light-duty truck or van which shall appear on the Schedule of Receivables and all Related Security in connection therewith which has not been released from the lien of the Indenture.
Receivable Files has the meaning set forth in Section 2.2(a) of the Sale and Servicing Agreement.
Record Date means, unless otherwise specified in any Transaction Document, with respect to any Payment Date or Redemption Date, (i) for any Definitive Notes and for any Definitive Certificates, the close of business on the last Business Day of the calendar month immediately preceding the calendar month in which such Payment Date or Redemption Date occurs and (ii) for any Book-Entry Notes and for any Book-Entry Certificates, the close of business on the Business Day immediately preceding such Payment Date or Redemption Date.
Records means, for any Receivable, all contracts, books, records and other documents or information (including computer programs, tapes, disks, software and related property and rights, to the extent legally transferable) relating to such Receivable or the related Obligor.
Redemption Date means, in the case of a redemption of the Notes pursuant to Section 10.1 of the Indenture, the Payment Date specified by the Administrator or the Issuer pursuant to Section 10.1 of the Indenture.
Redemption Price means an amount equal to the sum of (a) the unpaid Note Balance of all Notes redeemed, plus (b) accrued and unpaid interest thereon at the applicable Interest Rate for the Notes being so redeemed, up to but excluding the Redemption Date.
Registered Holder means the Person in whose name a Note is registered on the Note Register on the related Record Date.
Regular Allocation of Principal means, with respect to any Payment Date, an amount not less than zero equal to (1) the excess, if any, of (a) the Note Balance of the Notes as of such Payment Date (before giving effect to any principal payments made on the Notes on such Payment Date) over (b) (i) the Pool Balance as of the end of the related Collection Period less (ii) the Targeted Overcollateralization Amount minus (2) the sum of the First Allocation of Principal, the Second Allocation of Principal, the Third Allocation of Principal, the Fourth Allocation of Principal and the Fifth Allocation of Principal for such Payment Date.
Regulation AB means Subpart 229.1100 Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such regulation may be amended from time to time and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518. 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the Commission, or as may be provided in writing by the Commission or its staff from time to time.
Related Security means, for any Receivable, (i) the security interest in the related Financed Vehicle, (ii) any proceeds from claims on any related Insurance Policy or refunds in connection with extended service agreements relating to such Receivable (if such Receivable became a Defaulted Receivable after the Cut-Off Date), (iii) any other property securing such Receivable and (iv) all proceeds of the foregoing.
| A-25 | Definitions (2016-1) |
Relevant Trustee means (i) prior to the payment in full of principal of and interest on the Notes, the Indenture Trustee and (ii) following the payment in full of principal of and interest on the Notes, Wells Fargo Bank, National Association, in its capacity as Certificate Paying Agent; provided, however, that with respect to any property that is under the joint or separate control of a co-trustee or separate trustee under the Trust Agreement or the Indenture, respectively, Relevant Trustee shall refer to either or both of the Certificate Paying Agent and such co-trustee or separate trustee or to either or both of the Indenture Trustee and such co-trustee or separate trustee, as the case may be.
Reportable Event means any event required to be reported on Form 8-K, and in any event, the following:
(a) entry into a material definitive agreement related to the Issuer, the Notes, the Receivables or an amendment to a Transaction Document, even if the Seller is not a party to such agreement (e.g., a servicing agreement with a servicer contemplated by Item 1108(a)(2) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration of the agreement on its stated termination date or as a result of all parties completing their obligations under such agreement), even if the Seller is not a party to such agreement (e.g., a servicing agreement with a servicer contemplated by Item 1108(a)(2) of Regulation AB);
(c) with respect to the Servicer only, the occurrence of a Servicer Replacement Event;
(d) an Event of Default;
(e) the resignation, removal, replacement, or substitution of the Indenture Trustee or the Owner Trustee; and
(f) with respect to the Indenture Trustee only, a required distribution to holders of the Notes is not made as of the required Payment Date under the Indenture.
Representative has the meaning set for the in Section 9.24(e)(iii).
Repurchase Price means, with respect to any Repurchased Receivable, a price equal to the outstanding Principal Balance (calculated without giving effect to the last sentence of the definitions of Defaulted Receivable and Principal Balance) of such Receivable plus any unpaid accrued interest related to such Receivable accrued to and including the end of the Collection Period preceding the date that such Repurchased Receivable was purchased by Santander Consumer or the Servicer, as applicable.
| A-26 | Definitions (2016-1) |
Repurchased Receivable means a Receivable purchased by Santander Consumer pursuant to Section 3.4 of the Purchase Agreement or by the Servicer pursuant to Section 3.6 of the Sale and Servicing Agreement.
Requesting Investor has the meaning set forth in Section 7.5 of the Indenture.
Requesting Party has the meaning set forth in Section 9.24 of the Sale and Servicing Agreement.
Reserve Account means the account designated as such, established and maintained pursuant to Section 4.1 of the Sale and Servicing Agreement.
Reserve Account Draw Amount means, for any Payment Date, an amount equal to the lesser of (a) the Available Funds Shortfall Amount, if any, for such Payment Date and (b) the amount of cash or other immediately available funds on deposit in the Reserve Account (excluding any net investment earnings) on such Payment Date; provided, however, that if such Payment Date is the Redemption Date, the Reserve Account Draw Amount shall mean an amount equal to the amount of cash or other immediately available funds on deposit in the Reserve Account on the Redemption Date.
Reserve Account Excess Amount means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the amount of cash or other immediately available funds in the Reserve Account (excluding any net investment earnings) on that Payment Date, after giving effect to all deposits to and withdrawals from the Reserve Account on such Payment Date, over (b) the Specified Reserve Account Balance with respect to such Payment Date.
Reserve Amount means, for any Payment Date, the amount of cash or other immediately available funds in the Reserve Account on that Payment Date, after giving effect to all deposits to and withdrawals from the Reserve Account on such Payment Date.
Responsible Officer means, (a) with respect to the Indenture Trustee, any officer within the corporate trust department of the Indenture Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Indenture Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such persons knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of the Indenture, (b) with respect to the Owner Trustee, any agent of the Owner Trustee acting under a power of attorney or any officer within the Corporate Trust Office of the Owner Trustee including any vice president, assistant vice president, assistant treasurer, assistant secretary, or any other officer customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of the Issuer, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officers knowledge of and familiarity with the particular subject and (c) with respect to the Servicer, the Administrator or Seller, any officer of such Person having direct responsibility for the transactions contemplated by the Transaction Documents, including the president, treasurer or secretary or any vice president, assistant vice president, assistant treasurer, assistant secretary, or
| A-27 | Definitions (2016-1) |
any other officer customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officers knowledge of and familiarity with the particular subject.
Restricted Notes means any Note for which no Debt-For-Tax Opinion has been rendered on or after the later of (i) the Closing Date and (ii) the most recent date on which such Note was beneficially owned by the Issuer (or the single beneficial owner of the Issuer for United States federal income tax purposes).
Review Notice has the meaning set forth in Section 7.6(b) of the Indenture.
Review Report shall have the meaning assigned to such term in Section 3.07 of the Asset Representations Review Agreement.
Review Satisfaction Date means, with respect to any Asset Review, the first date on which (a) the Delinquency Percentage for any Payment Date exceeds the Delinquency Trigger and (b) a Noteholder Direction with respect to such Asset Review has occurred.
Rule 144A means Rule 144A under the Securities Act and any successor rule thereto.
Rule 144A Information means the information specified pursuant to Rule 144A(d)(4) of the Securities Act (or any successor provision thereto).
Sale and Servicing Agreement means the Sale and Servicing Agreement, dated as of the Closing Date, between the Seller, the Issuer, the Servicer and the Indenture Trustee, as the same may be amended, modified or supplemented from time to time.
Santander Consumer means Santander Consumer USA Inc., an Illinois corporation, and its successors and assigns.
Sarbanes Certification has the meaning set forth in Section 9.21(b)(iii) of the Sale and Servicing Agreement.
Sarbanes-Oxley Act means the Sarbanes-Oxley Act of 2002, as amended, modified or supplemented from time to time, and any successor law thereto.
Schedule of Receivables means the electronic data file of the Receivables transferred to the Issuer on the Closing Date on file with the Servicer.
Second Allocation of Principal means, with respect to any Payment Date, an amount equal to (1) the excess, if any, of (a) the sum of the Class A Note Balance and the Class B Note Balance as of such Payment Date (before giving effect to any principal payments made on the Class A Notes and the Class B Notes on such Payment Date) over (b) the Pool Balance as of the end of the related Collection Period minus (2) the First Allocation of Principal for such Payment Date; provided, however, that the Second Allocation of Principal on and after the Final Scheduled Payment Date for the Class B Notes shall not be less than the amount that is necessary to reduce the outstanding principal amount of the Class B Notes to zero (after the application of the First Allocation of Principal).
| A-28 | Definitions (2016-1) |
Securities Act means the Securities Act of 1933, as amended.
