Attached files
file | filename |
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8-K - FORM 8-K - SANTANDER DRIVE AUTO RECEIVABLES LLC | g25344e8vk.htm |
EX-4.1 - EX-4.1 - SANTANDER DRIVE AUTO RECEIVABLES LLC | g25344exv4w1.htm |
EX-10.3 - EX-10.3 - SANTANDER DRIVE AUTO RECEIVABLES LLC | g25344exv10w3.htm |
EX-10.4 - EX-10.4 - SANTANDER DRIVE AUTO RECEIVABLES LLC | g25344exv10w4.htm |
EX-10.1 - EX-10.1 - SANTANDER DRIVE AUTO RECEIVABLES LLC | g25344exv10w1.htm |
EX-10.2 - EX-10.2 - SANTANDER DRIVE AUTO RECEIVABLES LLC | g25344exv10w2.htm |
EXHIBIT 1.1
EXECUTION COPY
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2010-3
SANTANDER DRIVE AUTO RECEIVABLES LLC
Depositor
Depositor
SANTANDER CONSUMER USA INC.
Sponsor and Servicer
Sponsor and Servicer
$334,700,000 0.35665% Class A-1 Asset Backed Notes
$209,200,000 0.93% Class A-2 Asset Backed Notes
$96,100,000 1.20% Class A-3 Asset Backed Notes
$94,300,000 2.05% Class B Asset Backed Notes
$165,700,000 3.06% Class C Asset Backed Notes
$209,200,000 0.93% Class A-2 Asset Backed Notes
$96,100,000 1.20% Class A-3 Asset Backed Notes
$94,300,000 2.05% Class B Asset Backed Notes
$165,700,000 3.06% Class C Asset Backed Notes
UNDERWRITING AGREEMENT
November 18, 2010
Citigroup Global Markets Inc.
390 Greenwich Street, 1st Floor
New York, NY 10013
390 Greenwich Street, 1st Floor
New York, NY 10013
Deutsche Bank Securities Inc.
60 Wall Street, 3rd Floor
New York, NY 10005
60 Wall Street, 3rd Floor
New York, NY 10005
Santander Investment Securities Inc.
45 East 53rd Street
New York, NY 10022
45 East 53rd Street
New York, NY 10022
Ladies and Gentlemen:
Section 1. Introductory.
Santander Drive Auto Receivables LLC, a Delaware limited liability company (the Seller) and
Santander Consumer USA Inc., an Illinois corporation (SC USA), confirm their agreement with
Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Santander Investment Securities
Inc. (collectively, the Underwriters) as follows:
The Seller proposes to sell to the Underwriters a portion of the notes of the classes
designated in the applicable Terms Exhibit (the Notes). The Notes are to be issued by Santander
Drive Auto Receivables Trust 2010-3, a Delaware statutory trust (the Issuer) under
the Indenture (the Indenture), dated as of the Closing Date, between the Issuer and Wells
Fargo Bank, National Association, as indenture trustee (the Indenture Trustee).
The Notes will be collateralized by the Trust Estate (as defined below). 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, by and among the Seller, the Issuer, SC USA, as servicer, and the Indenture
Trustee (the Sale and Servicing Agreement), the Related Security relating thereto and Collections
thereon after the Cut-Off Date, (ii) the Receivable Files, (iii) the security interests in the
Financed Vehicles, (iv) any proceeds from claims on any Insurance Policy or refunds in connection
with extended service agreements relating to Receivables which became Defaulted Receivables after
the applicable Cut-Off Date, (v) any other property securing the Receivables, (vi) 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), (vii) the rights of the Seller, as buyer, under the Purchase Agreement,
(viii) rights under the Sale and Servicing Agreement and the Administration Agreement, and (ix) all
proceeds of the foregoing.
The Receivables and related property will be conveyed to the Seller by SC USA pursuant to the
Purchase Agreement, dated as of the Closing Date, between the Seller and SC USA (the Purchase
Agreement) 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), as supplemented by a Prospectus Supplement (as defined
below).
Capitalized terms used herein but not defined herein or in the Terms Exhibit (as defined
below) 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 S-3 (having the registration number 333-165432), including a form of prospectus,
as amended by pre-effective amendments no. 1 and no. 2, relating to the 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
S-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 430B
under the Act, is referred to in this Underwriting Agreement (as defined
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below) as the Registration Statement. The Company proposes to file with the Commission pursuant to Rule 424(b)
under the Act (Rule 424(b)) a supplement (such supplement, together with any amendment thereof or
supplement thereto, is hereinafter referred to as the Prospectus Supplement) to the prospectus
included in the Registration Statement (such prospectus, together with any amendment thereof or
supplement thereto, in the form it appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule 424(b) is hereinafter referred to
as the Base Prospectus) relating to the Notes and the method of distribution thereof. The Base
Prospectus and the Prospectus Supplement together are hereinafter referred to as the Prospectus.
