UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) February 10, 2016
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1
(Exact Name of Issuing Entity as Specified in its Charter)
Commission File Number of Issuing Entity: 333-206684-01
Central Index Key Number of Issuing Entity:<PHONE_NUMBER>
SANTANDER DRIVE AUTO RECEIVABLES LLC
(Exact Name of Depositor as Specified in its Charter)
Commission File Number of Depositor: 333-206684
Central Index Key Number of Depositor:<PHONE_NUMBER>
SANTANDER CONSUMER USA INC.
(Exact Name of Sponsor as Specified in its Charter)
Central Index Key Number of Sponsor:<PHONE_NUMBER>
Delaware
(State or Other Jurisdiction of Incorporation of Registrant)
37-6613619
(Issuing Entitys I.R.S. Employer Identification No.)
| Santander Drive Auto Receivables LLC 1601 Elm Street, Suite 800 Dallas, Texas |
75201 | |
| (Address of Principal Executive Offices of Registrant) | (Zip Code) |
(214) 292-1930
(Registrants Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. | Entry into a Material Definitive Agreement. |
On February 10, 2016, Santander Drive Auto Receivables LLC (Santander Drive) and Santander Consumer USA Inc. (SC) entered into an Underwriting Agreement (the Underwriting Agreement) with Citigroup Global Markets Inc., on behalf of itself and as representative of the several underwriters (collectively, the Underwriters), for the sale of the following notes to be issued by Santander Drive Auto Receivables Trust 2016-1 (the Issuer): the Class A-1 0.85000% Auto Loan Asset Backed Notes, the Class A-2-A 1.41% Auto Loan Asset Backed Notes, the Class A-2-B LIBOR + 0.78% Auto Loan Asset Backed Notes, the Class A-3 1.62% Auto Loan Asset Backed Notes, the Class B 2.47% Auto Loan Asset Backed Notes, the Class C 3.09% Auto Loan Asset Backed Notes and the Class D 4.02% Auto Loan Asset Backed Notes (collectively, the Publicly Registered Notes). The Publicly Registered Notes have been registered pursuant to the Securities Act of 1933, as amended, under a Registration Statement on Form SF-3 (Commission File No. 333-206684). The Issuer will also issue Class E 5.02% Auto Loan Asset Backed Notes (the Class E Notes and collectively with the Publicly Registered Notes, the Notes). It is anticipated that the Notes will be issued on February 17, 2016 (the Closing Date).
Attached as Exhibit 1.1 is the Underwriting Agreement.
Item 8.01. Other Events.
On the Closing Date, SC and Santander Drive will enter into a Purchase Agreement, to be dated as of the Closing Date (the Purchase Agreement), pursuant to which SC will transfer to Santander Drive certain motor vehicle retail installment sales contracts and installment loans relating to certain new and used automobiles, light-duty trucks and vans (the Receivables) and related property. The Issuer, a Delaware statutory trust, was established by a Trust Agreement dated as of January 14, 2016, which will be amended and restated by an Amended and Restated Trust Agreement to be dated as of the Closing Date (the Amended and Restated Trust Agreement) by and between Santander Drive and Wilmington Trust, National Association, as owner trustee. On the Closing Date, the Issuer will enter into a Sale and Servicing Agreement, to be dated as of the Closing Date (the Sale and Servicing Agreement), with Santander Drive, as seller, SC, as servicer, and Wells Fargo Bank, National Association, as indenture trustee (the Indenture Trustee), pursuant to which the Receivables and related property will be transferred to the Issuer. On the Closing Date, the Issuer, SC, as sponsor and servicer, and Clayton Fixed Income Services LLC, as asset representations reviewer, will enter into an Asset Representations Review Agreement, to be dated as of the Closing Date (the Asset Representations Review Agreement), relating to the review of certain representations relating to the Receivables after satisfaction of certain conditions. Also, on the Closing Date, the Issuer will enter into an Indenture, to be dated as of the Closing Date (the Indenture), by and between the Issuer and the Indenture Trustee. Pursuant to the Indenture, the Issuer will cause the issuance of the Notes and will grant a security interest in the Receivables and other related property to secure the Notes. Also on the Closing Date, the Issuer, SC, as administrator, and the Indenture Trustee will enter into an Administration Agreement, to be dated as of the Closing Date (the Administration Agreement), relating to the provision by SC of certain administration services on behalf of the Issuer relating to the Notes.
Attached as Exhibit 4.1 is the form of Indenture, as Exhibit 10.1 is the form of Purchase Agreement, as Exhibit 10.2 is the form of Sale and Servicing Agreement, as Exhibit 10.3 is the form of Administration Agreement, as Exhibit 10.4 is the form of Amended and Restated Trust Agreement and as Exhibit 10.5 is the form of Asset Representations Review Agreement.
In connection with the offering of the Notes, the chief executive officer of the registrant has made the certifications required by Paragraph I.B.1(a) of Form SF-3 attached as Exhibit 36.1. The certification is being filed on this Current Report on Form 8-K to satisfy the requirements of Item 601(b)(36) of Regulation S-K.
| Form 8-K re: transaction documents |
Substantially final versions of the transaction documents, the forms of which were filed as exhibits to the Registration Statement, are being filed on this Current Report to satisfy the requirements of Item 1100(f) of Regulation AB.
Item 9.01. Financial Statements and Exhibits.
| (a) | Not applicable. |
| (b) | Not applicable. |
| (c) | Not applicable. |
| (d) | Exhibits. |
| Exhibit |
Document Description | |
| 1.1 | Underwriting Agreement, dated as of February 10, 2016, among Santander Drive, SC and Citigroup Global Markets Inc., as representative of the several underwriters. | |
| 4.1 | Indenture, to be dated as of February 17, 2016, between the Issuer and Wells Fargo Bank, National Association, as indenture trustee (the Indenture Trustee). | |
| 10.1 | Purchase Agreement, to be dated as of February 17, 2016, between SC and Santander Drive. | |
| 10.2 | Sale and Servicing Agreement, to be dated as February 17, 2016, among the Issuer, Santander Drive, SC and the Indenture Trustee. | |
| 10.3 | Administration Agreement, to be dated as of February 17, 2016, among the Issuer, SC, as administrator, and the Indenture Trustee. | |
| 10.4 | Amended and Restated Trust Agreement, to be dated as of February 17, 2016, between Santander Drive and Wilmington Trust, National Association, not in its individual capacity but solely as owner trustee for the Issuer. | |
| 10.5 | Asset Representations Review Agreement, to be dated as of February 17, 2016, among the Issuer, SC, as sponsor and servicer, and Clayton Fixed Income Services LLC, as asset representations reviewer. | |
| 36.1 | Depositor Certification for shelf offerings of asset-backed securities. |
| Form 8-K re: transaction documents |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| February 12, 2016 | SANTANDER DRIVE AUTO RECEIVABLES LLC | |||||
| By: | /s/ Andrew Kang | |||||
| Name: | Andrew Kang | |||||
| Title: | President and Chief Executive Officer |
| Form 8-K re: transaction documents |
Exhibit 1.1
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1
SANTANDER DRIVE AUTO RECEIVABLES LLC
Depositor
SANTANDER CONSUMER USA INC.
Sponsor and Servicer
$162,800,000 0.85000% Class A-1 Asset Backed Notes
$120,000,000 1.41% Class A-2-A Asset Backed Notes
$222,000,000 LIBOR + 0.78% Class A-2-B Asset Backed Notes
$109,120,000 1.62% Class A-3 Asset Backed Notes
$142,450,000 2.47% Class B Asset Backed Notes
$153,040,000 3.09% Class C Asset Backed Notes
$91,240,000 4.02% Class D Asset Backed Notes
UNDERWRITING AGREEMENT
February 10, 2016
Citigroup Global Markets Inc.
as Representative of the Several Underwriters
named on Schedule I hereto
390 Greenwich Street, 1st Floor
New York, New York 10013
Ladies and Gentlemen:
Section 1. Introductory.
Santander Drive Auto Receivables LLC, a Delaware limited liability company (the Seller or Depositor), and Santander Consumer USA Inc., an Illinois corporation (SC), confirm their agreement with Citigroup Global Markets Inc. (the Representative), as representative of the several underwriters (the Underwriters) listed in Section 2 of the Terms Exhibit attached hereto as Exhibit A (the Terms Exhibit) as follows:
Santander Drive Auto Receivables Trust 2016-1, a Delaware statutory trust (the Issuer), will issue the notes specified in Section 1 of the Terms Exhibit (the Issued Notes) pursuant to the Indenture, dated as of the Closing Date (the Indenture), between the Issuer and Wells Fargo Bank, National Association, as indenture trustee (the Indenture Trustee). The Seller proposes to sell to the Underwriters the Issued Notes specified in Section 3 of the Terms Exhibit (the Notes).
The assets of the Issuer (the Trust Estate) consist of all money, accounts, chattel paper, general intangibles, goods, instruments, investment property and other property of the Issuer, including without limitation (i) the Receivables acquired by the Issuer under the Sale and Servicing Agreement, dated as of the Closing Date (the Sale and Servicing Agreement), by and
among the Seller, the Issuer, SC, as servicer, and the Indenture Trustee, the Related Security relating thereto and Collections thereon after the Cut-Off Date, (ii) all Receivable Files, (iii) the rights of the Issuer to the funds on deposit from time to time in the Trust Accounts and any other account or accounts (other than the Certificate Distribution Account) established pursuant to the Indenture or Sale and Servicing Agreement and all cash, investment property and other property from time to time credited thereto and all proceeds thereof (including investment earnings, net of losses and investment expenses, on amounts on deposit therein, other than provided in Section 3.7 of the Sale and Servicing Agreement), (iv) the rights of the Seller, as buyer, under the Purchase Agreement, (v) the rights of the Issuer under the Sale and Servicing Agreement and the Administration Agreement and (vi) all proceeds of the foregoing. The Issued Notes will be collateralized by the Trust Estate.
The Receivables and related property will be conveyed to the Seller by SC pursuant to the Purchase Agreement, dated as of the Closing Date (the Purchase Agreement), between the Seller and SC and will be conveyed to the Issuer by the Seller pursuant to the Sale and Servicing Agreement.
The terms of the Notes are set forth in the Registration Statement (as defined below) and the related Prospectus (as defined below).
Capitalized terms used herein but not defined herein or in the Terms Exhibit shall have the meanings given such terms in Appendix A to the Sale and Servicing Agreement.