Seller means Santander Drive Auto Receivables LLC, a Delaware limited liability company.
Servicer means Santander Consumer, initially, and any replacement Servicer appointed pursuant to the Sale and Servicing Agreement.
Servicer Replacement Event means any one or more of the following that shall have occurred and be continuing:
(a) any failure by the Servicer to deliver or cause to be delivered any required payment to the Indenture Trustee for distribution to the Noteholders, which failure continues unremedied for five Business Days after discovery thereof by a Responsible Officer of the Servicer or receipt by the Servicer of written notice thereof from the Indenture Trustee or Noteholders evidencing at least 25% of the Note Balance, voting together as a single Class;
(b) any failure by the Servicer to duly observe or perform in any respect any other of its covenants or agreements in the Sale and Servicing Agreement (other than a breach of the covenant set forth in Section 3.14 of the Sale and Servicing Agreement), which failure materially and adversely affects the rights of the Issuer or the Noteholders, and which continues unremedied for 90 days after discovery thereof by a Responsible Officer of the Servicer or receipt by the Servicer of written notice thereof from the Indenture Trustee or Noteholders evidencing at least a majority of the aggregate Note Balance of all Outstanding Notes; provided, that no Servicer Replacement Event will result from the breach by the Servicer of any covenant for which the purchase of the affected Receivable is specified as the sole remedy pursuant to Section 3.6 of the Sale and Servicing Agreement; or
(c) the Servicer suffers a Bankruptcy Event;
provided, however, that (A) if any delay or failure of performance referred to in clause (a) above shall have been caused by force majeure or other similar occurrence, the five Business Day grace period referred to in such clause (a) shall be extended for an additional 60 calendar days and (B) if any delay or failure of performance referred to in clause (b) above shall have been caused by force majeure or other similar occurrence, the 90 day grace period referred to in such clause (b) shall be extended for an additional 60 calendar days. The existence or occurrence of any material instance of noncompliance (within the meaning of Item 1122 of Regulation AB) shall not create any presumption that any event in clauses (a) or (b) above has occurred.
Servicers Certificate means the certificate delivered pursuant to Section 3.8 of the Sale and Servicing Agreement.
Servicing Criteria shall mean the servicing criteria set forth in Item 1122(d) of Regulation AB.
| A-29 | Definitions (2016-1) |
Servicing Fee means, for any Payment Date, the product of (A) one-twelfth, (B) the Servicing Fee Rate and (C) the Pool Balance as of the first day of the related Collection Period (or, in the case of the first Payment Date, as of the Cut-Off Date). The Servicing Fee for the first Payment Date shall be $2,943,087.50.
Servicing Fee Rate means 3.00% per annum.
Similar Law means any federal, state, local or other law that is substantially similar to the fiduciary provisions of ERISA or Section 4975 of the Code.
Simple Interest Method means the method of calculating interest due on a motor vehicle receivable on a daily basis based on the actual outstanding principal balance of the receivable on that date.
Simple Interest Receivable means any motor vehicle receivable pursuant to which the payments due from the Obligors during any month are allocated between interest, principal and other charges based on the actual date on which a payment is received and for which interest is calculated using the Simple Interest Method.
Specified Reserve Account Balance means, for any Payment Date, an amount equal to 2.00% of the Pool Balance as of the Cut-Off Date; provided, however, on any Payment Date after the Notes are no longer Outstanding following payment in full of the principal and interest on the Notes, the Specified Reserve Account Balance shall be $0.
Sponsor means Santander Consumer.
Standard & Poors means Standard & Poors Ratings Services, a Standard & Poors Financial Services LLC business, or any successor that is a nationally recognized statistical rating organization.
Statutory Trust Statute means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq.
Subject Receivables shall have the meaning assigned to such term in the Asset Representations Review Agreement.
Sub-Servicer means any Affiliate of the Servicer or any sub-contractor to whom any or all duties of the Servicer (including, without limitation, its duties as custodian) under the Transaction Documents have been delegated in accordance with Section 6.5 of the Sale and Servicing Agreement.
Supplemental Servicing Fees means any and all (i) late fees, (ii) extension fees, (iii) non-sufficient funds charges and (iv) any and all other administrative fees or similar charges allowed by applicable law with respect to any Receivable.
Targeted Overcollateralization Amount means, for any Payment Date, the greater of (a)(i) for each Payment Date on or prior to the Payment Date on which the Class A-2 Notes are paid in full, 17.00% of the Pool Balance as of the last day of the related Collection Period and
| A-30 | Definitions (2016-1) |
(ii) for each Payment Date after the Payment Date on which the Class A-2 Notes are paid in full, 16.00% of the Pool Balance as of the last day of the related Collection Period and (b) 1.50% of the Pool Balance as of the Cut-Off Date; provided, however, that with respect to any Payment Date after the occurrence of a Cumulative Net Loss Trigger (and regardless of whether the Cumulative Net Loss Ratio for any subsequent Measurement Date does not exceed the level specified as the Trigger in the Cumulative Net Loss Rate Table for that subsequent Measurement Date), Targeted Overcollateralization Amount means the greater of (i) 25.00% of the Pool Balance as of the last day of the related Collection Period and (ii) 1.50% of the Pool Balance as of the Cut-Off Date.
Tax Information means information and/or properly completed and signed tax certifications sufficient to eliminate the imposition of or to determine the amount of any withholding of tax, including FATCA Withholding Tax.
Test Fail shall have the meaning assigned to such term in the Asset Representations Review Agreement.
Third Allocation of Principal means, with respect to any Payment Date, an amount equal to (1) the excess, if any, of (a) the sum of the Class A Note Balance, the Class B Note Balance and the Class C Note Balance as of such Payment Date (before giving effect to any principal payments made on the Class A Notes, the Class B Notes and the Class C Notes on such Payment Date) over (b) the Pool Balance as of the end of the related Collection Period minus (2) the sum of the First Allocation of Principal and the Second Allocation of Principal for such Payment Date; provided, however, that the Third Allocation of Principal on and after the Final Scheduled Payment Date for the Class C Notes shall not be less than the amount that is necessary to reduce the outstanding principal amount of the Class C Notes to zero (after the application of the First Allocation of Principal and the Second Allocation of Principal).
TIA or Trust Indenture Act means the Trust Indenture Act of 1939, as amended and as in force on the date hereof, unless otherwise specifically provided.
Transaction Documents means the Indenture, the Notes, the Depository Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Administration Agreement, the Trust Agreement and the Asset Representations Review Agreement, as the same may be amended or modified from time to time.
Transferred Assets means (a) the Purchased Assets, (b) all of the Sellers rights under the Purchase Agreement, including the representations and warranties of Santander Consumer therein as set forth in Schedule II to the Purchase Agreement and (c) all proceeds of the foregoing.
Trust Account Property means the Trust Accounts, all amounts and investments held from time to time in any Trust Account (whether in the form of deposit accounts, Physical Property, book-entry securities, uncertificated securities or otherwise), and all proceeds of the foregoing.
Trust Accounts means the Collection Account and the Reserve Account.
| A-31 | Definitions (2016-1) |
Trust Agreement means the Amended and Restated Trust Agreement, dated as of the Closing Date, between the Seller and the Owner Trustee, as the same may be amended and supplemented from time to time.
Trust Estate means all money, accounts, chattel paper, general intangibles, goods, instruments, investment property and other property of the Issuer, including without limitation (i) the Receivables acquired by the Issuer under the Sale and Servicing Agreement, the Related Security relating thereto and Collections thereon after the Cut-Off Date, (ii) all Receivable Files, (iii) the rights of the Issuer to the funds on deposit from time to time in the Trust Accounts and any other account or accounts (other than the Certificate Distribution Account) established pursuant to the Indenture or Sale and Servicing Agreement and all cash, investment property and other property from time to time credited thereto and all proceeds thereof (including investment earnings, net of losses and investment expenses, on amounts on deposit therein, other than as provided in Section 3.7 of the Sale and Servicing Agreement), (iv) the rights of the Seller, as buyer, under the Purchase Agreement, (v) the rights of the Issuer under the Sale and Servicing Agreement and the Administration Agreement and (vi) all proceeds of the foregoing.
UCC means, unless the context otherwise requires, the Uniform Commercial Code as in effect in the relevant jurisdiction, as amended from time to time.
Underwriter or Underwriters means, collectively, Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., RBC Capital Markets, LLC, Wells Fargo Securities, LLC and Santander Investment Securities Inc.
