(a) Neither the Servicer nor any of the directors or officers or employees or agents of the Servicer will be under any liability to the Issuer, the Indenture Trustee, the Owner Trustee, the Noteholders or the Certificateholders, except as provided under this Agreement or the other Transaction Documents, for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment; provided, however, that this provision will not protect the Servicer or any such Person against any liability that would otherwise be imposed by reason of willful misfeasance or bad faith in the performance of duties or by reason of its failure to perform its obligations or of reckless disregard of obligations and duties under this Agreement, or by reason of negligence in the performance of its duties under this Agreement (except for errors in judgment). The Servicer and any director, officer or employee or agent of the Servicer may rely in good faith on any Opinion of Counsel or on any Officers Certificate of the Seller or certificate of auditors believed to be genuine and to have been signed by the proper party in respect of any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer will not be under any obligation to appear in, prosecute, or defend any legal action that is not incidental to its duties to service the Receivables in accordance with this Agreement, and that in its opinion may involve it in any expense or liability; provided, however, that the Servicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties to this Agreement and the interests of the Noteholders and the Certificateholders under this Agreement. In such event, the legal expenses and costs of such action and any liability resulting therefrom will be expenses, costs and liabilities of the Servicer.
SECTION 6.5 Delegation of Duties. The Servicer may, at any time without notice or consent, delegate (a) any or all of its duties (including, without limitation, its duties as custodian) under the Transaction Documents to any of its Affiliates or (b) specific duties (including, without limitation, its duties as custodian) to sub-contractors who are in the business of performing such duties; provided, that no such delegation shall relieve the Servicer of its responsibility with respect to such duties and the Servicer shall remain obligated and liable to the Issuer, the Indenture Trustee and, to the extent it is acting as Relevant Trustee, the Certificate Paying Agent for its duties hereunder as if the Servicer alone were performing such duties. For any servicing activities delegated to third parties in accordance with this Section 6.5, the Servicer shall follow such policies and procedures to monitor the performance of such third parties and compliance with such servicing activities as the Servicer follows with respect to comparable motor vehicle receivables serviced by the Servicer for its own account.
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SECTION 6.6 Santander Consumer Not to Resign as Servicer. Subject to the provisions of Sections 6.3 and 6.5, Santander Consumer will not resign from the obligations and duties hereby imposed on it as Servicer under this Agreement except upon determination that the performance of its duties under this Agreement is no longer permissible under applicable law. Notice of any such determination permitting the resignation of Santander Consumer will be communicated to the Issuer and the Indenture Trustee at the earliest practicable time (and, if such communication is not in writing, will be confirmed in writing at the earliest practicable time) and any such determination will be evidenced by an Opinion of Counsel to such effect delivered to the Issuer and the Indenture Trustee concurrently with or promptly after such notice. No such resignation will become effective until a successor Servicer has assumed the responsibilities and obligations of Santander Consumer as Servicer.
SECTION 6.7 Servicer May Own Notes. The Servicer, and any Affiliate of the Servicer, may, in its individual or any other capacity, become the owner or pledgee of Notes with the same rights as it would have if it were not the Servicer or an Affiliate thereof, except as otherwise expressly provided herein or in the other Transaction Documents. Except as set forth herein or in the other Transaction Documents, Notes so owned by or pledged to the Servicer or such Affiliate will have an equal and proportionate benefit under the provisions of this Agreement, without preference, priority or distinction as among all of the Notes.
ARTICLE VII
TERMINATION OF SERVICER
SECTION 7.1 Termination of Servicer.
(a) If a Servicer Replacement Event shall have occurred and be continuing, the Indenture Trustee shall, at the direction of the Noteholders representing at least a majority of the Note Balance of the Controlling Class, by notice given to the Servicer, the Owner Trustee, the Issuer, the Administrator and the Noteholders, terminate the rights and obligations of the Servicer under this Agreement with respect to the Receivables. In the event the Servicer is removed or resigns as Servicer with respect to servicing the Receivables, the Indenture Trustee shall appoint a successor Servicer. Upon the Servicers receipt of notice of termination, such Servicer will continue to perform its functions as Servicer under this Agreement only until the date specified in such termination notice or, if no such date is specified in such termination notice, until receipt of such notice. If a successor Servicer has not been appointed at the time when the outgoing Servicer ceases to act as Servicer in accordance with this Section, the Indenture Trustee without further action will automatically be appointed the successor Servicer. Notwithstanding the above, the Indenture Trustee, if it is legally unable or is unwilling to so act, will appoint, or petition a court of competent jurisdiction to appoint a successor Servicer. Any successor Servicer shall be an established institution having a net worth of not less than $100,000,000 and whose regular business includes the servicing of comparable motor vehicle receivables having an aggregate outstanding principal amount of not less than $50,000,000.
(b) Noteholders holding not less than a majority of the Note Balance of the Controlling Class may waive any Servicer Replacement Event. Upon any such waiver, such Servicer Replacement Event shall cease to exist and be deemed not to have occurred, and any
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Servicer Replacement Event arising therefrom shall be deemed not to have occurred for every purpose of this Agreement, but no such waiver shall extend to any prior, subsequent or other Servicer Replacement Event or impair any right consequent thereto.
(c) If replaced, the Servicer agrees that it will use commercially reasonable efforts at its own expense to effect the orderly and efficient transfer of the servicing of the Receivables to a successor Servicer.
(d) Upon the effectiveness of the assumption by the successor Servicer of its duties pursuant to this Section 7.1, the successor Servicer shall be the successor in all respects to the Servicer in its capacity as Servicer under this Agreement with respect to the Receivables, and shall be subject to all the responsibilities, duties and liabilities relating thereto, except with respect to the obligations of the predecessor Servicer that survive its termination as Servicer, including indemnification obligations as set forth in Section 6.2(e). In such event, the Indenture Trustee and the Owner Trustee are hereby authorized and empowered to execute and deliver, on behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such termination and replacement of the Servicer, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. No Servicer shall resign or be relieved of its duties under this Agreement, as Servicer of the Receivables, until a newly appointed Servicer for the Receivables shall have assumed the responsibilities and obligations of the resigning or terminated Servicer under this Agreement. Notwithstanding anything else herein to the contrary, in no event shall the Indenture Trustee be liable for any Servicing Fee or for any differential in the amount of the Servicing Fee paid hereunder and the amount necessary to induce any successor Servicer to act as successor Servicer under this Agreement and the transactions set forth or provided for herein.
(e) In connection with such appointment, the Indenture Trustee may make such arrangements for the compensation of the successor Servicer out of Available Funds as it and such successor Servicer will agree; provided, however, that no such compensation will be in excess of the amount paid to the predecessor Servicer under this Agreement.
SECTION 7.2 Notification to Noteholders. Upon any termination of, or appointment of a successor to, the Servicer pursuant to this Article VII, the Indenture Trustee will give prompt written notice thereof to the Owner Trustee, the Issuer, the Administrator, the Asset Representations Reviewer and to the Noteholders at their respective addresses of record.
ARTICLE VIII
OPTIONAL PURCHASE
SECTION 8.1 Optional Purchase of Trust Estate. The Servicer shall have the right at its option (the Optional Purchase) to purchase the Trust Estate (other than the Reserve Account) from the Issuer on any Payment Date if both of the following conditions are satisfied: (i) as of the last day of the related Collection Period, the Pool Balance has declined to 10% or less of the Pool Balance as of the Cut-Off Date, and (ii) the sum of the Optional Purchase Price and the Available Funds for such Payment Date would be sufficient to pay (A) the Servicing Fee
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for such Payment Date and all unpaid Servicing Fees with respect to prior periods, (B) all fees, expenses and indemnities owed to the Indenture Trustee and the Owner Trustee and not previously paid by the Servicer, (C) interest then due on the Notes and (D) the aggregate unpaid Note Balance of all of the Outstanding Notes. To exercise such option, the Servicer shall deposit, subject to Section 4.5, the Optional Purchase Price into the Collection Account on the Redemption Date. The Servicer shall furnish written notice of its election to exercise the Optional Purchase to the Indenture Trustee and the Owner Trustee not later than ten days prior to the date of the Optional Purchase. If the Servicer exercises the Optional Purchase, the Notes shall be redeemed and in each case in whole but not in part on the related Payment Date for the Redemption Price.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Amendment.
(a) Any term or provision of this Agreement may be amended by the Seller and the Servicer, 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 Seller or the Servicer 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 Seller or the Servicer notifies the Indenture Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment.
(b) This Agreement (including Appendix A) may also be amended from time to time by the Seller, the Servicer and the Indenture Trustee (when so directed by an Issuer Request), with the consent of the Noteholders evidencing not less than a majority of the Note Balance 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; provided, that no such amendment shall (i) reduce the interest rate or principal amount of any Note or change or delay the Final Scheduled Payment Date of any Note without the consent of the Holder of such Note or (ii) reduce the percentage of the aggregate outstanding principal balance of the Outstanding Notes, the consent of which is required to consent to any matter without the consent of the Holders of at least the percentage of the Note Balance which was required to consent to such matter before giving effect to such amendment. 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.
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(c) Any term or provision of this Agreement (including Appendix A) may also be amended from time to time by the Seller and the Servicer, 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, that the Seller and the Servicer shall provide written notification of such amendment to the Indenture Trustee, the Issuer and the Owner Trustee and promptly after the execution of any such amendment, the Seller and the Servicer shall furnish a copy of such amendment to the Indenture Trustee, the Issuer and the Owner Trustee.
(d) Prior to the execution of any such amendment, the Servicer 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 Servicer shall furnish a copy of such amendment to each Rating Agency, the Owner Trustee and the Indenture Trustee; provided, notwithstanding anything herein to the contrary, that no amendment pursuant to this Section 9.1 shall be effective which affects the rights, protections or duties of the Indenture Trustee (including when performing its duties as Relevant 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 (if the Indenture Trustee is then the Relevant Trustee) shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or 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 or execute on behalf of the Issuer any such amendment which adversely affects the Owner Trustees or the Indenture Trustees (including when performing its duties as Relevant Trustee), as applicable, own rights, duties or immunities under this Agreement.
(f) Notwithstanding subsections (a) and (b) of this Section 9.1, this Agreement may only be amended by the Seller and the Servicer if (i) the Majority Certificateholders consent to such amendment or (ii) such amendment shall not, as evidenced by an Officers Certificate of the Seller or the Servicer or an Opinion of Counsel delivered to the Indenture Trustee and the Owner Trustee, materially and adversely affect the interests of the Certificateholders.
SECTION 9.2 Protection of Title.
