Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in this Section 3.6. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof to the Owner Trustee accompanied by the documents required by this Section 3.6. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon surrender of the Certificate to the Owner Trustee accompanied by (a) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee may reasonably require, (b) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (d) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and receipt by the Owner Trustee of the transferor’s Certificate, the Owner Trustee shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and issue, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate. (b) As a condition precedent to any registration of transfer under this Section 3.6, the Owner Trustee may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. (c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. Affiliate of the Seller) shall be deemed to have acknowledged, represented and agreed as follows: (1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Notes and Restricted Notes. (3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation. (4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio. (5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)). (6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding. (d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements. (e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT. (f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section Code section 7704(b)(1) of the Code), including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio.)
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(d6) Each purchaserPrior to December 31, 2017 or such later date that the Amended Partnership Audit Rules shall apply to the Issuer, (A) it shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion;
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates;
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates, and the transferee and any accounts for which it is acting are each able to bear the economic risk of its investment;
(13) The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in such manner with respect to the U.S. Internal Revenue Service. In additionCertificates;
(14) The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act;
(15) The transferee will provide notice to each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed Person to understand and acknowledge that the Issuer has the right, hereunder, whom it proposes to withhold on transfer any beneficial owner of an interest in a Certificate that fails to comply the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto;
(16) The transferee is not acquiring the Certificates (or any interest therein) with the foregoing requirements.
assets of (ea) Each Certificate shall bear a legend an “employee benefit plan” as defined in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.any Plan that is subject to Similar Law;
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.;
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise) of its purchase or the documentation for the Certificates, (d) the transferee has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers to the extent it has deemed necessary, and it has made i
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. B to the Owner Trustee upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall consent in writing that no such written representation letter is required). By accepting and holding a Certificate (or any interest therein), the holder thereof shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Owner Trustee. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (cii) unless the transferee is a U.S. Affiliate of the Seller, an executed Certificate Investor Representation Letter in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall consent in writing that no such written representation letter is required) and (diii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee of the transferor’s Certificate, the Owner Trustee shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and and, in the case of a Definitive Certificate, issue, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the a new Definitive Certificate or Definitive Certificates, the Owner Trustee shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. Affiliate of the Seller) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee Seller has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transfereetransferee or other applicable persons) that the proposed transfer transfer, without the representation pursuant to such transferee this paragraph, will not cause the Issuer to be treated as a an association or publicly traded partnership within taxable as a corporation for U.S. federal income tax purposes and the meaning of Section 7704 of the CodeSeller has consented to such transfer in writing, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Notes, Restricted Notes and Restricted Notesthe Certificates.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner TrusteeAdministrator, on behalf of the Issuer, which consent shall be granted unless the Owner Trustee Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer Seller, on behalf of the Issuer, consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in corporation (e.g. the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of the provisions of this (cSections 3.7(c) of Section 3.6, (iior 3.7(h) would or could cause the number of beneficial owners of CertificatesNon-Investment Grade Notes, Restricted Notes and Non-Investment Grade Notes the Certificates (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio95).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(6) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 3.7 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2014-4), Trust Agreement (Santander Drive Auto Receivables Trust 2014-4)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) ). 11 Second Amended and Restated Trust Agreement (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and NonDRIVE 2018-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio.1)
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph). 12 Second Amended and Restated Trust Agreement (DRIVE 2018-1)
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion;
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates;
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates, and the transferee and any accounts for which it is acting are each able to bear the economic risk of its investment;
(13) The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in such manner with respect to the U.S. Internal Revenue Service. In additionCertificates; 13 Second Amended and Restated Trust Agreement (DRIVE 2018-1)
(14) The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act;
(15) The transferee will provide notice to each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed Person to understand and acknowledge that the Issuer has the right, hereunder, whom it proposes to withhold on transfer any beneficial owner of an interest in a Certificate that fails to comply the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto;
(16) The transferee is not acquiring the Certificates (or any interest therein) with the foregoing requirements.
assets of (ea) Each Certificate shall bear a legend an “employee benefit plan” as defined in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.any Plan that is subject to Similar Law;
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.;
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise) of its purchase or the documentation for the Certificates, (d) the transferee has consulted with its own legal, regulatory, tax, business, investment, financia
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture 11 Amended and Restated Trust Agreement (SDART 2020-4) Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaser, beneficial owner and subsequent transferee It shall provide to the Administrator on behalf of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide and the Depositor any further information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that by the Issuer has to comply with Sections 6221 through 6241 of the rightCode, hereunder, to withhold on including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of an interest in a Certificate that fails Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the foregoing requirementsCode, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(e7) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a No transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee (or interest therein) shall be permitted (nor shall a Certificate Investor Representation Letter be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the form case of Exhibit B hereto clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (3y) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement a Section 385 Controlled Partnership of such CertificateholderSection 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the Owner Trustee willcase of clause (y), upon actual knowledge unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such circumstanceDomestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, direct the Certificate Registrar not to register such attempted any Restricted Notes shall be taken into account either as debt interests or purported transfer andownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph). (8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer has been registeredthat contravenes any provisions of Section 3.5(b), such transfer Section 3.7(c) or Section 3.7(h) shall be absolutely null and a void transfer ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholderinitio.
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2020-4), Trust Agreement (Santander Drive Auto Receivables Trust 2020-4)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture 11 Amended and Restated Trust Agreement (SDART 2021-3) Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity or account whose underlying assets are deemed to include assets of any of the foregoing or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any represen
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2021-3), Trust Agreement (Santander Drive Auto Receivables Trust 2021-3)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity or account whose underlying assets are deemed to include assets of any of the foregoing or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (i
Appears in 2 contracts
Sources: Trust Agreement (Drive Auto Receivables Trust 2021-1), Trust Agreement (Drive Auto Receivables Trust 2021-1)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding). 11 Amended and Restated Trust Agreement (DRIVE 2019-4)
(A) It shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(d7) Each purchaserNo transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., beneficial 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner and subsequent exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or an interest therein will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoe
Appears in 2 contracts
Sources: Trust Agreement (Drive Auto Receivables Trust 2019-4), Trust Agreement (Drive Auto Receivables Trust 2019-4)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding). 11 Amended and Restated Trust Agreement (DRIVE 2019-3)
(A) It shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(d7) Each purchaserNo transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., beneficial 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner and subsequent exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or an interest therein will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoe
Appears in 2 contracts
Sources: Trust Agreement (Drive Auto Receivables Trust 2019-3), Trust Agreement (Drive Auto Receivables Trust 2019-3)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding . In the event a Certificate (or any interest therein)transferor transfers only a portion of its Percentage Interest, each transferee of a Certificate (other than a U.S. Affiliate of the Seller) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form shall execute, and substance acceptable to the Seller (whichCertificate Registrar shall register, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer authenticate and deliver to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2)transferor, a “transferee”) either (A) is not, new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and will not become, a partnership, S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity upon the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case issuance of a disregarded entitynew Definitive Certificate or Definitive Certificates, the interests of its single owner) is or will be attributable Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transferee’s (or in the case of a disregarded entitytransfer. Unless otherwise provided under applicable law, the single owner’s) interest in Certificates, Non-Investment Grade Notes and Restricted Notes.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio.
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate Paying Agent two properly completed and duly executed originals is registered as the sole owner of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding.