Underwriting Agreement means the Underwriting Agreement, dated as of February 10, 2016, among Citigroup Global Markets Inc., on its own behalf and as representative of the several underwriters named therein, Santander Consumer and the Depositor.
United States or USA means the United States of America (including all states, the District of Columbia and political subdivisions thereof).
U.S. Tax Person means a Person that is a U.S. person as defined in Section 7701(a)(30) of the Code, generally including:
(a) a citizen or resident of the United States;
(b) a corporation or partnership organized in or under the laws of the United States, any State or the District of Columbia;
(c) an estate, the income of which is includible in gross income for United States tax purposes, regardless of its source; or
(d) a trust if a U.S. court is able to exercise primary supervision over the administration of the trust and one or more U.S. Persons have the authority to control all substantial decisions of the trust or a trust that has elected to be treated as a U.S. Person.
Verification Documents means, with respect to any Note Owner, a certification from such Note Owner certifying that such Person is in fact, a Note Owner, as well as any additional piece of documentation reasonably satisfactory to the recipient, such as a trade confirmation, account statement, letter from a broker or dealer or other similar document.
| A-32 | Definitions (2016-1) |
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. Unless otherwise inconsistent with the terms of this Agreement, all accounting terms used herein shall be interpreted, and all accounting determinations hereunder shall be made, in accordance with GAAP. Amounts to be calculated hereunder shall be continuously recalculated at the time any information relevant to such calculation changes.
| A-33 | Definitions (2016-1) |
Exhibit 10.3
ADMINISTRATION AGREEMENT
between
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1,
as Issuer,
SANTANDER CONSUMER USA INC.,
as Administrator
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of February 17, 2016
| 2016-1 Administration Agreement |
TABLE OF CONTENTS
| Page | ||||||
| 1. |
Duties of the Administrator | 1 | ||||
| 2. |
Records | 3 | ||||
| 3. |
Compensation; Payment of Fees and Expenses | 3 | ||||
| 4. |
Independence of the Administrator | 3 | ||||
| 5. |
No Joint Venture | 3 | ||||
| 6. |
Other Activities of the Administrator | 4 | ||||
| 7. |
Representations and Warranties of the Administrator | 4 | ||||
| 8. |
Administrator Termination Events; Termination of the Administrator | 5 | ||||
| 9. |
Action upon Termination or Removal | 6 | ||||
| 10. |
Liens | 6 | ||||
| 11. |
Notices | 6 | ||||
| 12. |
Amendments | 7 | ||||
| 13. |
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial | 8 | ||||
| 14. |
Headings | 9 | ||||
| 15. |
Counterparts | 9 | ||||
| 16. |
Entire Agreement | 9 | ||||
| 17. |
Severability of Provisions | 9 | ||||
| 18. |
Not Applicable to Santander Consumer in Other Capacities; Merger of Administrator | 9 | ||||
| 19. |
Benefits of the Administration Agreement | 9 | ||||
| 20. |
Delegation of Duties | 10 | ||||
| 21. |
Assignment | 10 | ||||
| 22. |
Nonpetition Covenant | 10 | ||||
| 23. |
Limitation of Liability | 10 |
| -i- | 2016-1 Administration Agreement |
THIS ADMINISTRATION AGREEMENT (as amended, supplemented or otherwise modified and in effect from time to time, this Agreement) dated as of February 17, 2016, is between SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1, a Delaware statutory trust (the Issuer), SANTANDER CONSUMER USA INC., an Illinois corporation, as administrator (Santander Consumer or the Administrator), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as indenture trustee (the Indenture Trustee). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned such terms in Appendix A to the Sale and Servicing Agreement dated as of February 17, 2016 (the Sale and Servicing Agreement) by and between Santander Drive Auto Receivables LLC, as seller, the Issuer, the Administrator, as servicer, and the Indenture Trustee.
W I T N E S S E T H :
WHEREAS, Santander Drive Auto Receivables LLC (the Seller) and Wilmington Trust, National Association (the Owner Trustee) have entered into the Amended and Restated Trust Agreement dated as of February 17, 2016 (the Trust Agreement).
WHEREAS, the Issuer has issued the Notes pursuant to the Indenture and has entered into certain agreements in connection therewith, including, (i) the Sale and Servicing Agreement, (ii) the Indenture, (iii) the Depository Agreement and (iv) the Trust Agreement (each of the agreements referred to in clauses (i) through (iv) are referred to herein collectively as the Issuer Documents);
WHEREAS, to secure payment of the Notes, the Issuer has pledged the Collateral to the Indenture Trustee pursuant to the Indenture;
WHEREAS, pursuant to the Issuer Documents, the Issuer and the Owner Trustee are required to perform certain duties;
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator administer the affairs of the Issuer and perform certain of the duties of the Issuer and the Owner Trustee (in its capacity as owner trustee under the Trust Agreement), and to provide such additional services consistent with this Agreement and the Issuer Documents as the Issuer may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Issuer Documents. The Administrator shall perform all of its duties as Administrator specifically enumerated herein and in the Issuer
| 2016-1 Administration Agreement |
Documents and administer and perform all of the duties and obligations of the Issuer and the Owner Trustee (in its capacity as owner trustee under the Trust Agreement) under the Issuer Documents and no additional duties shall be read to be included herein; provided, however, that the Administrator shall have no obligation to make any payment required to be made by the Issuer under any Issuer Document; provided, further, that the Administrator shall have no obligation, and the Owner Trustee shall be required to fully perform its duties, with respect to the obligations of the Owner Trustee under Sections 11.9, 11.13, 11.14, and 11.15 of the Trust Agreement and to otherwise comply with the requirements of the Owner Trustee pursuant to or related to Regulation AB. In addition, the Administrator shall consult with the Issuer and the Owner Trustee regarding its duties and obligations under the Issuer Documents. The Administrator shall monitor the performance of the Issuer and the Owner Trustee and shall advise the Issuer and the Owner Trustee when action is necessary to comply with the Issuers and the Owner Trustees duties and obligations under the Issuer Documents. The Administrator shall perform such calculations, and shall prepare for execution by the Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates, notices and opinions as it shall be the duty of the Issuer and the Owner Trustee (in its capacity as owner trustee) to prepare, file or deliver pursuant to the Issuer Documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuer and the Owner Trustee (in its capacity as owner trustee) to take pursuant to the Issuer Documents, and shall prepare, execute, file and deliver on behalf of the Issuer all such documents, reports, filings, instruments, certificates, notices and opinions as it shall be the duty of the Issuer to prepare, execute, file or deliver pursuant to the Issuer Documents or otherwise by law.
(b) Notices to Rating Agencies. The Administrator shall give notice to each Rating Agency of (i) any merger or consolidation of the Owner Trustee pursuant to Section 10.4 of the Trust Agreement; (ii) any merger or consolidation of the Indenture Trustee pursuant to Section 6.9 of the Indenture; (iii) any resignation or removal of the Indenture Trustee pursuant to Section 6.8 of the Indenture; (iv) any Default or Event of Default of which it has been provided notice pursuant to Section 6.5 of the Indenture; (v) the termination of, and/or appointment of a successor to, the Servicer pursuant to Section 7.1 of the Sale and Servicing Agreement; and (vi) any supplemental indenture pursuant to Section 9.1 or 9.2 of the Indenture; which notice shall be given in the case of each of clauses (i) through (vi) promptly upon the Administrator being notified thereof by the Owner Trustee, the Indenture Trustee or the Servicer, as applicable.
(c) No Action by Administrator. Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, take any action that the Issuer directs the Administrator not to take or which would result in a violation or breach of the Issuers covenants, agreements or obligations under any of the Issuer Documents.
(d) Non-Ministerial Matters; Exceptions to Administrator Duties.
(i) Notwithstanding anything to the contrary in this Agreement, with respect to matters that in the reasonable judgment of the Administrator are non-ministerial,
| 2 | 2016-1 Administration Agreement |
the Administrator shall not take any action unless, within a reasonable time before the taking of such action, the Administrator shall have notified the Issuer of the proposed action and the Issuer shall not have withheld consent or provided an alternative direction. For the purpose of the preceding sentence, non-ministerial matters shall include, without limitation:
(A) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, claim or lawsuit brought by or against the Issuer;
(B) the appointment of successor Note Registrars, successor Paying Agents, successor Indenture Trustees, a successor Administrator or successor Servicers, or the consent to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of its obligations under the Indenture; and
(C) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (x) make any payments to the Noteholders under the Transaction Documents, (y) except as provided in the Transaction Documents, sell the Trust Estate or (z) take any other action that the Issuer directs the Administrator not to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection upon reasonable written request by the Issuer, the Seller and the Indenture Trustee at any time during normal business hours.