The Seller has prepared and filed with the Securities and Exchange Commission (the Commission) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Act), a shelf registration statement on Form SF-3 (having the registration number 333-206684), including a form of prospectus, as amended by pre-effective amendments no. 1, no. 2, no. 3 and no. 4 relating to the offering of asset-backed notes. The registration statement as amended has been declared effective by the Commission not more than three years prior to the date hereof, or the Seller has prepared and filed (before the expiration of such three year period) with the Commission in accordance with the Act, a new shelf registration statement on Form SF-3 and such new registration statement includes unsold securities covered by the earlier registration statement, which such unsold securities may continue to be offered and sold until the earlier of the effective date of the new registration statement or 180 days after the third anniversary of the initial effective date of the prior registration statement, as permitted pursuant to paragraph (a)(5) of Rule 415 of the Act. If any post-effective amendment has been filed with respect thereto, prior to the execution and delivery of this Underwriting Agreement, the most recent such amendment shall have been declared effective by the Commission. Such registration statement, as amended at the time of effectiveness, including all material incorporated by reference therein and including all information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430D under the Act, is referred to in this Underwriting Agreement as the Registration Statement. The Company proposes to file with the Commission pursuant to Rule 424(b) under the Act (Rule 424(b)) a final prospectus (such prospectus, as amended and supplemented, the Prospectus) relating to the Notes and the method of distribution thereof.
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Prior to the date and time of the first Contract of Sale (as defined in Section 4(i) hereof) for the Notes (the Time of Sale), the Seller had prepared (i) Issuer Free Writing Prospectus(es) (as defined in Section 16(a)(iii) hereof) issued at or prior to the Time of Sale and (ii) the Preliminary Prospectus, dated February 4, 2016 (subject to completion). As used herein, Preliminary Prospectus means, with respect to any date or time referred to herein, the most recent preliminary prospectus (as such preliminary prospectus may be amended or supplemented), which has been prepared and delivered by the Seller to the Underwriters in accordance with the provisions hereof. As used herein, (i) Time of Sale Information means, collectively, each Issuer Free Writing Prospectus and the most recent Preliminary Prospectus and (ii) Canadian Notices means the Canadian Notice to the most recent Preliminary Prospectus and the Canadian Notice to the Prospectus.
Pursuant to this Underwriting Agreement and the Terms Exhibit, which is incorporated by reference herein (this Underwriting Agreement including such Terms Exhibit if the context so requires, the Underwriting Agreement), and subject to the terms hereof, the Seller agrees to sell the Notes to the Underwriters named in such Terms Exhibit.
Section 2. Representations and Warranties of the Seller and SC.
(a) Each of the Seller and SC severally represents and warrants (as to itself) to the Underwriters, as of the date hereof (unless specified otherwise) and as of the Closing Date, as follows:
(i) The Seller has prepared and filed the Registration Statement with the Commission in accordance with the provisions of the Act, including a form of prospectus, relating to the Notes. The Registration Statement as amended has been declared effective by the Commission and is effective. The conditions to the use of a registration statement on Form SF-3 under the Act and the conditions of Rule 415 under the Act, including the Registrant Requirements set forth in General Instruction I.A. of Form SF-3, have been satisfied as of the date of this Underwriting Agreement and will be satisfied as of the Closing Date. The conditions to the use of a registration statement on Form SF-3 under the Act, as stated in the Transaction Requirements set forth in General Instruction I.B. of Form SF-3, will be satisfied as of the Closing Date. No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or threatened by the Commission.
(ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representative has agreed in writing, shall be in all substantive respects in the form furnished to the Representative or its counsel before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the most recent Preliminary Prospectus that has previously been furnished to the Representative) as the Seller or SC has advised the Representative, before such time, will be included or made therein.
(iii) On the most recent effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements
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of the Act and the rules and regulations of the Commission thereunder, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and, on the date hereof and on the Closing Date, the Prospectus will conform in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder, and (A) on the Closing Date, the Registration Statement will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (B) as of its date and on the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing does not apply to (1) that part of the Registration Statement which constitutes the Statements of Eligibility of Qualification (Form T-1) of the Indenture Trustee or other indenture trustees under the Trust Indenture Act of 1939, as amended (the Trust Indenture Act) or (2) the Underwriters Information (as defined in Section 8(b) hereof).
(iv) As of its date and at the Time of Sale, the Road Show Information (as defined in Section 16(a)(iii) hereof) did not, and at the Closing Date (as defined below) will not, contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(v) The documents incorporated by reference in the Registration Statement, each Preliminary Prospectus and the Prospectus (other than documents filed by Persons other than the Seller), when they became or become effective under the Act or were or are filed with the Commission under the Securities Exchange Act of 1934, as amended (the Exchange Act), as the case may be, conformed or will conform in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder.
(vi) The Time of Sale Information at its date and at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall appear in the Prospectus but not in the Preliminary Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information contained in or omitted from either the Registration Statement or the Prospectus based upon the Underwriters Information (as defined in Section 8(b) hereof).
(vii) Other than the Time of Sale Information, the Prospectus and the Canadian Notices, the Issuer (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication, including any other free writing prospectus (each as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of any offer to buy the Notes.
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(b) The Seller or SC, as applicable, has been duly organized and is validly existing as a Delaware limited liability company or an Illinois corporation, respectively, in good standing under the laws of its jurisdiction of organization. The Seller or SC, as applicable, has, in all material respects, full power and authority to execute, deliver and perform its obligations under this Underwriting Agreement and each Transaction Document to which it is a party, own its properties and conduct its business as described in the Preliminary Prospectus and the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of holders of the Notes. The Seller has full power and authority to cause the Issuer to issue the Issued Notes.
(c) The execution, delivery and performance by the Seller or SC, as applicable, of this Underwriting Agreement and each Transaction Document to which it is a party, the issuance of the Issued Notes and sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company or corporate action on the part of the Seller or SC, respectively. Neither the execution and delivery by the Seller or SC, as applicable, of such instruments, nor the performance by the Seller or SC, respectively, of the transactions herein or therein contemplated, nor the compliance by the Seller or SC, as applicable, with the provisions hereof or thereof, will (i) conflict with the organizational documents of such entity, (ii) result in a material conflict with any of the provisions of any judgment, decree or order binding on the Seller or SC, as applicable, or its properties, (iii) conflict with any indenture or agreement or instrument to which the Seller or SC is a party or by which such entitys properties are bound (other than violations of such laws, rules, regulations, indentures or agreements which do not affect the legality, validity or enforceability of any of such agreements and which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Sellers or SCs ability to perform their respective obligations under, the Transaction Documents), (iv) conflict with any applicable law, rule or regulation or (v) result in the creation or imposition of any lien, charge or encumbrance upon any of the Sellers or SCs, as applicable, property pursuant to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Seller or SC, as applicable, has duly executed and delivered this Underwriting Agreement and, as of the Closing Date, has duly executed and delivered each Transaction Document to which it is a party.
(e) (i) SC has authorized the conveyance of the Receivables and other related property to the Seller; and (ii) the Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(f) Except as set forth in or contemplated in the Prospectus or as has been publicly disclosed by the Seller or SC, there has been no material adverse change in the condition (financial or otherwise) of SC or the Seller since December 31, 2015, which would reasonably be
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expected to have a material adverse effect on either (i) the ability of SC or the Seller to consummate the transactions contemplated hereby, or to perform its respective obligations hereunder, or under any of the Transaction Documents to which it is a party or (ii) the Receivables.
(g) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller or SC of this Underwriting Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller or SC, as applicable, at or before the Closing Date to the extent then due.
(h) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Underwriting Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each of the Indenture and each Transaction Document to which the Seller or SC is a party will constitute the legal, valid and binding obligation of the Seller or SC, as applicable, enforceable against such entity in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors rights in general and to general principles of equity. All approvals, authorizations, consents, filings, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and sale of the Notes pursuant to this Underwriting Agreement have been or will be taken or obtained on or before the Closing Date. As of the Closing Date, the Issuers pledge of the Trust Estate to the Indenture Trustee pursuant to the Indenture will vest in the Indenture Trustee, for the benefit of the Noteholders, a first priority perfected security interest therein, subject to no prior lien, mortgage security interest, pledge, adverse claim, charge or other encumbrance, except as may be permitted by the terms of the Transaction Documents.
(i) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes neither the Seller nor the Issuer will be, an investment company that is registered or required to be registered under, or is otherwise subject to the restrictions of, the Investment Company Act of 1940, as amended (the Investment Company Act), and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of investment company under the Investment Company Act contained in Section 3(c)(5) of the Investment Company Act. The Issuer is structured so as not to constitute a covered fund as defined in the final regulations issued December 10, 2013, implementing the Volcker Rule (Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act).
(j) Except for the Underwriters, none of the Seller, the Issuer or SC has employed or retained a broker, finder, commission agent or other person in connection with the sale of the Notes, and none of the Seller, the Issuer or SC is under any obligation to pay any brokers fee or commission in connection with such sale.
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(k) As of the Closing Date, the Indenture has been duly qualified under the Trust Indenture Act.
(l) Based on information currently available to, and in the reasonable belief of, the management of the Seller or SC, as applicable, such entity is not engaged (whether as defendant or otherwise) in, nor has such entity knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings, the result of which could reasonably have a material adverse effect on the Noteholders.
(m) As of the Closing Date, the representations and warranties (other than the representations and warranties concerning the characteristics of the Receivables which representations and warranties will be true and correct in all material respects as of the date set forth in the applicable Transaction Document) of the Seller, the Issuer or SC (both in its individual capacity and as Servicer), as applicable, in each Transaction Document to which it is a party will be true and correct in all material respects.
(n) As of the Closing Date, there are no contracts or documents that are required to be filed as exhibits to the Registration Statement that have not been so filed.
(o) No Event of Default or Servicer Replacement Event, or an event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(p) The Seller was not, on the date on which the first bona fide offer of the Notes sold pursuant to this Underwriting Agreement was made, an ineligible issuer as defined in Rule 405 under the Act.
(q) SC has provided a written representation (the 17g-5 Representation) to each nationally recognized statistical rating organization hired by SC to rate the Issued Notes (collectively, the Hired NRSROs), which satisfies the requirements of paragraph (a)(3)(iii)(A) through (E) of Rule 17g-5 of the Exchange Act (Rule 17g-5) and a copy of which has been delivered to each Underwriter. SC has complied, and has caused the Seller to comply, in all material respects with the 17g-5 Representation, other than any breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4(j) or Section 4(k) hereof.
(r) The Seller has complied with Rule 193 of the Act in connection with the offering of the Notes. Neither the Depositor nor SC has engaged any person to provide third-party due diligence services (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, other than from a nationally recognized independent accounting firm acceptable to the Representative (the Accounting Firm). The Depositor obtained a third-party due diligence report (as defined in Rule 15Ga-2 under the Exchange Act (Rule 15Ga-2)), prepared by the Accounting Firm entitled Independent Accountants Report on Applying Agreed-Upon Procedures, dated January 25, 2016 (the Accountants Due Diligence Report), and neither the Depositor nor SC has received any third-party due diligence report (as defined in Rule 15Ga-2) other than the Accountants Due Diligence Report.