(d) Each purchaser, the beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that in the Issuer may provide evidenced by such Certificate, without regard to any information concerning its investment in the Certificates notice to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementscontrary.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2020-1), Trust Agreement (Santander Drive Auto Receivables Trust 2020-1)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Owner Trustee to comply with applicable law. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive 10 Amended and Restated Trust Agreement (SDART 2018-4) Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section Code section 7704(b)(1) of the Code), including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed 11 Amended and Restated Trust Agreement (SDART 2018-4) originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates. 13 Amended and Restated Trust Agreement (SDART 2018-4)
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto;
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the t
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2018-4), Trust Agreement (Santander Drive Auto Receivables Trust 2018-4)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter substantially in the form of Exhibit B. B to the Certificate Registrar upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required). By accepting and holding a Certificate (or any interest therein), the holder thereof shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (cii) unless the transferee is a U.S. corporate Affiliate of the Seller (or disregarded entity thereof), an executed Certificate Investor Representation Letter substantially in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (diii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register execute, and issue the Certificate Registrar shall register, authenticate and deliver to such transferor transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the a new Definitive Certificate or Definitive Certificates, the Owner Trustee Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Register and the Indenture Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee Seller has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transfereetransferee or other applicable persons) that the proposed transfer transfer, without the representation pursuant to such transferee this paragraph, will not cause the Issuer to be treated as a an association or publicly traded partnership within taxable as a corporation for U.S. federal income tax purposes and the meaning of Section 7704 of the CodeSeller has consented to such transfer in writing, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Restricted Notes and Restricted Notesthe Certificates.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Certificate Registrar, the Indenture Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner TrusteeAdministrator, on behalf of the Issuer, which consent shall be granted unless the Owner Trustee Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer Seller, on behalf of the Issuer, consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposescorporation (e.g., the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of the provisions of this (cSection 3.7(c) of or Section 3.6, (ii3.7(h) would or could cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes the Certificates (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio95).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(6) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: “THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODEJURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATECERTIFICATE (OR ANY INTEREST HEREIN), EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT. EACH PURCHASER OR TRANSFEREE OF THIS CERTIFICATE (OR INTEREST HEREIN) WILL BE REQUIRED TO PROVIDE TO THE OWNER TRUSTEE, THE ADMINISTRATOR, THE INDENTURE TRUSTEE AND THE CERTIFICATE PAYING AGENT A CERTIFICATION OF NON-FOREIGN STATUS (E.G., IRS FORM W-9), SIGNED UNDER PENALTIES OF PERJURY, OR OTHER INFORMATION OR DOCUMENTATION REQUESTED BY THE OWNER TRUSTEE, THE ADMINISTRATOR, THE INDENTURE TRUSTEE OR THE CERTIFICATE PAYING AGENT TO DETERMINE THAT PAYMENTS ON THIS CERTIFICATE WILL NOT BE SUBJECT TO WITHHOLDING UNDER U.S. TAX LAW.”
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 3.7 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee Certificate Registrar a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture 11 Amended and Restated Trust Agreement (SDART 2020-3) Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity or account whose underlying assets are deemed to include assets of any of the foregoing or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any represen
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2020-3), Trust Agreement (Santander Drive Auto Receivables Trust 2020-3)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter substantially in the form of Exhibit B. B to the Certificate Registrar upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for United States federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required). By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (cii) unless the transferee is a U.S. corporate Affiliate of the Seller (or disregarded entity thereof), an executed Certificate Investor Representation Letter substantially in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for United States federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (diii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register execute, and issue the Certificate Registrar shall register, authenticate and deliver to such transferor transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the a new Definitive Certificate or Definitive Certificates, the Owner Trustee Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Register and the Indenture Trustee may shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee Seller has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transfereetransferee or other applicable persons) that the proposed transfer transfer, without the representation pursuant to such transferee this paragraph, will not cause the Issuer to be treated as a an association or publicly traded partnership within taxable as a corporation for United States federal income tax purposes and the meaning of Section 7704 of the CodeSeller has consented to such transfer in writing, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but (x) no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Restricted Notes and the Certificates and (y) it is not and will not be a principal purpose of the arrangement involving such entity’s beneficial interest in any Restricted NotesNotes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Certificate Registrar, the Indenture Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner TrusteeAdministrator, on behalf of the Issuer, which consent shall be granted unless the Owner Trustee Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for United States federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer Seller, on behalf of the Issuer, consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for United States federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; providedcorporation (e.g., howeverthe transfer could cause the aggregate number of beneficial owners of Restricted Notes, the Certificates (or interests therein) and any instrument with respect to which there has not been rendered an opinion that in the case of the first transfer of a Certificate that it will result in the Issuer being deemed to have more than one beneficial owner be treated as debt for United States federal income tax purposes, issued by an entity 50% or more of the Seller shall value of which is or will be entitled, upon requestattributable to direct or indirect interests in the Issuer, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio95).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(6) Prior to December 31, 2017 or such later date that the Amended Partnership Audit Rules shall apply to the Issuer, (A) it shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) Unless the Seller has received an opinion from a nationally recognized tax counsel (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee or other applicable persons) that the proposed transfer or the type of transfer described by this paragraph, without the representation pursuant to this paragraph, will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for United States federal income tax purposes, it (and any Person for which it holds Certificates as agent or nominee) will not (i) beneficially own 80% or more of the Certificates (or interest therein) at any time that (A) a member of an expanded group (as defined in Proposed Treasury Regulation section 1.385-1(b)(3) or any successor regulation then in effect) that includes such holder (or a person considered to be the same person as the holder for United States federal income tax purposes), (B) a “controlled partnership” (as defined in proposed Treasury Regulation Section 1.385-1(b)(1)) of such expanded group or (C) a disregarded entity owned directly or indirectly by a person described in preceding clause (A) or (B) beneficially owns any Note or (ii) beneficially own 80% or more of the Certificates and Restricted Notes, taken together, at any time that (A) a member of an expanded group (as defined in Proposed Treasury Regulation section 1.385-1(b)(3) or any successor regulation then in effect) that includes such holder (or a person considered to be the same person as the holder for United States federal income tax purposes), (B) a “controlled partnership” (as defined in proposed Treasury Regulation Section 1.385-1(b)(1)) of such expanded group or (C) a disregarded entity owned directly or indirectly by a person described in preceding clause (A) or (B) beneficially owns any Note other than a Restricted Note.
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio. 13 Amended and Restated Trust Agreement (2016-3)
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: “THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODEJURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATECERTIFICATE (OR INTEREST HEREIN), EACH PURCHASER AND TRANSFEREE (AND IF THE PURCHASER OR TRANSFEREE WILL BE IS A PLAN (AS DEFINED BELOW), ITS FIDUCIARY) IS DEEMED TO REPRESENT AND WARRANT THAT IT SUCH PURCHASER OR TRANSFEREE IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY THE ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA), (II) A “PLAN” AS DEFINED IN OR SECTION 4975(e)(1) 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH OF THE FOREGOING, A “BENEFIT PLAN INVESTOR”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH A PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER A LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.SIMIL
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) the documents required by clause (c) hereofhereof and (iii) such other documentation as may be required by the Owner Trustee to comply with applicable law. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive 10 Amended and Restated Trust Agreement (SDART 2018-3) Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section Code section 7704(b)(1) of the Code), including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed 11 Amended and Restated Trust Agreement (SDART 2018-3) originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto;
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any a
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables Trust 2018-3)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing acquiring and will not hold the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, shall notify the Owner Trustee thereof, whereupon the Owner Trustee shall execute, in the name of and issueon behalf of the Issuer, execute and deliver the Certificate Registrar shall authenticate and deliver, to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, in the name of and on behalf of the Issuer, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement a correct, complete and properly executed Internal Revenue Service Form W-9 or Internal Revenue Service Form W-8 (other than an Internal Revenue Service Form W-8ECI or an Internal Revenue Service Form W-8IMY with any Internal Revenue Service Form W-8ECI attached), as applicable, or any successors to such IRS forms or other reasonable information or certification requested by the Owner Trustee, the Administrator or the Certificate Paying Agent (x) to permit the applicable withholding agent (including the Owner Trustee, the Indenture Trustee or the Certificate Paying Agent) to make payments to such owner without withholding (including any FATCA withholding tax), (y) to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets, or (z) to enable the applicable withholding agent (including the Owner Trustee, the Indenture Trustee or the Certificate Paying Agent) to satisfy any reporting or other obligations under any applicable tax law (including FATCA), and will update or replace such form, certification or other information as necessary in accordance with its terms or its subsequent amendments (and in no event shall provide an IRS Form W-8ECI or IRS Form W-8IMY with any IRS Form W-8ECI attached).