Prior to the date and time of the first Contract of Sale (as defined below) for the Notes
designated in the Terms Exhibit (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 November 12, 2010 (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,
including, without limitation, by the supplement to the Preliminary Prospectus entitled
Supplement, dated November 17, 2010 (subject to completion) to Preliminary Prospectus Supplement,
dated November 12, 2010 (subject to completion) to Prospectus, dated November 12, 2010 that was
used in connection with the offering of the Notes); which has been prepared and delivered by the
Seller to the Underwriters in accordance with the provisions hereof. As used herein, Time of
Sale Information means, collectively, each Issuer Free Writing Prospectus and the most recent
Preliminary Prospectus.
Pursuant to this Underwriting Agreement and the Terms Exhibit, attached hereto as Exhibit A
(the Terms Exhibit) and 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 to the Underwriters named in such Terms Exhibit, the Notes
identified in Section 3 of such Terms Exhibit.
Section 2. Representations and Warranties of the Seller and SC USA.
(a) Each of the Seller and SC USA 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.
The conditions to the use of a registration statement on Form S-3 under the Act, as set forth
in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement.
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
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Underwriters have agreed in writing, shall be in all substantive respects in the form furnished to the Underwriters or
their 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
latest Preliminary Prospectus that has previously been furnished to the Underwriters) as the
Seller or SC USA has advised the Underwriters, 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 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, in light of the circumstances under which they
were made, 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 (x) 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, in light of the circumstances under which
they were made, not misleading and (y) as of its date and on the Closing Date, the Prospectus
and the Designated Information (as defined below), taken together, will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing does not apply to (I) 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 (II) Underwriters Information (as defined
in Section 8(b) hereof). As used herein the term Designated Information shall mean the
static pool information referred to in the Preliminary Prospectus and the Prospectus under the
caption The Receivables Pool Information About Certain Previous Securitizations but deemed
to be excluded from the Registration Statement and Prospectus pursuant to Item 1105(d) of
Regulation AB.
(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 required to be
stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(v) The documents incorporated by reference in the Registration Statement, each
Preliminary Prospectus, 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.
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(vi) The Time of Sale Information and the Designated Information, taken together, 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 required to be stated therein or necessary to
make the statements therein, in 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 Underwriters Information.
(vii) Other than the Time of Sale Information and the Prospectus, 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.
(b) The Seller or SC USA, 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 USA, 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 Notes.
(c) The execution, delivery and performance by the Seller or SC USA, as applicable, of this
Underwriting Agreement and each Transaction Document to which it is a party, and the issuance 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 USA, respectively. Neither the execution and delivery by the Seller or SC USA, as
applicable, of such instruments, nor the performance by the Seller or SC USA, respectively, of the
transactions herein or therein contemplated, nor the compliance by the Seller or SC USA, 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 USA, as applicable, or its properties, (iii) conflict with any indenture or agreement or instrument to which the Seller
or SC USA 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 SC USAs
ability to perform their respective obligations under, the Transaction Documents), (iv) conflict
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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 SC USAs, as applicable, property pursuant
to the terms of any such indenture, mortgage, contract or other instrument.
(d) The Seller or SC USA, 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 USA 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 USA, there has been no material adverse change in the condition (financial or
otherwise) of SC USA or the Seller since September 30, 2010, which would reasonably be expected to
have a material adverse effect on either (A) the ability of SC USA 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 (B) the Receivables.
(g) Any taxes, fees and other governmental charges in connection with the execution, delivery
and performance by the Seller or SC USA 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 USA, as
applicable, at or before the Closing Date to the extent then due.
(h) The Notes, when validly issued pursuant to the Indenture and 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
USA is a party will constitute the legal, valid and binding obligation of the Seller or SC USA, 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, issuance and sale of the Notes pursuant to this
Underwriting Agreement and the Indenture 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.
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(i) Neither the Seller nor the Issuer is now, and following the issuance of the Notes 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 1940 Act).
(j) Except for the Underwriters, none of the Seller, the Issuer or SC USA 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 USA is under any obligation to pay any brokers fee
or commission in connection with such sale.