(a) The Seller shall authorize and file such financing statements and cause to be authorized and filed such continuation and other statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Issuer and the Indenture Trustee under this Agreement in the Receivables (other than any Related Security with respect thereto, to the extent that the interest of the Issuer or the Indenture Trustee therein cannot be perfected by the filing of a financing statement). The Seller shall deliver (or cause to be delivered) to the Issuer file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.
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(b) Neither the Seller nor the Servicer shall change its name, identity, organizational structure or jurisdiction of organization in any manner that would make any financing statement or continuation statement filed by the Seller in accordance with paragraph (a) above seriously misleading within the meaning of Sections 9-506, 9-507 or 9-508 of the UCC, unless it (i) shall have given the Issuer and the Indenture Trustee at least five days prior written notice thereof, (ii) to the extent necessary, shall have promptly filed amendments to previously filed financing statements or continuation statements described in paragraph (a) above and (iii) shall have delivered to the Indenture Trustee within 30 days after such change an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary to preserve and protect the interest of the Issuer in the Receivables or (B) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest.
(c) The Seller shall give the Issuer and the Indenture Trustee at least five days prior written notice of any change of location of the Seller for purposes of Section 9-307 of the UCC and shall have taken all action prior to making such change (or shall have made arrangements to take such action substantially simultaneously with such change, if it is not practicable to take such action in advance) reasonably necessary or advisable to amend all previously filed financing statements or continuation statements described in paragraph (a) above.
(d) The Servicer shall maintain (or shall cause its Sub-Servicer to maintain) in accordance with its Customary Servicing Practices accounts and records as to each Receivable accurately and in sufficient detail to permit (i) the reader thereof to know at any time the status of such Receivable, including payments and recoveries made and payments owing (and the nature of each) and (ii) reconciliation between payments or recoveries on (or with respect to) each Receivable and the amounts from time to time deposited in the Collection Account in respect of such Receivable.
(e) The Servicer shall maintain (or shall cause its Sub-Servicer to maintain) its computer systems so that, from time to time after the conveyance under this Agreement of the Receivables, the master computer records (including any backup archives) that refer to a Receivable shall indicate clearly the interest of the Issuer in such Receivable and that such Receivable is owned by the Issuer and has been pledged to the Indenture Trustee on behalf of the Noteholders pursuant to the Indenture. Indication of the Issuers and the Indenture Trustees interest in a Receivable shall not be deleted from or modified on such computer systems until, and only until, the related Receivable shall have been paid in full or repurchased.
(f) If at any time the Servicer shall propose to sell, grant a security interest in or otherwise transfer any interest in motor vehicle receivables to any prospective purchaser, lender or other transferee, the Servicer shall give to such prospective purchaser, lender or other transferee computer tapes, records or printouts (including any restored from backup archives) that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold and is owned by the Issuer and has been pledged to the Indenture Trustee on behalf of the Noteholders.
SECTION 9.3 Other Liens or Interests. Except for the conveyances and grants of security interests pursuant to this Agreement and the other Transaction Documents, the Seller
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shall not sell, pledge, assign or transfer the Receivables or other property transferred to the Issuer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any interest therein, and the Seller shall defend the right, title and interest of the Issuer in, to and under such Receivables and other property transferred to the Issuer against all claims of third parties claiming through or under the Seller.
SECTION 9.4 Transfers Intended as Sale; Security Interest.
(a) Each of the parties hereto expressly intends and agrees that the transfers contemplated and effected under this Agreement are complete and absolute sales, transfers, assignments and conveyances rather than pledges or assignments of only a security interest and shall be given effect as such for all purposes. It is further the intention of the parties hereto that the Receivables and related Transferred Assets shall not be part of the Sellers estate in the event of a bankruptcy or insolvency of the Seller. The sales and transfers by the Seller of Receivables and related Transferred Assets hereunder are and shall be without recourse to, or representation or warranty (express or implied) by, the Seller, except as otherwise specifically provided herein. The limited rights of recourse specified herein against the Seller are intended to provide a remedy for breach of representations and warranties relating to the condition of the property sold, rather than to the collectability of the Receivables.
(b) Notwithstanding the foregoing, in the event that the Receivables and other Transferred Assets are held to be property of the Seller, or if for any reason this Agreement is held or deemed to create indebtedness or a security interest in the Receivables and other Transferred Assets, then it is intended that:
| (i) | This Agreement shall be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York UCC and the UCC of any other applicable jurisdiction; |
| (ii) | The conveyance provided for in Section 2.1 shall be deemed to be a grant by the Seller of, and the Seller hereby grants to the Issuer, a security interest in all of its right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the Receivables and other Transferred Assets, to secure such indebtedness and the performance of the obligations of the Seller hereunder; |
| (iii) | The possession by the Issuer, or the Servicer as the Issuers agent, of the Receivable Files and any other property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be possession by the secured party or possession by the purchaser or a person designated by such purchaser, for purposes of perfecting the security interest pursuant to the New York UCC and the UCC of any other applicable jurisdiction; and |
| (iv) | Notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, bailees or agents (as applicable) of the Issuer for the purpose of perfecting such security interest under applicable law. |
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SECTION 9.5 Information Requests. The parties hereto shall provide any information reasonably requested by the Servicer, the Issuer, the Seller or any of their Affiliates, in order to comply with or obtain more favorable treatment under any current or future law, rule, regulation, accounting rule or principle.
SECTION 9.6 Notices, Etc. 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 set forth on Schedule I hereto or at such other address as shall be designated in a written notice to the other parties hereto. Any notice required or permitted to be mailed to a Noteholder shall be given by first class mail, postage prepaid, at the address of such Noteholder as shown in the Note Register. 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; provided, however, that any notice to a Noteholder mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Noteholder shall receive such notice.
SECTION 9.7 Choice of Law. 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 LAW, 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.
SECTION 9.8 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.
SECTION 9.9 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.
SECTION 9.10 Waivers. No failure or delay on the part of the Servicer, the Seller, the Issuer or the Indenture Trustee in exercising any power or right hereunder (to the extent such Person has any power or right hereunder) shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on any party hereto in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any party hereto under this Agreement shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.
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SECTION 9.11 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 or written understandings. There are no unwritten agreements among the parties.
SECTION 9.12 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
SECTION 9.13 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time as the parties hereto shall agree.
SECTION 9.14 Acknowledgment and Agreement. By execution below, the Seller expressly acknowledges and consents to the pledge, assignment and Grant of a security interest in the Receivables, the other Transferred Assets and the Issuers rights under this Agreement by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders. In addition, the Seller hereby acknowledges and agrees that for so long as the Notes are outstanding, the Indenture Trustee will have the right to exercise all powers, privileges and claims of the Issuer under this Agreement in the event that the Issuer shall fail to exercise the same.
SECTION 9.15 Cumulative Remedies. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.16 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. This Section shall survive the termination of this Agreement.
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SECTION 9.17 Submission to Jurisdiction; Waiver of Jury Trial. Each of the parties hereto hereby irrevocably and unconditionally:
(a) 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;
(b) 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;
(c) 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 9.6 of this Agreement;
(d) 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
(e) 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.
SECTION 9.18 Limitation of Liability.
(a) 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 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.
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(b) Notwithstanding anything contained herein to the contrary, this Agreement has been executed and delivered by Wells Fargo Bank, National Association, not in its individual capacity but solely as Indenture Trustee and Certificate Paying Agent, respectively, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer 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; provided that the Indenture Trustee shall be responsible for its actions as Indenture Trustee hereunder and under the Indenture. Under no circumstances shall the Indenture Trustee or the Certificate Paying Agent be personally liable for the payment of any indebtedness or expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of its duties or obligations hereunder, the Indenture Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VI of the Indenture.
SECTION 9.19 Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns and the Owner Trustee shall be an express third party beneficiary hereof and may enforce the provisions hereof as if it were a party hereto. Except as otherwise provided in this Section, no other Person will have any right hereunder.
SECTION 9.20 Regulation AB. The Servicer shall cooperate fully with the Seller and the Issuer to deliver to the Seller and the Issuer (including any of its assignees or designees) any and all statements, reports, certifications, records and any other information necessary in the good faith determination of the Seller or the Issuer to permit the Seller to comply with the provisions of Regulation AB and its reporting obligations under the Exchange Act, together with such disclosures relating to the Servicer and the Receivables, or the servicing of the Receivables, reasonably believed by the Seller to be necessary in order to effect such compliance.
SECTION 9.21 Information to Be Provided by the Indenture Trustee.
(a) Each of the Servicer and the Indenture Trustee shall (i) on or before the fifth Business Day of each month, notify the Seller, in writing, of any Form 10-D Disclosure Item with respect to such Person (or in the case of the Indenture Trustee, any Form 10-D Disclosure Item of which a Responsible Officer of the Indenture Trustee has knowledge) together with a description of any such Form 10-D Disclosure Item in form and substance reasonably satisfactory to the Seller; provided, however, that the Indenture Trustee shall not be required to provide such information in the event that there has been no change to the information previously provided by the Indenture Trustee to Seller, and (ii) as promptly as practicable following notice to or actual knowledge by a Responsible Officer of the Indenture Trustee of any changes to such information, provide to the Seller, in writing, such updated information.
(b) As soon as available but no later than March 15 of each calendar year, commencing in March 2017, the Indenture Trustee shall:
(i) deliver to the Seller a report regarding the Indenture Trustees assessment of compliance with the Servicing Criteria during the immediately preceding calendar year, as required under paragraph (b) of Rule 13a-18, Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report shall be signed by an authorized officer of the Indenture Trustee, and shall address each of the Servicing Criteria specified in Exhibit C as applicable to the Indenture Trustee or such other criteria as mutually agreed upon by the Seller and the Indenture Trustee;
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(ii) cause a firm of registered public accountants that is qualified and independent with the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver a report for inclusion in the Issuers filing of Exchange Act Form 10-K that attests to, and reports on, the assessment of compliance made by the Indenture Trustee and delivered to the Seller pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act;
(iii) deliver to the Seller and any other Person that will be responsible for signing the certification (a Sarbanes Certification) required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the Sarbanes-Oxley Act) on behalf of the Issuer or the Seller substantially in the form attached hereto as Exhibit D or such form as mutually agreed upon by the Seller and the Indenture Trustee; and
(iv) notify the Seller in writing of any affiliations or relationships (as described in Item 1119 of Regulation AB) between the Indenture Trustee and any Item 1119 Party, provided, that no such notification need be made if the affiliations or relationships are unchanged from those provided in the notification in the prior calendar year.
The Indenture Trustee acknowledges that the parties identified in clause (iii) above may rely on the certification provided by the Indenture Trustee pursuant to such clause in signing a Sarbanes Certification and filing such with the Commission.