(c) By accepting and holding a Certificate (or any interest therein), each transferee or purchaser of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or any Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it Its beneficial interest in the Certificates (and any interests therein) is acquiring any Certificate not and shall not be less than the minimum principal amount for the account certificates set forth in this Agreement, and it does not and will not hold any interest on behalf of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of any Person whose beneficial interest in such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require in an amount that is less than the written consent minimum principal amount for such Certificate set forth in this Agreement (in each case, reduced by previous payments to the Certificateholders with respect of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that principal of such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporationCertificate).
(4) It (has complied with Section 3.7(b) and delivered appropriate tax documentation. Further, in the event of any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates a Certificate (or any interest therein) is permitted unless (A) ), such transfer is owner of a Certificate beneficial interest shall comply with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%Section 1446(f) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed Code (including with respect to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive deducting and withholding from the transferor purchase price paid in respect of such Certificate unless such owner obtained a certificate providing for an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initioexemption from such withholding).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate will deliver the applicable IRS forms and information required to be delivered, as described above, on or prior to the date on which such owner becomes registered owner or owner of a beneficial interest in a Certificate under this Trust Agreement and from time to time thereafter as prescribed by applicable law or upon the request of the Certificate Paying Agent.
(6) Each registered owner of, and, if different, each owner of a beneficial interest in, a Certificate represents to the Issuer and Owner Trustee by acceptance of a Certificate or interest therein that it is not and will not become subject to any FATCA Withholding. In the case of a Certificateholder that is not a U.S. Tax Person and provides a IRS Form W-8BEN or IRS Form W-8BEN-E under Section 3.7(b) in order to claim the benefits of the exemption for portfolio interest under Sections 871 or 881 of the Code (instead of, for example, claiming the benefits of an income tax treaty to which the United States is a party), such Certificateholder (or in the case of a Certificateholder providing IRS Form W-8IMY, the beneficial owner of the Certificate) hereby represents that it is not (i) a “bank” within the meaning of Section 881(c)(3) of the Code, (ii) a “10 percent shareholder” of an obligor on a Receivable within the meaning of Section 871(h) or 881(c)(3) (as the case may be) or (iii) a “controlled foreign corporation” with respect to such an obligor described in Section 881(c)(3) of the Code. In the case of a Certificateholder that is not a U.S. Tax Person, such person represents to the Issuer and Owner Trustee by acceptance of a Certificate or interest therein that it is not acquiring or holding a Certificate or beneficial interest therein in connection with a trade or business within the United States person(within the meaning of Section 864 of the Code).
(A) It shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(8) Unless the Depositor has received an opinion from a nationally recognized tax counsel that the restriction on the proposed acquisition or ownership of a Certificate (or interest therein) described by this paragraph is no longer necessary to conclude that any such acquisition (and subsequent resale of the applicable Notes described below) will not cause the Treasury Regulations under Section 385 of the Code to apply to the applicable Notes described below in a manner that could cause a material adverse tax effect on the Issuer, (A) a Section 385 Certificateholder cannot acquire or hold a Certificate (or interest therein) if (i) a member of any “expanded group”(as defined in Treasury Regulation Section 1.385-1(c)(4)) that includes the Section 385 Certificateholder owns any Notes or (ii) a Section 385 Controlled Partnership of such expanded group owns any Notes and (B) a Section 385 Certificateholder cannot hold a Certificate (or interest therein) if (i) a member of any “expanded group”(as defined in Treasury Regulation Section 1.385-1(c)(4)) that includes the Section 385 Certificateholder acquires any Notes from the Issuer or any Affiliate of the Issuer or through the marketplace or (ii) a Section 385 Controlled Partnership of such expanded group acquires any Notes from the Issuer or any Affiliate of the Issuer or through the marketplace. The preceding sentence shall not apply if the holder or potential holder of the applicable Notes is a U.S. corporate member of the same U.S. corporate affiliated group (as defined in Section 1504 of the Code) filing a consolidated federal income tax return that includes each of any applicable related Section 385 Certificateholders (including in the case of a partnership, the relevant “expanded group partner” (as defined in Code section 7701(a)(30Treasury Regulation Section 1.385-3(g)(12))). If a Certificateholder (or Certificate Owner) and shall deliver fails to comply with the Owner Trusteerequirements of this paragraph, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 Issuer or Depositor is authorized, at its discretion, to compel such Certificateholder (or applicable successor formCertificate Owner) certifying that it is to sell its Certificate (or interest therein) to a United States person and Person whose ownership does not subject result in a failure to backup withholdingcomply with this paragraph so long as such sale does not otherwise cause a material adverse tax effect on the Issuer.
(d9) Each purchaserIt (and any Person for which it holds Certificates as agent or nominee) understands that, after the date hereof, a Certificate (or beneficial owner interest therein) cannot be sold or transferred to a Person that beneficially owns a Note (or interest therein) if such sale or transfer would result in such person beneficially owning more than 99% of the Certificates of the Issuer (and subsequent transferee of any other interest in the Issuer treated as equity for United States federal income tax purposes).
(10) It (and any Person for which it holds Certificates as agent or an interest therein will be required or deemed to acknowledge nominee) acknowledges that the Issuer may provide any such information and other information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner IRS and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, right under this Trust Agreement to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e11) Each It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio. While such a transfer is void ab initio, to the extent necessary, the Issuer has the right to, and may, cause the sale of any Certificates acquired in violation of such Sections above at the cost and risk of the purported owner. If at any time the Issuer determines or is notified that a purported owner of a Certificate or interest therein, as the case may be, was in breach, at the time given, of any of the representations set forth in such Sections, the Issuer may require that such Certificate or such beneficial interest therein be transferred to a person designated by the Issuer. If the purported transferee fails to transfer such Certificate or such beneficial interests therein within thirty (30) days after notice of the voided transfer, then the Issuer shall bear cause such purported Certificateholder’s interest (or beneficial owner) to be transferred in a legend in substantially commercially reasonable sale arranged by the following form, unless Issuer (conducted by the Seller determines otherwise Issuer or an agent of the Issuer in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED Section 9-610(b) of the UCC as applied to securities that are sold on a recognized market or that may decline speedily in value) to a Person that certifies to the Owner Trustee and the Issuer that such transfer would not violate such Sections above.
(THE “SECURITIES ACT”12) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED The transferee is either (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT a) an Affiliate of the Depositor or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (Ab) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) is a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transfereeQualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a transferee sale of a Certificate failed the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to deliver to it is being made in reliance on the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or exemption from registration provided by Rule 144A, and (3) is acquiring the Certificateholder Certificates for its own account or for one or more accounts, each of any Certificate or interest therein which is in material breach a Qualified Institutional Buyer, and as to each of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, which the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported owner exercises sole investment discretion.
(13) The transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.und
Appears in 2 contracts
Sources: Trust Agreement (Bridgecrest Lending Auto Securitization Trust 2024-1), Trust Agreement (Bridgecrest Lending Auto Securitization Trust 2024-1)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding acquiring a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, not acquiring and is will not purchasing the hold such Certificate (or any interest therein) on behalf of or with any the assets of, of a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement a Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his such Certificateholder’s attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofof this Section 3.7 and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or any Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio.
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(64) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of Certificates receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(6) It shall provide to the Administrator on behalf of the Issuer any information required or requested to enable the Issuer to comply with the CTA, including informing the Administrator if such transferee (or an owner of such transferee) will own or control at least 25 percent of the ownership interests of the Issuer within the meaning of the CTA and providing updates if any previously provided information has changed. It also agrees that the Administrator and the Issuer shall be fully protected in relying upon, and by acceptance of a Certificate (or interest therein therein) it agrees to indemnify and hold the Administrator and the Issuer harmless against all claims or liability of any kind arising in connection with or related to the Administrator’s and the Issuer’s reliance upon, any information provided by it to the Administrator in accordance with the terms of this paragraph and any failure by it to provide any such information.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation Section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation Section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Depositor or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement and the applicable legend or legends on such Certificates. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTCertificates.
(f14) If The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(115) The transferee will provide notice to each Person to whom it proposes to transfer any interest in the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring and will not hold the Certificates (or any interest therein) on behalf of or with the assets of a Benefit Plan or a Plan that is subject to Similar Law.