(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 USA, 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 USA (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 which 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 the Underwriting Agreement was made, an ineligible issuer as defined in Rule 405
under the Act.
(q) SC USA has provided a written representation (the 17g-5 Representation) to each
nationally recognized statistical rating organization hired by SC USA to rate the Notes
(collectively, the Hired NRSROs), which satisfies the requirements of paragraph (a)(3)(iii) of
Rule 17g-5 of the Exchange Act (Rule 17g-5) and a copy of which has been delivered to each
Underwriter. SC USA 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).
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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 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 the Terms Exhibit. On the
Closing Date, as consideration for the delivery of the Notes as set forth in this Section 3 and
Section 3 of the Terms Exhibit, 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 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 definitive notes so delivered shall be as specified by DTC. The Seller and SC
USA agree to have authentic copies of the Notes available for inspection by the Underwriters 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 Underwriters and the Seller may agree. The
original global certificated Notes will be held by Indenture Trustee in Chicago, Illinois.
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.
(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.
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(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;
(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.
(f) Prior to the Closing Date, the Underwriters shall notify SC USA 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
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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 represents and agrees with
the Seller that with effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the Relevant Implementation Date) other than:
(i) to legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in
securities; or
(ii) to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than 43,000,000
and (3) an annual net turnover of more than 50,000,000, as shown in its last annual or
consolidated accounts;
provided that no such offer of Notes shall require the Issuer 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), (A) the expression an offer of notes to the public in
relation to any Notes in any Relevant Member State means the communication to persons in any form
and by any means, presenting 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 member state by any measure implementing the Prospectus Directive in that
Relevant Member State, (B) the expression Prospectus Directive means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State and (C) the countries
comprising the European Economic Area are Austria, Belgium, Bulgaria, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) If the Seller, SC USA 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), 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:
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(i) adequate disclosure of the contractual arrangement;
(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.
(j) Each Underwriter, severally but not jointly, represents and agrees that, (a) it has not
delivered, and will not deliver, any Rating Information to a Hired NRSRO or other nationally
recognized statistical rating organization and (b) 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
USA 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 USA. 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 Notes, including information about the
characteristics of the Receivables and the legal structure of the Notes, and (b) undertaking credit
rating surveillance on the Notes, including information about the characteristics and performance
of the Receivables.
Section 5. Covenants.
The Seller or SC USA, as the case may be, covenants and agrees with each Underwriter that:
(a) The Seller will prepare a Prospectus Supplement setting forth the amount of Notes covered
thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which
the portion of the Notes identified in Section 3 of the Terms Exhibit 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 Underwriters 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
Prospectus or Prospectus 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
11
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 will comply with all requirements imposed upon it by the 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 prepare and (subject to review and consent by the
Underwriters as described in Section 5(a) of this Underwriting Agreement) 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 Underwriters consent to any amendment shall
not constitute a waiver of any of the conditions of Section 6 of this Underwriting Agreement.
(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
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
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or to file a general consent to service of process in any jurisdiction in which
it is now not subject to service of process.
(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) or Rule 433 of the Commission, the
Seller will file such Issuer Free Writing Prospectus, the Preliminary Prospectus or Prospectus,
properly completed, and any supplement thereto, pursuant to Rule 424(b) or Rule 433, as applicable,
within the prescribed time period and will provide evidence satisfactory to the Underwriters of
such timely filing.
(g) So long as any of the Notes are outstanding, the Seller or SC USA, 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 USA or the Issuer as the Underwriters may reasonably request.
(h) The Seller and SC USA will apply the net proceeds from the sale of the Notes as set forth
in the Prospectus.
(i) SC USA 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 identified in Section 3
of the Terms Exhibit will be subject to the accuracy of the representations and warranties made by
the Seller and SC USA 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 USA made
pursuant to the provisions thereof, to the performance by the Seller and SC USA 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 USA, a
certificate, dated the Closing Date, of an authorized officer of each of the Seller and SC USA, 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 USA, 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 USA, as applicable, has complied in all material
respects with 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, 2010, the performance of SC USAs 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
13
occurred or is continuing and (vi) since the Time of Sale, each of the Seller and SC USA 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 SC USAs, 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
USA and the Seller, dated the Closing Date, in form and substance satisfactory to the Underwriters,
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 and the Prospectus, in form and
substance reasonably satisfactory to the Underwriters.
(c) The Underwriters shall have received an opinion or opinions of Mayer Brown LLP, special
counsel for SC USA and the Seller, dated the Closing Date, in form and substance satisfactory to
the Underwriters, with respect to certain true sale and nonconsolidation matters.