3. Compensation; Payment of Fees and Expenses. As compensation for the performance of the Administrators obligations under this Agreement, the Administrator shall be entitled to receive $2,500 annually, which shall be solely an obligation of the Servicer; provided, however, notwithstanding the foregoing, such compensation shall in no event exceed the Servicing Fee for the related annual period. The Administrator shall pay all expenses incurred by it in connection with its activities hereunder.
4. Independence of the Administrator. For all purposes of this Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuer with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuer, the Administrator shall have no authority to act for or to represent the Issuer in any way (other than as permitted hereunder) and shall not otherwise be deemed an agent of the Issuer.
5. No Joint Venture. Nothing contained in this Agreement (i) shall constitute the Administrator, the Issuer or the Owner Trustee as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on the Administrator, the Issuer or the Owner Trustee or (iii) shall be deemed to confer on the Administrator, the Issuer or the Owner Trustee any express, implied or apparent authority to incur any obligation or liability on behalf of the other.
| 3 | 2016-1 Administration Agreement |
6. Other Activities of the Administrator. Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity as an Administrator for any other Person even though such Person may engage in business activities similar to those of the Issuer, the Owner Trustee or the Indenture Trustee.
7. Representations and Warranties of the Administrator. The Administrator represents and warrants to the Issuer and the Indenture Trustee as follows:
(a) Existence and Power. The Administrator is a corporation validly existing and in good standing under the laws of its state of organization and has, in all material respects, full power and authority to own its assets and operate its business as presently owned or operated, and to execute, to deliver and to perform its obligations under the Transaction Documents to which it is a party. The Administrator has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Administrator to perform its obligations under the Transaction Documents or affect the enforceability or collectability of the Receivables or any other part of the Collateral.
(b) Authorization and No Contravention. The execution, delivery and performance by the Administrator of the Transaction Documents to which it is a party have been duly authorized by all necessary action on the part of the Administrator and do not contravene or constitute a default under (i) any applicable law, rule or regulation, (ii) its organizational documents or (iii) any material agreement to which the Administrator is a party by which its properties are bound (other than violations of such laws, rules, regulations, organizational documents or agreements which do not affect the legality, validity or enforceability of any of such agreements and which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Administrators ability to perform its obligations under, the Transaction Documents).
(c) No Consent Required. No approval or authorization by, or filing with, any Governmental Authority is required in connection with the execution, delivery and performance by the Administrator of any Transaction Document other than (i) UCC filings, (ii) approvals and authorizations that have previously been obtained and filings that have previously been made and (iii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the enforceability or collectability of the Receivables or any other part of the Collateral or would not materially and adversely affect the ability of the Administrator to perform its obligations under the Transaction Documents.
(d) Binding Effect. Each Transaction Document to which the Administrator is a party constitutes the legal, valid and binding obligation of the Administrator enforceable against the Administrator in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting the enforcement of creditors rights generally and, if applicable, the rights of creditors of corporations from time to time in effect or by general principles of equity.
| 4 | 2016-1 Administration Agreement |
8. Administrator Termination Events; Termination of the Administrator.
(a) Subject to clause (d) below, the Administrator may resign its duties hereunder by providing the Issuer with at least sixty (60) days prior written notice.
(b) Subject to Section 3.15 of the Indenture, the Issuer may remove the Administrator without cause by providing the Administrator with at least sixty (60) days prior written notice.
(c) The occurrence of any one of the following events (each, an Administrator Termination Event) shall also entitle the Issuer, subject to Section 21 hereof, to terminate and replace the Administrator:
(i) any failure by the Administrator to deliver or cause to be delivered any required payment to the Indenture Trustee for distribution to the Noteholders, which failure continues unremedied for five Business Days after discovery thereof by a Responsible Officer of the Administrator or receipt by the Administrator of written notice thereof from the Indenture Trustee or Noteholders evidencing at least 25% of the Note Balance of the Outstanding Notes, voting together as a single class;
(ii) any failure by the Administrator to duly observe or perform in any respect any other of its covenants or agreements in this Agreement, which failure materially and adversely affects the rights of the Issuer or the Noteholders, and which continues unremedied for 90 days after discovery thereof by a Responsible Officer of the Administrator or receipt by the Administrator of written notice thereof from the Indenture Trustee or Noteholders evidencing a majority of the aggregate principal amount of the Outstanding Notes, voting together as a single class; or
(iii) the Administrator suffers a Bankruptcy Event;
provided, however, that (A) if any delay or failure of performance referred to under clause (c)(i) above shall have been caused by force majeure or other similar occurrence, the five Business Day grace period referred to in such clause (c)(i) shall be extended for an additional 60 calendar days and (B) if any delay or failure of performance referred to under clause (c)(ii) above shall have been caused by force majeure or other similar occurrence, the 90 day grace period referred to in such clause (c)(ii) shall be extended for an additional 60 calendar days. The existence or occurrence of any material instance of noncompliance (within the meaning of Item 1122 of Regulation AB) shall not create any presumption that any event in clause (i) or (ii) above has occurred.
(d) If an Administrator Termination Event shall have occurred, the Issuer may, subject to Section 21 hereof, by notice given to the Administrator and the Owner Trustee, terminate all or a portion of the rights and powers of the Administrator under this Agreement, including the rights of the Administrator to receive the annual fee for services hereunder for all periods following such termination; provided, however that such termination shall not become effective until such time as the Issuer, subject to
| 5 | 2016-1 Administration Agreement |
Section 21 hereof, shall have appointed a successor Administrator in the manner set forth below. Upon any such termination or upon a resignation of the Administrator in accordance with Section 8(a) hereof, all rights, powers, duties and responsibilities of the Administrator under this Agreement shall vest in and be assumed by any successor Administrator appointed by the Issuer, subject to Section 21 hereof, pursuant to a management agreement between the Issuer and such successor Administrator, containing substantially the same provisions as this Agreement (including with respect to the compensation of such successor Administrator), and the successor Administrator is hereby irrevocably authorized and empowered to execute and deliver, on behalf of the Administrator, as attorney-in-fact or otherwise, all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect such vesting and assumption. Further, in such event, the Administrator shall use its commercially reasonable efforts to effect the orderly and efficient transfer of the administration of the Issuer to the new Administrator. No resignation or removal of the Administrator shall be effective until a successor Administrator shall have been appointed by the Issuer.
(e) The Issuer, subject to Section 21 hereof, may waive in writing any Administrator Termination Event by the Administrator in the performance of its obligations hereunder and its consequences. Upon any such waiver of a past Administrator Termination Event, such Administrator Termination Event shall cease to exist, and any Administrator Termination Event arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other Administrator Termination Event or impair any right consequent thereon.
9. Action upon Termination or Removal. Promptly upon the effective date of termination of this Agreement pursuant to Section 8, or the removal or resignation of the Administrator pursuant to Section 8, the Administrator shall be entitled to be paid by the Servicer all fees accruing to it to the date of such termination or removal.
10. Liens. The Administrator will not directly or indirectly create, suffer or allow to exist any Lien on the Collateral other than Permitted Liens.
11. Notices. All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first class United States mail, postage prepaid, hand delivery, prepaid courier service, or by facsimile or by electronic transmission, and addressed in each case as specified on Schedule I to the Sale and Servicing Agreement or at such other address as shall be designated by any of the specified addressees in a written notice to the other parties hereto. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder.
| 6 | 2016-1 Administration Agreement |
12. Amendments.
(a) Any term or provision of this Agreement may be amended by the Administrator without the consent of the Indenture Trustee, any Noteholder, the Issuer, the Owner Trustee or any other Person subject to the satisfaction of one of the following conditions:
(i) the Administrator delivers an Opinion of Counsel to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders; or
(ii) the Rating Agency Condition is satisfied with respect to such amendment and the Administrator notifies the Indenture Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) This Agreement may also be amended from time to time by the Issuer, the Administrator and the Indenture Trustee, with the consent of the Holders of Notes evidencing not less than a majority of the aggregate principal amount of the Controlling Class, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders. It will not be necessary for the consent of Noteholders to approve the particular form of any proposed amendment or consent, but it will be sufficient if such consent approves the substance thereof. The manner of obtaining such consents (and any other consents of Noteholders provided for in this Agreement) and of evidencing the authorization of the execution thereof by Noteholders will be subject to such reasonable requirements as the Indenture Trustee may prescribe, including the establishment of record dates pursuant to the Depository Agreement.