(17) The transferee understands that if (a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder Certificate that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.re
Appears in 2 contracts
Sources: Trust Agreement (Drive Auto Receivables Trust 2025-1), Trust Agreement (Drive Auto Receivables Trust 2025-1)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing acquiring the Certificate Certificates (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee 10 Second Amended and Restated Trust Agreement (SDART 2023-2) Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes 1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code. 11 Second Amended and Restricted Notes.Restated Trust Agreement (SDART 2023-2)
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Depositor or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTCertificates.
(f14) If The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(115) The transferee will provide notice to each Person to whom it proposes to transfer any interest in the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) on behalf of or with the assets of a Benefit Plan or a Plan that is subject to Similar Law.
(17) The transferee understands that if (a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder Certificate that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Depositor, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Depositor, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Depositor, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transfere
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2023-2), Trust Agreement (Santander Drive Auto Receivables Trust 2023-2)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding acquiring a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, not acquiring and is will not purchasing the hold such Certificate (or any interest therein) on behalf of or with any the assets of, of a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement a Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his such Certificateholder’s attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as 9 Amended and Restated Trust Agreement (SDART 2025-3) Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofof this Section 3.7 and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.. 10 Amended and Restated Trust Agreement (SDART 2025-3)
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or any Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio.
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(64) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of Certificates receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(6) It shall provide to the Administrator on behalf of the Issuer any information required or requested to enable the Issuer to comply with the CTA, including informing the Administrator if such transferee (or an owner of such transferee) will own or control at least 25 percent of the ownership interests of the Issuer within the meaning of 11 Amended and Restated Trust Agreement (SDART 2025-3) the CTA and providing updates if any previously provided information has changed. It also agrees that the Administrator and the Issuer shall be fully protected in relying upon, and by acceptance of a Certificate (or interest therein therein) it agrees to indemnify and hold the Administrator and the Issuer harmless against all claims or liability of any kind arising in connection with or related to the Administrator’s and the Issuer’s reliance upon, any information provided by it to the Administrator in accordance with the terms of this paragraph and any failure by it to provide any such information.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation Section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation Section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Depositor or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is 12 Amended and Restated Trust Agreement (SDART 2025-3) acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement and the applicable legend or legends on such Certificates. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTCertificates.
(f14) If The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(115) The transferee will provide notice to each Person to whom it proposes to transfer any interest in the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring and will not hold the Certificates (or any interest therein) on behalf of or with the assets of a Benefit Plan or a Plan that is subject to Similar Law.
(17) The transferee understands that if (a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.su
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2025-3), Trust Agreement (Santander Drive Auto Receivables Trust 2025-3)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided 10 Amended and Restated Trust Agreement (SDART 2018-2) under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section Code section 7704(b)(1) of the Code), including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(dA) Each purchaser, beneficial owner and subsequent transferee It shall provide to the Administrator on behalf of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide and the Depositor any further information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that by the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsAmended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(e7) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a No transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee (or interest therein) shall be permitted (nor shall a Certificate Investor Representation Letter be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the form case of Exhibit B hereto clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (3y) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement a Section 385 Controlled Partnership of such CertificateholderSection 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the Owner Trustee willcase of clause (y), upon actual knowledge unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such circumstanceDomestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, direct the Certificate Registrar not to register such attempted any Restricted Notes shall be taken into account either as debt interests or purported transfer andownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph). (8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer has been registeredthat contravenes any provisions of Section 3.5(b), such transfer Section 3.7(c) or Section 3.7(h) shall be absolutely null and a void transfer ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholderinitio.
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing acquiring the Certificate Certificates (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of Certificates receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) It shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Corporate Transparency Act, 31 U.S.C. § 5336, and its implementing regulations as may be amended from time to time (the “CTA”), including informing the Administrator if the transferee or an owner of the transferee will own or control at least 25 percent of the ownership interests of the Issuer as those terms are defined in the CTA, and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the CTA, including informing the Administrator if the beneficial owner or an owner of the beneficial owner will own or control at least 25 percent of the ownership interests of the Issuer as those terms are defined in the CTA.
(8) No transfer of a Certificate (or interest therein therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(9) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(10) The transferee is either (a) an Affiliate of the Depositor or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(11) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(12) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(13) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e14) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTCertificates.
(f15) If The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(116) The transferee will provide notice to each Person to whom it proposes to transfer any interest in the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(17) The transferee is not acquiring the Certificates (or any interest therein) on behalf of or with the assets of a Benefit Plan or a Plan that is subject to Similar Law.
(18) The transferee understands that if (a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder Certificate that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(19) The tra
Appears in 2 contracts
Sources: Trust Agreement (Drive Auto Receivables Trust 2024-1), Trust Agreement (Drive Auto Receivables Trust 2024-1)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter substantially in the form of Exhibit B. B to the Certificate Registrar upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required). By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (cii) unless the transferee is a U.S. corporate Affiliate of the Seller (or disregarded entity thereof), an executed Certificate Investor Representation Letter substantially in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (diii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register execute, and issue the Certificate Registrar shall register, authenticate and deliver to such transferor transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the a new Definitive Certificate or Definitive Certificates, the Owner Trustee Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Register and the Indenture Trustee may shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee Seller has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transfereetransferee or other applicable persons) that the proposed transfer transfer, without the representation pursuant to such transferee this paragraph, will not cause the Issuer to be treated as a an association or publicly traded partnership within taxable as a corporation for U.S. federal income tax purposes and the meaning of Section 7704 of the CodeSeller has consented to such transfer in writing, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but (x) no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Restricted Notes and the Certificates and (y) it is not and will not be a principal purpose of the arrangement involving such entity’s beneficial interest in any Restricted NotesNotes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Certificate Registrar, the Indenture Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner TrusteeAdministrator, on behalf of the Issuer, which consent shall be granted unless the Owner Trustee Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer Seller, on behalf of the Issuer, consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; providedcorporation (e.g., howeverthe transfer could cause the aggregate number of beneficial owners of Restricted Notes, the Certificates (or interests therein) and any instrument with respect to which there has not been rendered an opinion that in the case of the first transfer of a Certificate that it will result in the Issuer being deemed to have more than one beneficial owner be treated as debt for United States federal income tax purposes, issued by an entity 50% or more of the Seller shall value of which is or will be entitled, upon requestattributable to direct or indirect interests in the Issuer, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio95).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(6) Prior to December 31, 2017 or such later date that the Amended Partnership Audit Rules shall apply to the Issuer, (A) it shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) Unless the Seller has received an opinion from a nationally recognized tax counsel (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee or other applicable persons) that the proposed transfer or the type of transfer described by this paragraph, without the representation pursuant to this paragraph, will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes, it (and any Person for which it holds Certificates as agent or nominee) will not (i) beneficially own 80% or more of the Certificates (or interest therein) at any time that a member of an expanded group (as defined in Proposed Treasury Regulation section 1.385-1(b)(3) or any successor regulation then in effect) that includes such holder beneficially owns any Note or (ii) beneficially own 80% or more of the Certificates and Restricted Notes, taken together, at any time that a member of an expanded group (as defined in Proposed Treasury Regulation section 1.385-1(b)(3) or any successor regulation then in effect) that includes such holder beneficially owns any Note other than a Restricted Note.