(c) The Indenture Trustee shall, to the extent the Indenture Trustee has received any such repurchase or replacement request, no later than the 5th Business Day after the last day of each calendar month, provide notice to the Seller and Santander Consumer (each, a Santander Party and, collectively, the Santander Parties), in a form to be mutually agreed upon by Santander Consumer and the Indenture Trustee, of the request or any requests of (i) all demands communicated to a Responsible Officer of the Indenture Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable and (ii) any actions taken by the Indenture Trustee with respect to such demand communicated to the Indenture Trustee in respect of any Receivables. In addition, the Indenture Trustee shall, upon written request of either Santander Party, at any time such Santander Party reasonably feels necessary, provide notification to the Santander Parties with respect to any actions taken by the Indenture Trustee as soon as practicable and in any event within five Business Days of receipt of such request.
SECTION 9.22 Form 8-K Filings. Each of the Indenture Trustee and the Servicer shall promptly notify the Seller, but in no event later than two (2) Business Days after
| 36 | Sale and Servicing Agreement (2016-1) |
its occurrence, of any Reportable Event of which the Servicer or a Responsible Officer of the Indenture Trustee has actual knowledge (other than a Reportable Event described in clause (a) or (b) of the definition thereof as to which the Seller or the Servicer has actual knowledge). Each Person shall be deemed to have actual knowledge of any such event to the extent that it relates to such Person or any action or failure to act by such Person.
SECTION 9.23 Relevant Trustee. Following the payment in full of principal of, and interest on, the Notes, the Certificate Paying Agent shall assume the role of Relevant Trustee hereunder and shall perform the obligations of the Relevant Trustee set forth herein. At least five (5) Business Days prior to the final payment in full of principal of, and interest on, the Notes, the Servicer shall deliver a written notification to the Certificate Paying Agent, which notice shall set forth the date upon which the Certificate Paying Agent will assume the role of Relevant Trustee (the Assumption Date). For the avoidance of doubt, the obligations and duties of the Certificate Paying Agent as Relevant Trustee under the Transaction Documents shall be limited to the express duties of the Relevant Trustee, and shall not be deemed to include any duty or obligation of the Indenture Trustee, the Issuer, or any other Person. In the performance of its obligations as Relevant Trustee, the Certificate Paying Agent shall be entitled to all of the same rights, protections, indemnities and immunities as the Indenture Trustee under the Indenture, which rights, protections, indemnities and immunities are incorporated herein by reference. The parties hereby agree to amend the Transaction Documents prior to the Assumption Date to provide for such terms and conditions as may be necessary or desirable in connection with the assumption of the role of Relevant Trustee by the Certificate Paying Agent.
SECTION 9.24 Dispute Resolution.
(a) If the Seller, the Issuer, the Owner Trustee (in its discretion or at the direction of a Certificateholder pursuant to the Trust Agreement) or the Indenture Trustee (in its discretion or at the direction of a Requesting Investor pursuant to Section 7.5 of the Indenture) (the Requesting Party) requests that Santander Consumer repurchase any Receivable pursuant to Section 3.4 of the Purchase Agreement and the repurchase request has not been fulfilled or otherwise resolved to the reasonable satisfaction of the Requesting Party within 180 days of the receipt of notice of the request by Santander Consumer, the Requesting Party will have the right to refer the matter, at its discretion, to either mediation or arbitration pursuant to this Section 9.24; provided, however, that (i) if the Indenture Trustee declines to act in accordance with this Section 9.24 at the direction of a Noteholder or Note Owner due to the failure of such Noteholder or Note Owner to offer the Indenture Trustee reasonable security or indemnity satisfactory to the Indenture Trustee against the reasonable costs, expenses, disbursement, advances and liabilities that might be incurred by it, its agents and its counsel in connection with such act, such Noteholder or Note Owner shall be deemed to be a Requesting Party or (ii) if the Owner Trustee declines to act in accordance with this Section 9.24 at the direction of a Certificateholder due to the failure of such Certificateholder to offer the Owner Trustee reasonable security or indemnity satisfactory to the Owner Trustee against the reasonable costs, expenses, disbursement, advances and liabilities that might be incurred by it, its agents and its counsel in connection with such act, such Certificateholder shall be deemed to be a Requesting Party. If the Requesting Party is the Indenture Trustee or the Owner Trustee acting at the direction of a Noteholder, Note Owner or Certificateholder, as applicable, the Indenture Trustee or Owner Trustee, as applicable, as Requesting Party, will act solely at the direction of such Noteholder,
| 37 | Sale and Servicing Agreement (2016-1) |
Note Owner, or Certificateholder in making all decisions related to mediation or arbitration. Santander Consumer will inform the Requesting Party in writing upon a determination by Santander Consumer that a Receivable subject to a demand to repurchase will be repurchased and the monthly distribution report filed by the Seller on Form 10-D for the Collection Period in which such Receivables were repurchased shall include disclosure of such repurchase. A failure of Santander Consumer to inform the Requesting Party that a Receivable subject to a demand will be repurchased within 180 days of the receipt of notice of the request shall be deemed to be a determination by Santander Consumer that no repurchase of that Receivable due to a breach of Section 3.3 of the Purchase Agreement is required. The monthly distribution report filed by the Seller on Form 10-D for the Collection Period in which a repurchase demand is made and for each subsequent Collection Period until such repurchase demand is resolved or the related Receivable is repurchased, shall include disclosure regarding the date of the repurchase demand as well as the status of such repurchase demand for each applicable Receivable. If both the Owner Trustee (on behalf of one or more Certificateholders) and the Indenture Trustee (on behalf of one or more Noteholders or Note Owners) are Requesting Parties, then the Indenture Trustee as Requesting Party shall have the right to make the selection of mediation or arbitration. If more than one Noteholder or Note Owner has directed the Indenture Trustee in connection with a request to pursue dispute resolution pursuant to this Section 9.24, the Indenture Trustee shall act at the direction of the Noteholders or Note Owners, as applicable, holding a majority of the Note Balance of the Notes held by such directing Noteholders and/or Note Owners. If more than one Certificateholder has directed the Owner Trustee in connection with a request to pursue dispute resolution pursuant to this Section 9.24, the Owner Trustee shall act at the direction of the Certificateholders holding the majority of the voting interests of such directing Certificateholders. For the avoidance of doubt, neither the Indenture Trustee nor the Owner Trustee is required to, nor intends to, exercise discretion with respect to any action pursuant to this Section 9.24(a).
(b) The Requesting Party will provide notice in accordance with the provisions of Section 9.6 of its intention to refer the matter to mediation or arbitration, as applicable, to Santander Consumer, with a copy to the Issuer, the Seller, the Owner Trustee and the Indenture Trustee. Santander Consumer agrees that it will participate in the resolution method selected by the Requesting Party. Santander Consumer shall provide notice to the Seller, the Issuer, the Owner Trustee, and the Indenture Trustee that Santander Consumer has received a request to mediate or arbitrate a repurchase request. Upon receipt of such notice, the Seller, the Issuer, the Owner Trustee (acting at the direction of a Certificateholder), and the Indenture Trustee (acting at the direction of a Noteholder or Note Owner) shall advise the Requesting Party and Santander Consumer of an intent to join in the mediation or arbitration, which shall result in their being joined as a Requesting Party in the proceeding. A Requesting Party may not initiate a mediation or arbitration pursuant to this Section 9.24 with respect to a Receivable that is, or has been, the subject of an ongoing or previous mediation or arbitration (whether by that Requesting Party or another Requesting Party) but will have the right, subject to a determination by the parties to the existing mediation or arbitration that such joinder would not prejudice the rights of the participants to such existing mediation or arbitration or unduly delay such proceeding, to join an existing mediation or arbitration with respect to that Receivable if the mediation or arbitration has not yet concluded. In the case of any such joinder, if the initial Requesting Party is (i) the Indenture Trustee (on behalf of one or more Noteholders or Note Owners), any decisions related to the mediation or arbitration will be made by the Indenture Trustee at the written direction of
| 38 | Sale and Servicing Agreement (2016-1) |
the Requesting Investor holding a majority of the Note Balance of all of the Notes held by such directing Noteholders and/or Note Owners, and (ii) the Owner Trustee (on behalf of one or more Certificateholders), any decisions related to the mediation or arbitration will be made by the Owner Trustee on behalf of the Certificateholders holding the majority of the voting interests of the directing Certificateholders.
(c) If the Requesting Party selects mediation as the resolution method, the following provisions will apply:
(i) The mediation will be administered by a nationally recognized arbitration and mediation association selected by the Requesting Party pursuant to such associations mediation procedures in effect at such time.
(ii) The fees and expenses of the mediation will be allocated as mutually agreed by the parties as part of the mediation.
(iii) The mediator will be impartial, knowledgeable about and experienced with the laws of the State of New York that are relevant to the repurchase dispute and will be appointed from a list of neutrals maintained by the American Arbitration Association (the AAA).
(d) If the Requesting Party selects arbitration as the resolution method, the following provisions will apply:
(i) The arbitration will be administered by a nationally recognized arbitration and mediation association jointly selected by the parties, and if the parties are unable to agree on an association, by the AAA, and conducted pursuant to such associations arbitration procedures in effect at such time.
(ii) The arbitrator will be impartial, knowledgeable about and experienced with the laws of the State of New York that are relevant to the dispute hereunder and will be appointed from a list of neutrals maintained by AAA.
(iii) The arbitrator will make its final determination no later than 90 days after appointment or as soon as practicable thereafter. The arbitrator will resolve the dispute in accordance with the terms of this Agreement, and may not modify or change this Agreement in any way. The arbitrator will not have the power to award punitive damages or consequential damages in any arbitration conducted by it, and Santander Consumer shall not be required to pay more than the applicable Repurchase Amount with respect to any receivable which Santander Consumer is required to repurchase under the terms of the Purchase Agreement or this Agreement, as applicable. In its final determination, the arbitrator will determine and award the costs of the arbitration (including the fees of the arbitrator, cost of any record or transcript of the arbitration, and administrative fees) and reasonable attorneys fees to the parties as determined by the arbitrator in its reasonable discretion. The determination of the arbitrator will be in writing and counterpart copies will be promptly delivered to the parties. The determination may be enforced in any court of competent jurisdiction.