(c) Any term or provision of this Agreement may also be amended from time to time by the Administrator for the purpose of conforming the terms of this Agreement to the description thereof in the Prospectus or, to the extent not contrary to the Prospectus, to the description thereof in an offering memorandum with respect to the Non-Investment Grade Notes or the Certificates without the consent of the Indenture Trustee, any Noteholder, the Issuer, the Owner Trustee or any other Person, provided, however, the Administrator shall provide written notification of the substance of such amendment to the Issuer, the Owner Trustee and the Indenture Trustee and promptly after the execution of any such amendment, the Administrator shall furnish a copy of such amendment to the Issuer, the Owner Trustee and the Indenture Trustee.
(d) Prior to the execution of any amendment pursuant to this Section 12, the Administrator shall provide written notification of the substance of such amendment to each Rating Agency and the Owner Trustee; and promptly after the execution of any such amendment, the Administrator shall furnish a copy of such amendment to each Rating Agency, the Owner Trustee and the Indenture Trustee; provided, that no amendment pursuant to this Section 12 shall be effective which affects the rights, protections or duties of the Indenture Trustee or the Owner Trustee without the prior written consent of such Person (which consent shall not be unreasonably withheld or delayed).
(e) Prior to the execution of any amendment to this Agreement, the Owner Trustee and the Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or
| 7 | 2016-1 Administration Agreement |
permitted by this Agreement and that all conditions precedent to the execution and delivery of such amendment have been satisfied. The Owner Trustee and the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which adversely affects the Owner Trustees or the Indenture Trustees, as applicable, own rights, duties or immunities under this Agreement.
(f) Notwithstanding subsections (a) and (b) of this Section 12, this Agreement may only be amended by the Administrator if (i) the Majority Certificateholders consent to such amendment or (ii) such amendment shall not, as evidenced by an Officers Certificate of the Administrator or an Opinion of Counsel delivered to the Indenture Trustee and the Owner Trustee, materially and adversely affect the interests of the Certificateholders.
13. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAWS, OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Each of the parties hereto hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or proceeding relating to this Agreement or any documents executed and delivered in connection herewith, or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought and maintained in such courts and waives any objection that it may now or hereafter have to the venue of such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at its address determined in accordance with Section 11 of this Agreement;
(iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(v) to the extent permitted by applicable law, each party hereto irrevocably waives all right of trial by jury in any action, proceeding or counterclaim based on, or arising out of, under or in connection with this Agreement, any other Transaction Document, or any matter arising hereunder or thereunder.
| 8 | 2016-1 Administration Agreement |
14. Headings. The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.
16. Entire Agreement. The Transaction Documents contain a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral and written understandings. There are no unwritten agreements among the parties with respect to the transactions described in the Transactions Documents.
17. 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.
18. Not Applicable to Santander Consumer in Other Capacities; Merger of Administrator.
(a) Nothing in this Agreement shall affect any obligation Santander Consumer may have in any other capacity.
(b) Any entity (i) into which the Administrator may be merged or converted or with which it may be consolidated, to which it may sell or transfer its business and assets as a whole or substantially as a whole or any entity resulting from any merger, sale, transfer, conversion or consolidation to which the Administrator shall be a party, or any entity succeeding to the business of the Administrator or (ii) more than 50% of the voting stock or voting power and 50% or more of the economic equity of which is owned directly or indirectly by Banco Santander, S.A. and which executes an agreement of assumption to perform every obligation of the Administrator under this Agreement, shall be the successor to the Administrator under this Agreement, in each case, without the execution or filing of any paper of any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
19. Benefits of the Administration Agreement. Nothing in this Agreement, expressed or implied, shall give to any Person other than the parties hereto and their successors hereunder, the Owner Trustee, any separate trustee or co-trustee appointed under Section 6.10 of the
| 9 | 2016-1 Administration Agreement |
Indenture and the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Agreement. For the avoidance of doubt, the Owner Trustee is a third party beneficiary of this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto.
20. Delegation of Duties. The Administrator may, at any time without notice or consent, delegate (a) any or all of its duties under the Transaction Documents to any of its Affiliates or (b) specific duties to sub-contractors or other professional services firms (including accountants, outside legal counsel or similar concerns) who are in the business of performing such duties; provided, that no such delegation shall relieve the Administrator of its responsibility with respect to such duties and the Administrator shall remain obligated hereunder as if the Administrator alone were performing such duties.
21. Assignment. Each party hereto hereby acknowledges and consents to the mortgage, pledge, assignment and grant of a security interest by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders of all of the Issuers rights under this Agreement. In addition, the Administrator hereby acknowledges and agrees that for so long as any Notes are outstanding, the Indenture Trustee will have the right to exercise all waivers and consents, rights, remedies, powers, privileges and claims of the Issuer under this Agreement in the event the Issuer shall fail to exercise the same.
22. Nonpetition Covenant. Each party hereto agrees that, prior to the date which is one year and one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy Remote Party to commence a voluntary winding-up or other voluntary case or other Proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial part of its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other Proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the benefit of, its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such party shall not commence, join with any other Person in commencing or institute with any other Person, any Proceeding against such Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction.
23. Limitation of Liability. It is expressly understood and agreed by the parties that (a) this document is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, pursuant to the Trust Agreement, (b) each of the representations, warranties, covenants, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, warranties, covenants undertakings and agreements by Wilmington Trust, National Association but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or
| 10 | 2016-1 Administration Agreement |
personally, 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 Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer.
[SIGNATURES ON NEXT PAGE]
| 11 | 2016-1 Administration Agreement |
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written.
| SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1 | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: |
| |
| Name: | ||
| Title: |
| S-1 | 2016-1 Administration Agreement |
| SANTANDER CONSUMER USA INC., as Administrator | ||
| By: |
| |
| Name: | ||
| Title: |
| S-2 | 2016-1 Administration Agreement |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee | ||
| By: |
| |
| Name: | ||
| Title: |
| S-3 | 2016-1 Administration Agreement |
Joinder of Servicer:
SANTANDER CONSUMER USA INC., as Servicer, joins in this Agreement solely for purposes of Section 3.
| SANTANDER CONSUMER USA INC., as Servicer | ||
| By: |
| |
| Name: |
||
| Title: |
| S-4 | 2016-1 Administration Agreement |
Exhibit 10.4
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1
AMENDED AND RESTATED
TRUST AGREEMENT
between
SANTANDER DRIVE AUTO RECEIVABLES LLC,
as the Seller
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as the Owner Trustee
Dated as of February 17, 2016
| Amended and Restated Trust Agreement (2016-1) |
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS |
1 | |||||
| SECTION 1.1. |
Capitalized Terms | 1 | ||||
| SECTION 1.2. |
Other Interpretive Provisions | 1 | ||||
| ARTICLE II ORGANIZATION |
2 | |||||
| SECTION 2.1. |
Name | 2 | ||||
| SECTION 2.2. |
Office | 2 | ||||
| SECTION 2.3. |
Purposes and Powers | 2 | ||||
| SECTION 2.4. |
Appointment of the Owner Trustee | 3 | ||||
| SECTION 2.5. |
Initial Capital Contribution of Trust Estate | 3 | ||||
| SECTION 2.6. |
Declaration of Trust | 3 | ||||
| SECTION 2.7. |
Organizational Expenses; Liabilities of the Holders | 4 | ||||
| SECTION 2.8. |