(d) The Underwriters shall have received from Dechert LLP, a favorable opinion dated the
Closing Date, with respect to such matters as the Underwriters may reasonably require; and the
Seller and SC USA 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 USA or such other legal counsel that SC USA may choose
(provided that such legal counsel is acceptable to the Underwriters) dated the Closing Date, in
form and substance satisfactory to the Underwriters, with respect to certain corporate matters
relating to SC USA 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 Underwriters, 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, (ii)
certain corporate matters with respect to the Seller, and (iii) certain matters with respect to the
security interest of the Issuer and the Indenture Trustee, respectively, in the Receivables and
related property.
(g) On or before the Closing Date, Deloitte & Touche LLP, shall have furnished to the
Underwriters letters relating to (i) the Preliminary Prospectus, dated as of the date of the
Preliminary Prospectus and (ii) the Prospectus, dated as of the date of the Prospectus, each in
form and substance satisfactory to the Underwriters, confirming that they are certified independent
public accountants and stating in effect that they have performed certain specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Issuer, SC USA and the Seller) set
forth in the
14
Preliminary Prospectus and the Prospectus, respectively, agrees with the accounting
records of the Issuer, SC USA and the Seller, excluding any questions of legal interpretation.
(h) The Underwriters shall have received evidence satisfactory to the Underwriters that, on or
before the Closing Date, UCC-1 financing statements have been filed (or have been sent for filing
on the Closing Date or the next Business Day) with 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 USA 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 Underwriters shall have received evidence satisfactory to them that on or before the
Closing Date, all applicable UCC termination statements relating to liens of creditors of the
Seller, the Issuer, SC USA or any other person on the Receivables have been filed in (or have been
sent for filing on the Closing Date or the next Business Day to) the appropriate filing offices,
and the Underwriters shall have received on or before the Closing Date contractual releases or
releases terminating liens of creditors of the Seller, the Issuer, SC USA or any other person on
the Receivables.
(j) The Underwriters shall have received an opinion of Dorsey & Whitney LLP, counsel to the
Indenture Trustee, dated the Closing Date, in form and substance satisfactory to the Underwriters
and their counsel.
(k) The Underwriters shall have received an opinion of Richards, Layton & Finger, P.A.,
counsel to the Owner Trustee, dated the Closing Date, in form and substance satisfactory to the
Underwriters and their counsel.
(l) The Notes shall have received the ratings indicated in the Ratings Free Writing Prospectus
from the nationally recognized statistical rating organizations named therein.
(m) The Underwriters shall have received such information, certificates and documents as the
Underwriters may reasonably request.
(n) On the Closing Date, the Underwriters shall have received a fully executed copy of each of
the Transaction Documents.
(o) The Issuer shall have delivered to DTC (or an approved custodian therefor) each of the
global Notes described in Section 3 above, duly executed by the Issuer and authenticated by the
Indenture Trustee.
(p) 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, DTC shall have counter-signed such letter, and each Class of
Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer
system.
(q) The Trust Accounts shall have been established in accordance with the terms of the Sale
and Servicing Agreement.
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(r) 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 USA or any
Underwriter, threatened by the Commission, and any request of the Commission 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.
(s) The Indenture shall have been qualified pursuant to the Trust Indenture Act.
(t) All actions required to be taken and all filings required to be made by the Issuer, the
Seller and SC USA under the Act before the Closing Date for the issuance of the Notes 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 USA in writing or by telephone or
facsimile confirmed in writing.
Section 7. Expenses.
(a) Except as expressly set forth in this Underwriting Agreement, SC USA 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 Notes, and (iv)
expenses incurred in distributing the Prospectus to the Underwriters. Notwithstanding anything to
the contrary contained herein, SC USA and the Seller, jointly and severally, will pay the
reasonable fees and disbursements of Underwriters counsel in connection with the purchase, sale
and offering of the Notes. Except as specifically provided in this Section 7 and in Section 8 of
this Underwriting Agreement, the Seller or SC USA 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 identified in Section 3 of the Terms Exhibit provided for herein
is not consummated because any condition to the obligations of the Underwriters set forth in
Section 6 of this Underwriting Agreement is not satisfied or because of any refusal, inability or
failure on the part of the Seller or SC USA 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 USA,
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.