(iv) No person may bring a putative or certified class action to arbitration.
| 39 | Sale and Servicing Agreement (2016-1) |
(e) The following provisions will apply to both mediations and arbitrations:
(i) Any mediation or arbitration will be held in New York, New York or such other location mutually agreed to by the Requesting Party and the Requested Parties;
(ii) Notwithstanding this dispute resolution provision, the parties will have the right to seek provisional relief from a competent court of law, including a temporary restraining order, preliminary injunction or attachment order, provided such relief would otherwise be available by law;
(iii) The details and/or existence of any unfulfilled repurchase request, any meetings or discussions regarding any unfulfilled repurchase request, mediations or arbitration proceedings conducted under this Section 9.24, including all offers, promises, conduct and statements, whether oral or written, made in the course of the parties attempt to resolve an unfulfilled repurchase request, any information exchanged in connection with any mediation, and any discovery taken in connection with any arbitration (collectively, Confidential Information), shall be and remain confidential and inadmissible (except disclosures required by Applicable Law) for any purpose, including impeachment, in any mediation, arbitration or litigation, or other proceeding (including any proceeding under this Section 9.24) other than as required to be disclosed in accordance with applicable law, regulatory requirements, or court order or to the extent that Santander Consumer, in its sole discretion, elects to disclose such information. Such information will be kept strictly confidential and will not be disclosed or discussed with any third party, except that a party may disclose such information to its own attorneys, experts, accountants and other agents and representatives (collectively Representatives), as reasonably required in connection with any resolution procedure under this Section 9.24, and to the Asset Representations Reviewer, if an Asset Review has been conducted), if the disclosing party (a) directs such Representatives to keep the information confidential, (b) is responsible for any disclosure by its Representatives of such information and (c) takes at its sole expense all reasonable measures to restrain such Representatives from disclosing such information. If any party receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for Confidential Information, the recipient will promptly notify the other party and will provide the other party with the opportunity to object to the production of its Confidential Information or seek other appropriate protective remedies, consistent with the applicable requirements of law and regulation. If, in the absence of a protective order, such party or any of its representatives are compelled as a matter of law, regulation, legal process or by regulatory authority to disclose any portion of the Confidential Information, such party may disclose to the party compelling disclosure only the part of such Confidential Information that is required to be disclosed. For the avoidance of doubt, if the Indenture Trustee is the Requesting Party, the Indenture Trustee may disclose Confidential Information with respect to an Asset Review to the Requesting Investor which directed the Indenture Trustee in connection with such Asset Review.
| 40 | Sale and Servicing Agreement (2016-1) |
SECTION 9.25 Cooperation with Voting. Each of Santander Consumer, the Seller and the Issuer hereby acknowledges and agrees that it shall cooperate with the Indenture Trustee to facilitate any vote by the Instituting Noteholders pursuant to the terms of Section 7.6 of the Indenture.
[SIGNATURES FOLLOW]
| 41 | Sale and Servicing Agreement (2016-1) |
IN WITNESS WHEREOF, the parties have caused this Sale and Servicing Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
| SANTANDER DRIVE AUTO RECEIVABLES LLC, as Seller | ||||
| By: |
| |||
| Name: | ||||
| Title: |
| S-1 | Sale and Servicing Agreement (2016-1) |
| SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1, as Issuer | ||||
| By: | Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | |||
| By: |
| |||
| Name: | ||||
| Title: |
| S-2 | Sale and Servicing Agreement (2016-1) |
| SANTANDER CONSUMER USA INC., as Servicer | ||||
| By: |
| |||
| Name: | ||||
| Title: |
| S-3 | Sale and Servicing Agreement (2016-1) |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee | ||||
| By: |
| |||
| Name: | ||||
| Title: |
| S-4 | Sale and Servicing Agreement (2016-1) |
SCHEDULE I
NOTICE ADDRESSES
If to the Issuer:
Santander Drive Auto Receivables Trust 2016-1
c/o Wilmington Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Facsimile:<PHONE_NUMBER>
Attention: Corporate Trust Administration
with copies to the Administrator and the Indenture Trustee
If to Santander Consumer, the Servicer or the Administrator:
Santander Consumer USA Inc.
1601 Elm Street, Suite 800
Dallas, Texas 75201
Facsimile:<PHONE_NUMBER>
Attention: Santander Capital Markets
Email<EMAIL_ADDRESS>If to the Seller:
Santander Drive Auto Receivables LLC
1601 Elm Street, Suite 800
Dallas, Texas 75201
Facsimile:<PHONE_NUMBER>
Attention: Santander Capital Markets
Email<EMAIL_ADDRESS>If to the Indenture Trustee, Certificate Paying Agent or Certificate Registrar:
Wells Fargo Bank, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
Minneapolis, Minnesota 55479
Facsimile:<PHONE_NUMBER>
Attention: Corporate Trust Services Asset-Backed Administration
| I-1 | Schedule I to the Sale and Servicing Agreement |
If to the Owner Trustee:
Wilmington Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Facsimile:<PHONE_NUMBER>
Attention: Corporate Trust Administration
If to Moodys:
Moodys Investors Service, Inc.
7 World Trade Center
250 Greenwich Street
New York, New York 10007
If to Fitch:
Fitch Ratings, Inc.
33 Whitehall Street
New York, New York 10004
Attention: Asset Backed Surveillance
If to the Asset Representations Reviewer:
Clayton Fixed Income Services LLC
1700 Lincoln Street
Denver, CO 80203
Attention: SVP Surveillance
with a copy to:
Clayton Fixed Income Services LLC
100 Beard Sawmill Road, Suite 200
Shelton, CT 06484
Attention: General Counsel
| I-2 | Schedule I to the Sale and Servicing Agreement |
EXHIBIT A
FORM OF ASSIGNMENT PURSUANT TO SALE AND SERVICING AGREEMENT
[ ], 2016
For value received, in accordance with the Sale and Servicing Agreement (the Agreement), dated as of February 17, 2016, by and between Santander Drive Auto Receivables Trust 2016-1, a Delaware statutory trust (the Issuer), Santander Drive Auto Receivables LLC, a Delaware limited liability company (the Seller), Santander Consumer USA Inc., an Illinois corporation (Santander Consumer), and Wells Fargo Bank, National Association, a national banking association (the Indenture Trustee), on the terms and subject to the conditions set forth in the Agreement, the Seller does hereby irrevocably sell, transfer, assign and otherwise convey to the Issuer on the Closing Date, without recourse (subject to the obligations in the Agreement) all right, title and interest of the Seller, whether now owned or hereafter acquired, in, to and under the Receivables set forth on the schedule of Receivables delivered by the Seller to the Issuer on the date hereof, the Collections after the Cut-Off Date, the Receivable Files and the Related Security relating thereto, together with all of the Sellers rights under the Purchase Agreement and all proceeds of the foregoing, which sale shall be effective as of the Cut-Off Date.
The foregoing sale does not constitute and is not intended to result in an assumption by the Issuer of any obligation of the Seller or any Originator to the Obligors, the Dealers, insurers or any other Person in connection with the Receivables or the other assets and properties conveyed hereunder or any agreement, document or instrument related thereto.
This assignment is made pursuant to and upon the representations, warranties and agreements on the part of the undersigned contained in the Agreement and is governed by the Agreement.
Capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Agreement.
[Remainder of page intentionally left blank.]
| A-1 | Exhibit A to the Sale and Servicing Agreement |
IN WITNESS HEREOF, the undersigned has caused this assignment to be duly executed as of the date first above written.
| SANTANDER DRIVE AUTO RECEIVABLES LLC | ||
| By: |
| |
| Name: | ||
| Title: |
| A-2 | Exhibit A to the Sale and Servicing Agreement |
EXHIBIT B
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the Agreement, the Seller hereby represents, warrants, and covenants to the Issuer and the Indenture Trustee as follows on the Closing Date:
General
1. The Sale and Servicing Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables and the other Transferred Assets in favor of the Issuer, which security interest is prior to all other Liens, and is enforceable as such as against creditors of and purchasers from the Seller.
2. The Receivables constitute chattel paper, accounts, instruments or general intangibles, within the meaning of the UCC.
3. Each Receivable is secured by a first priority validly perfected security interest in the related Financed Vehicle in favor of the applicable Originator (or its assignee), as secured party, or all necessary actions with respect to such Receivable have been taken or will be taken to perfect a first priority security interest in the related Financed Vehicle in favor of the applicable Originator (or its assignee), as secured party.
Creation
4. Immediately prior to the sale, transfer, assignment and conveyance of a Receivable by the Seller to the Issuer, the Seller owned and had good and marketable title to such Receivable free and clear of any Lien and immediately after the sale, transfer, assignment and conveyance of such Receivable to the Issuer, the Issuer will have good and marketable title to such Receivable free and clear of any Lien.
5. The Seller has received all consents and approvals to the sale of the Receivables hereunder to the Issuer required by the terms of the Receivables that constitute instruments.
Perfection
6. The Seller has caused or will have caused, within ten days after the effective date of the Sale and Servicing Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the sale of the Receivables from the Seller to Issuer, and the security interest in the Receivables granted to the Issuer hereunder; and the Servicer, in its capacity as custodian, has in its possession the original copies of such instruments or tangible chattel paper that constitute or evidence the Receivables, and all financing statements referred to in this paragraph contain a statement that: A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Secured Party/Purchaser.
| B-1 | Exhibit B to the Sale and Servicing Agreement |
7. With respect to Receivables that constitute instruments or tangible chattel paper, either:
(i) All original executed copies of each such instrument or tangible chattel paper have been delivered to the Indenture Trustee; or
(ii) Such instruments or tangible chattel paper are in the possession of the Servicer and the Indenture Trustee has received a written acknowledgment from the Servicer that the Servicer, in its capacity as custodian, is holding such instruments or tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee, as pledgee of the Issuer; or
(iii) The Servicer received possession of such instruments or tangible chattel paper after the Indenture Trustee received a written acknowledgment from the Servicer that the Servicer is acting solely as agent of the Indenture Trustee, not in its individual capacity but solely as Indenture Trustee, as pledgee of the Issuer.
Priority
8. Neither the Seller nor Santander Consumer has authorized the filing of, or is aware of any financing statements against either the Seller or Santander Consumer that include a description of collateral covering the Receivables other than any financing statement (i) relating to the conveyance of the Receivables by Santander Consumer to the Seller under the Purchase Agreement, (ii) relating to the security interest granted to the Issuer hereunder or (iii) that has been terminated.
9. Neither the Seller nor Santander Consumer is aware of any material judgment, ERISA or tax lien filings against either the Seller or Santander Consumer.
10. Neither the Seller nor Santander Consumer nor a custodian or vaulting agent thereof holding any Receivable that is electronic chattel paper has communicated an authoritative copy (as such term is used in Section 9-105 of the UCC) of any loan agreement that constitutes or evidences such Receivable to any Person other than the Servicer.
11. None of the instruments, tangible chattel paper or electronic chattel paper that constitute or evidence the Receivables has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller, the Issuer or the Indenture Trustee.