Title to the Trust Estate | 4 | ||||
| SECTION 2.9. |
Representations and Warranties of the Seller | 4 | ||||
| SECTION 2.10. |
Situs of Issuer | 5 | ||||
| SECTION 2.11. |
Covenants of the Certificateholders | 5 | ||||
| SECTION 2.12. |
Federal Income Tax Allocations | 5 | ||||
| ARTICLE III CERTIFICATES AND TRANSFER OF CERTIFICATES |
6 | |||||
| SECTION 3.1. |
Initial Ownership | 6 | ||||
| SECTION 3.2. |
Authorization of the Certificates | 6 | ||||
| SECTION 3.3. |
Book-Entry Certificates | 6 | ||||
| SECTION 3.4. |
Notices to Clearing Agency | 8 | ||||
| SECTION 3.5. |
Definitive Certificates | 8 | ||||
| SECTION 3.6. |
Registration of the Certificates | 9 | ||||
| SECTION 3.7. |
Transfer of the Certificates | 10 | ||||
| SECTION 3.8. |
Appointment of the Certificate Paying Agent | 16 | ||||
| SECTION 3.9. |
Maintenance of Office or Agency | 17 | ||||
| SECTION 3.10. |
Relevant Trustee | 17 | ||||
| SECTION 3.11. |
Statement to Certificateholders | 18 | ||||
| ARTICLE IV ACTIONS BY OWNER TRUSTEE |
18 | |||||
| SECTION 4.1. |
Prior Notice to Certificateholders with Respect to Certain Matters | 18 | ||||
| SECTION 4.2. |
Action by Certificateholders with Respect to Certain Matters | 19 | ||||
| SECTION 4.3. |
Action by Certificateholders with Respect to Bankruptcy | 19 | ||||
| SECTION 4.4. |
Restrictions on Certificateholders Power | 20 | ||||
| SECTION 4.5. |
Acts of Certificateholders; Majority Control | 20 | ||||
| ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES |
21 | |||||
| SECTION 5.1. |
Application of Trust Funds | 21 |
-i-
TABLE OF CONTENTS
(continued)
| Page | ||||||
| SECTION 5.2. |
Method of Payment | 21 | ||||
| SECTION 5.3. |
Reports by Owner Trustee to Certificateholders | 21 | ||||
| SECTION 5.4. |
Certificate Distribution Account | 22 | ||||
| SECTION 5.5. |
Withholding | 23 | ||||
| SECTION 5.6. |
Preservation of Information; Communications to Certificateholders | 24 | ||||
| SECTION 5.7. |
Rule 144A Information | 24 | ||||
| ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE |
24 | |||||
| SECTION 6.1. |
General Authority | 24 | ||||
| SECTION 6.2. |
General Duties | 25 | ||||
| SECTION 6.3. |
Action upon Instruction | 25 | ||||
| SECTION 6.4. |
No Duties Except as Specified in this Agreement or in Instructions | 26 | ||||
| SECTION 6.5. |
No Action Except under Specified Documents or Instructions | 27 | ||||
| SECTION 6.6. |
Restrictions | 27 | ||||
| ARTICLE VII CONCERNING OWNER TRUSTEE |
27 | |||||
| SECTION 7.1. |
Acceptance of Trusts and Duties | 27 | ||||
| SECTION 7.2. |
Furnishing of Documents | 29 | ||||
| SECTION 7.3. |
Notice of Events of Default and Servicer Replacement Event | 29 | ||||
| SECTION 7.4. |
Representations and Warranties | 29 | ||||
| SECTION 7.5. |
Reliance; Advice of Counsel | 30 | ||||
| SECTION 7.6. |
Not Acting in Individual Capacity | 31 | ||||
| SECTION 7.7. |
The Owner Trustee May Own Notes | 31 | ||||
| SECTION 7.8. |
Compliance with Patriot Act | 31 | ||||
| ARTICLE VIII COMPENSATION OF OWNER TRUSTEE |
31 | |||||
| SECTION 8.1. |
The Owner Trustees Compensation | 31 | ||||
| SECTION 8.2. |
Indemnification | 32 | ||||
| SECTION 8.3. |
Payments to the Owner Trustee | 32 | ||||
| ARTICLE IX TERMINATION OF TRUST AGREEMENT |
32 | |||||
| SECTION 9.1. |
Dissolution of Issuer | 32 | ||||
| SECTION 9.2. |
Termination of Trust Agreement | 33 | ||||
| SECTION 9.3. |
Limitations on Termination | 33 | ||||
| ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES |
34 | |||||
| SECTION 10.1. |
Eligibility Requirements for the Owner Trustee | 34 | ||||
| SECTION 10.2. |
Resignation or Removal of the Owner Trustee | 34 |
-ii-
TABLE OF CONTENTS
(continued)
| Page | ||||||
| SECTION 10.3. |
Successor Owner Trustee | 35 | ||||
| SECTION 10.4. |
Merger or Consolidation of the Owner Trustee | 35 | ||||
| SECTION 10.5. |
Appointment of Co-Trustee or Separate Trustee | 36 | ||||
| ARTICLE XI MISCELLANEOUS |
37 | |||||
| SECTION 11.1. |
Amendments | 37 | ||||
| SECTION 11.2. |
No Legal Title to Trust Estate in Certificateholders | 38 | ||||
| SECTION 11.3. |
Limitations on Rights of Others | 38 | ||||
| SECTION 11.4. |
Notices | 39 | ||||
| SECTION 11.5. |
Severability | 39 | ||||
| SECTION 11.6. |
Separate Counterparts | 39 | ||||
| SECTION 11.7. |
Successors and Assigns | 39 | ||||
| SECTION 11.8. |
No Petition | 39 | ||||
| SECTION 11.9. |
Information Request | 40 | ||||
| SECTION 11.10. |
Headings | 40 | ||||
| SECTION 11.11. |
GOVERNING LAW | 40 | ||||
| SECTION 11.12. |
Submission to Jurisdiction; Waiver of Jury Trial | 41 | ||||
| SECTION 11.13. |
Form 10-D and Form 10-K Filings | 41 | ||||
| SECTION 11.14. |
Form 8-K Filings | 41 | ||||
| SECTION 11.15. |
Information to Be Provided by the Owner Trustee | 41 | ||||
| SECTION 11.16. |
Third-Party Beneficiaries | 41 |
Exhibit A Form of Certificate
Exhibit B Form of Certificate Investor Representation Letter
Exhibit C Form of Registration of Certificate Transfer Direction Letter
-iii-
This AMENDED AND RESTATED TRUST AGREEMENT is made as of February 17, 2016 (as amended, supplemented or otherwise modified and in effect from time to time, this Agreement or this Trust Agreement) between SANTANDER DRIVE AUTO RECEIVABLES LLC, a Delaware limited liability company, as the Seller (the Seller), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as the owner trustee (Wilmington Trust and in such capacity the Owner Trustee).
RECITALS
WHEREAS, the Seller and the Owner Trustee entered into that certain Trust Agreement dated as of January 14, 2016 (the Original Trust Agreement) and filed a certificate of trust with the Secretary of State of the State of Delaware, pursuant to which the Issuer (as defined below) was created; and
WHEREAS, in connection with the issuance of the Notes, the parties have agreed to amend and restate the Original Trust Agreement;
NOW THEREFORE, IN CONSIDERATION of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Unless otherwise indicated, capitalized terms used in this Agreement are defined in Appendix A to the Sale and Servicing Agreement dated as of the date hereof (as from time to time amended, supplemented or otherwise modified and in effect, the Sale and Servicing Agreement) between the Issuer, the Seller, the Servicer, and Wells Fargo Bank, National Association, as Indenture Trustee.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Agreement and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under GAAP (provided, that, to the extent that the definitions in this Agreement and GAAP conflict, the definitions in this Agreement shall control); (b) terms defined in Article 9 of the UCC as in effect in the State of Delaware and not otherwise defined in this Agreement are used as defined in that Article; (c) the words hereof, herein and hereunder and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to any Article, Section, Schedule or Exhibit are references to Articles, Sections, Schedules and Exhibits in or to this Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term including and all variations thereof means including without limitation; (f) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; and (g) references to any Person include that Persons successors and assigns.
| Amended and Restated Trust Agreement (2016-1) |
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The trust created under the Original Trust Agreement shall be known as Santander Drive Auto Receivables Trust 2016-1 (the Issuer), in which name the Owner Trustee, the Administrator or the Servicer (to the extent set forth in the Transaction Documents) may conduct the business of such trust, make and execute contracts and other instruments on behalf of such trust and sue and be sued.
SECTION 2.2. Office. The office of the Issuer shall be in care of the Owner Trustee at the Corporate Trust Office or at such other address as the Owner Trustee may designate by written notice to the Certificateholders, the Seller and the Administrator.
SECTION 2.3. Purposes and Powers. The purpose of the Issuer is, and the Issuer shall have the power and authority, to engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates pursuant to this Agreement, and to sell, transfer and exchange the Notes and the Certificates and to pay interest on and principal of the Notes and make distributions to the Certificateholders;
(b) to acquire the property and assets set forth in the Sale and Servicing Agreement from the Seller pursuant to the terms thereof, to make deposits to and withdrawals from the Collection Account and the Reserve Account and to pay the organizational, start-up and transactional expenses of the Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust Estate pursuant to the Indenture and to hold, manage and distribute to the Certificateholders any portion of the Trust Estate released from the lien of, and remitted to the Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Transaction Documents to which it is a party;
(e) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith, including entering into an accession agreement; and
(f) subject to compliance with the Transaction Documents, to engage in such other activities as may be required in connection with conservation of the Trust Estate and the making of distributions to the Certificateholders and payments to the Noteholders.
| 2 | Amended and Restated Trust Agreement (2016-1) |
Each of the Owner Trustee and the Administrator, as applicable, is hereby authorized to engage in the foregoing activities on behalf of the Issuer. Neither the Issuer nor any Person acting on behalf of the Issuer shall engage in any activity other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the other Transaction Documents.