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: “THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODEJURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATECERTIFICATE (OR INTEREST HEREIN), EACH PURCHASER AND TRANSFEREE (AND IF THE PURCHASER OR TRANSFEREE WILL BE IS A PLAN (AS DEFINED BELOW), ITS FIDUCIARY) IS DEEMED TO REPRESENT AND WARRANT THAT IT SUCH PURCHASER OR TRANSFEREE IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY THE ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA), (II) A “PLAN” AS DEFINED IN OR SECTION 4975(e)(1) 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH OF THE FOREGOING, A “BENEFIT PLAN INVESTOR”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH A PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER A LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE FOR PURPOSES OF THE FOREGOING, “PLAN” MEANS AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA WHETHER OR INTEREST HEREIN MAY NOT BE OFFEREDSUBJECT TO TITLE I OF ERISA, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF “PLAN” AS DEFINED IN SECTION 7701(a)(30) 4975 OF THE CODE, OR AN ENTITY OR ACCOUNT DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.OWNE
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section Code section 7704(b)(1) of the Code), including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. 11 Amended and Restated Trust Agreement (SDART 2017-3)
(6) Prior to December 31, 2017 or such later date that the Amended Partnership Audit Rules shall apply to the Issuer, (A) it shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(d7) Each purchaserNo transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., beneficial 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner and subsequent exercises sole investment discretion;
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or an interest therein will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates;
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates, and the transferee and any accounts for which it is acting are each able to bear the economic risk of its investment;
(13) The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in such manner with respect to the U.S. Internal Revenue Service. In additionCertificates;
(14) The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act;
(15) The transferee will provide notice to each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed Person to understand and acknowledge that the Issuer has the right, hereunder, whom it proposes to withhold on transfer any beneficial owner of an interest in a Certificate that fails to comply the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto;
(16) The transferee is not acquiring the Certificates (or any interest therein) with the foregoing requirements.
assets of (ea) Each Certificate shall bear a legend an “employee benefit plan” as defined in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.any Plan that is subject to Similar Law;
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.;
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise) of its purchase or the documentation for the Certificates, (d) the transferee has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, ta
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture 11 Amended and Restated Trust Agreement (SDART 2021-1) Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity or account whose underlying assets are deemed to include assets of any of the foregoing or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any represen
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2021-1), Trust Agreement (Santander Drive Auto Receivables Trust 2021-1)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing acquiring the Certificate Certificates (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Depositor or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTCertificates.
(f14) If The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(115) The transferee will provide notice to each Person to whom it proposes to transfer any interest in the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) on behalf of or with the assets of a Benefit Plan or a Plan that is subject to Similar Law.
(17) The transferee understands that if (a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder Certificate that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Depositor, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Depositor, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Depositor, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2023-1), Trust Agreement (Santander Drive Auto Receivables Trust 2023-1)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter substantially in the form of Exhibit B. B to the Certificate Registrar upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required). By accepting and holding a Certificate (or any interest therein), the holder thereof shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (cii) unless the transferee is a U.S. Affiliate of the Seller, an executed Certificate Investor Representation Letter substantially in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (diii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register execute, and issue the Certificate Registrar shall register, authenticate and deliver to such transferor transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the a new Definitive Certificate or Definitive Certificates, the Owner Trustee Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Register and the Indenture Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. Affiliate of the Seller) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee Seller has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transfereetransferee or other applicable persons) that the proposed transfer transfer, without the representation pursuant to such transferee this paragraph, will not cause the Issuer to be treated as a an association or publicly traded partnership within taxable as a corporation for U.S. federal income tax purposes and the meaning of Section 7704 of the CodeSeller has consented to such transfer in writing, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Notes, Restricted Notes and Restricted Notesthe Certificates.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee Certificate Registrar and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner TrusteeAdministrator, on behalf of the Issuer, which consent shall be granted unless the Owner Trustee Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer Seller, on behalf of the Issuer, consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposescorporation (e.g., the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of the provisions of this (cSection 3.7(c) of or Section 3.6, (ii3.7(h) would or could cause the number of beneficial owners of CertificatesNon-Investment Grade Notes, Restricted Notes and Non-Investment Grade Notes the Certificates (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio95).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(6) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATECERTIFICATE (OR ANY INTEREST HEREIN), EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 3.7 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee Certificate Registrar a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables LLC), Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing acquiring the Certificate Certificates (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his such Certificateholder’s attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or any Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of Certificates receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) It shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Corporate Transparency Act, 31 U.S.C. § 5336, and its implementing regulations as may be amended from time to time (the “CTA”), including informing the Administrator if the transferee or an owner of the transferee will own or control at least 25 percent of the ownership interests of the Issuer as those terms are defined in the CTA, and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the CTA, including informing the Administrator if the beneficial owner or an owner of the beneficial owner will own or control at least 25 percent of the ownership interests of the Issuer as those terms are defined in the CTA.
(8) No transfer of a Certificate (or interest therein therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(9) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(10) The transferee is either (a) an Affiliate of the Depositor or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(11) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(12) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement and the applicable legend or legends on such Certificates. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(13) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e14) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTCertificates.
(f15) If The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(116) The transferee will provide notice to each Person to whom it proposes to transfer any interest in the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(17) The transferee is not acquiring the Certificates (or any interest therein) on behalf of or with the assets of a Benefit Plan or a Plan that is subject to Similar Law.
(18) The transferee understands that if (a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder Certificate that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.of
Appears in 2 contracts
Sources: Trust Agreement (Santander Drive Auto Receivables Trust 2024-3), Trust Agreement (Santander Drive Auto Receivables Trust 2024-3)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter substantially in the form of Exhibit B. B to the Certificate Registrar upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required). By accepting and holding a Certificate (or any interest therein), the holder thereof shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (cii) unless the transferee is a U.S. corporate Affiliate of the Seller (or disregarded entity thereof), an executed Certificate Investor Representation Letter substantially in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (diii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register execute, and issue the Certificate Registrar shall register, authenticate and deliver to such transferor transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the a new Definitive Certificate or Definitive Certificates, the Owner Trustee Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Register and the Indenture Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee Seller has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transfereetransferee or other applicable persons) that the proposed transfer transfer, without the representation pursuant to such transferee this paragraph, will not cause the Issuer to be treated as a an association or publicly traded partnership within taxable as a corporation for U.S. federal income tax purposes and the meaning of Section 7704 of the CodeSeller has consented to such transfer in writing, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Restricted Notes and Restricted Notesthe Certificates.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Certificate Registrar, the Indenture Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner TrusteeAdministrator, on behalf of the Issuer, which consent shall be granted unless the Owner Trustee Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5[ ]% (or of an interest in a Certificate representing a Percentage Interest of more than 5[ ]%) and (B) the Issuer Seller, on behalf of the Issuer, consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; providedcorporation (e.g., howeverthe transfer could cause the aggregate number of beneficial owners of Restricted Notes, the Certificates (or interests therein) and any instrument with respect to which there has not been rendered an opinion that in the case of the first transfer of a Certificate that it will result in the Issuer being deemed to have more than one beneficial owner be treated as debt for United States federal income tax purposes, issued by an entity 50% or more of the Seller shall value of which is or will be entitled, upon requestattributable to direct or indirect interests in the Issuer, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio[ ]).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. 12 Amended and Restated
(6) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: “THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODEJURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATECERTIFICATE (OR ANY INTEREST HEREIN), EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT. EACH PURCHASER OR TRANSFEREE OF THIS CERTIFICATE (OR INTEREST HEREIN) WILL BE REQUIRED TO PROVIDE TO THE OWNER TRUSTEE, THE ADMINISTRATOR, THE INDENTURE TRUSTEE AND THE CERTIFICATE PAYING AGENT A CERTIFICATION OF NON-FOREIGN STATUS (E.G., IRS FORM W-9), SIGNED UNDER PENALTIES OF PERJURY, OR OTHER INFORMATION OR DOCUMENTATION REQUESTED BY THE OWNER TRUSTEE, THE ADMINISTRATOR, THE INDENTURE TRUSTEE OR THE CERTIFICATE PAYING AGENT TO DETERMINE THAT PAYMENTS ON THIS CERTIFICATE WILL NOT BE SUBJECT TO WITHHOLDING UNDER U.S. TAX LAW.”
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 3.7 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee Certificate Registrar a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 1 contract
Sources: Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing acquiring and will not hold the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement a correct, complete and properly executed Internal Revenue Service Form W-9 or Internal Revenue Service Form W-8 (other than an Internal Revenue Service Form W-8ECI or an Internal Revenue Service Form W-8IMY with any Internal Revenue Service Form W-8ECI attached), as applicable, or any successors to such IRS forms or other reasonable information or certification requested by the Owner Trustee, the Administrator or the Certificate Paying Agent (x) to permit the applicable withholding agent (including the Owner Trustee, the Indenture Trustee or the Certificate Paying Agent) to make payments to such owner without withholding (including any FATCA withholding tax), (y) to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets, or (z) to enable the applicable withholding agent (including the Owner Trustee, the Indenture Trustee or the Certificate Paying Agent) to satisfy any reporting or other obligations under any applicable tax law (including FATCA), and will update or replace such form, certification or other information as necessary in accordance with its terms or its subsequent amendments (and in no event shall provide an IRS Form W-8ECI or IRS Form W-8IMY with any IRS Form W-8ECI attached).