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(s) The Depositor has (i) furnished to the Commission a Form ABS-15G (the Form ABS-15G) containing the findings and conclusions of the Accountants Due Diligence Report and meeting all other requirements of Rule 15Ga-2, including by furnishing such Form ABS-15G to the Commission on EDGAR within the time period required by Rule 15Ga-2, and (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representative in a reasonable period of time prior to the furnishing of such Form ABS-15G to the Commission as set forth in clause (i).
Section 3. Purchase, Sale and Issuance of Notes.
Subject to the terms and conditions and in reliance upon the covenants, representations and warranties set forth herein, the Seller agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase the respective Initial Note Balance of the Notes set forth opposite such Underwriters name in Section 3 of the Terms Exhibit. The Notes will bear interest at the applicable rate set forth therein. The issuance of the Issued Notes and the sale and purchase of the Notes shall take place at a closing (the Closing) at the offices of Mayer Brown LLP, 71 South Wacker Drive, 39th Floor, Chicago, Illinois on the closing date specified in the Terms Exhibit (the Closing Date). The net purchase price for the Notes, expressed as a percentage of the Initial Note Balance of the applicable class of Notes, shall be as set forth in Section 4 of the Terms Exhibit. On the Closing Date, as consideration for the delivery of the Notes as set forth in this Section, each Underwriter agrees, severally and not jointly, to pay (or cause to be paid) the net purchase price to an account to be designated by the Seller. The underwriting discount to the Underwriters, the selling concessions that the Underwriters may allow to certain dealers, and the discounts that such dealers may reallow to certain other dealers, each expressed as a percentage of the Initial Note Balance of the applicable class of Notes sold to the Underwriters, shall be as set forth in Section 4 of the Terms Exhibit. The Seller shall deliver (or shall cause the Issuer to deliver) the Notes to the Underwriters for their respective accounts through the facilities of The Depository Trust Company (DTC). The Notes shall be global notes registered in the name of Cede & Co., as nominee for DTC. The interests of beneficial owners of the Notes will be represented by book entries on the records of DTC and participating members thereof. The number and denominations of global notes so delivered shall be as specified by DTC. The Seller and SC agree to have authentic copies of the Issued Notes available for inspection by the Representative in New York, New York, not later than 12:00 p.m. New York City time on the Business Day prior to the Closing Date, or such other date and time as the Representative and the Seller may agree. The original global certificated Notes will be held by the Indenture Trustee in Minneapolis, Minnesota.
Section 4. Offering by Underwriters.
(a) The Seller authorizes each Underwriter to take all such action as it may deem advisable in respect of all matters pertaining to sales of the Notes to dealers and to retail purchasers and to member firms and specialists, including the right to make variations in the selling arrangements with respect to such sales. If the Prospectus specifies an initial public offering price or a method by which the price at which such Notes are to be sold is determined, then after the Notes are released for sale to the public, the Underwriters may vary from time to time the public offering price, selling concessions and reallowances to dealers that are members of the Financial Industry Regulatory Authority, Inc. and other terms of sale hereunder and under such selling arrangements.
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(b) Notwithstanding the foregoing, each Underwriter severally but not jointly agrees that it will not offer or sell any Notes within the United States, its territories or possessions or to persons who are citizens thereof or residents therein, except in transactions that are not prohibited by any applicable securities, bank regulatory or other applicable law.
(c) Notwithstanding the foregoing, each Underwriter severally but not jointly agrees that it will not offer or sell any Notes in any other country, its territories or possessions or to persons who are citizens thereof or residents therein, except in transactions that are not prohibited by any applicable securities law.
(d) Each Underwriter severally but not jointly represents and agrees that:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act of 2000, as amended (the FSMA)) received by it in connection with the issue or sale of any Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer or the Depositor;
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom; and
(iii) after the Closing Date, it will provide the Seller with a list of all foreign jurisdictions related to any written confirmations of sale of Notes it has sent.
(e) Each Underwriter severally but not jointly agrees that (i) if the Prospectus is not delivered with the confirmation in reliance on Rule 172, it will include in every confirmation sent out by such Underwriter the notice required by Rule 173 informing the investor that the sale was made pursuant to the Registration Statement and that the investor may request a copy of the Prospectus from such Underwriter; (ii) if a paper copy of the Prospectus is requested by a person who receives a confirmation, such Underwriter shall deliver a printed or paper copy of such Prospectus; and (iii) if an electronic copy of the Prospectus is delivered by an Underwriter for any purpose, such copy shall be the same electronic file containing the Prospectus in the identical form transmitted electronically to such Underwriter by or on behalf of the Seller specifically for use by such Underwriter pursuant to this Section 4(e); for example, if the Prospectus is delivered to an Underwriter by or on behalf of the Seller in a single electronic file in .pdf format, then such Underwriter will deliver the electronic copy of the Prospectus in the same single electronic file in .pdf format. Each Underwriter further agrees that if it delivers to an investor the Prospectus in .pdf format, upon such Underwriters receipt of a request from the investor within the period for which delivery of the Prospectus is required, such Underwriter will promptly deliver or cause to be delivered to the investor, without charge, a paper copy of the Prospectus.
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(f) Prior to the Closing Date, the Representative shall notify SC and the Seller of (i) the date on which the Preliminary Prospectus is first used and (ii) the time of the first Contract of Sale to which such Preliminary Prospectus relates.
(g) Each Underwriter severally but not jointly represents and agrees (i) that it did not enter into any Contract of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any time that such Underwriter is acting as an underwriter (as defined in Section 2(a)(11) of the Act) with respect to the Notes, deliver to each investor to whom Notes are sold by it during the period prior to the filing of the Prospectus (as notified to the Underwriters by the Seller), prior to the applicable time of any such Contract of Sale with respect to such investor, the Preliminary Prospectus.
(h) In relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), each Underwriter severally but not jointly represents and agrees with the Seller that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the Relevant Implementation Date) it has not made and will not make an offer of Notes to the public in that Relevant Member State other than to any legal entity which is a qualified investor as defined in the Prospectus Directive; provided that no such offer of Notes shall require the Issuer, the Depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive.
For the purposes of this Section 4(h), the expression an offer of Notes to the public in relation to any Notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered, so as to enable an investor to decide to purchase or subscribe to the Notes, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State. The expression Prospectus Directive means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU) and includes any relevant implementing measure in the Relevant Member State.
(i) If the Seller, SC or an Underwriter determines or becomes aware that any written communication (as defined in Rule 405 under the Act) (including without limitation the Preliminary Prospectus) or oral statement (when considered in conjunction with all information conveyed at the time of the contract of sale within the meaning of Rule 159 under the Act and all Commission guidance relating to such rule (the Contract of Sale)) made or prepared by the Seller or such Underwriter contains an untrue statement of material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading at the time that a Contract of Sale was entered into, unless otherwise provided in Section 16(e) hereof, either the Seller or such Underwriter may prepare corrective information, with notice to the other parties, and such Underwriter shall deliver such information in a manner reasonably acceptable to both parties, to any person with whom a Contract of Sale was entered into based on such written communication or oral statement, and such information shall provide any such person with the following:
(i) adequate disclosure of the contractual arrangement;
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(ii) adequate disclosure of the persons rights under the existing Contract of Sale at the time termination is sought;
(iii) adequate disclosure of the new information that is necessary to correct the misstatements or omissions in the information given at the time of the original Contract of Sale; and
(iv) a meaningful ability to elect to terminate or not terminate the prior Contract of Sale and to elect to enter into or not enter into a new Contract of Sale.
Any costs or losses incurred in connection with any such termination or reformation shall be subject to Section 8 hereof.
(j) Each Underwriter severally but not jointly represents and agrees that, (i) it has not delivered, and will not deliver, any Rating Information to a Hired NRSRO or other nationally recognized statistical rating organization and (ii) it has not participated, and will not participate, in any oral communication regarding Rating Information with any Hired NRSRO or other nationally recognized statistical rating organization unless a designated representative from SC participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Hired NRSRO, such Underwriter is authorized to inform such Hired NRSRO that it will respond to the oral communication with a designated representative from SC. For purposes of this paragraph, Rating Information means any information provided to a Hired NRSRO for the purpose of (a) determining the initial credit rating for the Issued Notes, including information about the characteristics of the Receivables and the legal structure of the Issued Notes, and (b) undertaking credit rating surveillance on the Issued Notes, including information about the characteristics and performance of the Receivables.
(k) Each Underwriter severally but not jointly represents that it has not engaged and will not engage any person to provide third-party due diligence services (as defined in Rule 17g-10 under the Exchange Act) relating to the Issued Notes, it being understood that the Accounting Firm has been engaged by SC and the Depositor for the purpose of providing the Accountants Due Diligence Report.
Section 5. Covenants.
The Seller or SC, as the case may be, covenants and agrees with each Underwriter that:
(a) The Seller will prepare a Prospectus setting forth the amount of Notes covered thereby and the terms thereof, the price at which the Notes are to be purchased by the Underwriters from the Seller, the initial public offering price at which the Notes are to be sold, the selling concessions and allowances, if any, and such other information as the Seller deems appropriate in connection with the offering of the Notes, but the Seller will not file any amendments to the Registration Statement as in effect with respect to the Notes, or any amendments or supplements to the Preliminary Prospectus, or the Prospectus, without the Representatives prior written consent (which consent shall not be unreasonably withheld or delayed); the Seller will immediately advise the Underwriters and their counsel: (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement has become or will become effective, (ii) when any supplement or amendment to the Preliminary
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Prospectus, the Prospectus or the Registration Statement has been filed and (iii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Notes, or any prevention or suspension of the use of the Preliminary Prospectus or the Prospectus or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission or any authority administering any state securities or Blue Sky law, as soon as practicable after the Seller is advised thereof, and will use its reasonable efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued.
(b) Within the time period during which a prospectus relating to the Notes is required to be delivered under the Act, the Seller has complied, or will comply, with all requirements imposed upon it by the Act, the Exchange Act and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Notes, as contemplated by the provisions hereof and the Prospectus. If, at any time when a Preliminary Prospectus or Prospectus relating to the Notes is required to be delivered under the Act (or required to be delivered but for Rule 172 under the Act), any event occurs as a result of which the Preliminary Prospectus or Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the rules and regulations of the Commissioner thereunder, the Seller will promptly notify the Representative and promptly prepare and (subject to review and consent by the Representative as described in Section 5(a) hereof) file with the Commission, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; provided, however, that the Representatives consent to any amendment shall not constitute a waiver or limitation of any right of any Underwriter hereunder.
(c) The Seller will make (or will cause the Issuer to make) generally available to the Noteholders (the sole Noteholder being the applicable clearing agency in the case of Book-Entry Notes (as defined in Appendix A to the Sale and Servicing Agreement)), in each case as soon as practicable, a statement which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission with respect to the Notes; provided that this covenant may be satisfied by posting the monthly Servicers Certificate for the Issuer on a publicly available website or filing such Servicers Certificates with the Commission on a Form 10-D.