SECTION 2.4. Appointment of the Owner Trustee. The Seller hereby appoints the Owner Trustee as trustee of the Issuer effective as of the date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. As of the date of the Original Trust Agreement, the Seller sold, assigned, transferred, conveyed and set over to the Owner Trustee the sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the Seller, as of such date, of the foregoing contribution, which shall constitute the initial Trust Estate and shall be deposited in the Collection Account.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that it will hold the Trust Estate in trust upon and subject to the conditions set forth herein for the use and benefit of the Certificateholders, subject to the obligations of the Issuer under the Transaction Documents. It is the intention of the parties hereto that the Issuer constitute a statutory trust under the Statutory Trust Statute and that this Agreement constitute the governing instrument of such statutory trust. It is the intention of the parties hereto that, solely for federal income or state and local income, franchise and value added tax purposes, so long as there is a single beneficial owner of the Certificates, the Issuer will be disregarded as an entity separate from such beneficial owner and the Notes will be characterized as debt. The parties agree that, unless otherwise required by appropriate tax authorities, the Issuer will not file or cause to be filed annual or other necessary returns, reports and other forms consistent with the characterization of the Issuer as an entity separate from its owner. In the event that the Issuer is deemed to have more than one beneficial owner for federal income tax purposes, the Issuer will file returns, reports and other forms consistent with the characterization of the Issuer as a partnership (that is not treated as a publicly traded partnership), and this Agreement may be amended to include such provisions as may be required under Subchapter K of the Internal Revenue Code of 1986, as amended. Effective as of the date hereof, the Owner Trustee shall have all rights, powers and duties set forth herein and, to the extent not inconsistent herewith, in the Statutory Trust Statute with respect to accomplishing the purposes of the Issuer. It is the intention of the parties hereto that except as expressly stated herein, the affairs of the Trust shall be managed by the Administrator pursuant to the Administration Agreement. The Owner Trustee has heretofore filed the Certificate of Trust with the Secretary of State of the State of Delaware as required by Section 3810(a) of the Statutory Trust Statute, such filing hereby being ratified and approved in all respects. Notwithstanding anything herein or in the Statutory Trust Statute to the contrary, it is the intention of the parties hereto that the Issuer constitute a business trust within the meaning of Section 101(9)(A)(v) of the Bankruptcy Code.
| 3 | Amended and Restated Trust Agreement (2016-1) |
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.
(a) The Servicer shall pay organizational expenses of the Issuer as they may arise.
(b) No Certificateholder (including the Seller if the Seller becomes a Certificateholder) shall have any personal liability for any liability or obligation of the Issuer.
SECTION 2.8. Title to the Trust Estate. Legal title to all the Trust Estate shall be vested at all times in the Issuer as a separate legal entity.
SECTION 2.9. Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) Existence and Power. The Seller is a Delaware limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, full power and authority required to own its assets and operate its business as presently owned or operated, and to execute, to deliver and to perform its obligations under the Transaction Documents to which it is a party and the Underwriting Agreement. The Seller has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents and the Underwriting Agreement.
(b) Authorization and No Contravention. The execution, delivery and performance by the Seller of each Transaction Document to which it is a party and the Underwriting Agreement (i) have been duly authorized by all necessary action on the part of the Seller and (ii) do not violate or constitute a default under (A) any applicable law, rule or regulation, (B) its organizational instruments or (C) any material agreement or instrument to which the Seller is a party or by which its properties are bound (other than violations of such laws, rules, regulations, organizational instruments, agreements or instruments which do not affect the legality, validity or enforceability of any of such agreements and which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Sellers ability to perform its obligations under, the Transaction Documents to which it is a party or the Underwriting Agreement).
(c) No Consent Required. No approval, authorization or other action by, or filing with, any Governmental Authority is required in connection with the execution, delivery and performance by the Seller of any Transaction Document other than UCC filings and other than (i) approvals and authorizations that have previously been obtained and filings which have previously been made and (ii) approvals, authorizations or filings which, if not obtained or made, would not have a material adverse effect on the ability of the Seller to perform its obligations under the Underwriting Agreement or the Transaction Documents to which it is a party.
| 4 | Amended and Restated Trust Agreement (2016-1) |
(d) Binding Effect. Each of the Transaction Documents to which the Seller is a party and the Underwriting Agreement constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting creditors rights generally and, if applicable the rights of creditors of limited liability companies from time to time in effect or by general principles of equity or other similar laws of general application relating to or affecting the enforcement of creditors rights generally and subject to general principles of equity.
(e) No Proceedings. There are no actions, orders, suits or proceedings pending or, to the knowledge of the Seller, threatened against the Seller before or by any Governmental Authority that (i) assert the invalidity or unenforceability of this Agreement or any of the other Transaction Documents, (ii) seek to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or any of the other Transaction Documents or (iii) seek any determination or ruling that would materially and adversely affect the performance by the Seller of its obligations under this Agreement or any of the other Transaction Documents.
(f) To the best of the Sellers knowledge, as of the date hereof, no amounts are required to be deducted or withheld pursuant to FATCA with respect to payments to be made to the Certificateholders hereunder or under the Sale and Servicing Agreement. If the Seller has actual knowledge that withholding tax under FATCA applies with respect to one or more payments on a Certificate, the Seller will notify the Owner Trustee, the Indenture Trustee and the Certificate Paying Agent of such fact.
SECTION 2.10. Situs of Issuer. The Issuer shall be located in the State of Delaware (it being understood that the Issuer may have bank accounts located and maintained outside of Delaware).
SECTION 2.11. Covenants of the Certificateholders. Each Certificateholder, by becoming an owner of a Certificate and beneficial owner of the Issuer, hereby acknowledges and agrees (a) that the Certificateholder is subject to the terms, provisions and conditions of the Certificate, to which the Certificateholder agrees to be bound; and (b) that it shall not take any position in such Certificateholders tax returns inconsistent with Section 2.6 herein and Section 2.14 of the Indenture.
SECTION 2.12. Federal Income Tax Allocations. If the Certificates have more than one beneficial owner for federal income tax purposes, for federal income tax purposes each item of income, gain, loss, credit and deduction for a month shall be allocated to the Certificateholders as of the first Record Date following the end of such month in proportion to their Percentage Interests on such Record Date. The Seller (or the Administrator in accordance with the Administration Agreement and Section 5.3) is authorized, in its sole discretion, (i) to modify the allocations in this paragraph if necessary or appropriate for the allocations to fairly reflect the economic income, gain or loss to the Certificateholders or otherwise comply with the requirements of the Code and (ii) to determine whether or not to make any available tax elections such as an election under Section 1278 or 754 of the Code.
| 5 | Amended and Restated Trust Agreement (2016-1) |
ARTICLE III
CERTIFICATES AND TRANSFER OF CERTIFICATES
SECTION 3.1. Initial Ownership. Upon the formation of the Issuer and until the issuance of the Certificates, the Seller shall be the sole beneficiary of the Issuer, and upon the issuance of the Certificate, the Seller will no longer be a beneficiary of the Issuer, except to the extent that the Seller is a Certificateholder.
SECTION 3.2. Authorization of the Certificates. Concurrently with the sale of the Transferred Assets to the Issuer pursuant to the Sale and Servicing Agreement, at the direction of the Seller, (a) a single Book-Entry Certificate shall be executed by the Owner Trustee on behalf of the Issuer and authenticated and delivered by the Certificate Registrar in the name of Cede & Co. or (b) a single Definitive Certificate shall be executed by the Owner Trustee on behalf of the Issuer and authenticated and delivered by the Certificate Registrar to or upon the written order of the Seller. The Certificate shall represent 100% of the Percentage Interest in the Issuer and shall be fully paid and nonassessable.
SECTION 3.3. Book-Entry Certificates.