Survival of Perfection Representations
12. Notwithstanding any other provision of the Sale and Servicing Agreement or any other Transaction Document, the perfection representations, warranties and covenants contained in this Exhibit B shall be continuing, and remain in full force and effect until such time as all obligations under the Transaction Documents and the Notes have been finally and fully paid and performed.
| B-2 | Exhibit B to the Sale and Servicing Agreement |
No Waiver
13. The Seller and the Servicer shall provide the Rating Agencies with prompt written notice of any material breach of the perfection representations, warranties and covenants contained in this Exhibit B, and shall not, without satisfying the Rating Agency Condition, waive a breach of any of such perfection representations, warranties or covenants.
Servicer to Maintain Perfection and Priority
14. The Servicer covenants that, in order to evidence the interests of the Seller and Issuer under the Sale and Servicing Agreement and the Indenture Trustee under the Indenture, the Servicer shall take such action, or execute and deliver such instruments as may be necessary or advisable (including, without limitation, such actions as are requested by the Indenture Trustee) to maintain and perfect, as a first priority perfected security interest, the Indenture Trustees security interest in the Receivables. The Servicer shall, from time to time and within the time limits established by law, prepare and file, all financing statements, amendments, continuations, initial financing statements in lieu of a continuation statement, terminations, partial terminations, releases or partial releases, or any other filings necessary or advisable to continue, maintain and perfect the Indenture Trustees security interest in the Receivables as a first-priority perfected security interest.
| B-3 | Exhibit B to the Sale and Servicing Agreement |
EXHIBIT C
SERVICING CRITERIA TO BE ADDRESSED IN
INDENTURE TRUSTEES AND SERVICERS ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Indenture Trustee or the Servicer, as applicable, shall address, at a minimum, the criteria identified below as Applicable Indenture Trustee Servicing Criteria or Applicable Servicer Servicing Criteria, as applicable:
| Servicing Criteria |
Applicable Indenture Trustee Servicing Criteria |
Applicable Servicer Servicing Criteria |
Inapplicable Servicing Criteria | |||||
| Reference |
Criteria |
|||||||
| General Servicing Considerations | ||||||||
| 1122(d)(1)(i) | Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. | X | ||||||
| 1122(d)(1)(ii) | If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third partys performance and compliance with such servicing activities. | X | ||||||
| 1122(d)(1)(iii) | Any requirements in the transaction agreements to maintain a back-up servicer for the pool assets are maintained. | X | ||||||
| 1122(d)(1)(iv) | A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. | X | ||||||
| 1122(d)(1)(v) | Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information. | X | ||||||
| Cash Collection and Administration | ||||||||
| 1122(d)(2)(i) | Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. | X | ||||||
| 1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | X | ||||||
| 1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | X | ||||||
| 1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | X | ||||||
| 1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, federally insured depository institution with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. | X | ||||||
| 1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | X |
| C-1 | Exhibit C to the Sale and Servicing Agreement |
| Servicing Criteria |
Applicable Indenture Trustee Servicing Criteria |
Applicable Servicer Servicing Criteria |
Inapplicable Servicing Criteria | |||||
| Reference |
Criteria |
|||||||
| 1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. | X | ||||||
| Investor Remittances and Reporting | ||||||||
| 1122(d)(3)(i) | Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors or the trustees records as to the total unpaid principal balance and number of pool assets serviced by the Servicer. | X | ||||||
| 1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | X1 | ||||||
| 1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the Servicers investor records, or such other number of days specified in the transaction agreements. | X | ||||||
| 1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. | X | ||||||
| Pool Asset Administration | ||||||||
| 1122(d)(4)(i) | Collateral or security on pool assets is maintained as required by the transaction agreements or related asset pool documents. | X | ||||||
| 1122(d)(4)(ii) | Pool assets and related documents are safeguarded as required by the transaction agreements | X | ||||||
| 1122(d)(4)(iii) | Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. | X | ||||||
| 1122(d)(4)(iv) | Payments on pool assets, including any payoffs, made in accordance with the related pool asset documents are posted to the Servicers obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related asset pool documents. | X | ||||||
| 1122(d)(4)(v) | The Servicers records regarding the accounts and the accounts agree with the Servicers records with respect to an obligors unpaid principal balance. | X |
| 1 | Solely with regard to timeframes and that distributions were made in accordance with the instructions of the Servicer. |
| C-2 | Exhibit C to the Sale and Servicing Agreement |
| Servicing Criteria |
Applicable Indenture Trustee Servicing Criteria |
Applicable Servicer Servicing Criteria |
Inapplicable Servicing Criteria | |||||
| Reference |
Criteria |
|||||||
| 1122(d)(4)(vi) | Changes with respect to the terms or status of an obligors account (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. | X | ||||||
| 1122(d)(4)(vii) | Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. | X | ||||||
| 1122(d)(4)(viii) | Records documenting collection efforts are maintained during the period a pool asset is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entitys activities in monitoring delinquent pool assets including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). | X | ||||||
| 1122(d)(4)(ix) | Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset documents. | X | ||||||
| 1122(d)(4)(x) | Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligors Account documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable Account documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related Accounts, or such other number of days specified in the transaction agreements. | X | ||||||
| 1122(d)(4)(xi) | Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. | X | ||||||
| 1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicers funds and not charged to the obligor, unless the late payment was due to the obligors error or omission. | X | ||||||
| 1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligors records maintained by the servicer, or such other number of days specified in the transaction agreements. | X | ||||||
| 1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | X | ||||||
| 1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. | X |
| C-3 | Exhibit C to the Sale and Servicing Agreement |
EXHIBIT D
FORM OF INDENTURE TRUSTEES ANNUAL CERTIFICATION
| Re: | SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1 |
Wells Fargo Bank, National Association, not in its individual capacity but solely as indenture trustee (the Indenture Trustee), certifies to Santander Drive Auto Receivables LLC (the Seller), and its officers, with the knowledge and intent that they will rely upon this certification, that:
(1) It has reviewed the report on assessment of the Indenture Trustees compliance provided in accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of 1934, as amended, and Item 1122 of Regulation AB (the Servicing Assessment) that was delivered by the Indenture Trustee to the Seller pursuant to the Sale and Servicing Agreement (the Agreement), dated as of February 17, 2016, by and between Santander Consumer USA Inc., the Seller, the Indenture Trustee and Santander Drive Auto Receivables Trust 2016-1 (collectively, the Indenture Trustee Information);
(2) To the best of its knowledge, the Servicing Assessment, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in the light of the circumstances under which such statements were made, not misleading with respect to the period of time covered by the Servicing Assessment; and
(3) To the best of its knowledge, all of the information required to be provided by the Indenture Trustee pursuant to Sections 9.21 and 9.22 of the Agreement has been provided to the Seller.
| Wells Fargo Bank, National Association, not in its individual capacity but solely as Indenture Trustee | ||
| Date: |
|
| D-1 | Exhibit D to the Sale and Servicing Agreement |
APPENDIX A
DEFINITIONS
The following terms have the meanings set forth, or referred to, below:
60-Day Delinquent Receivables means, as of any date of determination, all Receivables (other than Repurchased Receivables and Defaulted Receivables) that are sixty (60) or more days delinquent as of such date (or, if such date is not the last day of a Collection Period, as of the last day of the Collection Period immediately preceding such date), as determined in accordance with the Servicers Customary Servicing Practices.
Accrued Class A Note Interest means, with respect to any Payment Date, the sum of the Class A Noteholders Monthly Accrued Interest for such Payment Date and the Class A Noteholders Interest Carryover Shortfall for such Payment Date.
Accrued Class B Note Interest means, with respect to any Payment Date, the sum of the Class B Noteholders Monthly Accrued Interest for such Payment Date and the Class B Noteholders Interest Carryover Shortfall for such Payment Date.
Accrued Class C Note Interest means, with respect to any Payment Date, the sum of the Class C Noteholders Monthly Accrued Interest for such Payment Date and the Class C Noteholders Interest Carryover Shortfall for such Payment Date.
Accrued Class D Note Interest means, with respect to any Payment Date, the sum of the Class D Noteholders Monthly Accrued Interest for such Payment Date and the Class D Noteholders Interest Carryover Shortfall for such Payment Date.
Accrued Class E Note Interest means, with respect to any Payment Date, the sum of the Class E Noteholders Monthly Accrued Interest for such Payment Date and the Class E Noteholders Interest Carryover Shortfall for such Payment Date.
Act has the meaning set forth in Section 11.3(a) of the Indenture.
Administration Agreement means the Administration Agreement, dated as of the Closing Date, between the Administrator, the Issuer and the Indenture Trustee, as the same may be amended and supplemented from time to time.
Administrator means Santander Consumer, or any successor Administrator under the Administration Agreement.
Affiliate means, for any specified Person, any other Person which, directly or indirectly, controls, is controlled by or is under common control with such specified Person and affiliated has a meaning correlative to the foregoing. For purposes of this definition, control means the power, directly or indirectly, to cause the direction of the management and policies of a Person.
Amended Partnership Audit Rules means subchapter C of chapter 63 of subtitle F of the Code as amended by the Bipartisan Budget Act of 2015.
Definitions (2016-1)
Applicable Tax State means, as of any date, each of the following: (a) the State in which the Issuer is located, and (b) the States of Texas and Illinois.
Asset Representations Review Agreement means the Asset Representations Review Agreement, dated as of the date hereof, between the Issuer, the Sponsor, the Servicer and the Asset Representations Reviewer.
Asset Representations Reviewer means Clayton Fixed Income Services LLC, a Delaware limited liability company, or any successor Asset Representations Reviewer under the Asset Representations Review Agreement.
Asset Review shall have the meaning assigned to such term in the Asset Representations Review Agreement.
Assumption Date has the meaning set forth in Section 9.23 of the Sale and Servicing Agreement.
Authenticating Agent means any Person authorized by the Indenture Trustee to act on behalf of the Indenture Trustee to authenticate and deliver the Notes.
Authorized Newspaper means a newspaper of general circulation in the City of New York, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays and holidays.
Authorized Officer means (a) with respect to the Issuer, (i) any officer of the Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Issuer (including any agent of the Owner Trustee acting under a power of attorney) and who is identified on the list of Authorized Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing Date or (ii) so long as the Administration Agreement is in effect, any officer of the Administrator who is authorized to act for the Administrator in matters relating to the Issuer pursuant to the Administration Agreement and who is identified on the list of Authorized Officers delivered by the Administrator to the Owner Trustee and the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter) and (b) with respect to the Owner Trustee, the Indenture Trustee and the Servicer, any officer of the Owner Trustee, the Indenture Trustee or the Servicer, as applicable, who is authorized to act for the Owner Trustee, the Indenture Trustee or the Servicer, as applicable, in matters relating to the Transaction Documents and who is identified on the list of Authorized Officers delivered by each of the Owner Trustee, the Indenture Trustee and the Servicer to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter).