(d) Upon request, the Seller will furnish to the Underwriters copies of the Registration Statement (at least one copy to be delivered to the Underwriters will be conformed and will include all documents and exhibits thereto or incorporated by reference therein), any Issuer Free Writing Prospectus, the Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Underwriters may reasonably request.
(e) The Seller will assist the Underwriters in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Underwriters may designate and will continue to assist the Underwriters in maintaining such qualifications in effect so long as required for the distribution; provided, however, that neither the Seller nor the Issuer shall be required to qualify to do business in any
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jurisdiction where it is now not qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is now not subject to service of process or to file a general consent to service of process in any jurisdiction in which it is now not subject to service of process. The Seller will promptly advise the Underwriters of any notice of suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) If filing of any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any portion thereof is required under Rule 424(b), Rule 424(h) or Rule 433 of the Commission, the Seller will file such Issuer Free Writing Prospectus, Preliminary Prospectus or Prospectus, properly completed, and any supplement thereto, pursuant to Rule 424(b), Rule 424(h) or Rule 433, as applicable, within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing. The Seller (i) will file all transaction agreements containing the provisions that are required by General Instructions I.B.1(b), I.B.1(c) and I.B.1(d) of Form SF-3 with the Commission no later than the date the Prospectus is required to be filed under Rule 424 of the Act, (ii) will timely file all certifications required by General Instruction I.B.1(a) of Form SF-3 and (iii) has filed all material required to be filed by General Instruction I.A.2 for the use of a registration statement on Form SF-3 within the time periods required by Form SF-3, the Act or the rules and regulations of the Commission thereunder.
(g) So long as any of the Notes are outstanding, the Seller or SC, as applicable, will furnish to the Underwriters, by first-class mail, as soon as practicable: (i) all documents required to be distributed to the Noteholders; and (ii) from time to time, such other information concerning the Seller, SC or the Issuer as the Underwriters may reasonably request.
(h) The Seller and SC will apply the net proceeds from the sale of the Notes as set forth in the Prospectus.
(i) SC will comply, and will cause the Seller to comply, with the 17g-5 Representation.
Section 6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made by the Seller and SC herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the Seller and SC made pursuant to the provisions thereof, to the performance by the Seller and SC in all material respects of their respective obligations hereunder and to the following additional conditions precedent:
(a) The Underwriters shall have received, with respect to each of the Seller and SC, a certificate, dated the Closing Date, of an authorized officer of each of the Seller and SC, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that: (i) the representations and warranties of the Seller or SC, as applicable, in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller or SC, as applicable, has complied in all material respects with
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all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, (iv) since September 30, 2015, the performance of SCs outstanding securitized transactions and the credit quality of the receivables underlying such securitized transactions have not materially deteriorated from the delinquency and credit loss data presented in the Preliminary Prospectus, (v) no Event of Default or Servicer Replacement Event or event or condition which would, with notice or lapse of time, or both, become an Event of Default or a Servicer Replacement Event has occurred or is continuing and (vi) since the Time of Sale, each of the Seller and SC continues to be a direct or indirect subsidiary of Banco Santander, S.A. or its successor in interest and there has been no material adverse change in the condition (financial or otherwise) of the Sellers or SCs, as applicable, automobile finance business, except as set forth in or contemplated in the Preliminary Prospectus.
(b) The Underwriters shall have received an opinion of Mayer Brown LLP, special counsel to SC and the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, 1940 Act matters, tax matters and enforceability matters.
Such counsel shall also provide a negative assurance letter, dated as of the Closing Date, concerning the Registration Statement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Prospectus, in form and substance reasonably satisfactory to the Representative.
(c) The Underwriters shall have received an opinion or opinions of Mayer Brown LLP, special counsel for SC and the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to certain true sale and nonconsolidation matters.
(d) The Underwriters shall have received from Sidley Austin llp, a favorable opinion dated the Closing Date, with respect to such matters as the Representative may reasonably require; and the Seller and SC shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters.
(e) The Underwriters shall have received an opinion from the general counsel, deputy general counsel or associate general counsel of SC or such other legal counsel that SC may choose (provided that such legal counsel is acceptable to the Underwriters) dated the Closing Date, in form and substance satisfactory to the Representative, with respect to certain corporate matters relating to SC and the Seller.
(f) The Underwriters shall have received an opinion or opinions from Richards, Layton & Finger, P.A., special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the Seller to file a voluntary bankruptcy petition and (ii) certain corporate matters with respect to the Seller.
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(g) On or before the Closing Date, (i) a nationally recognized independent accounting firm acceptable to the Representative shall have furnished to the Underwriters letters relating to (A) the Preliminary Prospectus, dated as of the date of the Preliminary Prospectus, and (B) the Prospectus, dated as of the date of the Prospectus, regarding certain specified procedures performed with respect to the Issued Notes and the Receivables, each in form and substance satisfactory to the Representative, and (ii) the Accounting Firm shall have furnished to the Representative the Accountants Due Diligence Report.
(h) The Representative shall have received evidence satisfactory to the Representative that, on or before the Closing Date, UCC-1 financing statements have been filed with (or have been sent for filing on the Closing Date or the next Business Day to) the appropriate UCC filing offices in the State of Delaware and the State of Illinois, reflecting the transfer of Receivables and other related property from SC to the Seller, the transfer of Receivables and other related property from the Seller to the Issuer and the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee.
(i) The Representative shall have received evidence satisfactory to it that on or before the Closing Date, all applicable UCC termination statements relating to liens of creditors of the Seller, the Issuer, SC or any other person on the Receivables have been filed with (or have been sent for filing on the Closing Date or the next Business Day to) the appropriate filing offices, and the Representative shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the Issuer, SC or any other person on the Receivables.
(j) The Underwriters shall have received an opinion of Chapman & Cutler LLP, counsel to the Indenture Trustee, dated the Closing Date, in form and substance satisfactory to the Representative.
(k) The Underwriters shall have received an opinion or opinions of Richards, Layton & Finger, P.A., counsel to the Issuer and the Owner Trustee, dated the Closing Date, in form and substance satisfactory to the Representative.
(l) The Underwriters shall have received an opinion of in-house counsel to the Asset Representations Reviewer, dated the Closing Date, in form and substance satisfactory to the Representative.
(m) The Notes shall have received the ratings indicated in the Ratings Free Writing Prospectus (as defined in Section 16(a)(i) hereof) from the nationally recognized statistical rating organizations named therein.
(n) The Underwriters shall have received such information, certificates and documents as the Underwriters may reasonably request.
(o) On the Closing Date, the Underwriters shall have received a fully executed copy of each of the Transaction Documents.
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(p) The Issuer shall have delivered to DTC (or an approved custodian therefor) each of the global Notes described in Section 3 hereof, duly executed by the Issuer and authenticated by the Indenture Trustee.
(q) The Issuer shall have executed and delivered to DTC a standard letter of representations sufficient to cause DTC to qualify each Class of Notes for inclusion in DTCs book-entry registration and transfer system, and each Class of Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer system.
(r) The Trust Accounts (as defined in Appendix A to the Sale and Servicing Agreement) shall have been established in accordance with the terms of the Sale and Servicing Agreement.
(s) The Prospectus shall have been filed as required by Section 2(a) hereof, and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Seller, SC or any Underwriter, threatened by the Commission or by any authority administering any state securities or blue sky law, and any requests for additional information (to be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Underwriters.
(t) The Indenture shall have been qualified pursuant to the Trust Indenture Act.
(u) All actions required to be taken and all filings required to be made by the Issuer, the Seller and SC under the Act before the Closing Date for the issuance of the Issued Notes, including any Issued Notes retained by the Depositor or an affiliate of the Depositor, shall have been duly taken or made.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Underwriting Agreement, or if any of the opinions or certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, this Underwriting Agreement and all its obligations hereunder may be canceled at, or at any time before, the Closing Date by the Underwriters. Notice of such cancellation shall be given to the Issuer, the Seller and SC in writing or by telephone or facsimile confirmed in writing.
Section 7. Expenses.
(a) Except as expressly set forth in this Underwriting Agreement, SC and the Seller, jointly and severally, will pay all expenses incidental to the performance of their obligations hereunder and will reimburse each Underwriter for any expense reasonably incurred by it in connection with (i) the qualification of the Notes and determination of their eligibility for investment under the laws of such jurisdictions as the Underwriters may designate (including the reasonable fees and disbursements of their counsel), (ii) the printing of memoranda relating thereto, (iii) any fees charged by credit rating agencies for the rating of the Issued Notes and (iv) expenses incurred in distributing the Prospectus to the Underwriters. Notwithstanding anything to the contrary contained herein, SC and the Seller, jointly and severally, will pay the reasonable fees and disbursements of Underwriters counsel in connection with the purchase, sale
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and offering of the Notes. Except as specifically provided in this Section 7 and in Section 8 hereof, the Seller or SC will pay all of its own costs and expenses (including the fees and disbursements of counsel), transfer taxes on resales of Notes by it and any advertising expenses connected with any offers it may make.
(b) If the sale of the Notes provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied or because of any refusal, inability or failure on the part of the Seller or SC to perform any agreement herein or to comply with any provision hereof other than by reason of a default by any Underwriter, the Seller and SC, jointly and severally, will reimburse the Underwriters upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by the Underwriters in connection with the proposed purchase, sale and offering of the Notes. Neither the Seller nor SC shall be liable to the Underwriters for loss of anticipated profits from the transactions covered by this Underwriting Agreement.
Section 8. Indemnification and Contribution.
(a) The Seller and SC, jointly and severally, will indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person, against any losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Time of Sale Information (it being understood that such indemnification with respect to the Time of Sale Information does not include the omission of pricing and price-dependent information, which information shall appear in the Prospectus but not in the Time of Sale Information), any Form ABS-15G furnished to the Commission on EDGAR with respect to the transactions contemplated by this Underwriting Agreement (a Furnished Form ABS-15G), the Canadian Notices, the Prospectus or any Issuer Information, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any investigations or information requests from any regulator or government entity relating in any manner to the transactions contemplated hereby, including the subpoena issued to SC by the Department of Justice under the Financial Institutions Reform, Recovery and Enforcement Act of 1989; and will reimburse each Underwriter and each such officer, director, employee, agent or controlling person for any legal or other expenses reasonably incurred by each Underwriter and each such officer, director, employee, agent or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that neither the Seller nor SC shall be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement in or omission or alleged omission made in any such documents in reliance upon and in conformity with written information furnished to the Seller by any Underwriter specifically for use therein, it being understood and agreed that the only such information is the Underwriters Information. This indemnity agreement will be in addition to any liability which the Seller or SC may otherwise have.