(c) By accepting and holding a Certificate (or any interest therein), each transferee or purchaser of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Notes and Restricted Notes.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio.
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 1 contract
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.3 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter substantially in the form of Exhibit B. B to the Certificate Registrar upon which it may conclusively rely (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required). By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.3 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (cii) unless the transferee is a U.S. corporate Affiliate of the Seller (or disregarded entity thereof), an executed Certificate Investor Representation Letter substantially in the form of Exhibit B (unless the Seller shall have received an opinion of nationally recognized tax counsel to the effect that such transfer without an executed Certificate Investor Representation Letter substantially in the form of Exhibit B will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and the Seller shall have consented in writing that no such written representation letter is required) and (diii) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register execute, and issue the Certificate Registrar shall register, authenticate and deliver to such transferor transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the a new Definitive Certificate or Definitive Certificates, the Owner Trustee Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Register and the Indenture Trustee may shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee Seller has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transfereetransferee or other applicable persons) that the proposed transfer transfer, without the representation pursuant to such transferee this paragraph, will not cause the Issuer to be treated as a an association or publicly traded partnership within taxable as a corporation for U.S. federal income tax purposes and the meaning of Section 7704 of the CodeSeller has consented to such transfer in writing, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but (x) no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Restricted Notes and the Certificates and (y) it is not and will not be a principal purpose of the arrangement involving such entity’s beneficial interest in any Restricted NotesNotes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Certificate Registrar, the Indenture Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner TrusteeAdministrator, on behalf of the Issuer, which consent shall be granted unless the Owner Trustee Seller determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5[ ]% (or of an interest in a Certificate representing a Percentage Interest of more than 5[ ]%) and (B) the Issuer Seller, on behalf of the Issuer, consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; providedcorporation (e.g., howeverthe transfer could cause the aggregate number of beneficial owners of Restricted Notes, the Certificates (or interests therein) and any instrument with respect to which there has not been rendered an opinion that in the case of the first transfer of a Certificate that it will result in the Issuer being deemed to have more than one beneficial owner be treated as debt for United States federal income tax purposes, issued by an entity 50% or more of the Seller shall value of which is or will be entitled, upon requestattributable to direct or indirect interests in the Issuer, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio[ ]).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law.
(6) Prior to December 31, 2017 or such later date that the Amended Partnership Audit Rules shall apply to the Issuer, (A) it shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with the Amended Partnership Audit Rules, including Section 6226(a) of the Amended Partnership Audit Rules and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Amended Partnership Audit Rules, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Amended Partnership Audit Rules.
(7) Unless the Seller has received an opinion from a nationally recognized tax counsel (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee or other applicable persons) that the proposed transfer or the type of transfer described by this paragraph, without the representation pursuant to this paragraph, will not cause the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes, it (and any Person for which it holds Certificates as agent or nominee) will not (i) beneficially own 80% or more of the Certificates (or interest therein) at any time that a member of an expanded group (as defined in Proposed Treasury Regulation section 1.385-1(b)(3) or any successor regulation then in effect) that includes such holder beneficially owns any Note or (ii) beneficially own 80% or more of the Certificates and Restricted Notes, taken together, at any time that a member of an expanded group (as defined in Proposed Treasury Regulation section 1.385-1(b)(3) or any successor regulation then in effect) that includes such holder beneficially owns any Note other than a Restricted Note.
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: “THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, AFFILIATES AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODEJURISDICTION. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATECERTIFICATE (OR INTEREST HEREIN), EACH PURCHASER AND TRANSFEREE (AND IF THE PURCHASER OR TRANSFEREE WILL BE IS A PLAN (AS DEFINED BELOW), ITS FIDUCIARY) IS DEEMED TO REPRESENT AND WARRANT THAT IT SUCH PURCHASER OR TRANSFEREE IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY THE ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) A PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA), (II) A “PLAN” AS DEFINED IN OR SECTION 4975(e)(1) 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH OF THE FOREGOING, A “BENEFIT PLAN INVESTOR”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH A PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER A LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE FOR PURPOSES OF THE FOREGOING, “PLAN” MEANS AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA WHETHER OR INTEREST HEREIN MAY NOT BE OFFEREDSUBJECT TO TITLE I OF ERISA, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF “PLAN” AS DEFINED IN SECTION 7701(a)(30) 4975 OF THE CODE. EACH PURCHASER , OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSONAN ENTITY OR ACCOUNT DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.NO
Appears in 1 contract
Sources: Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding acquiring a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, not acquiring and is will not purchasing the hold such Certificate (or any interest therein) on behalf of or with any the assets of, of a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement a Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his such Certificateholder’s attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit CB, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofof this Section 3.7 and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless each of the Certificate Registrar and the Owner Trustee has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the SellerDepositor, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or any Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation Section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (or any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of Certificates receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) It shall provide to the Administrator on behalf of the Issuer any information required or requested to enable the Issuer to comply with the CTA, including 14 Amended and Restated Trust Agreement (20[ ]-[ ]) informing the Administrator if such transferee (or an owner of such transferee) will own or control at least 25 percent of the ownership interests of the Issuer within the meaning of the CTA and providing updates if any previously provided information has changed. It also agrees that the Administrator and the Issuer shall be fully protected in relying upon, and by acceptance of a Certificate (or interest therein therein) it agrees to indemnify and hold the Administrator and the Issuer harmless against all claims or liability of any kind arising in connection with or related to the Administrator’s and the Issuer’s reliance upon, any information provided by it to the Administrator in accordance with the terms of this paragraph and any failure by it to provide any such information.
(8) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation Section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation Section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this clause (8)).
(9) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(10) The transferee is either (a) an Affiliate of the Depositor or is acquiring its interest in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Depositor or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Depositor or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Depositor or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(11) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(12) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement and the applicable legend or legends on such Certificates. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(13) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e14) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTCertificates.
(f15) If The transferee is not acquiring the Certificates with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(116) The transferee will provide notice to each Person to whom it proposes to transfer any interest in the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(17) The transferee is not acquiring and will not hold the Certificates (or interest therein) on behalf of or with the assets of a Benefit Plan or a Plan that is subject to Similar Law.
(18) The transferee understands that if (a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder Certificate that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.sha
Appears in 1 contract
Sources: Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing acquiring the Certificate Certificates (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Certificate Registrar or the Owner Trustee to comply with Applicable Law (as defined in Section 7.8). No transfer will be effectuated hereunder by the Certificate Registrar or the Owner Trustee unless the Owner Trustee unless each of the Certificate Registrar and has received the transfer documentation required by it hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes and Restricted Notes1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of 11 Amended and Restated Trust Agreement (20[ ]-[ ]) more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section Section 7701(a)(30)) of the Code) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code (and any corresponding provision of state law) and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code (and any corresponding provision of state law), hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code (and any corresponding provision of state law).
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) on behalf of or with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity or account whose underlying assets are deemed to include assets of any of the foregoing or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any
Appears in 1 contract
Sources: Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in Section 3.5 and this Section 3.63.7. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. By accepting and holding a Certificate (or any interest therein), the holder thereof (and, if the holder is a Plan, its fiduciary) shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement Plan that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof delivery to the Owner Trustee accompanied by Certificate Registrar of the documents required by Section 3.5 and this Section 3.63.7 and, in the case of a Definitive Certificate, surrender of such Definitive Certificate to the Certificate Registrar. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon (i) in the case of a Definitive Certificate, surrender of the such Certificate to the Owner Trustee Certificate Registrar accompanied by (ax) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee Certificate Registrar may reasonably require, require and (by) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B C and (dii) delivery of the documents required by clause (c) hereofhereof and such other documentation as may be required by the Owner Trustee to comply with Applicable Law. No transfer will be effectuated hereunder by the Owner Trustee unless the Owner Trustee has received the transfer documentation required hereunder. Promptly upon the receipt of such documents and and, in the case of a Definitive Certificate, receipt by the Owner Trustee Certificate Registrar of the transferor’s Certificate, the Owner Trustee Certificate Registrar shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and, in the case of a Definitive Certificate, the Owner Trustee shall execute, and issuethe Certificate Registrar shall authenticate and deliver, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.63.7, the Owner Trustee Certificate Registrar may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall execute, and the Certificate Registrar shall register, authenticate and deliver to such transferor, a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of a new Definitive Certificate or Definitive Certificates, the Certificate Registrar shall cancel and destroy the Definitive Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee, the Certificate Registrar and the Indenture Trustee shall treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate, without regard to any notice to the contrary.