16
Neither the Seller nor SC USA 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 USA, 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 and employees of each such person, against
any losses, claims, damages or liabilities, joint or several, to which such Underwriter or such
controlling person 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 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), the Prospectus, the Designated Information or any Issuer Information, or
arise out of or are based upon 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; and will
reimburse each Underwriter and each such officer, director, employee or controlling person for any
legal or other expenses reasonably incurred by each Underwriter and each such officer, director,
employee 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 USA 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 Citigroup Global Markets Inc., Deutsche Bank Securities Inc. or Santander Investment
Securities Inc., 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 USA may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller
and SC USA, and each person, if any, who controls the Seller or SC USA 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 USA 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,
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 USA, and each such officer, director, employee or controlling person, as the case may be, in
17
connection with investigating or defending any such loss, claim, damage, liability or action. As
used herein, the term Underwriters Information means under the caption Underwriting in the
Prospectus Supplement, the (1) concession and reallowance figures appearing in the second table and
(2) information in the eleventh paragraph following the second table under such caption insofar as
it relates to market-making transactions in the Preliminary Prospectus or Prospectus. 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 USA, and each person, if any, who controls the Seller or SC USA 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 USA 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)), 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 or
prospectus supplement that is a part thereof, and will reimburse any legal or other expenses
reasonably incurred by the Seller or SC USA 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 USA 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 USA 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)) (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.
(d) Promptly after receipt by an indemnified party under this Section 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
18
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, (i) in such
proportion as is appropriate to reflect the relative benefits received by the Seller and SC USA 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 USA 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 USA on the one hand and the relevant Underwriter on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before deducting
expenses) collectively received by the Seller and SC USA 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 USA 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
19
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 USA 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 USA
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 and Section 8 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 to the
Underwriters, will be mailed, delivered or faxed and confirmed to: address for the Underwriters set
forth on the first page hereof, Attention: Steve Vierengel, if to Citigroup Global Markets Inc.,
Attention: Katherine Bologna, if to Deutsche Bank Securities Inc.; Attention: Luis Araneda, if to
Santander Investment Securities Inc.; if sent to the Seller, will be mailed, delivered or faxed and
confirmed to: Santander Consumer USA Inc., 8585 North Stemmons Freeway, Suite 1100-N, Dallas, Texas
75247, Attention: Andrew Kang; and if sent to SC USA, will be mailed, delivered or faxed and
confirmed to: Santander Consumer USA Inc., 8585 North Stemmons Freeway, Suite 1 100-N, Dallas,
Texas 75247, Attention: Andrew Kang.
Section 11. Applicable Law, Entire Agreement.
This Underwriting Agreement will be governed by and construed in accordance with the law of
the State of New York. This Underwriting Agreement represents the entire agreement between the
Seller and SC USA, 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.
20
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 identified in Section 3 of the Terms
Exhibit on the Closing Date shall be terminable by the Underwriters by written notice delivered to
the Seller and SC USA 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 USA 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 Agreement shall (except for the liability of the Seller and SC USA under Section 7 of
this Underwriting Agreement and Section 8 of this Underwriting Agreement and the liability of each
Underwriter under Section 16) 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 pursuant to Section 3 of the Terms Exhibit
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 set forth in Section 3 of the Terms Exhibit, 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
21
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 USA. In the event of a default by any Underwriter as set forth in
this Section 16, the Closing Date shall be postponed for such period as is mutually agreeable to SC
USA, 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 USA 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 November
12, 2010.
(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 Supplement, 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 USA to
any Underwriter.
(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 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 Securities Offering Reform Release No. 33-8591 of the Act.
(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
22
(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 Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Santander
Investment Securities Inc.
(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 1-800-326-5897.
(e) Notwithstanding anything to the contrary in Section 4(i), in the event the Seller or SC
USA 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 USA that:
23
(i) Other than the Preliminary Prospectus and the Prospectus, 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
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 Rules 164 and 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 they have
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.
(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 USA or the Seller specifically for use in such
24
Underwriter Free Writing Prospectus which information was not corrected by information subsequently
provided by SC USA 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 Supplement.
(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 USA 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 USA or any other person, (b) the Underwriters owe the Seller and SC USA
only those duties and obligations set forth in this Underwriting Agreement and (c) the Underwriters
may have interests that differ from those of the Seller and SC USA. Each of the Seller and SC USA
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.
If you are in agreement with this Underwriting Agreement, please sign a counterpart hereof and
return it to the Seller and SC USA, whereupon this Underwriting Agreement and your acceptance shall
become a binding agreement among the Seller, SC USA and the Underwriters.