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(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller and SC, and each person, if any, who controls the Seller or SC within the meaning of the Act or the Exchange Act and the respective officers, directors, and employees of each such person, against any losses, claims, damages or liabilities to which the Seller or SC may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Preliminary Prospectus, the Prospectus, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Underwriters Information (as defined below), and (ii) the failure upon the part of such Underwriter to deliver the Preliminary Prospectus prior to the Time of Sale to any investor with whom such Underwriter entered into a Contract of Sale at such Time of Sale and will reimburse any legal or other expenses reasonably incurred by the Seller or SC, and each such officer, director, employee or controlling person, as the case may be, in connection with investigating or defending any such loss, claim, damage, liability or action. As used herein, the term Underwriters Information means the (1) concession and reallowance figures appearing in the second table under the caption Underwriting in the Preliminary Prospectus or Prospectus and (2) information in the thirteenth paragraph following the second table under the caption Underwriting in the Preliminary Prospectus or Prospectus insofar as it relates to market-making transactions. This indemnity agreement will be in addition to any liability that each Underwriter may otherwise have.
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller and SC, and each person, if any, who controls the Seller or SC within the meaning of the Act or the Exchange Act and the respective officers, directors and employees of each such person, against any losses, claims, damages or liabilities to which the Seller or SC may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon, (i) any untrue statement or alleged untrue statement of any material fact contained in any Underwriter Free Writing Prospectus (as defined in Section 16(a)(iv) hereof), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) any statement contained in any Underwriter Free Writing Prospectus that conflicts with the information then contained in the Registration Statement or any prospectus that is a part thereof, and will reimburse any legal or other expenses reasonably incurred by the Seller or SC in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that with respect to clauses (i) and (ii) above, no Underwriter will be liable to the extent that any such loss, claim, damage or liability arises out of or is based upon any statement in or omission from any Underwriter Free Writing Prospectus in reliance upon and in conformity with (A) any written information furnished to the related Underwriter by the Seller or SC expressly for use therein, (B) information accurately extracted from the Preliminary Prospectus or Prospectus, which information was not corrected by information subsequently provided by the Seller or SC to the related Underwriter prior to the time of use of such Underwriter Free Writing Prospectus or (C) Issuer Information (as defined in Section 16(a) hereof) (except for information regarding the status of the subscriptions for the Notes). This indemnity agreement will be in addition to any liability that each Underwriter may otherwise have.
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(d) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under clause (a), (b) or (c) of this Section 8, notify the indemnifying party of the commencement thereof, but the omission and/or delay so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party other than under clause (a), (b) or (c) of this Section 8. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may elect by written notice, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses (including fees and expenses of counsel) subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. If the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel reasonably satisfactory to the indemnifying party to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) of this Section 8, then such indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in this Section 8, (i) in such proportion as is appropriate to reflect the relative benefits received by the Seller and SC on the one hand and relevant Underwriter on the other from the offering of the Notes or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Seller and SC on the one hand and the relevant Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Seller and SC on the one hand and the relevant Underwriter on the other shall be deemed to be in the
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same proportion as the total net proceeds from the offering (before deducting expenses) collectively received by the Seller and SC bear to the total underwriting discounts and commissions received by the relevant Underwriter. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Seller, SC or by any Underwriter and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this clause (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim (which shall be limited as provided in subsection (d) above if the indemnifying party has assumed the defense of any such action in accordance with the provisions thereof) which is the subject of this clause (e). Notwithstanding the provisions of this clause (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the discounts and commissions received by the Underwriters in connection with the initial sale of the Notes exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or allegedly untrue statements or omissions or alleged omissions. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligation of the Underwriters under this Section 8(e) shall be several in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the indemnifying party under this Section 8 shall be in addition to any liability which the indemnifying party may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the indemnifying party within the meaning of the Act.
Section 9. Survival of Representations and Obligations.
The respective agreements, representations, warranties and other statements made by the Seller and SC or their officers, including any such agreements, representations, warranties and other statements relating to the Issuer, and of the Underwriters set forth in or made pursuant to this Underwriting Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters, the Seller, SC or any of their respective officers or directors or any controlling person, and will survive delivery of and payment of the Notes. The provisions of Section 7, Section 8 and Section 17 hereof shall survive the termination or cancellation of this Underwriting Agreement.
Section 10. Notices.
All communications hereunder shall be in writing and effective only on receipt, and if sent to the Underwriters, will be mailed, delivered or faxed and confirmed to the address for the Representative set forth on the first page hereof, Attention: ABS Syndication Desk; if sent to the Seller, will be mailed, delivered or faxed and confirmed to: Santander Consumer USA Inc., 1601 Elm Street, Suite 800, Dallas, Texas 75201, Attention: Mark McCastlain; and if sent to SC, will be mailed, delivered or faxed and confirmed to: Santander Consumer USA Inc., 1601 Elm Street, Suite 800, Dallas, Texas 75201, Attention: Mark McCastlain.
20
Section 11. Applicable Law, Entire Agreement.
This Underwriting Agreement and all disputes, claims, controversies, disagreements, actions and proceedings arising out of relating to this Underwriting Agreement, including the scope or validation of this provision, will be governed by and construed in accordance with the law of the State of New York, without regard to any conflicts of laws principles thereof or of any other jurisdiction (other than Sections 5-1401 and 5-1402 of the New York General Obligations Laws), and the obligations, rights and remedies of the parties under this Underwriting Agreement shall be determined in accordance with such laws. This Underwriting Agreement represents the entire agreement between the Seller and SC, on the one hand, and the Underwriters, on the other, with respect to the preparation of the Prospectus or the Preliminary Prospectus, the conduct of the offering and the purchase and sale of the Notes.
Section 12. Successors.
This Underwriting Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors and controlling persons referred to in Section 8 hereof, and their successors and assigns, and no other person will have any right or obligation hereunder.
Section 13. Waivers; Headings.
Neither this Underwriting Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. The headings in this Underwriting Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section 14. Termination of the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Notes on the Closing Date shall be terminable by the Underwriters by written notice delivered to the Seller and SC if at any time on or before the Closing Date: (a) trading in securities generally on the New York Stock Exchange shall have been suspended or materially limited, or there shall have been any setting of minimum prices for trading on such exchange, (b) a general moratorium on commercial banking activities in Illinois or New York shall have been declared by any of Federal, Illinois state or New York state authorities, (c) there shall have occurred an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or any other major act of terrorism involving the United States, or any other substantial national or international calamity, emergency or crisis, the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the Underwriters, impracticable or inadvisable to market the Notes on the terms and in the manner contemplated in the Prospectus, or (d) any change or any development involving a prospective change, materially and adversely affecting (i) the Trust Estate taken as a whole or (ii) the business or properties of the Seller or SC occurs, which, in the reasonable judgment of the Underwriters, in the case of either clause (i) or (ii), makes it impracticable or inadvisable to market the Notes on the terms and in the manner contemplated in the Prospectus. Upon such notice being given, the parties to this Underwriting
21
Agreement shall (except for the liability of the Seller and SC under Section 7 and Section 8 hereof and the liability of each Underwriter under Section 16 hereof) be released and discharged from their respective obligations under this Underwriting Agreement.
Section 15. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay for any of the Notes agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Underwriting Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Notes set forth opposite their names in Section 3 of the Terms Exhibit bears to the aggregate amount of Notes set forth opposite the names of all the remaining Underwriters) the Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that if the aggregate amount of Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 25% of the aggregate principal amount of Notes, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Notes set forth in Section 3 of the Terms Exhibit opposite each of their respective names, and if such nondefaulting Underwriters do not purchase all the Notes set forth in Section 3 of the Terms Exhibit opposite each of their respective names, this Underwriting Agreement will terminate without liability to any nondefaulting Underwriter, the Seller or SC. In the event of a default by any Underwriter as set forth in this Section 15, the Closing Date shall be postponed for such period as is mutually agreeable to SC, the Seller and the Underwriters (with all parties hereto agreeing that time is of the essence) in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Underwriting Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Seller, SC and any nondefaulting Underwriter for damages occasioned by its default hereunder.
Section 16. Offering Communications.
(a) The following terms have the specified meanings for purposes of this Underwriting Agreement:
(i) Ratings Free Writing Prospectus means the free writing prospectus dated February 4, 2016.
(ii) Derived Information means such written information (including any Intex CDI file) regarding the Notes as is disseminated by any Underwriter to a potential investor, which information is neither (A) Issuer Information nor (B) contained in (1) the Registration Statement, the Preliminary Prospectus, the Prospectus or any amendment or supplement to any of them, taking into account information incorporated therein by reference (other than information incorporated by reference from any information regarding the Notes that is disseminated by any Underwriter to a potential investor) or (2) any computer tape in respect of the Notes or the related receivables furnished by the Seller or SC to any Underwriter.
22
(iii) Issuer Free Writing Prospectus means any issuer free writing prospectus, as defined in Rule 433 of the Act (Rule 433), relating to the Notes that (i) is required to be filed with the Commission by the Depositor, (ii) is a road show that is a written communication within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission (Road Show Information), or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Notes or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Depositors records pursuant to Rule 433(g). For the avoidance of doubt, the Ratings Free Writing Prospectus shall constitute an Issuer Free Writing Prospectus.
(iv) Issuer Information has the meaning given to such term in Rule 433(h)(2) and footnote 271 of the Commissions Release No. 33-8591 (Securities Offering Reform).
(v) Underwriter Free Writing Prospectus means written communications (as defined in Rule 405 under the Act) containing no more than the following: (1) information included in the Time of Sale Information with the consent of the Seller (except as provided in clauses (2) through (5) below), (2) information relating to the class, size, rating, price, CUSIPs, coupon, yield, spread, benchmark, status and/or legal maturity date of the Notes, the weighted average life, expected final payment date, trade date, settlement date and payment window of one or more classes of Notes and the underwriters for one or more classes of the Notes, (3) the eligibility of the Notes to be purchased by ERISA plans, (4) a column or other entry showing the status of the subscriptions for the Notes (both for the issuance as a whole and for each Underwriters retention) and/or expected pricing parameters of the Notes and/or (5) any Derived Information.
(b) The Seller will not disseminate to any potential investor any information relating to the Securities that constitutes a written communication within the meaning of Rule 405 under the Act, other than the Preliminary Prospectus and the Prospectus, unless the Seller has obtained the prior written consent of the Representative.
(c) Neither the Seller nor any Underwriter shall disseminate or file with the Commission any information relating to the Notes in reliance on Rule 167 or 426 under the Act, nor shall the Seller or any Underwriter disseminate any Underwriter Free Writing Prospectus in a manner reasonably designed to lead to its broad unrestricted dissemination within the meaning of Rule 433(d) under the Act.
(d) Each Underwriter Free Writing Prospectus shall bear the following legend, or a substantially similar legend that complies with Rule 433 under the Act:
The Seller has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Seller has filed with the SEC for more complete information about the Seller, the issuing trust, and this offering. You may get these documents for free by visiting EDGAR on the SEC Website at www.sec.gov. Alternatively, the Seller, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling 1-800-831-9146.