(b) Each Certificateholder and, if different, each Certificate Owner, shall deliver Tax Information to the Owner Trustee, the Administrator and the Certificate Paying Agent on or prior to the date on which such Certificateholder or Certificate Owner becomes a Certificateholder or Certificate Owner under this Agreement and from time to time thereafter if such Tax Information becomes incorrect or obsolete, as otherwise prescribed by applicable law or upon the request of the Owner Trustee, the Administrator or the Certificate Paying Agent.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. corporate Affiliate of the Seller, or disregarded entity thereof) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section Code section 7704(b)(1) of the Code), including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee If it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. United States federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) ), it is such an entity, but no more than 50% not being used with a principal purpose of the value of any of the direct or indirect arrangement involving such entity’s beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Nonany Restricted Notes or Certificates to permit any partnership to satisfy the 100 partner limitation of Treasury Regulation section 1.7704-Investment Grade Notes 1(h)(1)(ii) necessary for such partnership not to be classified as a publicly traded partnership under the Code. 11 Amended and Restricted Notes.Restated Trust Agreement (20[ ]-[ ])
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation[Reserved.]
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5% (or of an interest in a Certificate representing a Percentage Interest of more than 5%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio).
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator Administrator, the Indenture Trustee and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding, or other information or documentation requested by the Administrator, the Indenture Trustee, the Certificate Paying Agent or the Owner Trustee to determine, in its sole discretion, that payments on such Certificates will not be subject to withholding under U.S. tax law. Further, in the event of any subsequent transfer of a Certificate (or any interest therein), such owner of a beneficial interest shall comply with Section 1446(f) of the Code (including with respect to deducting and withholding from the purchase price paid in respect of such Certificate unless the transferee obtained a certificate providing for an exemption from such withholding).
(dA) Each purchaserIt shall provide to the Administrator on behalf of the Issuer and the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code and (B) if it is not the beneficial owner of a Certificate, such beneficial owner shall provide to the Administrator on behalf of the Issuer and subsequent the Depositor any further information required by the Issuer to comply with Sections 6221 through 6241 of the Code, including Section 6226(a) of the Code and, to the extent the Issuer determines such appointment necessary for it to make an election under Section 6226(a) of the Code, hereby appoints the transferee as its agent for purposes of receiving any notifications or information pursuant to the notice requirements under Section 6226(a)(2) of the Code.
(7) No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it causes the Issuer to be a Section 385 Controlled Partnership (i.e., 80 percent or more of the Issuer’s ownership interests are owned, directly or indirectly, by one or more members of a Section 385 Expanded Group) that has an expanded group partner (within the meaning of Treasury Regulation Section 1.385-3(g)(12)) which is a Domestic Corporation and (ii) either (x) a member of such Section 385 Expanded Group owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). No transfer of a Certificate (or interest therein) shall be permitted (nor shall a Certificate be so held) if (i) it results in the Issuer becoming an entity disregarded as separate from a Domestic Corporation for U.S. federal income tax purposes and (ii) either (x) a member of a Section 385 Expanded Group that includes such Domestic Corporation owns any Notes or (y) a Section 385 Controlled Partnership of such Section 385 Expanded Group owns any Notes (in the case of clause (x), unless such member, or in the case of clause (y), unless each member of the Section 385 Expanded Group that is a partner in the Section 385 Controlled Partnership, is a member of the consolidated group (as described in Treasury Regulation section 1.1502-1(h)) which includes such Domestic Corporation). For purposes of determining the Issuer’s ownership interests in this paragraph, any Restricted Notes shall be taken into account either as debt interests or ownership interests based on whichever treatment, if any, would result in the Issuer as a Section 385 Controlled Partnership or a disregarded entity for purposes of applying this paragraph’s restriction (it being understood that if the Restricted Notes are taken into account as ownership interests for this purpose then the Restricted Notes are not also considered Notes for the Note ownership restriction of this paragraph).
(8) It (and any Person for which it holds Certificates as agent or nominee) understands that any attempted transfer that contravenes any provisions of Section 3.5(b), Section 3.7(c) or Section 3.7(h) shall be a void transfer ab initio.
(9) The transferee is either (a) an Affiliate of the Seller or is acquiring its interest therein in the Certificates as part of the initial distribution or any redistribution of the Certificates by the Seller or one of its Affiliates or (b) (1) is a Qualified Institutional Buyer, (2) is aware that the sale of the Certificates (other than a sale of the Certificates by the Seller or any of its Affiliates as part of the initial distribution or any redistributions of the Certificates by the Seller or any of its Affiliates) to it is being made in reliance on the exemption from registration provided by Rule 144A, and (3) is acquiring the Certificates for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion.
(10) The transferee understands that the Certificates will bear a legend that complies with Section 3.7(e).
(11) The transferee understands that the Certificates are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Certificates have been or will be required registered under the Securities Act, and, if in the future the transferee decides to offer, resell, pledge or otherwise transfer the Certificates, such Certificates may only be offered, resold, pledged or otherwise transferred in accordance with this Trust Agreement. The transferee acknowledges that no representation is being made by the Issuer as to the availability of any exemption under the Securities Act or any applicable State securities laws for resale of the Certificates.
(12) The transferee understands that an investment in the Certificates involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The transferee has had access to such financial and other information concerning the Issuer and the Certificates as it deemed necessary or appropriate in order to acknowledge make an informed investment decision with respect to its purchase of the Certificates. The transferee has such knowledge and experience in financial and business matters that the Issuer may provide any information concerning transferee is capable of evaluating the merits and risks of its investment in the Certificates Certificates, and the transferee and any accounts for which it is acting are each able to bear the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee economic risk of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirementsits investment.
(e13) Each Certificate shall bear The transferee will not make any general solicitation by means of general advertising or in any other manner, or take any other action that would constitute a legend distribution of the Certificates under the Securities Act or that would render the disposition of the Certificates a violation of Section 5 of the Securities Act or any other applicable securities laws or require registration pursuant thereto, and will not authorize any Person to act on its behalf, in substantially such manner with respect to the following formCertificates.
(14) The transferee is not acquiring the Certificates with a view to the resale, unless distribution or other disposition thereof in violation of the Seller determines otherwise Securities Act.
(15) The transferee will provide notice to each Person to whom it proposes to transfer any interest in accordance the Certificates of the transfer restrictions and representations set forth in this Trust Agreement, including the Exhibits hereto.
(16) The transferee is not acquiring the Certificates (or any interest therein) with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED the assets of (THE a) an “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLANemployee benefit plan” AS DEFINED IN SECTION as defined in Section 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974of ERISA, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE that is subject to Title I OF of ERISA, (IIb) A a “PLANplan” AS DEFINED IN SECTION defined in Section 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986of the Code, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION that is subject to Section 4975 OF THE CODEof the Code, (IIIc) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR an entity whose underlying assets are deemed to include assets of any of the foregoing by reason of such employee benefit plan’s or plan’s investment in such entity or (IVd) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENTany Plan that is subject to Similar Law.