(a) The Certificate, upon original issuance, may be issued, substantially in the form of Exhibit A hereto, representing the Certificate to be delivered to the Certificate Registrar, as initial agent for the Clearing Agency, by, or on behalf of, the Issuer. The Book-Entry Certificate shall be issued in an aggregate nominal principal amount of $100,000 (which shall be deemed to be the equivalent of 100,000 units), and all beneficial interests in the Book-Entry Certificate shall be owned, in the minimum principal amount of $5,000 and integral multiples of $1 in excess thereof. The Issuer shall not issue any Certificate that would cause the aggregate nominal principal amount of all Certificates to exceed $100,000, or 100,000 units, without the prior written consent of all Certificateholders. No distributions of moneys to the Certificateholders under the Transaction Documents shall be deemed to reduce the nominal principal amount of any Certificate prior to payment in full of all Notes; provided, however, that the final aggregate $100,000 distributed to the Certificateholders under the Transaction Documents upon final distribution of the Trust Estate and termination of the Issuer pursuant to Sections 9.1 and 9.2 shall be deemed to repay the aggregate nominal principal amount of the Certificates in full; provided, further, that any failure to pay in full the nominal principal amount of a Certificate on such final distribution date shall not result in any recourse to, claim against or liability of any Person for such shortfall. Any amounts payable to the Certificateholders on or in respect of the Certificates under the Transaction Documents shall be paid and allocated to the various Certificateholders ratably based on their respective Percentage Interests. Unless the Seller directs otherwise pursuant to Section 3.2, such Certificates shall initially be registered on the Certificate Register in the name of Cede & Co., the nominee of DTC as the initial
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Clearing Agency, and no Certificateholder will receive a Definitive Certificate representing such Certificateholders interest in such Certificate, except as provided in Section 3.5. Unless and until definitive, fully registered Certificates (the Definitive Certificates) have been issued to the applicable Certificateholders pursuant to Section 3.2 or 3.5:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Certificate Registrar, the Certificate Paying Agent, the Indenture Trustee and the Owner Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Agreement (including the payment of amounts payable under the Transaction Documents and the giving of instructions or directions hereunder) as the sole Certificateholders, and shall have no obligation to the Certificate Owners;
(iii) to the extent that the provisions of this Section conflict with any other provisions of this Agreement, the provisions of this Section shall control;
(iv) the rights of Certificate Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between or among such Certificate Owners and the Clearing Agency and/or the Clearing Agency Participants or Persons acting through Clearing Agency Participants. Pursuant to the Depository Agreement, unless and until Definitive Certificates are issued pursuant to Section 3.5, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments due under the Transaction Documents with regard to the Certificates to such Clearing Agency Participants;
(v) whenever this Agreement requires or permits actions to be taken based upon instructions or directions of Certificateholders evidencing a specified percentage of the Percentage Interest, the Clearing Agency shall deliver instructions to the Owner Trustee only to the extent that it has received instructions to such effect from Certificate Owners and/or Clearing Agency Participants or Persons acting through Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Certificates;
(vi) owners of a beneficial interest in a Book-Entry Certificate will not be entitled to have any portion of a Book-Entry Certificate registered in their names and will not be considered to be the Certificate Owners or Certificateholders of any Certificates under this Agreement; and
(vii) payments on a Book-Entry Certificate will be made to the Clearing Agency, or its nominee, as the registered owner thereof, and none
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of the Issuer, the Owner Trustee, the Indenture Trustee or the Certificate Paying Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Book-Entry Certificate or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
(b) Notwithstanding any provision to the contrary herein, so long as a Book-Entry Certificate remains outstanding and is held by or on behalf of the Clearing Agency, transfers of a Book-Entry Certificate, in whole or in part, shall only be made in accordance with Section 3.3(a). Subject to clauses (i) through (iii) of Section 3.3(a), transfers of a Book-Entry Certificate shall be limited to transfers of such Book-Entry Certificate in whole, but not in part, to a nominee of the Clearing Agency or to a successor of the Clearing Agency or such successors nominee.
In the event that a Book-Entry Certificate is exchanged for one or more Definitive Certificates pursuant to Section 3.5, such Certificates may be exchanged for one another only in accordance with the provisions of this Agreement and with such procedures as may be from time to time adopted by the Issuer and the Owner Trustee.
SECTION 3.4. Notices to Clearing Agency. Whenever a notice or other communication to the Certificateholders is required under this Agreement, unless and until Definitive Certificates shall have been issued to Certificate Owners pursuant to Section 3.5, the Owner Trustee shall give all such notices and communications specified herein to be given to the Certificateholders to the Clearing Agency, and shall have no obligation to the Certificate Owners.
SECTION 3.5. Definitive Certificates.
(a) If (i) the Seller advises the Owner Trustee and the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Certificates, and the Seller is unable to locate a qualified successor or (ii) the Seller at its option advises the Owner Trustee and the Indenture Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency, then the Clearing Agency shall notify all Certificate Owners and the Certificate Paying Agent of the occurrence of any such event and of the availability of Definitive Certificates representing the Certificates to Certificate Owners requesting the same. Upon surrender to the Certificate Registrar of the typewritten Certificate or Certificates representing the Book-Entry Certificates by the Clearing Agency, accompanied by re-registration instructions, the Owner Trustee shall execute and the Certificate Registrar shall register, authenticate and deliver the Definitive Certificates representing the Certificates in accordance with the instructions of the Clearing Agency. None of the Issuer, Certificate Registrar, the Indenture Trustee or the Owner Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates representing the Certificates, the Owner Trustee, the Certificate Registrar, the Certificate Paying Agent and the Indenture Trustee shall recognize such Holders of the Definitive Certificates as the applicable Certificateholders.
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(b) Subject to the transfer restrictions contained herein and in the Certificates, any Holder of a Definitive Certificate may transfer all or any portion of the Percentage Interest (subject to the requirements set forth in Sections 3.3 and 3.7) evidenced by such Certificate upon surrender thereof to the Certificate Registrar accompanied by the documents required by this Section 3.5. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon surrender of the Certificate to the Certificate Registrar accompanied by (a) a written instrument of transfer in the form of the Assignment attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Certificate Registrar may reasonably require, (b) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (c) unless the transferee is a U.S. Affiliate of the Seller, an executed Certificate Investor Representation Letter in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (d) the documents required by Section 3.7(c) hereof. Promptly upon the receipt of such documents and receipt by the Certificate Registrar of the transferors Certificate, the Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and the Owner Trustee shall execute, and the Certificate Registrar shall authenticate and deliver to such Certificateholder, a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferors new Percentage Interest and the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferee, a new Certificate evidencing such transferees Percentage Interest. Subsequent to each transfer of a beneficial interest and upon the issuance of the new Certificate or Certificates, the Certificate Registrar shall cancel and destroy in accordance with its customary practices the Certificate surrendered to it in connection with such transfer. The Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat, for all purposes whatsoever (other than as required by Section 3.7 or under applicable law), the Person in whose name any Certificate is registered as the owner of the Percentage Interest evidenced by such Certificate without regard to any notice to the contrary.
Definitive Certificates will not be eligible for clearing or settlement through DTC, Euroclear or Clearstream.
SECTION 3.6. Registration of the Certificates. Wells Fargo Bank, National Association, as an agent of the Issuer, in its capacity as Certificate Registrar (the Certificate
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Registrar) shall maintain at its Corporate Trust Office, or at the office of any agent appointed by it and approved in writing by the Certificateholders at the time of such appointment, a register (the Certificate Register) for the registration and transfer of any Certificate. Prior to the due presentment for registration of transfer of any Certificate, the Owner Trustee, the Indenture Trustee and the Certificate Registrar or any agent of the Owner Trustee, the Indenture Trustee or the Certificate Registrar shall treat the Person in whose name any Certificate is registered (as of the applicable Record Date) as the owner of such Certificate for the purpose of receiving distributions on such Certificate and for all other purposes whatsoever without regard to any notice to the contrary (other than as required by Section 3.7 or under applicable law). For the avoidance of doubt, a Certificate is not negotiable, and the records maintained by the Certificate Registrar in the Certificate Register with respect to each Certificate and its related registered owner are intended to cause the Certificates to be issued in registered form, within the meaning of Treasury Regulation section 5f.103-1(c), and shall record (a) the Percentage Interest evidenced by each Certificate and (b) all distributions made to each Certificateholder with respect to the Issuers assets. The entries in the Certificate Register shall be conclusive absent manifest error.
SECTION 3.7. Transfer of the Certificates.
(a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter substantially in the form of Exhibit B to the Certificate Registrar upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required).
By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon delivery to the Certificate Registrar of the documents required by Section 3.5 and this Section 3.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of such Certificate to the Certificate Registrar accompanied by (x) a written instrument of transfer in the form of the Assignment attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Certificate Registrar may reasonably require and (y) an executed
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direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (ii) unless the transferee is a U.S. corporate Affiliate of the Seller (or disregarded entity thereof), an executed Certificate Investor Representation Letter substantially in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (iii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and, in the case of a Definitive Certificate, receipt by the Certificate Registrar of the transferors Certificate, the Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and the Certificate Registrar shall authenticate and deliver, to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferors new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Register and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.7, the Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an established securities market within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Seller has received an opinion from a nationally recognized tax counsel (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee or other applicable persons) that the proposed
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transfer, without the representation pursuant to this paragraph, will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller has consented to such transfer in writing, it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a transferee) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but (x) no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferees (or in the case of a disregarded entity, the single owners) interest in Restricted Notes and the Certificates and (y) it is not and will not be a principal purpose of the arrangement involving such entitys beneficial interest in any Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Certificate Registrar, the Indenture Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Administrator, on behalf of the Issuer, which consent shall be granted unless the Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.