23
(e) Notwithstanding anything to the contrary in Section 4(i) hereof, in the event the Seller or SC becomes aware that, as of the Time of Sale, any Preliminary Prospectus with respect thereto contains or contained any untrue statement of material fact or omits or omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with all Time of Sale Information) in light of the circumstances under which they were made, not misleading (a Defective Prospectus), the Seller shall promptly notify the Underwriters of such untrue statement or omission no later than one Business Day after discovery and the Seller shall, if requested by the Underwriters, prepare and deliver to the Underwriters an amended Preliminary Prospectus approved by the Depositor and the Underwriters that corrects material misstatements or omissions in a prior preliminary prospectus (a Corrected Prospectus).
(f) Each Underwriter, severally and not jointly, represents, warrants, covenants and agrees with the Seller and SC that:
(i) Other than the Time of Sale Information, the Prospectus and the Canadian Notices, it has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to, in any communications with potential investors, any written communication (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, including but not limited to any ABS informational and computational materials as defined in Item 1101(a) of Regulation AB under the Act; provided, however, that (A) each Underwriter may prepare and convey one or more Underwriter Free Writing Prospectuses, and may convey the Registration Statement, any Corrected Prospectus, the Prospectus, the Canadian Notices and Time of Sale Information, including via Bloomberg; (B) unless otherwise consented to by the Seller, no such Underwriter Free Writing Prospectus shall be conveyed if, as a result of such conveyance, the Seller or the Trust shall be required to make any registration or other filing solely as a result of such Underwriter Free Writing Prospectus pursuant to Rule 433(d) under the Act other than the filing of the final terms of the Notes pursuant to Rule 433(d)(5) of the Act; and (C) each Underwriter will be permitted to provide confirmations of sale.
(ii) In disseminating information to prospective investors, it has complied and will continue to comply fully with the rules and regulations of the Commission, including but not limited to Rule 164 and Rule 433 under the Act and the requirements thereunder for filing and retention of any free writing prospectus, as defined in Rule 405 under the Act (each a Free Writing Prospectus), including retaining any Underwriter Free Writing Prospectuses it has used but which are not required to be filed for the required period.
(iii) Prior to entering into any Contract of Sale, it shall convey the Preliminary Prospectus to the prospective investor. The Underwriter shall maintain sufficient records to document its conveyance of such information to the potential investor prior to the formation of the related Contract of Sale and shall maintain such records as required by the rules and regulations of the Commission.
24
(iv) If a Defective Prospectus has been corrected with a Corrected Prospectus, it shall (A) deliver the Corrected Prospectus to each investor with whom it entered into a Contract of Sale and that received the Defective Prospectus from it prior to entering into a new Contract of Sale with such investor, (B) notify such investor in a prominent manner that the prior Contract of Sale with the investor, if any, has been terminated and of the investors rights as a result of such agreement and (C) provide such investor with an opportunity to elect to enter into or not enter into a new Contract of Sale based on the information set forth in the Corrected Prospectus.
(v) Each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such untrue statements or omissions were made in reliance upon and in conformity with information contained in the Preliminary Prospectus or the Prospectus or any written information furnished to the related Underwriter by SC or the Seller specifically for use in such Underwriter Free Writing Prospectus which information was not corrected by information subsequently provided by SC or the Seller to the related Underwriter prior to the time of use of such Underwriter Free Writing Prospectus.
(vi) Immediately following the use of any Underwriter Free Writing Prospectus containing any Issuer Information, it has provided the Seller a copy of such Underwriter Free Writing Prospectus, unless such Issuer Information consists of the terms of the Notes or such information is not the final information to be included in the Prospectus.
(g) The Seller shall file with the Commission, within the applicable period of time required under the Act and the rules and regulations of the Commission thereunder, any Free Writing Prospectus delivered to investors in accordance with this Section, that the Seller is required to file under the Act and the rules and regulations of the Commission thereunder. The Seller shall file with the Commission the final terms of the Notes pursuant to Rule 433(d)(5) of the Act.
Section 17. No Fiduciary Duty.
The Seller and SC acknowledge that in connection with the offering of the Notes: (a) the Underwriters have acted at arms length, are not agents of or advisors to, and owe no fiduciary duties to, the Seller or SC or any other person, (b) none of the Underwriters has provided any legal, regulatory, accounting, insurance or tax advice in any jurisdiction, (c) the Underwriters owe the Seller and SC only those duties and obligations set forth in this Underwriting Agreement and (d) the Underwriters may have interests that differ from those of the Seller and SC. Each of the Seller and SC waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of advisory or fiduciary duty in connection with the offering of the Notes.
25
Section 18. Counterparts.
This Underwriting Agreement may be executed in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument.
[SIGNATURES FOLLOW]
26
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Representative a counterpart hereof, whereupon this Underwriting Agreement, along with all counterparts, shall become a binding agreement among the Seller, SC and the Underwriters in accordance with its terms.
| SANTANDER DRIVE AUTO RECEIVABLES LLC, as Seller | ||||
| By: | /s/ Mark McCastlain | |||
| Name: | Mark McCastlain | |||
| Title: | Vice President | |||
| SANTANDER CONSUMER USA INC. | ||||
| By: | /s/ Andrew Kang | |||
| Name: | Andrew Kang | |||
| Title: | Executive Vice President |
Signature Page to SDART 2016-1 Underwriting Agreement
This Underwriting Agreement is
hereby confirmed and accepted
as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.,
acting on its own behalf and as Representative
on behalf of the Underwriters referred to
in the foregoing Underwriting Agreement
| By: | /s/ Amy Jo Pitts | |||
| Name: | Amy Jo Pitts | |||
| Title: | Managing Director |
Signature Page to SDART 2016-1 Underwriting Agreement
EXHIBIT A
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1 ASSET BACKED NOTES
TERMS EXHIBIT
Dated: February 10, 2016
| To: | SANTANDER CONSUMER USA INC. |
| SANTANDER DRIVE AUTO RECEIVABLES LLC |
| Re: | Underwriting Agreement, dated February 10, 2016 |
| 1. | Terms of the Notes |
| Class | Initial Note Balance | Interest Rate | Final Scheduled Payment Date | |||||
| A-1 |
$ | 162,800,000 | 0.85000% | February 15, 2017 | ||||
| A-2-A |
$ | 120,000,000 | 1.41% | July 15, 2019 | ||||
| A-2-B |
$ | 222,000,000 | LIBOR + 0.78% | July 15, 2019 | ||||
| A-3 |
$ | 109,120,000 | 1.62% | March 16, 2020 | ||||
| B |
$ | 142,450,000 | 2.47% | December 15, 2020 | ||||
| C |
$ | 153,040,000 | 3.09% | April 15, 2022 | ||||
| D |
$ | 91,240,000 | 4.02% | April 15, 2022 | ||||
| E |
$ | 58,860,000 | 5.02% | June 15, 2023 | ||||
|
|
|
| 2. | Underwriters |
The Underwriters named below are the Underwriters for the purpose of this Underwriting Agreement and for the purposes of the above-referenced Underwriting Agreement as such Underwriting Agreement is incorporated herein and made a part hereof.
Citigroup Global Markets Inc.
BNP Paribas Securities Corp.
J.P. Morgan Securities LLC
Barclays Capital Inc.
RBC Capital Markets, LLC
Santander Investment Securities Inc.
Wells Fargo Securities, LLC
A-1
| 3. | Underwriting |
| Underwriting Liability | Class A-1 | Class A-2-A | Class A-2-B | Class A-3 | Class B | Class C | Class D | |||||||||||||||||||||
| Citigroup Global Markets Inc. |
$ | 48,840,000 | $ | 36,000,000 | $ | 66,600,000 | $ | 32,736,000 | $ | 47,484,000 | $ | 51,013,000 | $ | 30,413,000 | ||||||||||||||
| BNP Paribas Securities Corp. |
$ | 48,840,000 | $ | 36,000,000 | $ | 66,600,000 | $ | 32,736,000 | $ | 47,483,000 | $ | 51,013,000 | $ | 30,414,000 | ||||||||||||||
| J.P. Morgan Securities LLC |
$ | 48,840,000 | $ | 36,000,000 | $ | 66,600,000 | $ | 32,736,000 | $ | 47,483,000 | $ | 51,014,000 | $ | 30,413,000 | ||||||||||||||
| Barclays Capital Inc. |
$ | 4,070,000 | $ | 3,000,000 | $ | 5,550,000 | $ | 2,728,000 | $ | 0 | $ | 0 | $ | 0 | ||||||||||||||
| RBC Capital Markets, LLC |
$ | 4,070,000 | $ | 3,000,000 | $ | 5,550,000 | $ | 2,728,000 | $ | 0 | $ | 0 | $ | 0 | ||||||||||||||
| Santander Investment Securities Inc. |
$ | 4,070,000 | $ | 3,000,000 | $ | 5,550,000 | $ | 2,728,000 | $ | 0 | $ | 0 | $ | 0 | ||||||||||||||
| Wells Fargo Securities, LLC |
$ | 4,070,000 | $ | 3,000,000 | $ | 5,550,000 | $ | 2,728,000 | $ | 0 | $ | 0 | $ | 0 |
| 4. | Purchase Price, Discounts and Concessions |
| Class A-1 | Class A-2-A | Class A-2-B | Class A-3 | Class B | Class C | Class D | ||||||||||||||||||||||
| Gross Purchase Price |
100.00000 | % | 99.99461 | % | 100.00000 | % | 99.98443 | % | 99.99470 | % | 99.98160 | % | 99.98477 | % | ||||||||||||||
| Underwriting Discount |
0.140 | % | 0.170 | % | 0.170 | % | 0.200 | % | 0.400 | % | 0.440 | % | 0.600 | % | ||||||||||||||
| Net Purchase Price |
99.86000 | % | 99.82461 | % | 99.83000 | % | 99.78443 | % | 99.59470 | % | 99.54160 | % | 99.38477 | % | ||||||||||||||
| Maximum Dealer Selling Concessions |
0.084 | % | 0.102 | % | 0.102 | % | 0.120 | % | 0.240 | % | 0.264 | % | 0.360 | % | ||||||||||||||
| Maximum Dealer Reallowance Discounts |
0.042 | % | 0.051 | % | 0.051 | % | 0.060 | % | 0.120 | % | 0.132 | % | 0.180 | % |
| 5. | Time of Sale |
4:32 p.m. (Eastern Time) (U.S.) on February 10, 2016 (the time the first Contract of Sale was entered into as designated by the Underwriters).
| 6. | Closing Date |
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934, as amended, the Underwriters, the Seller and SC hereby agree that the Closing Date shall be February 17, 2016, 10:00 a.m., New York City time.