Available Funds means, for any Payment Date and the related Collection Period, an amount equal to the sum of the following amounts: (i) all Collections received by the Servicer during such Collection Period, (ii) the sum of the Repurchase Prices deposited into the Collection Account with respect to each Receivable that is to become a Repurchased Receivable on such Payment Date and (iii) the Reserve Account Excess Amount for such Payment Date.
Available Funds Shortfall Amount means, as of any Payment Date, the amount, if any, by which the aggregate amount required to be paid pursuant to clauses first through twelfth of Section 4.4(a) of the Sale and Servicing Agreement exceeds the Available Funds for such Payment Date.
| A-2 | Definitions (2016-1) |
Banco Santander, S.A. means Banco Santander, S.A., or its successors in interest.
Bankruptcy Code means the United States Bankruptcy Code, 11 U.S.C. 101 et seq., as amended.
Bankruptcy Event means, with respect to any Person, (i) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person, or ordering the winding-up or liquidation of such Persons affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days or (ii) the commencement by such Person of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.
Bankruptcy Remote Party means each of the Seller, the Issuer, any other trust created by the Seller or any limited liability company or corporation wholly-owned by the Seller.
Benefit Plan means (i) any employee benefit plan as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (ii) a plan described by Section 4975(e)(1) of the Code, that is subject to Section 4975 of the Code or (iii) any entity deemed to hold the plan assets of any of the foregoing by reason of an employee benefit plans or other plans investment in such entity.
Book-Entry Certificates means the Certificates held by a Clearing Agency or its nominee and with respect to which beneficial ownership and transfer thereof shall be made through book entries by a Clearing Agency as described in Section 3.3 of the Trust Agreement.
Book-Entry Notes means a beneficial interest in the Notes, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 2.10 of the Indenture.
Business Day means any day other than a Saturday, a Sunday or a day on which banking institutions in the states of Delaware, Illinois, Minnesota, Texas or New York, or in the state in which the Corporate Trust Office of the Indenture Trustee is located, are authorized or obligated by law, executive order or government decree to be closed.
Certificate means a certificate substantially in the form of Exhibit A to the Trust Agreement evidencing a beneficial ownership interest in the Issuer. For the avoidance of doubt, the reference in the Transaction Documents to a Certificate or a Certificateholder, unless the context otherwise requires, shall be deemed to be reference to Certificates or Certificateholders if more than one Certificate has been issued.
| A-3 | Definitions (2016-1) |
Certificate Distribution Account means the account designated as such, established and maintained pursuant to Section 4.1 of the Sale and Servicing Agreement.
Certificate Investor Representation Letter means a certificate investor representation letter, substantially in the form of Exhibit B to the Trust Agreement.
Certificate of Title means, with respect to any Financed Vehicle, the certificate of title or other documentary evidence of ownership of such Financed Vehicle as issued by the department, agency or official of the jurisdiction (whether in paper or electronic form) in which such Financed Vehicle is titled responsible for accepting applications for, and maintaining records regarding, certificates of title and liens thereon.
Certificate Owner means, with respect to any Book-Entry Certificate, the Person who is the beneficial owner of such Book-Entry Certificate, 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).
Certificate Paying Agent means Wells Fargo Bank, National Association or any other Person appointed as the successor Certificate Paying Agent pursuant to Section 3.8 of the Trust Agreement.
Certificate Register shall have the meaning specified in Section 3.6 of the Trust Agreement.
Certificate Registrar shall have the meaning specified in Section 3.6 of the Trust Agreement.
Certificateholder means, as of any date, the Person in whose name a Certificate is registered on the Certificate Register on such date.
CitiFinancial means CitiFinancial Auto, Ltd. and certain affiliates of such entity.
Class means a group of Notes whose form is identical except for variation in denomination, principal amount or owner, and references to each Class thus mean each of 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.
Class A Note Balance means, at any time, the sum of the Class A-1 Note Balance, the Class A-2-A Note Balance, the Class A-2-B Note Balance and the Class A-3 Note Balance at such time.
Class A Noteholders Interest Carryover Shortfall means, with respect to any Payment Date, the excess, if any, of the Class A Noteholders Monthly Accrued Interest for the preceding Payment Date and any outstanding Class A Noteholders Interest Carryover Shortfall on such
| A-4 | Definitions (2016-1) |
preceding Payment Date, over the amount in respect of interest that was actually paid to Noteholders of Class A Notes on such preceding Payment Date, plus interest on the amount of interest due but not paid to Noteholders of Class A Notes on the preceding Payment Date, to the extent permitted by law, at the respective Interest Rates borne by such Class A Notes for the related Interest Period.
Class A Noteholders Monthly Accrued Interest means, with respect to any Payment Date, the aggregate interest accrued for the related Interest Period on the Class A-1 Notes, the Class A-2-A Notes, the Class A-2-B Notes and the Class A-3 Notes at the respective Interest Rate for such Class on the Note Balance of the Notes of each such Class on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving effect to all payments of principal to the Noteholders of the Notes of such Class on or prior to such preceding Payment Date.
Class A Notes means, collectively, the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
Class A-1 Final Scheduled Payment Date means the Payment Date occurring in February 2017.
Class A-1 Interest Rate means 0.85000% per annum (computed on the basis of the actual number of days elapsed during the applicable Interest Period, but assuming a 360-day year).
Class A-1 Note Balance means, at any time, the Initial Class A-1 Note Balance reduced by all payments of principal made prior to such time on the Class A-1 Notes.
Class A-1 Noteholder means the Person in whose name a Class A-1 Note is registered on the Note Register.
Class A-1 Notes means the Class of Auto Loan Asset Backed Notes designated as Class A-1 Notes, issued in accordance with the Indenture.
Class A-2 Final Scheduled Payment Date means the Payment Date occurring in July 2019.
Class A-2 Noteholder means the Person in whose name a Class A-2 Note is registered on the Note Register.
Class A-2-A Interest Rate means 1.41% per annum (computed on the basis of a 360-day year of twelve 30-day months).
Class A-2-A Note Balance means, at any time, the Initial Class A-2-A Note Balance reduced by all payments of principal made prior to such time on the Class A-2-A Notes.
Class A-2-A Notes means the Class of Auto Loan Asset Backed Notes designated as Class A-2-A Notes, issued in accordance with the Indenture.
| A-5 | Definitions (2016-1) |
Class A-2-B Interest Rate means LIBOR + 0.78% per annum (computed on the basis of the actual number of days elapsed during the applicable Interest Period, but assuming a 360 day year).
Class A-2-B Note Balance means, at any time, the Initial Class A-2-B Note Balance reduced by all payments of principal made prior to such time on the Class A-2-B Notes.
Class A-2-B Notes means the Class of Auto Loan Asset Backed Notes designated as Class A-2-B Notes, issued in accordance with the Indenture.
Class A-2 Notes means, collectively, the Class A-2-A Notes and the Class A-2-B Notes.
Class A-3 Final Scheduled Payment Date means the Payment Date occurring in March 2020.
Class A-3 Interest Rate means 1.62% per annum (computed on the basis of a 360-day year of twelve 30-day months).
Class A-3 Note Balance means, at any time, the Initial Class A-3 Note Balance reduced by all payments of principal made prior to such time on the Class A-3 Notes.
Class A-3 Noteholder means the Person in whose name a Class A-3 Note is registered on the Note Register.
Class A-3 Notes means the Class of Auto Loan Asset Backed Notes designated as Class A-3 Notes, issued in accordance with the Indenture.
Class B Final Scheduled Payment Date means the Payment Date occurring in December 2020.
Class B Interest Rate means 2.47% per annum (computed on the basis of a 360-day year of twelve 30-day months).
Class B Note Balance means, at any time, the Initial Class B Note Balance reduced by all payments of principal made prior to such time on the Class B Notes.
Class B Noteholder means the Person in whose name a Class B Note is registered on the Note Register.
Class B Noteholders Interest Carryover Shortfall means, with respect to any Payment Date, the excess, if any, of the Class B Noteholders Monthly Accrued Interest for the preceding Payment Date and any outstanding Class B Noteholders Interest Carryover Shortfall on such preceding Payment Date, over the amount in respect of interest that was actually paid to Noteholders of Class B Notes on such preceding Payment Date, plus interest on the amount of interest due but not paid to Noteholders of Class B Notes on the preceding Payment Date, to the extent permitted by law, at the Class B Interest Rate for the related Interest Period.
| A-6 | Definitions (2016-1) |
Class B Noteholders Monthly Accrued Interest means, with respect to any Payment Date, the aggregate interest accrued for the related Interest Period on the Class B Notes at the Class B Interest Rate on the Class B Note Balance on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving effect to all payments of principal to the Class B Noteholders on or prior to such preceding Payment Date.
Class B Notes means the Class of Auto Loan Asset Backed Notes designated as Class B Notes, issued in accordance with the Indenture.
Class C Final Scheduled Payment Date means the Payment Date occurring in April 2022.
Class C Interest Rate means 3.09% per annum (computed on the basis of a 360-day year of twelve 30-day months).
Class C Note Balance means, at any time, the Initial Class C Note Balance reduced by all payments of principal made prior to such time on the Class C Notes.
Class C Noteholder means the Person in whose name a Class C Note is registered on the Note Register.
Class C Noteholders Interest Carryover Shortfall means, with respect to any Payment Date, the excess, if any, of the Class C Noteholders Monthly Accrued Interest for the preceding Payment Date and any outstanding Class C Noteholders Interest Carryover Shortfall on such preceding Payment Date, over the amount in respect of interest that was actually paid to Noteholders of Class C Notes on such preceding Payment Date, plus interest on the amount of interest due but not paid to Noteholders of Class C Notes on the preceding Payment Date, to the extent permitted by law, at the Class C Interest Rate for the related Interest Period.
Class C Noteholders Monthly Accrued Interest means, with respect to any Payment Date, the aggregate interest accrued for the related Interest Period on the Class C Notes at the Class C Interest Rate on the Class C Note Balance on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving effect to all payments of principal to the Class C Noteholders on or prior to such preceding Payment Date.
Class C Notes means the Class of Auto Loan Asset Backed Notes designated as Class C Notes, issued in accordance with the Indenture.
Class D Final Scheduled Payment Date means the Payment Date occurring in April 2022.
Class D Interest Rate means 4.02% per annum (computed on the basis of a 360-day year of twelve 30-day months).
Class D Note Balance means, at any time, the Initial Class D Note Balance reduced by all payments of principal made prior to such time on the Class D Notes.
| A-7 | Definitions (2016-1) |
Class D Noteholder means the Person in whose name a Class D Note is registered on the Note Register.