(f17) If The transferee understands that if (1a) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 Trust Agreement on the basis of a materially incorrect certification from the transferor Transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3b) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee willCertificate Registrar, upon actual knowledge of such circumstancecircumstances, direct the Certificate Registrar will not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
(18) The transferee acknowledges that in connection with the transfer of the Certificates (a) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, nor the Owner Trustee is acting as a fiduciary or financial or investment adviser for the transferee, (b) the transferee is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Seller, the Indenture Trustee or the Owner Trustee other than in the most current offering memorandum for such Certificates and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Seller, the Indenture Trustee, the Owner Trustee or any placement agent has given to the transferee (directly or indirectly through any other person) any assu
Appears in 1 contract
Sources: Trust Agreement (Santander Drive Auto Receivables LLC)
Transfer of the Certificates. (a) A Certificateholder may assign, convey or otherwise transfer all or any of its right, title and interest in the related Certificate, subject to the restrictions set forth in this Section 3.6. Each purchaser and transferee (other than a U.S. Affiliate of the Seller) of a Certificate will be required to provide a Certificate Investor Representation Letter in the form of Exhibit B. 6 Amended and Restated By accepting and holding a Certificate (or any interest therein), the holder thereof shall be deemed to have represented and warranted that it is not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any assets of, a Benefit Plan or any governmental, non-U.S., church or any other employee benefit plan or retirement arrangement that is subject to Similar Law. Subject to the transfer restrictions contained herein and in the Certificate, each Certificateholder may transfer all or any portion of the Percentage Interest evidenced by such Certificate upon surrender thereof to the Owner Trustee accompanied by the documents required by this Section 3.6. Such transfer may be made by a registered Certificateholder in person or by his attorney duly authorized in writing upon surrender of the Certificate to the Owner Trustee accompanied by (a) a written instrument of transfer in the form of the “Assignment” attached to the Form of Certificate attached hereto as Exhibit A and with such signature guarantees and evidence of authority of the Persons signing the instrument of transfer as the Owner Trustee may reasonably require, (b) an executed direction letter regarding registration of such transfer in the form attached hereto as Exhibit C, (c) an executed Certificate Investor Representation Letter in the form of Exhibit B and (d) the documents required by clause (c) hereof. Promptly upon the receipt of such documents and receipt by the Owner Trustee of the transferor’s Certificate, the Owner Trustee shall record the name of such transferee as a Certificateholder and its Percentage Interest in the Certificate Register and issue, execute and deliver to such Certificateholder a Certificate evidencing such Percentage Interest. In the event a transferor transfers only a portion of its Percentage Interest, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing such transferor’s new Percentage Interest. Subsequent to a transfer and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and destroy the Certificate surrendered to it in connection with such transfer. Unless otherwise provided under applicable law, the Owner Trustee may treat the Person in whose name any Certificate is registered as the sole owner of the beneficial interest in the Issuer evidenced by such Certificate.
(b) As a condition precedent to any registration of transfer under this Section 3.6, the Owner Trustee may require the payment of a sum sufficient to cover the payment of any tax or taxes or other governmental charges required to be paid in connection with such transfer.
(c) By accepting and holding a Certificate (or any interest therein), each transferee of a Certificate (other than a U.S. Affiliate of the Seller) shall be deemed to have acknowledged, represented and agreed as follows:
(1) It (and any Person for which it holds Certificates as agent or nominee) has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.. 7 Amended and Restated
(2) Unless the Owner Trustee has received an opinion from a nationally recognized tax counsel in form and substance acceptable to the Seller (which, for the avoidance of doubt, may rely on reasonable representations of the applicable transferee) that the proposed transfer to such transferee will not cause the Issuer to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code, such transferee it (and any Person for which it holds Certificates as agent or nominee, collectively for purposes of this paragraph (2), a “transferee”) either (A) is not, and will not become, a partnership, S corporation or grantor trust for U.S. federal income tax purposes (or a disregarded entity the single owner of which is any of the foregoing) or (B) is such an entity, but no more than 50% of the value of any of the direct or indirect beneficial interests in such transferee (or in the case of a disregarded entity, the interests of its single owner) is or will be attributable to such transferee’s (or in the case of a disregarded entity, the single owner’s) interest in Certificates, Non-Investment Grade Notes and Restricted Notes.
(3) It understands that if it is acquiring any Certificate for the account of one or more Persons as agent or nominee, (A) it shall provide to the Owner Trustee and the Seller information as to the number of such Persons and any changes in the number of such Persons and (B) any such change in the number of Persons for whose account a Certificate is held shall require the written consent of the Owner Trustee, which consent shall be granted unless the Owner Trustee determines that such proposed change in number of Persons would create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation.
(4) It (and any Person for which it holds Certificates as agent or nominee) understands that no subsequent transfer of the Certificates (or any interest therein) is permitted unless (A) such transfer is of a Certificate with a Percentage Interest of more than 5[—]% (or of an interest in a Certificate representing a Percentage Interest of more than 5[—]%) and (B) the Issuer consents in writing to the proposed transfer, which consent shall be granted unless the Seller determines that such transfer would either create a risk that the Issuer would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that in the case of the first transfer of a Certificate that will result in the Issuer being deemed to have more than one beneficial owner for federal income tax purposes, the Seller shall be entitled, upon request, to receive from the transferor an Initial Certificate Transfer Opinion; provided, further, that any attempted transfer that (i) contravenes any of provisions of this (c) of Section 3.6, (ii) would cause the number of beneficial owners of Certificates, Restricted Notes and Non-Investment Grade Notes (or interests therein) in the aggregate to exceed 95 or (iii) otherwise cause the Issuer to become a publicly traded partnership for income tax purposes shall be a void transfer ab initio.. 8 Amended and Restated
(5) It (and any Person for which it holds Certificates as agent or nominee) understands that the Opinion of Counsel to the Issuer that the Issuer is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations above (in this clause (c)).
(6) Each registered owner of and, if different, each owner of a beneficial interest in, a Certificate is a “United States person” (as defined in Code section 7701(a)(30)) and shall deliver to the Owner Trustee, the Administrator and the Certificate Paying Agent two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 (or applicable successor form) certifying that it is a United States person and not subject to backup withholding.
(d) Each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to acknowledge that the Issuer may provide any information concerning its investment in the Certificates to the U.S. Internal Revenue Service. In addition, each purchaser, beneficial owner and subsequent transferee of Certificates or an interest therein will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to withhold on any beneficial owner of an interest in a Certificate that fails to comply with the foregoing requirements.
(e) Each Certificate shall bear a legend in substantially the following form, unless the Seller determines otherwise in accordance with applicable law: THIS CERTIFICATE OR ANY INTEREST HEREIN HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO THE SELLER OR ANY OF ITS AFFILIATES AND BY THE SELLER OR ANY OF ITS AFFILIATES AS PART OF THE INITIAL DISTRIBUTION OR ANY REDISTRIBUTION OF THE CERTIFICATES BY THE SELLER OR ANY OF ITS AFFILIATES, (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION AND (C) TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH CERTIFICATE OR PERCENTAGE INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. BY ACQUIRING THIS CERTIFICATE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN) ON BEHALF OF OR WITH ANY ASSETS OF (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN SUCH ENTITY, OR (IV) ANY GOVERNMENT PLAN, NON-U.S. PLAN, CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR OTHER LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”). THIS CERTIFICATE OR INTEREST HEREIN MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT TO A PERSON THAT IS A UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE. EACH PURCHASER OR TRANSFEREE SHALL REPRESENT AND WARRANT THAT IT IS A U.S. PERSON. EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO HAVE MADE CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE TRUST AGREEMENT. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE OWNER TRUSTEE, OR ANY INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT THE PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE OR BENEFICIAL INTEREST IN SUCH CERTIFICATE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE TRUST AGREEMENT, THE ISSUER AND THE OWNER TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER. TRANSFERS OF THIS CERTIFICATE MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AGREEMENT.. 10 Amended and Restated
(f) If (1) a transfer or attempted or purported transfer of any Certificate or interest therein was consummated in compliance with the provisions of this Section 3.6 on the basis of a materially incorrect certification from the transferor or purported transferee, (2) a transferee of a Certificate failed to deliver to the Owner Trustee a Certificate Investor Representation Letter in the form of Exhibit B hereto or (3) the Certificateholder of any Certificate or interest therein is in material breach of any representation or agreement set forth in any Certificate or any deemed representation or agreement of such Certificateholder, the Owner Trustee will, upon actual knowledge of such circumstance, direct the Certificate Registrar not to register such attempted or purported transfer and, if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall not operate to transfer any rights to the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Certificateholder of such Certificateholder that was not a Disqualified Transferee shall be restored to all rights as a Certificateholder thereof retroactively to the date of the purported transfer of such Certificate by such Certificateholder.
Appears in 1 contract
Sources: Trust Agreement (Santander Drive Auto Receivables LLC)