A-2
Exhibit 4.1
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1
Class A-1 0.85000% Auto Loan Asset Backed Notes
Class A-2-A 1.41% Auto Loan Asset Backed Notes
Class A-2-B LIBOR + 0.78% Auto Loan Asset Backed Notes
Class A-3 1.62% Auto Loan Asset Backed Notes
Class B 2.47% Auto Loan Asset Backed Notes
Class C 3.09% Auto Loan Asset Backed Notes
Class D 4.02% Auto Loan Asset Backed Notes
Class E 5.02% Auto Loan Asset Backed Notes
INDENTURE
Dated as of February 17, 2016
WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Indenture Trustee
2016-1 Indenture
CROSS REFERENCE TABLE1
| TIA Section | Indenture Section | |||
| 310 |
(a) (1) |
6.11 | ||
| (a) (2) |
6.11 | |||
| (a) (3) |
6.10; 6.11 | |||
| (a) (4) |
N.A.2 | |||
| (a) (5) |
6.11 | |||
| (b) |
6.8; 6.11 | |||
| (c) |
N.A. | |||
| 311 |
(a) |
6.12 | ||
| (b) |
6.12 | |||
| (c) |
N.A. | |||
| 312 |
(a) |
7.1 | ||
| (b) |
7.2 | |||
| (c) |
7.2 | |||
| 313 |
(a) |
7.3 | ||
| (b) (1) |
7.3 | |||
| (b) (2) |
7.3 | |||
| (c) |
7.3 | |||
| (d) |
7.3 | |||
| 314 |
(a) |
3.9 | ||
| (b) |
3.6; 11.16 | |||
| (c) (1) |
11.1 | |||
| (c) (2) |
11.1 | |||
| (c) (3) |
11.1 | |||
| (d) |
11.1 | |||
| (e) |
11.1 | |||
| (f) |
N.A. | |||
| 315 |
(a) |
6.1(b) | ||
| (b) |
6.5 | |||
| (c) |
6.1(a) | |||
| (d) |
6.1(c) | |||
| (e) |
5.13 | |||
| 316 |
(a) (1) (A) |
5.11 | ||
| (a) (1) (B) |
5.12 | |||
| (a) (2) |
N.A. | |||
| (b) |
5.7 | |||
| (c) |
5.6(b) | |||
| 317 |
(a) (1) |
5.3(b) | ||
| (a) (2) |
5.3(d) | |||
| (b) |
3.3(i)-(ii) | |||
| 318 |
(a) |
11.7 |
| 1 | Note: This Cross Reference Table shall not, for any purpose, be deemed to be part of this Indenture. |
| 2 | N.A. means Not Applicable. |
| 2016-1 Indenture |
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
2 | |||||
| SECTION 1.1 |
Definitions |
2 | ||||
| SECTION 1.2 |
Incorporation by Reference of Trust Indenture Act |
2 | ||||
| SECTION 1.3 |
Other Interpretive Provisions |
2 | ||||
| ARTICLE II THE NOTES |
3 | |||||
| SECTION 2.1 |
Form |
3 | ||||
| SECTION 2.2 |
Execution, Authentication and Delivery |
3 | ||||
| SECTION 2.3 |
Temporary Notes |
4 | ||||
| SECTION 2.4 |
Registration of Transfer and Exchange |
4 | ||||
| SECTION 2.5 |
Mutilated, Destroyed, Lost or Stolen Notes |
6 | ||||
| SECTION 2.6 |
Persons Deemed Owners |
6 | ||||
| SECTION 2.7 |
Payment of Principal and Interest; Defaulted Interest |
7 | ||||
| SECTION 2.8 |
Cancellation |
7 | ||||
| SECTION 2.9 |
Release of Collateral |
8 | ||||
| SECTION 2.10 |
Book-Entry Notes |
8 | ||||
| SECTION 2.11 |
Notices to Clearing Agency |
9 | ||||
| SECTION 2.12 |
Definitive Notes |
9 | ||||
| SECTION 2.13 |
Authenticating Agents |
9 | ||||
| SECTION 2.14 |
Tax Treatment |
10 | ||||
| SECTION 2.15 |
Certain Transfer Restrictions on the Notes |
11 | ||||
| SECTION 2.16 |
Certain Transfer Restrictions on the Non-Investment Grade Notes and Restricted Notes |
12 | ||||
| SECTION 2.17 |
Transfer Restrictions on Certain Notes Upon a Sale of a Certificate |
18 | ||||
| ARTICLE III COVENANTS |
18 | |||||
| SECTION 3.1 |
Payment of Principal and Interest; Determination of LIBOR |
19 | ||||
| SECTION 3.2 |
Maintenance of Office or Agency |
19 | ||||
| SECTION 3.3 |
Money for Payments To Be Held in Trust |
19 | ||||
| SECTION 3.4 |
Existence |
21 | ||||
| SECTION 3.5 |
Protection of Collateral |
21 | ||||
| SECTION 3.6 |
Opinions as to Collateral |
22 | ||||
| SECTION 3.7 |
Performance of Obligations; Servicing of Receivables |
22 | ||||
| SECTION 3.8 |
Negative Covenants |
23 | ||||
| SECTION 3.9 |
Annual Compliance Statement |
24 | ||||
| SECTION 3.10 |
Restrictions on Certain Other Activities |
25 | ||||
| SECTION 3.11 |
Restricted Payments |
25 | ||||
| SECTION 3.12 |
Notice of Events of Default; Servicer Replacement Events |
25 | ||||
| SECTION 3.13 |
Further Instruments and Acts |
26 | ||||
| SECTION 3.14 |
Compliance with Laws |
26 | ||||
| SECTION 3.15 |
Removal of Administrator |
26 | ||||
| SECTION 3.16 |
Perfection Representations, Warranties and Covenants |
26 | ||||
| SECTION 3.17 |
Investment Company Act |
26 | ||||
| SECTION 3.18 |
Tax Information |
26 |
| i | 2016-1 Indenture |
TABLE OF CONTENTS
(Continued)
| Page | ||||||
| ARTICLE IV SATISFACTION AND DISCHARGE |
26 | |||||
| SECTION 4.1 |
Satisfaction and Discharge of Indenture |
26 | ||||
| SECTION 4.2 |
Application of Trust Money |
27 | ||||
| SECTION 4.3 |
Repayment of Monies Held by Paying Agent |
27 | ||||
| ARTICLE V EVENTS OF DEFAULT; REMEDIES |
27 | |||||
| SECTION 5.1 |
Events of Default |
27 | ||||
| SECTION 5.2 |
Acceleration of Maturity; Waiver of Event of Default |
28 | ||||
| SECTION 5.3 |
Collection of Indebtedness and Suits for Enforcement by the Indenture Trustee |
29 | ||||
| SECTION 5.4 |
Remedies; Priorities |
31 | ||||
| SECTION 5.5 |
Optional Preservation of the Collateral |
35 | ||||
| SECTION 5.6 |
Limitation of Suits |
35 | ||||
| SECTION 5.7 |
Rights of Noteholders To Receive Principal and Interest |
36 | ||||
| SECTION 5.8 |
Restoration of Rights and Remedies |
36 | ||||
| SECTION 5.9 |
Rights and Remedies Cumulative |
36 | ||||
| SECTION 5.10 |
Delay or Omission Not a Waiver |
36 | ||||
| SECTION 5.11 |
Control by Noteholders |
36 | ||||
| SECTION 5.12 |
Waiver of Past Defaults |
37 | ||||
| SECTION 5.13 |
Undertaking for Costs |
37 | ||||
| SECTION 5.14 |
Waiver of Stay or Extension Laws |
38 | ||||
| SECTION 5.15 |
Action on Notes |
38 | ||||
| SECTION 5.16 |
Performance and Enforcement of Certain Obligations |
38 | ||||
| SECTION 5.17 |
Sale of Collateral |
39 | ||||
| ARTICLE VI THE INDENTURE TRUSTEE |
39 | |||||
| SECTION 6.1 |
Duties of the Indenture Trustee |
39 | ||||
| SECTION 6.2 |
Rights of the Indenture Trustee |
40 | ||||
| SECTION 6.3 |
Individual Rights of the Indenture Trustee |
43 | ||||
| SECTION 6.4 |
The Indenture Trustees Disclaimer |
43 | ||||
| SECTION 6.5 |
Notice of Defaults |
43 | ||||
| SECTION 6.6 |
Reports by the Indenture Trustee to Noteholders |
43 | ||||
| SECTION 6.7 |
Compensation and Indemnity |
43 | ||||
| SECTION 6.8 |
Removal, Resignation and Replacement of the Indenture Trustee |
44 | ||||
| SECTION 6.9 |
Successor Indenture Trustee by Merger |
45 | ||||
| SECTION 6.10 |
Appointment of Co-Indenture Trustee or Separate Indenture Trustee |
46 | ||||
| SECTION 6.11 |
Eligibility; Disqualification |
47 | ||||
| SECTION 6.12 |
Preferential Collection of Claims Against the Issuer |
47 | ||||
| SECTION 6.13 |
Representations and Warranties |
47 |
| ii | 2016-1 Indenture |
TABLE OF CONTENTS
(Continued)
| Page | ||||||
| ARTICLE VII NOTEHOLDERS LISTS AND REPORTS |
48 | |||||
| SECTION 7.1 |
The Issuer to Furnish the Indenture Trustee Names and Addresses of Noteholders |
48 | ||||
| SECTION 7.2 |
Preservation of Information; Communications to Noteholders |
48 | ||||
| SECTION 7.3 |
Reports by the Indenture Trustee |
48 | ||||
| SECTION 7.4 |
Rule 144A Information |
49 | ||||
| SECTION 7.5 |
Noteholder Demand for Repurchase, Dispute Resolution |
49 | ||||
| SECTION 7.6 |
Asset Review Voting |
50 | ||||
| ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES |
51 | |||||
| SECTION 8.1 |
Collection of Money |
51 | ||||
| SECTION 8.2 |
Trust Accounts |
51 | ||||
| SECTION 8.3 |
General Provisions Regarding Accounts |
52 | ||||
| SECTION 8.4 |
Release of Collateral |
53 | ||||
| SECTION 8.5 |
Opinion of Counsel |
53 | ||||
| ARTICLE IX SUPPLEMENTAL INDENTURES |
54 | |||||
| SECTION 9.1 |
Supplemental Indentures Without Consent of Noteholders |
54 | ||||
| SECTION 9.2 |
Supplemental Indentures with Consent of Noteholders |
55 | ||||
| SECTION 9.3 |
Execution of Supplemental Indentures |
56 | ||||
| SECTION 9.4 |
Effect of Supplemental Indenture |
57 | ||||
| SECTION 9.5 |
Conformity With Trust Indenture Act |
57 | ||||
| SECTION 9.6 |
Reference in Notes to Supplemental Indentures |
57 | ||||
| ARTICLE X REDEMPTION OF NOTES |
57 | |||||
| SECTION 10.1 |
Redemption |
57 | ||||
| SECTION 10.2 |
Form of Redemption Notice |
58 | ||||
| SECTION 10.3 |
Notes Payable on Redemption Date |
58 | ||||
| ARTICLE XI MISCELLANEOUS |
58 | |||||
| SECTION 11.1 |
Compliance Certificates and Opinions, etc |
58 | ||||
| SECTION 11.2 |
Form of Documents Delivered to the Indenture Trustee |
60 | ||||
| SECTION 11.3 |
Acts of Noteholders |
61 | ||||
| SECTION 11.4 |
Notices |
61 | ||||
| SECTION 11.5 |
Notices to Noteholders; Waiver |
61 | ||||
| SECTION 11.6 |
Alternate Payment and Notice Provisions |
62 | ||||
| SECTION 11.7 |
Conflict with Trust Indenture Act |
62 | ||||
| SECTION 11.8 |
Information Requests |
62 | ||||
| SECTION 11.9 |
Effect of Headings and Table of Contents |
63 | ||||
| SECTION 11.10 |
Successors and Assigns |
63 | ||||
| SECTION 11.11 |
Separability |
63 | ||||
| SECTION 11.12 |
Benefits of Indenture |
63 | ||||
| SECTION 11.13 |
Legal Holidays |
63 |
| iii | 2016-1 Indenture |
TABLE OF CONTENTS
(Continued)
| Page | ||||||
| SECTION 11.14 |
GOVERNING LAW; Submission to Jurisdiction; Waiver of Jury Trial |
63 | ||||
| SECTION 11.15 |
Counterparts |
64 | ||||
| SECTION 11.16 |
Recording of Indenture |
64 | ||||
| SECTION 11.17 |
Trust Obligation |
64 | ||||
| SECTION 11.18 |
No Petition |
64 | ||||
| SECTION 11.19 |
Intent |
65 | ||||
| SECTION 11.20 |
Subordination of Claims |
65 | ||||
| SECTION 11.21 |
Limitation of Liability of Owner Trustee |
66 | ||||
| SECTION 11.22 |
U.S.A. Patriot Act |
66 |
| Schedule I | Perfection Representations, Warranties and Covenants | |
| Exhibit A | Form of Notes | |
| Exhibit A-2 | Form of Class E Notes | |
| Exhibit B | Form of Transfer Certificate for Transfers of Non-Investment Grade Notes |
| iv | 2016-1 Indenture |
This INDENTURE, dated as of February 17, 2016 (as amended, supplemented or otherwise modified and in effect from time to time, this Indenture), is between SANTANDER DRIVE AUTO RECEIVABLES TRUST 2016-1, a Delaware statutory trust (the Issuer), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, solely as trustee and not in its individual capacity (the Indenture Trustee).