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]
25
Very truly yours, SANTANDER DRIVE AUTO RECEIVABLES LLC, as Seller |
||||
By: | /s/ Andrew Kang | |||
Name: | Andrew Kang | |||
Title: | Vice President |
SANTANDER CONSUMER USA INC. |
||||
By: | /s/ Andrew Kang | |||
Name: | Andrew Kang | |||
Title: | Director, Securitizations |
A-1
This Underwriting Agreement is
hereby confirmed and accepted
as of the date first above written.
hereby confirmed and accepted
as of the date first above written.
CITIGROUP GLOBAL MARKETS INC. |
||||
By: | /s/ Steven Vierengel | |||
Name: | Steven Vierengel | |||
Title: | Director | |||
DEUTSCHE BANK SECURITIES INC. |
||||
By: | /s/ Katherine Bologna | |||
Name: | Katherine Bologna | |||
Title: | Vice President | |||
By: | /s/ Jay Steiner | |||
Name: | Jay Steiner | |||
Title: | Managing Director | |||
SANTANDER INVESTMENT SECURITIES INC.
|
||||
By: | /s/ Erik Deidan | |||
Name: | Erik Deidan | |||
Title: | Senior Vice President | |||
By: | /s/ Luis Araneda | |||
Name: | Luis Araneda | |||
Title: | Managing Director | |||
A-2
EXHIBIT A
SANTANDER DRIVE AUTO RECEIVABLES TRUST 2010-3
ASSET BACKED NOTES
ASSET BACKED NOTES
TERMS EXHIBIT
Dated: November 18, 2010 | ||
To: | SANTANDER CONSUMER USA INC. SANTANDER DRIVE AUTO RECEIVABLES LLC |
|
Re: Underwriting Agreement, dated November 18, 2010 |
1. Terms of the Notes
Final Scheduled | ||||||||||||
Class | Initial Note Balance | Interest Rate | Payment Date | |||||||||
A-1 |
$ | 334,700,000.00 | 0.35665 | % | December 15, 2011 | |||||||
A-2 |
$ | 209,200,000.00 | 0.93 | % | June 17, 2013 | |||||||
A-3 |
$ | 96,100,000.00 | 1.20 | % | June 16, 2014 | |||||||
B |
$ | 94,300,000.00 | 2.05 | % | May 15, 2015 | |||||||
C |
$ | 165,700,000.00 | 3.06 | % | November 15, 2017 |
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.
Deutsche Bank Securities Inc.
Santander Investment Securities Inc.
3. | Underwriting |
Underwriting Liability | Class A-1 | Class A-2 | Class A-3 | Class B | Class C | |||||||||||||||
Deutsche Bank
Securities Inc. |
$ | 111,568,000.00 | $ | 69,734,000.00 | $ | 32,034,000.00 | $ | 31,434,000.00 | $ | 22,834,000.00 | ||||||||||
Citigroup Global
Markets Inc. |
$ | 111,566,000.00 | $ | 69,733,000.00 | $ | 32,033,000.00 | $ | 31,433,000.00 | $ | 22,833,000.00 | ||||||||||
Santander
Investment
Securities Inc. |
$ | 111,566,000.00 | $ | 69,733,000.00 | $ | 32,033,000.00 | $ | 31,433,000.00 | $ | 22,833,000.00 | ||||||||||
Total Amount |
$ | 334,700,000.00 | $ | 209,200,000.00 | $ | 96,100,000.00 | $ | 94,300,000.00 | $ | 68,500,000.00 |
A-1
4. Purchase Price, Discounts and Concessions
Class A-1 | Class A-2 | Class A-3 | Class B | Class C | ||||||||||||||||
Gross Purchase Price |
100.00000 | % | 99.99391 | % | 99.99703 | % | 99.98230 | % | 99.98308 | % | ||||||||||
Underwriting Discount |
0.140 | % | 0.170 | % | 0.200 | % | 0.500 | % | 0.600 | % | ||||||||||
Net Purchase Price |
99.86000 | % | 99.82391 | % | 99.79703 | % | 99.48230 | % | 99.38308 | % | ||||||||||
Maximum Dealer Selling Concessions |
0.084 | % | 0.102 | % | 0.120 | % | 0.300 | % | 0.360 | % | ||||||||||
Maximum Dealer Reallowance
Discounts |
0.042 | % | 0.051 | % | 0.060 | % | 0.150 | % | 0.180 | % |
5. Time of Sale
9:00 a.m. (Eastern Time) (U.S.) on November 18, 2010 (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 USA hereby agree that the Closing Date shall be November 24, 2010,
10:00 a.m., New York City time.
A-2