Class D Noteholders Interest Carryover Shortfall means, with respect to any Payment Date, the excess, if any, of the Class D Noteholders Monthly Accrued Interest for the preceding Payment Date and any outstanding Class D Noteholders Interest Carryover Shortfall on such preceding Payment Date, over the amount in respect of interest that was actually paid to Noteholders of Class D Notes on such preceding Payment Date, plus interest on the amount of interest due but not paid to Noteholders of Class D Notes on the preceding Payment Date, to the extent permitted by law, at the Class D Interest Rate for the related Interest Period.
Class D Noteholders Monthly Accrued Interest means, with respect to any Payment Date, the aggregate interest accrued for the related Interest Period on the Class D Notes at the Class D Interest Rate on the Class D Note Balance on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving effect to all payments of principal to the Class D Noteholders on or prior to such preceding Payment Date.
Class D Notes means the Class of Auto Loan Asset Backed Notes designated as Class D Notes, issued in accordance with the Indenture.
Class E Final Scheduled Payment Date means the Payment Date occurring in June 2023.
Class E Interest Rate means 5.02% per annum (computed on the basis of a 360-day year of twelve 30-day months).
Class E Note Balance means, at any time, the Initial Class E Note Balance reduced by all payments of principal made prior to such time on the Class E Notes.
Class E Noteholder means the Person in whose name a Class E Note is registered on the Note Register.
Class E Noteholders Interest Carryover Shortfall means, with respect to any Payment Date, the excess, if any, of the Class E Noteholders Monthly Accrued Interest for the preceding Payment Date and any outstanding Class E Noteholders Interest Carryover Shortfall on such preceding Payment Date, over the amount in respect of interest that was actually paid to Noteholders of Class E Notes on such preceding Payment Date, plus interest on the amount of interest due but not paid to Noteholders of Class E Notes on the preceding Payment Date, to the extent permitted by law, at the Class E Interest Rate for the related Interest Period.
Class E Noteholders Monthly Accrued Interest means, with respect to any Payment Date, the aggregate interest accrued for the related Interest Period on the Class E Notes at the Class E Interest Rate on the Class E Note Balance on the immediately preceding Payment Date or the Closing Date, as the case may be, after giving effect to all payments of principal to the Class E Noteholders on or prior to such preceding Payment Date.
Class E Notes means the Class of Auto Loan Asset Backed Notes designated as Class E Notes, issued in accordance with the Indenture.
| A-8 | Definitions (2016-1) |
Clearing Agency means an organization registered as a clearing agency pursuant to Section 17A of the Exchange Act and shall initially be DTC.
Clearing Agency Participant means a broker, dealer, bank or other financial institution or other Person for which from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
Closing Date means February 17, 2016.
Code means the Internal Revenue Code of 1986, as amended, modified or supplemented from time to time, and any successor law thereto, and the regulations promulgated and the rulings issued thereunder.
Collateral has the meaning set forth in the Granting Clause of the Indenture.
Collection Account means the trust account established and maintained pursuant to Section 4.1 of the Sale and Servicing Agreement.
Collection Period means the period commencing on the first day of each calendar month and ending on the last day of such calendar month (or, in the case of the initial Collection Period, the period commencing on the close of business on the Cut-Off Date and ending on February 29, 2016). As used herein, the related Collection Period with respect to a Payment Date shall be deemed to be the Collection Period which precedes such Payment Date.
Collections means, with respect to any Receivable and to the extent received by the Servicer after the Cut-Off Date, (i) any monthly payment by or on behalf of the Obligor thereunder, (ii) any full or partial prepayment of such Receivable, (iii) all Liquidation Proceeds and (iv) any other amounts received by the Servicer which, in accordance with the Customary Servicing Practices, would be applied to the payment of accrued interest or to reduce the Principal Balance of the Receivable, including rebates of premiums with respect to the cancellation or termination of any Insurance Policy, extended warranty or service contract; provided, however, that the term Collections in no event will include (1) for any Payment Date, any amounts in respect of any Receivable the Repurchase Price of which has been included in the Available Funds on a prior Payment Date or (2) any Supplemental Servicing Fees.
Commission means the U.S. Securities and Exchange Commission.
Confidential Information has the meaning set forth in Section 9.24(e)(iii) of the Sale and Servicing Agreement.
Contract means, with respect to any Receivable, the motor vehicle retail installment sales contract and/or note and security agreement, the installment loan agreement, any amendments thereto and any related documentary draft, if applicable, evidencing such Receivable.
Contract Rate means, with respect to a Receivable, the rate per annum at which interest accrues under the Contract evidencing such Receivable. Such rate may be less than the Annual Percentage Rate disclosed in the Receivable.
| A-9 | Definitions (2016-1) |
Controlling Class means, with respect to any Notes Outstanding, the Class A Notes (voting together as a single Class) as long as any Class A Notes are Outstanding, and thereafter the Class B Notes as long as any Class B Notes are Outstanding, and thereafter the Class C Notes as long as any Class C Notes are Outstanding, and thereafter the Class D Notes as long as any Class D Notes are Outstanding, and thereafter the Class E Notes as long as any Class E Notes are Outstanding.
Corporate Trust Office means:
(a) as used with respect to Indenture Trustee, the principal office of the Indenture Trustee at which at any particular time its corporate trust business shall be administered which office at date of the execution of the Indenture is located at Wells Fargo Center, MAC N9311-161, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, Attention: Corporate Trust Services Asset-Backed Administration, Santander Drive Auto Receivables Trust 2016-1, or at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders, the Administrator, the Servicer, the Owner Trustee and the Issuer, or the principal corporate trust office of any successor Indenture Trustee (the address of which the successor Indenture Trustee will notify the Noteholders, the Administrator, the Servicer, the Owner Trustee and the Issuer);
(b) as used with respect to Owner Trustee, the corporate trust office of the Owner Trustee located at Rodney Square North, 1100 N. Market St., Wilmington, Delaware 19890, or at such other address as the Owner Trustee may designate by notice to the Certificateholders and the Seller, or the principal corporate trust office of any successor Owner Trustee (the address of which the successor Owner Trustee will notify the Certificateholders and the Seller); and
(c) as used with respect to the Certificate Registrar, the principal office of the Certificate Registrar at which at any particular time its corporate trust business shall be administered, which office at date of the execution of the Trust Agreement is located at MAC N9311-161, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, Attention: Corporate Trust Services Asset-Backed Administration, Santander Drive Auto Receivables Trust 2016-1, or at such other address as the Certificate Registrar may designate from time to time by notice to the Certificateholders, the Indenture Trustee, the Owner Trustee and the Issuer, or the principal corporate trust office of any successor Certificate Registrar (the address of which the successor Certificate Registrar will notify the Certificateholders, the Indenture Trustee, the Owner Trustee and the Issuer).
Cram Down Loss means, with respect to any Receivable (other than a Defaulted Receivable) as to which any court in any bankruptcy, insolvency or other similar proceeding issues an order reducing the principal amount to be paid on such Receivable or otherwise modifies any payment terms with respect thereto, an amount equal to the greater of (i) the amount of the principal reduction ordered by such court and (ii) the difference between the Principal Balance of such Receivable at the time of such court order and the net present value (using a discount rate which is the higher of the Contract Rate of such Receivable or the rate of interest specified by such court order) of the remaining scheduled payments to be paid on such Receivable as modified or restructured. A Cram Down Loss will be deemed to have occurred on the date of issuance of such courts order.
| A-10 | Definitions (2016-1) |
Cumulative Net Loss Rate Table means the levels set forth below for the Collection Periods related to the Payment Dates set forth below:
| Payment Date. |
Trigger | |||
| 1st-6th Payment Date |
5.00 | % | ||
| 7th-12th Payment Date |
8.50 | % | ||
| 13th-18th Payment Date |
12.00 | % | ||
| 19th-24th Payment Date |
15.50 | % | ||
| 25th-30th Payment Date |
19.00 | % | ||
| 31st-36th Payment Date |
21.50 | % | ||
| 37th Payment Date and thereafter |
24.00 | % |
Cumulative Net Loss Ratio means, as of any Payment Date, the ratio (expressed as a percentage) of (i) the aggregate Principal Balance of Receivables that became Defaulted Receivables plus all the Cram Down Losses (without duplication) which occurred during the period from the Cut-Off Date through the end of the related Collection Period reduced by the amount of Liquidation Proceeds with respect to Defaulted Receivables received during such period which are applied to principal of the Defaulted Receivables to (ii) the Pool Balance as of the Cut-Off Date.
Cumulative Net Loss Trigger means, for any Measurement Date, that the Cumulative Net Loss Ratio for such Measurement Date exceeds the level specified as the Trigger in the Cumulative Net Loss Rate Table for such Measurement Date.
Customary Servicing Practices means the customary servicing practices of the Servicer or any Sub-Servicer with respect to all comparable motor vehicle receivables that the Servicer or such Sub-Servicer, as applicable, services for itself and others, as such customary servicing practices may be changed from time to time, it being understood that the Servicer and the Sub-Servicers may not have the same Customary Servicing Practices.
Cut-Off Date means January 31, 2016.
DBRS means DBRS, Inc., or any successor that is a nationally recognized statistical rating organization.
Dealer means a motor vehicle dealership.
Debt-For-Tax Opinion means an Opinion of Counsel, of nationally recognized tax counsel, delivered to the Depositor and the Indenture Trustee stating that the Notes will be debt for United States federal income tax purposes.
Default means any occurrence that is, or with notice or lapse of time or both would become, an Event of Default.
Defaulted Receivable means, with respect to any Collection Period, a Receivable as to which (a) a related monthly payment became four months past due during such Collection Period and the Servicer has not repossessed the related Financed Vehicle, (b) the Servicer has either repossessed and liquidated the related Financed Vehicle or repossessed and held the related
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Financed Vehicle in its repossession inventory for 90 days, whichever occurs first, or (c) the Servicer has, in accordance with its Customary Servicing Practices, determined that such Receivable has or should be written off as uncollectible. 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.
Definitive Certificate means a definitive fully registered Certificate issued pursuant to Section 3.5 of the Trust Agreement.
Definitive Note means a definitive fully registered Note issued pursuant to Section 2.12 of the Indenture.
Delinquency Percentage means, for any Payment Date and the related Collection Period, an amount equal to the ratio (expressed as a percentage) of (i) the aggregate Principal Balance of all 60-Day Delinquent Receivables as of the last day of such Collection Period to (ii) the Pool Balance as of the last day of such Collection Period.
Delinquency Trigger means, for any Payment Date and the related Collection Period, 24%.