Each party agrees as follows for the benefit of the other party and the equal and ratable benefit of the Holders of the Issuers Class A-1 0.85000% Auto Loan Asset Backed Notes (the Class A-1 Notes), Class A-2-A 1.41% Auto Loan Asset Backed Notes (the Class A-2-A Notes), Class A-2-B LIBOR + 0.78% Auto Loan Asset Backed Notes (the Class A-2-B Notes and, together with the Class A-2-A Notes, the Class A-2 Notes) and Class A-3 1.62% Auto Loan Asset Backed Notes (the Class A-3 Notes and, together with the Class A-1 Notes and the Class A-2 Notes, the Class A Notes), then for the equal and ratable benefit of the Holders of the Issuers Class B 2.47% Auto Loan Asset Backed Notes (the Class B Notes), then for the equal and ratable benefit of the Holders of the Issuers Class C 3.09% Auto Loan Asset Backed Notes (the Class C Notes), then for the equal and ratable benefit of the Holders of the Issuers Class D 4.02% Auto Loan Asset Backed Notes (the Class D Notes) and then for the equal and ratable benefit of the Holders of the Issuers Class E 5.02% Auto Loan Asset Backed Notes (the Class E Notes and, collectively with the Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes, the Notes).
GRANTING CLAUSE
The Issuer, to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction except as set forth herein, and to secure compliance with the provisions of this Indenture, hereby Grants in trust to the Indenture Trustee on the Closing Date, as trustee for the benefit of the Noteholders, all of the Issuers right, title and interest, whether now owned or hereafter acquired, in and to (i) the Trust Estate and (ii) all present and future claims, demands, causes and choses in action in respect of any or all of the Trust Estate and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the Trust Estate, including all proceeds of the conversion, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments, securities, financial assets and other property which at any time constitute all or part of or are included in the proceeds of any of the Trust Estate (collectively, the Collateral).
The Indenture Trustee, on behalf of the Noteholders, acknowledges the foregoing Grant, accepts the trusts under this Indenture and agrees to perform its duties required in this Indenture in accordance with the provisions of this Indenture.
The foregoing Grant is made in trust to secure (i) the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction except as set forth herein and (ii) compliance with the provisions of this Indenture, each as provided in this Indenture.
| 2016-1 Indenture |
Without limiting the foregoing Grant, any Receivable purchased by the Servicer pursuant to Section 3.6 of the Sale and Servicing Agreement or repurchased by Santander Consumer pursuant to Section 3.4 of the Purchase Agreement shall be deemed to be automatically released from the lien of this Indenture without any action being taken by the Indenture Trustee upon payment by the Servicer or Santander Consumer, as applicable, of the related Repurchase Price for such Repurchased Receivable.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Capitalized terms are used in this Indenture as defined in Appendix A to the Sale and Servicing Agreement dated as of February 17, 2016 (as amended, modified or supplemented from time to time, the Sale and Servicing Agreement), among Santander Drive Auto Receivables LLC, as seller, the Issuer, Santander Consumer USA Inc., as servicer, and the Indenture Trustee.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
Commission means the Securities and Exchange Commission.
indenture securities means the Notes.
indenture security holder means a Noteholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Indenture Trustee.
obligor on the indenture securities means the Issuer and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meaning assigned to them by such definitions.
SECTION 1.3 Other Interpretive Provisions. All terms defined in this Indenture shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Indenture and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Indenture, and accounting terms partly defined in this Indenture to the extent not defined, shall have the respective meanings given to them under GAAP (provided, that, to the extent that the definitions in this Indenture and GAAP conflict, the definitions in this Indenture shall control); (b) terms defined in Article 9 of the UCC as in effect on the relevant jurisdiction and not otherwise defined in this Indenture are used as defined in that Article; (c) the words
| 2 | 2016-1 Indenture |
hereof, herein and hereunder and words of similar import refer to this Indenture as a whole and not to any particular provision of this Indenture; (d) references to any Article, Section, Schedule or Exhibit are references to Articles, Sections, Schedules and Exhibits in or to this Indenture and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term including and all variations thereof means including without limitation; (f) except as otherwise expressly provided herein, references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (g) references to any Person include that Persons successors and assigns; and (h) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II
THE NOTES
SECTION 2.1 Form. 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, in each case together with the Indenture Trustees certificate of authentication, shall be in substantially the form set forth in Exhibit A hereto, respectively, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing the Notes, as evidenced by their execution of the Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A hereto are part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall be executed on behalf of the Issuer by any of its Authorized Officers. The signature of any such Authorized Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who were at any time Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall, upon Issuer Order, authenticate and deliver Class A-1 Notes for original issue in an aggregate principal amount of $162,800,000, Class A-2-A Notes for original issue in an aggregate principal amount of $120,000,000, Class A-2-B Notes for original issue in an aggregate principal amount of $222,000,000, Class A-3 Notes for original issue in an aggregate principal amount of $109,120,000, Class B Notes for original issue in an aggregate principal amount of $142,450,000, Class C Notes for original issue in an aggregate principal amount of $153,040,000, Class D Notes for original issue in an aggregate principal amount of $91,240,000 and Class E Notes for original issue in an aggregate principal amount of
| 3 | 2016-1 Indenture |
$58,860,000. The Note Balance of Class A-1 Notes, Class A-2-A Notes, Class A-2-B Notes, Class A-3 Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes Outstanding at any time may not exceed such amounts except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Investment Grade Notes shall be issuable as registered Notes in the minimum denomination of $1,000 and in integral multiples of $1,000 in excess thereof (except for one Note of each Class which may be issued in a denomination other than an integral multiple of $1,000). The Non-Investment Grade Notes shall be issuable as registered Notes in the minimum denomination of $1,475,000 and in integral multiples of $1,000 in excess thereof (except for one Note which may be issued in a denomination other than an integral multiple of $1,000).
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order, the Indenture Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, of the tenor of the Definitive Notes in lieu of which they are issued and with such variations not inconsistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer shall cause Definitive Notes to be prepared without unreasonable delay. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer to be maintained as provided in Section 3.2, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute and the Indenture Trustee upon Issuer Order shall authenticate and deliver in exchange therefor a like principal amount of Definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the Note Register) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers of Notes. The Indenture Trustee shall initially be Note Registrar for the purpose of registering Notes and transfers of Notes as herein provided. Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the
| 4 | 2016-1 Indenture |
Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to conclusively rely upon a certificate executed on behalf of the Note Registrar by a Responsible Officer thereof as to the names and addresses of the Noteholders and the principal amounts and number of such Notes.
Notwithstanding the foregoing, for so long as Wells Fargo Bank, National Association is acting as the Indenture Trustee hereunder, it shall also act as the Note Registrar.
(b) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer to be maintained as provided in Section 3.2, if the requirements of Section 8-401 of the UCC are met, the Issuer shall execute and upon its written request the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Notes, in any authorized denominations, of the same Class and a like aggregate outstanding principal amount.
At the option of the related Noteholder, Notes may be exchanged for other Notes in any authorized denominations, of the same Class and a like Note Balance, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, if the requirements of Section 8-401 of the UCC are met the Issuer shall execute and, upon Issuer Request, the Indenture Trustee shall authenticate and the related Noteholder shall obtain from the Indenture Trustee, the Notes which the Noteholder making the exchange is entitled to receive.
(c) All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of transfer or exchange shall be (i) duly endorsed by, or be accompanied by a written instrument of transfer in form and substance satisfactory to the Issuer and the Indenture Trustee duly executed by the Noteholder thereof or its attorney-in-fact duly authorized in writing, with such signature guaranteed by an eligible grantor institution meeting the requirements of the Note Registrar which requirements include membership or participation in the Securities Transfer Agents Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act and (ii) accompanied by such other documents as the Indenture Trustee may require, including but not limited to the applicable IRS Form W-8 or W-9.
(e) No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 2.3 or Section 9.6 not involving any transfer.
The preceding provisions of this Section 2.4 notwithstanding, the Issuer shall not be required to make and the Note Registrar need not register transfers or exchanges of any Notes selected for redemption or of any Note for a period of 15 days preceding the Redemption Date or any Payment Date, as applicable.
| 5 | 2016-1 Indenture |