Delivery when used with respect to Trust Account Property means:
(a) with respect to (I) bankers acceptances, commercial paper, and negotiable certificates of deposit and other obligations that constitute instruments as defined in Section 9-102(a)(47) of the UCC and are susceptible of physical delivery, transfer of actual possession thereof to the Indenture Trustee or its nominee or custodian by physical delivery to the Indenture Trustee or its nominee or custodian endorsed to the Indenture Trustee or its nominee or custodian or endorsed in blank, and (II) with respect to a certificated security (as defined in Section 8-102(a)(4) of the UCC) transfer of actual possession thereof (i) by physical delivery of such certificated security to the Indenture Trustee or its nominee or custodian endorsed to, or registered in the name of, the Indenture Trustee or its nominee or custodian or endorsed in blank, or to another person, other than a securities intermediary (as defined in Section 8-102(a)(14) of the UCC), who acquires possession of the certificated security on behalf of the Indenture Trustee or its nominee or custodian or, having previously acquired possession of the certificate, acknowledges that it holds for the Indenture Trustee or its nominee or custodian or (ii) if such certificated security is in registered form, by delivery thereof to a securities intermediary, endorsed to or registered in the name of the Indenture Trustee or its nominee or custodian, and the making by such securities intermediary of entries on its books and records identifying such certificated securities as belonging to the Indenture Trustee or its nominee or custodian and the sending by such securities intermediary of a confirmation of the purchase of such certificated security by the Indenture Trustee or its nominee or custodian (all of the foregoing, Physical Property), and, in any event, any such Physical Property in registered form shall be in the name of the Indenture Trustee or its nominee or custodian; and such additional or alternative procedures as may hereafter become appropriate to effect the complete transfer of ownership of any such Trust Account Property to the Indenture Trustee or its nominee or custodian, consistent with changes in applicable law or regulations or the interpretation thereof;
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(b) with respect to any securities issued by the U.S. Treasury, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association or the other government agencies, instrumentalities and establishments of the United States identified in Appendix A to Federal Reserve Bank Operating Circular No. 7 as in effect from time to time that is a book-entry security (as such term is defined in Federal Reserve Bank Operating Circular No. 7) held in a securities account and eligible for transfer through the Fedwire® Securities Service operated by the Federal Reserve System pursuant to Federal book-entry regulations, the following procedures, all in accordance with applicable law, including applicable Federal regulations and Articles 8 and 9 of the UCC: book-entry registration of such Trust Account Property to an appropriate securities account maintained with a Federal Reserve Bank by a participant (as such term is defined in Federal Reserve Bank Operating Circular No. 7) that is a depository institution (as defined in Section 19(b)(1)(A) of the Federal Reserve Act) pursuant to applicable Federal regulations, and issuance by such depository institution of a deposit notice or other written confirmation of such book-entry registration to the Indenture Trustee or its nominee or custodian of the purchase by the Indenture Trustee or its nominee or custodian of such book-entry securities; the making by such depository institution of entries in its books and records identifying such book entry security held through the Federal Reserve System pursuant to Federal book-entry regulations or a security entitlement thereto as belonging to the Indenture Trustee or its nominee or custodian and indicating that such depository institution holds such Trust Account Property solely as agent for the Indenture Trustee or its nominee or custodian; and such additional or alternative procedures as may hereafter become appropriate to effect complete transfer of ownership of any such Trust Account Property to the Indenture Trustee or its nominee or custodian, consistent with changes in applicable law or regulations or the interpretation thereof; and
(c) with respect to any item of Trust Account Property that is an uncertificated security (as defined in Section 8-102(a)(18) of the UCC) and that is not governed by clause (b) above, (i) registration on the books and records of the issuer thereof in the name of the Indenture Trustee or its nominee or custodian, or (ii) registration on the books and records of the issuer thereof in the name of another person, other than a securities intermediary, who acknowledges that it holds such uncertificated security for the benefit of the Indenture Trustee or its nominee or custodian.
Depositor means the Seller in its capacity as Depositor under the Trust Agreement.
Depository Agreement means the agreement, dated as of the Closing Date, executed by the Issuer in favor of DTC, as initial Clearing Agency, relating to the Notes and the Certificates, as the same may be amended or supplemented from time to time.
Determination Date means the second Business Day preceding the related Payment Date, beginning March 11, 2016.
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Dollar and $ mean lawful currency of the United States.
DTC means The Depository Trust Company, and its successors.
Eligible Account means a segregated trust account with the corporate trust department of a depository institution acting in its fiduciary capacity organized under the laws of the United States of America or any one of the states thereof or the District of Columbia (or any domestic branch of a foreign bank), having corporate trust powers and acting as trustee for funds deposited in such account, so long as the long-term unsecured debt of such depository institution shall have a credit rating from Standard & Poors of at least BBB and from each of Moodys, Fitch (if rated by Fitch) and DBRS (if rated by DBRS) in one of its generic rating categories which signifies investment grade. Any such trust account may be maintained with the Owner Trustee, the Indenture Trustee or any of their respective Affiliates, if such accounts meet the requirements of the preceding sentence.
Eligible Investments means any one or more of the following types of investments:
(a) direct obligations of, and obligations fully guaranteed as to timely payment by, the United States;
(b) demand deposits, time deposits or certificates of deposit of any depository institution (including any Affiliate of the Seller, the Servicer, the Indenture Trustee or the Owner Trustee) or trust company incorporated under the laws of the United States or any state thereof or the District of Columbia (or any domestic branch of a foreign bank) and subject to supervision and examination by Federal or state banking or depository institution authorities (including depository receipts issued by any such institution or trust company as custodian with respect to any obligation referred to in clause (a) above or a portion of such obligation for the benefit of the holders of such depository receipts); provided that at the time of the investment or contractual commitment to invest therein (which shall be deemed to be made again each time funds are reinvested following each Payment Date), the commercial paper or other short-term senior unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) of such depository institution or trust company shall have a rating from Moodys of at least Prime-1, from Standard & Poors of at least A-1, from Fitch of at least F1+ if rated by Fitch and from DBRS of at least R-1(high) if rated by DBRS;
(c) commercial paper (including commercial paper of any Affiliate of the Seller, the Servicer, the Indenture Trustee or the Owner Trustee) having, at the time of the investment or contractual commitment to invest therein, a rating from Moodys of at least Prime-1, from Standard & Poors of at least A-1, from Fitch of at least F1+ if rated by Fitch and from DBRS of at least R-1(high) if rated by DBRS;
(d) investments in money market funds (including funds for which the Seller, the Servicer, the Indenture Trustee or Owner Trustee or any of their respective Affiliates is investment manager or advisor) having a rating in the highest rating category by each nationally recognized statistical rating organization then rating such money market funds;
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(e) bankers acceptances issued by any depository institution or trust company referred to in clause (b) above; and
(f) repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States, in either case entered into with a depository institution or trust company (acting as principal) referred to in clause (b) above.
Each of the Eligible Investments may be purchased from the Relevant Trustee or through an Affiliate of the Relevant Trustee.
Eligible Receivable means a Receivable meeting all of the criteria set forth on Schedule II to the Purchase Agreement as of the Closing Date.
ERISA means the Employee Retirement Income Security Act of 1974, as amended and any successor law thereto, and the regulations promulgated and rulings issued thereunder.
Event of Default has the meaning set forth in Section 5.1 of the Indenture.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Act Reports means any reports on Form 10-D, Form 8-K and Form 10-K filed or to be filed by the Seller with respect to the Issuer under the Exchange Act.
FATCA means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to such published intergovernmental agreement.
FATCA Withholding Tax means any withholding or deduction required pursuant to FATCA.
Fifth 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, the Class C Note Balance, the Class D Note Balance and the Class E Note Balance as of such Payment Date (before giving effect to any principal payments made on the 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, the Second Allocation of Principal, the Third Allocation of Principal and the Fourth Allocation of Principal for such Payment Date; provided, however, that the Fifth Allocation of Principal on and after the Final Scheduled Payment Date for the Class E Notes shall not be less than the amount that is necessary to reduce the outstanding principal amount of the Class E Notes to zero (after the application of the First Allocation of Principal, the Second Allocation of Principal, the Third Allocation of Principal and the Fourth Allocation of Principal).
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Final Scheduled Payment Date means, with respect to (i) the Class A-1 Notes, the Class A-1 Final Scheduled Payment Date, (ii) the Class A-2 Notes, the Class A-2 Final Scheduled Payment Date, (iii) the Class A-3 Notes, the Class A-3 Final Scheduled Payment Date, (iv) the Class B Notes, the Class B Final Scheduled Payment Date, (v) the Class C Notes, the Class C Final Scheduled Payment Date, (vi) the Class D Notes, the Class D Final Scheduled Payment Date and (vii) the Class E Notes, the Class E Final Scheduled Payment Date.
Financed Vehicle means an automobile, light-duty truck or van, together with all accessions thereto, securing an Obligors indebtedness under the applicable Receivable.
First Allocation of Principal means, with respect to any Payment Date, an amount equal to the excess, if any, of (a) the Class A Note Balance as of such Payment Date (before giving effect to any principal payments made on the Class A Notes on such Payment Date) over (b) the Pool Balance as of the end of the related Collection Period; provided, however, that the First Allocation of Principal for any Payment Date on and after the Final Scheduled Payment Date for any Class of Class A Notes shall not be less than the amount that is necessary to reduce the Note Balance of that Class of Class A Notes to zero.
Fitch means Fitch Ratings, Inc. or any successor that is a nationally recognized statistical rating organization.
Form 10-D Disclosure Item means, with respect to any Person, (a) any legal proceedings pending against such Person or of which any property of such Person is then subject, or (b) any proceedings known to be contemplated by governmental authorities against such Person or of which any property of such Person would be subject, in each case that would be material to the Noteholders.
Fourth 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, the Class C Note Balance and the Class D Note Balance as of such Payment Date (before giving effect to any principal payments made on the 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, the Second Allocation of Principal and the Third Allocation of Principal for such Payment Date; provided, however, that the Fourth Allocation of Principal on and after the Final Scheduled Payment Date for the Class D Notes shall not be less than the amount that is necessary to reduce the outstanding principal amount of the Class D Notes to zero (after the application of the First Allocation of Principal, the Second Allocation of Principal and the Third Allocation of Principal).
GAAP means generally accepted accounting principles in the USA, applied on a materially consistent basis.
Governmental Authority means any (a) Federal, state, municipal, foreign or other governmental entity, board, bureau, agency or instrumentality, (b) administrative or regulatory authority (including any central bank or similar authority) or (c) court or judicial authority.
Grant means mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create, grant a lien upon and a security interest in and right of set-off against,
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